Proposed Placing of New Ordinary Shares
THIS ANNOUNCEMENT, INCLUDING THE APPENDIX, AND THE INFORMATION CONTAINED IN IT IS RESTRICTED AND IS NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, IN, INTO OR FROM THE UNITED STATES, CANADA, AUSTRALIA, JAPAN, SOUTH AFRICA OR ANY OTHER JURISDICTION IN WHICH THE SAME WOULD BE UNLAWFUL. PLEASE SEE THE IMPORTANT NOTICE AT THE END OF THIS ANNOUNCEMENT.
Pennon Group Plc (Pennon or the Company)
PROPOSED PLACING OF NEW ORDINARY SHARES
16 April 2015
Introduction
The Pennon Board announces today that it is proposing to raise additional equity capital through a placing (the Placing) of new ordinary shares in the Company (the Placing Shares) to raise up to £100.3 million of gross proceeds representing approximately 3% of the Company's market capitalisation as at 15 April 2015.
The Placing is being conducted through an accelerated bookbuild (the Bookbuild) which will be launched immediately following this placing announcement. Credit Suisse Securities (Europe) Limited (Credit Suisse) and Morgan Stanley & Co. International plc (Morgan Stanley) have been appointed as joint bookrunners in respect of the Placing.
Use of Proceeds
The Company has separately announced today that it has completed the acquisition of Sembcorp Bournemouth Water Investments Limited (the Acquisition). The net proceeds of the Placing are intended to be used to replenish the cash resources of the Company in respect of the cash consideration for the Acquisition.
Details of the Placing
The exact number of Placing Shares and the price at which the Placing Shares are to be placed (the Placing Price) will be determined by the Company, Credit Suisse and Morgan Stanley at the close of the Bookbuild. The timing of the closing of the Bookbuild, pricing and allocations are at the discretion of the Company, Credit Suisse and Morgan Stanley. Details of the Placing Price and the number of Placing Shares will be announced by the Company as soon as practicable after the close of the Bookbuild. Placing Shares will be available only to investors outside of the United States and certain other jurisdictions.
The Placing Shares will, when issued, be credited as fully paid and will rank pari passu in all respects with the existing ordinary shares of 40.7 pence each in the capital of the Company including the right to receive all future dividends and distributions declared, made or paid after the date of sale.
Application will be made for the Placing Shares to be admitted to the premium listing segment of the Official List of the Financial Conduct Authority (the Official List) and to trading on the main market for listed securities of London Stock Exchange plc (together, Admission). It is expected that settlement for the Placing Shares and Admission will take place at 8.00 a.m. on 21 April 2015.
The Placing is conditional upon, inter alia, Admission becoming effective. The Placing is also conditional upon the placing agreement between the Company, Credit Suisse and Morgan Stanley (the Placing Agreement) becoming unconditional and not being terminated.
Your attention is drawn to the detailed terms and conditions of the Placing described in the Appendix to this announcement (together, the Announcement).
By choosing to participate in the Placing and by making an oral and legally binding offer to acquire Placing Shares, investors will be deemed to have read and understood this Announcement in its entirety (including the Appendix) and to be making such offer on the terms and subject to the conditions in it, and to be providing the representations, warranties and acknowledgements contained in the Appendix. In particular, you should read and understand the information provided in the 'Important Notice' section of this Announcement.
For further information, please contact:
Pennon Group Plc +44 (0) 13 9244 3401
Susan Davy, Group Director of Finance
Sarah Heald, Head of Investor Relations
Credit Suisse +44 (0) 20 7888 8888
Stuart Field
James Green
Morgan Stanley +44 (0) 20 7425 8000
Andrew Foster
Martin Thorneycroft
IMPORTANT NOTICE
This Announcement is directed only at: (A) persons in member states of the European
Economic Area (the EEA) who are "qualified investors" within the meaning of Article 2(1)(e) of the Prospectus Directive (Directive 2003/71/EC (and amendments thereto, including Directive 2010/73/EU) and includes any relevant implementing measure in each relevant member state of the EEA) (the Prospectus Directive) (Qualified Investors); (B) persons in the United Kingdom who are Qualified Investors and who (i) have professional experience in matters relating to investments and who fall within the definition of "investment professionals" in Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (the Order); or (ii) who are high net worth companies, unincorporated associations and other persons to whom it may lawfully be communicated in accordance with Article 49(2)(a) to (d) of the Order; or (C) other persons to whom it may lawfully be communicated (all such persons together being referred to as relevant persons). Any investment activity in connection with the Placing will only be available to, and will only be engaged with, relevant persons. Any person who is not a relevant person should not act or rely on this document or any of its contents.
This announcement, including its Appendix (together, the Announcement) and the information contained in it is restricted and is not for release, publication or distribution, directly or indirectly, in whole or in part, in, into or from the United States (including its territories and possessions, any state of the United States and the District of Columbia, collectively the United States) Australia, Canada, Japan or South Africa or any other state or jurisdiction in which the same would be restricted, unlawful or unauthorised (each a Restricted Territory). This Announcement is for information purposes only and does not constitute an offer to sell or issue or the solicitation of an offer to buy, acquire or subscribe for shares in the capital of the Company in any Restricted Territory or to any person to whom it is unlawful to make such offer or solicitation, nor shall there be any sale of shares in the United States or any other Restricted Territory where such offer, solicitation or sale would be unlawful. Any failure to comply with these restrictions may constitute a violation of the securities laws of such jurisdictions. Subject to certain exemptions, the securities referred to herein may not be offered or sold in any Restricted Territory or for the account or benefit of any national resident or citizen of any Restricted Territory. The Placing Shares have not been and will not be registered under the United States Securities Act of 1933, as amended (the Securities Act) or the securities laws or with any securities regulatory authority of any other state or other jurisdiction of the United States, and may not be offered, sold or transferred, directly or indirectly, in the United States absent registration under the Securities Act or an available exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and in compliance with any applicable securities laws of any other state or jurisdiction of the United States. The Placing Shares are being offered and sold outside the United States in offshore transactions within the meaning of, and in reliance on Regulation S under the Securities Act. No public offering of the shares referred to in this Announcement is being made in the United Kingdom, any Restricted Territory or elsewhere.
This Announcement has been issued by, and is the sole responsibility, of the Company. No representation or warranty express or implied, is or will be made as to, or in relation to, and no responsibility or liability is or will be accepted by Credit Suisse or Morgan Stanley (together, the Joint Bookrunners) or by any of their respective affiliates or agents as to or in relation to, the accuracy or completeness of this Announcement or any other written or oral information made available to or publicly available to any interested party or its advisers, and any liability therefore is expressly disclaimed.
Credit Suisse and Morgan Stanley, which are authorised by the Prudential Regulation Authority and regulated in the United Kingdom by the Financial Conduct Authority and the Prudential Regulation Authority, are acting as joint bookrunners for the Company in connection with the Placing and no one else and will not be responsible to anyone other than the Company for providing the protections afforded to clients of the Joint Bookrunners nor for providing advice in relation to the Placing and/or any other matter referred to in this Announcement. Apart from the responsibilities and liabilities, if any, which may be imposed on the Joint Bookrunners by the Financial Services and Markets Act 2000 or by the regulatory regime established under it, neither Credit Suisse, Morgan Stanley nor any of their respective affiliates accepts any responsibility whatsoever for the contents of the information contained in this Announcement or for any other statement made or purported to be made by or on behalf of Credit Suisse, Morgan Stanley or any of their respective affiliates in connection with the Company, the Placing Shares or the Placing. Credit Suisse nor Morgan Stanley and each of their respective affiliates accordingly disclaim all and any liability, whether arising in tort, contract or otherwise (save as referred to above) in respect of any statements or other information contained in this Announcement and no representation or warranty, express or implied, is made by Credit Suisse, Morgan Stanley or any of their respective affiliates as to the accuracy, completeness or sufficiency of the information contained in this Announcement. Nothing in this Announcement is, or shall be relied upon as a promise or representation in this respect, whether as to the past or the future.
The distribution of this Announcement and the offering of the Placing Shares in certain jurisdictions may be restricted by law. No action has been taken by the Company or the Joint Bookrunners that would permit an offering of such shares or possession or distribution of this Announcement or any other offering or publicity material relating to such shares in any jurisdiction where action for that purpose is required. Persons into whose possession this Announcement comes are required by the Company and the Joint Bookrunners to inform themselves about, and to observe, such restrictions. Any failure to comply with these restrictions may constitute a violation of the securities laws of any such jurisdiction.
The information in this Announcement may not be forwarded or distributed to any other person and may not be reproduced in any manner whatsoever. Any forwarding, distribution, reproduction, or disclosure of this information in whole or in part is unauthorised. Failure to comply with this directive may result in a violation of the Securities Act or the applicable laws of other jurisdictions.
This Announcement contains (or may contain) certain forward-looking statements with respect to certain of the Company's current expectations and projections about future events. 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. 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 profit estimate or to imply that the earnings of the Company for the current or future financial years will necessarily match or exceed the historical or published earnings of the Company. The price of shares and the income from them may go down as well as up and investors may not get back the full amount invested on disposal of the shares.
The Placing Shares to be issued pursuant to the Placing will not be admitted to trading on any stock exchange other than the main market for listed securities of London Stock Exchange plc.
Neither the content of the Company's website nor any website accessible by hyperlinks on the Company's website is incorporated in, or forms part of, this Announcement.
APPENDIX
TERMS AND CONDITIONS
IMPORTANT INFORMATION ON THE PLACING FOR INVITED PLACEES ONLY
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING. THIS ANNOUNCEMENT (INCLUDING THE APPENDIX) AND THE TERMS AND CONDITIONS SET OUT HEREIN (THE ANNOUNCEMENT) 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 ARE: (A) IF IN A MEMBER STATE OF THE EUROPEAN ECONOMIC AREA (THE EEA), PERSONS WHO ARE QUALIFIED INVESTORS (QUALIFIED INVESTORS) AS DEFINED IN SECTION 86(7) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000, AS AMENDED (THE FSMA), BEING PERSONS FALLING WITHIN THE MEANING OF ARTICLE 2.1(e) OF DIRECTIVE 2003/71/EC, AS AMENDED, INCLUDING BY THE 2010 PD AMENDING DIRECTIVE (DIRECTIVE 2010/73/EU), TO THE EXTENT IMPLEMENTED IN THE RELEVANT MEMBER STATE (THE PROSPECTUS DIRECTIVE); AND (B) IF IN THE UNITED KINGDOM, PERSONS WHO FALL WITHIN ARTICLE 19(5) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER 2005, AS AMENDED (THE ORDER), OR ARE PERSONS WHO FALL WITHIN ARTICLE 49(2)(a) TO (d) ("HIGH NET WORTH COMPANIES, UNINCORPORATED ASSOCIATIONS, ETC") OF THE ORDER, AND (C) PERSONS TO WHOM THE ANNOUNCEMENT MAY BE LAWFULLY COMMUNICATED (ALL SUCH PERSONS TOGETHER BEING REFERRED TO AS RELEVANT PERSONS).
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 RELATES IS AVAILABLE ONLY TO RELEVANT PERSONS AND WILL BE ENGAGED IN ONLY WITH RELEVANT PERSONS.
THE SECURITIES REFERRED TO IN THIS ANNOUNCEMENT HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT) OR UNDER THE SECURITIES LAWS OR WITH ANY SECURITIES REGULATORY AUTHORITY OF ANY OTHER STATE OR OTHER JURISDICTION OF THE UNITED STATES, AND MAY NOT BE OFFERED, SOLD OR TRANSFERRED, DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED STATES ABSENT REGISTRATION UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN COMPLIANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY OTHER STATE OR JURISDICTION OF THE UNITED STATES. THE PLACING SHARES ARE BEING OFFERED AND SOLD OUTSIDE THE UNITED STATES IN OFFSHORE TRANSACTIONS WITHIN THE MEANING OF, AND IN RELIANCE ON, REGULATION S UNDER THE SECURITIES ACT. NO PUBLIC OFFERING OF THE SHARES REFERRED TO IN THIS ANNOUNCEMENT IS BEING MADE IN THE UNITED STATES, UNITED KINGDOM OR ELSEWHERE.
This Announcement is for information only and does not itself constitute or form part of an offer to sell or issue or the solicitation of an offer to buy or subscribe for securities referred to herein in any jurisdiction including, without limitation, any Restricted Territory (as defined below) or in any jurisdiction where such offer or solicitation is unlawful. No public offering of securities will be made in connection with the Placing in the United Kingdom, any Restricted Territory or elsewhere.
This Announcement, and the information contained herein, is not for publication or distribution, directly or indirectly, to persons in the United States, Australia, Canada, Japan or South Africa (each a Restricted Territory) or in any jurisdiction in which such publication or distribution is unlawful. The distribution of this Announcement and the Placing (as defined below) and/or the offer or sale of the Placing Shares in certain jurisdictions may be restricted by law. No action has been taken by the Company, the Joint Bookrunners or any of their respective affiliates or agents which would permit an offer of the Placing Shares or possession or distribution of this Announcement or any other offering or publicity material relating to such Placing Shares in any jurisdiction where action for that purpose is required. Persons distributing any part of this Announcement must satisfy themselves that it is lawful to do so. Persons (including, without limitation, nominees and trustees) who have a contractual or other legal obligation to forward a copy of this Announcement should seek appropriate advice before taking any action. Persons into whose possession this Announcement comes are required by the Company and the Joint Bookrunners (as defined below) to inform themselves about, and to observe, any such restrictions.
The securities referred to in this Announcement have not been approved or disapproved by the US Securities and Exchange Commission, any State securities commission or any other regulatory authority in the United States, nor have any of the foregoing authorities passed upon or endorsed the merits of the Placing or the accuracy or adequacy of this Announcement. Any representation to the contrary is a criminal offence in the United States.
The securities referred to in this Announcement may not be offered or sold in any Restricted Territory or to, or for the account of, a citizen or resident, or a corporation, partnership or other entity created or organised in or under any laws of a Restricted Territory.
This Announcement has been issued by, and is the sole responsibility of, the Company. No representation or warranty, express or implied, is or will be made as to, or in relation to, and no responsibility or liability is or will be accepted by the Joint Bookrunners or any of their respective affiliates or agents as to or in relation to, the accuracy or completeness of this Announcement or any other written or oral information made available to or publicly available to any party or its advisers, and any liability therefore is expressly disclaimed.
Credit Suisse Securities (Europe) Limited (Credit Suisse) and Morgan Stanley & Co. International plc (Morgan Stanley and together with Credit Suisse, the Joint Bookrunners), are authorised by the Prudential Regulation Authority and regulated in the United Kingdom by the Financial Conduct Authority and the Prudential Regulation Authority.
The Joint Bookrunners are acting exclusively for the Company and no-one else in connection with the Placing and are not, and will not be, responsible to anyone (including the Placees) other than the Company for providing the protections afforded to their clients or for providing advice in relation to the Placing or the contents of the Placing Documents or any other matter referred to therein.
Neither the Company nor the Joint Bookrunners make any representation to any Placees (as defined below) regarding an investment in the securities referred to in this Announcement under the laws applicable to such Placees. Each Placee should consult its own advisers as to the legal, tax, business, financial and related aspects of an investment in the Placing Shares.
By participating in the Placing, Placees will be deemed to have read and understood this Announcement in its entirety, and to be participating, making an offer and acquiring Placing Shares on the terms and conditions contained herein and to be providing the representations, warranties, indemnities, acknowledgments and undertakings contained herein.
IMPORTANT INFORMATION FOR PLACEES ONLY REGARDING THE PLACING
Defined terms used in this Appendix are set out at the end of this Appendix.
Details of the Placing
Credit Suisse and Morgan Stanley have today entered into an agreement with the Company (the Placing Agreement) under which, subject to the terms and conditions set out in that agreement, each of the Joint Bookrunners, each as agent for and on behalf of the Company, has agreed to use its reasonable endeavours to procure placees (the Placees) for new ordinary shares in the capital of the Company of nominal value 40.7 pence each (the Placing Shares) at a price and at a number to be determined following completion of an accelerated bookbuilding process (the Placing), described in this Announcement and set out in the Placing Agreement.
The Company has appointed each of the Joint Bookrunners as underwriters for the purposes of underwriting the settlement of the Placing, to the extent that a price and number of Placing Shares is agreed and set out in an executed version of the terms of the Placing (the Placing Terms) and each of the Joint Bookrunners has accepted such appointment in connection with the Placing relying on the representations and warranties and subject to the terms and conditions set out in the Placing Agreement.
The Placing Shares have been duly authorised and will, when issued, be credited as fully paid and will rank pari passu in all respects with the existing issued ordinary shares in the Company, including the right to receive all dividends and other distributions declared, made or paid in respect of the ordinary shares of the Company (the Ordinary Shares) after the date of admission of the Placing Shares.
The Placing Shares will be issued free of any pre-emption rights, encumbrances, liens or other security interests.
As part of the Placing, the Company has agreed that it will not issue or sell any Ordinary Shares for a period of ninety (90) days after Admission, without the prior consent of the Joint Bookrunners. This agreement is subject to customary exceptions and waivers and does not prevent the Company from granting awards or granting or satisfying exercises of options granted pursuant to the terms of existing employee share schemes of the Company as disclosed in publicly available information.
Application for listing and admission to trading
Application will be made to the Financial Conduct Authority (the FCA) as the competent authority for listing for admission of the Placing Shares to the premium listing segment of the official list (the Official List) of the UK Listing Authority (the UKLA) in accordance with section 74(1) of FSMA for the purposes of Part VI of FSMA and to the London Stock Exchange plc (the London Stock Exchange) for admission of the Placing Shares to trading on its main market for listed securities (together, Admission). It is expected that Admission will become effective on or around 21 April 2015 and that dealings in the Placing Shares will commence at that time.
Bookbuild
The Joint Bookrunners will today commence the bookbuilding process to determine demand for participation in the Placing by Placees (the Bookbuild). This Appendix gives details of the terms and conditions of, and the mechanics of participation in, the Placing.
The Joint Bookrunners and the Company shall be entitled to effect the Placing by such alternative method to the Bookbuild as they may, in their absolute discretion, determine.
Participation in, and principal terms of, the Placing
1 Credit Suisse and Morgan Stanley are acting as bookrunners and as agents of the Company.
2 Participation in the Placing will only be available to persons who may lawfully be, and are, invited to participate by the Joint Bookrunners. The Joint Bookrunners and their respective Affiliates are each entitled to enter bids in the Bookbuild as principal.
3 The Bookbuild will establish a single price payable to the Joint Bookrunners by all Placees whose bids are successful (the Placing Price). The Placing Price and the number of Placing Shares to be issued will be agreed between the Joint Bookrunnersand the Company following completion of the Bookbuild. Any discount to the market price of the Ordinary Shares will be determined in accordance with the FCA Listing Rules published pursuant to Part IV of the Financial Services and Markets Act (FSMA). The Placing Price and the number of Placing Shares to be issued will be announced on a Regulatory Information Service following the completion of the Bookbuild.
4 The Company reserves the right (upon the agreement of the Joint Bookrunners) to reduce or seek to increase the amount to be raised pursuant to the Placing, in its absolute discretion.
5 To bid in the Bookbuild, Placees should communicate their bid by telephone to their usual sales or equity capital markets contact at either of the Joint Bookrunners. Each bid should state the number of Placing Shares which the prospective Placee wishes to subscribe for at either the Placing Price, which is ultimately established by the Company and the Joint Bookrunners, or at prices up to a price limit specified in its bid. Bids may be scaled down by the Joint Bookrunners. Each of the Joint Bookrunners reserves the right not to accept bids or to accept bids in part rather than in whole. The acceptance of the bids shall be at the relevant Joint Bookrunner's absolute discretion.
6 The Bookbuild is expected to close no later than 7.00 p.m. (BST) on 16 April 2015. The Joint Bookrunners may, notwithstanding paragraph 5 above, in agreement with the Company (i) allocate Placing Shares after the time of any initial allocation to any person submitting a bid after that time, and (ii) allocate Placing Shares after the Bookbuild has closed to any person submitting a bid after that time.
7 Each prospective Placee's allocation will be agreed between the Joint Bookrunners and the Company and will be confirmed orally by one of the Joint Bookrunners as agent of the Company following the close of the Bookbuild. That oral confirmation will constitute an irrevocable legally binding commitment upon that person (who will at that point become a Placee) in favour of the Company and the Joint Bookrunnersto subscribe for the number of Placing Shares allocated to it at the Placing Price on these terms and conditions and in accordance with the Company's articles of association.
8 Each prospective Placee's allocation and commitment will be evidenced by a contract note issued to such Placee by the relevant Joint Bookrunner. These terms and conditions will be deemed incorporated in that contract note.
9 Each Placee will also have an immediate, separate, irrevocable and binding obligation, owed to the relevant Joint Bookrunner(as an agent of the Company), to pay to the relevant Joint Bookrunner (or as it may direct) in cleared funds at the time set out in paragraph 12, an amount equal to the product of the Placing Price and the number of Placing Shares such Placee has agreed to subscribe for and the Company has agreed to allot and issue to that Placee. Each Placee's obligation will be owed to the Company and to the relevant Joint Bookrunner. The Company shall allot such Placing Shares to each Placee following each Placee's payment to the relevant Joint Bookrunner of such amount.
10 A bid in the Bookbuild will be made on the terms and subject to the conditions in this Announcement and will be legally binding on the Placee on behalf of which it is made and, except with the consent of the relevant Joint Bookrunner, will not be capable of variation or revocation after the time at which it is submitted.
11 Except as required by law or regulation, no press release or other announcement will be made by the Company or the Joint Bookrunnersusing the name of any Placee (or its agent), in its capacity as Placee (or agent), other than with such Placee's prior written consent.
12 Irrespective of the time at which a Placee's allocation pursuant to the Placing is confirmed, settlement for all Placing Shares to be subscribed for pursuant to the Placing will be required to be made at the same time, on the basis explained below under "Registration and Settlement".
13 All obligations under the Bookbuild and Placing will be subject to fulfilment of the conditions in the Placing Agreement summarised to below under "Conditions of the Placing" and to the Placing Agreement not being terminated in accordance with its terms, which are summarised below under "Termination of the Placing Agreement".
14 By participating in the Bookbuild, each Placee will agree that its rights and obligations in respect of the Placing will terminate only in the circumstances described below and will not be capable of rescission or termination by the Placee.
15 To the fullest extent permissible by law, neither Joint Bookrunnernor any of their respective affiliates, agents, directors, officers or employees nor any person acting on their behalf shall have any responsibility or liability to any Placee (or to any other person whether acting on behalf of a Placee or otherwise). In particular, neither Joint Bookrunnernor any of their respective affiliates, agents, directors, officers or employees nor any person acting on their behalf shall have any responsibility or liability (including to the fullest extent permissible by law, any fiduciary duties) in respect of the Joint Bookrunners' conduct of the Bookbuild or of such alternative method of effecting the Placing as the Company and the Joint Bookrunnersmay agree.
Conditions of the Placing
The Placing is conditional upon the Placing Agreement becoming unconditional and not having been terminated in accordance with its terms. The obligations of each of the Joint Bookrunners under the Placing Agreement are conditional on, amongst other things:
1 there not having been, or there not having been made public, a material adverse change in, the condition, financial, operational or otherwise, or in the earnings, management, result of operations, business affairs, business prospects or financial prospects of the Group (taken as a whole), whether or not arising in the ordinary course of business since the date of the Placing Agreement containing such information;
2 the execution and delivery of the term sheet setting out the Placing Price and the number of Placing Shares, and the publication by the Company of a pricing announcement;
3 the warranties of the Company contained in the Placing Agreement being true and accurate on the date of the Placing Agreement, at the time of execution of the term sheet and on Admission;
4 the Company complying with its obligations under the Placing Agreement to the extent the same fall to be performed or satisfied before Admission, save to the extent that, in the opinion of the Joint Bookrunners, would not be material in the context of the Placing, and the Joint Bookrunners receiving a certificate from the Company confirming such is the case;
5 the Company allotting, subject to Admission, the Placing Shares in accordance with the Placing Agreement; and
6 Admission taking place by 8.00 a.m. (London time) on 21 April 2015 (or such later date as the Company and the Joint Bookrunnersmay otherwise agree).
If: (i) any of the conditions contained in the Placing Agreement in relation to the Placing Shares are not fulfilled or, where permitted, waived by each of the Joint Bookrunners, by the respective time or date where specified (or such later time and/or date as the Company and each of the Joint Bookrunners may agree); (ii) any of such conditions become incapable of being satisfied; or (iii) the Placing Agreement is terminated in the circumstances specified below, the Placing will not proceed and each Placee's rights and obligations hereunder in relation to the Placing Shares shall cease and terminate at such time and each Placee agrees that no claim can be made by the Placee in respect thereof.
The Joint Bookrunners may, at their discretion and upon such terms as they think fit, extend the time for the satisfaction of any condition or waive compliance by the Company with the whole or any part of any of the Company's obligations in relation to the conditions in the Placing Agreement, save that the conditions in the Placing Agreement relating to the term sheet having been executed, the publication of the pricing announcement, the allotment of the Placing Shares and Admission taking place may not be waived. Any such extension or waiver will not affect the Placees' commitments as set out in this Announcement.
None of the Joint Bookrunners, the Company or any other person shall have any responsibility or liability to any Placee (or to any other person whether acting on behalf of a Placee or otherwise) in respect of any decision they may make as to whether or not to waive or to extend the time and / or the date for the satisfaction of any condition to the Placing nor for any decision they may make as to the satisfaction of any condition or in respect of the Placing generally, and by participating in the Placing each Placee agrees that any such decision is within the absolute discretion of the Joint Bookrunners.
Lock-up
The Company has agreed with the Joint Bookrunners that neither the Company nor any person controlled by the Company, nor any person acting on the Company's behalf, will, directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant for the sale of, lend or otherwise transfer or dispose of any securities of the same class as the Placing Shares or any securities convertible into or exchangeable for securities of the same class as the Placing Shares or other instruments representing interests in securities of the same class as the Placing Shares or enter into any swap or other agreement or transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of Ordinary Shares, whether any such swap or transaction is to be settled by delivery of Ordinary Shares or other securities, in cash or otherwise, in each case without the prior written consent of the Joint Bookrunners for a period beginning on the date of this announcement and ending ninety (90) calendar days after Admission, provided that the foregoing shall not prevent or restrict (i) grants or exercises of options or conditional share awards pursuant to the terms of employee share schemes of the Company; or (ii) the issue and offer by the Company of Placing Shares pursuant to the Placing subject to the terms of the Placing Agreement and any other document or announcement issued by or with the written consent of the Company in connection with the Placing (together, the Placing Documents).
Termination of the Placing Agreement
Each of the Joint Bookrunners is entitled, at any time before Admission, to terminate the Placing Agreement in relation to its obligations in respect of the Placing Shares by giving notice to the Company if, amongst other things:
1 there has been a breach of any of the warranties by the Company contained in the Placing Agreement or any failure to perform any of the undertakings or agreements in the Placing Agreement; or
2 it shall come to the notice of either Joint Bookrunners that any statement contained any Placing Document, or any of them, is or has become untrue, incorrect or misleading in any material respect, or any matter has arisen, which would, if the Placing were made at that time, constitute a material omission from or misleading inaccuracy in the Placing Documents, or any of them, and which either Joint Bookrunnersconsiders to be material in the context of the Placing or the underwriting of the Placing Shares, Admission or any of the transactions contemplated by the Placing Agreement; or
3 there has occurred (i) any material adverse change in the financial markets in the United States, the United Kingdom, member states of the European Union or in the international financial markets, (ii) any outbreak or escalation of hostilities, act of terrorism or other calamity or crisis or (iii) any change or development involving a prospective change in national or international political, financial or economic conditions, or currency exchange rates, in each case the effect of which is such as to make it, in the judgement of either Joint Bookrunners, impracticable or inadvisable to market the Placing Shares or to enforce contracts for the sale of the Placing Shares; or
4 listing of the Ordinary Shares on the London Stock Exchange has been withdrawn, or trading in any shares in the Company has been suspended or limited by the FCA, or if trading generally on the London Stock Exchange or the New York Stock Exchange has been suspended or limited, or there are certain other disruptions, limitations or suspensions in respect of the operations of certain stock exchanges or a banking moratorium is declared by certain authorities, the effect of which is such as to make it, in the judgement of either Joint Bookrunners, impracticable or inadvisable to market the Placing Shares or to enforce contracts for the sale of the Placing Shares; or
5 there has been a public announcement by the Company that would make it, in the judgement of each of the Joint Bookrunners, impractical or inadvisable to sell the Placing Shares or to enforce contracts for the sale of the Placing Shares.
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 either Joint Bookrunner of any right of termination or other discretion under the Placing Agreement shall be within the absolute discretion of the relevant Joint Bookrunner and that it need not make any reference to Placees in this regard and that, to the fullest extent permitted by law, the Joint Bookrunners shall have no responsibility or liability to Placees whatsoever in connection with any such exercise or failure so to exercise.
No prospectus
In connection with the Placing, no offering document, prospectus or admission document has been or will be prepared or submitted to be approved by the FCA, submitted to the London Stock Exchange or submitted or approved by any other regulatory body or stock exchange in the United Kingdom or elsewhere, and Placees' commitments will be made solely on the basis of publicly available information taken together with the information contained in this Announcement (including this Appendix) released by the Company today, and any Exchange Information (as defined below) previously published by the Company and subject to the further terms set forth in the contract note to be provided to individual prospective Placees.
Each Placee, by accepting a participation in the Placing, agrees that the content of this Announcement (including this Appendix) and the publicly available information released by or on behalf of the Company is exclusively the responsibility of the Company and confirms that it has neither received nor relied on any other information, representation, warranty, or statement made by or on behalf of the Company (other than publicly available information) or either of the Joint Bookrunners or their respective Affiliates (other than the amount of the relevant Placing participation in the oral confirmation given to Placees and the contract note referred to below) or any other person and none of the Joint Bookrunners, their Affiliates, any persons acting on their behalf or the Company nor any other person will be liable for any Placee's decision to participate in the Placing based on any other information, representation, warranty or statement which the Placees may have obtained or received (regardless of whether or not such information, representation, warranty or statement was given or made by or on behalf of any such persons). Each Placee acknowledges and agrees that it has relied on its own investigation of the business, financial or other position of the Company in accepting a participation in the Placing. Nothing in this paragraph shall exclude the liability of any person for fraudulent misrepresentation.
Registration and settlement
Settlement of transactions in the Placing Shares (ISIN: GB00B18V8630) following Admission will take place within the system administered by Euroclear UK & Ireland Limited (CREST), using the delivery versus payment mechanism, subject to certain exceptions. The Company reserves the right to require settlement for and delivery of the Placing Shares (or a portion thereof) to Placees in certificated form if, in the Joint Bookrunners' opinion, delivery or settlement is not possible or practicable within the CREST system within the timetable set out in this Announcement or would not be consistent with the regulatory requirements in the Placee's jurisdiction.
Following the close of the Bookbuild, each Placee allocated Placing Shares in the Placing will be sent a contract note stating the number of Placing Shares to be allocated to it at the Placing Price, the aggregate amount owed by such Placee to the relevant Joint Bookrunner and settlement instructions. Placees should settle against CREST ID: CSFB for Credit Suisse. It is expected that such contract note will be despatched on 16 April 2015 and that this will also be the trade date.
Each Placee agrees that it will do all things necessary to ensure that delivery and payment is completed in accordance with either the standing CREST or certificated settlement instructions that it has in place with the relevant Joint Bookrunner.
The Company will deliver the Placing Shares to a CREST account operated by Credit Suisse as agent for the Company and Credit Suisse will enter its delivery (DEL) instruction into the CREST system. Credit Suisse will hold any Placing Shares delivered to this account as nominee for the Placees. The input to CREST by a Placee of a matching or acceptance instruction will then allow delivery of the relevant Placing Shares to that Placee against payment.
It is expected that settlement will be on or around 21 April 2015 on a delivery versus payment basis in accordance with the instructions given to the relevant Joint Bookrunner.
Interest is chargeable daily on payments not received from Placees on the due date in accordance with the arrangements set out above at the rate of two percentage points above LIBOR as determined by the relevant Joint Bookrunner.
Each Placee agrees that, if it does not comply with these obligations, the relevant Joint Bookrunner may sell any or all of the Placing Shares allocated to that Placee on such Placee's behalf and retain from the proceeds, for the Company's account and benefit, an amount equal to the aggregate amount owed by the Placee plus any interest due. The relevant Placee will, however, remain liable for any shortfall below the aggregate amount owed by it and shall be required to bear any stamp duty, stamp duty reserve tax or other stamp, securities, transfer, registration, execution, documentary or other similar impost, duty or tax (together with any interest or penalties) which may arise upon the sale of such Placing Shares on such Placee's behalf.
If Placing Shares are to be delivered to a custodian or settlement agent, Placees should ensure that the contract note is copied and delivered immediately to the relevant person within that organisation. Insofar as Placing Shares are registered in a Placee's name or that of its nominee or in the name of any person for whom a Placee is contracting as agent or that of a nominee for such person, such Placing Shares should, subject to as provided below, be so registered free from any liability to UK stamp duty or stamp duty reserve tax. Placees shall not be entitled to receive any fee or commission in connection with the Placing. If there are any circumstances in which any other stamp duty or stamp duty reserve tax (together with interest and penalties) is payable in respect of the issue of the Placing Shares, neither the Joint Bookrunners nor the Company shall be responsible for the payment thereof.
Representations and warranties
By participating in the Placing each Placee (and any person acting on such Placee's behalf) irrevocably acknowledges, confirms, undertakes, represents, warrants and agrees (as the case may be) with the Joint Bookrunners (in their capacity as bookrunners and placing agents of the Company in respect of the Placing) and the Company, in each case as a fundamental term of their application for Placing Shares as set out below. Each Placee (and any person acting on such Placee's behalf):
1 represents and warrants that it has read and understood this Announcement, including the Appendix, in its entirety and that its subscription for the Placing Shares is subject to and based upon all the terms, conditions, warranties, acknowledgements, agreements and undertakings and other information contained herein and undertakes not to redistribute or duplicate this Announcement;
2 acknowledges and agrees that no offering document or prospectus or admission document has been or will be prepared in connection with the Placing and represents and warrants that it has not received and will not receive a prospectus, admission document or other offering document in connection with the Bookbuild, the Placing or the Placing Shares;
3 acknowledges that the Ordinary Shares are listed on the premium listing segment of the Official List of the FCA and admitted to trading on the main market for listed securities of the London Stock Exchange, and that the Company is therefore required to publish certain business and financial information in accordance with the rules and practices of the FCA (collectively, the Exchange Information), which includes a description of the nature of the Company's business and the Company's most recent balance sheet and profit and loss account, and similar statements for preceding financial years and that it has reviewed such Exchange Information and is able to obtain or access such Exchange Information without undue difficulty, and is able to obtain access to such information or comparable information concerning any other publicly traded company, without undue difficulty;
4 acknowledges that none of the Joint Bookrunnersor the Company nor any of their Affiliates nor any person acting on behalf of any of them has provided, and will not provide, it with any material or information regarding the Placing Shares, the Placing or the Company or any other person other than this Announcement; nor has it requested any of the Joint Bookrunners, the Company, any of their Affiliates or any person acting on behalf of any of them to provide it with any such material or information;
5 that it is not, and at the time the Placing Shares are acquired, neither it nor the beneficial owner of the Placing Shares will be a resident of, or located within, the United States, Canada, Japan, South Africa or any other jurisdiction in which it would be unlawful to make or accept an offer and further acknowledges that the Placing Shares have not been and will not be registered under the securities legislation of any such jurisdiction and, subject to certain exceptions and in accordance with applicable law, may not be offered, sold, taken up, renounced, delivered, distributed or transferred, directly or indirectly, in or into such jurisdictions;
6 confirms that (i) it is not within the United States, Canada, Japan or South Africa or any other jurisdiction in which it would be unlawful to make or accept an offer to acquire the Placing Shares; and (ii) it is not acquiring the Placing Shares with a view to the offer, sale, resale, transfer, delivery or distribution, directly or indirectly, of any such Placing Shares into the United States, Canada, Japan or South Africa or any other jurisdiction, subject to certain exceptions under applicable securities laws, in which it would be unlawful;
7 if it is in Australia, that it is either: (i) a "sophisticated investor" under section 708(8) of the Australian Corporations Act 2001 (Cth) (the Corporations Act); or (ii) a "professional investor" within the meaning of section 708(11)(a) or (b) of the Corporations Act; and (b) that it will not offer any of the Shares for resale in Australia within 12 months of those Shares being issued unless any such resale offer is exempt from the requirement to issue a disclosure document under section 708 or 708A of the Corporations Act;
8 acknowledges that the content of this Announcement is exclusively the responsibility of the Company and that neither the Joint Bookrunners, their Affiliates nor any person acting on their behalf has or shall have any responsibility or liability for any information, representation or statement contained in this Announcement or any information previously published by or on behalf of the Company and will not be liable for any Placee's decision to participate in the Placing based on any information, representation or statement contained in this Announcement, any information previously published by or on behalf of the Company or otherwise. Each Placee further represents, warrants and agrees that the only information on which it is entitled to rely and on which such Placee has relied in committing itself to subscribe for the Placing Shares is contained in this Announcement and any Exchange Information, such information being all that it deems necessary to make an investment decision in respect of the Placing Shares and that it has neither received nor relied on any other information given or investigations, representations, warranties or statements made by the Joint Bookrunnersor the Company and neither the Joint Bookrunnersnor the Company will be liable for any Placee's decision to accept an invitation to participate in the Placing based on any other information, representation, warranty or statement. Each Placee further acknowledges and agrees that it has relied on its own investigation of the business, financial or other position of the Company in deciding to participate in the Placing. None of the Joint Bookrunners, the Company nor any of their respective Affiliates has made any representations to it, express or implied, with respect to the Company, the Placing and the Placing Shares or the accuracy, completeness or adequacy of the Exchange Information, and each of them expressly disclaims any liability in respect thereof. Nothing in this paragraph or otherwise in this announcement excludes the liability of any person for fraudulent misrepresentation made by that person;
9 acknowledges that it has not relied on any information relating to the Company contained in any research reports prepared by either of the Joint Bookrunners, any of their respective Affiliates or any person acting on the Joint Bookrunners' or any of their Affiliates' behalf and understands that (i) none of the Joint Bookrunners, any of their Affiliates nor any person acting on their behalf has or shall have any liability for public information or any representation; (ii) none of the Joint Bookrunners, any of their Affiliates nor any person acting on their behalf has or shall have any liability for any additional information that has otherwise been made available to such Placee, whether at the date of publication, the date of this document or otherwise; and that (iii) none of the Joint Bookrunners, any of their Affiliates nor any person acting on their behalf makes any representation or warranty, express or implied, as to the truth, accuracy or completeness of such information, whether at the date of publication, the date of this Announcement or otherwise;
10 acknowledges that none of the Joint Bookrunnersnor any person acting on behalf of it nor any of their Affiliates has or shall have any responsibility or liability for any Exchange Information, any publicly available or filed information or any representation relating to the Company, provided that nothing in this paragraph excludes the liability of any person for fraudulent misrepresentation made by that person;
11 represents and warrants that neither it, nor the person specified by it for registration as a holder of Placing Shares is, or is acting as nominee or agent for, and that the Placing Shares will not be allotted to, a person whose business either is or includes issuing depositary receipts or the provision of clearance services and therefore that the issue to the Placee, or the person specified by the Placee for registration as holder, of the Placing Shares will not give rise to a liability under any of sections 67, 70, 93 or 96 of the Finance Act 1986 (depositary and clearance services) and that the Placing Shares are not being acquired in connection with arrangements to issue depositary receipts or to issue or transfer Placing Shares into a clearance system;
12 acknowledges that no action has been or will be taken by the Company, the Joint Bookrunners or any person acting on behalf of the Company or the Joint Bookrunners that would, or is intended to, permit a public offer of the Placing Shares in any country or jurisdiction where any such action for that purpose is required;
13 represents and warrants that it has complied with its obligations in connection with money laundering and terrorist financing under the Criminal Justice Act 1993, section 118 of FSMA, the Proceeds of Crime Act 2002, the Terrorism Act 2000, the Terrorism Act 2006 and the Money Laundering Regulations 2007 (the Regulations) and the Money Laundering Sourcebook of the FCA and, if making payment on behalf of a third party, that satisfactory evidence has been obtained and recorded by it to verify the identity of the third party as required by the Regulations;
14 represents and warrants that it is acting as principal only in respect of the Placing or, if it is acting for any other person (i) it is duly authorised to do so and has full power to make the acknowledgments, representations and agreements herein on behalf of each such person, (ii) it is and will remain liable to the Company and/or the Joint Bookrunners for the performance of all its obligations as a Placee in respect of the Placing (regardless of the fact that it is acting for another person), (iii) it is both an "authorised person" for the purposes of FSMA and a "qualified investor" (Qualified Investor) as defined in the Prospectus Directive acting as agent for such person, and (iv) such person is either (1) a "qualified investor" as referred to at section 86(7) of FSMA or (2) a "client" (as defined in section 86(2) of FSMA) of its that has engaged it to act as such client's agent on terms which enable it to make decisions concerning the Placing or any other offers of transferable securities on such client's behalf without reference to such client;
15 represents and warrants that it will subscribe for any Placing Shares for which it subscribes for its account or for one or more accounts as to each of which it exercises sole investment discretion and it has full power to make the acknowledgements, representations and agreements herein on behalf of each such account;
16 if a financial intermediary, as that term is used in Article 3(2) of the Prospectus Directive (including any relevant implementing measure in any member state), represents and warrants that the Placing Shares subscribed for by it in the Placing will not be subscribed for on a non-discretionary basis on behalf of, nor will they be subscribed for with a view to their offer or resale to, persons in a member state of the European Economic Area which has implemented the Prospectus Directive other than to Qualified Investors, or in circumstances in which the prior consent of the Joint Bookrunnershas been given to the proposed offer or resale;
17 represents and warrants that it has not offered or sold and, prior to the expiry of a period of six months from Admission, will not offer or sell any Placing Shares to persons in the United Kingdom, except to Qualified Investors or otherwise in circumstances which have not resulted and which will not result in an offer to the public in the United Kingdom within the meaning of section 85(1) of FSMA;
18 acknowledges that any offer of Placing Shares may only be directed at persons in member states of the European Economic Area who are Qualified Investors and represents and warrants that 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 Qualified Investors or otherwise in circumstances which have not resulted in and which will not result in an offer to the public in any member state of the European Economic Area within the meaning of the Prospectus Directive (including any relevant implementing measure in any member state);
19 represents and warrants that it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of 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;
20 represents and warrants that it has complied and will comply with all applicable provisions of FSMA with respect to anything done by it in relation to the Placing Shares in, from or otherwise involving, the United Kingdom;
21 represents and warrants that it is a person falling within Article 19(1), Article 19(5) and/or Article 49(2)(a) to (d) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 or is a person to whom this Announcement may otherwise be lawfully communicated;
22 represents and warrants that (i) it and any person acting on its behalf has capacity and authority and is otherwise entitled to subscribe for and purchase the Placing Shares under the laws of all relevant jurisdictions which apply to it; (ii) it has paid any issue, transfer or other taxes due in connection with its participation in any territory; (iii) it has not taken any action which will or may result in the Company, the Joint Bookrunners, any of their Affiliates or any person acting on their behalf being in breach of the legal and/or regulatory requirements of any territory in connection with the Placing and (iv) that the subscription for and purchase of the Placing Shares by it or any person acting on its behalf will be in compliance with applicable laws and regulations in the jurisdiction of its residence, the residence of the Company, or otherwise;
23 that it has all necessary capacity and has obtained all necessary consents and authorities to enable it to commit to its participation in the Placing and to perform its obligations in relation thereto (including, without limitation, in the case of any person on whose behalf it is acting, all necessary consents and authorities to agree to the terms set out or referred to in this announcement) and will honour such obligations;
24 undertakes that it and any person acting on its behalf will make payment for the Placing Shares allocated to it in accordance with this Announcement on the due time and date set out herein against delivery of such Placing Shares to it, failing which the relevant Placing Shares may be placed with other Placees or sold as the Joint Bookrunners s may in their absolute discretion determine 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 or stamp duty reserve tax (together with any interest or penalties due pursuant to the terms set out or referred to in this document) which may arise upon the sale of such Placee's Placing Shares on its behalf;
25 acknowledges that its allocation (if any) of Placing Shares will represent a maximum number of Placing Shares which it will be entitled, and required, to subscribe for, and that the Company may call upon it to subscribe for a lower number of Placing Shares (if any), but in no event in aggregate more than the aforementioned maximum;
26 acknowledges that none of the Joint Bookrunnersor any of their Affiliates, nor any person acting on their behalf, is making any recommendations to it or advising it regarding the suitability or merits of any transactions it may enter into in connection with the Placing and that participation in the Placing is on the basis that it is not and will not be a client of either Joint Bookrunnerand that the Joint Bookrunners have no duties or responsibilities to any Placee for providing the protections afforded to their clients or for providing advice in relation to the Placing nor in respect of any representations, warranties, undertakings or indemnities contained in the Placing Agreement nor for the exercise or performance of any of the Joint Bookrunners' rights and obligations thereunder including any rights to waive or vary any conditions or exercise any termination right;
27 undertakes that (i) the person whom it specifies for registration as holder of the Placing Shares will be (a) itself or (b) its nominee, as the case may be; (ii) neither the Joint Bookrunners nor the Company will be responsible for any liability to stamp duty or stamp duty reserve tax (together with interest and penalties) resulting from a failure to observe this requirement and (iii) each Placee and any person acting on behalf of such Placee agrees to participate in the Placing on the basis that the Placing Shares will be allotted to the CREST stock account of Credit Suisse who will hold them as nominee on behalf of such Placee until settlement in accordance with its standing settlement instructions with payment for the Placing Shares being made simultaneously upon receipt of the Placing Shares in the Placee's stock account on a delivery versus payment basis;
28 acknowledges that these Terms and Conditions and any agreements entered into by it pursuant to these Terms and Conditions and any non-contractual obligations arising out of or in connection with such agreements shall be governed by and construed in accordance with the laws of England and Wales and it submits (on behalf of itself and on behalf of any person on whose behalf it is acting) to the exclusive jurisdiction of the English courts as regards any claim, dispute or matter arising out of any such contract, except that enforcement proceedings in respect of the obligation to make payment for the Placing Shares (together with any interest chargeable thereon) may be taken by the Company or either Joint 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;
29 acknowledges that each of the Joint Bookrunnersand the Company and their respective Affiliates will rely upon the truth and accuracy of the representations, warranties, agreements, undertakings and acknowledgements set forth herein and which are irrevocable and it irrevocably authorises each of the Joint Bookrunnersto produce this Announcement, pursuant to, in connection with, or as may be required by any applicable law or regulation, administrative or legal proceeding or official inquiry with respect to the matters set forth herein;
30 agrees to indemnify on an after-tax basis and hold the Company, each of the Joint Bookrunners, any of their respective Affiliates and any person acting on their behalf harmless from any and all costs, claims, liabilities and expenses (including legal fees and expenses) arising out of or in connection with any breach of the representations, warranties, acknowledgements, agreements and undertakings in this Appendix and further agrees that the provisions of this Appendix shall survive after completion of the Placing;
31 acknowledges that it irrevocably appoints any director of the Joint Bookrunners as its agent for the purposes of executing and delivering to the Company and/or its registrars any documents on its behalf necessary to enable it to be registered as the holder of any of the Placing Shares agreed to be taken up by it under the Placing;
32 acknowledges that its commitment to subscribe for Placing Shares on the terms set out herein and in the contract note will continue notwithstanding any amendment that may in future be made to the terms 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;
33 in making any decision to subscribe for the Placing Shares, confirms that (i) it has knowledge and experience in financial, business and international investment matters as is required to evaluate the merits and risks of acquiring the Placing Shares; (ii) it is experienced in investing in securities of this nature and is aware that it may be required to bear, and is able to bear, the economic risk of, and is able to sustain a complete loss in connection with, the Placing; (iii) it has relied on its own examination, due diligence and analysis of the Company and its Affiliates taken as a whole, and the terms of the Placing, including the markets in which the Group operates, and the terms of the Placing, including the merits and risks involved; (iv) it has had sufficient time to consider and conduct its own investigation with respect to the offer and purchase of the Placing Shares, including the legal, regulatory, tax, business, currency and other economic and financial considerations relevant to such investment and (v) will not look to the Company, the Joint Bookrunners, any of their respective Affiliates or any person acting on their behalf for all or part of any such loss or losses it or they may suffer;
34 acknowledges and agrees that each Joint Bookrunnerdoes not owe any fiduciary or other duties to it or any Placee in respect of any representations, warranties, undertakings or indemnities in the Placing Agreement;
35 understands and agrees that it may not rely on any investigation that either Bank or any person acting on its behalf may or may not have conducted with respect to the Company and its Affiliates or the Placing and each of the Joint Bookrunners has not made any representation or warranty to it, express or implied, with respect to the merits of the Placing, the subscription for or purchase of the Placing Shares, or as to the condition, financial or otherwise, of the Company and its Affiliates, or as to any other matter relating thereto, and nothing herein shall be construed as a recommendation to it to subscribe for the Placing Shares. It acknowledges and agrees that no information has been prepared by, or is the responsibility of, the Joint Bookrunners for the purposes of this Placing;
36 acknowledges and agrees that it will not hold either Joint Bookrunneror any of their Affiliates or any person acting on their behalf responsible or liable for any misstatements in or omission from any publicly available information relating to the Group or information made available (whether in written or oral form) relating to the Group (the Information) and that none of the Joint Bookrunners or any person acting on behalf of either Bank, makes any representation or warranty, express or implied, as to the truth, accuracy or completeness of such Information or accepts any responsibility for any of such Information;
37 acknowledges that in connection with the Placing, the Joint Bookrunnersand any of their Affiliates acting as an investor for its own account may take up shares in the Company and in that capacity may retain, purchase or sell for its own account such shares in the Company and any securities of the Company or related investments and may offer or sell such securities or other investments otherwise than in connection with the Placing. Accordingly, references in this Announcement to shares being issued, offered or placed should be read as including any issue, offering or placement of such shares in the Company to any of the Joint Bookrunners and any Affiliate acting in such capacity. In addition each of the Joint Bookrunnersmay enter into financing arrangements and swaps with investors in connection with which the Joint Bookrunnersmay from time to time acquire, hold or dispose of such securities of the Company, including the Placing Shares. Neither the Joint Bookrunners nor any Affiliate intends to disclose the extent of any such investment or transactions otherwise than in accordance with any legal or regulatory obligations to do so;
38 acknowledges that (i) the Placing Shares have not been and will not be registered under the Securities Act or under the securities laws of any state or other jurisdiction of the United States, nor approved or disapproved by the US Securities and Exchange Commission, any state securities commission in the United States or any other United States regulatory authority; (ii) the Placing Shares are being offered and sold only pursuant to Regulation S under the Securities Act in an "offshore transaction" as defined in Regulation S under the Securities Act and (iii) the Placing Shares may not be reoffered, resold, pledged or otherwise transferred except in transactions not requiring registration under the Securities Act;
39 represents and warrants that it is, or at the time the Placing Shares are acquired, it (a) will be outside the United States and is not acquiring the Placing Shares for the account or benefit of any person located in the United States, unless the instruction to acquire was received from a person outside the United States and the person giving such instruction has confirmed that it is outside of the United States and that it or its Affiliate has the authority to give such instruction, and that it has investment discretion or authority over such account (b) is acquiring the Placing Shares in an "offshore transaction" (as defined in Regulation S) and (c) will not offer or sell, directly or indirectly, any of the Placing Shares except in an "offshore transaction" in accordance with Regulation S or in the United States pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act; and
40 represents and warrants that it is not taking and will not take up any Placing Shares as a result of any "directed selling efforts" as that term is defined in Regulation S under the Securities Act.
The foregoing acknowledgements, agreements, undertakings, representations, warranties and confirmations are given for the benefit of each of the Company and the Joint Bookrunners (for their own benefit and, where relevant, the benefit of their respective Affiliates and any person acting on their behalf) and are irrevocable. The agreement to settle a Placee's allocation (and/or the allocation of a person for whom such Placee is contracting as agent) free of stamp duty and stamp duty reserve tax depends on the settlement relating only to the subscription by it and/or such person direct from the Company for the Placing Shares in question. Such agreement assumes, and is based on a warranty from each Placee, that neither it, nor the person specified by it for registration as holder, of Placing Shares is, or is acting as nominee or agent for, and that the Placing Shares will not be allotted to, a person whose business either is or includes issuing depositary receipts or the provision of clearance services. If there are any such arrangements, or the settlement relates to any other dealing in the Placing Shares, stamp duty or stamp duty reserve tax may be payable. In that event the Placee agrees that it shall be responsible for such stamp duty or stamp duty reserve tax, and neither the Company nor each of the Joint Bookrunnersshall be responsible for such stamp duty or stamp duty reserve tax. If this is the case, each Placee should seek its own advice and notify each of the Joint Bookrunners 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 similar impost, 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.
When a Placee or person acting on behalf of the Placee is dealing with either of the Joint Bookrunners, any money held in an account with any of the Joint Bookrunners on behalf of the Placee and/or any person acting on behalf of the Placee will not be treated as client money within the meaning of the rules and regulations of the FCA made under FSMA. The Placee acknowledges that the money will not be subject to the protections conferred by the client money rules; as a consequence, this money will not be segregated from the Joint Bookrunners' money in accordance with the client money rules and will be used by each of the Joint Bookrunners in the course of its own business; and the Placee will rank only as a general creditor of the relevant Joint Bookrunner.
All times and dates in this Announcement may be subject to amendment. The relevant shall notify the Placees and any person acting on behalf of the Placees of any changes.
Past performance is no guide to future performance and persons needing advice should consult an independent financial adviser.
The rights and remedies of the Joint Bookrunners and the Company under these Terms and Conditions are in addition to any rights and remedies which would otherwise be available to each of them and the exercise or partial exercise of one will not prevent the exercise of others.
Each Placee may be asked to disclose in writing or orally to the Joint Bookrunners:
(a) if he is an individual, his nationality; or
(b) if he is a discretionary fund manager, the jurisdiction in which the funds are managed or owned.
DEFINITIONS
In this Announcement:
Admission means the admission of the Placing Shares to the premium listing segment of the Official List of the FCA and to trading on the main market for listed securities of the London Stock Exchange;
Affiliate has the meaning given in Rule 501(b) of Regulation D promulgated under the Securities Act or Rule 405 under the Securities Act, as applicable;
Announcement means this Announcement (including the Appendix to this Announcement);
Bookbuild means the bookbuilding process to be commenced by the Joint Bookrunners to use reasonable endeavours to procure placees for the Placing Shares, as described in this Announcement and subject to the terms and conditions set out in this Announcement and the Placing Agreement;
Company means Pennon Group plc;
Corporations Act means the Australian Corporations Act 2001 (Cth);
Credit Suisse means Credit Suisse Securities (Europe) Limited;
CREST means the relevant system, as defined in the Uncertificated Securities Regulations 2001 (SI 2001/3755) (in respect of which Euroclear UK & Ireland Limited is the operator);
FCA means the Financial Conduct Authority;
FSMA means the Financial Services and Markets Act 2000;
Group means the Company and its subsidiary undertakings;
Joint Bookrunners means Credit Suisse and Morgan Stanley;
London Stock Exchange means the London Stock Exchange plc;
Morgan Stanley means Morgan Stanley & Co. International plc;
Ordinary Share means an ordinary share of 40.7 pence each in the capital of the Company;
Placee means any person (including individuals, funds or otherwise) by whom or on whose behalf a commitment to subscribe for Placing Shares has been given;
Placing means the placing of the Placing Shares by the Joint Bookrunners, on behalf of the Company, with institutional investors;
Placing Agreement means the placing agreement dated 16 April 2015 between the Company and the Joint Bookrunners in respect of the Placing;
Placing Price means the price per Ordinary Share at which the Placing Shares are placed;
Placing Shares means the Ordinary Shares to be issued pursuant to the Placing, the number of which is to be determined at the close of the Bookbuild;
Prospectus Directive means the Directive of the European Parliament and of the Council of the European Union 2003/71/EC, as amended (which includes any relevant implementing measure in each member state of the European Economic Area and amendments thereto, including the Directive of the European Parliament and of the Council of the European Union 2010/73/EU to the extent implemented in each member state of the European Economic Area);
Regulation S means Regulation S promulgated under the Securities Act;
Regulatory Information Service means an information service that is approved by the FCA and on the FCA's list of Registered Information Services;
Securities Act means the US Securities Act of 1933, as amended;
Terms and Conditions means the terms and conditions of the Placing set out in the Appendix to this Announcement;
United Kingdom or UK means the United Kingdom of Great Britain and Northern Ireland;
United States or US means the United States of America, its territories and possessions, any state of the United States and the District of Columbia;
£ means the lawful currency of the United Kingdom; and
$ means the lawful currency of the United States.
This information is provided by RNS
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