Cash placing to raise ?19 million
18 May 2012
THIS ANNOUNCEMENT AND THE INFORMATION CONTAINED HEREIN IS NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN, INTO OR FROM THE UNITED STATES, AUSTRALIA, CANADA, SOUTH AFRICA OR JAPAN OR ANY JURISDICTION IN WHICH SUCH PUBLICATION OR DISTRIBUTION IS UNLAWFUL.
Primary Health Properties PLC
("PHP" or the "Company")
Cash placing to raise £19million
Introduction
PHP announces today that it is raising £19million (approximately £18.4million net of commissions and expenses) through a placing of 6,229,509 new ordinary shares of 50 pence each (the "Placing Shares") at a price of 305 pence per Placing Share (the "Placing Price") with institutional investors (the "Placing").
The Placing Price represents a discount of 6.2 per cent. to the closing middle market price of 325.25 pence per ordinary share on 17 May 2012, being the latest date prior to this Announcement.
The full terms and conditions of the Placing are set out in the Appendix to this Announcement.
Background to and reasons for the Placing
With the successful refinancing of the Company's core debt facilities completed in April 2012, the Company has a strong platform from which to continue to increase assets under management, delivering income and net asset growth. The Directors believe the pipeline of property acquisition opportunities remains strong, and the positive gap between yields and financing costs, together with continued rental growth, will enable PHP to deliver earnings enhancing and cash generating property investments.
Discussions with new debt providers to secure further facilities for expansion are ongoing and the Company remains focussed on maintaining appropriate headroom on its covenants. Access to new equity will support the Company's portfolio growth strategy and the proceeds of this Placing will be used to part-finance property investment opportunities.
Pipeline opportunity update
Since 31 December 2011 the Company has completed the acquisition of a further £7.2million of investment properties. Furthermore there are a further six potential acquisitions amounting to approximately £25million in respect of which the Company has signed heads of terms and is in well advanced discussions with the vendors. In addition, we are in negotiations regarding a number of potential property and portfolio acquisitions which could require funding of up to approximately £42million in aggregate, towards which part of the proceeds would be applied. This pipeline of opportunities represents a combination of forward commitments and newly developed assets and supports the strategy of maintaining a geographically diversified portfolio.
Harry Hyman, Managing Director of PHP commented:
"Market conditions continue to present PHP with attractive investment opportunities. As a result we have a strong pipeline of opportunities at various stages of negotiation and we continue to carefully target acquisitions which we believe will deliver long-term shareholder value. The successful refinancing of our debt facilities this year underlines the importance the Board places on maintaining conservative balance sheet leverage. As such, equity is required to exploit the opportunities currently available to PHP and we are delighted our shareholders have demonstrated their continued support through participating in today's capital raise."
The Placing
The Placing Shares will be issued credited as fully paid and will rank pari passu in all respects with the existing issued shares of PHP including the right to receive all dividends and other distributions declared, made or paid after the date of issue. Following completion of the Placing, the total number of issued ordinary shares of the Company will be 74,609,071. The issue of the Placing Shares, which is being underwritten by Numis Securities Limited and Peel Hunt LLP, is conditional, inter alia, upon Admission becoming effective and on the Placing Agreement between the Company, Numis Securities Limited and Peel Hunt LLP (together, the "Underwriters") becoming unconditional and not being terminated prior to Admission.
Application will be made to the UK Listing Authority and to the London Stock Exchange plc for the new ordinary shares to be admitted to the Official List maintained by the UK Listing Authority, and to be admitted to trading by the London Stock Exchange plc on its market for listed securities. It is expected that such admissions will become effective at 8 a.m. on 23 May 2012.
For further information contact:
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Primary Health Properties PLC |
+44(0) 20 7451 7050 |
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Harry Hyman, Managing Director |
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Pelham Bell Pottinger |
+44(0) 20 7861 3232 |
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David Rydell / Victoria Geoghegan / Elizabeth Snow |
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Numis Securities Limited |
+44(0) 20 7260 1000 |
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Corporate Finance: Michael Meade / Andrew Holloway |
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Corporate Broking: David Poutney |
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Peel Hunt LLP |
+44(0) 20 7418 8900 |
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Corporate: Andy Crossley / Capel Irwin |
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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 ARE DIRECTED ONLY AT RELEVANT PERSONS (AS DEFINED IN THE APPENDIX). THIS ANNOUNCEMENT (INCLUDING THE APPENDIX) AND THE TERMS AND CONDITIONS SET OUT HEREIN MUST NOT BE ACTED ON OR RELIED ON BY PERSONS WHO ARE NOT RELEVANT PERSONS. ANY INVESTMENT, CONTROLLED INVESTMENT OR INVESTMENT ACTIVITY TO WHICH THIS ANNOUNCEMENT (INCLUDING THE APPENDIX) AND THE TERMS AND CONDITIONS SET OUT HEREIN RELATES IS AVAILABLE ONLY TO RELEVANT PERSONS AND WILL BE ENGAGED IN ONLY WITH RELEVANT PERSONS. THIS ANNOUNCEMENT (INCLUDING THE APPENDIX) IS FOR INFORMATION PURPOSES ONLY AND DOES NOT ITSELF CONSTITUTE AN OFFER FOR SALE OR SUBSCRIPTION OF ANY SECURITIES IN PHP.
Persons who are invited to and who choose to participate in the Placing, by making an oral or written offer to subscribe for the Placing Shares, will be deemed to have read and understood this Announcement (including the Appendix) in its entirety and to be making such offer on the terms and conditions, and to be providing the representations, warranties, acknowledgements and undertakings, contained in the Appendix.
The distribution of this Announcement in certain jurisdictions may be restricted by law. Persons into whose possession this document comes should inform themselves about and observe any restrictions on the distribution of this Announcement. Any failure to comply with these restrictions may constitute a violation of the securities laws of any such jurisdictions. Persons receiving this Announcement should not distribute or send it into any jurisdiction where to do so would or might contravene local securities laws or regulations.
This Announcement is not for publication, release or distribution, directly or indirectly, in whole or in part, in or into the United States, Australia, Canada, Japan or South Africa or any jurisdiction in which the same would be unlawful. The Placing Shares have not been and will not be registered under the US Securities Act of 1933, as amended (the "Securities Act") or under any state securities laws and may not be offered or sold within the United States unless registered under the Securities Act or pursuant to an applicable exemption from, or as part of a transaction not subject to, the registration requirements of the Securities Act. The Placing Shares have not been and will not be registered under the applicable securities laws of Canada, Australia, South Africa or Japan and subject to certain exceptions, the Ordinary Shares may not be offered or sold in Canada, Australia, South Africa or Japan or to, or for the account or benefit of, any resident of Canada, Australia, South Africa or Japan. There will be no public offer of securities in the United States, Canada, Australia, South Africa, Japan, the United Kingdom or elsewhere.
This Announcement is for information purposes only and does not constitute or form part of an offer to sell or issue or the solicitation of an offer to subscribe for or buy, any Placing Shares in the United States or any other jurisdiction in which, such sale, offer or solicitation is unlawful. In particular, this Announcement is not for publication, release or distribution, in whole or in part, in or into the United States, Canada, Australia, South Africa or Japan.
This Announcement has been issued by PHP and is the sole responsibility of PHP. 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 Numis Securities Limited or Peel Hunt LLP 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.
Numis Securities Limited, which is authorised and regulated in the United Kingdom by the Financial Services Authority, is acting for the Company and for no-one else in connection with the contents of this Announcement and will not be responsible to anyone other than the Company for providing the protections afforded to clients of Numis Securities Limited, or for providing advice in relation to the contents of this document or any matters referred to herein.
Peel Hunt LLP, which is authorised and regulated in the United Kingdom by the Financial Services Authority, is acting for the Company and for no-one else in connection with the contents of this Announcement and will not be responsible to anyone other than the Company for providing the protections afforded to clients of Peel Hunt LLP, or for providing advice in relation to the contents of this document or any matters referred to herein.
The contents of this Announcement are not to be construed as legal, financial or tax advice. If necessary, each recipient of this Announcement should consult his, her or its own legal adviser, financial adviser or tax adviser for legal, financial or tax advice.
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. These statements, which sometimes use words such as "anticipate", "believe", "intend", "estimate", "expect" and words of similar meaning, reflect the directors' beliefs and expectations and involve a number of risks, uncertainties and assumptions 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. 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 is subject to change without notice and neither Numis Securities Limited, Peel Hunt LLP nor, except as required by applicable law, the Company assumes any responsibility or obligation to update publicly or review any of forward-looking statements contained herein. You should not place undue reliance on forward-looking statements, which speak only as of the date of this Announcement. No statement in this Announcement is or is intended to be a profit forecast 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 the shares.
The Appendix to this Announcement (which forms part of this Announcement) sets out the terms and conditions of the Placing.
APPENDIX
TERMS AND CONDITIONS OF THE PLACING
IMPORTANT INFORMATION REGARDING THE PLACING FOR INVITED PLACEES ONLY
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION DIRECTLY OR INDIRECTLY (IN WHOLE OR IN PART) IN, INTO OR FROM THE UNITED STATES, AUSTRALIA, SOUTH AFRICA, CANADA, JAPAN OR ANY OTHER JURISDICTION WHERE TO DO SO WOULD CONSTITUTE A VIOLATION OF THE RELEVANT LAWS OF SUCH JURISDICITON.
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING
THIS ANNOUNCEMENT AND THE TERMS AND CONDITIONS SET OUT IN THIS APPENDIX ARE DIRECTED ONLY AT: (A) PERSONS IN MEMBER STATES OF THE EUROPEAN ECONOMIC AREA WHO ARE 'QUALIFIED INVESTORS' AS DEFINED IN SECTION 86(7) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000, AS AMENDED ("QUALIFIED INVESTORS") BEING PERSONS FALLING WITHIN THE MEANING OF ARTICLE 2(1)(E) OF THE PROSPECTUS DIRECTIVE (WHICH MEANS DIRECTIVE 2003/71/EC AND INCLUDES ANY RELEVANT IMPLEMENTING MEASURE IN ANY MEMBER STATE); AND (B) IN THE UNITED KINGDOM, QUALIFIED INVESTORS WHO ARE PERSONS WHO (I) HAVE PROFESSIONAL EXPERIENCE IN MATTERS RELATING TO INVESTMENTS FALLING WITHIN ARTICLE 19(1) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER 2005 (THE "ORDER"); (II) ARE PERSONS FALLING WITHIN ARTICLE 49(2)(A) TO (D) ("HIGH NET WORTH COMPANIES, UNINCORPORATED ASSOCIATIONS, ETC") OF THE ORDER; OR (III) ARE PERSONS TO WHOM IT MAY OTHERWISE BE LAWFULLY COMMUNICATED (ALL SUCH PERSONS IN (A) AND (B) TOGETHER BEING REFERRED TO AS "RELEVANT PERSONS"). THIS ANNOUNCEMENT (INCLUDING THE APPENDIX) AND THE TERMS AND CONDITIONS SET OUT HEREIN MUST NOT BE ACTED ON OR RELIED ON BY PERSONS WHO ARE NOT RELEVANT PERSONS. ANY INVESTMENT, CONTROLLED INVESTMENT OR INVESTMENT ACTIVITY TO WHICH THIS ANNOUNCEMENT (INCLUDING THE APPENDIX) AND THE TERMS AND CONDITIONS SET OUT HEREIN RELATES IS AVAILABLE ONLY TO RELEVANT PERSONS AND WILL BE ENGAGED IN ONLY WITH RELEVANT PERSONS. THE DISTRIBUTION OF THIS ANNOUNCEMENT AND THE PLACING AND/OR ISSUE OF PLACING SHARES PURSUANT TO THE PLACING IN CERTAIN JURISDICTIONS MAY BE RESTRICTED BY LAW. PERSONS DISTRIBUTING THIS ANNOUNCEMENT OR SEEKING TO PARTICIPATE IN THE PLACING MUST INFORM THEMSELVES ABOUT AND OBSERVE ANY SUCH RESTRICTIONS AND MUST SATISFY THEMSELVES THAT IT IS LAWFUL FOR THEM TO DO SO. IN PARTICULAR, THIS APPENDIX AND THE TERMS AND CONDITIONS SET OUT HEREIN DO NOT CONSTITUTE AN OFFER TO SELL OR ISSUE OR THE SOLICITATION OF AN OFFER TO BUY OR ACQUIRE ANY PLACING SHARES IN THE UNITED STATES, AUSTRALIA, SOUTH AFRICA, CANADA OR JAPAN OR ANY JURISDICTION IN WHICH SUCH AN OFFER OR SOLICITATION WOULD BE UNLAWFUL. THE PLACING SHARES HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE US SECURITIES ACT OF 1933, AS AMENDED, (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES UNLESS REGISTERED UNDER THE SECURITIES ACT OR PURSUANT TO AN APPLICABLE EXEMPTION FROM, OR AS PART OF A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. ACCORDINGLY, THE PLACING SHARES ARE BEING OFFERED AND SOLD ONLY OUTSIDE THE UNITED STATES IN RELIANCE ON REGULATION S UNDER THE SECURITIES ACT. NO PUBLIC OFFERING OF SECURITIES INCLUDING THE PLACING SHARES IS BEING MADE IN THE UNITED KINGDOM, THE UNITED STATES OR ELSEWHERE. NO MONEY, SECURITIES OR OTHER CONSIDERATION FROM ANY PERSON INSIDE THE UNITED STATES IS BEING SOLICITED PURSUANT TO THIS ANNOUNCEMENT OR THE PLACING. THE PLACING SHARES ARE NOT BEING OFFERED OR SOLD TO ANY PERSON IN THE EUROPEAN UNION OTHER THAN TO QUALIFIED INVESTORS. THIS APPENDIX DOES NOT ITSELF CONSTITUTE AN OFFER FOR THE 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 ACQUISITION OF PLACING SHARES.
Persons who are invited to and who choose to participate in the Placing, by making an oral or written offer to subscribe for the Placing Shares (the "Placees"), will be deemed to have read and understood this Announcement, including this Appendix, in its entirety and to be making such offer on the terms and conditions, and to be providing the representations, warranties, acknowledgements and undertakings, contained in this Appendix. In this Appendix, unless the context otherwise requires, "Placee" means a Relevant Person (including individuals, funds or others) by whom or on whose behalf a commitment to take up Placing Shares has been given. In particular, each such Placee represents, warrants and acknowledges to the Company and the Underwriters that:
a) it is a Relevant Person (as defined above) and undertakes that it will acquire, hold, manage or dispose of any Placing Shares that are allocated to it for the purposes of its business;
b) in the case of any Placing Shares acquired by it as a financial intermediary, as that term is used in Article 3(2) of the Prospectus Directive, (a) the Placing Shares acquired by it in the Placing have not been acquired on behalf of, nor have they been acquired with a view to their offer or resale to, persons in any Relevant Member State other than Qualified Investors or in circumstances in which the prior consent of the Underwriters has been given to each proposed offer or resale; or (b) where Placing Shares have been acquired by it on behalf of persons in any member state of the EEA other than Qualified Investors, the offer of those Placing Shares to it is not treated under the Prospectus Directive as having been made to such persons; and
c) it is outside of the United States and is subscribing for the Placing Shares in an "offshore transaction" (within the meaning of Regulation S under the Securities Act) in reliance on Regulation S under the Securities Act.
The Company and the Underwriters will rely upon the truth and accuracy of the foregoing representations, warranties, acknowledgements and undertakings.
This Announcement and the information contained herein is not for publication or distribution, directly or indirectly, to persons in the United States, Australia, South Africa, Canada or Japan or in any other jurisdiction where to do so would constitute a violation of the relevant laws of such jurisdiction.
The Placing Shares have not been and will not be registered under the Securities Act or the securities laws of any US state. Unless so registered, the Placing Shares may not be offered or sold within the United States except in a transaction that is exempt from, or not subject to, the registration requirements of the Securities Act. The Placing Shares are only being offered and sold in offshore transactions in accordance with Regulation S under the Securities Act.
The Placing Shares have not been approved or disapproved by the US Securities and Exchange Commission or any other securities commission or other regulatory authority in the United States, nor have any of the foregoing authorities passed upon or endorsed the merits of the Placing or the accuracy or adequacy of this Announcement. Any representation to the contrary is unlawful.
The relevant clearances have not been, and nor will they be, obtained from the securities commission of any province or territory of Canada; no prospectus has been lodged with or registered by the Australian Securities and Investments Commission or the Japanese Ministry of Finance; and the Placing Shares have not been, and nor will they be, registered under or offered in compliance with the securities laws of any state, province or territory of Canada, Australia, South Africa or Japan. Accordingly, the Placing Shares may not (unless an exemption under the relevant securities laws is applicable) be offered, sold, resold or delivered, directly or indirectly, in or into Canada, Australia, South Africa or Japan or any other jurisdiction outside of the United Kingdom.
Persons (including, without limitation, nominees and trustees) who have contractual or other legal obligation to forward a copy of this Appendix or the Announcement of which it forms part should seek appropriate professional advice before taking any action.
Details of the Placing Agreement and the Placing Shares
Numis Securities Limited ("Numis") and Peel Hunt LLP ("Peel Hunt") have entered into a placing agreement (the "Placing Agreement") with the Company under which Numis and Peel Hunt have undertaken, on the terms and subject to the conditions set out therein, to act as placing agents for the Company and to use their reasonable endeavours to procure Placees to take up the Placing Shares or, failing which, severally to subscribe for their relevant proportion of such Placing Shares.
The issue of the Placing Shares is to be effected by way of a cashbox placing. The allotment and issue of the Placing Shares will be made by the Company to Placees in consideration for the transfer to the Company of certain shares in a Jersey-incorporated subsidiary of the Company ("Newco") by Numis and Peel Hunt.
The Underwriters, as agents of the Company, are offering the Placing Shares to certain existing institutional shareholders and certain other potential investors via the Placing at the Placing Price.
Each Placee will be required to pay to the relevant Underwriter the Placing Price as the subscription sum for each Placing Share agreed to be subscribed by it under the Placing in accordance with the terms set out in this Appendix. Each Placee's obligation to subscribe and pay for Placing Shares under the Placing will be owed to each of the Underwriters. Each Placee will be deemed to have read this Announcement in its entirety.
To the fullest extent permitted by law and applicable FSA rules, neither Numis nor any other person being (i) an undertaking which is a subsidiary undertaking of Numis, (ii) a parent undertaking of Numis or (other than Numis) a subsidiary undertaking of any such parent undertaking, or (iii) a director, officer, agent or employee of any such person ("Numis Person") will have any liability to Placees or to any person other than the Company in respect of the Placing.
To the fullest extent permitted by law and applicable FSA rules, neither Peel Hunt nor any other person being (i) an undertaking which is a subsidiary undertaking of Peel Hunt, (ii) a parent undertaking of Peel Hunt or (other than Peel Hunt) a subsidiary undertaking of any such parent undertaking, or (iii) a director, officer, agent or employee of any such person ("Peel Hunt Person") will have any liability to Placees or to any person other than the Company in respect of the Placing.
The Company has undertaken that the Placing Shares will, when issued, be credited as fully paid and will rank pari passu in all respects with the existing issued ordinary shares of fifty pence per share in the capital of the Company (the "Ordinary Shares"), including the right to receive all dividends and other distributions declared, paid or made on or in respect of the Ordinary Shares after the date of issue of the Placing Shares, together with all rights attaching to them and free from all liens, charges and encumbrances of any kind.
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.
Application for Admission to Trading
Application will be made to the FSA for the admission of the Placing Shares to the Official List of the UK Listing Authority and to the London Stock Exchange plc (the "London Stock Exchange") for the admission to trading of the Placing Shares on its main market for listed securities ("Admission"). It is expected that Admission will become effective on or around 8.00 a.m. on 23 May 2012 and that dealings in the Placing Shares will commence at that time.
Participation in, and principal terms of, the Placing
1. The Underwriters (whether themselves or through their affiliates) are arranging the Placing of the Placing Shares as the Underwriters and agents of the Company.
2. Participation in the Placing will only be available to persons who may lawfully be, and are, invited to participate by the Underwriters. The Underwriters and their respective affiliates are entitled to participate as principal in the Placing.
3. The Placing Price is 305 pence per Placing Share.
4. Each prospective Placee's allocation will be confirmed to the Placee orally by one of the Underwriters, and a written confirmation will be despatched as soon as possible thereafter. The oral confirmation to such Placee shall constitute an irrevocable legally binding commitment upon that person (who will at that point become a Placee) in favour of the Underwriters and the Company to acquire the number of Placing Shares allocated to it at the Placing Price on the terms and subject to the conditions set out in this Appendix and in accordance with the Company's memorandum and articles of association.
5. Each prospective Placee's allocation of Placing Shares and commitment will be evidenced by a contract note issued to such Placee by the relevant Underwriter and the terms of this Appendix will be deemed to be incorporated in that contract note.
6. Each Placee will also have an immediate, separate, irrevocable and binding obligation, owed to the Company and the Underwriters, to pay to the relevant Underwriter (or as it may direct) in cleared funds an amount equal to the product of the Placing Price and such number of Placing Shares that such Placee has agreed to subscribe and the Company has agreed to allot and issue to that Placee.
7. Irrespective of the time at which a Placee's allocation pursuant to the Placing is confirmed, settlement for all Placing Shares to be acquired pursuant to the Placing will be required to be made at the same time, on the basis explained below under "Registration and Settlement".
8. All obligations under the Placing will be subject to Admission becoming effective not later than 8.00 a.m. on 23 May 2012 (or such later date as the Company and the Underwriters may agree, being not later than 8.00 a.m. on 31 May 2012) and to the Placing Agreement having become unconditional in all respects and to the Placing Agreement not being terminated on the basis referred to below under "Right to terminate Placing Agreement".
9. By participating in the Placing, each Placee will agree that its rights and obligations in respect of the Placing will terminate only in the circumstances described below and will not be capable of rescission or termination by the Placee.
10. To the fullest extent permissible by law and applicable rules of the FSA, neither of the Underwriters nor any of their affiliates shall have any liability to Placees (or to any other person whether acting on behalf of a Placee or otherwise, whether or not a recipient of these terms and conditions) in respect of the Placing. Each Placee acknowledges and agrees that the Company is responsible for the allotment and transfer respectively of the Placing Shares to the Placees and the Underwriters shall have no liability to the Placees for any failure by the Company to fulfil these obligations.
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 Underwriters' obligations under the Placing Agreement are conditional on, inter alia:
a) the Company allotting, subject only to Admission (as defined below) the Placing Shares in accordance with the Placing Agreement; and
b) Admission (as defined below) becoming effective by not later than 8.00 a.m. on 23 May 2012 (or such later date as the Company and the Underwriters may agree, being not later than 8.00 a.m. on 31 May 2012).
If the conditions in the Placing Agreement are not satisfied or (where applicable) waived in accordance with the Placing Agreement within the stated time periods (or such later time and/or date as the Company and the Underwriters may agree), or the Placing Agreement is terminated in accordance with its terms (see below), the Placing will lapse and each Placee's rights and obligations shall cease and terminate at such time and each Placee agrees that no claim can be made by or on behalf of the Placee (or any person on whose behalf the Placee is acting) in respect thereof. By participating in the Placing, each Placee agrees that its rights and obligations cease and terminate only in the circumstances described above and under "Right to terminate the Placing Agreement" below and will not be capable of rescission or termination by it after oral confirmation by either Underwriter as referred to above.
The Underwriters may, in their absolute discretion and on such terms as they think appropriate, waive fulfilment of, in whole or in part, or extend the time and/or date for fulfilment by the Company of any or all of the conditions to the Placing Agreement (to the extent permitted by law or regulations) by giving notice in writing to the Company save that certain conditions, including the above condition relating to Admission taking place, may not be waived. Any such extension or waiver will not affect Placees' commitments as set out in this Appendix.
None of Numis, Peel Hunt, any Numis Person or any Peel Hunt Person or the Company shall have any liability to any Placee (or to any other person whether acting on behalf of a Placee or otherwise) in respect of any decision any of them may make as to whether or not to waive or to extend the time and/or date for the satisfaction of any condition to the Placing nor for any decision any of them may make as to the satisfaction of any condition or in respect of the Placing generally.
Right to terminate the Placing Agreement
Each Underwriter is entitled, at any time before Admission, to terminate the Placing Agreement by giving notice to the Company in certain circumstances, including a material breach of the warranties given to the Underwriters in the Placing Agreement, the failure by the Company to comply with its obligations under the Placing Agreement or the occurrence of a force majeure event.
If the obligations of an Underwriter with respect to the Placing are terminated in the manner contemplated above, the rights and obligations of each Placee shall cease and terminate at such time and no claim can be made by any Placee in respect thereof.
The rights and obligations of the Placees will terminate only in the circumstances described in these terms and conditions and will not be subject to termination by the Placee or any prospective Placee at any time or in any circumstances.
By participating in the Placing, Placees agree that the exercise by either Underwriter of any right of termination shall be within such Underwriter's absolute discretion and that neither Underwriter need make any reference to Placees and that neither Numis, Peel Hunt, any Numis Person, any Peel Hunt Person nor the Company shall have any liability to Placees whatsoever in connection with any such exercise by either Underwriter and by participating in the Placing, each Placee agrees that any such decision is within the absolute discretion of the Underwriters.
No Prospectus
No offering document, prospectus or admission document has been or will be submitted to be approved by the FSA or submitted to the London Stock Exchange in relation to the Placing and Placees' commitments will be made solely on the basis of the information contained in this Announcement (including this Appendix) and subject to the further terms set out in the contract note to be provided to the prospective Placees.
Each Placee, by participating in the Placing, agrees that the content of this Announcement (including this Appendix) is exclusively the responsibility of the Company and confirms that it has neither received nor relied on any other information, representation, warranty, or statement made by or on behalf of the Underwriters or the Company or any other person and that none of the Underwriters, the Company or any other person will be liable for any Placee's decision to participate in the Placing based on any other information, representation, warranty or statement which the Placees may have obtained or received. Each Placee acknowledges, agrees and warrants that it has relied on its own investigation of the business, financial or other position of the Company in participating in the Placing and with respect to the Placing Shares. Nothing in this paragraph shall exclude the liability of any person for fraudulent misrepresentation.
This announcement is not a "prospectus" under the Companies (Jersey) Law 1991 (as amended). Therefore, this announcement has not been prepared strictly in accordance with the requirements of the Companies (General Provisions) (Jersey) Order 2002 and the Company has not sought and does not intend to seek the consent of the Registrar of Companies in Jersey, and the Registrar of Companies in Jersey has not given its consent, to the circulation of this announcement.
Registration and Settlement
Participation in the Placing is only available to persons who are invited to participate in it by the Underwriters.
Settlement of transactions in the Placing Shares (ISIN: GB0007015521) following Admission will take place within the system administered by Euroclear UK & Ireland Limited ("CREST"), subject to certain exceptions. The Underwriters and the Company reserve the right to require settlement for, and delivery of, the Placing Shares (or a portion of them) to Placees by such other means that they deem necessary if delivery or settlement is not possible or practicable within the CREST system within the timetable set out in this Announcement or would not be consistent with the regulatory requirements in any Placee's jurisdiction.
Each Placee allocated Placing Shares in the Placing will be sent a written confirmation in accordance with the standing arrangements in place with the relevant Underwriter stating the number of Placing Shares to be allocated to it at the Placing Price, the aggregate amount owed by such Placee to the relevant Underwriter and settlement instructions. Each Placee agrees that it will do all things necessary to ensure that delivery and payment is completed in accordance with either the CREST or certificated settlement instructions that it has in place with the relevant Underwriter.
It is expected that the "trade date" for settlement purposes will be 18 May 2012 in respect of the Placing Shares and the "settlement date" will be 23 May 2012, on a delivery versus payment basis.
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 the prevailing 3 month sterling LIBOR rate as determined by the relevant Underwriter.
Each Placee is deemed to agree that if it does not comply with these obligations, the relevant Underwriter may at its sole discretion place any or all of the Placing Shares allocated to that Placee with other acquirers or sell any or all of such Placing Shares on such Placee's behalf and retain from the proceeds, for the relevant Underwriter'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 between the net proceeds of such placing or 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. Each Placee confers on the relevant Underwriter all such authorities and powers as are necessary to carry out any such sale and agrees to ratify and confirm all actions which the relevant Underwriter lawfully takes in pursuance of such sale.
If Placing Shares are to be delivered to a custodian or settlement agent, Placees should ensure that the written confirmation is copied and delivered immediately to the relevant person within that organisation.
Insofar as Placing Shares are registered in a Placee's name or that of its nominee or in the name of any person for whom a Placee is contracting as agent or that of a nominee for such person, such Placing Shares should, subject as provided below, be so registered free from any liability to United Kingdom stamp duty or stamp duty reserve tax.
Each Placee's entitlement to receive any Placing Shares will be conditional upon the relevant Underwriter's receipt of payment by the time to be stated in the written confirmation or by such later time and date as such Underwriter may in its absolute discretion determine, and otherwise in accordance with that confirmation's terms. Each Underwriter may, in its absolute discretion, waive such condition, and will not be liable to the Placee in the event of it deciding whether to waive or not to waive such condition.
Representations and Warranties
By agreeing with an Underwriter to subscribe for Placing Shares under the Placing, each Placee (and any person acting on such Placee's behalf) irrevocably represents, warrants, acknowledges, confirms and undertakes to, and agrees with (for itself and for any such respective Placee) each of the Company and the Underwriters, in each case as a fundamental term of the Placee's application for Placing Shares and of the Company's obligation to allot and/or issue any Placing Shares to the Placee or at the Placee's direction, that:
(a) it has read this Announcement (including this Appendix) in its entirety and that its acquisition of the Placing Shares is subject to and based upon all the terms, conditions, representations, warranties, acknowledgements, agreements and undertakings and other information contained herein;
(b) it has not received and will not receive a prospectus or other offering document in connection with the Placing and acknowledges that no prospectus or other offering document has been or will be prepared in connection with the Placing;
(c) its rights and obligations in respect of the Placing are irrevocable and legally binding and will terminate only in the circumstances described in this Appendix and will not be subject to rescission or termination by it in any circumstances;
(d) the Announcement, which has been issued by the Company, is the sole responsibility of the Company;
(e) it has (i) made its own assessment of the Company, the Placing Shares and the terms of the Placing based on publicly available information, such information being all that it deems necessary to make an investment decision in respect of the Placing; and (ii) neither received nor relied on any confidential price sensitive information concerning the Company in accepting this invitation to participate in the Placing;
(f) it has not relied on any representation or warranty in reaching its decision to subscribe Placing Shares under the Placing, save as given or made by the Company in the Announcement in relation to the Placing Shares, the Company and any other member of the Company's group in connection with the Placing, and in particular, it has not been, and will not be, given any warranty or representation by any Numis Person and/or Peel Hunt Person in relation to any Placing Shares, the Company or any other member of the Company's group and no Numis Person or Peel Hunt Person will have any liability to it for any information contained in the Announcement or which has otherwise been published by or on behalf of the Company (which is solely the responsibility of the Company) or for any decision by it to participate in the Placing based on any such information or on any other information provided to it;
(g) other than the content of the Announcement (including this Appendix), which is exclusively the responsibility of the Company, it has neither received nor relied on any other information, representation, warranty, or statement made by or on behalf of the Company (or its affiliates) or either Underwriter or any Numis Person or any Peel Hunt Person or any other person (nor has it requested that either of the Underwriters, the Company or any Numis Person or Peel Hunt Person or any person acting on behalf of any of them to provide it with any such information) and none of the Underwriters, any Numis Person, any Peel Hunt Person, the Company (or its 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;
(h) the Company's ordinary shares are listed on the Official List of the UK Listing Authority and the Company is therefore required to publish certain business and financial information in accordance with rules and practices of the UK Listing Authority which includes a description of the nature of the Company's business and the Company's most recent balance sheet and profit and loss account and that the Placee is able to obtain or access such information without undue difficulty and is able to obtain access to such information or comparable information concerning any other publicly traded company without undue difficulty;
(i) none of the Underwriters, nor any of their respective affiliates, nor any person acting on behalf of them, is making recommendations to it, or advising it regarding the suitability or merits of any transactions it may enter into or in connection with the Placing and that participation in the Placing is on the basis that it is not, and does not regard itself as being, a client of an Underwriter in relation to the Placing and neither Underwriter is acting for it in connection with the Placing and neither Underwriter will be responsible to it in respect of the Placing for providing protections afforded to their respective clients nor for providing advice in relation to the Placing nor in respect of any representations, warranties, undertakings or indemnities contained in the Placing Agreement nor for the exercise or performance of any of its rights and obligations thereunder including any rights to waive or vary any conditions or exercise any termination right;
(j) the exercise by the Underwriters of any of their respective rights or discretions under the Placing Agreement shall be within the absolute discretion of the Underwriters and the Underwriters need not have any reference to the Placee and shall have no liability to the Placee whatsoever in connection with any decision to exercise or not to exercise any such right and the Placee agrees that it has no rights against any of the Underwriters or the Company or any of their respective directors and employees under the Placing Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999;
(k) it will pay the full subscription amount as and when required in respect of all Placing Shares allocated to it (failing which the relevant Placing Shares may be placed with other Placees or sold as the relevant Underwriter may in its sole discretion determine without liability to such Placee) and will do all things necessary on its part to ensure that payment for such shares and their delivery to it or at its direction is completed in accordance with the CREST instructions (or, where applicable, certificated settlement instructions) that it has in place with an Underwriter or will put in place with an Underwriter with its agreement;
(l) it is entitled to subscribe for Placing Shares under the laws of all relevant jurisdictions which apply to it and it has complied, and will fully comply, with all such laws (including where applicable, the Criminal Justice Act 1993, the Anti-Terrorism, Crime and Security Act 2001, the Proceeds of Crime Act 2002 (as amended) and the Money Laundering Regulations 2007 (the "Regulations")) and has capacity and authority to give its commitment to subscribe for the Placing Shares and perform its obligations and has obtained all governmental and other consents (if any) which may be required for the purpose of, or as a consequence of, such subscription, and it will provide promptly to the relevant Underwriters such evidence, if any, as to the identity or location or legal status of any person which such Underwriter may request from it in connection with the Placing (for the purpose of its complying with the Regulations or ascertaining the nationality of any person or the jurisdiction(s) to which any person is subject or otherwise) in the form and manner requested by such Underwriter on the basis that any failure by it to do so may result in the number of Placing Shares that are to be allotted and/or issued to it or at its direction pursuant to the Placing being reduced to such number, or to nil, as such Underwriter may decide at its sole discretion;
(m) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done or to be done by it in relation to any Placing Shares in, from or otherwise involving the United Kingdom and it has not made or communicated or caused to be made or communicated, and it will not make or communicate or cause to be made or communicated, any "financial promotion" in relation to Placing Shares in contravention of section 21 of FSMA;
(n) it falls within Article 19(5) and/or 49 (2) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005, as amended, or it is otherwise a person at or to whom any communication relating to the Company that is a "financial promotion" (as such term is used in relation to FSMA) may lawfully be issued, directed or otherwise communicated without the need for it to be approved, made or directed by an "authorised person" as referred to in FSMA and undertakes that it will acquire, hold, manage and (if applicable) dispose of any Placing Shares that are allocated to it for the purposes of its business only;
(o) it is a Qualified Investor;
(p) it has not offered or sold and, prior to the expiry of a period of six months from Admission, will not offer or sell any Placing Shares to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their business or otherwise in circumstances which have not resulted and which will not result in an offer to the public in the United Kingdom within the meaning of section 85(1) FSMA;
(q) 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 persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their business or otherwise in circumstances which have not resulted and which will not result in an offer to the public in any member state of the EEA within the meaning of the Prospectus Directive;
(r) in the case of any Placing Shares acquired by it as a financial intermediary, as that term is used in Article 3(2) of the Prospectus Directive, (a) the Placing Shares acquired by it in the Placing have not been acquired on behalf of, nor have they been acquired with a view to their offer or resale to, persons in any Relevant Member State other than Qualified Investors or in circumstances in which the prior consent of the Underwriters has been given to each proposed offer or resale; or (b) where Placing Shares have been acquired by it on behalf of persons in any member state of the EEA other than Qualified Investors, the offer of those Placing Shares to it is not treated under the Prospectus Directive as having been made to such persons;
(s) nothing has been done or will be done by it in relation to the Placing or to any Placing Shares that has resulted or will result in any person being required to publish a prospectus in relation to the Company or to any Ordinary Shares in accordance with FSMA or the UK Prospectus Rules of the FSA or in accordance with any other laws applicable in any part of the European Union or the European Economic Area;
(t) (i) it is not acting in relation to the Placing as nominee or agent for a person who is or may be liable to stamp duty or stamp duty reserve tax in respect of any agreement to acquire (or any acquisition of) shares or other securities at a rate in excess of 0.5% (including, without limitation, under sections 67, 70, 93 or 96 of the Finance Act 1986 concerning depositary receipts and clearance services), and the allocation, allotment, issue and/or delivery to it, or any person specified by it for registration as holder, of Placing Shares will not give rise to a liability under any such section, (ii) the person whom it specifies for registration as holder of Placing Shares will be it or its nominee or (as applicable) the person for whom it is acting or its nominee, (iii) it and any person for whom it is acting will acquire Placing Shares on the basis that they will be allotted to the CREST stock account of the relevant Underwriter and that such Underwriter will then hold them as settlement agent and as nominee for it or such person until settlement in accordance with such Underwriter's settlement instructions, (iv) payment for Placing Shares will be made simultaneously on their receipt in its stock account on a delivery versus payment basis, and (v) neither the Underwriters nor the Company will be responsible to it or anyone else for any liability to pay stamp duty or stamp duty reserve tax resulting from any breach of, or non-compliance, with this paragraph;
(u) it will not treat any Placing Shares in any manner that would contravene any legislation applicable in any territory or jurisdiction and no aspect of its participation in the Placing will contravene any legislation applicable in any territory or jurisdiction in any respect or cause the Company or the Underwriters to contravene any such legislation in any respect;
(v) (1) it understands that the Placing Shares have not been and will not be registered under the Securities Act or the securities laws of any US state, (2) it understands that the Placing Shares may not be offered, sold, resold, or delivered, directly or indirectly, into or within the United States, (3) it is not located within the United States, (4) it has not offered, sold or delivered and will not offer sell or deliver any of the Placing Shares to persons within the United States, directly or indirectly, (5) it has not acquired the Placing Shares as a result of any form of "directed selling efforts" (as defined in Regulation S), (6) it will not be subscribing for Placing Shares with a view to resale in or into the United States, and (7) it will not distribute this Announcement or any offering material relating to Placing Shares, directly or indirectly, in or into the United States;
(w) it is, or at the time the Placing Shares are acquired that it will be, the beneficial owner of such Placing Shares, or that the beneficial owner of such Placing Shares is not a resident of Australia, Canada, Japan or South Africa;
(x) the Placing Shares have not been and will not be registered under the securities legislation of the United States, Australia, Canada, Japan or South Africa and, subject to certain exceptions, may not be offered, sold, taken up, renounced or delivered or transferred, directly or indirectly, within those jurisdictions;
(y) it will (or will procure), if applicable, make notification to the Company of the interest in its ordinary shares in accordance with the Disclosure and Transparency Rules;
(z) the Underwriters may (at their absolute discretion) satisfy their obligations to procure Placees by themselves agreeing to become a Placee in respect of some or all of the Placing Shares or by nominating any other Numis Person or any other Peel Hunt Person or any person associated with any Numis Person or Peel Hunt Person to do so or by allowing officers of the Company and/or employees of Group companies to subscribe Placing Shares under the Placing at the Placing Price;
(aa) time is of the essence as regards its obligations under this Appendix;
(bb) no action has been or will be taken by any of the Company, the Underwriters or any other person acting on its or their behalf that would, or is intended to, permit a public offer of the Placing Shares in any country or jurisdiction where any action for that purpose is required;
(cc) (i) it has such knowledge and experience in financial, business and international investment matters as is required to evaluate the merits and risks of subscribing for the Placing Shares; (ii) it is experienced in investing in securities of this nature and is aware that it may be required to bear, and is able to bear, the economic risk of, and is able to sustain a complete loss in connection with the Placing; (iii) it has relied upon its own examination and due diligence of the Company and its associates taken as a whole, and the terms of the Placing, including the merits and risks involved; (iv) it has had sufficient time to consider and conduct its own investigation with respect to the offer and acquisition of the Placing Shares, including the tax, legal, currency and other economic considerations relevant to such investment; and (v) it will not look to the Company, the Underwriters, 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;
(dd) this Appendix and any contract which may be entered into between it and the Underwriters and/or the Company pursuant to it or the Placing will be governed by and construed in accordance with the laws of England, for which purpose it submits (for 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 or relating to this Appendix or such contract, except that each of the Company and the Underwriters will have the right to bring enforcement proceedings in respect of any judgment obtained against it in the English courts or in the courts of any other relevant jurisdiction;
(ee) each right or remedy of the Company or the Underwriters provided for in this Appendix is in addition to any other right or remedy which is available to such person and the exercise of any such right or remedy in whole or in part will not preclude the subsequent exercise of any such right or remedy;
(ff) it will indemnify and hold the Company, Numis, Peel Hunt and their respective affiliates harmless from any and all costs, claims, liabilities and expenses (including legal fees and expenses) arising out of or in connection with any breach of the representations, warranties, acknowledgements, agreements and undertakings in this Appendix and the provisions of this Appendix shall survive after completion of the Placing;
(gg) any document that is to be sent to it in connection with the Placing will be sent at its risk and may be sent to it at any address provided by it to the relevant Underwriter;
(hh) nothing in this Appendix will exclude any liability of any person for fraud upon its part and all times and dates in this Announcement are subject to amendment at the discretion of the Underwriters; and
(ii) none of its rights or obligations in respect of the Placing is conditional on any other person agreeing to subscribe for any Placing Shares under the Placing and no failure by any other Placee to meet any of its obligations in respect of the Placing shall affect any of its obligations in respect of the Placing.
The agreement to settle a Placee's subscription (and/or the subscription of a person for whom such Placee is contracting as agent) free of stamp duty and stamp duty reserve tax depends upon the settlement relating only to a subscription by it and/or such person direct from the Company for the Placing Shares in question. Such agreement assumes that the Placing Shares are not being subscribed for in connection with arrangements to issue depositary receipts or to issue or transfer the Placing Shares into a clearance service and will not give rise to a liability under any of sections 67, 70, 93 or 96 of the Finance Act 1986. If there are any such arrangements, or the settlement relates to any other dealing in the Placing Shares, stamp duty or stamp duty reserve tax may be payable, for which neither the Company nor the Underwriters will be responsible. If this is the case, each Placee should seek its own advice and notify an Underwriter accordingly. Furthermore, each Placee agrees to indemnify on an after-tax basis and hold the Underwriters and/or the Company and their respective affiliates harmless from any and all interest, fines or penalties in relation to stamp duty, stamp duty reserve tax and all other similar duties or taxes to the extent that such interest, fines or penalties arise from the unreasonable default or delay of that Placee or its agent.
In addition, Placees should note that they will be liable for, and each Placee agrees to indemnify on an after-tax basis and hold the Underwriters and/or the Company and their respective affiliates harmless from, any stamp duty and all other stamp, issue, securities, transfer, registration, documentary or other duties or taxes (including any interest, fines or penalties relating thereto) payable outside the UK by such Placee or any other person on the subscription by them of any Placing Shares or the agreement by them to subscribe for any Placing Shares.
Each Placee, and any person acting on behalf of the Placee, acknowledges: (i) that the Underwriters do not owe any fiduciary or other duties to any Placee with respect to it or its interests and accordingly, owes it no obligations of any nature whatsoever, other than those expressly set out in this Appendix; and (ii) that the Company, the Underwriters and their affiliates and others will rely on the truth and accuracy of the foregoing representations, warranties, undertakings and acknowledgements.
When a Placee or person acting on behalf of the Placee is dealing with an Underwriter, any money held in an account with such Underwriter 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 FSA made under the FSMA. The Placee acknowledges that the money will not be subject to the protections conferred by the client money rules; as a consequence, this money will not be segregated from the relevant Underwriter's money in accordance with the client money rules and will be used by such Underwriter in the course of its own business and the Placee will rank only as a general creditor of such Underwriter.
All times and dates in this Announcement may be subject to amendment. The Underwriters 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.
This information is provided by RNS
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