Placing Announcement
N E W S R E L E A S E
2 February 2015
CRH plc - Proposed Placing to Fund Acquisition
CRH plc
2 February 2015
THIS ANNOUNCEMENT, INCLUDING THE APPENDIX, AND THE INFORMATION CONTAINED HEREIN IS RESTRICTED AND IS NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, IN OR INTO THE UNITED STATES, CANADA, AUSTRALIA, JAPAN, SOUTH AFRICA, JERSEY OR ANY OTHER STATE OR JURISDICTION IN WHICH SUCH RELEASE, PUBLICATION OR DISTRIBUTION WOULD BE UNLAWFUL. PLEASE SEE THE IMPORTANT NOTICE AT THE END OF THIS ANNOUNCEMENT.
CRH plc ("CRH" or the "Company")
PROPOSED PLACING OF NEW ORDINARY SHARES TO FUND ACQUISITION
CRH today announces an underwritten placing of 74,039,915 ordinary shares, representing approximately 9.99% of the current issued ordinary share capital of the Company.
Introduction
The Board of CRH announces an underwritten placing (the "Placing") of 74,039,915 Ordinary Shares in the capital of CRH (the "Placing Shares"). The Placing is being conducted, subject to the satisfaction of certain conditions set out in the Appendix to this announcement, through an accelerated bookbuild (the "Bookbuild") which will be launched immediately following this placing announcement (the "Announcement") and will be made available to new and existing eligible institutional investors. UBS Limited is acting as Sole Global Coordinator with UBS Limited, J.P. Morgan Securities Plc, Merrill Lynch International and J&E Davy acting as Joint Bookrunners in respect of the Placing.
Background to the Placing and Use of Proceeds
The Company has separately announced today that it has entered into a binding commitment to acquire certain assets (hereafter referred to as "NewCo") being disposed of by Holcim Ltd ("Holcim") and Lafarge S.A. ("Lafarge"), in advance of their proposed merger, for an Enterprise Value of €6.5bn (the "Acquisition").
Assuming completion in mid-2015, the acquisition of NewCo is expected to be c.25% accretive to underlying earnings and to generate a ROIC in line with CRH's weighted average cost of capital in the first full year of ownership. Return on equity is expected to be in the high teens in 2016 and RONA in line with previous returns generated by CRH.
CRH proposes to finance the Acquisition through a combination of €2.0bn cash on balance sheet, bank facilities and the proceeds of an equity placing of 9.99% of CRH's current issued share capital.
Balance sheet strength remains a key focus for CRH. 2014E pro-forma net debt to EBITDA ratio is approximately 3.2x, before taking account of any future disposals arising from the previously announced portfolio review by CRH in 2014. CRH remains strongly committed to its investment grade credit rating.
The Acquisition constitutes a Class 1 transaction pursuant to the UKLA Listing Rules and therefore requires the approval of CRH's shareholders. An Extraordinary General Meeting will be held in due course for CRH shareholders to approve the Acquisition. The Acquisition is also conditional upon 1) the successful completion of the merger of Holcim and Lafarge and 2) completion of local re-organisation plans. The Acquisition is expected to complete by mid-2015.
The Placing is not conditional on the completion of the Acquisition announced by CRH this morning. If the Acquisition does not complete, CRH will retain the net proceeds of the Placing for other potential acquisition opportunities.
The net proceeds of the Placing are intended to be used to part fund the Acquisition. The balance of the consideration will be funded by way of €2.0bn cash on balance sheet and an unsecured bridge facility provided by Bank of America Merrill Lynch International Limited, J.P. Morgan Limited and UBS Limited.
Further details of the Acquisition can be found in the separate announcement released by CRH this morning.
Current trading and prospects
On 11 November 2014, CRH announced its interim management statement outlining its trading performance in the first nine months of the year, in which it stated that:
"Assuming normal weather patterns for the remainder of the year and a US Dollar/Euro exchange rate of 1.33 (2013: 1.3281), we expect EBITDA for the fourth quarter to be broadly similar to the strong performance in the final quarter of 2013. Against this backdrop, we reiterate our expectation for second-half EBITDA to be somewhat ahead of last year (H2 2013: €1.08bn), resulting in expected full year EBITDA growth of c.10 per cent in 2014 (2013: €1.475bn)."
Since that date, the CRH's trading performance continues to be in line with the Board's expectations and we expect EBITDA for the full year ended 31 December 2014 to be not less than €1.625bn with full year revenues of €18.9bn. We expect year-end net debt to be approximately €2.5bn (2013: €3.0bn), with a net debt/EBITDA ratio of approximately 1.5x. CRH will publish its preliminary results for the year ended 31 December 2014 on 26 February 2015.
NewCo's estimated1 outturn for the year ended 31 December 2014 was marginally ahead of initial expectations, reflecting a strong finish to the year in the UK, while the results in the Philippines and Brazil were slightly behind expectations.
[1] Approximate pending audit finalisation
Details of the Placing
The price at which the Placing Shares are to be placed will be determined by the Company, UBS Limited, J.P. Morgan Securities Plc, Merrill Lynch International and J&E Davy at the close of the Bookbuild and announced by the Company shortly thereafter. The timing of the closing of the Bookbuild, pricing and allocations are at the discretion of the Company, UBS Limited, J.P. Morgan Securities Plc, Merrill Lynch International and J&E Davy.
Under the terms of the Placing, CRH intends to place 74,039,915 Placing Shares, representing approximately 9.99% of the current issued ordinary share capital of the Company as at 2 February 2015.
The Placing has been underwritten by UBS Limited (the "Sole Global Coordinator") and J.P. Morgan Securities Plc, Merrill Lynch International and J&E Davy (together with UBS Limited the "Joint Bookrunners" and each a "Bookrunner") subject to the conditions set out in the placing agreement between the Company and the Joint Bookrunners (the "Placing Agreement"). A description of the Placing Agreement can be found in the terms and conditions contained in the Appendix to this Announcement under the heading "Participation in, and principal terms of, the Placing".
The Placing Shares will, when issued, be credited as fully paid and will rank pari passu with the existing Ordinary Shares in the capital of the Company including the right to receive all future dividends and distributions declared, made or paid after the date of sale.
The Company will apply for admission of the Placing Shares to the premium listing segment of the Official List of the Financial Conduct Authority and to a secondary listing on the Irish Stock Exchange and to be admitted to trading on the London Stock Exchange main market for listed securities and the regulated market for listed securities of the Irish Stock Exchange ("Admission"). It is expected that Admission will take place and that trading in the Placing Shares will commence on 5 February 2015.
All investors who participate in the Placing will be required to make bids for Placing Shares in Sterling. Prior to the closing of the Bookbuild, Placees may elect to settle their allocation in Euros. The Euro Placing Price will be provided at the time of communicating allocations. The Euro Placing Price will be based on the WM/Reuters mid-point Euro/Sterling exchange rate at the first hourly fixing time after the closing of the Bookbuild.
The Placing is conditional upon, inter alia, Admission becoming effective. The Placing is also conditional upon the Placing Agreement becoming unconditional and not being terminated. The terms and conditions of the Placing are contained in the Appendix to this Announcement (which forms part of the Announcement). The Placing is not conditional on the completion of the Acquisition. If the Acquisition does not complete, CRH will retain the net proceeds of the Placing for other potential acquisition opportunities.
The Joint Bookrunners have agreed to (i) underwrite the Placing to the extent that Placees cannot be found to participate in the Placing and (ii) to underwrite the settlement risk in the event that any Placees procured by the Joint Bookrunners who do participate fail to take up their allocation of Placing Shares.
By choosing to participate in the Placing and by making an oral and legally binding offer to acquire Placing Shares, investors will be deemed to have read and understood this Announcement in its entirety (including the Appendix) and to be making such offer on the terms and subject to the conditions in it, and to be providing the representations, warranties, indemnities, acknowledgements and undertakings contained in the Appendix.
For further information, please contact:
CRH at Dublin (+353 1 404 1000)
Albert Manifold, Chief Executive
Maeve Carton, Finance Director
Frank Heisterkamp, Head of Investor Relations
Mark Cahalane, Group Director Corporate Affairs
UBS Limited (Sole Global Coordinator and Joint Bookrunner) +44 (0) 20 7567 8000
Hew Glyn Davies
Christopher Smith
Anna Richardson Brown
Merrill Lynch International (Joint Bookrunner)
James Fleming +44 (0) 20 7996 8163
Peter Luck +44 (0) 20 7996 6429
J.P. Morgan Securities Plc (Joint Bookrunner)
John Mayne +44 (0) 20 7134 4315
Nicholas Hall +44 (0) 20 7134 3339
J&E Davy (Joint Bookrunner) +353 1 679 6363
Kyran McLaughlin
John Lydon
Powerscourt (International Media)
Rory Godson +44 (0) 20 7250 1446
Drury Porter Novelli (Irish Media)
Billy Murphy +353 1 260 5000
IMPORTANT NOTICE
This announcement, including its Appendix (together, the "Announcement") and the information contained herein is restricted and is not for release, publication or distribution, directly or indirectly, in whole or in part, in, into or from the United States (including its territories and possessions, any state of the United States and the District of Columbia, collectively the "United States"), Australia, Canada, Japan South Africa, Jersey or any other state or jurisdiction in which the same would be restricted, unlawful or unauthorised (each a "Restricted Territory"). This Announcement is for information purposes only and does not constitute an offer to buy, sell, issue, acquire or subscribe for, or the solicitation of an offer to buy, sell, issue, acquire or subscribe for shares in the capital of the Company in any Restricted Territory or to any person to whom it is unlawful to make such offer or solicitation. Any failure to comply with these restrictions may constitute a violation of the securities laws of such jurisdictions.
Subject to certain exemptions, the securities referred to herein may not be offered or sold in any Restricted Territory or for the account or benefit of any national resident or citizen of any Restricted Territory. The Placing Shares have not been and will not be registered under the United States Securities Act of 1933, as amended ("Securities Act"), or under the securities laws of, 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, in or into or from the United States absent registration under the Securities Act or 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. Any offering of the Placing Shares to be made in the United States will be made only to a limited number of "qualified institutional buyers" ("QIBs") within the meaning of Rule 144A under the Securities Act ("Rule 144A") who are also institutional "accredited investors" within the meaning of Rule 501(a)(1), (2), (3), or (7) of Regulation D under the Securities Act ("IAIs")pursuant to an exemption from the registration requirements under the Securities Act in a transaction not involving any "public offering" and outside the United States to persons who are not, and are not acting for the account or benefit of, US persons in offshore transactions within the meaning of, and in reliance on, Regulation S under the Securities Act ("Regulation S"). No public offering of the shares referred to in this Announcement is being made in the United Kingdom, any Restricted Territory or elsewhere.
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 UBS Limited (the "Sole Global Coordinator") or J.P. Morgan Securities Plc, Merrill Lynch International or J&E Davy (together with UBS Limited, the "Joint Bookrunners" and each a "Bookrunner") or by any of their respective affiliates or agents as to, or in relation to, the accuracy or completeness of this Announcement or any other written or oral information made available to or publicly available to any interested party or its advisers, and any liability therefore is expressly disclaimed. References hereunder to Joint Bookrunners will also include UBS Limited in its capacity as Sole Global Coordinator.
J&E Davy, which is regulated in Ireland by the Central Bank of Ireland, and each of J.P. Morgan Securities Plc, Merrill Lynch International and UBS Limited, whom are authorised by the Prudential Regulation Authority ("PRA") and regulated in the United Kingdom by the PRA and the Financial Conduct Authority ("FCA") are acting as Joint Bookrunners for the Company and no-one else in connection with the Placing and are not, and will not be, responsible to anyone other than the Company for providing the protections afforded to their respective clients nor for providing advice in relation to the Placing and/or any other matter referred to in this Announcement.
Apart from the responsibilities and liabilities, if any, which may be imposed on the Joint Bookrunners by the Financial Services and Markets Act 2000 or by the regulatory regime established under it, none of the Joint Bookrunners nor any of their respective affiliates accept any responsibility whatsoever for the contents of the information contained in this Announcement or for any other statement made or purported to be made by or on behalf of the Joint Bookrunners or any of their respective affiliates in connection with the Company, the Placing Shares or the Placing. Each of the Joint Bookrunners and each of their respective affiliates accordingly disclaim all and any liability, whether arising in tort, contract or otherwise (save as referred to above) in respect of any statements or other information contained in this Announcement and no representation or warranty, express or implied, is made by the Joint Bookrunners or any of their respective affiliates as to the accuracy, completeness or sufficiency of the information contained in this Announcement.
The distribution of this Announcement and the offering of the Placing Shares in certain jurisdictions may be restricted by law. No action has been taken by the Company or the Joint Bookrunners 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 by the Company and the Joint Bookrunners to inform themselves about, and to observe, such restrictions.
The information in this Announcement may not be forwarded or distributed to any other person and may not be reproduced in any manner whatsoever. Any forwarding, distribution, reproduction, or disclosure of this 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.
This Announcement contains (or may contain) certain forward-looking statements with respect to certain of the Company's current expectations and projections about future events and the Company's future financial condition and performance. These statements, which sometimes use words such as "aim", "anticipate", "believe", "may", "will", "should", "intend", "plan", "assume", "estimate", "expect" (or the negative thereof) and words of similar meaning, reflect the directors' current beliefs and expectations and involve known and unknown risks, uncertainties and assumptions, many of which are outside the Company's control and difficult to predict, that could cause actual results and performance to differ materially from any expected future results or performance expressed or implied by the forward-looking statement including those accompanying such forward-looking statements and under "Risk Factors" in the Company's Annual Report on Form 20-F, filed with the U.S. Securities and Exchange Commission (the "SEC") on March 13, 2014 and "Principal Risks and Uncertainties" in the Company's 2014 Interim Results contained in the Company's Form 6-K filed with the SEC on August 20, 2014. Statements contained in this Announcement regarding past trends or activities should not be taken as a representation that such trends or activities will continue in the future. The information contained in this Announcement speaks only as of the date of this Announcement and is subject to change without notice and the Company does not assume any responsibility or obligation to, and does not intend to, update or revise publicly or review any of the information contained herein, whether as a result of new information, future events or otherwise, except to the extent required by the Financial Conduct Authority, the London Stock Exchange, the Irish Stock Exchange, the Central Bank of Ireland or by applicable law. No statement in this Announcement is or is intended to be a profit forecast or profit estimate or to imply that the earnings of the Company for the current or future financial years will necessarily match or exceed the historical or published earnings of the Company.
The price of shares and the income from them may go down as well as up and investors may not get back the full amount invested on disposal of shares acquired. Past performance is no guide to future performance and persons needing advice should consult an independent financial adviser.
The Placing Shares to be issued pursuant to the Placing will not be admitted to trading on any stock exchange other than the London Stock Exchange and the Irish Stock Exchange.
Persons (including individuals, funds or otherwise) by whom or on whose behalf a commitment to acquire Placing Shares has been given ("Placees") will be deemed to have read and understood this Announcement in its entirety (including the Appendix) and to be making such offer on the terms and conditions in it, and to be providing the representations, warranties, indemnities, acknowledgements, and undertakings contained in the Appendix. In particular, each such Placee represents, warrants and acknowledges that it is: (i) a Relevant Person (as defined in the Appendix) 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 and it is acquiring such shares for its own account; and (ii) either (a) outside the United States, is not, and is not acting for the account or benefit of, a US person (within the meaning of Regulation S) and is subscribing for the Placing Shares in an 'offshore transaction' (within the meaning of Regulation S) or (b) (i) a "qualified institutional buyer" (as defined in Rule 144A) who is also an IAI and (ii) subscribing for the Placing Shares pursuant to an exemption from the registration requirements under the Securities Act in a transaction not involving any "public offering", or another exemption from, or in a transaction not subject to, the registration requirements under the Securities Act and, in either case, acknowledges that the Placing Shares have not been, and will not be, registered under the Securities Act or with any state or other jurisdiction of the United States.
The Placing Shares have not been approved or disapproved by the SEC, any state securities commission or any other regulatory authority in the United States, nor have any of the foregoing authorities passed upon or endorsed the merits of the Placing or the accuracy or adequacy of this Announcement. Any representation to the contrary is unlawful. Persons (including, without limitation, nominees and trustees) who have a contractual or other legal obligation to forward a copy of the Appendix or this Announcement should seek appropriate advice before taking any action.
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.
APPENDIX
TERMS AND CONDITIONS
IMPORTANT INFORMATION ON THE PLACING FOR INVITED PLACEES ONLY
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING. THIS ANNOUNCEMENT (INCLUDING THE APPENDIX) AND THE TERMS AND CONDITIONS SET OUT HEREIN (THE "ANNOUNCEMENT") IS FOR INFORMATION PURPOSES ONLY AND IS DIRECTED ONLY AT PERSONS WHOSE ORDINARY ACTIVITIES INVOLVE THEM IN ACQUIRING, HOLDING, MANAGING AND DISPOSING OF INVESTMENTS (AS PRINCIPAL OR AGENT) FOR THE PURPOSES OF THEIR BUSINESS AND WHO HAVE PROFESSIONAL EXPERIENCE IN MATTERS RELATING TO INVESTMENTS AND ARE: (A) IF IN A MEMBER STATE OF THE EUROPEAN ECONOMIC AREA (THE "EEA"), PERSONS WHO ARE QUALIFIED INVESTORS ("QUALIFIED INVESTORS"), BEING PERSONS FALLING WITHIN THE MEANING OF ARTICLE 2(1)(E) OF DIRECTIVE 2003/71/EC, AS AMENDED, INCLUDING BY THE 2010 PD AMENDING DIRECTIVE (DIRECTIVE 2010/73/EU), TO THE EXTENT IMPLEMENTED IN THE RELEVANT MEMBER STATE (THE "PROSPECTUS DIRECTIVE"); OR (B) IF IN THE UNITED KINGDOM, QUALIFIED INVESTORS WHO ARE (I) PERSONS WHO FALL WITHIN THE DEFINITION OF "INVESTMENT PROFESSIONAL" IN ARTICLE 19(5) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER 2005, AS AMENDED (THE "ORDER"), OR (II) PERSONS WHO FALL WITHIN ARTICLE 49(2)(A) TO (D) ("HIGH NET WORTH COMPANIES, UNINCORPORATED ASSOCIATIONS, ETC") OF THE ORDER, OR (C) PERSONS TO WHOM IT MAY OTHERWISE BE LAWFULLY COMMUNICATED (ALL SUCH PERSONS REFERRED TO IN (A), (B) AND (C) ABOVE TOGETHER BEING REFERRED TO AS "RELEVANT PERSONS").
THIS ANNOUNCEMENT MUST NOT BE ACTED ON OR RELIED ON BY PERSONS WHO ARE NOT RELEVANT PERSONS. PERSONS DISTRIBUTING THIS ANNOUNCEMENT MUST SATISFY THEMSELVES THAT IT IS LAWFUL TO DO SO. ANY INVESTMENT OR INVESTMENT ACTIVITY TO WHICH THIS ANNOUNCEMENT RELATES IS AVAILABLE ONLY TO RELEVANT PERSONS AND WILL BE ENGAGED IN ONLY WITH RELEVANT PERSONS. THIS ANNOUNCEMENT DOES NOT ITSELF CONSTITUTE AN OFFER FOR SALE OR SUBSCRIPTION OF ANY SECURITIES IN THE COMPANY.
EACH PLACEE SHOULD CONSULT WITH ITS OWN ADVISERS AS TO LEGAL, TAX, BUSINESS AND RELATED ASPECTS OF AN INVESTMENT IN THE PLACING SHARES.
THE PLACING SHARES HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED ("SECURITIES ACT"), OR UNDER THE SECURITIES LAWS OF, 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, IN OR INTO OR FROM THE UNITED STATES ABSENT REGISTRATION UNDER THE SECURITIES ACT OR 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. ANY OFFERING OF THE PLACING SHARES TO BE MADE IN THE UNITED STATES WILL BE MADE ONLY TO A LIMITED NUMBER OF "QUALIFIED INSTITUTIONAL BUYERS" WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT WHO ARE ALSO INSTITUTIONAL "ACCREDITED INVESTORS" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) or (7) OF REGULATION D UNDER THE SECURITIES ACT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT IN A TRANSACTION NOT INVOLVING A "PUBLIC OFFERING" AND OUTSIDE THE UNITED STATES PERSONS WHO ARE NOT, AND ARE NOT ACTING FOR THE ACCOUNT OR BENEFIT OF, US PERSONS IN OFFSHORE TRANSACTIONS WITHIN THE MEANING OF, AND IN RELIANCE ON, REGULATION S UNDER THE SECURITIES ACT. NO PUBLIC OFFERING OF THE SHARES REFERRED TO IN THIS ANNOUNCEMENT IS BEING MADE IN THE UNITED KINGDOM, THE UNITED STATES, ANY OTHER RESTRICTED TERRITORY OR ELSEWHERE.
Unless otherwise stated, capitalised terms in this Appendix have the meanings ascribed to them in the Terms and Conditions below.
This Announcement is for information only and does not itself constitute or form part of an offer to sell or issue or the solicitation of an offer to buy or subscribe for securities referred to herein in any jurisdiction including, without limitation, the United States, any Restricted Territory (as defined below) or in any jurisdiction where such offer or solicitation is unlawful. No public offering of securities will be made in connection with the Placing in the United Kingdom, the United States, any Restricted Territory or elsewhere.
This Announcement, and the information contained herein, is not for release, publication or distribution, directly or indirectly, to persons in the United States, Australia, Canada, Japan, South Africa, Jersey (each a "Restricted Territory") or in any jurisdiction in which such publication or distribution is unlawful. The distribution of this Announcement and the Placing and/or the offer or sale of the Placing Shares in certain jurisdictions may be restricted by law. No action has been taken by the Company, the Joint Bookrunners or any of their respective affiliates or agents which would permit an offer of the Placing Shares or possession or distribution of this Announcement or any other offering or publicity material relating to such Placing Shares in any jurisdiction where action for that purpose is required. Persons distributing any part of this Announcement must satisfy themselves that it is lawful to do so. Persons (including, without limitation, nominees and trustees) who have a contractual or other legal obligation to forward a copy of this Announcement should seek appropriate advice before taking any such action. Persons into whose possession this Announcement comes are required by the Company and the Joint Bookrunners to inform themselves about, and to observe, any such restrictions.
The securities referred to in this Announcement have not been approved or disapproved by the US Securities and Exchange Commission, any State securities commission or any other regulatory authority in the United States, nor have any of the foregoing authorities passed upon or endorsed the merits of the Placing or the accuracy or adequacy of this Announcement. Any representation to the contrary is a criminal offence in the United States.
Subject to certain exceptions, the securities referred to in this Announcement may not be offered or sold in any Restricted Territory or to, or for the account or benefit of, a citizen or resident, or a corporation, partnership or other entity created or organised in or under the laws of a Restricted Territory.
This Announcement has been issued by, and is the sole responsibility of, the Company. No representation or warranty, express or implied, is or will be made as to, or in relation to, and no responsibility or liability is or will be accepted by the Joint Bookrunners or any of their respective affiliates or agents as to or in relation to, the accuracy or completeness of this Announcement or any other written or oral information made available to or publicly available to any party or its advisers, and any liability therefore is expressly disclaimed.
J&E Davy, which is regulated in Ireland by the Central Bank of Ireland, and each of J.P. Morgan Securities Plc, Merrill Lynch International and UBS Limited are authorised by the Prudential Regulation Authority ("PRA") and regulated in the United Kingdom by the PRA and the Financial Conduct Authority ("FCA").
The Joint Bookrunners are acting exclusively for the Company and no-one else in connection with the Placing and are not, and will not be, responsible to anyone (including the Placees (as defined below)) other than the Company for providing the protections afforded to their clients or for providing advice in relation to the Placing or the contents of the Placing Documents or any other matter referred to therein.
Neither the Company nor the Joint Bookrunners make any representation to any Placees regarding an investment in the securities referred to in this Announcement under the laws applicable to such Placees. Each Placee should consult its own advisers as to the legal, tax, business, financial and related aspects of an investment in the Placing Shares.
By participating in the Placing, Placees will be deemed to have read and understood this Announcement in its entirety, and to be participating, making an offer and acquiring Placing Shares on the terms and conditions contained herein and to be providing the representations, warranties, indemnities, acknowledgment and undertakings contained herein.
IMPORTANT INFORMATION FOR PLACEES ONLY REGARDING THE PLACING
Defined terms used in this Appendix are set out at the end of this Appendix.
Details of the Placing Agreement and of the Placing Shares
UBS Limited (the "Sole Global Coordinator") and J.P. Morgan Securities Plc, Merrill Lynch International and J&E Davy (together with UBS Limited, the "Joint Bookrunners" and each a "Bookrunner") and CRH plc (the "Company") have today entered into a placing agreement with the Company (the "Placing Agreement") under which, on the terms and subject to the conditions set out therein, each of the Joint Bookrunners, each as agent for and on behalf of the Company, has agreed to use its reasonable endeavours to procure placees (the "Placees") for 74,039,915 new ordinary shares in the capital of the Company (the "Placing Shares") at a price (in Sterling or the Euro equivalent) determined following completion of the bookbuilding process (the "Bookbuild") (the "Placing").
The Company has appointed each of UBS Limited, J.P. Morgan Securities Plc, Merrill Lynch International and J&E Davy as underwriters for the purposes of underwriting the Placing and each of UBS Limited, J.P. Morgan Securities Plc, Merrill Lynch International and J&E Davy has accepted such appointment in connection with the Placing relying on the representations and warranties and subject to the terms and conditions set out in the Placing Agreement.
The Placing Shares have been duly authorised and will, when issued, be credited as fully paid and will rank pari passu in all respects with the existing Ordinary Shares, including the right to receive all dividends and other distributions declared, made or paid in respect of the Ordinary Shares after the date of admission of the Placing Shares. The allotment and issue of the Placing Shares will be made by the Company to Placees in consideration for the delivery to the Company of certain shares in a Jersey incorporated subsidiary of the Company by UBS Limited.
The Placing Shares will be issued free of any pre-emption rights, encumbrances, liens or other security interests.
As part of the Placing, the Company has agreed that it will not issue or sell any Ordinary Shares for a period of 90 days after Admission, without the prior consent of the Joint Bookrunners. This agreement is subject to customary exceptions and waivers and does not prevent the Company from issuing Placing Shares in accordance with the terms of the Placing.
Application for listing and admission to trading
Application will be made to (i) the FCA for admission of the Placing Shares to the premium listing segment of the Official List of the UK Listing Authority (the "UKLA") and to the London Stock Exchange plc (the "London Stock Exchange") for admission of the Placing Shares to trading on its main market for listed securities, and (ii) the Irish Stock Exchange for admission of the Placing Shares to a secondary listing on the Irish Stock Exchange and for admission of the Placing Shares to trading on its Main Securities Market ("MSM") (together, "Admission"). It is expected that Admission will become effective on or around 5 February 2015 and that dealings in the Placing Shares will commence at that time.
Bookbuild
The Joint Bookrunners will today commence 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.
Participation in, and principal terms of, the Placing
1. UBS Limited is acting as Sole Global Coordinator and UBS Limited, J.P. Morgan Securities Plc, Merrill Lynch International and J&E Davy are acting as bookrunners and as agents of the Company in connection with the Placing.
2. Participation in the Placing will only be available to persons who may lawfully be, and are, invited to participate by the Joint Bookrunners. The Joint Bookrunners and their respective Affiliates are each entitled to enter bids in the Bookbuild as principal.
3. The Bookbuild will establish a single price payable to the Joint Bookrunners by all Placees whose bids are successful (the "Placing Price"). The Placing Price and the number of Placing Shares to be issued will be agreed between the Joint Bookrunners and the Company following completion of the Bookbuild. Any discount to the market price of the Ordinary Shares will be determined in accordance with the Listing Rules of the FCA. The Placing Price and the number of Placing Shares will be announced on a Regulatory Information Service ("RIS") following the completion of the Bookbuild (the "Pricing Announcement").
4. To bid in the Bookbuild, prospective Placees should communicate their bid by telephone or writing to their usual sales or equity capital markets contact at any of the Joint Bookrunners. Each bid must be in Sterling and should state the number of Placing Shares which the prospective Placee wishes to subscribe for at either the Placing Price, which is ultimately established by the Company and the Joint Bookrunners, or at prices up to a price limit specified in its bid. Prior to the closing of the Bookbuild, prospective Placees may elect to settle their allocation in Euros. The Euro Placing Price will be contained in the Term Sheet (as defined below) and provided to Placees at the time of communicating allocations. The Euro Placing Price will be based on the WM/Reuters mid-point Euro/Sterling exchange rate at the first hourly fixing time after the closing of the Bookbuild. Bids may be scaled down by the Joint Bookrunners on the basis referred to in paragraph 9 below.
5. A bid in the Bookbuild will be made on the terms and subject to the conditions in this Announcement and will be legally binding on the prospective Placee on behalf of which it is made and, except with the Joint Bookrunners' consent, will not be capable of variation or revocation after the time at which it is submitted. Each prospective Placee will have an immediate, separate, irrevocable and binding obligation owed to the Joint Bookrunners to pay to them (or as the Joint Bookrunners may direct) in cleared funds (in Sterling or, if previously elected, Euros) at the time set out in paragraph 11, an amount equal to the product of the Placing Price and the number of Placing Shares such prospective Placee has agreed to subscribe for and the Company has agreed to allot and issue to that Placee. Each prospective Placee's obligations will be owed to the Company and the Joint Bookrunners. The Company shall allot such Placing Shares to each Placee following each Placee's payment to the relevant Bookrunner of such amount.
6. The Bookbuild is expected to close no later than 4.30 p.m. (London time) on 2 February 2015 but may be closed earlier or later at the discretion of the Joint Bookrunners and the Company. The Joint Bookrunners may, in their absolute discretion, accept bids that are received after the Bookbuild has closed.
7. Each prospective Placee's allocation will be determined by the Joint Bookrunners and the Company in their sole discretion and each Placee's allocation and, if relevant, the Euro Placing Price, will be confirmed orally by one of the Joint Bookrunners (as an agent of the Company) following the close of the Bookbuild and a contract note will be despatched thereafter. This oral confirmation to such prospective Placee will constitute an irrevocable legally binding commitment upon that person (who will at that point become a Placee) in favour of the Joint Bookrunners and the Company to subscribe for the number of Placing Shares allocated to it at the Placing Price on the terms and conditions set out in this Appendix and in accordance with the Company's articles of association.
8. Each Placee's allocation and commitment will be evidenced by a contract note issued to such Placee by the relevant Bookrunner. These terms and conditions will be deemed incorporated in that contract note.
9. Subject to paragraphs 4 and 5 above, the Joint Bookrunners may choose to accept bids, either in whole or in part, on the basis of allocations determined in agreement with the Company and may scale down any bids for this purpose on such basis as it may determine. The Joint Bookrunners may also, notwithstanding paragraphs 4 and 5 above and subject to the prior consent of the Company, (i) allocate Placing Shares after the time of any initial allocation to any person submitting a bid after that time and (ii) allocate Placing Shares after the Bookbuild has closed to any person submitting a bid after that time. The acceptance of offers shall be at the absolute discretion of the Joint Bookrunners.
10. Except as required by law or regulation, no press release or other announcement will be made by the Joint Bookrunners or the Company using the name of any Placee (or its agent), in its capacity as Placee (or agent), other than with such Placee's prior written consent.
11. Irrespective of the time at which a Placee's allocation pursuant to the Placing is confirmed, settlement for all Placing Shares to be subscribed for pursuant to the Placing will be required to be made at the same time, on the basis explained below under "Registration and Settlement".
12. All obligations under the Bookbuild and Placing will be subject to 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". If the Placing Agreement does not become unconditional or is terminated, the Placing will not proceed and all funds delivered by a Placee as consideration for Placing Shares will be returned.
13. By participating in the Bookbuild, each Placee will agree that its rights and obligations in respect of the Placing will terminate only in the circumstances described below and will not be capable of rescission or termination by the Placee.
14. To the fullest extent permissible by law, none of the Joint Bookrunners nor the Company nor any of their Affiliates shall have any responsibility or liability to Placee (or to any other person whether acting on behalf of a Placee or otherwise). In particular, none of the Joint Bookrunners nor the Company nor any of their Affiliates shall have any responsibility or liability (including to the fullest extent permissible by law, any fiduciary duties) in respect of the Joint Bookrunners' conduct of the Bookbuild or of such alternative method of effecting the Placing as the Joint Bookrunners and the Company may agree.
Conditions of the Placing
The Placing is conditional upon the Placing Agreement becoming unconditional and not having been terminated in accordance with its terms. The obligations of each of the Joint Bookrunners under the Placing Agreement are conditional on, amongst other things:
1. the execution and delivery of the term sheet setting out the Placing Price (including the Euro Placing Price) by the Joint Bookrunners and the Company at the time of pricing of the Placing (the "Term Sheet");
2. the representations, warranties and undertakings set out in the Placing Agreement being true, accurate and complete as of the date of the Placing Agreement, the time of execution of the Term Sheet and at Admission;
3. the Company having complied with all of the agreements and undertakings and satisfied or performed all of the conditions and obligations on its part to be performed or satisfied under the Placing Agreement on or before Admission;
4. Admission having occurred by 8.00 a.m. (London time) on 5 February 2015 (or such later date as the Company and the Joint Bookrunners may determine); and
5. the Company allotting, subject only to Admission, the Placing Shares in accordance with the Placing Agreement.
If (i) any of the conditions contained in the Placing Agreement are not fulfilled or, where permitted, waived by the Joint Bookrunners by the time and/or date specified (or such later time and/or date as the Company and each of the Joint Bookrunners may agree), or (ii) the Placing Agreement is terminated in the circumstances specified below, the Placing will not proceed and each 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. Any such waiver by the Joint Bookrunners will not affect Placees' commitments as set out in this Announcement.
The Joint Bookrunners may, at their discretion and upon such terms as they think fit, extend the time for the satisfaction of any condition or waive compliance by the Company with the whole or any part of any of the Company's obligations in relation to the conditions in the Placing Agreement, save that the condition in the Placing Agreement relating to Admission taking place may not be waived. Any such extension or waiver will not affect Placees' commitments as set out in this Announcement.
None of the Joint Bookrunners, the Company or any of their respective Affiliates or any other person shall have any responsibility or liability to any Placee (or to any other person whether acting on behalf of a Placee or otherwise) in respect of any decision they may make as to whether or not to waive or to extend the time and/or the date for the satisfaction of any condition to the Placing nor for any decision they may make as to the satisfaction of any condition or in respect of the Placing generally, and by participating in the Placing each Placee agrees that any such decision is within the absolute discretion of the Joint Bookrunners and the Company.
By participating in the Bookbuild, each Placee agrees that its rights and obligations hereunder terminate only in the circumstances described above and under "Termination of the Placing Agreement" below, and will not be capable of rescission or termination by the Placee.
Lock-up
The Company has agreed with the Joint Bookrunners that neither the Company nor any person controlled by the Company, nor any person acting on the Company's behalf, will, directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant for the sale of, lend or otherwise transfer or dispose of any securities of the same class as the Placing Shares or any securities convertible into or exchangeable for securities of the same class as the Placing Shares or other instruments representing interests in securities of the same class as the Placing Shares or enter into any swap or other agreement or transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of Ordinary Shares, whether any such swap or transaction is to be settled by delivery of Ordinary Shares or other securities, in cash or otherwise, in each case without the prior written consent of the Joint Bookrunners for a period beginning on the date of this Announcement and ending ninety (90) calendar days after Admission, provided that the foregoing shall not prevent or restrict the issue and offer by the Company of Placing Shares pursuant to the Placing subject to the terms of the Placing, pursuant to any share option or share incentive plan, in connection with deferred share arrangements under the Company's annual bonus plan or any scrip dividend.
Termination of the Placing Agreement
Each of the Joint Bookrunners is entitled at any time before Admission to terminate the Placing Agreement by giving notice to the Company, if, amongst other things:
1. any of the representations, warranties or undertakings is untrue, inaccurate or misleading in any respect or there has been a failure by the Company to perform any of the undertakings or agreements in the Placing Agreement, in each case that would be material in the context of the Placing, in each case that would be material in the context of the Placing;
2. it has come to the attention of any Bookrunner that any statement contained in any of the Placing Agreement, the management presentation used in connection with the marketing of the Placing and any other document or announcement issued with the written consent of the Company in connection with the Placing (together, the Placing Documents) is or has become untrue, inaccurate or misleading in any material respect, or any matter has arisen, which would, if the Placing were made at that time, constitute a material omission from the Placing Documents or a material omission from or misleading inaccuracy in, the Placing Documents, or any of them, and which the Joint Bookrunners (acting in good faith) consider to be material in the context of the Placing or the underwriting of the Placing Shares, Admission or any of the transactions contemplated by the Placing Agreement;
3. in the opinion of any Joint Bookrunner (acting in good faith), there has been, or any Joint Bookrunner has become aware of, or there has been made public, a material adverse change in, or any development reasonably likely to involve a material adverse change in or affecting, the condition, financial, operational or otherwise or in the earnings, management, business affairs, solvency, credit rating, business or financial prospects of the Group since the date of the Placing Agreement such as to make it impractical or inadvisable to proceed with the Placing;
4. the occurrence of a force majeure event as specified in the Placing Agreement which, in the opinion of any Joint Bookrunner (acting in good faith), makes it impracticable or inadvisable to proceed with the Placing; or
5. if the applications of the Company for Admission are withdrawn or refused by the UKLA, the London Stock Exchange or the Irish Stock Exchange or the listing or trading in any ordinary shares has been suspended or limited by the UKLA, the London Stock Exchange or the Irish Stock Exchange or any exchange or over-the-counter market or trading generally on the New York Stock Exchange, the NASDAQ National Market, the London Stock Exchange or the Irish Stock Exchange have been suspended or limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by any of the said exchanges or by such system or by order of the regulatory authorities of the United States, the United Kingdom or any other governmental or self-regulatory authority, or a material disruption has occurred in commercial banking or shares settlement or clearance services in the United Kingdom, Ireland, the United States or in Europe.
Upon such notice being given, the parties to the Placing Agreement shall be released and discharged (except for any liability arising before or in relation to such termination) from their respective obligations under, or pursuant to, the Placing Agreement, subject to certain exceptions.
By participating in the Placing, Placees agree that the exercise by the Joint Bookrunners of any right of termination or other discretion under the Placing Agreement shall be within the absolute discretion of the Joint Bookrunners and that the Joint Bookrunners do not need to make any reference to Placees and that the Joint Bookrunners shall not have any 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 prepared or submitted to be approved by the FCA or the Central Bank of Ireland (or other authority) in relation to the Placing, and Placees' commitments will be made solely on the basis of publicly available information taken together with the information contained in this Announcement and the transaction announcement (the "Transaction Announcement") released by the Company today, and any Exchange Information (as defined above) previously published by or on behalf of the Company simultaneously with or prior to the date of this Announcement and subject to the further terms set forth in the 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 and the publicly available information released by or on behalf of the Company 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 (other than publicly available information) or the Joint Bookrunners or their respective Affiliates or any other person and none of the Joint Bookrunners nor the Company nor any of their respective Affiliates nor any other person will be liable for any Placee's decision to participate in the Placing based on any other information, representation, warranty or statement which the Placees may have obtained or received (regardless of whether or not such information, representation, warranty or statement was given or made by or on behalf of any such persons). Each Placee acknowledges and agrees that it has relied on its own investigation of the business, financial or other position of the Company in accepting a participation in the Placing. Nothing in this paragraph shall exclude or limit the liability of any person for fraudulent misrepresentation by that person.
Registration and settlement
Settlement of transactions in the Placing Shares (ISIN: IE0001827041) following Admission will take place within the system administered by Euroclear UK & Ireland Limited ("CREST"), using the delivery versus payment mechanism, 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 in certificated form if, in the Joint Bookrunners' opinion, delivery or settlement is not possible or practicable within the CREST system within the timetable set out in this Announcement or would not be consistent with the regulatory requirements in the Placee's jurisdiction.
Following the close of the Bookbuild for the Placing, each Placee allocated Placing Shares in the Placing will be sent a contract note stating the number of Placing Shares to be allocated to it at the Placing Price and, if relevant, the Euro Placing Price, the aggregate amount owed by such Placee to the relevant Bookrunner and settlement instructions. Placees should settle against CREST ID: 784 for J.P. Morgan Securities Plc, CREST ID: 686 for Merrill Lynch International, CREST ID: OMUAA for UBS Limited and CREST ID: 189 for J&E Davy. It is expected that such contract note will be despatched on 2 February 2015 and that this will also be the trade date.
Each Placee agrees that it will do all things necessary to ensure that delivery and payment is completed in accordance with either the standing CREST or certificated settlement instructions that it has in place with the relevant Bookrunner.
The Company will deliver the Placing Shares to a CREST account operated by UBS Limited as agent for the Company and UBS Limited will enter its delivery (DEL) instruction into the CREST system. UBS Limited will hold any Placing Shares delivered to this account as nominee for the Placees. The input to CREST by a Placee of a matching or acceptance instruction will then allow delivery of the relevant Placing Shares to that Placee against payment.
It is expected that settlement will be on 5 February 2015 on a T + 3 basis in accordance with the instructions given to the relevant Bookrunner.
Interest is chargeable daily on payments not received from Placees on the due date in accordance with the arrangements set out above at the rate of two percentage points above LIBOR as determined by the relevant Bookrunner.
Each Placee agrees that, if it does not comply with these obligations, the relevant Bookrunner 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 shall be required to bear any stamp duty, stamp duty reserve tax or other stamp, securities, transfer, registration, execution, documentary or other similar impost, duty or tax (together with any interest or penalties) which may arise upon the sale of such Placing Shares 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 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 to as provided below, be so registered free from any liability to UK or Irish stamp duty or UK stamp duty reserve tax. If there are any circumstances in which any other stamp duty or stamp duty reserve tax (together with interest and penalties) is payable in respect of the issue of the Placing Shares, neither the Joint Bookrunners nor the Company shall be responsible for the payment thereof.
Representations and warranties
By participating in the Placing each Placee (and any person acting on such Placee's behalf) irrevocably acknowledges, confirms, undertakes, represents, warrants and agrees (as the case may be) with the Joint Bookrunners (in their capacity as underwriters of the Placing Shares and joint bookrunners and placing agents of the Company in respect of the Placing) and the Company, in each case as a fundamental term of its application for Placing Shares, the following:
1. it has read and understood this Announcement, including this Appendix, and the Transaction Announcement, in their entirety and that its subscription for and purchase of Placing Shares is subject to and based upon all the terms, conditions, representations, warranties, indemnities, acknowledgements, agreements and undertakings and other information contained herein and undertakes not to redistribute or duplicate this Announcement and that it has not relied on, and will not rely on, any information given or any representations, warranties or statements made at any time by any person in connection with Admission, the Placing, the Company, the Placing Shares or otherwise;
2. that no offering document or prospectus or admission document has been or will be prepared in connection with the Placing or is required under the Prospectus Directive and it has not received and will not receive a prospectus, admission document or other offering document in connection with the Bookbuild, the Placing or the Placing Shares;
3. that the Ordinary Shares are listed on the premium listing segment of the Official List of the UKLA, have a secondary listing on the Irish Stock Exchange and admitted to trading on the main market of the London Stock Exchange and the regulated market for listed securities of the Irish Stock Exchange, and that the Company is therefore required to publish certain business and financial information in accordance with the rules and practices of the FCA and the Irish Stock Exchange (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 similar statements for preceding financial years and that it has reviewed such Exchange Information and that it is able to obtain or access such Exchange Information, or comparable information concerning any other publicly traded company, without delay;
4. that none of the Joint Bookrunners nor the Company nor any of their respective Affiliates nor any person acting on behalf of any of them has provided, and none of them will provide, it with any material or information regarding the Placing Shares, the Placing or the Company or any other person other than this Announcement, nor has it requested any of the Joint Bookrunners, the Company, or any of their respective Affiliates nor any person acting on behalf of any of them to provide it with any such material or information;
5. unless otherwise specifically agreed with the Joint Bookrunners, that it is not, and at the time the Placing Shares are acquired, neither it nor the beneficial owner of the Placing Shares will be, a resident of a Restricted Territory or any other jurisdiction in which it would be unlawful to make or accept an offer to acquire the Placing Shares, and further acknowledges that the Placing Shares have not been and will not be registered or otherwise qualified, for offer and sale nor will an offering document, prospectus or admission document be cleared or approved in respect of any of the Placing Shares under the securities legislation of the United States, or any other Restricted Territory and, subject to certain exceptions, may not be offered, sold, transferred, delivered or distributed, directly or indirectly, in or into those jurisdictions or in any country or jurisdiction where any such action for that purpose is required;
6. if a resident of South Africa, it has sought independent advice regarding any permissions that may be required of the Exchange Control Division of the SARB with regard to the subscription for Placing Shares by it and acknowledges that, to the extent that Placing Shares are offered for subscription, acquisition or sale in South Africa, such offer is being effected in terms of section 144 of the South African Companies Act and does not constitute an offer to the public or any sector of the public within the meaning of the South African Companies Act;
7. if resident in Australia, it is a professional investor, as defined in section 9 below and for the purposes of section 708(11) of the Corporations Act 2001 (Cth) of Australia, or the minimum amount to be paid by it for the Placing Shares to be subscribed for by it will be not less than AUD500,000;
8. if resident in Australia, it is not acquiring the Placing Shares for the purpose of resale, transfer or the granting, issuing or transferring interests in, or options over them and will not offer any Placing Shares for resale in Australia within 12 months of any such Placing Shares being issued to it unless the resale offer is exempt from the requirement to issue a disclosure document under section 708 of the Corporations Act 2001 (Cth) of Australia;
9. that the Placing Shares have not been and will not be qualified by a prospectus under Canadian Securities Laws and if it is resident in Canada, it is resident in Ontario or Quebec and are an "accredited investor" and a "permitted client" pursuant to Canadian securities laws; it is entitled to purchase the Placing Shares in the Placing pursuant to the terms of the Placing in accordance with all applicable Canadian laws (including the securities laws of all relevant provinces); where required by law, it is purchasing as principal, or are deemed to be purchasing as principal in accordance with applicable securities laws of the province in which it is resident, for its own account and not as agent for the benefit of another person; it is not a person created or used solely to purchase or hold securities as an "accredited Investor" as described in paragraph (m) of the definition of "accredited Investor" in section 1.1 of NI 45 106; it acknowledges that any Placing Shares subscribed for are restricted securities in Canada and any resale of the Placing Shares must be made in accordance with applicable Canadian securities laws; it further acknowledges that the Company may disclose certain personal information pertaining to it to the relevant Canadian securities regulatory authorities and this information may become public under Canadian law and it consents to such disclosure; if resident in Quebec, it confirms that it has expressly requested that all documents evidencing or relating in any way to the sale of the Placing Shares described herein (including for greater certainty any purchase confirmation or any notice) be drawn up in the English language only;
10. that the content of this Announcement is exclusively the responsibility of the Company and that none of the Joint Bookrunners nor any of their respective Affiliates nor any person acting on their behalf has or shall have any responsibility or liability for any information, representation or statement contained in this Announcement or any information previously or subsequently published by or on behalf of the Company, including, without limitation, any Exchange Information, and will not be liable for any Placee's decision to participate in the Placing based on any information, representation or statement contained in this Announcement or any information previously published by or on behalf of the Company or otherwise. Each Placee further represents, warrants and agrees that the only information on which it is entitled to rely and on which such Placee has relied in committing itself to subscribe for the Placing Shares is contained in this Announcement and any 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 investigations, representations, warranties or statements made by the Joint Bookrunners or the Company and none of the Joint Bookrunners nor the Company 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 and that none of the Joint Bookrunners nor any of their Affiliates have made any representations to it, express or implied, with respect to the Company, the Placing and the Placing Shares or the accuracy, completeness or adequacy of the Exchange Information, and each of them expressly disclaims any liability in respect thereof. Nothing in this paragraph or otherwise in this Announcement excludes the liability of any person for fraudulent misrepresentation made by that person;
11. that it has not relied on any information relating to the Company contained in any research reports prepared by any of the Joint Bookrunners, any of their respective Affiliates or any person acting on the Joint Bookrunners' or any of their Affiliates' behalf and understands that (i) none of the Joint Bookrunners, any of their Affiliates nor any person acting on their behalf has or shall have any liability for public information or any representation; (ii) none of the Joint Bookrunners, any of their Affiliates nor any person acting on their behalf has or shall have any liability for any additional information that has otherwise been made available to such Placee, whether at the date of publication, the date of this document or otherwise; and that (iii) none of the Joint Bookrunners, any of their Affiliates nor any person acting on their behalf makes any representation or warranty, express or implied, as to the truth, accuracy or completeness of such information, whether at the date of publication, the date of this Announcement or otherwise;
12. that the allocation, allotment, issue and delivery to it, or the person specified by it for registration as holder, of Placing Shares will not give rise to a liability under any of sections 67, 70, 93 or 96 of the Finance Act 1986 (depositary receipts and clearance services) and that it is not participating in the Placing as nominee or agent for any person to whom the allocation, allotment, issue or delivery of the Placing Shares would give rise to such a liability and that the Placing Shares are not being acquired in connection with arrangements to issue depositary receipts or to issue or transfer Placing Shares into a clearance service;
13. acknowledges that no action has been or will be taken by the Company, the Joint Bookrunners or any person acting on behalf of the Company or the Joint Bookrunners that would, or is intended to, permit a public offer of the Placing Shares in any country or jurisdiction where any such action for that purpose is required;
14. that it and any person acting on its behalf is entitled to acquire the Placing Shares under the laws of all relevant jurisdictions which apply to it and that it has fully observed such laws and obtained all such governmental and other guarantees, permits, authorisations, approvals and consents which may be required thereunder and complied with all necessary formalities and that it has not taken any action or omitted to take any action which will or may result in the Joint Bookrunners, the Company or any of their respective Affiliates acting in breach of the legal or regulatory requirements of any jurisdiction in connection with the Placing;
15. that it has all necessary capacity and has obtained all necessary consents and authorities to enable it to commit to its participation in the Placing and to perform its obligations in relation thereto (including, without limitation, in the case of any person on whose behalf it is acting, all necessary consents and authorities to agree to the terms set out or referred to in this Announcement) and will honour such obligations;
16. that it has complied with its obligations under the Criminal Justice Act 1993, section 118 of the Financial Services and Markets Act 2000, as amended (the "FSMA"), and in connection with money laundering and terrorist financing under the Proceeds of Crime Act 2002 (as amended), the Terrorism Act 2000, the Terrorism Act 2006, the Money Laundering Regulations 2007 (the "Regulations") and the Money Laundering Sourcebook of the FCA and, if making payment on behalf of a third party, that satisfactory evidence has been obtained and recorded by it to verify the identity of the third party as required by the Regulations. If within a reasonable time after a request for verification of identity, the Joint Bookrunners has not received such satisfactory evidence, the Joint Bookrunners may, in their absolute discretion, terminate the Placee's Placing Participation in which event all funds delivered by the Placee to the Joint Bookrunners will be returned without interest to the account of the drawee bank or CREST account from which they were originally debited;
17. that it is acting as principal only in respect of the Placing or, if it is acting for any other person: (i) it is duly authorised to do so and has full power to make, and does make, the acknowledgments, representations and agreements herein on behalf of each such person; and (ii) it is and will remain liable to the Joint Bookrunners and the Company for the performance of all its obligations as a Placee in respect of the Placing (regardless of the fact that it is acting for another person);
18. if in a Member State of the EEA, that it is a "Qualified Investor" within the meaning of Article 2(1)(e) of the Prospectus Directive;
19. if in the United Kingdom, that it is a person (i) having professional experience in matters relating to investments who falls within the definition of "investment professional" in Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (the "Order") or (ii) who falls within Article 49(2)(a) to (d) ("High Net Worth Companies, Unincorporated Associations, etc") of the Order or (iii) to whom this Announcement may otherwise lawfully be communicated and it undertakes that it will acquire, hold, manage and (if applicable) dispose of any Placing Shares that are allocated to it for the purposes of its business only;
20. that it will not distribute, transfer or otherwise transmit this Announcement or any part of it, or any other presentation or other materials concerning the Placing, in or into the United States (including electronic copies thereof) to any person, and it has not distributed, forwarded, transferred or otherwise transmitted any such materials to any person;
21. where it is acquiring the Placing Shares for one or more managed accounts, it represents, warrants and undertakes that it is authorised in writing by each managed account to acquire the Placing Shares for each managed account and it has full power to make the acknowledgements, representations and agreements herein on behalf of each such account;
22. that if it is a pension fund or investment company, it represents, warrants and undertakes that its acquisition of Placing Shares is in full compliance with applicable laws and regulations;
23. if it is acting as a financial intermediary, as that term is used in Article 3(2) of the Prospectus Directive, that the Placing Shares subscribed for by it in the Placing will not be subscribed for on a non-discretionary basis on behalf of, nor will they be subscribed for with a view to their offer or resale to, persons in a member state of the EEA other than Qualified Investors, or in circumstances in which the prior consent of the Joint Bookrunners has been given to the proposed offer or resale;
24. that it has not offered or sold and, prior to the expiry of a period of six months from Admission, will not offer or sell any Placing Shares to persons in the United Kingdom, except to Qualified Investors 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 FSMA;
25. that any offer of Placing Shares may only be directed at persons in member states of the EEA who are Qualified Investors and represents, warrants and undertakes that it has not offered or sold and will not offer or sell any Placing Shares to persons in the EEA prior to Admission except to Qualified Investors or otherwise in circumstances which have not resulted in and which will not result in an offer to the public in any member state of the EEA within the meaning of the Prospectus Directive (including any relevant implementing measure in any member state);
26. that 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;
27. that it has complied and will comply with all applicable laws (including all relevant provisions of the FSMA) with respect to anything done by it in relation to the Placing Shares in respect of anything done in, from or otherwise involving, the United Kingdom;
28. if it has received any confidential price sensitive information about the Company in advance of the Placing, it has not: (i) dealt in the securities of the Company; (ii) encouraged or required another person to deal in the securities of the Company; or (iii) disclosed such information to any person, prior to the information being made publicly available;
29. that (i) it (and any person acting on its behalf) has capacity and authority and is otherwise entitled to subscribe for and purchase the Placing Shares under the laws of all relevant jurisdictions which apply to it; (ii) it has paid any issue, transfer or other taxes due in connection with its participation in any territory; (iii) it has not taken any action which will or may result in the Company, the Joint Bookrunners, any of their Affiliates or any person acting on their behalf being in breach of the legal and/or regulatory requirements and/or any anti money laundering requirements of any territory in connection with the Placing and (iv) that the subscription for and purchase of the Placing Shares by it or any person acting on its behalf will be in compliance with applicable laws and regulations in the jurisdiction of its residence, the residence of the Company, or otherwise;
30. that it (and any person acting on its behalf) will make payment for the Placing Shares allocated to it in accordance with this Announcement on the due time and date set out herein against delivery of such Placing Shares to it, failing which the relevant Placing Shares may be placed with other Placees or sold as the Joint Bookrunners may in their absolute discretion determine and without liability to such Placee. It will, however, remain liable for any shortfall below the net proceeds of such sale and the placing proceeds of such Placing Shares and may be required to bear any stamp duty or stamp duty reserve tax (together with any interest 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;
31. that its allocation (if any) of Placing Shares will represent a maximum number of Placing Shares to which it will be entitled, and required, to subscribe for, and that the Joint Bookrunners or the Company may call upon it to subscribe for a lower number of Placing Shares (if any), but in no event in aggregate more than the aforementioned maximum;
32. that none of the Joint Bookrunners nor any of its Affiliates nor any person acting on their behalf, is making any recommendations to it, or advising it regarding the suitability or merits of any transactions it may enter into in connection with the Placing and that participation in the Placing is on the basis that it is not and will not be a client of the Joint Bookrunners and that the Joint Bookrunners do not have any duties or responsibilities to it for providing the protections afforded to their respective clients or customers or for providing advice in relation to the Placing nor in respect of any representations, warranties, undertakings or indemnities contained in the Placing Agreement nor for the exercise or performance of any of the Joint Bookrunners' rights and obligations thereunder including any rights to waive or vary any conditions or exercise any termination right;
33. that 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. None of the Joint Bookrunners nor the Company will be responsible for any liability to stamp duty or stamp duty reserve tax or other similar duties or taxes (together with any interest or penalties) resulting from a failure to observe this requirement. Each Placee and any person acting on behalf of such Placee agrees to indemnify each of the Joint Bookrunners, the Company and any of their respective Affiliates in respect of the same on an after-tax basis on the basis that the Placing Shares will be allotted to the CREST stock account of UBS who will hold them as nominee on behalf of such Placee until settlement in accordance with its standing settlement instructions;
34. that 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 Joint Bookrunners or the Company in any jurisdiction in which the relevant Placee is incorporated or in which any of its securities have a quotation on a recognised stock exchange;
35. that each of the Joint Bookrunners, the Company and their respective Affiliates and others will rely upon the truth and accuracy of the representations, warranties, agreements, undertakings and acknowledgements set forth herein and which are given to each of the Joint Bookrunners on their own behalf and on behalf of the Company and are irrevocable and it irrevocably authorises each of the Joint Bookrunners and the Company to produce this Announcement, pursuant to, in connection with, or as may be required by any applicable law or regulation, administrative or legal proceeding or official inquiry with respect to the matters set forth herein;
36. that it will indemnify on an after-tax basis and hold each of the Joint Bookrunners, the Company and their respective Affiliates and any person acting on their behalf harmless from any and all costs, claims, liabilities and expenses (including legal fees and expenses) arising out of or in connection with any breach of the representations, warranties, acknowledgements, agreements and undertakings in this Appendix and further agrees that the provisions of this Appendix shall survive after completion of the Placing;
37. acknowledges that it irrevocably appoints any director of the Joint Bookrunners as its agent for the purposes of executing and delivering to the Company and/or its registrars any documents on its behalf necessary to enable it to be registered as the holder of any of the Placing Shares agreed to be taken up by it under the Placing;
38. that it acknowledges that its commitment to subscribe for Placing Shares on the terms set out herein and in the contract note will continue notwithstanding any amendment that may in future be made to the terms and conditions of the Placing and that Placees will have no right to be consulted or require that their consent be obtained with respect to the Company's or the Joint Bookrunners' conduct of the Placing;
39. that in making any decision to subscribe for the Placing Shares (i) it has sufficient knowledge, sophistication and experience in financial, business and international investment matters as is required to evaluate the merits and risks of subscribing for or purchasing the Placing Shares, (ii) 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 participating in, and is able to sustain a complete loss in connection with, the Placing, (iii) it has relied on its own examination, due diligence and analysis of the Company and its Affiliates taken as a whole, including the markets in which the Group operates, and the terms of the Placing, including the merits and risks involved and not upon any view expressed or information provided by or on behalf of the Joint Bookrunners, (iv) it has had sufficient time to consider and conduct its own investigation with respect to the offer and purchase of the Placing Shares, including the legal, regulatory, tax, business, currency and other economic and financial considerations relevant to such investment, and (v) it will not look to the Company, the Joint Bookrunners, any of their respective Affiliates or any person acting on their behalf for all or part of any such loss or losses it or they may suffer;
40. acknowledges and agrees that the Joint Bookrunners do not owe any fiduciary or other duties to it or any Placee in respect of any representations, warranties, undertakings or indemnities in the Placing Agreement;
41. understands and agrees that it may not rely on any investigation that the Joint Bookrunners or any person acting on its behalf may or may not have conducted with respect to the Company and its Affiliates or the Placing and each of the Joint Bookrunners has not made any representation or warranty to it, express or implied, with respect to the merits of the Placing, the subscription for or purchase of the Placing Shares, or as to the condition, financial or otherwise, of the Company and its Affiliates, or as to any other matter relating thereto, and nothing herein shall be construed as a recommendation to it to subscribe for the Placing Shares. It acknowledges and agrees that no information has been prepared by, or is the responsibility of, the Joint Bookrunners for the purposes of this Placing;
42. acknowledges and agrees that it will not hold the Joint Bookrunners or any of their 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 Group or information made available (whether in written or oral form) relating to the Group (the "Information") and that none of the Joint Bookrunners or any person acting on behalf of the Joint Bookrunners, 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;
43. that in connection with the Placing, any of the Joint Bookrunners and any of their Affiliates acting as an investor for its own account may take up shares in the Company and in that capacity may retain, purchase or sell for its own account such shares in the Company and any securities of the Company or related investments and may offer or sell such securities or other investments otherwise than in connection with the Placing. Accordingly, references in this Announcement to shares being issued, offered or placed should be read as including any issue, offering or placement of such shares in the Company to any of the Joint Bookrunners and any of their Affiliates acting in such capacity. In addition each of the Joint Bookrunners may enter into financing arrangements and swaps with investors in connection with which the Joint Bookrunners may from time to time acquire, hold or dispose of such securities of the Company, including the Placing Shares. None of the Joint Bookrunners or any of their Affiliates intend to disclose the extent of any such investment or transactions otherwise than in accordance with any legal or regulatory obligation to do so;
44. if in South Africa, it will directly subscribe for the Placing Shares and the amount payable by it will be more than ZAR100,000 (approximately £9,000) and warrants and represents that it is (a) a bank registered or provisionally registered in terms of the Joint Bookrunners Act 1990 (Act No 94 of 1990) or (b) a mutual bank registered or provisionally registered in terms of the Mutual Joint Bookrunners Act 1993 (Act No 124 of 1993) or (c) a long term insurer as defined in the Short term Insurance Act 1998 (Act No 53 of 1998) and in each case is acting as principal and the wholly owned subsidiaries of such entities will also fall within the exemption when they act as agent in the capacity of authorised portfolio manager for a pension fund registered in terms of the Pension Funds Act 1956 (Act No 24 of 1956), or as manager for a collective investment scheme registered in terms of the Collective Investment Schemes Control Act 2002 (Act No 45 of 2002);
45. acknowledges that (i) the Placing Shares have not been and will not be registered under the Securities Act or under the securities laws of any state or other jurisdiction of the United States, nor approved or disapproved by the US Securities and Exchange Commission, any state securities commission in the United States or any other United States regulatory authority; (ii) the Placing Shares are being offered and sold pursuant to Regulation S to non-US persons only (within the meaning of Regulation S) or in a transaction exempt from or not subject to the registration requirements under the Securities Act and (iii) the Placing Shares may not be reoffered, resold, pledged or otherwise transferred except in transactions not requiring registration under the Securities Act;
46. represents and warrants that unless it is a QIB who is an IAI in the United States to whom the Placing Shares will be offered on a private placement basis (a) it is not, and is not acting for the account or benefit of, a US person (within the meaning of Regulation S), and each of it and each beneficial owner of the Placing Shares for whom it is acting is and at the time the Placing Shares are acquired will be, located outside the United States and is and will be acquiring the Placing Shares in an "offshore transaction" as defined in, and in accordance with, Regulation S and (b) it will not offer or sell, directly or indirectly, any of the Placing Shares except in an "offshore transaction" in accordance with Regulation S or in the United States pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act; and
47. that it is not acquiring any of the Placing Shares as a result of any form of general solicitation or general advertising (within the meaning of Rule 502(c) of Regulation D under the Securities Act) or it is located outside the United States and it is not acquiring any of the Placing Shares as a result of any form of directed selling efforts (as defined in Regulation S).
Additional representations and warranties from investors located in the United States
In addition to the foregoing, by participating in the Placing, each Placee (and any person acting on such Placee's behalf) who is located in the United States subscribing for Placing Shares being offered under a relevant exemption from the registration requirements of the Securities Act represents and warrants:
48. it (and any account for which it is purchasing) is a "qualified institutional buyer" within the meaning of Rule 144A under the Securities Act (a "QIB") who is also an IAI;
49. that it is acquiring the Placing Shares for its own account (or for an account as to which it exercises sole investment discretion and it has authority to make, and does make, the acknowledgements, agreements, representations, undertakings and warranties contained herein on behalf of each such account) for investment purposes;
50. it (and any account for which it is purchasing) is not acquiring the Placing Shares with a view to any offer, sale or distribution thereof, or resale in connection with the distribution thereof, within the meaning of the Securities Act, except in accordance with the provisions of clause 55.
51. that the Placing Shares or any other securities of the Company have not been, and will not be, registered under the Securities Act or with any state or other jurisdiction of the United States and that the Placing Shares or any other securities of the Company may not be offered or sold, directly or indirectly, in the United States absent registration under the Securities Act, or any available 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;
52. that the Placing Shares may not be reoffered, resold, pledged or otherwise transferred by it except (i) outside the United States in an offshore transaction pursuant to Rule 903 or 904 of Regulation S (and not in a pre-arranged transaction resulting in the resale of the Placing Shares into the United States), or (ii) pursuant to another available exemption, if any, from registration under the Securities Act, in each case in compliance with all applicable securities laws of the states of the United States and other jurisdictions;
53. that (a) the Placing Shares offered and sold in the United States are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, and (b) it understands that the Placing Shares are expected to be issued to it through CREST but may be issued to it in certificated, definitive form and acknowledges and agrees that the Placing Shares will, to the extent they are delivered in certificated form, bear a legend to the following effect unless agreed otherwise with the Company:
"THESE SECURITIES HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER THE APPLICABLE SECURITIES LAWS OR WITH ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES, AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, OR (B) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES. THESE SECURITIES MAY NOT BE DEPOSITED INTO THE COMPANY'S DEPOSITARY RECEIPT FACILITY UNLESS AND UNTIL SUCH TIME AS THESE SECURITIES ARE NO LONGER "RESTRICTED SECURITIES" WITHIN THE MEANING RULE 144(a)(3) UNDER THE SECURITIES ACT. EACH HOLDER, BY ITS ACCEPTANCE OF THESE SHARES, REPRESENTS THAT IT UNDERSTANDS AND AGREES TO THE FOREGOING RESTRICTIONS."
54. that it acknowledges that the Company may be a passive foreign investment company ("PFIC") for US federal income tax purposes, and it could be a PFIC in future years. The Company has not undertaken an extensive PFIC analysis. If the Company is a PFIC, then US investors subject to US federal income tax may be subject to adverse US tax consequences in respect of their investment in the Company's shares. Such investors may be able to mitigate these adverse US tax consequences by making certain elections for US tax purposes;
55. That (i) it will notify any transferee to whom it subsequently reoffers, resells, pledges or otherwise transfers the Placing Shares or the foregoing restrictions on transfer (ii) prior to any such disposal of the Placing Shares conducted in reliance on clause 52(ii) above, will (a) furnish to the Company or its designee, if the Company so requests, an opinion of counsel experienced in securities law matters to such effect and such other documents as the Company may require (including a letter from the purchaser substantially in the form of the US Investor Letter (Schedule 3 of the Placing Agreement) (the "US Investor Letter") and (b) provide notice of the transfer restrictions laid out in the US Investor Letter to any subsequent transferee and (ii) it agrees not to reoffer, resell, pledge or otherwise transfer the Placing Shares or any beneficial interest therein, to any person except to a person that meets all of the requirements laid out herein and in the Placing Agreement and agrees not to subsequently transfer the Placing Shares or any beneficial interest therein except in accordance with the transfer restrictions laid out herein and in the Placing Agreement, including the US Investor Letter;
56. that so long as the Placing Shares are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, it will segregate such Placing Shares from any other shares in the Company that it holds that are not restricted securities and will not deposit the Placing Shares into any unrestricted depositary receipt facility maintained by any depositary bank in respect of the Company's Ordinary Shares and will only transfer such Placing Shares in accordance with the foregoing restrictions; and
57. that no representation has been made as to the availability of the exemption provided by Rule 144, Rule 144A or any other exemption under the Securities Act for the reoffer, resale, pledge or transfer of the Placing Shares.
The foregoing acknowledgements, agreements, undertakings, representations, warranties and confirmations are given for the benefit of the Company as well as each of the Joint Bookrunners (for their own benefit and, where relevant, the benefit of their respective Affiliates and any person acting on their behalf) and are irrevocable. Each Placee, and any person acting on behalf of a Placee, acknowledges that the Joint Bookrunners do not owe any fiduciary or other duties to any Placee in respect of any representations, warranties, undertakings or indemnities in the Placing Agreement.
Please also note that the agreement to allot and issue Placing Shares to Placees (or the persons for whom Placees are contracting as agent) free of stamp duty and stamp duty reserve tax in the UK relates only to their allotment and issue to Placees, or such persons as they nominate as their agents, direct from the Company for the Placing Shares in question.
Such agreement also assumes, and is based on a warranty from each Placee, that the Placing Shares are not being acquired in connection with arrangements to issue depositary receipts or to issue or transfer the Placing Shares into a clearance service. None of the Joint Bookrunners nor the Company are liable to bear any stamp duty or stamp duty reserve tax or any other similar duties or taxes (transfer taxes) that arise on a sale of Placing Shares if there are any such arrangements, or any arrangements that arise subsequent to their acquisition by Placees or for transfer taxes arising otherwise than under the laws of the United Kingdom. Each Placee should, therefore, take its own advice as to whether any such transfer tax liability arises. Furthermore, each Placee agrees to indemnify on an after-tax basis and hold each of the Joint Bookrunners and/or the Company and their respective Affiliates harmless from any and all interest, fines or penalties in relation to transfer 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 and any person acting on behalf of each Placee acknowledges and agrees that each Bookrunner or any of their Affiliates may, at their absolute discretion, agree to become a Placee in respect of some or all of the Placing Shares. Each Placee acknowledges and is aware that the Bookrunners are receiving a fee in connection with their role in respect of the Placing as detailed in the Placing Agreement.
When a Placee or person acting on behalf of the Placee is dealing with any of the Joint Bookrunners, any money held in an account with any of the Joint Bookrunners on behalf of the Placee and/or any person acting on behalf of the Placee will not be treated as client money within the meaning of the rules and regulations of the FCA made under the FSMA or the Central Bank of Ireland. The Placee acknowledges that the money will not be subject to the protections conferred by the client money rules; as a consequence, this money will not be segregated from the Joint Bookrunners' money in accordance with the client money rules and will be used by each of the Joint Bookrunners in the course of its own business; and the Placee will rank only as a general creditor of the Joint Bookrunners.
All times and dates in this Announcement may be subject to amendment by the Joint Bookrunners (in their absolute discretion). The Joint Bookrunners shall notify the Placees and any person acting on behalf of the Placees of any changes.
Past performance is no guide to future performance and persons needing advice should consult an independent financial adviser.
The rights and remedies of the Joint Bookrunners and the Company under these Terms and Conditions are in addition to any rights and remedies which would otherwise be available to each of them and the exercise or partial exercise of one will not prevent the exercise of others.
Each Placee may be asked to disclose in writing or orally to the Joint Bookrunners:
(a) if he is an individual, his nationality; or
(b) if he is a discretionary fund manager, the jurisdiction in which the funds are managed or owned.
DEFINITIONS
In this Announcement:
"Admission" means the admission of the Placing Shares to listing on the Official List of the FCA and to secondary listing on the Irish Stock Exchange and to trading on the premium segment of the main market of the London Stock Exchange and the regulated market for listed securities of the Irish Stock Exchange;
"Affiliate" has the meaning given in Rule 501(b) of Regulation D under the Securities Act or Rule 405 under the Securities Act, as applicable;
"Announcement" means this Announcement (including the Appendix to this Announcement);
"Bookbuild" means the bookbuilding process to be commenced by the Joint Bookrunners to use reasonable endeavours to procure placees for the Placing Shares, as described in this Announcement and subject to the terms and conditions set out in this Announcement and the Placing Agreement;
"Company" means CRH plc;
"CREST" means the relevant system, as defined in the Uncertificated Securities Regulations 2001 (SI 2001/3755) (in respect of which Euroclear UK & Ireland Limited is the operator);
"FCA" means the Financial Conduct Authority;
"FSMA" means the Financial Services and Markets Act 2000;
"Group" means the Company and its subsidiary undertakings;
"IAI" means an institutional "accredited investor" as defined in Rule 501(a)(1), (2), (3), or (7) of Regulation D under the Securities Act;
"Irish Stock Exchange" means the Irish Stock Exchange plc;
"Listing Rules" means the listing rules made by the UKLA in accordance with section 73A (2) of Part VI of FSMA and (where appropriate) the listing rules of the Irish Stock Exchange (in each case as these rules may be amended from time to time);
"London Stock Exchange" means the London Stock Exchange plc;
"Ordinary Share" means an ordinary share of €0.32 each in the capital of the Company, and where the context requires includes the unlisted income shares of €0.02 each in the capital of the Company, one of which is issued with and stapled to each Ordinary Share;
"Placee" means any person (including individuals, funds or otherwise) by whom or on whose behalf a commitment to subscribe for Placing Shares has been given;
"Placing" means the placing of the Placing Shares by the Joint Bookrunners, on behalf of the Company, with institutional investors;
"Placing Agreement" means the placing agreement dated 2 February 2015 between the Company and the Joint Bookrunners in respect of the Placing;
"Placing Price" means the price per Ordinary Share at which the Placing Shares are placed;
"Placing Shares" means 74,039,915 Ordinary Shares to be issued pursuant to the Placing;
"Prospectus Directive" means the Directive of the European Parliament and of the Council of the European Union 2003/71/EC, as amended (which includes any relevant implementing measure in each member state of the European Economic Area and amendments thereto, including the Directive of the European Parliament and of the Council of the European Union 2010/73/EU to the extent implemented in each member state of the European Economic Area);
"QIB" means a qualified institutional buyer as defined in Rule 144A;
"Regulation S" means Regulation S promulgated under the Securities Act;
"Regulatory Information Service" means an information service that is approved by the FCA and on the FCA's list of Registered Information Services;
"Rule 144A" means Rule 144A under the Securities Act;
"Securities Act" means the US Securities Act of 1933, as amended;
"Terms and Conditions" means the terms and conditions of the Placing set out in the Appendix to this Announcement;
"UKLA" means the United Kingdom Listing Authority, a division of the FCA, acting in its capacity as the competent authority for the purposes of Part VI of FSMA;
"United Kingdom" or "UK" means the United Kingdom of Great Britain and Northern Ireland;
"United States" or "US" means the United States of America, its territories and possessions, any state of the United States and the District of Columbia;
"US Investor Letter" means the letter in the form set out in Schedule 3 of the Placing Agreement; and
"€" means the lawful currency of Ireland.
This information is provided by RNS
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