Replacement - Prop. Acq. - Waste Management - Pt 2
Shanks Group PLC
10 March 2000
The issuer has advised that the headline for the Shanks Group plc announcement
released at 07:31 today under RNS No 418h should read 'Acqn/Placing Pt 2' and
not as originally shown.
All text details remain unchanged.
Part 2
SHANKS GROUP PLC
----------------
PROPOSED ACQUISITION OF WASTE MANAGEMENT NEDERLAND BV
------------------------------------------------------
Introduction
------------
It was announced today that Shanks has entered into a conditional agreement to
acquire Waste Management Nederland BV, the Dutch business of Waste Management
International BV for consideration of USD328.2 million (GBP207.7 million)
subject to certain closing balance sheet adjustments.
Waste Management Nederland is one of the four largest waste operators in the
Netherlands by turnover and the largest industry participant in the Randstad
region. Waste Management Nederland operates eight business units providing
solid waste, hazardous waste and electronic product recycling services.
The Acquisition will be financed through an 'accelerated book building' vendor
placing of 21,134,000 Placing Shares underwritten at a minimum price of 170
pence per share to raise a minimum of GBP35.9 million gross with the balance
being funded by the New Debt Facility provided by ABN Amro and The Royal Bank
of Scotland.
In view of the size of Waste Management Nederland relative to Shanks, the
Acquisition and Placing are conditional, inter alia, upon the approval of
Shanks shareholders, which is to be sought at an Extraordinary General Meeting
to be held on 3rd April, 2000.
Background to and reasons for the Acquisition
---------------------------------------------
Over the last five years Shanks has pursued a strategy of building an
integrated waste management business with the capability of providing a wide
range of advanced waste solutions to customers. At the same time, it has
actively participated in the consolidation of the industry. Shanks has also
sought opportunities to expand its geographical presence in markets where it
can achieve a leading position. The acquisition of Shanks' Belgian operations
in 1998 represented such an opportunity.
Waste Management Nederland operates eight business units providing solid and
hazardous waste collection, recycling and industrial cleaning and other added
value services between waste collection and disposal in the Netherlands. It
owns a substantial hazardous waste facility, treating in excess of 750,000
tonnes annually and has a leading electronics recycling business. The
management is decentralised and has a successful record of developing the
business. The board of Shanks believes that the business has significant
potential for further growth. In addition, Waste Management Nederland's
operations represent a good geographical fit with Shanks' neighbouring Belgian
activities.
The market for waste services in the Netherlands is highly developed as a
result of the country's environmental policy, which is one of the most
advanced in the world. Waste Management Nederland has significant
technological expertise in recycling and operates several state of the art
facilities. Of particular significance are pyrolysis (high temperature
treatment in the absence of air), refuse derived fuel and soil cleaning
technologies. The board of Shanks believes that there are significant
opportunities to apply these technologies across the Shanks Group especially
as environmental regulation in Europe is tightened. In particular, it is
expected that changes in the UK regulations will create greater demand for
recycling and other technologies and that, following the Acquisition, Shanks
will be better positioned to exploit the opportunities that result.
The board of Shanks expects that the acquisition of Waste Management Nederland
will enhance Shanks' earnings per share before goodwill amortisation in the
first full year of Shanks' ownership and considers that the value to Shanks
justifies the price of the Acquisition.
Information on Waste Management Nederland
-----------------------------------------
Waste Management Nederland is one of the four largest waste operators in the
Netherlands by turnover and the largest industry participant in the Randstad
region. Waste Management Nederland is comprised of eight operating units in
the solid waste, hazardous waste and electronic product recycling sectors.
There are five solid waste businesses: Icova in Amsterdam, van Vliet Contrans
between the Hague and Rotterdam, van Vliet Group Milieudienstverleners in
Utrecht, Klok Containers in Rotterdam and Vliko in Leiden. All are involved
in various transfer and recycling activities. Waste Management Nederland has
two hazardous waste units, ATM which is involved in soil cleaning, water and
sludge processing and pyrolsis, and Reym which provides industrial cleaning
services and transport. The final operating unit: Frazier Europe in Utrecht
is an electronic product recycler, dealing mainly in computers. In 1999,
revenue was split approximately 60 per cent. for solid waste, 37 per cent. for
hazardous waste and 3 per cent. for electronic recycling.
Waste Management Nederland operates ten facilities each of which provide
recycling, processing, collection depots and transfer stations, as well as
three stand-alone hazardous waste treatment facilities. Waste Management
Nederland operates approximately 450 collection vehicles and serves over
15,000 residential customers and approximately 21,000 other customers. There
is strong customer diversity with no single customer representing more than
five per cent. of turnover. The top ten customers represent less than 25 per
cent. of turnover.
Waste Management Nederland had audited turnover of NG450.2 million (GBP124.4
million) in the year ended 31st December, 1999 (1998 unaudited: NG424.6
million (GBP117.3 million)) and audited operating profit of NG67.7 million
(GBP18.7 million) (1998 unaudited: NG63.6 million (GBP17.6 million)) and
audited cash flow from operating activities of NG104.3 million (GBP28.8
million) (1998 unaudited: NG98.9 million (GBP27.3 million)). The audited net
assets, which take into account inter-company liabilities of NG233.2 million
(GBP64.4 million) at 31st December, 1999 were NG80.4 million (GBP22.2
million).
Details of the Placing
----------------------
Hoare Govett (as agent for the Company) has agreed to use its reasonable
endeavours to place with institutional investors a total of 21,134,000 Placing
Shares through an 'accelerated book building' vendor placing at a minimum
price of 170 pence per Placing Share. Any Placing Shares not acquired by
institutional investors will be acquired by Hoare Govett at the Placing Price.
Hoare Govett is acting as sole underwriter and book runner to the Placing.
Principal terms of the Acquisition
----------------------------------
Under the terms of the Acquisition Agreement, Shanks and Shanks BV have agreed
to purchase and Waste Management has agreed to sell the entirety of the issued
share capital of Waste Management Nederland. The Acquisition Agreement is
made between Waste Management and Waste Management International BV (which is
a wholly owned subsidiary of Waste Management)(together the 'Seller'), the
Company and Shanks BV (whose ultimate parent company is Shanks)(together the
'Purchaser') and is dated 9th March, 2000. Waste Management guarantees the
obligations of Waste Management International and Shanks guarantees the
obligations of Shanks BV.
The total consideration payable by the Purchaser in respect of the Acquisition
of USD328.2 million (GBP207.7 million) is comprised of approximately GBP171.8
million in cash and approximately GBP35.9 million through the Placing, and
includes the procurement of the repayment of intra-group indebtedness owed to
the Seller. The Acquisition Agreement provides for an initial share purchase
price adjustment ('initial adjustment') and a final share purchase price
adjustment ('final adjustment'). The initial adjustment provides that on
Completion a payment in respect of equity contributions made by Waste
Management to Waste Management Nederland since 31st December, 1999 net of
dividends and distributions made by Waste Management Nederland to Waste
Management over the same period will be made by one party to the other by
adjustment of the consideration. The final adjustment requires the Seller to
provide an unaudited consolidated balance sheet to be prepared as at
Completion within 90 days thereafter on the same basis as the accounts to 31st
December, 1999. In the event that this discloses a difference between the
Final Consolidated Shareholders' Equity and the 31st December, 1999
Consolidated Shareholders' Equity (each term as defined in the Acquisition
Agreement) of an amount equivalent to more than 0.3 per cent. of the Initial
Consideration (as defined in the Acquisition Agreement) then the relevant
party shall pay to the other party an amount equal to such difference.
The Acquisition is subject to the following conditions, among others, having
been satisfied on or before Completion:
1. the passing of the first, second, third and fifth resolutions to be
proposed at the Extraordinary General Meeting;
2. the Placing Agreement defined in paragraph 6.3 of Part 5 of the
Circular (which includes provisions as to satisfaction of the
conditionality concerning the New Debt Facility) becoming
unconditional in all respects (other than as regards, inter alia,
admission of the Placing Shares to the Official List, conditional
closing as defined in the Acquisition Agreement and receipt by ABN
Amro of the proceeds of the Placing); and
3. admission of the Placing Shares to the Official List.
The Acquisition Agreement includes certain warranties and indemnities, claims
under which are subject to limitations (in particular limiting the amount that
can be claimed in respect of breach of the Acquisitions Agreement (other than,
in effect, title to the shares sold under it) to 50 per cent. of the amount
payable by the Group) and, in the case of the warranties, to the information
disclosed prior to the signing of the Acquisition Agreement. The Purchaser
will bear 20 per cent. of any loss suffered from breach of warranty in
relation to environmental matters. The Acquisition Agreement also contains
certain warranties by the Purchaser which include a warranty that, so far as
Shanks is aware the warranties given by Shanks in the Acquisition Agreement
relating to the Placing and New Debt Facility are true and correct.
The Acquisition Agreement also provides for certain transitional services to
be provided by the Purchaser to the Seller and vice versa, for the conduct of
the business in the ordinary course between signing and Completion, for the
release of certain intra-group guarantees by the Purchaser and for a two year
non-compete covenant on the part of the Seller. In the event that the Seller
notifies the Purchaser before Completion of a breach of warranty, covenant or
representation in respect of which it is not prepared to permit the Purchaser
to complete the Acquisition and bring a claim in respect of such breach, the
Purchaser can either complete without being able to bring such claim or
decline to complete (but without compensation).
In addition, the Acquisition Agreement contains the provisions relating to the
pyrolysis permit (the 'Permit'). The indemnity secured by the Company
provides that a daily payment of NG45,902 (GBP12,680) to be made by the Seller
to the Purchaser for every day in respect of which the Permit is not in place
in the period to the end of this calendar year. Adjustments in relation to
the Permit effectively provide that in the event a permit is obtained but on
terms less satisfactory than the Permit (the 'Alternative Permit'), a lesser
daily sum is to be calculated to take into account the existence of the
Alternative Permit. The Seller also accepts the burden of any financial
penalties arising from investigations of its plant from 10th March, 2000 to
Completion. The Acquisition Agreement also provides that the Seller will pay
all Taxes (as defined in the Acquisition Agreement) which includes value added
tax attributable to any period or part thereof ending on or prior to the
Completion Date.
Current trading and prospects
-----------------------------
Since the Company's announcement of its interim results in November, its
operations, including the Belgian subsidiaries and the operations of Caird
Group PLC acquired in June 1999, have continued to make satisfactory progress
and the Board is confident of a positive outcome for the current financial
year to 4th April, 2000. Given the historical strength and predictability of
its cash flows, the Directors believe that the prospects for the Enlarged
Group following the Acquisition are encouraging.
Extraordinary General Meeting
-----------------------------
In view of its size, the Acquisition requires the approval of shareholders. A
circular has been posted to shareholders today convening an Extraordinary
General Meeting for 3rd April, 2000 for this purpose.
Enquiries
---------
Shanks Group plc Today: Hoare Govett Limited 020 7678 8000
---------------- Later: 01628 524 523
Michael Averill (Group Chief Executive)
David Downes(Group Finance Director)
Lazard Brothers & Co., Limited Tel: 020 7588 2721
------------------------------
Nicholas Jones
Julian Goodwin
Hoare Govett Limited Tel: 020 7678 8000
--------------------
Garth James
There will be an analysts' presentation at 10.00 am to be held at the offices
of Hoare Govett, 250 Bishopsgate, London EC2M 4AA.
Each of Lazard Brothers & Co., Limited and Hoare Govett Limited, which are
regulated in the United Kingdom by The Securities and Futures Authority
Limited, is acting exclusively for Shanks Group plc in relation to the
proposed acquisition and is not advising any other person or treating any
other person as its customer in relation thereto.
Appendix I: Definitions
-----------------------
'ABN Amro' ABN Amro Bank NV, the joint arranger
and co-underwriter of the New Debt
Facility;
'Acquisition' the proposed acquisition of Waste
Management Nederland pursuant to the
Acquisition Agreement;
'Acquisition Agreement' the agreement dated 9th March, 2000
between, inter alia, the Company and
Waste Management International
relating to the Acquisition of which
further details are set out in part 4
of the Circular;
'Board' or 'Directors' the directors of Shanks;
'Circular' the circular to Shanks shareholders
dated 10th March, 2000;
'Companies Act' the Companies Act 1985 (as amended);
'Enlarged Group' the Shanks Group as enlarged by the
Acquisition;
'Hoare Govett' Hoare Govett Limited, a member of the
ABN Amro group;
'Lazard' Lazard Brothers & Co., Limited;
'New Debt Facility' the new multi-tranche, multi-currency
banking facility dated 10th March,
2000 between the company and ABN Amro
and The Royal Bank of Scotland which
forms part of the financing
arrangements for the Acquisition;
'Ordinary Shareholders' the holders of Ordinary Shares;
'Ordinary Shares' ordinary shares of 10 pence each in
Shanks;
'Placing' the placing of the Placing Shares at
the Placing Price;
'Placing Price' the price at which the Placing Shares
are placed in accordance with the
terms of the placing agreement as
detailed in paragraph 6.3 of part 5 of
the Circular;
'Placing Shares' the 21,134,000 New Ordinary Shares to
be placed in accordance with the
placing agreement as detailed in
paragraph 6.3 of part 5 of the
Circular;
'Shanks' or 'Company' Shanks Group plc;
'Shanks Group' or 'Group' Shanks and its existing subsidiaries;
'Shareholders' shareholders of existing Ordinary
Shares;
'The Royal Bank of Scotland' The Royal Bank of Scotland plc, the
joint arranger and co-underwriter of
the New Debt Facility;
'Waste Management' Waste Management, Inc.;
'Waste Management International' Waste Management International BV; and
'Waste Management Nederland' Waste Management Nederland BV.
Appendix II: Details of the Placing
------------------------------------
Vendor Placing of 21,134,000 new Ordinary Shares at a minimum price of 170
pence per Ordinary Share.
* Hoare Govett is today placing with institutional investors (as agent
for the Company) a total of 21,134,000 new ordinary shares in Shanks
through an 'accelerated book building' Placing at a minimum price of
170 pence per ordinary share
* Hoare Govett is acting as sole underwriter and bookrunner to the
Placing.
* The paragraph below entitled 'How to Participate in the Placing
Tender' contains details of how to participate in this transaction.
Participation will only be available to regulated financial
institutions that are clients of Hoare Govett or any affiliate.
Important information
---------------------
If you choose to participate in the Placing by making an oral, and legally
binding, offer to acquire Placing Shares you will be deemed to have read and
understood this announcement in its entirety and to be making such offer on
the terms and conditions contained herein and to be providing the
representations, warranties and acknowledgements contained in this
announcement.
This announcement does not constitute an offer to sell or issue or the
solicitation of an offer to buy or acquire Ordinary Shares in the capital of
the Company in any jurisdiction in which such offer or solicitation is
unlawful. The Placing Shares referred to in this announcement have not been
and will not be registered under the US Securities Act of 1933 (the
'Securities Act') and, subject to certain exceptions, may not be offered or
sold within the United States or to, or for the account or benefit of, US
persons (as defined in Regulation S under the Securities Act ('Regulation
S')). The Placing Shares are being offered and sold outside the United States
to non-US persons in reliance on Regulation S and within the United States to
'qualified institutional buyers' in reliance on Rule 144A under the Securities
Act ('Rule 144A'). Prospective purchasers are hereby notified that the
Company may be relying on the exemption from the provisions of Section 5 of
the Securities Act provided by Rule 144A.
The distribution of this announcement and the Placing and/or issue of Placing
Shares in certain jurisdictions may be restricted by law. No action has been
taken by the Company or Hoare Govett that would permit an offer of Placing
Shares or possession or distribution of this announcement or any other
offering or publicity material relating to Placing Shares in any jurisdiction
where action for that purpose is required, other than in the United Kingdom.
Persons into whose possession this announcement comes are required by the
Company and Hoare Govett to inform themselves about and to observe any such
restrictions.
The Placing Shares have not been approved or disapproved by the US Securities
and Exchange Commission, any state securities commission in the United States
or any other US regulatory authority, nor have any of the foregoing
authorities passed upon or endorsed the merits of the Placing or the Placing
Shares or the accuracy of this announcement. Any representation to the
contrary is a criminal offence in the United States.
Details of the Placing Agreement and the Placing Shares
-------------------------------------------------------
Hoare Govett has today entered into a placing agreement (the 'Placing
Agreement') with Shanks whereby Hoare Govett has, subject to the conditions
set out therein, agreed to use its reasonable endeavours as agent for the
Company to procure placees to acquire the Placing Shares at a price at, or in
excess of, 170 pence (the 'Underwritten Price') or failing which Hoare Govett
will itself, as principal, acquire any Placing Shares for which it is unable
to procure placees at the Underwritten Price.
During the course of today Hoare Govett will be conducting an open price
tender (the 'Placing Tender') for participation in the Placing. This
announcement gives details of the terms and conditions and mechanics of
participation in the Placing Tender. Any Placing Shares which are
successfully allocated to placees in the Placing Tender ('Placing
Participation') will be free of stamp duty (subject to a placee representing
and warrantying the terms set out in this announcement). No commissions will
be paid to placees or by placees in respect of any Placing Participation.
The Placing Shares will be credited as fully paid and will rank pari passu in
all respects with the existing issued ordinary shares of 10 pence each in the
capital of the Company including the right to receive all dividends and other
distributions declared, made or paid after today's date. Admission is
expected to take place on 4th April, 2000 for settlement the same day.
How to participate in the Placing Tender
----------------------------------------
This announcement sets out the basis on which Hoare Govett is conducting the
Placing Tender for participation in the Placing. If you wish to tender you
should communicate your bid by telephone to your usual sales contact (or to
Jeremy Thompson on 020 7678 1760) at ABN AMRO Equities. Participation in the
Placing will be on the basis of the terms and conditions set out in this
announcement. If successful, your allocation will be confirmed to you orally,
or by fax, by close of business today, and a fax confirming your allocation
together with a CREST Registration Instruction Form will be dispatched as soon
as possible thereafter. Hoare Govett's confirmation to you whether orally or
by fax will constitute a legally binding commitment upon you to acquire the
Placing Shares comprised in your Placing Participation on the terms and
conditions set out in this announcement which you will be deemed to have read
and understood.
The Placing Tender will close in any event at 3.00 pm today, 10th March, 2000,
but may be closed at any time after 12.00 noon today at the sole discretion of
Hoare Govett. Hoare Govett may at its sole discretion choose to accept bids
which are received after the Placing Tender has closed. The Placing Tender
may be closed with demand for less than all the Placing Shares in which case
Hoare Govett will subscribe and/or purchase the balance of the Placing Shares
outstanding at the Placing Price (as defined below).
Hoare Govett anticipates making a further announcement later today, 10th
March, 2000, detailing the price at which the Placing Shares have been placed
(the 'Placing Price Announcement').
Principal terms of the Placing Tender
-------------------------------------
1. Hoare Govett has underwritten the Placing Shares at 170 pence per
share and is arranging the Placing.
2. Participation will only be available to regulated financial
institutions who are clients of Hoare Govett or ABN AMRO Equities
(UK) Ltd ('ABN AMRO Equities'). Hoare Govett is entitled to enter
bids as principal in the Placing Tender.
3. The Placing Tender will establish a single price ('the Placing
Price') payable by all placees. The Placing Price will not be set
below the Underwritten Price of 170 pence per share. The Placing
Price will be determined by Hoare Govett in its sole discretion
after consultation with the Company and having regard to such
factors as Hoare Govett considers appropriate. Once the Placing
Price has been determined, the Placing Price Announcement will be
made.
4. To enter a bid into the Placing Tender, you should communicate your
bid by telephone to your usual sales contact (or to Jeremy Thompson
on 020 7678 1760) at ABN AMRO Equities. Your bid should state the
number of Placing Shares that you wish to acquire and the price that
you are prepared to pay in respect of this number of shares. You
may also choose to enter a bid at the Placing Price which is
ultimately established by Hoare Govett (a 'Strike Price Bid').
5. In entering a bid in the Placing Tender you give the representations
and warranties contained in the section of this announcement
entitled 'Representations and Warranties'.
6. Any bid made by you will be legally binding upon you to the extent
that it is not varied or revoked prior to the close of the Placing
Tender and will not be capable of variation or revocation after the
close of the Placing Tender.
7. Hoare Govett reserves the right not to accept bids or to accept bids
in part rather than in whole. The acceptance of bids by Hoare
Govett shall be at its complete discretion.
8. The Placing Tender will close in any event at 3.00 pm today, 10th
March, 2000, but may be closed at any time after 12.00 noon today at
the sole discretion of Hoare Govett. Hoare Govett may at its sole
discretion choose to accept bids which are received after the
Placing Tender has closed. The Placing Tender may be closed with
demand for less than all the Placing Shares in which case Hoare
Govett will acquire the balance of the Placing Shares outstanding at
the Placing Price determined by it.
Allocations are expected to be made on a formula basis consistent with the
Placing being allocated in full and therefore successful tenders may be scaled
down. However preferential allocations may be given to bids at fixed prices
over Strike Price Bids. Hoare Govett retains absolute discretion as to
allocations of Placing Shares.
Conditions of the Placing
-------------------------
The Placing is conditional on:
1. the London Stock Exchange having admitted the Placing Shares to the
Official List ('Admission') on or before 8.30 am on , 4th April,
2000 in accordance with the Listing Rules or by such later time and
date as Hoare Govett and the Company may agree, save that it will be
no later than 18th April, 2000;
2. The Placing Agreement becoming unconditional in all respects,
including shareholder approval at the Extraordinary General Meeting
convened to be held on 3rd April, 2000; and (or the condition
relating to shareholder approval).
3. Hoare Govett not terminating the Placing Agreement in accordance
with its terms prior to Admission.
Hoare Govett may in its absolute discretion (and without liability to any
other person) waive in whole or in part any condition in the Placing
Agreement, but not the condition referred to in paragraph 1 above.
No prospectus has been or will be submitted to be approved by the London Stock
Exchange in relation to the Placing Shares.
Registration and settlement
---------------------------
Shanks has applied for the Placing Shares to be admitted to the Official List.
Accordingly, the settlement of transactions in the Placing Shares following
Admission will take place within the CREST system.
Placees will receive any shares placed with them in uncertificated form by
registration to their CREST member account.
If you are allocated any Placing Shares in the Placing Tender you will be sent
a CREST Registration Instruction Form which will contain details of the
information which we will require from you in order to deliver your Placing
Participation into your CREST account. Settlement for Placing Participations
will take place on 4th April, 2000.
Interest is chargeable daily on payments to the extent that value is received
after the due date at the rate of 5 percentage points above prevailing LIBOR.
Hoare Govett reserves the right to settle allocations in certificated form if
for any reason it wishes to do so.
Representations and warranties
------------------------------
By participating in the Placing Tender you represent, warrant and acknowledge
that:
1. you are not applying as, or as (a) nominee(s) or agent(s) of (a)
person(s) who is/are or may be, (a) person(s) liable to stamp duty
or stamp duty reserve tax at a rate in excess of 0.5 per cent. under
sections 67, 70, 93 or 96 of the Finance Act 1986 (depository
receipts and clearance services);
2. you are a person whose ordinary activities involve you in acquiring,
holding, managing or disposing of investments (as principal or
agent) for the purpose of your businesses and undertake that you
will acquire, hold, manage or dispose of the Placing Shares
comprised in your Placing Participation for the purposes of your
businesses;
3. you have complied with the Money Laundering Regulations (1993) (the
'Regulations') and, if you are making payment on behalf of a third
party, that satisfactory evidence has been obtained and recorded by
you to verify the identity of the third party as required by the
Regulations;
4. you have read this announcement;
5. by participating in the Placing Tender (i) the only information on
which you have relied upon is that contained in this announcement
and any information previously published by the Company by
notification to the Company Announcements Office of the London Stock
Exchange or otherwise publicly filed and which has not been
subsequently varied by any other publicly filed information or
matter of public record; and (ii) you are a person who falls within
paragraph 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1996;
6. you are entitled to subscribe for and/or purchase Placing Shares
under the laws of all relevant jurisdictions which apply to you and
that you have fully observed such laws and obtained all guarantees
and other consents which may be required thereunder and complied
with all necessary formalities;
7. If you are a purchaser of Placing Shares within the United States
pursuant to Rule 144A:
(a) You are (i) a qualified institutional buyer within the
meaning of Rule 144A ('QIB'), (ii) acquiring such Placing
Shares for your own account or for the account of a QIB
and (iii) aware, and each beneficial owner of such Placing
Shares has been advised, that the sale of such Placing
Shares to it is being made in reliance on Rule 144A.
(b) You understand that such Placing Shares have not been and
will not be registered under the Securities Act and may
not be offered, sold, pledged or otherwise transferred
except (i) in accordance with Rule 144A to a person that
you and any other person acting on your behalf reasonably
believe is a QIB purchasing for its own account or for the
account of a QIB, (ii) in an offshore transaction in
accordance with Rule 903 or Rule 904 of Regulation S or
(iii) pursuant to an exemption from registration under the
Securities Act provided by Rule 144 thereunder (if
available), in each case in accordance with any applicable
securities laws of any State of the United States.
(c) You understand that such Placing Shares (to the extent
they are in certificated form), unless otherwise
determined by the Company in accordance with applicable
law, will bear a legend substantially to the following
effect:
THIS ORDINARY SHARE HAS NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE US SECURITIES ACT OF 1933 (THE
'SECURITIES ACT') OR WITH ANY SECURITIES REGULATORY
AUTHORITY OF ANY STATE OR OTHER JURISDICTION OF THE UNITED
STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT (1) IN ACCORDANCE WITH RULE 144A UNDER
THE SECURITIES ACT TO A PERSON THAT THE HOLDER AND ANY
PERSON ACTING ON ITS BEHALF REASONABLY BELIEVE IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER (2) IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF
REGULATIONS UNDER THE SECURITIES ACT OR (3) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
PROVIDED BY RULE 144 THEREUNDER IF AVAILABLE), IN EACH
CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES. NO REPRESENTATION CAN BE
MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT FOR RESALES OF THIS
ORDINARY SHARE.
Prospective purchasers are hereby notified that the Company may be relying on
the exemption from the provisions of Section 5 of the Securities Act provided
by Rule 144A;
8. If you are a purchaser of Placing Shares outside the United States
pursuant to Regulation S and each subsequent purchaser of such
Placing Shares in resales prior to the expiration of the
distribution compliance period:
(a) You are or at the time Placing Shares are purchased will
be, the beneficial owner of such Placing Shares and (i)
not a US person or resident of Canada, Japan or Australia
and you are located outside the United States (within the
meaning of Regulation S), Canada, Japan and Australia and
(ii) you are not an affiliate of the Company or a person
acting on behalf of such an affiliate.
(b) You understand that such Placing Shares have not been and
will not be registered under the Securities Act and that,
prior to the expiration of the distribution compliance
period, you will not offer, sell, pledge or otherwise
transfer such Placing Shares except (i) in accordance with
Rule 144A under the Securities Act to a person that you
and any person acting on your behalf reasonably believe is
a QIB purchasing for its own account or the account of a
QIB or (ii) in an offshore transaction in accordance with
Rule 903 or Rule 904 of Regulation S, in each case in
accordance with any applicable securities laws of any
State of the United States.
(c) You understand that such Placing Shares (to the extent
they are in certificated form), unless otherwise
determined by the Company in accordance with applicable
law, will bear a legend to the following effect:
THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE US
SECURITIES ACT OF 1933 (THE 'SECURITIES ACT') OR WITH ANY SECURITIES
REGULATORY AUTHORITY OF ANY STATE OR OTHER JURISDICTION OF THE
UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES EXCEPT PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT.
The Company, Hoare Govett, and others will rely upon the truth and accuracy of
the foregoing representations, warranties and acknowledgements.
Hoare Govett is acting for Shanks in relation to the Placing and the Placing
Tender. Hoare Govett will not be responsible to any other person for
providing the protections afforded to the customers of Hoare Govett nor for
advising any other person on the transactions and arrangements referred to in
this letter.
CONSISTENT WITH US LAW AND PRACTICE, THE FOLLOWING CAUTIONARY STATEMENTS ARE
PROVIDED:
Availability of information
---------------------------
Neither the Company nor any of its subsidiaries is required to file periodic
reports under Section 13 or 15(d) of the US Securities Exchange Act of 1934
(the 'Exchange Act'). The Company has agreed that, for so long as any
Ordinary Shares are 'restricted securities' within the meaning of Rule
144(a)(3) under the Securities Act, the Company will, during any period in
which it is neither subject to Section 13 or 15(d) of the Exchange Act nor
exempt from reporting pursuant to Rule 12g3-2(b) thereunder, deliver to the
holder or beneficial owner of such restricted securities to any prospective
purchaser of the restricted securities designated by any such holder,
beneficial owner or prospective purchaser, upon the request of such holder,
beneficial owner or prospective purchaser, the information required to be
delivered pursuant to Rule 144(d)(4) under the Securities Act.
Notice to New Hampshire
-----------------------
NEITHER THE FACT THAT A REGISTRATION STATEMENT OR AN APPLICATION FOR A LICENCE
HAS BEEN FILED UNDER CHAPTER 421-B OF THE NEW HAMPSHIRE REVISED STATUTES WITH
THE STATE OF NEW HAMPSHIRE NOR THE FACT THAT A SECURITY IS EFFECTIVELY
REGISTERED OR A PERSON IS LICENSED IN THE STATE OF NEW HAMPSHIRE CONSTITUTES A
FINDING BY THE SECRETARY OF STATE OF NEW HAMPSHIRE THAT ANY DOCUMENT FILED
UNDER RSA 421-B IS TRUE, COMPLETE AND NOT MISLEADING. NEITHER ANY SUCH FACT
NOR THE FACT THAT AN EXEMPTION OR EXCEPTION IS AVAILABLE FOR A SECURITY OR A
TRANSACTION MEANS THAT THE SECRETARY OF STATE HAS PASSED IN ANY WAY UPON THE
MERITS OR QUALIFICATIONS OF, OR RECOMMENDED OR GIVEN APPROVAL TO, ANY PERSON,
SECURITY OR TRANSACTION. IT IS UNLAWFUL TO MAKE, OR CAUSE TO BE MADE, TO ANY
PROSPECTIVE PURCHASER, CUSTOMER OR CLIENT ANY REPRESENTATION INCONSISTENT WITH
THE PROVISIONS OF THIS PARAGRAPH.
Enforceability of judgements
----------------------------
The Company is a public limited company incorporated under the laws of the
United Kingdom. All of the directors and executive officers of the Company
are citizens or residents of countries other than the United States. All or a
substantial portion of the assets of such persons and substantially all the
assets of the Company are located outside the United States. As a result, it
may not be possible for investors to effect service of process within the
United States upon such persons or the Company or to enforce against them
judgements of US courts, including judgements predicated upon civil
liabilities under the securities law of the United States or any State or
territory within the United States.
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