PVM - Acquisition Completion Date & Placing
THIS ANNOUNCEMENT (INCLUDING THE APPENDIX) IS FOR INFORMATION PURPOSES ONLY AND SHALL NOT CONSTITUTE AN OFFER TO SELL OR ISSUE OR THE SOLICITATION OF AN OFFER TO BUY, SUBSCRIBE OR ACQUIRE ANY SECURITIES, INCLUDING PLACING SHARES, IN ANY JURISDICTION IN WHICH ANY SUCH OFFER OR SOLICITATION WOULD BE UNLAWFUL. THIS ANNOUNCEMENT (INCLUDING THE APPENDIX) AND THE INFORMATION CONTAINED HEREIN IS RESTRICTED AND IS NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED STATES, AUSTRALIA, CANADA, JAPAN, SOUTH AFRICA OR ANY OTHER JURISDICTION IN WHICH SUCH RELEASE, PUBLICATION OR DISTRIBUTION WOULD BE UNLAWFUL.
This announcement is an advertisement and not a prospectus and investors should not subscribe for or purchase any shares referred to in this announcement except on the basis of information in the prospectus (the "Prospectus") to be published by Tullett Prebon plc in due course in connection with the placing of its ordinary shares ("Ordinary Shares") and the proposed admission of new Ordinary Shares to the premium listing segment of the Official List of the UK Listing Authority ("Official List") and to trading on the main market for listed securities (the "Main Market") of London Stock Exchange plc (the "London Stock Exchange"). Copies of the Prospectus will, following publication, be available from the Company's website (http://www.tullettprebon.com), subject to applicable securities laws, and at Tullett Prebon plc's registered office.
21 November 2014
Tullett Prebon plc
Completion date for acquisition of PVM and vendor placing
Tullett Prebon plc (the "Company") announced on 9 May 2014 that agreement had been reached to acquire PVM Oil Associates Limited and its subsidiaries ("PVM"), a leading independent broker of oil instruments (the "Acquisition").
The Company announces today that completion of the Acquisition is expected to take place on 26 November 2014.
In connection with the Acquisition, the Company expects to issue (conditional upon admission) 25,776,523 new Ordinary Shares (the "New Shares"), representing 11.8 per cent. of the Company's issued share capital, in satisfaction of the $112.0m (£71.1m at the agreed exchange rate of $1.5747) initial consideration payable at completion.
The Company expects to issue 12,813,758 New Shares to the shareholders of PVM and 12,962,765 New Shares to placees procured in a vendor placing (the "Placing Shares" and the "Placing" respectively). The Placing Shares represent 50.3 per cent. of the New Shares and 6.0 per cent. of the Company's issued share capital. The Placing Shares are expected to be issued to institutional investors at a price of 248 pence per share, realising gross proceeds of £32.1m to be paid net of transaction costs to certain of the PVM shareholders who have elected to receive cash proceeds from the Placing (the "Sellers"). The Sellers will bear the discount to market price achieved in the Placing and the commission payable in connection with the Placing. The Sellers will be subject to certain lock-up arrangements in respect of their residual holdings in the Ordinary Shares for a period of 90 days after today's date. PVM shareholders who have not elected to receive cash proceeds from the Placing, to whom 2,307,220 New Shares will be issued (equivalent to 0.9 per cent. of the Company's enlarged issued share capital), are not party to the lock-up arrangements.
The New Shares, when issued, will be credited as fully paid and will rank pari passu with the existing Ordinary Shares including the right to receive all future dividends and distributions.
It is expected that admission of the New Shares to the premium segment of the Official List and the London Stock Exchange will take place on 26 November 2014. Completion of the Acquisition is conditional upon admission of the New Shares becoming effective.
The Placing is conditional, inter alia, upon admission becoming effective and upon completion of the Acquisition.
In connection with the admission of the New Shares to listing only, the Company will publish a prospectus, which is expected to become available today.
HSBC Bank plc is acting as Bookrunner on the Placing and as Sponsor in connection with the admission of the New Shares.
Enquiries:
Investors and Analysts Media
Paul Mainwaring Craig Breheny
Finance Director, Tullett Prebon plc Director, Brunswick Group LLP
Direct: +44 (0) 20 7200 7995 Direct: +44 (0) 20 7396 7429
Sponsor, Bookrunner and Corporate Broker
HSBC Bank plc: +44 (0) 207 991 8888
Nick Donald
Richard Fagan
Peter Glover
IMPORTANT NOTICE
This announcement (including the Appendix) is for information purposes only and shall not constitute an offer to sell or issue or the solicitation of an offer to buy, subscribe or acquire any securities, including Placing Shares, in any jurisdiction in which any such offer or solicitation would be unlawful. The information contained herein is restricted and is not for release, publication or distribution, in whole or in part, directly or indirectly, in or into the United States, Australia, Canada, Japan, South Africa or any other jurisdiction in which such release, publication or distribution would be unlawful.
In particular, neither this announcement (including the Appendix) nor any part of it is for distribution, directly or indirectly, in or into the United States (including its territories and possessions, any State of the United States and the District of Columbia). Neither this announcement nor any part of it constitutes or forms a part of any offer or solicitation to purchase or subscribe for securities in the United States, Canada, Australia, South Africa or Japan. The Placing Shares have not been, and will not be, registered under the United States Securities Act of 1933, as amended (the "Securities Act"), and, subject to certain exceptions, may not be offered, sold, transferred or delivered, directly or indirectly, in or into the United States except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act.
All offers of the Placing Shares will be made pursuant to an exemption under the Prospectus Directive from the requirement to produce a prospectus. This announcement (including the Appendix) is being distributed to persons in the United Kingdom only in circumstances in which section 21(1) of the Financial Services and Markets Act 2000, as amended ("FSMA") does not apply.
Certain statements made in this announcement (including the Appendix) are forward-looking statements. Such statements are based on current expectations and assumptions and are subject to a number of risks and uncertainties that could cause actual events or results to differ materially from any expected future events or results expressed or implied in these forward-looking statements. Persons receiving this announcement (including the Appendix) should not place undue reliance on forward-looking statements. Unless otherwise required by applicable law, regulation or accounting standard, the Company does not undertake to update or revise any forward-looking statements, whether as a result of new information, future developments or otherwise.
No statement in this announcement (including the Appendix) is intended to be a profit forecast and no statement in this announcement (including the Appendix) should be interpreted to mean that earnings per share of the Company for the current or future financial years would necessarily match or exceed the historical published earnings per share of the Company.
The Bookrunner, which is authorised in the United Kingdom by the Prudential Regulation Authority and regulated in the United Kingdom by the Financial Conduct Authority (the "FCA") and the Prudential Regulation Authority, is acting for the Company and for no one else in connection with the Placing and will not be responsible to anyone other than the Company for providing the protections afforded to its clients or for providing advice in relation to the Placing or any other matter referred to in this announcement (including the Appendix).
The distribution of this announcement (including the Appendix) 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 Bookrunner 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 (including the Appendix) comes are required by the Company and the Bookrunner to inform themselves about, and to observe, such restrictions.
This announcement (including the Appendix) 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 Bookrunner or by any of its respective affiliates or agents as to, or in relation to, the accuracy or completeness of this announcement (including the Appendix) or any other written or oral information made available to or publicly available to any interested party or its advisers, and any responsibility or liability therefor is expressly disclaimed.
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. Past performance is no guide to future performance and persons needing advice should consult an independent financial adviser.
Appendix - Terms and conditions of the Placing
Important information
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED STATES, CANADA, AUSTRALIA, SOUTH AFRICA OR JAPAN OR ANY OTHER JURISDICTION IN WHICH SUCH RELEASE, PUBLICATION OR DISTRIBUTION WOULD BE UNLAWFUL.
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING. THIS ANNOUNCEMENT AND THE APPENDIX AND THE TERMS AND CONDITIONS SET OUT HEREIN ARE FOR INFORMATION PURPOSES ONLY AND ARE 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 (1) IN MEMBER STATES OF THE EUROPEAN ECONOMIC AREA (THE "EEA"), ARE "QUALIFIED INVESTORS" WITHIN THE MEANING OF ARTICLE 2.1(e)(i), (ii) OR (iii) OF DIRECTIVE 2003/71/EC AS AMENDED (THE "PROSPECTUS DIRECTIVE") AND (2) IN THE UNITED KINGDOM FALL WITHIN ARTICLE 19(5) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER 2005, AS AMENDED (THE "ORDER") OR FALL WITHIN ARTICLE 49(2)(a) TO (d) ("HIGH NET WORTH COMPANIES, UNINCORPORATED ASSOCIATIONS, ETC.") OF THE ORDER (ALL SUCH PERSONS TOGETHER BEING REFERRED TO AS "RELEVANT PERSONS"). THIS ANNOUNCEMENT AND THE APPENDIX AND THE TERMS AND CONDITIONS SET OUT HEREIN (AND THE ANNOUNCEMENT OF WHICH IT FORMS PART) MUST NOT BE ACTED ON OR RELIED ON BY PERSONS WHO ARE NOT RELEVANT PERSONS. ANY INVESTMENT OR INVESTMENT ACTIVITY TO WHICH THIS ANNOUNCEMENT AND 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.
PERSONS DISTRIBUTING THIS APPENDIX (AND THE ANNOUNCEMENT OF WHICH IT FORMS PART) MUST SATISFY THEMSELVES THAT IT IS LAWFUL TO DO SO. THIS APPENDIX (AND THE ANNOUNCEMENT OF WHICH IT FORMS PART) DOES NOT ITSELF CONSTITUTE AN OFFER FOR SALE OR SUBSCRIPTION OF ANY SECURITIES IN TULLETT PREBON PLC.
THIS ANNOUNCEMENT AND THE APPENDIX DOES NOT CONSTITUTE OR FORM A PART OF ANY OFFER OR SOLICITATION TO PURCHASE OR SUBSCRIBE FOR SECURITIES IN THE UNITED STATES. THERE IS NO PUBLIC OFFERING OF SECURITIES OF TULLETT PREBON PLC IN THE UNITED STATES. THE ORDINARY SHARES OF TULLETT PREBON PLC HAVE NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE US SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND MAY NOT BE OFFERED, SOLD, TRANSFERRED OR DELIVERED, DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED STATES EXCEPT PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
EACH PLACEE SHOULD CONSULT WITH ITS OWN ADVISORS AS TO LEGAL, TAX, BUSINESS AND RELATED ASPECTS OF A PURCHASE OF PLACING SHARES.
Terms of the Placing
By participating in the Placing, Placees will be deemed to have read and understood this announcement (including this Appendix) in its entirety, to be participating, making an offer and acquiring Placing Shares (as defined below) on the terms and conditions contained herein and to be providing the representations, warranties, acknowledgements and undertakings contained in this Appendix.
In particular each such Placee represents, warrants and acknowledges that it:
1. is a Relevant Person and undertakes that it will acquire, hold, manage or dispose of any Placing Shares that are allocated to it for the purposes of its business;
2. in the case of a Relevant Person in a member state of the EEA which has implemented the Prospectus Directive (each a "Relevant Member State") who acquires any Placing Shares pursuant to the Placing:
a. it is a Qualified Investor; and
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:
i. the Placing Shares acquired by it in the Placing have not been acquired on behalf of, nor have they been acquired with a view to their offer or resale to, persons in any Relevant Member State other than Qualified Investors or in circumstances in which the prior consent of HSBC Bank plc (the "Bookrunner") has been given to the offer or resale; or
ii. where Placing Shares have been acquired by it on behalf of persons in any member state of the EEA other than Qualified Investors, the offer of those Placing Shares to it is not treated under the Prospectus Directive as having been made to such persons; and
3. is acquiring the Placing Shares for its own account or is acquiring the Placing Shares for an account with respect to which it exercises sole investment discretion and has the authority to make and does make the acknowledgements, representations and agreements contained in this Appendix, and that it (and any such account) is outside the United States, or it is a dealer or other professional fiduciary in the United States holding an account on a discretionary basis for non-US beneficial owners (other than an estate or trust), in reliance on Regulation S under the Securities Act.
The distribution of this announcement (including this Appendix) and the Placing or issue of the Placing Shares in certain jurisdictions may be restricted by law. No action has been taken by the Company, the Bookrunner or any of its affiliates that would permit an offer of the Placing Shares or possession or distribution of this announcement (including this Appendix) or any other offering or publicity material relating to such Placing Shares in any jurisdiction where action for that purpose is required. Persons into whose possession this announcement (including this Appendix) comes are required by the Company and the Bookrunner to inform themselves about and to observe any such restrictions.
In this Appendix, unless the context otherwise requires, "Placee" means a person (including individuals, funds or others) on whose behalf a commitment to acquire Placing Shares has been given pursuant to the Placing.
Publicly Available Information
A prospectus has been or will be submitted to be approved by the FCA in relation to Admission of the New Shares (including the Placing Shares) and the Placees' commitments will be made solely on the basis of the information contained in the prospectus, this announcement (including this Appendix) and any information publicly announced to a Regulatory Information Service by or on behalf of the Company on or prior to the date of this announcement (the "Publicly Available Information"). Each Placee, by accepting a participation in the Placing, agrees that the content of this announcement and all other Publicly Available Information previously or simultaneously published by the Company by notification to a Regulatory Information Service or otherwise filed by the Company is exclusively the responsibility of the Company and, in the case of the Prospectus, the Directors. Each Placee, by participating in the Placing, agrees that it has neither received nor relied on any information, representation, warranty or statement made by or on behalf of the Bookrunner or the Company or any other person, other than, in the case of the Company, the Publicly Available Information and none of the Bookrunner, the Company or any person acting on any such person's behalf or any of their affiliates has or shall have any responsibility or liability for any Placee's decision to participate in the Placing based on any other information, representation, warranty or statement. Each Placee acknowledges and agrees that it has relied on its own investigation of the business, financial or other position of the Company in participating in the Placing. Nothing in this paragraph shall exclude the liability of any person for fraudulent misrepresentation.
Details of the Placing and the Placing Shares
The Bookrunner has today entered into a placing agreement (the "Placing Agreement") with the Company under which the Bookrunner has undertaken, on the terms and subject to the conditions set out in the Placing Agreement, to use its reasonable endeavours as agent of the Company to seek to procure Placees for new Ordinary Shares of 25 pence each in the Company (the "Placing Shares"), on the terms and subject to the conditions set out therein. In accordance with the terms of the Placing Agreement and subject, inter alia, to the execution of a terms of placing setting out the final number of Placing Shares and the final Placing Price (as defined below), if any Placees fail to take up their allocation of Placing Shares at the Placing Price, the Bookrunner has agreed to take up such shares and the Company agrees to allot and issue such shares to the Bookrunner, at the Placing Price, on and subject to the terms set out in the Placing Agreement.
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.
The Placing is conditional, inter alia, upon Admission becoming effective and the Placing Agreement not being terminated. It is anticipated that the settlement date will be 26 November 2014.
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 25 pence per share in the capital of the Company ("Ordinary Shares"), including the right to receive all dividends and other distributions declared, made or paid in respect of such Ordinary Shares after the date of issue of the Placing Shares.
Application for admission to listing and trading
Application will be made to the FCA for admission of the New Shares (including the Placing Shares) to the premium listing segment of the official list maintained by the FCA (the "Official List") and to the London Stock Exchange plc for admission to trading of the New Shares (including the Placing Shares) on the London Stock Exchange's main market for listed securities (together "Admission").
It is expected that Admission will become effective at 8.00 a.m. (London time) on 26 November 2014 and that dealings in the New Shares (including the Placing Shares) on the London Stock Exchange plc's main market for listed securities will commence at the same time.
Terms and conditions
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 in respect of any Placing Shares.
Participation in, and Principal Terms of, the Placing
1. HSBC Bank plc is acting as Bookrunner and agent 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 Bookrunner.
3. The Placing Shares are expected to be issued to institutional investors at a price of 248 pence per share (the "Placing Price"), payable to the Bookrunner by all Placees. An announcement will be made on a Regulatory Information Service following the completion of the Placing.
4. By participating in the Placing, prospective Placees will be deemed to have read and understood this announcement (including this Appendix) and the Prospectus in their entirety and to be participating and making an offer for Placing Shares on the terms and conditions, and to be providing the representations, warranties, indemnities, acknowledgments, agreements and undertakings contained in this Appendix.
5. The Placing is expected to close no later than 7.30 a.m. (London time) on 21 November 2014 but may be closed earlier at the discretion of the Bookrunner following consultation with the Company.
6. Each prospective Placee's allocation will be determined at the discretion of the Company following consultation with the Bookrunner and will be confirmed orally by the Bookrunner, as agent of the Company, as soon as practicable following this Announcement. The Bookrunner's oral confirmation of an allocation shall constitute an irrevocable legally binding commitment upon that person (who will at that point become a Placee) in favour of the Bookrunner 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 the Company's Articles of Association.
7. Each prospective Placee's allocation and commitment will be evidenced by a trade confirmation issued to such Placee by the Bookrunner. The terms of this Appendix will be deemed incorporated by reference therein.
8. Subject to paragraph 5 above, the Bookrunner may choose to accept offers, either in whole or in part, on the basis of allocations determined at its discretion and may scale down any offers for this purpose on such basis as they may determine.
9. An offer to acquire Placing Shares will be made on the terms and subject to the conditions in this Appendix and will be legally binding on the Placee on behalf of which it is made in favour of the Bookrunner and the Company and except with the Bookrunner's consent will not be capable of variation or revocation after the time at which it submitted. Each Placee will have an immediate, separate, irrevocable and binding obligation, owed to the Bookrunner, as principal, to pay to it (or as it may direct) in cleared funds an amount equal to the product of the Placing Price and the number of Placing Shares such Placee has agreed to acquire and the Company has agreed to allot and issue to that Placee.
10. Irrespective of the time at which a Placee's allocation(s) pursuant to the Placing is/are confirmed, settlement for all Placing Shares to be acquired pursuant to the Placing will be required to be made at the same time, on the basis explained below under "Registration and Settlement".
11. All obligations under the 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 under "Termination of the Placing".
12. 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.
13. To the fullest extent permissible by law, neither the Bookrunner nor any of its affiliates shall have any liability to Placees (or to any other person whether acting on behalf of a Placee or otherwise). In particular, neither the Bookrunner nor any of its affiliates shall have any responsibility or liability (including, to the extent permissible by law, any fiduciary duties) in respect of the Bookrunner's conduct of the Placing.
Registration and Settlement
Settlement of transactions in the Placing Shares (ISIN: GB00B1H0DZ51) following Admission will take place in CREST. Subject to certain exceptions, the Bookrunner and the Company reserve the right to require settlement of, and delivery of, the Placing Shares to Placees by such other means that they deem necessary if delivery or settlement is not practicable in CREST within the timetable set out in this announcement or would not be consistent with the regulatory requirements in the Placee's jurisdiction.
If Placees are allocated any Placing Shares in the Placing they will be sent a contract note or electronic confirmation in accordance with the standing arrangements in place with HSBC Bank plc which will confirm the number of Placing Shares allocated to them, the aggregate amount owed by them to HSBC Bank plc 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 standing CREST or certificated settlement instructions which they have in place with HSBC Bank plc. Payment in full for any Placing Shares so allocated at the Placing Price must be made by no later than middayon 26 November 2014. Settlement of transactions in the Placing Shares following Admission will take place within the CREST system.
It is expected that settlement will be on 26 November 2014 on a T+3 basis. Settlement will be on a delivery versus payment basis. In the event of any difficulties or delays in the admission of the Placing Shares to CREST or the use of CREST in relation to the Placing, the Company and the Bookrunner may agree that the Placing Shares should be issued in certificated form. The Bookrunner reserves the right to require settlement for the Placing Shares, and to deliver the Placing Shares to Placees, by such other means as they deem necessary if delivery or settlement to Placees is not practicable within the CREST system or would not be consistent with regulatory requirements in a Placee's jurisdiction.
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 2 percentage points above prevailing LIBOR as determined by the Bookrunner.
If Placees do not comply with their obligations the Bookrunner may sell their Placing Shares on their behalf and retain from the proceeds, for its own account and benefit, an amount equal to the Placing Price of each share sold plus any interest due. Placees will, however, remain liable for any shortfall below the Placing Price and for any stamp duty or stamp duty reserve tax (together with any interest or penalties) or other similar taxes imposed in any jurisdiction which may arise upon the sale of their Placing Shares on their behalf. By communicating a bid for Placing Shares, each Placee confers on the Bookrunner all such authorities and powers necessary to carry out such sale and agrees to ratify and confirm all actions which the Bookrunner lawfully takes in pursuance of such sale.
If Placing Shares are to be delivered to a custodian or settlement agent, Placees must ensure that, upon receipt, the contract note or confirmation is copied and delivered immediately to the relevant person within that organisation. Insofar as Placing Shares are registered in a Placee's name or that of its nominee or in the name of any person for whom a Placee is contracting as agent or that of a nominee for such person, such Placing Shares should, subject as provided below, be so registered free from any liability to UK stamp duty or stamp duty reserve tax. Placees will not be entitled to receive any fee or commission in connection with the Placing.
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 the Bookrunner under the Placing Agreement are, and the Placing is, conditional upon, inter alia:
a. the Prospectus in connection with Admission having been published and made available in the manner specified in the Prospectus Rules, or in such other manner as the Company and the Bookrunner may agree in writing, by 12.00 p.m. (London time) on 21 November 2014;
b. the announcement giving details of the Placing Price and the number of Placing Shares (the "Pricing Announcement") being published through a Primary Information Provider (definition given under section 89P of FSMA) by 7.30 a.m. (London time) on 21 November 2014 (or such later time and/or date as the Company and the Bookrunner may agree in writing);
c. the Company allotting, subject only to Admission, the Placing Shares;
d. Admission occurring by no later than 8.00 a.m. (London time) on 26 November 2014 (or such later time and/or date as the Company and the Bookrunner may agree in writing);
e. the Company having complied with all of its obligations under the Placing Agreement to the extent the same fall to be performed or satisfied prior to Admission;
f. in the opinion of the Bookrunner, acting in good faith, the warranties in the Placing Agreement being true and accurate and not misleading on and as of the date of the Placing Agreement and at Admission (in each case as though they had been given and made at all such times by reference to the facts and circumstances then subsisting); and
g. the execution of the Terms of Placing by all the parties thereto (which in the case of its execution by the Bookrunner, shall be at the absolute discretion of the Bookrunner) prior to 7.30 a.m. on 21 November 2014 (or such later time and/or date as the Company and the Bookrunner may agree in writing).
If any of the conditions set out in the Placing Agreement is not fulfilled or, where permitted, waived in accordance with the Placing Agreement by the time and date specified or referred to therein (or such later time or date as the Company and the Bookrunner may agree in writing), the Placing will lapse and the 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 "Termination of the Placing" below and will not be capable of rescission or termination by it.
The Bookrunner may, at its discretion and upon such terms as they think fit, waive fulfilment of all or any of the conditions in the Placing Agreement or extend the time provided for fulfilment of any such conditions in respect of all or any part of the performance thereof, save that certain conditions may not be waived. Any such extension or waiver will not affect Placees' commitments as set out in this Appendix.
Neither the Bookrunner nor any of its affiliates nor the Company 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 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.
Termination of the Placing
Prior to Admission, the Bookrunner may, in its absolute discretion, terminate the Placing Agreement by giving notice in writing to the Company if:
a. in the opinion of the Bookrunner, acting in good faith: (i) there has been a breach by the Company of any of the warranties or undertakings contained in the Placing Agreement; (ii) any of the warranties is not or has ceased to be, true and accurate in all material respects and not misleading at any time up to and including Admission (by reference to the facts then subsisting); or (iii) a matter has arisen which might reasonably be expected to give rise to an indemnity given by the Company for inter alia any claim, action or proceeding, threatened or alleged against any of the Bookrunner or its affiliates; or
b. the Company is in breach of any of its obligations under the Placing Agreement in any respect which is material in the context of the Placing or Admission; or
c. the application of the Company for Admission is withdrawn or refused by the FCA or the London Stock Exchange ("LSE"); or
d. any matter has arisen which would require the publication of a supplementary prospectus pursuant to section 87G of FSMA; or
e. in the opinion of the Bookrunner, acting in good faith, there shall have been, whether or not foreseeable at the date of the Placing Agreement, a material adverse change; or
f. there has been a change in national or international financial, political, economic or stock market conditions (primary or secondary); an incident of terrorism, outbreak or escalation of hostilities, war, declaration of martial law or any other calamity or crisis; a suspension or material limitation in trading of the Ordinary Shares or securities generally on any stock exchange; any change in currency exchange rates or exchange controls or a disruption of settlement systems or a material disruption in commercial banking the effect of which (either singly or taken together with any other event referred to in this clause (f)) is such as to make it, in the opinion of the Bookrunner, acting in good faith, material in the context of the Placing or Admission, such as to make it impractical, inappropriate or inadvisable to proceed with Admission.
If the Placing Agreement is terminated in accordance with its terms, the rights and obligations of each Placee in respect of the Placing as described in this announcement (including this Appendix) shall cease and terminate at such time and no claim can be made by any Placee in respect thereof.
By participating in the Placing, each Placee agrees with the Company and the Bookrunner that the exercise by the Company or the Bookrunner of any right of termination or any other right or other discretion under the Placing Agreement shall be within the absolute discretion of the Company or the Bookrunner (as the case may be) and that neither the Company nor the Bookrunner need make any reference to such Placee and that none of the Company, the Bookrunner or any of its respective affiliates shall have any responsibility or liability to such Placee (or to any other person whether acting on behalf of a Placee or otherwise) whatsoever in connection with any such exercise.
By participating in the Placing, each Placee agrees that its rights and obligations terminate only in the circumstances described above and will not be capable of rescission or termination by it after oral confirmation by the Bookrunner following the close of the Placing.
Representations and Further Terms
By participating in the Placing, each prospective Placee (and any person acting on such Placee's behalf) represents, warrants, acknowledges and agrees (for itself and for any such prospective Placee) that:
1. it has read and understood this announcement (including this Appendix) and the Prospectus 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;
2. none of the Bookrunner, the Company or any of their affiliates or any person acting on behalf of any of them has provided, and will not provide, it with any material regarding the Placing Shares or the Company or any other person other than this announcement which is exclusively the responsibility of the Company and the Prospectus which is the exclusive responsibility of the Company and the Directors; nor has it requested either the Bookrunner, the Company, any of their affiliates or any person acting on behalf of any of them to provide it with any such information;
3. the Company's Ordinary Shares are listed on the Official List of the FCA, and that the Company is therefore required to publish certain business and financial information in accordance with the rules and practices of the FCA, which includes a description of the nature of the Company's business and the Company's financial information, including balance sheets and profit and loss accounts, and that it 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;
4. (i) it has made its own assessment of the Company, the Placing Shares and the terms of the Placing based on Publicly Available Information, (ii) none of the Bookrunner, the Company, or any of their respective affiliates has made any representation to it, express or implied, with respect to the Company, the Placing or the Placing Shares or the accuracy, completeness or adequacy of the Publicly Available Information and (iii) it has conducted its own investigation of the Company, the Placing and the Placing Shares, satisfied itself that the information is still current and relied on that investigation for the purposes of its decision to participate in the Placing;
5. the content of this announcement (including this Appendix) is exclusively the responsibility of the Company and that neither the Bookrunner nor any person acting on its behalf nor any of its affiliates is responsible for or has or shall have any liability for any information or representation relating to the Company contained in this announcement or any information previously published by or on behalf of the Company, including but not limited to, the Publicly Available Information, nor will it have any responsibility or liability for any Placee's decision to participate in the Placing based on any information, representation, warranty or statement contained in this announcement, the Publicly Available Information or otherwise. Nothing in this Appendix shall exclude any liability of any person for fraudulent misrepresentation;
6. the only information on which it is entitled to rely on and on which such Placee has relied in committing itself to acquire Placing Shares is contained in this announcement and in the Publicly Available Information, such information being all that such Placee deems necessary or appropriate and sufficient to make an investment decision in respect of the Placing Shares and that it has neither received nor relied on any other information given, or representations, warranties or statements made, by the Bookrunner or the Company nor any of their respective affiliates and neither the Bookrunner 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, provided that nothing in this Appendix shall exclude any liability of any person for fraudulent misrepresentation;
7. it has neither received nor relied on any inside information concerning the Company prior to or in connection with accepting this invitation to participate in the Placing and is not purchasing Placing Shares on the basis of material non-public information;
8. that the Bookrunner may, subject to the terms of the Placing Agreement and in accordance with applicable legal and regulatory provisions, engage in transactions in relation to the Placing Shares or the Ordinary Shares and/or related instruments for its own account for the purpose of hedging its underwriting exposure or otherwise and, except as required by applicable law or regulation, the Bookrunner will not make any public disclosure in relation to such transactions;
9. it is not, and at the time the Placing Shares are acquired will not be, a resident of Australia, Canada, South Africa or Japan, and each of it and the beneficial owner of the Placing Shares is, and at the time the Placing Shares are acquired will be, outside the United States and acquiring the Placing Shares in an 'offshore transaction' in accordance with Rule 903 or Rule 904 of Regulation S under the Securities Act;
10. the Placing Shares have not been registered or otherwise qualified, and will not be registered or otherwise qualified, for offer and sale nor will a prospectus be cleared in respect of any of the Placing Shares under the securities laws of Australia, Canada, South Africa, Japan or the United States of America and, subject to certain exceptions, may not be offered, sold, taken up, renounced or delivered or transferred, directly or indirectly, within Australia, Canada, South Africa, Japan or the United States of America;
11. it and, if relevant, each person on whose behalf it is participating: (i) is entitled to acquire Placing Shares pursuant to the Placing under the laws of all relevant jurisdictions; (ii) has fully observed such laws; (iii) has capacity and authority and is entitled to enter into and perform its obligations as an acquirer of Placing Shares and will honour such obligations; and (iv) has obtained all necessary consents and authorities (including, without limitation, in the case of a person acting on behalf of a Placee, all necessary consents and authorities to agree to the terms set out or referred to in this Appendix) to enable it to enter into the transactions contemplated hereby and to perform its obligations in relation thereto;
12. that the Bookrunner: (i) has absolute discretion: (A) as to whether to enforce, waive, vary or extend the time for the exercise of any conditions, obligations, undertakings, representations or warranties in the Placing Agreement; and (B) acting in good faith, as to whether to terminate its obligations under the Placing Agreement; and (ii) shall have no obligation to: (A) consult with it; or (B) act in furtherance of or otherwise take its interests into account; or (C) seek its consent in each case regarding any determination whether to take any of the steps necessary in sub-clause (i) above or to exercise any other right or discretion given to them or which they are entitled to exercise whether under the Placing Agreement or otherwise. For the avoidance of doubt, but without limiting the generality of the foregoing, the Bookrunner (x) is entitled to act in furtherance of and otherwise take into account its own interests when determining whether to take or taking any of the steps set out in sub-clause (i) above or deciding whether to exercise or exercising any other right or discretion given to it or which they are entitled to exercise whether under the Placing Agreement or otherwise; and (y) is not acting in a fiduciary or advisory capacity with respect to it or its interests and, as such, owe it no obligations of any nature whatsoever, other than those expressly set out in this announcement (including the Appendix); and (z) shall have no responsibility or liability to it in relation to the taking of any of the steps set out in sub-clause (i) above or the exercise of any other right or discretion given to them or which they are entitled to exercise whether under the Placing Agreement or otherwise (other than liability arising out of the fraud or wilful default of the Bookrunner);
13. the Placing Shares have not been, and will not be, registered under the Securities Act and, subject to certain exceptions, may not be offered, sold, transferred or delivered, directly or indirectly, in or into the United States except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and it will not offer, sell, pledge or otherwise transfer the Placing Shares except pursuant to an exemption from, or in a transaction to subject to, the registration requirements of the Securities Act and in any case in accordance with all applicable securities laws of the United States and any state or jurisdiction of the United States;
14. its acquisition of Placing Shares is in full compliance with applicable laws and regulations;
15. it will not distribute, forward, transfer or otherwise transmit this Appendix, or any other presentational 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;
16. none of the Bookrunner, or any of its affiliates, or any person acting on behalf of any such person, is making any recommendations to it, advising it regarding the suitability of any transactions it may enter into in connection with the Placing and that participation in the Placing is on the basis that it is not and will not be a client of the Bookrunner and that the Bookrunner has no duties or responsibilities to a Placee for providing protections afforded to its respective clients or for providing protections afforded to its clients under the rules of the FCA or for providing advice in relation to the Placing nor in respect of any representations, warranties, undertakings or indemnities contained in the Placing Agreement nor for the exercise or performance of any of its rights and obligations thereunder including any rights to waive or vary any conditions or exercise any termination right;
17. it (and any person acting on its behalf) will make payment to the Bookrunner in accordance with the terms and conditions of this announcement (including this Appendix) on the due time and date set out in this Appendix, failing which the relevant Placing Shares may be placed with others on such terms as the Bookrunner may in its sole discretion determine without responsibility or liability to the Placee and it will remain liable for any shortfall below the net proceeds of such sale and the placing proceeds of such Placing Shares and may be required to bear any stamp duty, stamp duty reserve tax or other similar taxes (together with any interest or penalties due pursuant to the terms set out or referred to in this announcement (including this Appendix)) which may arise upon the sale of such Placee's Placing Shares on its behalf;
18. its allocation (if any) of Placing Shares will represent a maximum number of Placing Shares which it will be entitled, and required, to acquire, and that the Company may call upon it to acquire a lower number of Placing Shares (if any), but in no event in aggregate more than the aforementioned maximum;
19. no action has been or will be taken by any of the Company, the Bookrunner or any person acting on behalf of the Company or the Bookrunner 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;
20. the person who it specifies for registration as holder of the Placing Shares will be (i) itself or (ii) its nominee, as the case may be. The Bookrunner and the Company will not be responsible for any liability to stamp duty, stamp duty reserve tax or other similar taxes resulting from a failure to observe this requirement. It (and any person acting on its behalf) agrees to acquire Placing Shares pursuant to the Placing and to indemnify the Company and the Bookrunner on the basis that the Placing Shares will be allotted to a CREST stock account of the Bookrunner who will hold them as nominee on behalf of the Placee until settlement in accordance with its standing settlement instructions with it;
21. 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 stamp duty or stamp duty reserve tax liability under (or at a rate determined under) any of sections 67, 70, 93 or 96 of the Finance Act 1986 (depository receipts and clearance services) and that it, and the person specified by it for registration as holder of Placing Shares (if relevant), is not participating in the Placing as nominee or agent for any person or persons to whom the allocation, allotment, issue or delivery of Placing Shares would give rise to such a liability;
22. (i) if in the United Kingdom, it and any person acting on its behalf falls within Article 19(5) and/or 49(2)(a) - (d) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005, as amended, 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 and (ii) it and any person acting on its behalf is entitled to acquire Placing Shares comprised in its allocation under the laws of all relevant jurisdictions which apply to it and that it has fully observed such laws and obtained all governmental and other consents which may be required thereunder and complied with all necessary formalities;
23. if in a Member State of the EEA, it is a qualified investor as defined in section 86(7) of FSMA, being a person falling within Article 2.1(e)(i), (ii) or (iii) of the Prospectus Directive;
24. it has only communicated or caused to be communicated and it will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of FSMA) relating to Placing Shares in circumstances in which section 21(1) of FSMA does not require approval of the communication by an authorised person;
25. it has complied and it will comply with all applicable provisions of FSMA with respect to anything done by it or on its behalf in relation to the Placing Shares in, from or otherwise involving, the United Kingdom;
26. it has not offered or sold and will not offer or sell any Placing Shares to persons in the European Economic Area prior to Admission except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purpose 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 European Economic Area within the meaning of the Prospectus Directive;
27. it has complied with its obligations in connection with money laundering and terrorist financing under the Proceeds of Crime Act 2002, the Terrorism Act 2000, and the Money Laundering Regulations 2007 (the "Regulations") (each as amended) 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;
28. it has knowledge and experience in financial, business and international investment matters as is required to evaluate the merits and risks of acquiring for the Placing Shares. It further acknowledges that it is experienced in investing in securities of this nature and (i) 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, (ii) will not look to the Bookrunner for all or any part of any such loss it may suffer, and (iii) has no need for liquidity with respect to its investment in the Placing Shares. 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;
29. its commitment to acquire Placing Shares on the terms set out herein and in the contract note or confirmation will continue notwithstanding any amendment that may in future be made to the terms of the Placing and that Placees will have no right to be consulted or require that their consent be obtained with respect to the Company's conduct of the Placing;
30. the Company, the Bookrunner and others will rely upon the truth and accuracy of the foregoing representations, warranties, acknowledgements and agreements, which are irrevocable;
31. the Placing Shares will be issued to Placees subject to the terms and conditions of this Appendix; and
32. any agreements entered into by it pursuant to the terms and conditions set out in this Appendix, and all non-contractual or other obligations arising out of or in connection with them, 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 (including any dispute regarding the existence, validity or termination of such contract or relating to any non-contractual or other obligation arising out of or in connection with 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 either the Company or the Bookrunner 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.
By participating in the Placing, each Placee (and any person acting on such Placee's behalf) agrees to indemnify on an after-tax basis and hold harmless the Company and the Bookrunner 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.
Please also note that the agreement to allot and issue Placing Shares to Placees (or the persons for whom Placees are contracting as nominee) 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, direct by the Company. Such agreement assumes that the Placing Shares are not being acquired in connection with arrangements to issue depositary receipts or to transfer the Placing Shares into a clearance service. If there were any such arrangements, or the settlement related to other dealings in the Placing Shares, stamp duty, stamp duty reserve tax or other similar taxes may be payable, for which neither the Company nor the Bookrunner would be responsible and the Placees shall indemnify the Company and the Bookrunner on an after-tax basis for any stamp duty or stamp duty reserve tax paid by them in respect of any such arrangements or dealings. If this is the case, it would be sensible for Placees to take their own advice and they should notify the Bookrunner accordingly. In addition, Placees should note that they will be liable for any capital duty, stamp duty and all other stamp, issue, securities, transfer, registration, documentary or other duties or taxes (including any interest, fines or penalties relating thereto) payable outside the UK by them or any other person on the acquisition by them of any Placing Shares or the agreement by them to acquire any Placing Shares and each Placee, or the Placee's nominee, in respect of whom (or in respect of the person for whom it is participating in the Placing as nominee) the allocation, allotment, issue or delivery of Placing Shares has given rise to such non-UK stamp, registration, documentary, transfer or similar taxes or duties undertakes to pay such taxes and duties, including any interest and penalties (if applicable), forthwith and to indemnify on an after-tax basis and to hold harmless the Company and the Bookrunner in the event that any of the Company and/or the Bookrunner has incurred any such liability to such taxes or duties.
The representations, warranties, acknowledgements and undertakings contained in this Appendix are given to the Company and to the Bookrunner for itself and on behalf of the Company and are irrevocable.
Each Placee and any person acting on behalf of a Placee acknowledges that the Bookrunner owes no fiduciary or other duties to any Placee in respect of any representations, warranties, undertakings or indemnities in the Placing Agreement.
Each Placee and any person acting on behalf of a Placee acknowledges and agrees that the Bookrunner or any of its affiliates may (at its absolute discretion) satisfy its obligations to procure Placees by itself agreeing to become a Placee in respect of some or all of the Placing Shares or by nominating any connected or associated person to do so.
When a Placee or any person acting on behalf of a Placee is dealing with the Bookrunner, any money held in an account with the Bookrunner on behalf of that Placee and/or any person acting on behalf of that Placee will not be treated as client money within the meaning of the relevant rules and regulations of the FCA made under FSMA. Each 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 Bookrunner's money in accordance with the client money rules and will be used by such Bookrunner in the course of its own business and the Placee will rank only as a general creditor of the Bookrunner. All times and dates in this announcement may be subject to amendment. The Bookrunner will notify Placees and any persons acting on behalf of the Placees of any changes.
Notwithstanding anything in the foregoing, the Company and the Bookrunner reserve the right to deal with persons in the United Kingdom who are not Relevant Persons if such persons satisfy them that they may otherwise lawfully participate in the Placing.
This information is provided by RNS
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