Acquisition of RESORBA
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, CANADA, AUSTRALIA, JAPAN OR SOUTH AFRICA OR ANY OTHER STATE OR JURISDICTION IN WHICH SUCH RELEASE, PUBLICATION OR DISTRIBUTION WOULD BE UNLAWFUL
Strictly Embargoed until 07.00 2 December 2011
Advanced Medical Solutions Group plc ("AMS", the "Company" or the "Group")
Placing of 47,236,112 new Ordinary Shares in AMS at a price of 72 pence per share to raise approximately £34.0 million in connection with the proposed acquisition of RESORBA Wundversorgung GmbH & co. KG
The Board of AMS (AIM: AMS), the global medical technology company, is pleased to announce today the proposed acquisition of RESORBA, a long established wound care and wound closure business headquartered in Germany for a total cash consideration of €63.8 million (approximately £55 million) on a debt-free, cash-free basis to be paid, in full, on completion. To fund the acquisition, the Board of AMS also announces today a non pre-emptive institutional placing (the "Placing") of 47,236,112 new Ordinary Shares in AMS (the "Placing Shares") at a price of 72 pence per Placing Share (the "Placing Price"), to raise approximately £34.0 million (£30.5 million net of acquisition and placing expenses), together with a €25.0 million term loan facility.
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The acquisition of RESORBA fulfils all of AMS's strategic acquisition criteria and provides a number of commercial synergy opportunities as it: |
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Broadens the Group's technology portfolio in both wound care and wound closure; |
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Provides direct sales capability into the operating room in Germany, Czech Republic and Russia; |
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Provides significant cross-selling opportunities and product development potential; |
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Provides access to a new market - oral surgery; |
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Leverages AMS's global distribution network and regulatory expertise to bring existing RESORBA products to new markets; and |
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Provides development opportunities in the short, medium and long term |
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RESORBA is well known to AMS as it currently distributes its LiquiBand® wound closure product and has done for more than eight years |
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Acquisition is expected to be earnings per share enhancing in the twelve months ending 31 December 20121 |
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Senior management of RESORBA will be joining the Enlarged Group and investing a material proportion of their net proceeds from the Acquisition in AMS shares |
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Significant shareholder support for the Placing |
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1 This statement is not intended, nor is to be construed as a profit forecast or to be interpreted to mean that earnings per AMS Share for the current or future financial years, or those of the Enlarged Group, will necessarily match or exceed the historical earnings per AMS Share.
Commenting on the Acquisition, Chris Meredith, Chief Executive Officer of AMS said:
"Part of our core growth strategy has been to examine potential acquisition opportunities that strengthen our business with complementary technologies and greater market access, specifically in relation to the operating room segment of our global business. It is rare to find a business that fits our criteria as well as RESORBA does. We have known RESORBA for a number of years as a result of our LiquiBand® relationship, and I am confident that the enlarged AMS Group will benefit from a wide range of commercial opportunities that will enable us to continue the strong progress made in recent years."
The Placing is conditional, inter alia, on Shareholder approval of the Special Resolution at the General Meeting. It is expected that the Company will post a Circular to all AMS Shareholders today with details of the Placing, Acquisition, the New Debt Facility and giving notice of the General Meeting, to be held at 11.00 a.m. on 19 December 2011 at the offices of Investec Bank plc, 2 Gresham Street, London EC2V 7QP. A copy of this Announcement and the Circular will be available on the Company's website, www.admedsol.com.
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For further information, please contact: |
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Advanced Medical Solutions Group plc Chris Meredith, Chief Executive Officer Mary Tavener, Finance Director
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Tel: +44 (0) 1606 545508 |
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Investec Bank plc (NOMAD) and Broker Gary Clarence Patrick Robb Daniel Adams Cara Griffiths
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Tel: +44 (0) 20 7597 5970 |
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Tavistock Communications John West Chris Munden Andrew Dunn
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Tel: +44 (0) 20 7920 3150 |
This Announcement does not constitute or form part of any offer or instruction to purchase, subscribe for or sell any shares or other securities in the Company nor shall it nor any part of it nor the fact of its distribution form the basis of, or be relied on in connection with, any contract therefor. This Announcement provides information about the Placing, but does not invite participation in the Placing. This Announcement does not constitute, and the Company is not making, an offer to the public of transferable securities within the meaning of sections 85 and 102B of FSMA nor does it constitute an admission document drawn up in accordance with the AIM Rules for Companies. This Announcement is therefore not an approved prospectus for the purposes of section 85 of FSMA, and has not been prepared in accordance with the prospectus rules of the FSA and as such neither its contents nor its issue have been approved by the FSA or by any authority which would be a competent authority for the purposes of any legislation that implements the EU Prospectus Directive.
The Placing Shares have not been, and will not be, registered under the United States Securities Act 1933 (as amended) or under the applicable securities laws of Canada, Japan, Australia or South Africa. Accordingly the Placing Shares may not be, directly or indirectly, offered, sold, taken up, delivered or transferred in or into the United States, Canada, Japan, Australia or South Africa. The distribution of this Announcement in jurisdictions other than the United Kingdom may be restricted by law and therefore persons who receive this Announcement should inform themselves about and observe the laws governing those jurisdictions. Any failure to comply with any restrictions may constitute a breach of securities laws of any such jurisdictions.
Investec Bank plc, which is authorised and regulated in the United Kingdom by the FSA, is acting as nominated adviser, broker and underwriter to the Company in relation to the Placing and Admission and is not acting for any other persons in relation to the Placing and Admission. Investec Bank plc is acting exclusively for the Company and for no one else in relation to the matters described in this Announcement and is not advising any other person and accordingly will not be responsible to anyone other than the Company for providing the protections afforded to clients of Investec Bank plc, or for providing advice in relation to the contents of this Announcement or any matter referred to in it. The responsibilities of Investec Bank plc as the Company's nominated adviser and broker under the AIM Rules for Companies and the AIM Rules for Nominated Advisers are owed solely to the London Stock Exchange and are not owed to the Company or to any Director, Shareholder or any other person, in respect of any decision to acquire or dispose of shares in the capital of AMS in reliance on any part of this Announcement, or otherwise.
No liability is accepted by Investec Bank plc nor does it make any representation or warranty, express or implied, in relation to, the contents of this Announcement, including its accuracy, completeness or verification or for any other statement made or purported to be made by it, or on its behalf, in connection with the Company and the Placing and accordingly Investec Bank plc disclaims all and any responsibility or liability whether arising in tort, contract or otherwise which it might otherwise have in respect of this Announcement or any such statement. Investec Bank plc has not authorised the contents, or any part, of this Announcement. Investec Bank plc may, in accordance with applicable legal and regulatory provisions, engage in transactions in relation to the Ordinary Shares (including the Placing Shares) and/or related instruments for its own account for the purposes of hedging its underwriting exposure or otherwise. Except as required by applicable law or regulation, Investec Bank plc does not propose to make any public disclosure in relation to any such transactions.
Members of the public are not eligible to take part in the Placing. This Announcement and the terms and conditions set out in this Announcement are for information purposes only and are directed only at persons who are: (a) (i) investment professionals falling within article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (the "Order"), or (ii) persons falling within article 49(2)(a) to (d) ("high net worth companies, unincorporated associations, etc") of the Order, or (iii) persons to whom it may otherwise be lawfully communicated; and (b) (i) persons in member states of the European Economic Area who are qualified investors (as defined in article 2(1)(e) of EU Directive 2003/71/ec (the "Prospectus Directive")), and/or (ii) persons in the United Kingdom who are qualified investors (all such persons together being referred to as "Relevant Persons"). This Announcement and the terms and conditions set out in this Announcement must not be acted on or relied on by persons who are not Relevant Persons. Any investment or investment activity to which this Announcement (including the Appendix) and the terms and conditions set out in this Announcement relate is available only to Relevant Persons and will be engaged in only with Relevant Persons.
Persons (including individuals, funds or otherwise) by whom or on whose behalf a commitment to acquire Placing Shares has been given ("Placees") will be deemed to have read and understood this Announcement, in its entirety 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. In particular, each such Placee represents, warrants and acknowledges that it is: (i) 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; and (ii) outside the United States and is subscribing for the Placing Shares in an "offshore transaction" (within the meaning of Regulation S under the United States Securities Act of 1933, as amended (the "Securities Act")).
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 "aim", "anticipate", "believe", "intend", "plan", "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. By their nature, forward-looking statements involve risk and uncertainty because they relate to future events and circumstances. 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, except as required by applicable law, the Company does not assume any responsibility or obligation to update publicly or review any of the 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.
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, CANADA, AUSTRALIA, JAPAN OR SOUTH AFRICA OR ANY OTHER STATE OR JURISDICTION IN WHICH SUCH RELEASE, PUBLICATION OR DISTRIBUTION WOULD BE UNLAWFUL
2 December 2011
Advanced Medical Solutions Group plc ("AMS", the "Company" or the "Group")
Placing of 47,236,112 new Ordinary Shares in AMS at a price of 72 pence per share to raise approximately £34.0 million in connection with the proposed acquisition of RESORBA Wundversorgung GmbH & co. KG
Introduction
The Board of AMS is pleased to announce today the proposed acquisition of RESORBA, a long established wound care and wound closure business headquartered in Germany. The total cash consideration is €63.8 million (approximately £55 million) on a debt-free, cash-free basis to be paid, in full, on completion. To fund the Acquisition, the Board of AMS also announces today a non pre-emptive institutional placing (the "Placing") of 47,236,112 new Ordinary Shares in AMS (the "Placing Shares") at a price of 72 pence per Placing Share (the "Placing Price"), to raise approximately £34.0 million (£30.5 million net of acquisition and placing expenses), together with a €25.0 million term loan facility.
Acquisition overview
The Board of AMS has conditionally agreed to acquire RESORBA from Brockhaus Private Equity, a German private equity firm, and the RESORBA management shareholders. RESORBA is a manufacturer and distributor of surgical sutures and collagen products for surgical disciplines. Headquartered in Nuremberg, RESORBA was founded over 75 years ago and today employs approximately 175 people.
The total consideration for the Acquisition is €63.8 million in cash, on a debt-free, cash-free basis, which will be paid in cash on completion of the Acquisition. The Consideration is being funded through the proceeds of the Placing, the New Debt Facility and existing cash resources. The Acquisition is expected to be earnings per share enhancing in the twelve months ending 31 December 2012 2.
The RESORBA management team, led by the Chief Executive Officer, Christian Huber, will be joining the Enlarged Group on a permanent basis following Completion. As described in the "Management Participation in new Ordinary Shares" section below, they intend to reinvest a material proportion of their net proceeds from the Acquisition into the Enlarged Group.
2 This statement is not intended, nor is to be construed as a profit forecast or to be interpreted to mean that earnings per AMS Share for the current or future financial years, or those of the Enlarged Group, will necessarily match or exceed the historical earnings per AMS Share.
The Acquisition and Placing are conditional on, inter alia, Shareholder approval of the Special Resolution by Shareholders and Admission.
Information on RESORBA
Overview
RESORBA is a manufacturer and distributor of surgical sutures and collagen products for surgical disciplines. It has direct sales capabilities through three sites in Germany, the Czech Republic and Russia, targeting surgeons working in hospitals, private practices and oral surgery. The majority of its sales arise from the German domestic market. It has manufacturing facilities in Germany and the Czech Republic.
Products
RESORBA focuses on the surgical and dental / oral surgery markets through its core technologies of surgical sutures and collagen products.
RESORBA's heritage is in the manufacture and distribution of surgical sutures for use by surgeons in the operating room. Not only does RESORBA provide a comprehensive range of products, including absorbable and non-absorbable sutures, it also has the flexibility and manufacturing capability to work with its customers to accommodate specific, bespoke requests from surgeons. RESORBA has, through its sales force, been able to establish direct relationships with surgeons in Germany, the Czech Republic and Russia.
RESORBA's other core products are its surgical dressings derived from their proprietary, IP protected collagen technology platform. RESORBA produces collagen-based products which serve a number of surgical applications, including for use in haemostasis and in antimicrobial and surgical dressings. RESORBA also manufactures collagen products under private label for a major global healthcare company for use in highly sensitive fields such as neurosurgery.
More recently, RESORBA has moved into the dental / oral surgery market. Through a combination of its existing technologies, surgical sutures and collagen, RESORBA is able to offer oral surgeons a complete "Repair and Regenerate" approach to oral wound care and wound closure, distinguishing it from its competitors.
In addition to its own technologies, RESORBA offers a range of complementary third party products, which it distributes through its direct sales force. Products include AMS's LiquiBand® adhesive along with other single use devices which RESORBA does not manufacture or develop itself. These third party products are not currently the focus of the sales team however this enables its sales force to offer its customers a more comprehensive wound closure product portfolio.
Sales and distribution
RESORBA's products are focused on the operating room and, in Germany, RESORBA accesses its markets through three distinct sales channels: (i) surgeons in hospitals, (ii) surgeons performing surgical procedures in private practices and (iii) dental surgeons who perform more complex oral procedures than regular dentistry. Access to hospitals and private practices involves selling directly to the surgeons as well as, in the case of hospitals, to hospital buying groups through RESORBA's direct sales team, supported by a key account manager and non-direct distributors. Dental surgeons are served both by the general direct sales team and also a full time specialist dental sales team of four, who focus on densely populated and more affluent metropolitan areas in Germany.
In addition to Germany, RESORBA operates a direct sales force in the Czech Republic and Russia through its offices in those countries. RESORBA has, in the last eighteen months, also put in place a network of third party distributors to help grow its export business, focusing on the dental / oral surgery market.
Financial information
The table below is a summary of RESORBA's unaudited financial information extracted from management information for the financial years to 31 December 2008 and 31 December 2009, and the audited accounts for the year ended 31 December 2010 3.
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Year ended 31 December (€ millions) |
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2010 |
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Revenue |
18.5 |
19.1 |
20.1 |
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Underlying EBITDA 3 4 |
6.7 |
7.2 |
7.2 |
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Operating EBIT |
6.1 |
6.6 |
6.6 |
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Free cash flow before interest, financing and taxation5 |
4.9 |
8.1 |
5.5 |
3. Adjustments made to arrive at underlying EBITDA have been extracted from unaudited financial information
4. Underlying EBITDA is the assessment by AMS's Directors of the trading position of RESORBA, adjusting for one-off items and non-recurring costs and income (2008: €nil; 2009 €0.4m; 2010: €0.2m)
5. 2009 free cash flow included a one-off €0.6m receipt from the sale of property
For the year ended 31 December 2010, RESORBA reported a profit before tax of €2.0 million, which was stated after charging €2.1 million of goodwill amortisation and amortisation of other intangible assets relating to the acquisition of RESORBA in 2009 by its current owner, and €2.3 million of net financial costs, reflecting the capital structure currently in the business but which will not exist following completion. Gross assets as at 31 December 2010 were €39.3 million, excluding €1.3 million of cash.
Acquisition rationale
The Company's stated strategy is to support growth by maximising the value of its brands, including LiquiBand® and ActivHealTM; to strengthen its commitment to support partners and develop innovative wound care products; to enhance the Company's ability to generate growth from its operating room product range; and to supplement organic growth with further licensing and acquisition activity.
The Directors expected to achieve its stated acquisition strategy through a number of smaller bolt-on acquisitions. However, in RESORBA, the Directors believe they have identified a business that fulfils all of their key aims in a single acquisition.
In addition to capitalising on existing technologies and infrastructure, AMS has identified a number of commercial synergies with RESORBA it believes it can exploit in the short to medium term and beyond:
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Market LiquiBand® through RESORBA's direct surgical sales force; |
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Apply for regulatory clearance for LiquiBand® for use in oral surgery (process is already underway). The Directors believe regulatory approval can be secured in a reasonably short time frame and for a relatively low cost; |
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Develop private label suture products in new markets; AMS has already had indications in the past from its partner base that this would be a welcome addition to their portfolio; |
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Develop the collagen technology in a similar fashion to the Company's foam technology and sell through the Group's global partner base; |
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Develop a range of surgical dressings using the Group's existing technologies in the chronic wound care market and distribute them to the operating room market via RESORBA's sales team. |
Group current trading and prospects
The Group highlighted at the time of its interim results on 7 September 2011 that it was being impacted by destocking at one of its major European wound care partners. While this destocking continues, the Directors expect profit before tax to be in line with the Board's expectations for the full year and the Board remains confident and optimistic about the long term prospects for the Group.
Placing overview
AMS announces today a placing of 47,236,112 Placing Shares on a non pre-emptive basis to institutional investors and other professional investors at the Placing Price, to raise approximately £34.0 million (£30.5 million net of expenses relating to the Placing and the Acquisition). The Placing Shares being issued pursuant to the Placing represent approximately 30.4 per cent. of the Existing Ordinary Shares. The Placing Price of 72 pence per share represents a 0.7 per cent. discount to the closing price of 72.5 pence per Ordinary Share on 1 December 2011 (being the latest practicable date prior to the publication of this Announcement).
The proceeds of the Placing will be used to partially fund the total cash consideration for the Acquisition, with the balance funded through the New Debt Facility and existing cash resources.
The Placing has been fully underwritten by Investec, pursuant to the terms of the Placing Agreement entered into by AMS and Investec today and is conditional on, inter alia, the passing of the Special Resolution to disapply pre-emption rights (without amendment) at the General Meeting and Admission. Application for Admission will be made and settlement of the Placing Shares together with Admission is expected to become effective on 20 December 2011 (the "Closing Date"). On Admission, the Placing Shares will rank pari passu in all respects with the existing Ordinary Shares.
The Appendix to this Announcement (which forms part of this Announcement) sets out the terms and conditions of the Placing. Persons who have chosen to participate in the Placing, by making an oral or written offer to acquire Placing Shares, will be deemed to have read and understood this Announcement in its entirety (including the Appendix) and to be making such offer on the terms and subject to the terms and conditions herein, and to be providing the representations, warranties and acknowledgements contained in the Appendix.
Management Participation in new Ordinary Shares
Christian Huber, Chief Executive Officer of RESORBA, René Raepple, Chief Commercial Officer of RESORBA, and Thomas Duy, Chief Financial Officer, of RESORBA, have agreed to subscribe for, in aggregate, 965,388 new Ordinary Shares at the Placing Price.
Penny Freer, Non-Executive Director of AMS is subscribing for 13,888 Placing Shares at the Placing Price. In addition, three senior managers at AMS are subscribing for a total of 12,915 new Ordinary Shares at the Placing Price.
New Debt Facilities
AMS has arranged the New Debt Facilities which comprise:
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a €25.0 million amortising term loan facility to fund part of the cash consideration of the Acquisition; and |
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a £8.0 million revolving credit facility which will be used for general working capital purposes and is not expected to be drawn down on completion of the Acquisition. |
Both the term loan and the revolving credit facility have a maturity of 31 July 2015. If the Acquisition were not to complete for any reason, the New Debt Facilities will fall away. The New Debt Facilities replace AMS's existing facility.
The Directors expect, for the year ending 31 December 2011, that the pro forma net debt to EBITDA ratio of the Enlarged Group will be approximately 1.5x.
DEFINITIONS
The following definitions apply throughout this Announcement unless the context otherwise requires:
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"Acquisition"
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means the proposed acquisition of RESORBA Wundversorgung GmbH & co. KG pursuant to the Acquisition Agreement; |
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"Acquisition Agreement" |
the agreement pursuant to which AMS has agreed to acquire RESORBA;
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"Act" |
the Companies Act 2006 (as amended)
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"Admission" |
admission of the Placing Shares to trading on AIM becoming effective in accordance with Rule 6 of the AIM Rules
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"AIM" |
the market of that name operated by the London Stock Exchange
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"AIM Rules" |
the AIM Rules for Companies as published by the London Stock Exchange from time to time
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"AMS" or the "Company" or the "Group" |
Advanced Medical Solutions Group plc
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"Announcement" |
means this announcement (including the appendices to this announcement)
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"Circular" |
the circular to Shareholders dated 2 December 2011 containing details of the Placing and the Notice of General Meeting
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"CREST" |
the relevant system (as defined in the Uncertificated Securities Regulations 2001) for the paperless settlement of trades and the holding of uncertificated securities operated by Euroclear UK & Ireland Limited
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"Directors" or "Board" |
the directors of the Company, or any duly authorised committee thereof
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"Enlarged Share Capital" |
the issued ordinary share capital of the Company immediately following Admission
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"Existing Ordinary Shares" or "Existing Issued Share Capital" |
the 155,301,952 Ordinary Shares in issue at the date of this Announcement
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"FSA" |
the Financial Services Authority in its capacity as the competent authority for the purposes of Part VI of FSMA
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"FSMA" |
the Financial Services and Markets Act of 2000 (as amended)
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"General Meeting" |
the general meeting of the Company to be held on at 11.00 a.m. at the offices of Investec, 2 Gresham Street, London EC2V 7QP on 19 December 2011, notice of which is set out at the end of the Circular
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"Group" |
the Company, its subsidiaries and its subsidiary undertakings
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"Investec" |
Investec Bank plc, the Company's nominated adviser and placing agent
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"London Stock Exchange" |
London Stock Exchange plc
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"New Debt Facilities" |
the conditional €25 million term loan facility and the £8 million revolving credit facility granted to the Company by HSBC Bank plc pursuant to the New Debt Facility Agreement;
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"New Debt Facilities Agreement" |
the facilities agreement dated 2 December 2011 between (1) HSBC Bank plc (in various capacities including mandated lead arranger, agent and lender) (2) HSBC Corporate Trustee Company (UK) Limited (as security trustee) and (3) the Company pursuant to which the New Debt Facilities are to be provided;
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"Notice of General Meeting" |
the notice convening the General Meeting which is set out at the end of the Circular
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"Ordinary Shares" |
ordinary shares of 5 pence each in the capital of the Company
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"Placee" |
the institutional and other professional investors who accept the allotment of the Placing Shares
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"Placing" |
the conditional placing of the Placing Shares at the Placing Price by Investec as agent for and on behalf of the Company pursuant to the terms of the Placing Agreement
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"Placing Agreement" |
the agreement dated 2 December 2011 between (i) the Company and (ii) Investec relating to the Placing, further details of which are set out in this Announcement
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"Placing Documents" |
this Announcement or any other presentation, document or announcement issued or published by or on behalf of AMS in connection with Placing (together, the "Placing Documents")
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"Placing Price" |
72 pence per Placing Share
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"Placing Shares" |
the 47,236,112 Placing Shares of 5 pence each to be issued in connection with the Placing
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"Resolutions" |
the resolutions set out in the Notice of General Meeting
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"Special Resolution" |
the special resolution set out in the Notice of General Meeting;
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"RESORBA" |
RESORBA Wundversorgung GmbH & co. KG
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"Shareholders" |
holders of Ordinary Shares
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"UK" or "United Kingdom" |
the United Kingdom of Great Britain and Northern Ireland
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"United States" or "USA" |
United States of America, its territories and possessions, any state of the United States of America and the District of Columbia and all other areas subject to its jurisdiction
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This Announcement does not constitute or form part of any offer or instruction to purchase, subscribe for or sell any shares or other securities in the Company nor shall it nor any part of it nor the fact of its distribution form the basis of, or be relied on in connection with, any contract therefor. This Announcement provides information about the Placing, but does not invite participation in the Placing. This Announcement does not constitute, and the Company is not making, an offer to the public of transferable securities within the meaning of sections 85 and 102B of FSMA nor does it constitute an admission document drawn up in accordance with the AIM Rules for Companies. This Announcement is therefore not an approved prospectus for the purposes of section 85 of FSMA, and has not been prepared in accordance with the prospectus rules of the FSA and as such neither its contents nor its issue have been approved by the FSA or by any authority which would be a competent authority for the purposes of any legislation that implements the EU Prospectus Directive.
The Placing Shares have not been, and will not be, registered under the United States Securities Act 1933 (as amended) or under the applicable securities laws of Canada, Japan, Australia or South Africa. Accordingly the Placing Shares may not be, directly or indirectly, offered, sold, taken up, delivered or transferred in or into the United States, Canada, Japan, Australia or South Africa. The distribution of this Announcement in jurisdictions other than the United Kingdom may be restricted by law and therefore persons who receive this Announcement should inform themselves about and observe the laws governing those jurisdictions. Any failure to comply with any restrictions may constitute a breach of securities laws of any such jurisdictions.
Investec Bank plc, which is authorised and regulated in the United Kingdom by the FSA, is acting as nominated adviser, broker and underwriter to the Company in relation to the Placing and Admission and is not acting for any other persons in relation to the Placing and Admission. Investec Bank plc is acting exclusively for the Company and for no one else in relation to the matters described in this Announcement and is not advising any other person and accordingly will not be responsible to anyone other than the Company for providing the protections afforded to clients of Investec Bank plc, or for providing advice in relation to the contents of this Announcement or any matter referred to in it. The responsibilities of Investec Bank plc as the Company's nominated adviser and broker under the AIM Rules for Companies and the AIM Rules for Nominated Advisers are owed solely to the London Stock Exchange and are not owed to the Company or to any Director, Shareholder or any other person, in respect of any decision to acquire or dispose of shares in the capital of AMS in reliance on any part of this Announcement, or otherwise.
No liability is accepted by Investec Bank plc nor does it make any representation or warranty, express or implied, in relation to, the contents of this Announcement, including its accuracy, completeness or verification or for any other statement made or purported to be made by it, or on its behalf, in connection with the Company and the Placing and accordingly Investec Bank plc disclaims all and any responsibility or liability whether arising in tort, contract or otherwise which it might otherwise have in respect of this Announcement or any such statement. Investec Bank plc has not authorised the contents, or any part, of this Announcement. Investec Bank plc may, in accordance with applicable legal and regulatory provisions, engage in transactions in relation to the Ordinary Shares (including the Placing Shares) and/or related instruments for its own account for the purposes of hedging its underwriting exposure or otherwise. Except as required by applicable law or regulation, Investec Bank plc does not propose to make any public disclosure in relation to any such transactions.
Members of the public are not eligible to take part in the Placing. This Announcement and the terms and conditions set out in this Announcement are for information purposes only and are directed only at persons who are: (a) (i) investment professionals falling within article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (the "Order"), or (ii) persons falling within article 49(2)(a) to (d) ("high net worth companies, unincorporated associations, etc") of the Order, or (iii) persons to whom it may otherwise be lawfully communicated; and (b) (i) persons in member states of the European Economic Area who are qualified investors (as defined in article 2(1)(e) of EU Directive 2003/71/ec (the "Prospectus Directive")), and/or (ii) persons in the United Kingdom who are qualified investors (all such persons together being referred to as "Relevant Persons"). This Announcement and the terms and conditions set out in this Announcement must not be acted on or relied on by persons who are not Relevant Persons. Any investment or investment activity to which this Announcement (including the Appendix) and the terms and conditions set out in this Announcement relate is available only to Relevant Persons and will be engaged in only with Relevant Persons.
Persons (including individuals, funds or otherwise) by whom or on whose behalf a commitment to acquire Placing Shares has been given ("Placees") will be deemed to have read and understood this Announcement, in its entirety 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. In particular, each such Placee represents, warrants and acknowledges that it is: (i) 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; and (ii) outside the United States and is subscribing for the Placing Shares in an "offshore transaction" (within the meaning of Regulation S under the United States Securities Act of 1933, as amended (the "Securities Act")).
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 "aim", "anticipate", "believe", "intend", "plan", "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. By their nature, forward-looking statements involve risk and uncertainty because they relate to future events and circumstances. 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, except as required by applicable law, the Company does not assume any responsibility or obligation to update publicly or review any of the 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.
APPENDIX: TERMS AND CONDITIONS OF THE PLACING
IMPORTANT INFORMATION FOR PLACEES ONLY REGARDING THE PLACING.
THIS ANNOUNCEMENT AND THE INFORMATION CONTAINED HEREIN IS RESTRICTED AND IS NOT FOR PUBLICATION, RELEASE OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN OR INTO OR FROM THE UNITED STATES, CANADA, AUSTRALIA, JAPAN OR ANY JURISDICTION IN WHICH THE SAME WOULD BE UNLAWFUL.
EACH PLACEE SHOULD CONSULT WITH ITS OWN ADVISERS AS TO LEGAL, TAX, BUSINESS AND RELATED ASPECTS OF A SUBSCRIPTION FOR THE PLACING SHARES.
Details of the Placing
Investec have today entered into the Placing Agreement with AMS under which, subject to the conditions set out in that agreement, Investec has agreed to use reasonable endeavours to procure subscribers for Placing Shares at the Placing Price with certain institutional and other investors or, failing which, subscribe for such shares themselves on an equal basis, as further described in this Announcement and as set out in the Placing Agreement.
The Placing Shares will, when issued, rank pari passu in all respects with the Existing Ordinary Shares, including the right to receive dividends and other distributions declared or made following Admission.
Application for admission to trading
Application will be made to the London Stock Exchange for admission of the Placing Shares to trading on AIM. Admission is conditional upon, amongst other things, the passing of the Resolution to disapply pre-emption rights by the Shareholders at the General Meeting to be held at 11.00 a.m. on 19 December 2011. It is expected that Admission will become effective at 8.00 a.m. on 20 December 2011 and that dealings in the Placing Shares will commence at that time.
Participation in, and principal terms of, the Placing
Investec is arranging the Placing as agent for and on behalf of the Company. Investec will determine in its absolute discretion the extent of each Placee's participation in the Placing, which will not necessarily be the same for each Placee. No commissions will be paid to or by Placees in respect of their agreement to acquire any Placing Shares.
Each Placee will be required to pay to Investec, on the Company's behalf, the Placing Price for each Placing Share agreed to be acquired by it under the Placing in accordance with the terms set out in this Announcement. Each Placee's obligation to acquire and pay for Placing Shares under the Placing will be owed to Investec and the Company. Each Placee has an immediate, separate, irrevocable and binding obligation, owed to Investec, to pay to Investec (or as Investec may direct) in cleared funds an amount equal to the product of the Placing Price and the number of Placing Shares such Placee has agreed to subscribe for. Each Placee will be deemed to have read and understood this Announcement in its entirety, to be participating in the Placing upon the terms and conditions contained in this Announcement, and to be providing the representations, warranties, agreements, acknowledgements and undertakings, in each case as contained in this Announcement. To the fullest extent permitted by law and applicable Financial Services Authority ("FSA") rules (the "FSA Rules"), neither (i) Investec, (ii) any of its directors, officers, employees or consultants, or (iii) to the extent not contained with (i) or (ii), any person connected with Investec as defined in the FSA Rules ((i), (ii) and (iii) being together "affiliates" and individually an "affiliate"), shall have any liability to Placees or to any person other than the Company in respect of the Placing.
Conditions of the Placing
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The obligations of Investec under the Placing Agreement are conditional on, amongst other things:
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(a) |
the posting of a circular to Shareholders by 2 December 2011; |
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(b) |
the passing of the Resolution to disapply pre-emption rights, without amendment, at the General Meeting of the Company to be convened not later than 5 p.m. on 19 December 2011; |
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(c) |
none of the representations and warranties contained in the Placing Agreement being untrue, inaccurate or misleading on the date of the Placing Agreement and at Admission; |
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(d) |
the Acquisition Agreement remaining in full force and effect and having become unconditional in all respects (save for Admission) by no later than 22 December 2011; |
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(e) |
the New Debt Facility having become unconditional in all respects (save for Admission) by no later than 22 December 2011; |
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(f) |
the Company confirming that it is not aware of any circumstances entitling it to (i) bring a claim under the Acquisition Agreement or New Debt Facility or (ii) rescind or terminate the Acquisition Agreement or New Debt Facility; |
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(g) |
AMS's compliance with all of the agreements and undertakings and satisfaction and performance of all of its conditions and obligations under the Placing Agreement in so far as they are required to be performed prior to Admission; and |
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(h) |
Admission taking place by 8.00 a.m. on 20 December 2011. |
If any of the conditions contained in the Placing Agreement in relation to the Placing Shares are not fulfilled or waived by Investec, by the respective time or date where specified, the Placing will not proceed and the Placee's rights and obligations hereunder in relation to the Placing Shares shall cease and terminate at such time and each Placee agrees that no claim can be made by the Placee in respect thereof.
By agreeing to participate in the Placing, a Placee on its behalf and on behalf of any person on whose behalf it is acting, will be deemed to have accepted the terms and conditions set out in this Announcement, the Placing Agreement and the Placing Documents and to have acknowledged and agreed that Investec has absolute discretion as to:
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(a) |
the waiver or extension of the time for satisfaction of any conditions of the Placing Agreement; |
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(b) |
the exercise of any right to terminate the Placing Agreement; |
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(c) |
the enforcement of any obligations, undertakings, representations and warranties of AMS in the Placing Agreement; and |
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(d) |
the making of any amendments to the Placing Agreement. |
Investec shall not have any obligation to consult with or notify a Placee and shall have no responsibility or liability to it in relation to the exercise of its discretion (as is referred to above) or in relation to any other right or discretion given to it or which it is entitled to exercise, whether under the Placing Agreement or otherwise.
So long as a Placee's commitment under the Placing is not extended beyond 23:59 on 30 December 2011, the right is reserved in Investec's absolute discretion to agree with the Company to extend the time for the satisfaction of all or any of the conditions of the Placing Agreement, and otherwise to adjust the timetable for the implementation of the Placing to take account of any change of circumstances that may arise on or after the date of signing of the Placing Agreement. All times and dates referred to in this letter or any other documents provided in connection with the Placing are therefore subject to adjustment in accordance with that reservation and the Company shall notify Placees of any such amendments.
None of Investec, AMS or any other person shall have any liability to any Placee (or to any other person whether acting on behalf of a Placee or otherwise) in respect of any decision they may make as to whether or not to waive or to extend the time and/or the date for the satisfaction of any condition to the Placing nor for any decision they may make as to the satisfaction of any condition or in respect of the Placing generally, and by participating in the Placing each Placee agrees that any such decision is within the absolute discretion of Investec.
Termination of the Placing Agreement
Investec is entitled, at any time before Admission, to terminate the Placing Agreement in relation to their obligations in respect of the Placing Shares by giving notice to AMS if, amongst other things:
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(a) |
there shall occur any substantial change in national or international political, military, diplomatic, terrorist, monetary, industrial, economic, financial or stock market conditions or any disruption to the settlement of security transactions or the operation of payment or clearance services which, in the opinion of Investec, would be likely to prejudice the success of the Placing or which would make it impracticable or inadvisable to proceed with the Placing or with Admission; |
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(b) |
there shall have been an adverse change, or a development likely to involve, a prospective adverse change, in or affecting the business, management, financial, operational, legal or trading position or prospects, Shareholders' funds, earnings, properties, assets, rights, results or prospects of the Company or any other member of the Enlarged Group, whether or not arising in the ordinary course of business, which, in any such case, in the opinion of Investec, would be likely to prejudice the success of the Placing or which would make it impracticable or inadvisable to proceed with the Placing or Admission; |
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(c) |
the Company fails to comply in any respect with any of its obligations under the Placing Agreement, or with the requirements of any laws or regulations (including, without limitation, FSMA and the AIM Rules) in relation to the Placing or Admission; |
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(d) |
Investec becomes aware of any fact, matter or circumstance which constitutes or will or may constitute a breach of any of the Warranties which breach Investec considers to be material in the context of the Placing and/or Admission or which would indicate that any of the Warranties has become or will or may become untrue, inaccurate or misleading by reference to facts, matters or circumstances from time to time subsisting, up to Admission and in a manner which Investec considers to be material in the context of the Placing and/or Admission; |
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(e) |
any of the conditions referred to above become incapable of fulfilment and have not been waived; or |
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(f) |
it should come to the notice of Investec that any statement contained in the Placing Documents is untrue, inaccurate or misleading which Investec considers to be material in the context of the Placing and/or Admission or that matters have arisen which would, if the Placing Documents were issued at that time, constitute an omission therefrom which Investec considers to be material in the context of the Placing and/or Admission, and such matter may not, in the opinion of Investec, be addressed by the publication of a further document or the making of an announcement. |
Upon such termination, the parties to the Placing Agreement shall be released and discharged (except for any liability arising before or in relation to such termination) from their respective obligations under or pursuant to the Placing Agreement subject to certain exceptions.
By participating in the Placing, Placees agree that the exercise by Investec of any right of termination or other discretion under the Placing Agreement shall be within the absolute discretion of Investec and that they need not make any reference to Placees and that they shall have no liability to Placees whatsoever in connection with any such exercise or failure so to exercise.
No prospectus
No offering document, prospectus or admission document has been or will be submitted to be approved by the 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 released by AMS today, and subject to the further terms set forth in the contract note to be provided to individual prospective Placees.
Each Placee, by accepting a participation in the Placing, agrees that the content of this Announcement is exclusively the responsibility of AMS and confirms that it has neither received nor relied on any other information, representation, warranty, or statement made by or on behalf of AMS or Investec or any other person and none of Investec, AMS 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 and agrees that it has relied on its own investigation of the business, financial or other position of AMS in accepting a participation in the Placing. Nothing in this paragraph shall exclude the liability of any person for fraudulent misrepresentation.
Registration and settlement
Settlement of transactions in the Placing Shares following Admission will take place within the system administered by Euroclear UK & Ireland Limited ("CREST"), subject to certain exceptions. AMS reserves the right to require settlement for and delivery of the Placing Shares (or a portion thereof) to Placees in certificated form if, in Investec's opinion, delivery or settlement is not possible or practicable within the CREST system or would not be consistent with the regulatory requirements in the Placee's jurisdiction.
Participation in the Placing is only available to persons who are invited to participate in it by Investec.
A Placee's commitment to acquire a fixed number of Placing Shares under the Placing will be agreed orally with Investec. Such agreement will constitute a legally binding commitment on such Placee's part to acquire that number of Placing Shares at the Placing Price on the terms and conditions set out or referred to in this Announcement and subject to the Company's Memorandum and Articles of Association.
After such agreement is entered into, each Placee allocated Placing Shares in the Placing will be sent a contract note stating the number of Placing Shares allocated to it at the Placing Price and settlement instructions.
Each Placee agrees that it will do all things necessary to ensure that delivery and payment is completed in accordance with the standing CREST or certificated settlement instructions that it has in place with Investec. Settlement should be through Investec against CREST ID: 331, account designation: NEWISSUE. For the avoidance of doubt, Placing allocations will be booked with a trade date of 2 December 2011 and settlement date of 20 December 2011, the date of Admission.
AMS will deliver the Placing Shares to the CREST accounts operated by Investec as agent for AMS. AMS will enter its delivery (DEL) instruction into the CREST system. The input to CREST by a Placee of a matching or acceptance instruction will then allow delivery of the relevant Placing Shares to that Placee against payment.
It is expected that settlement will take place on 20 December 2011, being the business day following the General Meeting, 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 LIBOR as determined by Investec.
Each Placee is deemed to agree that, if it does not comply with these obligations, AMS may sell any or all of the Placing Shares allocated to that Placee on such Placee's behalf and retain from the proceeds, for AMS's account and benefit, an amount equal to the aggregate amount owed by the Placee plus any interest due. The relevant Placee will, however, remain liable for any shortfall below the aggregate amount owed by it and may be required to bear any stamp duty or stamp duty reserve tax (together with any interest or penalties) which may arise upon the sale of such Placing Shares on such Placee's behalf.
If Placing Shares are to be delivered to a custodian or settlement agent, Placees should ensure that the trade confirmation is copied and delivered immediately to the relevant person within that organisation. Insofar as Placing Shares are registered in a Placee's name or that of its nominee or in the name of any person for whom a Placee is contracting as agent or that of a nominee for such person, such Placing Shares should, subject as provided below, be so registered free from any liability to UK stamp duty or stamp duty reserve tax. Placees will not be entitled to receive any fee or commission in connection with the Placing.
Representations and warranties
By participating in the Placing each Placee (and any person acting on such Placee's behalf) irrevocably acknowledges, undertakes, represents, warrants and agrees (as the case may be) the following:
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1. |
It has read the Placing Documents and that its acquisition of the Placing Shares is subject to the terms and conditions of the Placing as referred to and included in the Placing Documents;
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2. |
(i) It has made its own assessment of the Placing Shares and has relied on its own investigation of the business, financial or other position of the Company in accepting a participation in the Placing; (ii) neither Investec nor any of its affiliates or any person acting on behalf of any of them has provided, or will provide it, with any material regarding the Placing Shares in addition to the Placing Documents; and (iii) it has not requested Investec, the Company or any of their respective affiliates or any person acting on behalf of any of them to provide it with any such information;
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3. |
The only information on which it has relied in committing itself to subscribe for the Placing Shares is contained in this Announcement and that it has neither received nor relied on any information given or representations, warranties or statements made by Investec or the Company or any of their affiliates or any person acting on behalf of any of them and neither Investec nor the Company nor any of their affiliates nor any person acting on behalf of any of them will be liable for its decision to accept an invitation to participate in the Placing based on any information, representation, warranty or statement other than that contained in this Announcement;
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4. |
It has the funds available to pay the total subscription amount payable in respect of the Placing Shares which it subscribes for and acknowledges, agrees and undertakes that it will pay the total subscription amount in respect of the Placing Shares allotted to it pursuant to the Placing in accordance with the terms of this Announcement on the due time and date set out herein, failing which the relevant Placing Shares may be placed with other placees or sold at such price as Investec determines;
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5. |
It (i) is entitled to subscribe for the Placing Shares under the laws of all relevant jurisdictions; (ii) has fully observed such laws; (iii) has the requisite capacity and authority and is entitled to enter into and to perform its obligations as a subscriber for Placing Shares and will honour such obligations; and (iv) has obtained all necessary consents and authorities (including, without limitation, in the case of any person on whose behalf it is acting, all necessary consents and authorities to agree to the terms set out or referred to in this Announcement) to enable it to enter into the transactions contemplated hereby and to perform its obligations in relation thereto and, in particular, if it is a pension fund or investment company it is aware of and acknowledges it is required to comply with all applicable laws and regulations with respect to its subscription for the Placing Shares;
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6. |
It is not, and any person who it is acting on behalf of is not, and at the time the Placing Shares are subscribed will not be, a resident of, or with an address in, Australia, Canada, Japan or the Republic of South Africa, and it acknowledges and agrees that the Placing Shares have not been and will not be registered or otherwise qualified under the securities legislation of Australia, Canada, Japan or the Republic of South Africa and, subject to certain exceptions, may not be offered, sold, or acquired, directly or indirectly, within those jurisdictions;
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7. |
It is outside the United States and the Placing Shares have not been and are not being offered or sold to it except outside the United States in an "offshore transaction" (within the meaning of Regulation S) and it will not offer, sell or deliver, directly or indirectly, any Placing Shares in or into the United States other than pursuant to an effective registration under the US Securities Act or in a transaction exempt from, or not subject to, the registration requirements thereunder and in compliance with any application securities laws or any state or other jurisdiction of the United States. It acknowledges and agrees that there is no present intention to register any of the Placing Shares for sale or re-sale under the US Securities Act and that there can be no representation as to the availability of any exemption under the US Securities Act;
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8. |
It is not acting on a non-discretionary basis for the account or benefit of a person located within the United States at the time the undertaking to subscribe for Placing Shares is given and it is not acquiring the Placing Shares with a view to the offer, sale, resale, transfer, delivery or distribution, directly or indirectly, of any Placing Shares into the United States;
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9. |
It is a person of a kind described in (i) Article 19(5) (Investment Professionals) and/or 49(2) (high net worth companies etc.) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005, as amended, and/or an authorised person as defined in section 31 of FSMA; and (ii) section 86(7) of FSMA ("Qualified Investor"), being a person falling within Articles 2.1(e)(i), (ii) or (iii) of Directive 2003/71/EC (the "Prospectus Directive"). For such purposes, it undertakes that it will acquire, hold, manage and (if applicable) dispose of any Placing Shares that are allocated to it for the purposes of its business only;
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10. |
It has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of FSMA) relating to the Placing Shares in circumstances in which section 21(1) of FSMA does not require approval of the communication by an authorised person and it acknowledges and agrees that none of the Placing Documents are being issued by Investec in its capacity as an authorised person under section 21 of FSMA and they may not therefore be subject to the controls which would apply if they were made or approved as financial promotion by an authorised person;
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11. |
It is aware of and acknowledges that it is required to comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Placing Shares in, from or otherwise involving, the United Kingdom;
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12. |
It will not make any offer to the public of the Placing Shares and have not offered or sold and will not offer or sell any Placing Shares to persons in the United Kingdom or elsewhere in the European Economic Area prior to Admission except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their business or otherwise in circumstances which have not resulted in and which will not result in an offer to the public in the United Kingdom within the meaning of section 85(1) of FSMA or an offer to the public in any other member state of the European Economic Area within the meaning of the Prospectus Directive (which includes any relevant implementing measure in any Member State of the European Economic Area);
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13. |
It has not been engaged to subscribe for the Placing Shares on behalf of any other person who is not a Qualified Investor unless the terms on which it is engaged to enable it to make decisions concerning the acceptance of offers of transferable securities on the client's behalf without reference to the client as described in section 86(2) of FSMA;
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14. |
It is aware of and acknowledges that it is required to comply with its obligations in connection with money laundering under the Proceeds of Crime Act 2002, the Terrorism Act 2000, the Terrorism Act 2006 and the Money Laundering Regulations 2007 (the ("Regulations") 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;
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15. |
It is aware of the obligations regarding insider dealing in the Criminal Justice Act 1993, section 118 of the Financial Services and Markets Act 2000 and the Proceeds of Crime Act 2002 and confirms that it has and will continue to comply with those obligations;
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16. |
The allocation, allotment, issue and delivery to it, or the person specified by it for registration as a holder of Placing Shares, will not give rise to a stamp duty or stamp duty reserve tax liability under any of sections 67, 70, 93 or 96 of the Finance Act 1986 (depositary receipts and clearance services) and that no instrument under which it subscribes for Placing Shares (whether as principal, agent or nominee) would be subject to stamp duty or the increased rates referred to in those sections and that it, or the person specified by it for registration as a holder of Placing Shares, 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;
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It, or the person specified by it for registration as a holder of the Placing Shares, will be liable for any stamp duty and all other stamp, issue, securities, transfer, registration, documentary or other duties or taxes (including any interest, fines or penalties relating thereto), if any, payable on acquisition of any of the Placing Shares or the agreement to subscribe for the Placing Shares and acknowledges and agrees that: (i) neither Investec nor the Company nor any of their respective affiliates nor any person acting on behalf of them will be responsible for any liability to stamp duty or stamp duty reserve tax resulting from a failure to observe this requirement;
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18. |
When published, the Circular will be exclusively the responsibility of the Company, and that neither Investec nor any of its affiliates nor any person acting on behalf of any of them has or shall have any liability for any information, representation or statement contained in the Circular or any information previously published by or on behalf of the Company or any other written or oral information made available to or publicly available or filed information or any representation, warranty or undertaking relating to the Company, and will not be liable for its decision to participate in the Placing based on any information, representation, warranty or statement contained in the Circular or otherwise, provided that nothing in this paragraph shall exclude any liability of any person for fraud;
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Neither Investec nor any of its affiliates nor any person acting on behalf of any of them, is making any recommendations to it, advising it regarding the suitability of any transactions it may enter into in connection with the Placing and that participation in the Placing on the basis that it is not and will not be a client of Investec and that Investec has no duties or responsibilities to it for providing the protections afforded to their respective clients or customers under the rules of the Financial Services Authority 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 their respective rights and obligations thereunder, including any rights to waive or vary any conditions or exercise any termination right. In addition, any payment by it will not be treated as client money governed by the rules of the Financial Services Authority;
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20. |
In order to ensure compliance with the Money Laundering Regulations 2007, Investec (for itself and as agent on behalf of the Company) or the Company's registrars may, in their absolute discretion, require verification of its identity. Pending the provision to Investec or the Company's registrars, as applicable, of evidence of identity, definitive certificates in respect of the Placing Shares may be retained at Investec's absolute discretion or, where appropriate, delivery of the Placing Shares to it in uncertificated form, may be retained at Investec's or the Company's registrars', as the case may be, absolute discretion. If within a reasonable time after a request for verification of identity Investec (for itself and as agent on behalf of the Company) or the Company's registrars have not received evidence satisfactory to them, Investec and/or the Company may, at its absolute discretion, terminate the relevant commitment in respect of the Placing, in which event the monies payable on acceptance of allotment will, if already paid, be returned without interest to the account of the drawee's bank from which they were originally debited;
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21. |
Investec may, and its affiliates acting as an investor for its or their own account(s) may, subscribe for and/or purchase Placing Shares and, in that capacity may retain, purchase, offer to sell or otherwise deal for its or their own account(s) in the Placing Shares, any other securities of the Company or other related investments in connection with the Placing or otherwise. Accordingly, references in this Announcement to the Placing Shares being offered, subscribed, acquired or otherwise dealt with should be read as including any offer to, or subscription, acquisition or dealing by, Investec and/or any of their respective affiliates acting as an investor for its or their own account(s). Neither Investec nor the Company intend to disclose the extent of any such investment or transaction otherwise than in accordance with any legal or regulatory obligation to do so;
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22. |
The Company and Investec and their respective affiliates and others will rely upon the truth and accuracy of the foregoing agreements, acknowledgements, representations, warranties and undertakings which are given to Investec, on its own behalf and on behalf of the Company, and which are irrevocable;
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23. |
It irrevocably appoints any duly authorised officer of Investec as its agent for the purpose of executing and delivering to the Company and/or its registrars any documents on its behalf necessary to enable it to be registered as the holder of any of the Placing Shares for which it agrees to subscribe or purchase upon the terms of this Announcement; and
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24. |
It agrees to indemnify and hold the Company and Investec and their respective affiliates harmless from any and all costs, claims, liabilities and expenses (including legal fees and expenses) arising out of any breach of the representations, warranties, undertakings, agreements and acknowledgements in this Announcement. |
The representations, warranties, undertakings, agreements and acknowledgements set out above will survive completion of the Placing.
None of the Placing Documents nor this Announcement constitute an offer to sell, or the solicitation of an offer to buy, Placing Shares in any jurisdiction in which such an offer or solicitation is unlawful. The Placing Shares have not been and will not be registered under the United States Securities Act of 1933, as amended (the "US Securities Act") or the securities or "blue sky" laws of any state or other jurisdiction in the United States nor have they been, nor will they be, registered or qualified for sale under the securities laws of Canada, Australia or Japan (together, the "Prohibited Territories"). Accordingly, the Placing Shares may not be, and are not being, offered or sold except outside the United States (as such term is defined in Regulation S under the US Securities Act ("Regulation S")) in offshore transactions (within the meaning of Regulation S), or directly or indirectly, to or for the benefit of US Persons (as defined in Regulation S) or within or to persons in or resident in the Prohibited Territories and neither the Placing Documents or this letter may be distributed in or into the Prohibited Territories.
In addition, Placees should note that they will be liable for any stamp duty and all other stamp, issue, securities, transfer, registration, documentary or other duties or taxes (including any interest, fines or penalties relating thereto) payable outside the United Kingdom by them or any other person on the subscription by them of any Placing Shares or the agreement by them to subscribe for any Placing Shares.
Each Placee and any person acting on behalf of each Placee acknowledges and agrees that Investec, or any of its affiliates may, at their absolute discretion, agree to become a Placee in respect of some or all of the Placing Shares.
When a Placee or person acting on behalf of the Placee is dealing with Investec, any money held in an account with Investec 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 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 Investec's money in accordance with the client money rules and will be used by Investec in the course of their own business; and the Placee will rank only as a general creditor of Investec.
All times and dates in this Announcement may be subject to amendment. Investec 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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