TIDMTMO
RNS Number : 7384N
Time Out Group plc
22 May 2020
THIS ANNOUNCEMENT, INCLUDING THE APPICES AND THE INFORMATION
CONTAINED IN THEM, IS RESTRICTED AND IS NOT FOR RELEASE,
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DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED STATES, AUSTRALIA,
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DISTRIBUTION WOULD BE UNLAWFUL.
THIS ANNOUNCEMENT IS FOR INFORMATION PURPOSES ONLY AND IS NOT AN
OFFER OF SECURITIES IN ANY JURISDICTION. PLEASE SEE THE IMPORTANT
NOTICES AT THE OF THIS ANNOUNCEMENT.
THIS ANNOUNCEMENT CONTAINS INSIDE INFORMATION FOR IMMEDIATE
RELEASE.
22 May 2020
Time Out Group plc
("Time Out" or the "Company")
Proposed Placing and Open Offer to raise up to GBP49 million
and
Debt Restructuring
The Company today announces it is proposing to raise up to GBP49
million, before expenses, by way of a Placing to raise gross
proceeds of up to approximately GBP45 million and an Open Offer to
raise gross proceeds of up to approximately GBP4 million, in each
case at an issue price of 35 pence per New Ordinary Share (the
"Issue Price") (together the "Equity Fundraising").
The Placing is being conducted through an accelerated bookbuild
process (the "Bookbuild"), which will be launched immediately
following this announcement (together with the Appendices, the
"Announcement"). Liberum Capital Limited ("Liberum") is acting as
sole bookrunner in relation to the Placing.
The Company also announces that it has today entered into the
amendment and restatement of the terms of the Group's EUR22.6
million (approximately GBP20.2 million) outstanding debt facilities
from Incus Capital Advisers, S.A. ("Incus") (the "Incus Loan
Restructuring"). The Incus Loan Restructuring is conditional upon,
inter alia, the completion of the Equity Fundraising and gross
proceeds being raised pursuant to the Placing of not less than
GBP45 million.
In addition, subject to the completion of the Equity
Fundraising:
-- the principal sum of GBP20 million outstanding under the
series 1 secured fixed rate loan notes 2021 of the Company (the
"Series 1 Loan Notes") constituted by a loan note agreement dated
27 March 2018 (as amended and restated on 24 September 2018, 25
September 2019, 14 May 2020 and 14 May 2020) between, inter alios,
Oakley Capital Investments Limited ("OCI") and the Company (the
"Loan Note Agreement") will be redeemed in full out of the net
proceeds of the Equity Fundraising and, subject to gross proceeds
of GBP2.14 million or more being raised pursuant to the Open Offer,
all accrued and outstanding interest payable in respect of the
Series 1 Loan Notes under the Loan Note Agreement at the time of
redemption (expected to be approximately GBP4.6 million) is also
expected to be redeemed in full;
-- the GBP2.5 million series 2 secured fixed rate loan notes
2021 of the Company constituted by the Loan Note Agreement and
drawn following the recent GBP18 million extension to the terms of
the Loan Note Agreement announced by the Company on 15 May 2020
(the "Series 2 Loan Notes" and, together with the Series 1 Loan
Notes, the "OCI Loan Notes"), will be redeemed in full together
with any accrued and outstanding interest and arrangement fees
payable thereon at the time of redemption (expected to be
approximately GBP86,000); and
-- each of the OCI Loan Notes and any amounts available but
unissued in accordance with the terms of the Loan Note Agreement
will be cancelled upon such redemptions out of the net proceeds of
the Equity Fundraising.
Placing and Open Offer Highlights
-- Proposed Placing of up to 128,571,428 New Ordinary Shares at
an Issue Price of 35 pence per New Ordinary Share, to be made to
certain new and existing Shareholders.
-- OCI and Oakley Capital Private Equity L.P. ("OCPE"), who
together hold approximately 51.72 per cent. of the Company's issued
share capital as at 21 May 2020 (being the latest practicable date
prior to the date of this Announcement), have indicated their
intention to subscribe for up to 71,100,000 New Ordinary Shares
pursuant to the Placing (representing aggregate gross proceeds of
approximately GBP24.9 million).
-- In the event that OCI and OCPE are allocated 71,100,000 New
Ordinary Shares pursuant to the Placing, their aggregate holding in
the issued share capital of the Company would increase from
approximately 51.72 per cent. to approximately 53.38 per cent.
(assuming no take-up of New Ordinary Shares by Qualifying
Shareholders pursuant to the Open Offer), or decrease from
approximately 51.72 per cent. to approximately 51.26 per cent.
assuming the Open Offer is taken up in full by Qualifying
Shareholders). Neither OCI nor OCPE will be Qualifying Shareholders
for the purposes of the Open Offer.
-- Mr. Richard Caring, who indirectly holds approximately 6.59
per cent. of the Company's issued share capital as at 21 May 2020
(being the latest practicable date prior to the date of this
Announcement), has indicated his intention to subscribe for up to
8,477,227 New Ordinary Shares pursuant to the Placing (representing
aggregate gross proceeds of approximately GBP3.0 million).
-- Open Offer to Qualifying Shareholders (which excludes OCI and
OCPE) of up to 11,471,521 New Ordinary Shares at an Issue Price of
35 pence per New Ordinary Share.
-- The Issue Price of 35 pence per New Ordinary Share represents
a discount of approximately 14.63 per cent. to the closing
mid-market price of the Company's Existing Ordinary Shares on 21
May 2020, being the latest practicable date prior to the date of
this Announcement.
-- The net proceeds of the Equity Fundraising will be used
primarily to support general working capital requirements and
strengthen the Company's balance sheet in the wake of the impact of
COVID-19, to part fund continuing Time Out Markets capital
expenditure, to continue developing the new London Waterloo and
Porto Markets and to redeem the OCI Loan Notes in full, together
with all accrued and unpaid interest payable thereon at the time of
redemption (assuming, in the case of the Series 1 Loan Notes only,
that the Company raises gross proceeds of GBP2.14 million or more
pursuant to the Open Offer).
-- Upon completion of the Equity Fundraising, the 140,042,949
New Ordinary Shares would represent approximately 48.54 per cent.
of the Enlarged Share Capital (assuming the Open Offer is
subscribed in full).
-- The timing for the close of the Bookbuild and allocation of
the Placing Shares shall be at the discretion of Liberum, in
consultation with the Company. The Placing is not underwritten.
-- The final number of Placing Shares to be issued pursuant to
the Placing, and the allocation of such Placing Shares, will be
agreed by Liberum and the Company at the close of the Bookbuild,
and the result will be announced as soon as practicable
thereafter.
-- The Appendix to this Announcement (which forms part of this
Announcement) contains the detailed terms and conditions of the
Placing.
-- Completion of the Placing and Open Offer will be conditional
upon, among other things, the approval by Shareholders of certain
resolutions to be proposed at a general meeting of the Company (the
"General Meeting") in connection with the Placing and Open Offer
(the "Resolutions"). The General Meeting is expected to be convened
and held on 11 June 2020. The Incus Loan Restructuring is not
conditional upon the passing of the Resolutions, but is conditional
upon Admission of the New Ordinary Shares to be issued pursuant to
the Equity Fundraising and it is therefore anticipated that the
Incus Amendment and Restatement Agreement will only become
effective if the Resolutions are passed by Shareholders at the
General Meeting. The Incus Loan Restructuring is also conditional
upon, inter alia, the Company raising not less than GBP45 million
of gross proceeds pursuant to the Placing.
-- Admission of the New Ordinary Shares to trading on AIM is
currently expected to take place on or around 12 June 2020.
-- The Company expects to publish a circular (the "Circular") in
connection with the Placing and Open Offer following the successful
closure of the Bookbuild, in order to convene the General Meeting.
Full details, including terms and conditions, of the Open Offer
will also be included in the Circular.
-- The Company's chairman, Peter Dubens, has agreed to
irrevocably undertake to participate in the Open Offer by taking-up
his Open Offer Entitlement of 424,048 New Ordinary Shares in full
and submitting an application for up to a further 2,074,647 New
Ordinary Shares pursuant to the Excess Application Facility.
Background to and reasons for the Placing and Open Offer
Time Out Markets temporarily closed - On 23 March 2020, the
Company announced that it had temporarily closed its six Time Out
Markets in Boston, Chicago, Lisbon, Miami, Montreal and New York in
support of the local and global efforts to contain the spread of
COVID-19. In response to this situation, the Company has
significantly reduced contracted costs (primarily cleaning and
security) in the Time Out Markets, terminated contracts with all
hourly paid staff (approximately 60 per cent. of total Time Out
Markets staff) and furloughed approximately 30 per cent. of Time
Out Markets employees (60 employees in Portugal and head office).
It has also entered into rent deferral and reduction negotiations
with site landlords. These measures are expected to result in a
monthly cost reduction for Time Out Markets of approximately GBP1.7
million whilst the Time Out Markets remain closed.
Advertising revenues slow - On 23 March 2020, the Company also
announced that the COVID-19 pandemic had led to a slowing of
advertising revenues and that, given the material uncertainty of
the situation, it was not possible to quantify the full trading
impact of the outbreak. The Company has responded quickly to these
unprecedented times with a temporary "Time In" rebrand and a launch
of an e-version of the magazine, complementing its online digital
content. The Company has furloughed 23 per cent. of staff in Time
Out Media, has suspended all print editions globally and has
temporarily halted all marketing spend, freelancing and bought-in
words and pictures. These measures are expected to result in a
monthly cost reduction for Time Out Media of approximately
GBP600,000.
GBP2.4 million of monthly cash savings - In addition to the
above, a number of Group-wide temporary measures have been taken.
In total, 47 per cent. of employees or hourly paid workers have
been furloughed or their contracts terminated. Members of the
management teams across Time Out Markets, Time Out Media and head
office have taken salary reductions of approximately 25 per cent.
Furthermore, 2020 pay rises have been reversed, bonuses cancelled,
travel and expense costs have been largely stopped and borrowing
under the Coronavirus Large Business Interruption Loan Scheme and
other government schemes continue to be investigated, and whilst
the Company has received approximately US$1.3 million of funding
under the US Paycheck Protection Program, neither the size nor
duration of any potential further funding is expected to be
significant. In aggregate, the Group's cost saving measures are
expected to deliver approximately GBP2.4 million of monthly cash
savings across the Group.
Funding to provide liquidity headroom to November 2021 - As at 1
May 2020, the Company had available cash reserves of approximately
GBP3.6 million. Whilst the Time Out Markets remain closed, the
Company expects to have an approximate monthly cash outflow of
GBP1.5 million following implementation of the self-help measures
described above and the Incus Loan Restructuring described in
further detail below, such that the Company expects to have
sufficient liquidity to fund approximately 14 months of operations.
On the assumption that the Company raises not less than GBP45
million pursuant to the Placing, when applying the Company's
downside assumptions, whereby the Time Out Markets do not re-open
until December 2020 in Lisbon and March 2021 in North America and
assuming no additional non-committed capital expenditure, the
Company expects to have sufficient working capital through to
November 2021. In practice, the Company is assuming a base case of
the Time Out Markets re-opening in September 2020, however the
managers of each Time Out Market are monitoring government and
local authority advice regarding the possibility of re-opening
earlier. In both the base case and downside scenarios, the Company
has assumed that Time Out Markets revenues will be reduced in the
first six months following re-opening by 50 per cent. of the budget
for the financial year ended 31 December 2020, rising to 85 per
cent. of budget for the following six months (with the exception of
Miami, which is assumed to rise to 60 per cent. of budget). The
Company expects that it will incur capital expenditure amounting to
approximately GBP8.4 million (all of which will be funded from post
Equity Fundraising liquidity in the Company's base case assumption)
in connection with the site development of new Time Out Markets in
Porto and London Waterloo in 2021, with further capital expenditure
of approximately GBP8.4 million to be incurred in 2022 prior to the
opening of these Time Out Markets. Of this GBP16.8 million,
approximately GBP4.9 million is expected to be incurred in
connection with the development of the Porto market and
approximately GBP11.9 million in connection with the development of
the London Waterloo market. Furthermore, in both the base case and
downside scenarios, the Company has assumed that Time Out Media
revenues will be reduced by 50 per cent. of the previous budget for
the financial year ended 31 December 2020. In the base case
scenario and following the completion of the Placing and Open Offer
and the Incus Loan Restructuring, the Company can meet its expected
capital expenditure payments up until the fourth quarter of its
financial year ended 31 December 2021, at which point the Board
believes there will be a range of funding options available to the
Company.
The Company is therefore proposing to raise funds via a Placing
to raise up to GBP45 million (before expenses) and up to a further
approximately GBP4 million via the Open Offer in order to:
-- support general working capital requirements given the
significant impact of the COVID-19 outbreak on trading, which is
expected to continue in the near-term;
-- strengthen the Company's balance sheet in the wake of the
impact of COVID-19 in order to be prepared for the Company's
downside scenario;
-- part fund the Company's continuing capex programme and
progress the new London Waterloo and Porto markets to their
scheduled openings; and
-- redeem the OCI Loan Notes in full together with all accrued
and unpaid interest payable thereon at the time of redemption
(assuming, in the case of the Series 1 Loan Notes only, that the
Company raises gross proceeds of GBP2.14 million or more pursuant
to the Open Offer ).
Time Out to emerge stronger - The Board believes that, following
a successful Equity Fundraising and Incus Loan Restructuring, a
cost reduction programme and further strategic initiatives, the
Company will emerge, following the immediate impact of COVID-19,
with a stronger brand, a larger audience and a higher operating
margin and will be well positioned to continue the successful Time
Out Markets roll-out which transformed the Group in 2019.
Time Out Markets continue to grow in popularity - In 2019, the
Lisbon Time Out Market continued to exceed expectations with a
record 4.1 million visitors and FY19 EBITDA of GBP5.3 million, up
20 per cent. year on year. Significantly, the successful opening of
five new Time Out Markets in the same period has transformed the
division from this single, highly popular market to a global
portfolio, demonstrating that the concept can be effectively
replicated in cities around the world. During this period of
containment, consumers and chefs are showing their desire to return
to the Time Out Markets, which will offer a desirable proposition
following the lifting of lockdown restrictions. For consumers, the
Directors believe that they present a more accessible fine food
option (to eat in or out) during the current environment. In
addition, the Company believes that landlords need concepts like
Time Out Markets to drive footfall to ailing retail venues.
Consequently, a number of new management agreement opportunities
are under discussion.
A safe dining solution - The Company believes that the scale and
layout of well-ventilated Time Out Markets venues are well suited
to allow social distancing in an enjoyable environment.
Preparations are underway to adapt each Time Out Market for
re-opening, including distanced seating plans, table partitioning,
cashier shields, sanitisation teams and the introduction of
collection and home delivery. It is expected that each Time Out
Market will be able to reopen upon approximately two to four weeks'
notice. Although delays are now anticipated in respect of the
proposed opening of further Time Out Markets as a result of the
COVID-19 pandemic, with progress continuing towards new site
openings expected in Dubai in H2 2020, Porto in H1 2022, London
Waterloo in H1 2022 and Prague in H2 2023, the Company continues to
pursue further growth through the execution of its Time Out Markets
strategy. However, there can be no certainty in relation to the
potential opening of these proposed new Time Out Markets.
Website traffic growth - During the lockdown period, Time Out
Media, temporarily rebranded as "Time In", has seen website traffic
grow approximately 10 per cent. year on year, with social media
post sharing up five times as compared to the level at the start of
this year. The division has posted significantly more content
across a broadening range of categories during the lockdown period,
with its post count up approximately 300 per cent. since January
2020. The Directors believe that the Group is well placed to
benefit from this increased digital traffic as marketing budgets
return.
Debt Restructuring
Incus Loan Restructuring
The Company has also successfully renegotiated the terms of the
Group's EUR22.6 million (approximately GBP20.2 million) outstanding
debt facilities from Incus, with all interest and principal
repayments delayed until November 2021 pursuant to the following
agreed amendments:
-- the repayment instalment due on 30 November 2020 shall be
restructured as a repayment of 75 per cent. of excess cashflow
(calculated on a last twelve months basis) on 30 November 2021;
-- all accrued interest due and payable in 2020 will (at the
option of Time Out Market Limited) be capitalised;
-- certain mandatory prepayment events will be disapplied for the period until November 2021;
-- all financial covenants will be switched off until November
2021 and amendments made to the required covenant levels
thereafter; and
-- certain carve-outs to events of default will apply during the
period up to 30 November 2021 to allow for actions to be taken to
mitigate the ongoing COVID-19 situation.
The Company estimates that the Incus Loan Restructuring will
deliver a cash saving of approximately GBP5.3 million to November
2021 (excluding the impact of the cash flow sweep in November 2021,
which is expected to be minimal).
The Incus Loan Restructuring is not conditional upon the passing
of the Resolutions, but is conditional upon Admission and it is
therefore anticipated that the Incus Amendment and Restatement
Agreement will only become effective if the Resolutions are passed
by Shareholders at the General Meeting. The Incus Loan
Restructuring is also conditional upon, inter alia, the Company
raising not less than GBP45 million of gross proceeds pursuant to
the Placing.
Cancellation of OCI Loan Notes
Subject to the completion of the Equity Fundraising:
-- the principal sum of GBP20 million outstanding under the
Series 1 Loan Notes will be redeemed in full out of the net
proceeds of the Equity Fundraising and, subject to gross proceeds
of GBP2.14 million or more being raised pursuant to the Open Offer,
all accrued and outstanding interest payable thereon under the Loan
Note Agreement at the time of redemption (expected to be
approximately GBP4.6 million) will also be redeemed in full;
-- the GBP2.5 million Series 2 Loan Notes of the Company will
also be redeemed in full together with any accrued and outstanding
interest and arrangement fees payable thereon at the time of
redemption (expected to be approximately GBP86,000); and
-- each of the OCI Loan Notes and any amounts available but
unissued in accordance with the terms of the Loan Note Agreement
will be cancelled upon such redemptions out of the net proceeds of
the Equity Fundraising.
In the event that the Company does not raise gross proceeds of
GBP2.14 million or more pursuant to the Open Offer, up to
approximately GBP2.0 million of accrued and outstanding interest
payable on the Series 1 Loan Notes will remain outstanding and will
continue to accrue interest of 12 per cent. in accordance with the
terms of the Loan Note Agreement until maturity of the Loan Note
Agreement on 31 October 2021, at which time all outstanding amounts
shall become redeemable in full.
Financial statements for the year ended 31 December 2019
In light of the impact of COVID-19 on the Group's business, the
Company has applied to each of AIM Regulation and Companies House
for, and has been granted, an extension of three months to the
usual requirement to file its audited accounts for the financial
year ended 31 December 2019 within six months of the financial year
end. The Company expects to publish its audited financial results
for the financial year ended 31 December 2019 as soon as
practicable prior to the revised deadline of 30 September 2020. As
part of the audit process, an assessment will be made in relation
to the Group's ability to continue trading as a going concern. In
light of the ongoing COVID-19 pandemic and notwithstanding the
successful completion of the proposed Equity Fundraising, the Incus
Loan Restructuring and the redemption and the cancellation of the
OCI Loan Notes, the Directors anticipate that the audit report for
the financial year ended 31 December 2019 will make reference to a
material uncertainty related to going concern.
Irrevocable undertakings and director participations
As noted above, completion of the Placing and Open Offer is
conditional upon, among other things, the approval by Shareholders
of the Resolutions to be proposed at the General Meeting expected
to be convened and held on 11 June 2020.
Shareholders representing approximately 60.36 per cent. of the
Company's existing issued ordinary share capital as at 21 May 2020
(being the latest practicable date prior to the publication of this
Announcement) have provided or agreed to provide irrevocable
undertakings to vote in favour of each of the Resolutions to be
proposed at the General Meeting.
OCPE, which holds approximately 30.55 per cent. of the existing
issued ordinary share capital of the Company as at 21 May 2020
(being the latest practicable date prior to the publication of this
Announcement), has given an irrevocable undertaking to vote or,
where applicable, to procure the casting of votes, in favour of
each of the Resolutions to be proposed at the General Meeting in
respect of its beneficial holding of Ordinary Shares totalling
45,361,015 Ordinary Shares.
OCI, which holds approximately 21.17 per cent. of the existing
issued ordinary share capital of the Company as at 21 May 2020
(being the latest practicable date prior to the publication of this
Announcement), has given an irrevocable undertaking to vote or,
where applicable, to procure the casting of votes, in favour of
each of the Resolutions to be proposed at the General Meeting in
respect of its beneficial holding of Ordinary Shares totalling
31,436,385 Ordinary Shares.
Mr. Richard Caring, who holds 9,790,829 Ordinary Shares as at 21
May 2020 (being the latest practicable date prior to the
publication of this Announcement), representing approximately 6.59
per cent. of the existing issued ordinary share capital of the
Company, has agreed to give an irrevocable undertaking to vote or,
where applicable, to procure the casting of votes, in favour of
each of the Resolutions to be proposed at the General Meeting in
respect of his beneficial holding of Ordinary Shares totalling
9,790,829 Ordinary Shares.
Peter Dubens, a Director who holds 2,650,302 Ordinary Shares as
at 21 May 2020 (being the latest practicable date prior to the
publication of this Announcement), representing approximately 1.78
per cent. of the existing issued ordinary share capital of the
Company, has agreed to give an irrevocable undertaking to vote or,
where applicable, to procure the casting of votes by his connected
persons (as defined in section 252 of the Companies Act 2006), in
favour of each of the Resolutions to be proposed at the General
Meeting in respect of his own (or, as applicable, his connected
persons') beneficial holding of Ordinary Shares. Peter Dubens has
also agreed to irrevocably undertake to take up his Open Offer
Entitlement in full (representing 424,048 New Ordinary Shares) and
to submit an application for up to a further 2,074,647 New Ordinary
Shares under the Excess Application Facility. By virtue of Peter
Dubens being a Director, he is considered to be a related party of
the Company for the purposes of the AIM Rules. Therefore, the
proposed participation of Peter Dubens in the Open Offer
(excluding, for these purposes, any allocation to Peter Dubens of
additional New Ordinary Shares pursuant to the Excess Application
Facility, which will be considered at the time any such allocation
is made and announced separately by the Company in accordance with
AIM Rule 13) is, for the purpose of AIM Rule 13, considered to be a
"Related Party Transaction". The Directors, excluding Peter Dubens
himself and Alexander Collins, Non-Executive Director of the
Company and Partner of OCPE, who is considered to be a related
party of Peter Dubens, consider that, having consulted with the
Company's nominated adviser, Liberum, the terms of Peter Dubens'
participation in the Open Offer are fair and reasonable insofar as
Shareholders are concerned.
In addition, Julio Bruno, a Director who holds 392,124 Ordinary
Shares as at 21 May 2020 (being the latest practicable date prior
to the publication of this Announcement), representing
approximately 0.26 per cent. of the existing issued ordinary share
capital of the Company, has agreed to give an irrevocable
undertaking to vote or, where applicable, to procure the casting of
votes by his connected persons (as defined in section 252 of the
Companies Act 2006), in favour of each of the Resolutions to be
proposed at the General Meeting in respect of his own (or, as
applicable, his connected persons') beneficial holding of Ordinary
Shares.
Takeover Code implications
The Company is a public limited company incorporated in England
and Wales whose Ordinary Shares are admitted to trading on AIM.
Accordingly, it is a company which is subject to the Takeover
Code.
At the time of the Company's IPO, a concert party was presumed
to exist between a pre-IPO shareholding group which included the
Oakley Shareholders, OCPE, Invesco, Woodford and two directors of
the Company associated with the Oakley Shareholders, Peter Dubens
and Alexander Collins (the "Concert Party Group").
Since the IPO, Woodford has disposed of its Ordinary Shares and
therefore no longer forms part of the Concert Party Group. In
addition, Invesco is no longer an "associate" of OCI by virtue of
having held an interest in shares carrying more than 20 per cent.
of voting rights in OCI (as it did at the time of the IPO in 2016),
and the Company has agreed with the Panel Executive that Invesco no
longer forms part of the Concert Party Group.
The Concert Party Group, which comprises (among others) the
Oakley Shareholders, OCPE (by virtue of it being the sole
shareholder of TO and TONY) and Peter Dubens, currently holds
approximately 53.50 per cent. of the Existing Ordinary Shares. Of
this percentage, OCPE (through TO and TONY) indirectly holds
approximately 30.55 per cent. of the Existing Ordinary Shares with
the remaining members of the Concert Party Group individually
holding Ordinary Shares which represent less than 30 per cent. of
the Existing Ordinary Shares.
Following Admission, the Concert Party Group, which comprises
(among others) the Oakley Shareholders, OCPE (by virtue of it being
the sole shareholder of TO and TONY) and Peter Dubens, is expected
to hold a minimum of approximately 52.32 per cent. of the Enlarged
Share Capital (assuming full take up of the Open Offer by
Qualifying Shareholders and that Peter Dubens takes up his Open
Offer Entitlement only and is not allocated any New Ordinary Shares
pursuant to the Excess Application Facility) and up to a maximum of
approximately 54.74 per cent. of the Enlarged Share Capital
(assuming no take up of the Open Offer by Qualifying Shareholders).
Following Admission, no member of the Concert Party Group is
expected individually to hold 30 per cent. or more of the Enlarged
Share Capital.
Qualifying Shareholders and Placees should therefore be aware
that, following completion of the Placing and Open Offer, the
members of the Concert Party Group are expected to continue to hold
more than 50 per cent. of the Company's voting share capital and
may accordingly be able to increase their aggregate shareholding
without incurring any obligation under Rule 9.1 of the Takeover
Code to make a general offer. Any such acquisition would also be
viewed in light of the requirements of Note 4 on Rule 9.1 of the
Takeover Code.
Under the terms of the Relationship Agreement, the Oakley
Shareholders, OCI, OCPE and Oakley Capital I Limited (formerly
known as Oakley Capital GP Limited) have agreed not to acquire any
further Ordinary Shares, subject to certain exceptions. The
restriction in the Relationship Agreement has been waived by the
Company to allow the Oakley Shareholders and OCI to acquire New
Ordinary Shares pursuant to the Placing and Open Offer.
Importance of Vote
The Resolutions to be proposed at the General Meeting in order
to grant the Directors authority to issue the New Ordinary Shares
to be issued pursuant to the Placing and Open Offer include the
passing of a special resolution which, to be passed, will require
the support of three-quarters of the total voting rights of
Shareholders who (being entitled to do so) vote on such resolution
at the General Meeting. The Placing and Open Offer is conditional
upon, inter alia, the passing of the Resolutions.
In the event that the Resolutions to be proposed at the General
Meeting are not passed, the Company will not be able to proceed
with the Placing and Open Offer, with the result that the
anticipated net proceeds of the Placing and Open Offer will not
become available to the Company. Shareholders should note that if
the Company is unable to proceed with the Placing and Open Offer,
the OCI Loan Notes will not be redeemed and cancelled and will (i)
continue to accrue interest at a coupon of 12 per cent. per annum,
and (ii) continue to have a maturity date of 31 October 2021 (in
the case of the Series 1 Loan Notes) and 13 May 2021 (in the case
of the Series 2 Loan Notes). In addition, in the event that the
Resolutions to be proposed at the General Meeting are not passed,
the Incus Loan Restructuring will not become effective, such that
Time Out Market Limited will be in immediate breach of the Incus
Facility Agreement.
Incus could, after a short period of negotiation, seek to demand
repayment of all borrowings under the Incus Facility Agreement,
which the Group is currently unable to pay. The Company will
therefore be dependent upon agreement being reached with Incus in
relation to certain breaches of covenants and the relaxation of
certain interest payments due to be paid by Time Out Market Limited
to Incus in 2020, which may or may not be forthcoming. In the event
that the Group was unable to negotiate successfully with Incus
and/or renegotiate or refinance the Incus borrowings, and a demand
for repayment was made, a working capital shortfall of the amounts
owed would arise (less any surplus working capital held immediately
before such demand for repayment). The Company may therefore be
unable to prepare its accounts for the financial year ended 31
December 2019 on a going concern basis without first securing
further external bank finance and/or other alternative sources of
finance, which may or may not be forthcoming. The security granted
in relation to the Incus Facility Agreement includes (amongst other
things) a pledge over 49 per cent. of the shares in Time Out Market
Limited and a pledge over the shares owned by Time Out Market
Limited in the holding company of the US Time Out Markets group.
The Company has also provided a guarantee in relation to the
obligations of Time Out Market Limited under the Incus Facility
Agreement.
The Directors consider that the scenarios described above would
not be in the best interests of the Company or its Shareholders as
a whole and that any alternative financing, if available, could be
on less favourable terms and could lead to more substantial
dilution for Shareholders than would be the case under the proposed
Placing and Open Offer. Accordingly, the Independent Directors
believe that the passing of each of the Resolutions to be proposed
at the General Meeting is in the best interests of Shareholders and
recommend that Shareholders vote in favour of the Resolutions at
the General Meeting.
The Directors confirm that Peter Dubens and Julio Bruno (who are
also Shareholders) have agreed to irrevocably undertake to vote or,
where applicable, to procure the casting of votes by their
respective connected persons (as defined in section 252 of the
Companies Act 2006), in favour of the Resolutions in respect of
their own (or, as applicable, their respective connected persons')
beneficial holdings amounting, in aggregate, to 3,042,426 Existing
Ordinary Shares, representing approximately 2.05 per cent. of the
Existing Ordinary Shares.
This Announcement should be read in its entirety. In particular,
you should read and understand the information provided in the
"Important Notices" section of this Announcement.
For further information, please contact:
Time Out Group plc Tel: +44 (0)207 813
3000
Julio Bruno, CEO
Adam Silver, CFO
Steven Tredget, Investor Relations Director
Liberum (Nominated Adviser and Broker) Tel: +44 (0)203 100
2222
Clayton Bush / Andrew Godber / Edward Thomas
FTI Consulting LLP Tel: +44 (0)203 727
1000
Edward Bridges / Stephanie Ellis
Important Notices
This Announcement is released by Time Out Group plc and contains
inside information for the purposes of Article 7 of the Market
Abuse Regulation (EU) 596/2014 ("MAR"), encompassing information
relating to the Equity Fundraising described above, and is
disclosed in accordance with the Company's obligations under
Article 17 of MAR.
For the purposes of MAR and Article 2 of Commission Implementing
Regulation (EU) 2016/1055, this announcement is being made on
behalf of the Company by Adam Silver, Chief Financial Officer.
This Announcement contains (or may contain) certain
forward-looking statements with respect to certain of the Company's
plans and its current goals and expectations relating to its future
financial condition and performance and which involve a number of
risks and uncertainties. The Company cautions readers that no
forward-looking statement is a guarantee of future performance and
that actual results could differ materially from those contained in
the forward-looking statements. These forward-looking statements
can be identified by the fact that they do not relate only to
historical or current facts. Forward-looking statements sometimes
use words such as "aim", "anticipate", "target", "expect",
"estimate", "intend", "plan", "goal", "believe", or other words of
similar meaning. By their nature, forward-looking statements
involve risk and uncertainty because they relate to future events
and circumstances, including, but not limited to, economic and
business conditions, the effects of continued volatility in credit
markets, market-related risks such as changes in the price of
commodities or changes in interest rates and foreign exchange
rates, the policies and actions of governmental and regulatory
authorities, changes in legislation, the further development of
standards and interpretations under International Financial
Reporting Standards ("IFRS") applicable to past, current and future
periods, evolving practices with regard to the interpretation and
application of standards under IFRS, the outcome of pending and
future litigation or regulatory investigations, the success of
future explorations, acquisitions and other strategic transactions
and the impact of competition. A number of these factors are beyond
the Company's control. As a result, the Company's actual future
results may differ materially from the plans, goals, and
expectations set forth in the Company's forward-looking statements.
You should not place undue reliance on forward-looking statements.
Any forward-looking statements made in this Announcement by or on
behalf of the Company speak only as of the date they are made.
Except as required by the FCA, the London Stock Exchange or
applicable law, the Company expressly disclaims any obligation or
undertaking to release publicly any updates or revisions to any
forward-looking statements contained in this Announcement to
reflect any changes in the Company's expectations with regard
thereto or any changes in events, conditions or circumstances on
which any such statement is based.
This Announcement is for information purposes only and shall not
constitute an offer to buy, sell, issue, or subscribe for, or the
solicitation of an offer to buy, sell, issue, or subscribe for any
securities, nor shall there be any offer, solicitation or sale of
securities in any jurisdiction in which such offer, solicitation or
sale would be unauthorised or unlawful prior to registration or
qualification under the securities laws of any such jurisdiction.
Any failure to comply with these restrictions may constitute a
violation of the securities law of any such jurisdiction.
This Announcement is not an offer of securities for sale in the
United States. The New Ordinary Shares have not been and will not
be registered under the US Securities Act 1933, as amended (the
"Securities Act") or with any securities regulatory authority of
any state or other jurisdiction of the United States and may not be
offered, sold, delivered or transferred, directly or indirectly, in
or into the United States except pursuant to an exemption from, or
in a transaction not subject to, the registration requirements of
the Securities Act and in compliance with any applicable securities
laws of any state or other jurisdiction of the United States. The
Company does not intend to register any portion of the Equity
Fundraising in the United States or to conduct a public offering of
securities in the United States.
This Announcement does not contain an offer or constitute any
part of an offer to the public within the meaning of Sections 85
and 102B of the FSMA or otherwise. This Announcement is not an
"approved prospectus" within the meaning of Section 85(7) of the
FSMA and a copy of it has not been, and will not be, delivered to
the FCA in accordance with the Prospectus Rules or delivered to any
other authority which could be a competent authority for the
purpose of the Prospectus Regulation (EU) 2017/1129 (the
"Prospectus Regulation"). Its contents have not been examined or
approved by the London Stock Exchange, nor has it been approved by
an "authorised person" for the purposes of Section 21 of the FSMA.
This Announcement is being distributed to persons in the United
Kingdom only in circumstances in which section 21(1) of the FSMA
does not apply.
This Announcement is directed only at: (a) persons in member
states of the European Economic Area who are qualified investors
within the meaning of article 2(e) of the Prospectus Regulation
("Qualified Investors") and (b) if in the United Kingdom, persons
who (i) have professional experience in matters relating to
investments who fall within the definition of "investment
professionals" in article 19(5) of the Financial Services and
Markets Act 2000 (Financial Promotion) Order 2005, as amended (the
"Order"), or are high net worth companies, unincorporated
associations or partnerships or trustees of high value trusts as
described in article 49(2) of the Order and (ii) are Qualified
Investors and (c) otherwise, to persons to whom it may otherwise be
lawful to communicate it (all such persons together being
referenced to as "Relevant Persons"). Any investment in connection
with the Placing will only be available to, and will only be
engaged with, Relevant Persons. Any person who is not a Relevant
Person should not act or rely on this Announcement or any of its
contents.
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
Liberum (apart from the responsibilities or liabilities that may be
imposed by the FSMA or other regulatory regime established
thereunder) or by any of its affiliates or agents as to, or in
relation to, the accuracy or completeness of this Announcement or
any other written or oral information made available to or publicly
available to any interested party or its advisers, and any
liability therefor is expressly disclaimed.
Liberum Capital Limited ("Liberum"), which is authorised and
regulated in the United Kingdom by the FCA, is acting as nominated
adviser and sole bookrunner for the Company and for no-one else in
connection with the Equity Fundraising, and Liberum will not be
responsible to anyone other than the Company for providing the
protections afforded to its customers or for providing advice to
any other person in relation to the Equity Fundraising or any other
matter referred to herein.
The distribution of this Announcement and the offering of the
New Ordinary Shares in certain jurisdictions may be restricted by
law. No action has been taken by the Company or Liberum 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. Persons into whose possession this
Announcement comes are required to inform themselves about, and to
observe, such restrictions.
The Announcement does not constitute a recommendation concerning
any investor's options with respect to the Equity Fundraising. The
New Ordinary Shares to which this Announcement relates may be
illiquid and / or subject to restrictions on their resale.
Prospective purchasers of the New Ordinary Shares should conduct
their own due diligence, analysis and evaluation of the business
and date described in this Announcement, including the New Ordinary
Shares. The pricing and value of securities can go down as well as
up. Past performance is not a guide to future performance. The
contents of this Announcement are not to be construed as financial,
legal, business or tax advice. If you do not understand the
contents of this Announcement you should consult an authorised
financial adviser, legal adviser, business adviser or tax adviser
for financial, legal, business or tax advice.
The information in this Announcement may not be forwarded or
distributed to any other person and may not be reproduced in any
manner whatsoever. Any forwarding, distribution, dissemination,
reproduction, or disclosure of this information in whole or in part
is unauthorised. Failure to comply with this directive may result
in a violation of the Securities Act or the applicable laws of
other jurisdictions.
Neither the content of the Company's website nor any website
accessible by hyperlinks on the Company's website is incorporated
in, or forms part of, this Announcement.
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 such 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 Equity Fundraising. Furthermore, it
is noted that, notwithstanding the Target Market Assessment,
Liberum 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.
Liberum may, in accordance with applicable laws and regulations,
engage in transactions in relation to the New Ordinary Shares
and/or related instruments for its own account and, except as
required by applicable laws or regulations, does not propose to
make any public disclosure in relation to such transactions.
EXPECTED TIMETABLE OF PRINCIPAL EVENTS
Open Offer Record Date 6.00 p.m. on 19
May 2020
Announcement of the Placing and Open Offer 22 May 2020
Date Existing Ordinary Shares marked 'ex-entitlement'
by the London Stock Exchange 22 May 2020
Publication and posting of the Circular, Forms
of Proxy and Application Forms 23 May 2020
Open Offer Entitlements and Excess Open Offer
Entitlements credited to CREST stock accounts
of Qualifying CREST Shareholders 26 May 2020
Recommended latest time and date for requesting
withdrawal of Open Offer Entitlements from 4.30 p.m. on 2 June
CREST 2020
Latest time and date for depositing Open Offer 3.00 p.m. on 3 June
Entitlements into CREST 2020
Latest time and date for splitting Application
Forms (to satisfy bona fide market claims in 3.00 p.m. on 4 June
relation to Open Offer Entitlements only) 2020
Latest time and date for receipt of completed
Application Forms and payment in full from
Qualifying Shareholders under the Open Offer
or settlement of the relevant CREST instructions 11.00 a.m. on 8
(as appropriate) June 2020
Latest time and date for receipt of completed
Forms of Proxy and receipt of electronic proxy 11.00 a.m. on 9
appointments via the CREST system June 2020
General Meeting 11.00 a.m. on 11
June 2020
Results of the General Meeting and the Placing
and Open Offer expected to be announced through
a Regulatory Information Service 11 June 2020
Admission and commencement of dealings in the 8.00 a.m. on 12
New Ordinary Shares on AIM expected to commence June 2020
Expected date for CREST accounts to be credited As soon as practicable
with New Ordinary Shares in uncertificated after 8.00 a.m.
form on 12 June 2020
Expected date for dispatch of definitive share
certificates in respect of New Ordinary Shares
to be issued in certificated form by 26 June 2020
Each of the times and dates in the table above is indicative
only and may be subject to change. If any of the details contained
in the timetable above should change, the revised times and dates
will be notified by means of an announcement through a Regulatory
Information Service. References to times are to London time unless
stated otherwise. The timetable above assumes that the Resolutions
are passed at the General Meeting without amendment.
FURTHER DETAILS OF THE PROPOSED PLACING AND OPEN OFFER
Current trading and prospects
The Company's results for the six months ended 30 June 2019 were
released on 26 September 2019. A copy of these results can be found
at www.timeout.com.
The Company issued the Trading Update on 23 March 2020. A copy
of the Trading Update can be found at www.timeout.com.
In light of the impact of COVID-19 on the Group's business, the
Company has applied to each of AIM Regulation and Companies House
for, and has been granted, an extension of three months to the
usual requirement to file its audited accounts for the financial
year ended 31 December 2019 within six months of the financial year
end. The Company expects to publish its audited financial results
for the financial year ended 31 December 2019 as soon as
practicable prior to the revised deadline of 30 September 2020. As
part of the audit process, an assessment will be made in relation
to the Group's ability to continue trading as a going concern. In
light of the ongoing COVID-19 pandemic and notwithstanding the
successful completion of the proposed Equity Fundraising, the Incus
Loan Restructuring and the redemption and the cancellation of the
OCI Loan Notes, the Directors anticipate that the audit report for
the financial year ended 31 December 2019 will make reference to a
material uncertainty related to going concern.
The Company made signi cant progress in 2019, with the opening
of five new Time Out Markets and the Group's global brand audience
increasing by 18 per cent. and the Directors remain con dent in the
Group's long-term prospects as a result. However, as noted above,
the COVID-19 outbreak has had a signi cant impact on trading with
the temporary closure of all six Time Out Markets and a reduction
in Time Out Media revenues.
Details of the Placing and Open Offer
The Company is proposing to raise, in aggregate, up to
approximately GBP49 million (before expenses) through the issue of
up to 140,042,949 New Ordinary Shares pursuant to the Placing and
Open Offer at the Issue Price. Under the Placing, up to 128,571,428
Placing Shares will be made available to Placees to raise gross
proceeds of approximately GBP45 million. Up to 11,471,521 New
Ordinary Shares are being offered to Qualifying Shareholders
pursuant to the Open Offer at the Issue Price to raise gross
proceeds of up to approximately GBP4 million (assuming full take up
under the Open Offer).
The aggregate number of New Ordinary Shares proposed to be
issued pursuant to the Placing and Open Offer (assuming full take
up under the Open Offer) will, on Admission, represent
approximately 48.54 per cent. of the Enlarged Share Capital.
The Placing and Open Offer will result in a proportionate
dilution of the holdings of existing Shareholders. On Admission,
Shareholders who do not participate in the Placing or the Open
Offer will experience an immediate dilution of approximately 48.54
per cent. (assuming the Open Offer is taken up in full) and
Shareholders who only participate in the Open Offer by taking up
their Open Offer Entitlement (and make no application pursuant to
the Excess Application Facility) will experience an immediate
dilution of approximately 40.30 per cent. (assuming the Open Offer
is taken up in full).
The Issue Price represents a discount of approximately 14.63 per
cent. to the Closing Price of 41 pence per Ordinary Share on 21 May
2020 (being the latest practicable date prior to the public
announcement of the Placing and Open Offer).
The New Ordinary Shares will be issued credited as fully paid
and will rank in full for all dividends and other distributions
declared, made or paid after Admission in respect of Ordinary
Shares and will otherwise rank on Admission pari passu in all
respects with the Existing Ordinary Shares. The New Ordinary Shares
are not being made available to the public and are not being
offered or sold in any jurisdiction where it would be unlawful to
do so.
The Open Offer
The Company considers it important that Shareholders who are not
able to take part in the Placing have an opportunity to participate
in the proposed Equity Fundraising. The Company is therefore
providing all Qualifying Shareholders with the opportunity to
subscribe for up to 11,471,521 Open Offer Shares at the Issue Price
pursuant to an Open Offer to raise, in aggregate, up to
approximately GBP4 million (before expenses). This will allow
Qualifying Shareholders to participate on a proportional basis. The
Company's two largest Shareholders, OCI and OCPE, are not
Qualifying Shareholders and, accordingly, will not participate in
the Open Offer.
Subject to fulfilment of certain conditions, the Open Offer
provides Qualifying Shareholders with the opportunity to apply to
acquire Open Offer Shares at the Issue Price pro rata to their
holdings of Existing Ordinary Shares against all Existing Ordinary
Shares held by Qualifying Shareholders as at the Open Offer Record
Date on the following basis:
4 Open Offer Shares for every 25 Existing Ordinary Shares held
by Qualifying Shareholders
Entitlements to apply to acquire Open Offer Shares will be
rounded down to the nearest whole number and any fractional
entitlements to Open Offer Shares will be disregarded in
calculating an Open Offer Entitlement and will be aggregated and
made available to Qualifying Shareholders pursuant to the Excess
Application Facility.
The proceeds of the Open Offer are anticipated to amount to up
to approximately GBP4 million, before expenses. If the conditions
of the Open Offer are not satisfied, the Open Offer will not be
implemented and any Open Offer Entitlements admitted to CREST will
thereafter be disabled and application monies under the Open Offer
will be refunded to the applicants at their own risk, by cheque in
the case of Qualifying Non-CREST Shareholders and by way of a CREST
payment in the case of Qualifying CREST Shareholders, without
interest, as soon as practicable, but within 14 days,
thereafter.
Excess Applications
The Open Offer is structured to allow Qualifying Shareholders to
subscribe for Open Offer Shares at the Issue Price pro rata to
their holdings of Existing Ordinary Shares against all Existing
Ordinary Shares held by Qualifying Shareholders. Qualifying
Shareholders may also make applications in excess of their pro rata
initial entitlement up to an amount equal to the total number of
Open Offer Shares available under the Open Offer less an amount
equal to such Qualifying Shareholder's Open Offer Entitlement. To
the extent that pro rata entitlements to Open Offer Shares are not
subscribed for by Qualifying Shareholders, such Open Offer Shares
will be available to satisfy such excess applications. Applications
under the Excess Application Facility may be allocated in such
manner as the Independent Directors may determine, in their
absolute discretion, and no assurance can be given that any
applications under the Excess Application Facility by Qualifying
Shareholders will be met in full or in part or at all. Applications
made under the Excess Application Facility will be scaled back at
the Independent Directors' discretion if applications are received
from Qualifying Shareholders for more than the number of Open Offer
Shares available under the Excess Application Facility.
Qualifying Shareholders should note that the Open Offer is not a
rights issue. Qualifying Non-CREST Shareholders should be aware
that the Application Form is not a negotiable document and cannot
be traded. Qualifying Shareholders should also be aware that in the
Open Offer, unlike in a rights issue, any Open Offer Shares not
applied for will not be sold in the market nor will they be placed
for the benefit of Qualifying Shareholders who do not apply under
the Open Offer.
Overseas Shareholders
Certain Overseas Shareholders may not be permitted to subscribe
for Open Offer Shares pursuant to the Open Offer.
Dividends
The Company does not currently anticipate paying any dividends
to Shareholders in the short to medium term. Any future dividends
will be dependent upon the Company's results, financial position,
cash requirements, future prospects, profits available for
distribution and other factors regarded by the Company as relevant
at the relevant time.
DEFINITIONS
"Admission" the admission of the New Ordinary
Shares to trading on AIM becoming
effective in accordance with the AIM
Rules
"AIM" AIM, a market operated by the London
Stock Exchange
"AIM Rules" the AIM Rules for Companies published
by the London Stock Exchange from
time to time
"Announcement" this announcement and its appendices
"Application Form" the personalised application form
accompanying this Circular (where
appropriate) pursuant to which Qualifying
Non-CREST Shareholders (other than
certain Overseas Shareholders) may
apply to subscribe for Open Offer
Shares under the Open Offer
"Board" or "Directors" the directors of the Company
"Bookbuild" the accelerated bookbuild process
through which the Placing is being
conducted
"certificated" or a share or other security not held
"in certificated form" in uncertificated form (i.e. not in
CREST)
"Circular" the circular to be published by the
Company on or around 23 May 2020 in
connection with the Equity Fundraising
"Closing Price" the closing middle market quotation
of the Existing Ordinary Shares, as
derived from the AIM Appendix to the
Daily Official List of the London
Stock Exchange
"Concert Party Group" the concert party presumed to exist
between a shareholding group which
includes, inter alia, the Oakley Shareholders,
OCPE, and two directors of the Company
associated with the Oakley Shareholders,
Peter Dubens and Alexander Collins
"CREST" a relevant system (as defined in the
CREST Regulations) in respect of which
Euroclear is the Operator (as defined
in the CREST Regulations)
"CREST Regulations" the Uncertificated Securities Regulations
2001 (SI 2001/3755), including any
enactment or subordinate legislation
which amends or supersedes those regulations
and any applicable rules made under
those regulations or any such enactment
or subordinate legislation for the
time being in force
"Daily Official List" the daily publication of official
quotations for all securities traded
on the London Stock Exchange
"Enlarged Share Capital" the issued ordinary share capital
of the Company as enlarged by the
issue of the New Ordinary Shares
"Equity Fundraising" the Placing and Open Offer
"EU" European Union
"EUR" or "Euros" the single European currency unit
"Excess Application the arrangement pursuant to which
Facility" Qualifying Shareholders may apply
for any number of Open Offer Shares
in excess of their Open Offer Entitlement
provided that they have agreed to
take up their Open Offer Entitlement
in full
"Excess Open Offer in respect of each Qualifying Shareholder,
Entitlement" the entitlement (in addition to his/her
Open Offer Entitlement) to apply for
Open Offer Shares pursuant to the
Excess Application Facility, which
is conditional on him/her taking up
his/her Open Offer Entitlements in
full
"Existing Ordinary the 148,494,409 existing Ordinary
Shares" Shares in issue as at 21 May 2020
(being the latest practicable date
prior to publication of this Announcement)
"FCA" the Financial Conduct Authority when
exercising functions under Part VI
of FSMA
"FSMA" the Financial Services and Markets
Act 2000 (as amended)
"General Meeting" the general meeting of the Company
to be held at 77 Wicklow Street, London,
England, WC1X 9JY at 11.00 a.m. on
11 June 2020, or any adjournment thereof
"Group" the Company and its subsidiary undertakings
"Incus" Incus Capital Advisors, S.A.
"Incus Loan Restructuring" the amendment and restatement of the
Incus Facility Agreement pursuant
to the Incus Amendment and Restatement
Agreement
"Incus Amendment and the agreement dated 22 May 2020 between
Restatement Agreement" Time Out Market Limited and Incus,
relating to the amendment and restatement
of the Incus Facility Agreement
"Incus Facility Agreement" the facility agreement dated 28 November
2017 (as amended and restated from
time to time) between (amongst others)
Time Out Market Limited and Incus
"Independent Directors" the Directors other than Peter Dubens
and Alexander Collins
"IPO" initial public offering
"Irrevocable Undertakings" the irrevocable undertakings provided
or agreed to be provided by various
Shareholders as further described
in the Announcement
"Issue Price" the price at which the New Ordinary
Shares are to be issued and allotted
pursuant to the Placing and Open Offer,
being 35 pence per New Ordinary Share
"London Stock Exchange" London Stock Exchange plc
"Liberum" Liberum Capital Limited, the Company's
nominated adviser and broker in connection
with the Placing and Open Offer
"Loan Note Agreement" the Loan Note Agreement dated 27 March
2018 between the Company and OCI,
as amended and restated on 24 September
2018, 25 September 2019, 14 May 2020
and 14 May 2020
"MiFID II" EU Directive 2014/65/EU on markets
in financial instruments, as amended
"MiFID Product Guidance product governance requirements contained
Requirements" within: (a) MiFID II; (b) Articles
9 and 10 of Commission Delegated Directive
(EU) 2017/593 supplementing MiFID
II; and (c) local implementing measures
"New Ordinary Shares" up to 140,042,949 new Ordinary Shares
to be issued pursuant to the Placing
and Open Offer
"Non-Executive Director" the directors of the Company who do
not exercise an executive role
"Oakley Shareholders" TO, TONY and OCI
"OCI" Oakley Capital Investments Limited
"OCI Loan Notes" the Series 1 Loan Notes and Series
2 Loan Notes
"OCPE" Oakley Capital Private Equity L.P.
"Open Offer" the conditional invitation made by
the Company to Qualifying Shareholders
to subscribe for the Open Offer Shares
at the Issue Price on the terms and
subject to the conditions set out
in the Circular and, in the case of
Qualifying Non-CREST Shareholders,
in the Application Form
"Open Offer Entitlement" the basic entitlement of a Qualifying
Shareholder, pursuant to the Open
Offer, to apply to subscribe for 4
Open Offer Shares for every 25 Existing
Ordinary Shares registered in its
name as at the Open Offer Record Date
"Open Offer Record the record date in relation to the
Date" Open Offer, being 6.00 p.m. on 19
May 2020
"Open Offer Shares" up to 11,471,521 New Ordinary Shares
to be issued by the Company to Qualifying
Shareholders in connection with the
Open Offer
"Order" the Financial Services and Markets
Act 2000 (Financial Promotion) Order
2005
"Ordinary Shares" the ordinary shares of GBP0.001 each
in the share capital of the Company
"Overseas Shareholders" Shareholders with registered addresses
in, or who are citizens, residents
or nationals of, jurisdictions outside
of the UK
"Panel Executive" the Executive of the Panel on Takeovers
and Mergers
"Placees" those placees whose Placing Shares
have been placed firm with them pursuant
to the Placing
"Placing" the conditional placing by Liberum
on behalf of the Company of the Placing
Shares pursuant to the Placing and
Open Offer Agreement
"Placing and Open the conditional agreement dated 22
Offer Agreement" May 2020 entered into between the
Company and Liberum in respect of
the Placing and Open Offer
"Placing Shares" 128,571,428 New Ordinary Shares to
be issued to Placees at the Issue
Price pursuant to the Placing
"Prospectus Regulation" EU Prospectus Regulation 2017/1129
"Qualified Investors" persons in member states of the European
Economic Area who are qualified investors
within the meaning of article 2(e)
of the Prospectus Regulation
"Qualifying CREST Qualifying Shareholders whose Existing
Shareholders" Ordinary Shares on the register of
members of the Company on the Open
Offer Record Date are held in uncertificated
form
"Qualifying Non-CREST Qualifying Shareholders whose Existing
Shareholders" Ordinary Shares on the register of
members of the Company on the Open
Offer Record Date are held in certificated
form
"Qualifying Shareholders" holders of Existing Ordinary Shares
on the register of members of the
Company on the Open Offer Record Date
with the exclusion (subject to exemptions)
of (a) persons with a registered address
or located or resident in a Restricted
Jurisdiction, and (b) OCI and OCPE,
and "Qualifying Shareholder" shall
mean any one of them
"Regulatory Information has the meaning given in the AIM Rules
Service"
"Relationship Agreement" the relationship deed dated 9 June
2016 between the Company, the Oakley
Shareholders, OCI and Oakley Capital
GP Limited
"Relevant Persons" persons to whom this Announcement
is directed and as further defined
in the section of this Announcement
titled 'Important Notices'
"Resolutions" the resolutions to be proposed at
the General Meeting, as set out in
the Notice of General Meeting and
"Resolution" shall be a reference
to any one of them
"Series 1 Loan Notes" the GBP20 million secured fixed rate
loan notes 2021 of the Company constituted
by the Loan Note Agreement
"Series 2 Loan Notes" the GBP2.5 million secured fixed rate
loan notes 2021 of the Company constituted
by the Loan Note Agreement
"Shareholders" the holders of Existing Ordinary Shares
and "Shareholder" shall mean any one
of them
"Takeover Code" the City Code on Takeovers and Mergers
"TO" TO (Bermuda) Limited (No. 44754)
"TONY" TONY (Bermuda) Limited (No. 45136)
"Time Out Markets" the markets division of the Group
"Time Out Media" the media division of the Group
"Trading Update" the Company's trading update announcement
of 23 March 2020
"uncertificated" or recorded on the register of members
"in uncertificated of the Company as being held in uncertificated
form" form in CREST and title to which,
by virtue of the CREST Regulations,
may be transferred by means of CREST
"United Kingdom" or the United Kingdom of Great Britain
"UK" and Northern Ireland
"United States" or the United States of America, its
"US" territories and possessions, any state
of the United States and the District
of Columbia
"US$" or "US Dollars" US dollars, being the lawful currency
of the United States
"US Securities Act" the US Securities Act of 1933, as
amended
"US Paycheck Protection A loan program which originated from
Program" the Coronavirus Aid, Relief, and Economic
Security Act, intended to provide
American small businesses with eight
weeks of cash-flow assistance through
100 percent federally guaranteed loans
"Woodford" Woodford Investment Management LLP
"GBP" or "Pounds" UK pounds sterling, being the lawful
currency of the United Kingdom
Appendix I
Terms and Conditions of the Placing
IMPORTANT INFORMATION FOR INVITED PLACEES ONLY REGARDING THE
PLACING.
THIS ANNOUNCEMENT, INCLUDING THE APPICES (TOGETHER, THE
"ANNOUNCEMENT") AND THE INFORMATION CONTAINED HEREIN IS RESTRICTED
AND IS NOT FOR PUBLICATION, PUBLIC RELEASE OR DISTRIBUTION,
DIRECTLY OR INDIRECTLY, IN OR INTO OR FROM THE UNITED STATES,
AUSTRALIA, CANADA, JAPAN, NEW ZEALAND, THE REPUBLIC OF SOUTH AFRICA
OR ANY JURISDICTION IN WHICH THE SAME WOULD BE UNLAWFUL. PERSONS
INTO WHOSE POSSESSION THIS ANNOUNCEMENT (INCLUDING THE APPICES)
COMES ARE REQUIRED BY THE COMPANY AND LIBERUM TO INFORM THEMSELVES
ABOUT AND TO OBSERVE ANY SUCH RESTRICTIONS.
THIS ANNOUNCEMENT DOES NOT ITSELF CONSTITUTE AN OFFER OR
INVITATION TO UNDERWRITE AN OFFER FOR SALE OR SUBSCRIPTION OF ANY
SECURITIES IN THE COMPANY.
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE
PLACING. THIS ANNOUNCEMENT AND THE TERMS AND CONDITIONS SET OUT IN
THIS APPIX ARE FOR INFORMATION PURPOSES ONLY AND ARE DIRECTED ONLY
AT PERSONS WHO ARE: (A) PERSONS IN MEMBER STATES OF THE EUROPEAN
ECONOMIC AREA ("EEA") WHO ARE QUALIFIED INVESTORS WITHIN THE
MEANING OF ARTICLE 2(E) OF REGULATION (EU) 2017/1129 (TOGETHER WITH
ITS DELEGATED AND IMPLEMENTING REGULATIONS) (THE "PROSPECTUS
REGULATION") ("QUALIFIED INVESTORS"), (B) IF IN THE UNITED KINGDOM,
PERSONS WHO (I) HAVE PROFESSIONAL EXPERIENCE IN MATTERS RELATING TO
INVESTMENTS WHO FALL WITHIN THE DEFINITION OF "INVESTMENT
PROFESSIONALS" IN ARTICLE 19(5) OF THE FINANCIAL SERVICES AND
MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER 2005, AS AMED (THE
"ORDER"), OR ARE HIGH NET WORTH COMPANIES, UNINCORPORATED
ASSOCIATIONS OR PARTNERSHIPS OR TRUSTEES OF HIGH VALUE TRUSTS AS
DESCRIBED IN ARTICLE 49(2) OF THE ORDER AND (II) ARE QUALIFIED
INVESTORS, AND (C) TO PERSONS TO WHOM IT MAY OTHERWISE BE LAWFUL TO
COMMUNICATE (EACH A "RELEVANT PERSON"). NO OTHER PERSON SHOULD ACT
OR RELY ON THIS ANNOUNCEMENT AND PERSONS DISTRIBUTING THIS
ANNOUNCEMENT MUST SATISFY THEMSELVES THAT IT IS LAWFUL TO DO SO. BY
ACCEPTING THE TERMS OF THIS ANNOUNCEMENT YOU REPRESENT AND AGREE
THAT YOU ARE A RELEVANT PERSON. THIS APPIX AND THE TERMS AND
CONDITIONS SET OUT HEREIN MUST NOT BE ACTED ON OR RELIED ON BY
PERSONS WHO ARE NOT RELEVANT PERSONS. ANY INVESTMENT OR INVESTMENT
ACTIVITY TO WHICH THIS ANNOUNCEMENT (INCLUDING THIS APPIX) AND THE
TERMS AND CONDITIONS SET OUT HEREIN RELATE IS AVAILABLE ONLY TO
RELEVANT PERSONS AND WILL BE ENGAGED IN ONLY WITH RELEVANT PERSONS.
THIS ANNOUNCEMENT (INCLUDING THIS APPIX) DOES NOT ITSELF CONSTITUTE
AN OFFER TO SELL OR ISSUE OR THE SOLICITATION OF AN OFFER TO BUY OR
ACQUIRE ANY SECURITIES IN THE COMPANY.
THIS ANNOUNCEMENT (AND THE INFORMATION CONTAINED HEREIN) DOES
NOT CONSTITUTE AND MAY NOT BE CONSTRUED AS AN OFFER OF SECURITIES
FOR SALE IN THE UNITED STATES, AUSTRALIA, CANADA, JAPAN, THE
REPUBLIC OF SOUTH AFRICA OR IN ANY OTHER JURISDICTION IN WHICH THE
SAME WOULD BE UNLAWFUL.
THE PLACING SHARES HAVE NOT BEEN AND WILL NOT BE REGISTERED
UNDER THE US SECURITIES ACT OF 1933, AS AMED (THE "SECURITIES
ACT"), OR UNDER THE APPLICABLE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION OF THE UNITED STATES, AND MAY NOT BE OFFERED,
SOLD, ACQUIRED, RESOLD, TRANSFERRED OR DELIVERED, DIRECTLY OR
INDIRECTLY WITHIN, INTO OR IN THE UNITED STATES, EXCEPT PURSUANT TO
AN APPLICABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN
COMPLIANCE WITH THE SECURITIES LAWS OF ANY RELEVANT STATE OR OTHER
JURISDICTION OF THE UNITED STATES. THERE WILL BE NO PUBLIC OFFER OF
THE PLACING SHARES IN THE UNITED STATES, THE UNITED KINGDOM OR
ELSEWHERE.
EACH PLACEE SHOULD CONSULT WITH ITS OWN ADVISERS AS TO LEGAL,
TAX, BUSINESS AND RELATED ASPECTS OF A SUBSCRIPTION FOR THE PLACING
SHARES.
Persons (including individuals, funds or otherwise) who are
invited to and who have chosen to participate in the Placing (and
any person acting on such person's behalf), by making an oral or
written offer to subscribe for Placing Shares will be deemed to
have read and understood this Announcement, including this
Appendix, in its entirety and to be making such offer on the terms
and conditions, and to be providing the representations,
warranties, acknowledgements, and undertakings contained in this
Appendix.
In this Appendix, unless the context otherwise requires,
"Placee" means a Relevant Person (including individuals, funds or
others) by whom or on whose behalf a commitment to subscribe for
Placing Shares has been given. In particular, each such Placee
represents, warrants and acknowledges that:
1. it is a Relevant Person (as defined above) and undertakes
that it will acquire, hold, manage or dispose of any Placing Shares
that are allocated to it for the purposes of its business;
2. in the case of any Placing Shares acquired by it as a
financial intermediary, as that term is used in Article 5(1) of the
Prospectus Regulation, (i) the Placing Shares acquired by it in the
Placing have not been acquired on behalf of, nor have they been
acquired with a view to their offer or resale to, persons in any
member state of the European Economic Area or to which the
Prospectus Regulation otherwise applies other than Qualified
Investors or in circumstances in which the prior consent of Liberum
has been given to the offer or resale; or (ii) where Placing Shares
have been acquired by it on behalf of persons in any member state
of the EEA other than Qualified Investors, the offer of those
Placing Shares to it is not treated under the Prospectus Regulation
as having been made to such persons;
3. except as otherwise permitted by Liberum, (i) it and the
person(s), if any, for whose account or benefit it is acquiring the
Placing Shares are purchasing the Placing Shares in an "offshore
transaction" as defined in Regulation S under the Securities Act;
(ii) it 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;
4. 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,
acknowledgements and agreements contained in this Announcement;
5. it understands (or, if acting for the account of another
person, such person understands) the resale and transfer
restrictions set out in this Appendix;
6. it acknowledges that the Placing Shares have not been and
will not be registered under the S ecurities Act or with any
securities regulatory authority of any state or other jurisdiction
of the United States and may not be offered, sold or transferred,
directly or indirectly, within the United States except pursuant to
an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act and in compliance
with any applicable securities laws of any state or other
jurisdiction of the United States; and
7. the Company and Liberum will rely upon the truth and accuracy
of the foregoing representations, acknowledgements and
agreements.
The Placing Shares have not been approved or disapproved by the
US Securities and Exchange Commission, any state securities
commission or other regulatory authority in the United States, nor
have any of the foregoing authorities passed upon or endorsed the
merits of the Placing or the accuracy or adequacy of this
Announcement. Any representation to the contrary is a criminal
offence in the United States.
Persons (including, without limitation, nominees and trustees)
who have a contractual or other legal obligation to forward a copy
of this Appendix (or the Announcement of which it forms part)
should seek appropriate advice before taking any action.
Details of the Placing
Liberum, acting as Placing Agent, has entered into a placing and
open offer agreement with the Company (the "Placing Agreement")
under which, subject to the conditions set out therein, Liberum has
agreed to use its reasonable endeavours to procure subscribers for
the Placing Shares at the Placing Price.
The Placing is conditional upon the Placing Agreement becoming
unconditional in all respects.
The Placing Shares will, when issued, rank pari passu in all
respects with the existing issued Ordinary Shares, including the
right to receive dividends and other distributions declared, made
or paid following Admission.
Application for admission to trading
Application will be made to the London Stock Exchange plc
("LSE") for admission of the New Ordinary Shares ("Admission") to
trading on AIM, a market of that name operated by LSE ("AIM") in
accordance with the AIM Rules for Companies. It is expected that
Admission will become effective and that dealings in the New
Ordinary Shares will commence on AIM at 8.00 a.m. on 12 June 2020,
and in any event no later than 26 June 2020.
Bookbuild
Liberum will today commence the bookbuilding process in respect
of the Placing (the "Bookbuild") to determine demand for
participation in the Placing by Placees. This Appendix gives
details of the terms and conditions of, and the mechanics of
participation in, the Placing. No commissions will be paid to
Placees or by Placees in respect of any Placing Shares.
Liberum and the Company shall be entitled to effect the Placing
by such alternative method to the Bookbuild as they may, in their
sole discretion, determine.
Participation in, and principal terms of, the Placing
Liberum is arranging the Placing as agent for and on behalf of
the Company. Participation in the Placing will only be available to
Placees who may lawfully be, and are, invited to participate by
Liberum. Liberum's agents and their respective affiliates are each
entitled to enter bids in the Bookbuild as principal.
The number of Placing Shares to be issued will be agreed between
Liberum and the Company following completion of the Bookbuild. The
number of Placing Shares will be announced on a Regulatory
Information Service following the completion of the Bookbuild.
To bid in the Bookbuild, Placees should communicate their bid by
telephone or in writing to their usual sales contact at Liberum.
Each bid should state the number of Placing Shares which the
prospective Placee wishes to acquire at the Placing Price
established by the Company and Liberum. Bids may be scaled down by
Liberum on the basis referred to below.
The Bookbuild is expected to close no later than 4.00 p.m. on 22
May 2020, but may be closed earlier or later at the absolute
discretion of Liberum. Liberum may, in agreement with the Company,
accept bids that are received after the Bookbuild has closed. The
Company reserves the right (upon the agreement of Liberum) to
reduce or seek to increase (subject to the maximum size referred to
in the Announcement) the amount to be raised pursuant to the
Placing.
Liberum will determine in its absolute discretion (in
consultation with the Company) the extent of each Placee's
participation in the Placing, which will not necessarily be the
same for each Placee and this will be confirmed orally or in
writing by Liberum as agent of the Company ("Confirmation"). No
element of the Placing will be underwritten. The Confirmation will
constitute an irrevocable legally binding commitment upon that
person (who will at that point become a Placee) to subscribe for
the number of Placing Shares allocated to it at the Placing Price
on the terms and conditions set out in this Appendix (a copy of the
terms and conditions having been provided to the Placee prior to or
at the same time as such oral or written confirmation) and in
accordance with the Company's articles of association. Each
prospective Placee's allocation and commitment will be evidenced by
a contract note or an electronic trade confirmation issued to such
Placee by Liberum. The terms of this Appendix will be deemed
incorporated by reference therein. For the avoidance of doubt, the
Confirmation constitutes each Placee's irrevocable legally binding
agreement, subject to the Placing Agreement not having been
terminated, to pay the aggregate settlement amount for the Placing
Shares to be subscribed for by that Placee regardless of the total
number of Placing Shares (if any) subscribed for by any other
investor(s) and, except with the consent of Liberum, the
Confirmation will not be capable of variation or revocation after
the time at which it is submitted.
Liberum reserves the right to scale back the number of Placing
Shares to be subscribed by any Placee in the event of an
oversubscription under the Placing. Liberum also reserves the right
not to accept offers for Placing Shares or to accept such offers in
part rather than in whole.
Each Placee will be required to pay to Liberum, on the Company's
behalf, the Placing Price for each Placing Share agreed to be
acquired by it under the Placing in accordance with the terms set
out herein. Each Placee's obligation to acquire and pay for Placing
Shares under the Placing will be owed to Liberum and the Company.
Each Placee has an immediate, separate, irrevocable and binding
obligation, owed to Liberum, to pay to it (or as it may direct) in
cleared funds an amount equal to the product of the Placing Price
and the number of Placing Shares such Placee has agreed to
subscribe for. Each Placee will be deemed to have read and
understood this Appendix in its entirety, to be participating in
the Placing upon the terms and conditions contained in this
Appendix, and to be providing the representations, warranties,
agreements, acknowledgements and undertakings, in each case as
contained in this Appendix. To the fullest extent permitted by law
and applicable FCA rules (the "FCA Rules"), neither (i) Liberum,
(ii) any of its respective directors, officers, employees or
consultants, or (iii) to the extent not contained within (i) or
(ii), any person connected with Liberum as defined in the FCA Rules
((i), (ii) and (iii) being together "affiliates" and individually
an "affiliate"), shall have any liability to Placees or to any
person other than the Company in respect of the Placing.
Irrespective of the time at which a Placee's participation in
the Placing is confirmed, settlement for all Placing Shares to be
acquired pursuant to the Placing will be required to be made at the
same time, on the basis explained below under 'Registration and
settlement'.
Completion of the Placing will be subject to the fulfilment 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'. In the event
that the Placing Agreement is not entered into or does not
otherwise become unconditional in any respect or, after having been
entered into, is terminated prior to Admission, the Placing will
not proceed and all funds delivered by the Placee to Liberum in
respect of the Placee's participation will be returned to the
Placee at the Placee's risk without interest.
By participating in the Placing, each Placee agrees that its
rights and obligations in respect of the Placing will terminate
only in the circumstances described below and will not otherwise be
capable of rescission or termination by the Placee.
By participating in the Placing, each Placee is deemed to have
read and understood this Announcement, including the Appendices, in
its entirety and to be making such offer on the terms and
conditions, and to be providing the representations, warranties,
acknowledgements, and undertakings contained in the Appendices.
To the fullest extent permissible by law, neither the Company,
nor Liberum nor any of their affiliates shall have any liability to
Placees (or to any other person whether acting on behalf of a
Placee or otherwise). In particular, neither Liberum nor any of its
affiliates shall have any liability (including, to the extent
permissible by law, any fiduciary duties) in respect of Liberum's
conduct of the Bookbuild or of such alternative method of effecting
the Placing as Liberum and the Company may agree.
Conditions of the Placing
The obligations of Liberum under the Placing Agreement in
respect of the Placing Shares are conditional on, amongst other
things:
(a) the Company having complied with all of its material
obligations under the Placing Agreement (to the extent that such
obligations fall to be performed prior to Admission);
(b) the Resolutions to be proposed at the General Meeting having
been passed without amendment by the required majorities at the
General Meeting to be held at 77 Wicklow Street, London, England,
WC1X 9JY at 11.00 a.m. on 11 June 2020 (or any adjournment
thereof); and
(c) Admission having occurred not later than 8.00 a.m. on 12
June 2020 or such later date as the Company and Liberum may agree,
but in any event not later than 8.00 a.m. on 26 June 2020.
If (i) any of the conditions contained in the Placing Agreement
in relation to the Placing Shares are not fulfilled or waived by
Liberum by the respective time or date where specified, (ii) any of
such conditions becomes incapable of being fulfilled or (iii) the
Placing Agreement is terminated in the circumstances specified
below, the Placing will not proceed and the Placee's rights and
obligations hereunder in relation to the Placing Shares shall cease
and terminate at such time and each Placee agrees that no claim can
be made by the Placee in respect thereof.
Liberum, at its discretion and upon such terms as it thinks fit,
may waive (where capable of waiver) compliance by the Company with
the whole or any part of any of the Company's obligations in
relation to the conditions in the Placing Agreement. Any such
extension or waiver will not affect Placees' commitments as set out
in this Announcement (including this Appendix).
None of Liberum, the Company or any other person shall have any
liability to any Placee (or to any other person whether acting on
behalf of a Placee or otherwise) in respect of any decision they
may make as to whether or not to waive or to extend the time and/or
the date for the satisfaction of any condition to the Placing nor
for any decision they may make as to the satisfaction of any
condition or in respect of the Placing generally, and by
participating in the Placing each Placee agrees that any such
decision is within the absolute discretion of Liberum.
Termination of the Placing Agreement
Liberum is entitled at any time before Admission, to terminate
the Placing Agreement in relation to its obligations in respect of
the Placing Shares by giving notice to the Company if, amongst
other things:
(a) the Company is in material breach of any of its obligations
under the Placing Agreement; or
(b) any statement in this Announcement or any other document or
announcement issued or published by or on behalf of the Company in
connection with the Equity Fundraising has become or been
discovered to be untrue or inaccurate in any material respect or
misleading; or
(c) any warranty given by the Company in the Placing Agreement
is, or would be if repeated at any time up to Admission (by
reference to the facts and circumstances then existing), untrue or
inaccurate in any material respect or misleading; or
(d) matters have arisen or have been discovered which would, if
this Announcement, or any other document or announcement issued or
published by or on behalf of the Company in connection with the
Equity Fundraising, were to be issued at that time, constitute a
material inaccuracy or omission therefrom; or
(e) there shall have occurred, happened or come into effect (i)
any outbreak or escalation of hostilities, any attack or act of
terrorism, any declaration of a national emergency or war and any
other calamity or crisis of national or international effect; or
(ii) any suspension or limitation of trading generally on the New
York Stock Exchange, the NASDAQ National Market or the LSE, or
minimum or maximum prices for trading have been fixed, or maximum
ranges for prices of securities have been required, by any of said
exchanges or by such system or by order of any governmental
authority, or a material disruption has occurred in commercial
banking or securities settlement or clearance services in the
United States or in Europe (including the United Kingdom); or (iii)
any material adverse change in national or international financial,
monetary, economic, political or market conditions, which, in each
case, in the opinion of Liberum acting in good faith makes it
impractical or inadvisable to proceed with the Equity
Fundraising.
Upon such termination, the parties to the Placing Agreement
shall be released and discharged (except for any liability arising
before or in relation to such termination) from their respective
obligations under or pursuant to the Placing Agreement, subject to
certain exceptions.
By participating in the Placing, Placees agree that the exercise
by Liberum of any right of termination or other discretion under
the Placing Agreement shall be within the absolute discretion of
Liberum and that they need not make any reference to Placees and
that they shall have no liability to Placees whatsoever in
connection with any such exercise or failure so to exercise.
No prospectus
No offering document, prospectus or admission document has been
or will be submitted to be approved by the FCA or submitted to the
LSE in relation to the Placing and Placees' commitments will be
made solely on the basis of their own assessment of the Company,
the Placing Shares and the Placing based on the Company's publicly
available information taken together with the information contained
in this Announcement (including this Appendix) released by the
Company today and any information publicly announced to a
Regulatory Information Service by or on behalf of the Company on or
prior to the date of this Announcement, and subject to the further
terms set forth in the contract note to be provided to individual
prospective Placees.
Each Placee, by accepting a participation in the Placing, agrees
that the content of this Announcement (including this Appendix) is
exclusively the responsibility of the Company and confirms that it
has neither received nor relied on any other information,
representation, warranty, or statement made by or on behalf of the
Company, Liberum or any other person and none of Liberum nor the
Company nor any other person will be liable for any Placee's
decision to participate in the Placing based on any other
information, representation, warranty or statement which the
Placees may have obtained or received. 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. No Placee should consider any
information in this Announcement (including this Appendix) to be
legal, tax or business advice. Each Placee should consult its own
legal adviser, tax adviser and/or business adviser for legal, tax
and business advice regarding an investment in the Placing Shares.
Nothing in this paragraph shall exclude the liability of any person
for fraudulent misrepresentation.
Registration and settlement
Settlement of transactions in the Placing Shares following
Admission will take place within the system administered by CREST,
subject to certain exceptions. The Company reserves the right to
require settlement for and delivery of the Placing Shares (or a
portion thereof) to Placees by such other means that it deems
necessary, including in certificated form if, in the reasonable
opinion of Liberum, delivery or settlement is not possible or
practicable within the CREST system or would not be consistent with
the regulatory requirements in the Placee's jurisdiction.
Participation in the Placing is only available to persons who
are invited to participate in it by Liberum.
A Placee's commitment to acquire a fixed number of Placing
Shares under the Placing will be agreed orally or in writing with
Liberum. Such agreement will constitute a legally binding
commitment on such Placee's part to acquire that number of Placing
Shares at the Placing Price on the terms and conditions set out or
referred to in the Appendices and subject to the Company's articles
of association.
Following the close of the Bookbuild, each Placee allocated
Placing Shares in the Placing will be sent a contract note or
electronic trade confirmation in accordance with the standing
arrangements in place with Liberum, stating the number of Placing
Shares allocated to it at the Placing Price, the aggregate amount
owed by such Placee to Liberum and settlement instructions.
Each Placee agrees that it will do all things necessary to
ensure that delivery and payment is completed in accordance with
the standing CREST or certificated settlement instructions that it
has in place with Liberum. Settlement should be through Liberum
against CREST ID: ENQAN. For the avoidance of doubt, Placing
allocations will be booked with a trade date of 22 May 2020 and
settlement date of 12 June 2020. Settlement will take place on a
delivery versus payment basis.
The Company will deliver the Placing Shares to the CREST account
operated by Liberum as agent for the Company and Liberum will enter
their delivery (DEL) instruction into the CREST system. The input
to CREST by a Placee of a matching or acceptance instruction will
then allow delivery of the relevant Placing Shares to that Placee
against payment.
Interest is chargeable daily on payments not received from
Placees on the due date in accordance with the arrangements set out
above at the rate of two percentage points above LIBOR as
determined by Liberum.
Each Placee is deemed to agree that, if it does not comply with
these obligations, the Company may sell any or all of the Placing
Shares allocated to that Placee on such Placee's behalf and retain
from the proceeds, for the Company's account and benefit, an amount
equal to the aggregate amount owed by the Placee plus any interest
due. The relevant Placee will, however, remain liable for any
shortfall below the aggregate amount owed by it and may be required
to bear any stamp duty or stamp duty reserve tax (together with any
interest or penalties thereon or other similar taxes imposed in any
jurisdiction) which may arise upon the sale of such Placing Shares
on such Placee's behalf. By communicating a bid for Placing Shares,
each Placee confers on Liberum all such authorities and powers
necessary to carry out any such transaction and agrees to ratify
and confirm all actions which Liberum lawfully takes on such
Placee's behalf.
If Placing Shares are to be delivered to a custodian or
settlement agent, Placees should ensure that the contract note or
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 stamp duty reserve tax. If there are any other
circumstances in which any stamp duty or stamp duty reserve tax
(including any interest and 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
Liberum nor the Company shall be responsible for the payment
thereof. Placees will not be entitled to receive any fee or
commission in connection with the Placing.
Representations and warranties
By submitting a bid and/or participating in the Placing, each
Placee (and any person acting on such Placee's behalf)
acknowledges, undertakes, represents, warrants and agrees (as the
case may be) that:
1. it has read and understood this Announcement, including this
Appendix, in its entirety and that its participation in the Placing
and its acquisition of Placing Shares is subject to and based upon
all the terms, conditions, representations, warranties,
acknowledgements, agreements and undertakings and other information
contained herein;
2. it has received this Announcement solely for its use and has
not redistributed or duplicated it and it will not redistribute or
duplicate this Announcement or any other materials concerning the
Placing (including any electronic copies thereof);
3. no offering document, prospectus or admission document has
been or will be prepared in connection with the Placing and it has
not received a prospectus, admission document or other offering
document in connection with the Bookbuild, the Placing or the
Placing Shares;
4. its participation in the Placing shall also be subject to the
provisions of the Placing Agreement and the memorandum and articles
of association of the Company in force both before and immediately
after Admission;
5. (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 prior to the date of this Announcement (the "Publicly
Available Information"); (ii) the Ordinary Shares are admitted to
trading on AIM, and the Company is therefore required to publish
certain business and financial information in accordance with the
rules and practices of AIM (collectively, the "Exchange
Information"), which includes a description of the nature of the
Company's business and the Company's most recent balance sheet and
profit and loss account and that it is able to obtain or access
such Exchange Information without undue difficulty and is able to
obtain access to such information or comparable information
concerning any other publicly traded company without undue
difficulty, and (iii) it has had access to such financial and other
information (including the business, financial condition,
prospects, creditworthiness, status and affairs of the Company, the
Placing and the Placing Shares, as well as the opportunity to ask
questions) concerning the Company, the Placing and the Placing
Shares as it has deemed necessary in connection with its own
investment decision to acquire any of the Placing Shares and has
satisfied itself that the information is still current and relied
on that investigation for the purposes of its decision to
participate in the Placing;
6. neither Liberum, the Company nor any of their respective
affiliates, agents, directors, officers, employees or any person
acting on behalf of any of them has provided, and will not provide,
it with any material regarding the Placing Shares or the Company
other than the information included in this Announcement; nor has
it requested any of Liberum, the Company, any of their respective
affiliates or any person acting on behalf of any of them to provide
it with any such information;
7. the content of this Announcement (including this Appendix) is
exclusively the responsibility of the Company and that neither
Liberum, nor any person acting on its behalf has or shall have any
liability for any information, representation or statement
contained in this Announcement or any information previously
published by or on behalf of the Company and will not be liable for
any Placee's decision to participate in the Placing based on any
information, representation or statement contained in this
Announcement or otherwise. Each Placee further represents, warrants
and agrees that the only information on which it is entitled to
rely and on which such Placee has relied in committing itself to
subscribe for the Placing Shares is contained in this Announcement
and any Publicly Available Information (including the Exchange
Information), such information being all that it deems necessary to
make an investment decision in respect of the Placing Shares and
that it has neither received nor relied on any other information
given or representations, warranties or statements made by Liberum
or the Company or their respective affiliates and neither Liberum
nor the Company nor their respective affiliates 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. Each Placee further acknowledges and agrees that it has
relied on its own investigation of the business, financial or other
position of the Company in deciding to participate in the
Placing;
8. to the extent it has received any inside information (for the
purposes of the Market Abuse Regulation (EU Regulation No. 596/2014
("MAR")) and section 56 of the Criminal Justice Act 1993) in
relation to the Company and its securities, it has not: (a) dealt
(or attempted to deal) in the securities of the Company; (b)
encouraged, recommended or induced another person to deal in the
securities of the Company; or (c) unlawfully disclosed inside
information to any person, prior to the information being made
publicly available;
9. neither Liberum nor any person acting on its behalf nor any
of their respective affiliates has or shall have any liability for
any Publicly Available Information (including any Exchange
Information), or any representation relating to the Company,
provided that nothing in this paragraph excludes the liability of
any person for fraudulent misrepresentation made by that
person;
10. it has complied with its obligations under the Criminal
Justice Act 1993, MAR and in connection with money laundering and
terrorist financing under the Proceeds of Crime Act 2002 (as
amended), the Terrorism Act 2000 (as amended), the Terrorism Act
2006 and the Money Laundering Regulations 2007, the Money
Laundering, Terrorist Financing and Transfer of Funds (Information
on the Payer) Regulations 2017 (the "Regulations") and any related
or similar rules, regulations or guidelines, issued, administered
or enforced by any government agency having jurisdiction in respect
thereof and the Money Laundering Sourcebook of the FCA and, if
making payment on behalf of a third party, that satisfactory
evidence has been obtained and recorded by it to verify the
identity of the third party as required by the Regulations;
11. if it is a financial intermediary, as that term is used in
Article 5(1) of the Prospectus Regulation, the Placing Shares
subscribed for by it in the Placing will not be acquired on a
non-discretionary basis on behalf of, nor will they be acquired
with a view to their offer or resale to, persons in a member state
of the European Economic Area or to which the Prospectus Regulation
otherwise applies other than to Qualified Investors, or in
circumstances in which the prior consent of Liberum has been given
to the proposed offer or resale;
12. 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;
13. it has not offered or sold and will not offer or sell any
Placing Shares to persons in the European Economic Area prior to
Admission except to persons whose ordinary activities involve them
in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their business or otherwise
in circumstances which have not resulted in and which will not
result in an offer to the public in any member state of the
European Economic Area within the meaning of the Prospectus
Regulation (including any relevant implementing measure in any
member state);
14. 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;
15. 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;
16. if within the United Kingdom, it is a person falling within
Article 19(5) and/or Article 49(2)(a) to (d) of the Order and is a
Qualified Investor or is a person to whom this Announcement may
otherwise be lawfully communicated;
17. any offer of Placing Shares may only be directed at persons
in member states of the European Economic Area who are Qualified
Investors and represents and agrees that, in the EEA, it is such a
Qualified Investor;
18. (i) it and any person acting on its behalf is entitled to
subscribe for Placing Shares under the laws of all relevant
jurisdictions which apply to it; (ii) it has all necessary capacity
and has obtained all necessary consents and authorities to enable
it to commit to this participation in the Placing (including
executing and delivering all documents necessary for such
participation); (iii) it is and will remain liable to the Company
and/or Liberum for the performance of all of 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, and that its
subscription of the Placing Shares will be in compliance with
applicable laws and regulations in the jurisdiction of its
residence, the residence of the Company, or otherwise; (iv) it has
paid any issue, transfer or other taxes due in connection with its
participation in any territory; and (v) it has not taken any action
which will or may result in the Company, Liberum or any of their
affiliates or any person acting on their behalf being in breach of
the legal and/or regulatory requirements of any territory in
connection with the Placing. Each Placee agrees that the provisions
of this paragraph 18 shall survive the resale of the Placing Shares
by or on behalf of any person for whom it is acting;
19. it is not, and any person who it is acting on behalf of is
not, and at the time the Placing Shares are subscribed will not be,
a resident of, or with an address in, the United States, Australia,
Canada, Japan, New Zealand or the Republic of South Africa and that
the Placing Shares have not been and will not be registered under
the Securities Act or with any securities regulatory authority of
any state or jurisdiction of the United States, or the relevant
Australian, Canadian, Japanese, New Zealand or South African
securities legislation and therefore the Placing Shares may not be
offered, sold, transferred or delivered directly or indirectly into
the United States, Australia, Canada, Japan, New Zealand or the
Republic of South Africa or their respective territories and
possessions, except subject to limited exemptions;
20. it has complied with all relevant laws and regulations of
all relevant territories, obtained all requisite governmental or
other consents which may be required in connection with the Placing
Shares, complied with all requisite formalities and that it has not
taken any action or omitted to take any action which will or may
result in Liberum, the Company or any of their respective
directors, officers, agents, employees or advisers acting in breach
of the legal or regulatory requirements of any territory in
connection with the Placing;
21. its purchase of Placing Shares does not trigger, in the
jurisdiction in which it is resident or located: (i) any obligation
to prepare or file a prospectus or similar document or any other
report with respect to such purchase; (ii) any disclosure or
reporting obligation of the Company; or (iii) any registration or
other obligation on the part of the Company;
22. it (and any person acting on its behalf) will make payment
for the Placing Shares allocated to it in accordance with this
Announcement on the due time and date set out herein, failing which
the relevant Placing Shares may be placed with other subscribers or
sold as Liberum may in its discretion determine and it will remain
liable for any amount by which the net proceeds of such sale falls
short of the product of the Placing Price and the number of Placing
Shares allocated to it and may be required to bear any stamp duty
or stamp duty reserve tax (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;
23. none of Liberum nor any of its affiliates, nor any person
acting on behalf of any of them, is making any recommendations to
it, advising it regarding the suitability of any transactions it
may enter into in connection with the Placing and that
participation in the Placing is on the basis that it is not and
will not be a client of Liberum for the purposes of the Placing and
that Liberum has no duties or responsibilities to it for providing
the protections afforded to its clients 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 its rights
and obligations thereunder including any rights to waive or vary
any conditions or exercise any termination right;
24. 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 Liberum nor the Company will be responsible
for any liability to stamp duty or stamp duty reserve tax resulting
from a failure to observe this requirement. Each Placee and any
person acting on behalf of such Placee agrees to participate in the
Placing and it agrees to indemnify the Company and Liberum in
respect of the same on the basis that the Placing Shares will be
allotted to the CREST stock account of Liberum who will hold them
as nominee on behalf of such Placee until settlement in accordance
with its standing settlement instructions;
25. these terms and conditions and any agreements entered into
by it pursuant to these terms and conditions and 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 the Company or Liberum 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;
26. Liberum and its affiliates will rely upon the truth and
accuracy of the representations, warranties and acknowledgements
set forth herein and which are irrevocable and it irrevocably
authorises Liberum 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;
27. it agrees to indemnify on an after tax basis and hold the
Company and Liberum and their respective affiliates harmless from
any and all costs, claims, liabilities and expenses (including
legal fees and expenses) arising out of or in connection with any
breach of the representations, warranties, acknowledgements,
agreements and undertakings in the Appendices and further agrees
that the provisions of the Appendices shall survive after
completion of the Placing;
28. it will acquire any Placing Shares subscribed for by it for
its account or for one or more accounts as to each of which it
exercises sole investment discretion and it has full power to make
the acknowledgements, representations and agreements herein on
behalf of each such account;
29. its commitment to subscribe for Placing Shares on the terms
set out herein and in the relevant contract notes will continue
notwithstanding any amendment that may in the future be made to the
terms 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 conduct of the Placing. The foregoing
representations, warranties and confirmations are given for the
benefit of the Company and Liberum. The agreement to settle a
Placee's subscription (and/or the subscription of a person for whom
such Placee is contracting as agent) free of stamp duty and stamp
duty reserve tax depends on the settlement relating only to the
subscription by it and/or such person direct from the Company for
the Placing Shares in question. Such agreement assumes, and is
based on a warranty from each Placee, that neither it, nor the
person specified by it for registration as holder, of Placing
Shares is, or is acting as nominee or agent for, and that the
Placing Shares will not be allotted to, a person who is or may be
liable to stamp duty or stamp duty reserve tax under any of
sections 67, 70, 93 and 96 of the Finance Act 1986 (depositary
receipts and clearance services). If there are any such
arrangements, or the settlement relates to any other dealing in the
Placing Shares, stamp duty or stamp duty reserve tax may be
payable. In that event the Placee agrees that it shall be
responsible for such stamp duty or stamp duty reserve tax, and
neither the Company nor Liberum shall be responsible for such stamp
duty or stamp duty reserve tax. If this is the case, each Placee
should seek its own advice and notify Liberum accordingly;
30. no action has been or will be taken by any of the Company,
Liberum or any person acting on behalf of the Company or Liberum
that would, or is intended to, permit a public offer of the Placing
Shares in any country or jurisdiction where any such action for
that purpose is required;
31. in making any decision to subscribe for the Placing Shares,
it has knowledge and experience in financial, business and
international investment matters as is required to evaluate the
merits and risks of subscribing for the Placing Shares. It further
confirms that it is experienced in investing in securities of this
nature in this sector 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. It further confirms
that it relied on its own examination and due diligence of the
Company and its associates taken as a whole, and the terms of the
Placing, including the merits and risks involved;
32. it has (i) made its own assessment and satisfied itself
concerning legal, regulatory, tax, business and financial
considerations in connection herewith to the extent it deems
necessary; (ii) had access to review publicly available information
concerning the Company that it considers necessary or appropriate
and sufficient in making an investment decision; (iii) reviewed
such information as it believes is necessary or appropriate in
connection with its subscription of the Placing Shares; and (iv)
made its investment decision based upon its own judgment, due
diligence and analysis and not upon any view expressed or
information provided by or on behalf of Liberum;
33. it may not rely on any investigation that Liberum or any
person acting on its behalf may or may not have conducted with
respect to the Company or the Placing and Liberum has not made any
representation to it, express or implied, with respect to the
merits of the Placing, the subscription for the Placing Shares, or
as to the condition, financial or otherwise, of the Company, or as
to any other matter relating thereto, and nothing herein shall be
construed as a recommendation to it to subscribe for the Placing
Shares. It acknowledges and agrees that no information has been
prepared by Liberum or the Company for the purposes of this
Placing;
34. it will not hold Liberum or any of its affiliates or any
person acting on their behalf responsible or liable for any
misstatements in or omission from any publicly available
information relating to the Company or information made available
(whether in written or oral form) in presentations or as part of
roadshow discussions with investors relating to the Company (the
"Information") and that neither Liberum nor any person acting on
behalf of Liberum makes any representation or warranty, express or
implied, as to the truth, accuracy or completeness of such
Information or accepts any responsibility for any of such
Information;
35. the Placee is a person located outside the United States and
is subscribing for Placing Shares only in an "offshore transaction"
as defined in and pursuant to Regulation S;
36. the Placee is not acquiring Placing Shares as a result of
any "directed selling efforts" as defined in Regulation S;
37. it is not acting on a non-discretionary basis for the
account or benefit of a person located within the United States at
the time the undertaking to subscribe for Placing Shares is given;
and
38. the foregoing representations, warranties and confirmations
are given for the benefit of the Company and Liberum and are
irrevocable. The Company, Liberum and their respective affiliates,
agents, directors, officers and employees and others will rely upon
the truth and accuracy of the foregoing acknowledgements,
representations, warranties and agreements and it agrees that if
any of the acknowledgements, representations, warranties and
agreements made in connection with its acquiring of Placing Shares
is no longer accurate, it shall promptly notify the Company and
Liberum. It irrevocably authorises Liberum 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 out herein.
The agreement to allot and issue Placing Shares to Placees (or
the persons for whom Placees are contracting as nominee or agent)
free of stamp duty and stamp duty reserve tax relates only to their
allotment and issue to Placees, or such persons as they nominate as
their agents, direct from the Company for the Placing Shares in
question. Such agreement is subject to the representations,
warranties and further terms above and assumes, and is based on the
warranty from each Placee, that the Placing Shares are not being
acquired in connection with arrangements to issue depositary
receipts or to issue or transfer the Placing Shares into a
clearance service. If there are any such arrangements, or the
settlement relates to any other dealing in the Placing Shares,
stamp duty or stamp duty reserve tax or other similar taxes may be
payable, for which neither the Company nor Liberum will be
responsible and each Placee shall indemnify on an after-tax basis
and hold harmless the Company, Liberum and their respective
affiliates, agents, directors, officers and employees for any stamp
duty or stamp duty reserve tax paid by them in respect of any such
arrangements or dealings.
In addition, Placees should note that they will be liable for
any stamp duty and all other stamp, issue, securities, transfer,
registration, documentary or other duties or taxes (including any
interest, fines or penalties relating thereto) payable outside the
United Kingdom by them or any other person on the subscription by
them of any Placing Shares or the agreement by them to subscribe
for any Placing Shares. Each Placee agrees to indemnify on an
after-tax basis and hold harmless the Company, Liberum and their
respective affiliates, agents, directors, officers and employees
from any and all interest, fines or penalties in relation to any
such duties or taxes to the extent that such interest, fines or
penalties arise from the unreasonable default or delay of that
Placee or its agent.
Each Placee should seek its own advice as to whether any of the
above tax liabilities arise and notify Liberum accordingly.
Each Placee and any person acting on behalf of each Placee
acknowledges and agrees that Liberum 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.
When a Placee or person acting on behalf of the Placee is
dealing with Liberum, any money held in an account with Liberum 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 Liberum money in accordance
with the client money rules and will be used by Liberum in the
course of its own business; and the Placee will rank only as a
general creditor of Liberum.
All times and dates in this Announcement may be subject to
amendment. Liberum shall notify the Placees and any person acting
on behalf of the Placees of any changes.
Past performance is not a guide to future performance and
persons needing advice should consult an independent financial
adviser.
This information is provided by RNS, the news service of the
London Stock Exchange. RNS is approved by the Financial Conduct
Authority to act as a Primary Information Provider in the United
Kingdom. Terms and conditions relating to the use and distribution
of this information may apply. For further information, please
contact rns@lseg.com or visit www.rns.com.
END
MSCZZGZKKZGGGZG
(END) Dow Jones Newswires
May 22, 2020 02:00 ET (06:00 GMT)
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