TIDMKLR
RNS Number : 7424G
Keller Group PLC
11 June 2013
THIS ANNOUNCEMENT AND THE INFORMATION CONTAINED IN IT IS NOT FOR
PUBLICATION, RELEASE OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN OR
INTO THE UNITED STATES, AUSTRALIA, CANADA, JAPAN, NEW ZEALAND, THE
REPUBLIC OF IRELAND, THE REPUBLIC OF SOUTH AFRICA OR ANY
JURISDICTION IN WHICH THE SAME WOULD BE UNLAWFUL.
For immediate release 11 June 2013
Keller Group plc ("Keller" or the "Company")
Keller announces a placing of 6,600,000 new ordinary shares at
890 pence per share
to raise GBP58.7 million before expenses
Keller (LSE: KLR), the international ground engineering
specialist, today announces a placing of 6,600,000 new ordinary
shares of 10 pence each in the share capital of the Company (the
"Placing Shares") at 890 pence per share (the "Placing Price") to
raise GBP58.7 million before expenses (the "Placing").
Investec Bank plc ("Investec") and Jefferies International
Limited ("Jefferies" and, together, the "Joint Bookrunners") are
acting as joint bookrunners in connection with the Placing.
The Placing Shares represent approximately 9.9 per cent. of the
Company's issued share capital immediately prior to the Placing.
The Placing Price of 890 pence per share represents a 1.8 per cent.
discount to the middle market closing price of 906 pence per Keller
ordinary share on 10 June 2013.
The net proceeds of the Placing will be used to fund the
proposed acquisition of North American Piling, from North American
Energy Partners (the "Acquisition"). The Acquisition is the subject
of a separate announcement from Keller released this morning. The
consideration for the Acquisition will comprise an initial
CDN$227.5 million (GBP144.0 million) payable in cash on completion
and up to a further CDN$92.5 million (GBP58.5 million) of deferred
contingent consideration payable in cash depending upon financial
performance in the three years following completion, giving a
maximum aggregate consideration of CDN$320 million (GBP202.5
million).
The Company is proposing to finance the Acquisition through the
net proceeds of the issue of the Placing, together with the
drawdown of some of the available funds under a new bank facility
and existing bank facilities. The Placing is not conditional on the
completion of the Acquisition. It is therefore possible that the
Placing will complete and the Acquisition will not. In the event
that the Acquisition does not complete and to the extent that
opportunities for similar acquisitions have not been identified by
the Board, the Board will review Keller's funding structure and
will consider its options which will include using the proceeds for
general corporate purposes and/or returning surplus cash to
Shareholders. Any return of capital may have adverse tax
implications for Shareholders.
The Placing Shares will, when issued, be fully paid and will
rank pari passu in all respects with the existing ordinary shares
of the Company, including the right to receive all dividends and
other distributions declared, made or paid on or in respect of such
shares after the date of issue of the Placing Shares.
In connection with the Placing, Keller has entered into an
agreement today with Investec and Jefferies (the "Sponsor and
Placing Agreement"), which is conditional upon, amongst other
things, Admission (as defined below). In accordance with the terms
of the Sponsor and Placing Agreement, each Joint Bookrunner has,
severally, agreed to procure placees for the Placing Shares and to
the extent that such Joint Bookrunner is unable to procure placees,
it will subscribe as principal for its proportionate share of the
Placing Shares for which placees have not been procured. Further
details of the Sponsor and Placing Agreement can be found in the
terms and conditions contained in the Appendix to this announcement
under the heading "Details of the Sponsor and Placing Agreement and
the Placing Shares".
The Placing is being carried out pursuant to the authorities
granted by shareholders at the Company's annual general meeting on
23 May 2013, so does not require any further shareholder
approval.
Applications have been made to the Financial Conduct Authority
(the "FCA") for admission of the Placing Shares to the premium
listing segment of the Official List of the UK Listing Authority
and to the London Stock Exchange plc for admission to trading of
the Placing Shares on its main market for listed securities
(together "Admission"). It is expected that Admission will become
effective at or around 8.00 a.m. on Friday 14 June 2013 and that
dealings in the Placing Shares will commence at that time.
Following Admission, Keller's issued share capital shall consist
of 73,099,735 ordinary shares, each with voting rights. As at 10
June 2013, the number of ordinary shares held by the Company as
treasury shares was 2,162,527. Shareholders may use the above
figure as the denominator for the calculations by which they will
determine if they are required to notify their interest in, or a
change to their interest in, Keller under the FCA's Disclosure and
Transparency Rules.
The Appendix to this announcement sets out the detailed terms
and conditions of the Placing. 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 (including the Appendix) 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 the Appendix to this
announcement.
Enquiries:
Keller +44 (0) 20 7616 7575
Justin Atkinson, Chief Executive
James Hind, Finance Director
Jefferies +44 (0) 20 7029 8000
Simon Hardy
Lee Morton
Harry Nicholas
Investec +44 (0) 20 7597 5970
Keith Anderson
James Rudd
Cara Griffiths
Finsbury +44 (0) 20 7251 3801
Gordon Simpson
Rowley Hudson
This announcement is for information purposes only and does not
constitute or form part of an offer or invitation to acquire or
dispose of any securities of the Company, or constitute a
solicitation of any offer to purchase or subscribe for securities
in the United States, Australia, Canada, Japan, New Zealand, the
Republic of Ireland or the Republic of South Africa or any other
state or jurisdiction in which such an offer or solicitation would
be unlawful. The Placing Shares have not been, and will not be,
registered under the United States Securities Act of 1933, as
amended (the "US Securities Act"), or under the securities
legislation of any state or other jurisdiction of the US and may
not be offered, sold or transferred, directly or indirectly, in the
US except pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the US Securities Act
and in compliance with any applicable securities laws of any state
or other jurisdiction of the US. No public offering of securities
is being made in the US.
Neither this announcement nor any copy of it may be taken or
transmitted into Australia, Canada, Japan, New Zealand, the
Republic of Ireland or the Republic of South Africa or to any
securities analyst or other person in any of those jurisdictions.
Any failure to comply with this restriction may constitute a
violation of US, Australia, Canada, Japan, New Zealand, the
Republic of Ireland or the Republic of South Africa securities law.
The distribution of this announcement in certain other
jurisdictions may be restricted by law and persons into whose
possession this announcement comes should inform themselves about,
and observe, any such restrictions.
This announcement and any offer of securities to which it
relates are only addressed to and directed at persons who are (1)
qualified investors within the meaning of Directive 2003/71/EC and
any relevant implementing measures (the prospectus directive) and
(2) who have professional experience in matters relating to
investments who fall within article 19(1) of the Financial Services
and Markets Act 2000 (Financial Promotion) Order 2005 (the "Order")
or are persons falling within article 49(2)(a) to (d) ("High Net
Worth Companies, Unincorporated Associations, etc") of the Order
(all such persons together being referred to as "relevant
persons"). The information regarding the Placing set out in this
announcement must not be acted on or relied on by persons who are
not relevant persons. Any investment or investment activity to
which this announcement relates is available only to relevant
persons and will be engaged in only with relevant persons.
Each of Investec Bank plc ("Investec") or Jefferies
International Limited ("Jefferies") is acting exclusively for the
Company in connection with the Placing and not for any other person
and will not be responsible to anyone other than the Company for
providing the protections afforded to their respective clients, nor
for providing advice in relation to the Placing, the contents of
this announcement, or any transaction or arrangement referred to
herein.
This announcement has been issued by, and is the sole
responsibility of, the Company. Apart from the responsibilities and
liabilities, if any, which may be imposed on Investec or Jefferies
by the Financial Services and Markets Act 2000 or by the regulatory
regime established under it, neither Investec nor Jefferies 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 Investec or Jefferies or any of their
respective affiliates in connection with the Company, the Placing
Shares or the Placing. Investec and Jefferies 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 Investec or Jefferies or any of their
respective affiliates as to the accuracy, completeness or
sufficiency of the information contained in this announcement.
Any indication in this announcement of the price at which
Placing Shares have been bought or sold in the past cannot be
relied upon as a guide to future performance. No statement in this
announcement is intended to be a profit forecast and no statement
in this announcement should be interpreted to mean that earnings
per share of the Company for the current or future financial years
would necessarily match or exceed the historical published earnings
per share of the Company.
Certain statements made in on these pages constitute forward
looking statements. Forward looking statements can be identified by
the use of words such as "may", "will", "should", "predict",
"assurance", "aim", "hope", "risk", "expect", "intend", "estimate",
"anticipate", "believe", "plan", "seek", "continue" or other
similar expressions that are predictive or indicative of future
events. All statements other than statements of historical facts
included in on these pages, including, without limitation, those
regarding the Group's expectations, intentions and beliefs
concerning, amongst other things, the Group's results of
operations, financial position, growth strategy, prospects and the
industries in which the Group operates, are forward looking
statements. By their nature, such forward looking statements
involve known and unknown risks, uncertainties and other factors,
many of which are outside the control of the Group and its
Directors, which may cause the actual results, performance,
achievements, dividends of the Group and industry results to be
materially different from any future results, performance or
achievements expressed or implied by such forward looking
statements. As such, forward looking statements are no guarantee of
future performance.
TERMS AND CONDITIONS OF THE PLACING
THIS ANNOUNCEMENT AND THE INFORMATION CONTAINED HEREIN ARE
RESTRICTED AND ARE NOT FOR PUBLICATION, RELEASE OR DISTRIBUTION,
DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED STATES, AUSTRALIA,
CANADA, JAPAN, NEW ZEALAND, THE REPUBLIC OF IRELAND, THE REPUBLIC
OF SOUTH AFRICA OR ANY JURISDICTION IN WHICH THE SAME WOULD BE
UNLAWFUL.
IMPORTANT INFORMATION ON THE PLACING FOR INVITED PLACEES
ONLY.
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE
PLACING. THIS ANNOUNCEMENT AND THE TERMS AND CONDITIONS SET OUT IN
THIS APPENDIX ARE FOR INFORMATION PURPOSES ONLY AND ARE DIRECTED
ONLY AT: (A) PERSONS IN MEMBER STATES OF THE EUROPEAN ECONOMIC AREA
("EEA") WHO ARE QUALIFIED INVESTORS WITHIN THE MEANING OF ARTICLE
2(1)(E) OF THE EU PROSPECTUS DIRECTIVE (WHICH MEANS DIRECTIVE
2003/71/EC, AS AMENDED FROM TIME TO TIME, AND INCLUDES ANY RELEVANT
IMPLEMENTING DIRECTIVE MEASURE IN ANY MEMBER STATE) (THE
"PROSPECTUS DIRECTIVE") ("QUALIFIED INVESTORS"); AND (B) IN THE
UNITED KINGDOM, QUALIFIED INVESTORS WHO ARE PERSONS WHO (I) HAVE
PROFESSIONAL EXPERIENCE IN MATTERS RELATING TO INVESTMENTS FALLING
WITHIN ARTICLE 19(1) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000
(FINANCIAL PROMOTION) ORDER 2005 (THE "ORDER"); (II) ARE PERSONS
FALLING WITHIN ARTICLE 49(2)(A) TO (D) (HIGH NET WORTH COMPANIES,
UNINCORPORATED ASSOCIATIONS, ETC) OF THE ORDER; OR (III) ARE
PERSONS TO WHOM IT MAY OTHERWISE BE LAWFULLY COMMUNICATED (ALL SUCH
PERSONS TOGETHER BEING REFERRED TO AS "RELEVANT PERSONS").
THIS APPENDIX AND THE TERMS AND CONDITIONS SET OUT HEREIN MUST
NOT BE ACTED ON OR RELIED ON BY PERSONS WHO ARE NOT RELEVANT
PERSONS. PERSONS DISTRIBUTING THIS ANNOUNCEMENT MUST SATISFY
THEMSELVES THAT IT IS LAWFUL TO DO SO. ANY INVESTMENT OR INVESTMENT
ACTIVITY TO WHICH THIS APPENDIX AND THE TERMS AND CONDITIONS SET
OUT HEREIN RELATE IS AVAILABLE ONLY TO RELEVANT PERSONS AND WILL BE
ENGAGED IN ONLY WITH RELEVANT PERSONS. THIS APPENDIX DOES NOT
ITSELF CONSTITUTE AN OFFER FOR SALE OR SUBSCRIPTION OF ANY
SECURITIES IN THE COMPANY.
THIS ANNOUNCEMENT IS NOT AN OFFER OF SECURITIES FOR SALE INTO
THE UNITED STATES. THE SECURITIES REFERRED TO HEREIN HAVE NOT BEEN
AND WILL NOT BE REGISTERED UNDER THE US SECURITIES ACT OF 1933, AS
AMENDED (THE "US SECURITIES ACT") AND MAY NOT BE OFFERED OR SOLD,
DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED STATES, EXCEPT
PURSUANT TO AN APPLICABLE EXEMPTION FROM, OR AS PART OF A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE US
SECURITIES ACT AND IN COMPLIANCE WITH THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION OF THE UNITED STATES. THE PLACING
SHARES ARE BEING OFFERED AND SOLD OUTSIDE THE UNITED STATES IN
ACCORDANCE WITH REGULATION S UNDER THE US SECURITIES ACT.
EACH PLACEE SHOULD CONSULT WITH ITS OWN ADVISERS AS TO LEGAL,
TAX, BUSINESS AND RELATED ASPECTS OF SUBSCRIBING FOR PLACING
SHARES.
1. Notice to investors
1.1 Persons who are invited to and who choose to participate in
the Placing, by making an oral or written offer to subscribe for
new ordinary shares in the Company to be issued in the Placing
("Placing Shares"), including any individuals, funds or others on
whose behalf a commitment to subscribe for Placing Shares is given
(the "Placees"), will be deemed to have read and understood this
Announcement in its entirety and to be making such offer on the
terms and conditions, and to be providing the representations,
warranties, acknowledgements and undertakings, contained in this
Appendix.
1.2 The Placing Shares have not been approved or disapproved by
the US Securities and Exchange Commission, any State securities
commission or other regulatory authority in the United States, nor
have any of the foregoing authorities passed upon or endorsed the
merits of the Placing or the accuracy or adequacy of this
Announcement. Any representation to the contrary is unlawful.
1.3 The Placing Shares are being offered and sold outside the
United States in accordance with Regulation S under the US
Securities Act. Any offering to be made in the United States will
be made to a limited number of qualified institutional buyers (as
defined in Rule 144A under the US Securities Act) pursuant to an
exemption from registration under the US Securities Act in a
transaction not involving any public offering.
1.4 The relevant clearances have not been, and nor will they be,
obtained from the securities commission of any province or
territory of Canada; no prospectus has been lodged with or
registered by, the Australian Securities and Investments Commission
or the Japanese Ministry of Finance; and the Placing Shares have
not been, nor will they be, registered under or offered in
compliance with the securities laws of any state, province or
territory of Australia, Canada, Japan, New Zealand, the Republic of
Ireland or the Republic of South Africa. Accordingly, the Placing
Shares may not (unless an exemption under the relevant securities
laws is applicable) be offered, sold, resold or delivered, directly
or indirectly, in or into the United States, Australia, Canada,
Japan, New Zealand, the Republic of Ireland, the Republic of South
Africa or any other jurisdiction outside the United Kingdom.
1.5 Persons (including, without limitation, nominees and
trustees) who have a contractual or other legal obligation to
forward a copy of this Appendix or the Announcement of which it
forms part should seek appropriate advice before taking any
action.
2. placing process
2.1 This Appendix gives details of the terms and conditions of,
and the mechanics of participation in, the Placing. No commissions
will be paid to Placees or by Placees in respect of any Placing
Shares.
2.2 The Banks and the Company shall be entitled to effect the
Placing as they may, in their sole discretion, determine.
3. Applications for listing and admission to trading
3.1 Applications have been made to the Financial Conduct
Authority (the "FCA") for admission of the Placing Shares to the
Official List of the UK Listing Authority and to the London Stock
Exchange plc for admission to trading of the Placing Shares on its
main market for listed securities ("Admission").
3.2 It is expected that Admission will become effective at or
around 8.00 a.m. on 14 June 2013 and that dealings in the Placing
Shares will commence at that time.
4. Details of the Sponsor and Placing Agreement and the Placing Shares
4.1 Investec Bank plc ("Investec") and Jefferies International
Limited ("Jefferies") (together, the "Banks") have entered into a
sponsor and placing agreement (the "Sponsor and Placing Agreement")
with the Company under which they have agreed (severally and not
jointly or jointly and severally) as agents for the Company to use
their respective reasonable endeavours to procure Placees for the
Placing Shares at the price payable in respect of the Placing
Shares (the "Placing Price") on the terms and subject to the
conditions set out in this Announcement.
4.2 Following completion of the Placing, the Company shall
publish a placing results announcement through a Regulatory
Information Service (the "Placing Results Announcement"). Subject
to and conditional upon the publication of the Placing Results
Announcement, each of the Banks agrees (severally and not jointly
or jointly and severally) to the extent they have failed to procure
Placees to subscribe for all of the Placing Shares at the Placing
Price or any Placee procured by the Banks fails to subscribe for
any or all of the Placing Shares which have been allocated to it
(such number of Placing Shares which are not so subscribed being
the "Unplaced Placing Shares"), to subscribe, at the Placing Price,
for the Unplaced Placing Shares.
4.3 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 10 pence per share in the capital of the Company
("Ordinary Shares"), including the right to receive all dividends
and other distributions declared, made or paid on or in respect of
the Ordinary Shares after the date of issue of the Placing
Shares.
4.4 The Banks are entitled, at any time before Admission, to
terminate the Sponsor and Placing Agreement in accordance with the
terms of the Sponsor and Placing Agreement in certain
circumstances, including, inter alia:
(a) any breach of the warranties given in the Sponsor and Placing Agreement;
(b) any matter or circumstance arises as a result of which it is
reasonable to expect that any of the Conditions will not be
satisfied at the required time(s) (if any) and continue to be
unsatisfied as at Admission;
(c) any material adverse change, or any development reasonably
likely to result in, a material adverse change, in the condition or
prospects of the Company and its subsidiaries (the "Group") taken
as a whole; or
(d) the occurrence of a suspension or material limitation in the
trading in any securities of the Company or a banking moratorium
declared by the United States or United Kingdom which in the
opinion of the Banks, would make it impracticable or inadvisable to
proceed with the Placing.
4.5 By participating in the Placing, Placees agree that the
exercise by any Bank of any right of termination or other
discretion under the Sponsor and Placing Agreement shall be within
the absolute discretion of such Bank and that it need not make any
reference to Placees and that it shall have no liability to Placees
whatsoever in connection with any such exercise.
5. Participation in, and principal terms of, the Placing
5.1 The Banks are arranging the Placing severally and not
jointly or jointly and severally as bookrunners and agents of the
Company. Participation will only be available to persons who may
lawfully be, and are, invited to participate by either of the
Banks. Each of the Banks and their respective affiliates are
entitled to enter bids as principal in the Placing.
5.2 The allotment and issue of the Placing Shares to Placees by
the Company will be in consideration of the transfer to the Company
by Jefferies of shares in a Jersey incorporated company pursuant to
a subscription and transfer agreement entered into between
Jefferies, the Company and the Jersey company. The consideration
from the Company for the transfer of the shares in the Jersey
incorporated company will be the issue of the Placing Shares by the
Company to the Placees.
5.3 Each Placee's allocation will be confirmed to Placees orally
by the relevant Bank following the close of the Placing, and a
trade confirmation will be dispatched as soon as possible
thereafter. The relevant Bank's oral confirmation to such Placee
will constitute an irrevocable legally binding commitment upon such
person (who will at that point become a Placee) in favour of such
Bank and the Company, under which such Placee agrees to subscribe
for the number of Placing Shares allocated to it and to pay the
relevant Placing Price on the terms and conditions set out in this
Appendix and in accordance with the Company's corporate
documents.
5.4 The Company will make the Placing Results Announcement
following completion of the Placing confirming the number of
Placing Shares to be issued at the Placing Price.
5.5 The Banks will, in effecting the Placing, agree with the
Company the identity of the Placees and the basis of allocation of
the Placing Shares.
5.6 An order placed in relation to the Placing will be made on
the terms and subject to the conditions in this Appendix and will
be legally binding on the Placee on behalf of which it is made and
except with the relevant Bank's consent will not be capable of
variation or revocation after the time at which it is submitted.
Each Placee will also have an immediate, separate, irrevocable and
binding obligation, owed to the relevant Bank, to pay it (or as it
may direct) in cleared funds an amount equal to the product of the
Placing Price and the number of Placing Shares for which such
Placee has agreed to subscribe. Each Placee's obligations will be
owed to the relevant Bank.
5.7 Except as required by law or regulation, no press release or
other announcement will be made by the Banks or the Company using
the name of any Placee (or its agent), in its capacity as Placee
(or agent), other than with such Placee's prior written
consent.
5.8 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 paragraph 13 (Registration and Settlement).
5.9 All obligations under the Placing will be subject to
fulfilment or (where applicable) waiver of the conditions referred
to below under paragraph 6 (Conditions of the Placing) and to the
Sponsor and Placing Agreement not being terminated on the basis
referred to in paragraph 4.4 above.
5.10 By participating in the Placing, each Placee agrees 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.
5.11 To the fullest extent permissible by law, neither the
Banks, the Company nor any of their respective affiliates shall
have any responsibility or liability to Placees (or to any other
person whether acting on behalf of a Placee or otherwise). In
particular, neither the Banks, the Company nor any of their
respective affiliates shall have any responsibility or liability
(including to the extent permissible by law, any fiduciary duties)
in respect of the Banks' conduct of the Placing or of such
alternative method of effecting the Placing as the Banks, their
respective affiliates and the Company may agree.
6. Conditions of the Placing
6.1 The Placing is conditional upon the Sponsor and Placing
Agreement becoming unconditional and not having been terminated in
accordance with its terms. The Banks' obligations under the Sponsor
and Placing Agreement are conditional on, inter alia:
(a) Admission occurring not later than 8:00 a.m. London time on 14 June 2013;
(b) none of the warranties, undertakings and covenants on the
part of the Company contained in the Sponsor and Placing Agreement
becoming untrue on and as of the date of the Sponsor and Placing
Agreement and immediately before Admission;
(c) the Company having complied with all of its material
obligations under the Sponsor and Placing Agreement and under the
terms and conditions set out in this Appendix which fall to be
performed or satisfied on or prior to Admission;
(d) the publication of the Placing Results Announcement on a
Regulatory Information Service by 12.00 p.m. on 11 June 2013 (or
such later time and/or date as the Banks and the Company may agree
in writing);
(e) the Company allotting and/or issuing, as applicable, subject
only to Admission, the Placing Shares to the Placees or the Banks
(as applicable) in accordance with the Sponsor and Placing
Agreement;
(f) neither of the Banks being entitled to give notice to
terminate the Sponsor and Placing Agreement; and
(g) no matter having arisen prior to Admission which might
reasonably be expected to give rise to a claim under the indemnity
in the Sponsor and Placing Agreement.
6.2 If (a) any of the conditions contained in the Sponsor and
Placing Agreement, including those described above, are not
fulfilled or (where applicable) waived by the Banks by the
respective time or date where specified (or such later time or date
as the Company and the Banks may agree) or (b) the Sponsor and
Placing Agreement is terminated in the circumstances specified
above, the Placing will lapse and the Placees' 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 it in respect thereof.
6.3 The Banks may, at their discretion and upon such terms as
they think fit, 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 Sponsor and Placing Agreement save that the above
conditions relating, inter alia, to Admission taking place and the
Company allotting and/or issuing, as applicable, the relevant
Placing Shares may not be waived. Any such extension or waiver will
not affect Placees' commitments as set out in this
Announcement.
6.4 None of the Banks shall have any liability to any Placee (or
to any other person whether acting on behalf of a Placee or
otherwise) in respect of any decision it may make as to whether or
not to waive or to extend the time and/or date for the satisfaction
of any condition to the Placing nor for any decision 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 Banks.
7. Representations and Warranties
7.1 By participating in the Placing each Placee (and any person
acting on such Placee's behalf) represents and warrants that:
Capacity and authority
(a) it (and any person acting on its behalf) is entitled to
subscribe for Placing Shares under the laws of all relevant
jurisdictions and that it has all necessary capacity and has
obtained all necessary consents and authorities to enable it to
commit to this 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 Appendix) and will honour such obligations;
Information regarding the Placing
(b) it has read this Announcement, including the Appendix, in its entirety;
(c) it acknowledges that no offering document or prospectus has
been prepared in connection with the placing of the Placing Shares
and represents and warrants that it has not received a prospectus
or other offering document in connection therewith;
(d) the only information on which it is entitled to rely and on
which such Placee has relied in committing itself to subscribe for
Placing Shares is contained in this Announcement, such information
being all that such Placee 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
representations, warranties or statements made by any of the Banks
or the Company nor any of their respective affiliates and none of
the Banks or the Company will be liable for any Placee's decision
to accept an invitation to participate in the Placing based on any
other information, representation, warranty or statement, provided
that nothing in this paragraph excludes the liability of any person
for fraudulent misrepresentation made by that person;
(e) it has relied on its own investigation of the business,
financial or other position of the Company and the Group in
deciding to participate in the Placing;
Compliance with laws
(f) the issue to it, or the person specified by it for
registration as holder, of Placing Shares will not give rise to a
liability under any of sections 67, 70, 93 or 96 of the Finance Act
1986 (depositary receipts and clearance services) and that the
Placing Shares are not being subscribed for in connection with
arrangements to issue depositary receipts or to issue or transfer
Placing Shares into a clearance service;
(g) it has complied with its obligations in connection with
money laundering and terrorist financing under the Proceeds of
Crime Act 2002 (as amended), the Terrorism Act 2000, the Terrorism
Act 2006 (as amended) and the Money Laundering Regulations 2007 (as
amended) and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any government
agency having jurisdiction in respect thereof (the "Regulations")
and, if making payment on behalf of a third party, that
satisfactory evidence has been obtained and recorded by it to
verify the identity of the third party as required by the
Regulations;
(h) 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;
(i) it has neither received nor relied on any inside information
concerning the Company in accepting this invitation to participate
in the Placing;
(j) if it is a pension fund or investment company, its purchase
of Placing Shares is in full compliance with applicable laws and
regulations.
Selling restrictions
(k) it has not offered or sold and, prior to the expiry of a
period of 90 days from Admission, will not offer or sell any
Placing Shares to persons in the United Kingdom, except to persons
whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for
the purposes of their business or otherwise in circumstances which
have not resulted and which will not result in an offer to the
public in the United Kingdom within the meaning of section 85(1) of
the Financial Services and Markets Act 2000 ("FSMA");
(l) 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;
(m) it has not offered or sold and will not offer or sell any
Placing Shares to persons in the EEA prior to Admission except to
persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or
agent) for the purposes of their business or otherwise in
circumstances which have not resulted in and which will not result
in an offer to the public in any member state of the EEA within the
meaning of the Prospectus Directive;
(n) it is a Relevant Person (as defined above) and undertakes
that it will subscribe for, hold, manage or dispose of any Placing
Shares that are allocated to it for the purposes of its
business;
(o) it is subscribing for the Placing Shares for its own account
or for an account with respect to which it exercises sole
investment discretion, and that it (and any such account) is
outside the United States and is subscribing for the Placing Shares
in an "offshore transaction" in accordance with Regulation S under
the US Securities Act;
(p) if it is a financial intermediary, as that term is used in
Article 3(2) of the Prospectus Directive, 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 EEA which has implemented the Prospectus Directive
other than Qualified Investors, or in circumstances in which the
prior consent of the Banks has been given to the offer or
resale;
(q) it is not, and at the time the Placing Shares are subscribed
for will not be, located in the United States or a resident of
Australia, Canada, Japan, New Zealand, the Republic of Ireland or
the Republic of South Africa, and each of it and the beneficial
owner of the Placing Shares is not a resident of Australia, Canada,
Japan, New Zealand, the Republic of Ireland or the Republic of
South Africa, and, at the time the Placing Shares are subscribed
for:
(i) will be subscribing for the Placing Shares in an "offshore
transaction" in accordance with Rule 903 or Rule 904 of Regulation
S under the US Securities Act;
(ii) has such knowledge and experience in financial and business
matters to be capable of evaluating the merits and risks of an
investment in the Placing Shares;
(iii) will not look to the Banks for all or part of any such loss it may suffer;
(iv) is able to bear the economic risk of an investment in the Placing Shares;
(v) is able to sustain a complete loss of an investment in the Placing Shares; and
(vi) has no need for liquidity with respect to its investment in the Placing Shares; and
(r) unless otherwise specifically agreed with the Banks, it is,
or at the time the Placing Shares are subscribed for that it will
be, the beneficial owner of such Placing Shares, or that the
beneficial owner of such Placing Shares is not a resident of
Australia, Canada, Japan, New Zealand, the Republic of Ireland or
the Republic of South Africa.
8. further terms
8.1 By participating in the Placing each Placee (and any person
acting on such Placee's behalf) acknowledges that:
(a) none of the Banks, the Company, any of their respective
affiliates or any person acting on behalf of any of them has
provided, nor will provide it, with any material regarding the
Placing Shares or the Company other than this Announcement; nor has
it requested any of the Banks, the Company, any of their affiliates
or any person acting on behalf of any of them to provide it with
any such information;
(a) the content of this Announcement is exclusively the
responsibility of the Company and that none of the Banks, their
respective affiliates or any person acting on behalf of any of them
has or shall have any 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 or otherwise.
(b) none of the Banks, their respective affiliates or any person
acting on behalf of any of them has or shall have any liability for
any publicly available or filed information or any information,
representation, warranty or statement relating to the Company or
the Group contained therein or otherwise, provided that nothing in
this paragraph excludes the liability of any person for fraudulent
misrepresentation made by that person;
(c) the Placing Shares have not been and will not be registered
nor will a prospectus be approved in respect of any of the Placing
Shares under the securities laws or legislation of the United
States, Australia, Canada, Japan, New Zealand, the Republic of
Ireland or the Republic of South Africa and, subject to certain
exceptions, may not be offered, sold, or delivered or transferred,
directly or indirectly, within those jurisdictions;
(d) none of the Banks, nor any of their respective affiliates,
nor any person acting on behalf of any of them, is making any
recommendations to it, advising it regarding the suitability of any
transactions it may enter into in connection with the Placing and
that participation in the Placing is on the basis that it is not
and will not be a client of any Bank and that the Banks have no
duties or responsibilities to it for providing the protections
afforded to their respective clients or customers or for providing
advice in relation to the Placing nor in respect of any
representations, warranties, undertakings or indemnities contained
in the Sponsor and Placing Agreement nor for the exercise or
performance of any of their respective rights and obligations
thereunder including any rights to waive or vary any conditions or
exercise any termination right;
(e) the Banks do not owe any fiduciary or other duties to any
Placee in respect of any representations, warranties, undertakings
or indemnities in the Sponsor and Placing Agreement;
(f) the Company, the Banks and their respective affiliates and
others will rely upon the truth and accuracy of the foregoing
representations, warranties, acknowledgements and undertakings
which are given to the Banks on their own behalf and on behalf of
the Company and are irrevocable;
(g) any Bank or any of its affiliates may, at its absolute
discretion, agree to become a Placee in respect of some or all of
the Placing Shares;
(h) when a Placee or person acting on behalf of the Placee is
dealing with a Bank, any money held in an account with such Bank 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 such Bank's money in accordance with
the client money rules and will be used by such Bank in the course
of its own business and the Placee will rank only as a general
creditor of such Bank; and
(i) all times and dates in this Announcement may be subject to
amendment. The Banks shall notify the Placees and any person acting
on behalf of the Placees of any changes.
8.2 Each Placee (and any person acting on such Placee's behalf)
undertakes that it (and any person acting on its behalf) will make
payment in respect of the Placing Shares allocated to it in
accordance with this Appendix on the due time and date set out
herein, failing which the relevant Placing Shares may be placed
with other subscribers or sold as the Banks may in their sole
discretion determine and without liability to such Placee, who will
remain liable for any amount by which the net proceeds of such sale
falls short of the product of the relevant Placing Price and the
number of Placing Shares allocated to it and may be required to
bear any stamp duty, stamp duty reserve tax or other similar taxes
(together with any interest or penalties) which may arise upon the
sale of such Placee's Placing Shares.
8.3 Each Placee (and any person acting on such Placee's behalf)
undertakes that 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. None of the Banks or the Company will be
responsible for any liability to stamp duty or stamp duty reserve
tax or other similar taxes resulting from a failure to observe this
requirement (including any interest, fines or penalties relating
thereto) ("Indemnified Taxes"). Each Placee and any person acting
on behalf of such Placee agrees to participate in the Placing and
it agrees to indemnify the Company and the Banks on an after-tax
basis in respect of any Indemnified Taxes.
9. taxation
Placees should note that they will be liable for any stamp duty
and all other stamp, issue, securities, transfer, registration,
documentary or other duties or taxes (including any interest, fines
or penalties relating thereto) payable in the United Kingdom or any
other jurisdiction by them or any other person on the subscription
by them of any Placing Shares or the agreement by them to subscribe
for Placing Shares.
10. Indemnity
Each Placee (and any person acting on such Placee's behalf)
agrees to indemnify on an after tax basis and hold the Company, the
Banks and their respective affiliates harmless from any and all
costs, claims, liabilities and expenses (including legal fees and
expenses) arising out of or in connection with any breach of the
representations, warranties, acknowledgements, agreements and
undertakings in this Appendix and further agrees that the
provisions of this Appendix shall survive after completion of the
Placing.
11. Lock-up
The Company has undertaken to the Banks that, between the date
of the Sponsor and Placing Agreement and the date which is 90 days
later, it will not, without the prior written consent of the Banks,
(a) directly or indirectly issue, offer, pledge, sell, contract to
issue or sell, issue or sell any option or contract to purchase,
purchase any option or contract to issue or sell, grant any option,
right or warrant to purchase, deposit into any depositary receipt
facility or otherwise transfer of dispose of any Ordinary Shares or
any securities convertible into or exercisable or exchangeable for
Ordinary Shares or any other interest therein or (b) enter into any
swap or any other agreement or any transaction that transfers, in
whole or in part, directly or indirectly, any of the economic
consequences of ownership of Ordinary Shares, whether any such swap
or transaction described in (a) or (b) above is to be settled by
delivery of Ordinary Shares or such other securities, in cash or
otherwise provided that the foregoing shall not prevent or
restrict, amongst other things, the grant of options, or the
allotment and issue of shares pursuant to options, under any
existing employee share schemes of the Company.
12. No Prospectus
12.1 No offering document or prospectus has been or will be
submitted to be approved by the FCA in relation to the Placing.
12.2 Placees' commitments will be made solely on the basis of the information contained in this Announcement. Each Placee, by accepting a participation in the Placing, agrees that the content of this Announcement 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 or the Banks or any other person and none of the Banks 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. 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.
13. Registration and Settlement
13.1 Settlement of transactions in the Placing Shares (ISIN:
GB00B17BBQ50) following Admission will take place within the CREST
system. Subject to certain exceptions, the Banks and the Company
reserve the right to require settlement for and delivery of the
Placing Shares to Placees by such other means that they deem
necessary if delivery or settlement is not 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.
13.2 Each Placee allocated Placing Shares in the Placing will be
sent a trade confirmation in accordance with the standing
arrangements in place with the relevant Bank stating the number of
Placing Shares allocated to it at the Placing Price, the aggregate
amount owed by such Placee to the Bank and settlement instructions.
Each Placee agrees that it will do all things necessary to ensure
that delivery and payment are completed in accordance with the
standing CREST or certificated settlement instructions in respect
of the Placing Shares that it has in place with the relevant
Bank.
13.3 It is expected that settlement will be on 14 June 2013 in
accordance with the instructions set out in the trade
confirmation.
13.4 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 Banks.
13.5 Each Placee is deemed to agree that, if it does not comply
with these obligations, the Banks 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 Banks' account and benefit, an
amount equal to the aggregate amount owed by the Placee plus any
interest due. The relevant Placee will, however, remain liable for
any shortfall below the aggregate amount owed by it and may be
required to bear any stamp duty or stamp duty reserve tax (together
with any interest or penalties) or other similar taxes imposed in
any jurisdiction which may arise upon the sale of such Placing
Shares on such Placee's behalf.
13.6 If Placing Shares are to be delivered to a custodian or
settlement agent, Placees should ensure that the trade confirmation
is copied and delivered immediately to the relevant person within
that organisation.
13.7 Insofar as Placing Shares are registered in a Placee's name
or that of its nominee or in the name of any person for whom a
Placee is contracting as agent or that of a nominee for such
person, such Placing Shares should, subject as provided below, be
so registered free from any liability to UK stamp duty or stamp
duty reserve tax.
14. governing law and jurisdiction
Each Placee acknowledges that any agreements entered into by it
pursuant to these terms and conditions, and all non-contractual or
other obligations arising out of or in connection with them, shall
be governed by and construed in accordance with the laws of England
and Wales and it submits (on behalf of itself and on behalf of any
person on whose behalf it is acting) to the exclusive jurisdiction
of the English courts as regards any claim, dispute or matter
arising out of any such contract (including any dispute regarding
the existence, validity or termination of such contract or relating
to any non-contractual or other obligation arising out of or in
connection with such contract), except that enforcement proceedings
in respect of the obligation to make payment for the Placing Shares
(together with any interest chargeable thereon) may be taken by
either the Company or the Banks 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.
This information is provided by RNS
The company news service from the London Stock Exchange
END
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