Last checked at 28 Jan 2009 07:00
28 January 2009
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED STATES, CANADA, AUSTRALIA OR JAPAN OR ANY JURISDICTION IN WHICH
THE SAME WOULD BE UNLAWFUL
Helical Bar plc ("Helical" or the "Company")
HELICAL BAR UNDERTAKES PLACING TO TAKE GREATER ADVANTAGE
OF MARKET OPPORTUNITIES
Helical Bar plc today announces a placing of up to 9.7 million new ordinary shares of 1 pence per share in the capital of the Company.
Highlights
Accelerated bookbuild to place up to 9.7 million new ordinary shares
Proceeds will be used to provide extra financial resources for the Company to pursue additional compelling opportunities now emerging in the real estate sector
Strong support already indicated by existing shareholders and other institutions
Members of the Board and senior management team are investing a total of over £1m in the Placing
Helical's balance sheet remains robust as Company continues to make progress across a wide range of sectors and activities
Adjusted net asset value in line with market expectations
Introduction
The Board of Helical announces today that it has decided to raise additional equity capital through a placing (the "Placing") of up to 9.7 million ordinary shares of 1 pence each in the capital of Helical (the "Placing Shares") with both existing shareholders and other institutions. The Placing is being conducted through an accelerated bookbuild which will be launched immediately following this announcement. JPMorgan Cazenove ('JPMC') has been appointed sole bookrunner in respect of the Placing.
Background to and reasons for the Placing
As indicated to shareholders in its results statement in November 2008, Helical has been carefully monitoring current trends and valuations in the UK real estate market and expects the current economic downturn to generate compelling investment opportunities. The Board has therefore taken the decision to raise capital to strengthen further the Company's ability to make acquisitions of well priced assets and take advantage of the additional opportunities now emerging in the UK real estate market.
The Company has also already identified investment partners that have indicated a desire to co-invest alongside Helical allowing the Company to deploy its capital efficiently and to give it an opportunity to benefit from enhanced returns on successful investments.
Current trading and financial position
As disclosed in the Interim Management Statement announced this morning, the Company continues to make progress across a wide range of sectors and activities, despite the difficulties presented by the recession. The Board believes that Helical has the resources and financial strength to manage the further anticipated declines in property values and their impact on banking covenants, whilst retaining the capacity to re-enter the market at the appropriate time.
Furthermore, having conducted an informal review of its real estate portfolio, where appropriate in consultation with external valuers, the Board is confident that the Company's adjusted net asset value remains in line with current market expectations.
Details of the Placing
The number of Placing Shares and the price at which the Placing Shares are to be placed will be determined at the close of the bookbuild and announced shortly thereafter.
Under the terms of the Placing, Helical intends to place up to 9.7 million new ordinary shares of 1 pence each in the capital of the Company, representing approximately 9.9% of the current issued ordinary share capital of the Company made of 97,351,912 shares as at 27 January 2009. Strong support has already been indicated by existing shareholders and other institutions. In addition, members of the Company's Board and senior management team will be committing over £1 million to the Placing.
The Appendix to this announcement (which forms part of the announcement) sets out the terms and conditions of the Placing.
Commenting on the Placing, Mike Slade, Helical's Chief Executive, said:
"We believe that the exceptional market conditions we are currently witnessing will present buying opportunities that arise only once or twice in a property career.
"We have already built up our own cash resources, have a robust balance sheet and joint venture arrangements with well capitalised partners that will enable us to make acquisitions. However, we consider the scope and scale of the opportunities that should arise in the coming months will offer such compelling value that we have decided to raise additional capital. This will provide us with the extra financial firepower to take even greater advantage of the extraordinary market conditions and create long-term value for all our shareholders."
For further information, please contact:
Helical Bar 020 7629 0113
Michael Slade (Chief Executive)
Mike Brown (Deputy Chief Executive)
Nigel McNair Scott (Finance Director)
Address: 11-15 Farm Street, London W1J 5RS
Fax: 020 7408 1666
Website: www.helical.co.uk
JPMorgan Cazenove 020 7588 2828
Robert Fowlds
Bronson Albery
Shona Graham
Financial Dynamics 020 7831 3113
Stephanie Highett
Dido Laurimore
This announcement, including the Appendix (together the "Announcement"), is not for release, publication or distribution, directly or indirectly, in or into the United States, Canada, Australia or Japan or any jurisdiction into which the same would be unlawful. This Announcement does not constitute an offer to sell or issue or the solicitation of an offer to buy or acquire shares in the capital of the Company in the United States, Canada, Australia or Japan or any jurisdiction in which such an offer or solicitation is unlawful. The shares in the Company referred to in this Announcement (the "Placing Shares") have not been and will not be registered under the US Securities Act of 1933, as amended ("Securities Act") and may not be offered, sold or transferred, directly or indirectly, within the United States except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and applicable state securities laws. Any offering to be made in the United States will be made to a limited number of "qualified institutional buyers" within the meaning of Rule 144A under the Securities Act ("QIBs") pursuant to an exemption from registration under the Securities Act in a transaction not involving any public offering. The Placing Shares are being offered and sold outside the United States in accordance with Regulation S under the Securities Act. No money, securities or other consideration is being solicited and, if sent in response to the information herein, will not be accepted.
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 JPMorgan Cazenove Limited ("JPMC") or by any of its 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.
JPMC, which is authorised and regulated by the Financial Services Authority, is acting for the Company in connection with the offering of new ordinary shares to be issued by the Company (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 JPMC nor for providing advice in relation to the Placing.
The distribution of this Announcement and the Placing in certain jurisdictions may be restricted by law. No action has been taken by the Company or JPMC 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 JPMC to inform themselves about, and to observe, such restrictions.
Certain statements in this Announcement are forward-looking statements which are based on the Company's, expectations, intentions and projections regarding its future performance, anticipated events or trends and other matters that are not historical facts. These statements are not guarantees of future performance and are subject to known and unknown risks, uncertainties and other factors that could cause actual results to differ materially from those expressed or implied by such forward-looking statements. Given these risks and uncertainties, prospective investors are cautioned not to place undue reliance on forward-looking statements. Forward-looking statements speak only as of the date of such statements and, except as required by applicable law, the Company undertakes no obligation to update or revise publicly any forward-looking statements, whether as a result of new information, future events or otherwise. The information contained in this announcement is subject to change without notice and neither the Company nor JPMC assume any responsibility or obligation to update publicly or review any of the forward-looking statements contained herein.
Any indication in this Announcement of the price at which ordinary 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.
APPENDIX: FURTHER DETAILS OF THE PLACING
THIS ANNOUNCEMENT IS NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED STATES, CANADA, AUSTRALIA OR JAPAN OR ANY OTHER 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 HEREIN ARE FOR INFORMATION PURPOSES ONLY AND ARE DIRECTED ONLY AT: (A) PERSONS IN MEMBER STATES OF THE EUROPEAN ECONOMIC AREA WHO ARE QUALIFIED INVESTORS (WITHIN THE MEANING OF ARTICLE 2(1)(E) OF THE EU PROSPECTUS DIRECTYIVE (WHICH MEANS DIRECTIVE 2003/71/EC AND INCLUDES ANY RELEVANT IMPLEMENTING DIRECTIVE MEASURE IN ANY MEMBER STATE) (THE "PROSPECTUS DIRECTIVE"); (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; AND (C) IN THE NETHERLANDS, INDIVIDUALS OR LEGAL ENTITIES WHO OR WHICH ARE A QUALIFIED INVESTOR (GEKWALIFICEERDE BELEGGER) ("QI") WITHIN THE MEANING OF ARTICLE 1:1 OF THE DUTCH FINANCIAL SUPERVISION ACT (WET OP HET FINANCIEEL TOEZICHT) (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 RELATES 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.
EACH PLACEE SHOULD CONSULT WITH ITS OWN ADVISORS AS TO LEGAL, TAX, BUSINESS AND RELATED ASPECTS OF A PURCHASE OF PLACING SHARES.
Persons who are invited to and who choose to participate in the Placing, by making an oral or written offer to subscribe for Placing Shares (the "Placees"), will be deemed to have read and understood this Announcement, including this Appendix, 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. In particular each such Placee represents, warrants and acknowledges that it is:
| (a) | a Relevant Person (as defined above) and undertakes that it will acquire, hold, manage or dispose of any Placing Shares that are allocated to it for the purposes of its business; and |
| (b) | is acquiring the Placing Shares for its own account or is acquiring the Placing Shares for an account with respect to which it exercises sole investment discretion, and that it (and any such account) is outside the United States, or it is a dealer or other professional fiduciary in the United States acting on a discretionary basis solely for non-US beneficial owners (other than an estate or trust) and is acquiring the Placing Shares in an "offshore transaction" in accordance with Regulation S under the Securities Act, or if it is in the United States, it is a QIB as defined in Rule 144A under the Securities Act (and has received from JPMC or its affiliate an investor letter (the "US Investor Letter") to that effect and will return a duly executed copy of such US Investor Letter). |
Save as expressly set out, this Announcement does not constitute an offer or invitation to underwrite, subscribe for or otherwise acquire or dispose of any securities or investment advice in any jurisdiction, including without limitation, the United Kingdom, the United States, Australia, Canada or Japan. Past performance is no good guide to future performance. Persons needing advice should consult an independent financial advisor. This Announcement and the information contained herein is not for publication or distribution, directly or indirectly, to persons in the United States, Canada, Australia or Japan or in any jurisdiction in which such publication or distribution is unlawful. No public offer of securities of the Company is being made in the United Kingdom, United States or elsewhere.
In particular, the Placing Shares referred to in this Announcement have not been and will not be registered under the Securities Act or with any securities regulatory authority of any State or other jurisdiction of the United States. 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.
The Placing Shares may not be offered, sold or transferred within the United States except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act. Any offering to be made in the United States will be made to a limited number of QIBs pursuant to an exemption from registration under the Securities Act or in a transaction not involving any public offering. The Placing Shares are being offered and sold outside the United States in accordance with Regulation S under the Securities Act.
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, and nor will they be, registered under or offered in compliance with the securities laws of any state, province or territory of Canada, Australia or Japan. 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, Canada, Australia or Japan or any other jurisdiction outside the United Kingdom.
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.
Details of the Placing Agreement and the Placing Shares
JPMC has entered into a placing agreement (the "Placing Agreement") with the Company under which JPMC has, on the terms and subject to the conditions set out therein, undertaken to use its reasonable endeavours to procure subscribers for the Placing Shares (or failing which subscribe itself for such amount of unplaced Placing Shares) at the Placing Price.
The issue of the Placing Shares is to be effected by way of a cashbox placing.
The Placing Shares will, when issued, be credited as fully paid and will rank pari passu in all respects with the existing issued ordinary shares of 1 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 such Ordinary Shares after the date of issue of the Placing Shares.
In this Appendix, unless the context otherwise requires, Placee means a Relevant Person (including individuals, funds or others) on whose behalf a commitment to subscribe for Placing Shares has been given.
Application for listing and admission to trading
Application will be made to the Financial Services Authority (the "FSA") for admission of the Placing Shares to the Official List of the UK Listing Authority (the "Official List") and to 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 on or around 4 February 2009 and that dealings in the Placing Shares will commence at that time.
Bookbuild
JPMC will today commence the bookbuilding process in respect to the Placing (the "Bookbuild") to determine demand for participation in the Placing by Placees. 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.
JPMC and the Company shall be entitled to effect the Placing by such alternative method to the Bookbuild as they may, in their sole discretion, determine.
Participation in, and principal terms of, the Placing
Conditions of the Placing
The Placing is conditional upon the Placing Agreement becoming unconditional and not having been terminated in accordance with its terms. JPMC's obligations under the Placing Agreement are conditional on, inter alia:
(a) Admission taking place not later than 8.00 a.m. on 4 February 2009 or such later date as the Company and JPMC may otherwise agree but not being later than close of business on 6 February 2009;
(b) the warranties contained in the Placing Agreement being true and accurate and not misleading at all times before Admission;
(c) the Company complying with all its obligations under the Placing Agreement;
(d) the Company allotting, subject only to Admission, the Placing Shares in accordance with the Placing Agreement.
If (i) any of the conditions contained in the Placing Agreement, including those described above, are not fulfilled or (where applicable) waived by JPMC by the respective time or date where specified (or such later time or date as the Company and JPMC may agree) or (ii) the Placing Agreement is terminated in the circumstances specified below, the Placing will lapse and the Placee's rights and obligations hereunder in relation to the Placing Shares shall cease and terminate at such time and each Placee agrees that no claim can be made by the Placee in respect thereof.
JPMC may, at its discretion and upon such terms as it thinks 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 Placing Agreement save that the above condition relating to Admission taking place and the Company's allotment of the Placing Shares may not be waived. Any such extension or waiver will not affect Placees' commitments as set out in this Announcement.
Neither JPMC nor the Company 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 JPMC.
Right to terminate under the Placing Agreement
JPMC is entitled, at any time before Admission, to terminate the Placing Agreement in accordance with the terms of the Placing Agreement in certain circumstances, including any of the warranties given to JPMC in the Placing Agreement being untrue or inaccurate or having become misleading in respect of a matter which is material in the context of the Placing, or the failure of the Company to comply with obligations, which are material in JPMC's opinion (acting in good faith) or, the occurrence of a force majeure event as specified in the Placing Agreement which in the opinion of JPMC (acting in good faith), is likely to prejudice the success of the Placing.
By participating in the Placing, Placees agree that the exercise by JPMC of any right of termination or other discretion under the Placing Agreement shall be within the absolute discretion of JPMC 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.
No Prospectus
No offering document or prospectus has been or will be submitted to be approved by the FSA in relation to the Placing and 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 JPMC or any other person and neither JPMC nor 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.
Registration and Settlement
Settlement of transactions in the Placing Shares (ISIN: GB00B0FYMT95) following Admission will take place within the CREST system, subject to certain exceptions, JPMC 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.
Each Placee allocated Placing Shares in the Placing will be sent a trade confirmation in accordance with the standing arrangements in place with JPMC stating the number of Placing Shares allocated to it at the Placing Price, the aggregate amount owed by such Placee to JPMC and settlement instructions. Each Placee agrees that it will do all things necessary to ensure that delivery and payment is completed in accordance with either the standing CREST or certificated settlement instructions that it has in place with JPMC.
It is expected that settlement will be on 4 February 2009 on a T+3 basis in accordance with the instructions set out in the trade confirmation.
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 JPMC.
Each Placee is deemed to agree that, if it does not comply with these obligations, JPMC may sell any or all of the Placing Shares allocated to that Placee on such Placee's behalf and retain from the proceeds, for JPMC's account and benefit, an amount equal to the aggregate amount owed by the Placee plus any interest due. The relevant Placee will, however, remain liable for any shortfall below the aggregate amount owed by it and may be required to bear any stamp duty or stamp duty reserve tax (together with any interest or penalties) which may arise upon the sale of such Placing Shares on such Placee's behalf.
If Placing Shares are to be delivered to a custodian or settlement agent, Placees should ensure that the trade confirmation is copied and delivered immediately to the relevant person within that organisation.
Insofar as Placing Shares are registered in a Placee's name or that of its nominee or in the name of any person for whom a Placee is contracting as agent or that of a nominee for such person, such Placing Shares should, subject as provided below, be so registered free from any liability to UK stamp duty or stamp duty reserve tax.
Representations, Warranties and Further Terms
By participating in the Placing each Placee (and any person acting on such Placee's behalf):
| 1 | represents and warrants that it has read this Announcement, including the Appendix, in its entirety; |
| 2 | 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; |
| 3 | acknowledges that neither JPMC nor 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 regarding the Placing Shares or the Company other than this Announcement and, if it is in the United States, the US Investor Letter; nor has it requested any of JPMC, the Company, any of their affiliates or any person acting on behalf of any of them to provide it with any such information; |
| 4 | acknowledges that the content of this Announcement is exclusively the responsibility of the Company and that none of JPMC, its affiliates or any person acting on JPMC's behalf 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. 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 acquire the Placing Shares is contained in this Announcement and any information previously published by the Company by notification to a Regulatory Information Service and, if it is in the United States, the US Investor Letter, 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 representations, warranties or statements made by any of JPMC or the Company and neither JPMC nor the Company will be liable for any Placee's decision to accept an invitation to participate in the Placing based on any other information, representation, warranty or statement, provided that nothing in this paragraph excludes the liability of any person for fraudulent misrepresentation made by that person. 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; |
| 5 | acknowledges that neither JPMC nor any person acting on behalf of it nor any of its affiliates has or shall have any liability for any publicly available or filed information or any information, representation, warranty or statement relating to the Company contained therein or otherwise, provided that nothing in this paragraph excludes the liability of any person for fraudulent misrepresentation made by that person; |
| 6 | if the Placing Shares were offered to it in the United States, represents and warrants that in making its investment decision, (i) it has consulted its own independent advisers or otherwise has satisfied itself concerning, without limitation, the effects of United States federal, State and local income tax laws and foreign tax laws generally and the US Employee Retirement Income Security Act of 1974, the US Investment Company Act of 1940 and the Securities Act, (ii) it has received all information (including the business, financial condition, prospects, creditworthiness, status and affairs of the Company, the Placing and the Placing Shares, as well as the opportunity to ask questions) concerning the Company, the Placing and the Placing Shares that it believes is necessary or appropriate in order to make an investment decision in respect of the Company and the Placing Shares, (iii) it is aware and understands that an investment in the Placing Shares involves a considerable degree of risk and no US federal or state or non-US agency has made any finding or determination as to the fairness for investment or any recommendation or endorsement of the Placing Shares, and (iv) it is able to bear the economic risk of an investment in the Placing Shares, is able to sustain a complete loss of the investment in the Placing Shares and has no need for liquidity with respect to its investment in the Placing Shares; |
| 7 | represents and warrants that it is not, and at the time the Placing Shares are acquired will not be a resident of Australia, Canada or Japan, and each of it and the beneficial owner of the Placing Shares is, and at the time the Placing Shares are acquired will be, (i) not in the United States, or (ii) a QIB, or (iii) acquiring the Placing Shares in an "offshore transaction" in accordance with Rule 903 or Rule 904 of Regulation S under the Securities Act, and 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, will not look to the Managers for all or part of any such loss it may suffer, is able to bear the economic risk of an investment in the Placing Shares, is able to sustain a complete loss of the investment in the Placing Shares and has no need for liquidity with respect to its investment in the Placing Shares and represents and in the case of (ii) above, warrants that is acquiring the Placing Shares for its own account or for one or more accounts as to each of which it exercises sole investment discretion and each of which is a QIB, for investment purposes and not with a view to any distribution or for resale in connection with, the distribution thereof in whole or in part, in the United States; and that it has full power to make the acknowledgements, representations and agreements herein on behalf of each such account; |
| 8 | represents and warrants that the Placing Shares have not been and will not be registered or qualified for offer and sale nor will a prospectus be cleared in respect of any of the Placing Shares under the securities laws or legislation of the United States, Australia, Canada or Japan and, subject to certain exceptions, may not be offered, sold, or delivered or transferred, directly or indirectly, within those jurisdictions; |
| 9 | acknowledges that the Placing Shares have not been and will not be registered under the Securities Act or with 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 and are being offered and sold on behalf of the Company in offshore transactions (as defined in Regulation S under the Securities Act) and to QIBs in reliance upon Rule 144A under the Securities Act or another exemption from, or transaction not subject to, the registration requirements under the Securities Act; |
| 10 | acknowledges that the Placing Shares offered and sold in the United States are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act and, so long as the Placing Shares are "restricted securities", it will not deposit the Placing Shares into any unrestricted depositary receipt facility maintained by any depositary bank in respect of the Company's Ordinary Shares; |
| 11 | represents and warrants that it will not reoffer, sell, pledge or otherwise transfer the Placing Shares except (i) in an offshore transaction in accordance with Regulation S under the Securities Act; (ii) in the United States to QIBs pursuant to Rule 144A under the Securities Act; (iii) pursuant to Rule 144 under the Securities Act (if available) or (iv) pursuant to an effective registration statement under the Securities Act and that, in each such case, such offer, sale, pledge, or transfer will be made in accordance with any applicable securities laws of any state of the United States; |
| 12 | represents and warrants that in acquiring the Placing Shares it is not using "plan assets" (within the meaning of the US Employee Retirement Income Security Act of 1974, as amended ("ERISA")) or assets of any other employee benefit plan subject to any US federal, state, local or other law or regulation that is substantially similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the US Internal Revenue Code of 1986, as amended and that it will not sell or otherwise transfer any Placing Shares or any interest therein unless the transferee makes or is deemed to make the representations and warranties set forth in this paragraph, and the purchaser acknowledges and agrees that any purported transfer of Placing Shares or any interest therein that does not comply with this paragraph will not be effective and will not be recognised by the Company; |
| 13 | understands that the Company is likely classified as a passive foreign investment company (a "PFIC") for US federal income tax purposes, in which case "excess distributions" with respect to, and gain recognized on disposition of, a US investor's Placing Shares, would be treated as ordinary income and, in certain circumstances, subject to an interest charge to offset the benefits of income tax deferral. The US investor further understands that it might be able to avoid certain of these consequences by making a mark-to-market election with respect to its Placing Shares, in which case it will include each year, as ordinary income, the excess, if any, of the fair market value of the Placing Shares at the end of the taxable year over its adjusted basis, and will be permitted an ordinary loss only in limited cases. It has consulted with its own tax advisers regarding the potential application of the PFIC and mark-to-market provisions to it. |
| 14 | unless otherwise specifically agreed with JPMC, represents and warrants that it is, or at the time the Placing Shares are acquired 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 or Japan; |
| 15 | represents and warrants that 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 acquired in connection with arrangements to issue depositary receipts or to transfer Placing Shares into a clearance system; |
| 16 | represents and warrants that it has complied with its obligations in connection with money laundering and terrorist financing under the Proceeds of Crime Act 2002, the Terrorism Act 2003 and the Money Laundering Regulations 2003 (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; |
| 17 | if a financial intermediary, as that term is used in Article 3(2) of the EU Prospectus Directive, represents and warrants that the Placing Shares purchased by it in the Placing will not be acquired on a non-discretionary basis on behalf of, nor will they be acquired 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 Qualified Investors, or in circumstances in which the prior consent of JPMC has been given to the offer or resale; |
| 18 | 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 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"); |
| 19 | 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 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 European Economic Area within the meaning of the Prospectus Directive; |
| 20 | 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 the FSMA) relating to the Placing Shares in circumstances in which section 21(1) of the FSMA does not require approval of the communication by an authorised person; |
| 21 | represents and warrants that it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Placing Shares in, from or otherwise involving, the United Kingdom; |
| 22 | represents and warrants that it and any person acting on its behalf is entitled to acquire the 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 Announcement) and will honour such obligations; |
| 23 | 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, failing which the relevant Placing Shares may be placed with other subscribers or sold as JPMC may in its sole discretion determine and without liability to such Placee; |
| 24 | acknowledges that none of JPMC, nor any of its affiliates, nor any person acting on behalf of any of them, is making any recommendations to it, advising it regarding the suitability of any transactions it may enter into in connection with the Placees and that participation in the Placing is on the basis that it is not and will not be a client of JPMC and that JPMC has no duties or responsibilities to it for providing the protections afforded to its 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 Placing Agreement nor for the exercise or performance of any of its rights and obligations thereunder including any rights to waive or vary any conditions or exercise any termination right; |
| 25 | undertakes that the person whom it specifies for registration as holder of the Placing Shares will be (i) itself or (ii) its nominee, as the case may be. Neither JPMC nor the Company will be responsible for any liability to stamp duty or stamp duty reserve tax resulting from a failure to observe this requirement. 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 JPMC in respect of the same on the basis that the Placing Shares will be allotted to the CREST stock account of JPMC who will hold them as nominee on behalf of such Placee until settlement in accordance with its standing settlement instructions; |
| 26 | acknowledges that any agreements entered into by it pursuant to these terms and conditions 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 JPMC 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; |
| 27 | agrees that the Company, JPMC 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 JPMC on its own behalf and on behalf of the Company and are irrevocable; and |
| 28 | agrees to indemnify and hold the Company, JPMC 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. |
The agreement to settle a Placee's subscription (and/or the subscription 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 a subscription by it and/or such person direct from the Company for the Placing Shares in question. Such agreement assumes that the Placing Shares are not being subscribed for in connection with arrangements to issue depositary receipts or to transfer the Placing Shares into a clearance service. If there are any such arrangements, or the settlement related to any other dealing in the Placing Shares, stamp duty or stamp duty reserve tax may be payable, for which neither the Company nor JPMC will be responsible. If this is the case, each Placee should seek its own advice and notify JPMC accordingly.
In addition, Placees should note that they will be liable for any stamp duty and all other stamp, issue, securities, transfer, registration, documentary or other duties or taxes (including any interest, fines or penalties relating thereto) payable outside the UK by them or any other person on the subscription by them of any Placing Shares or the agreement by them to subscribe for any Placing Shares.
Each Placee, and any person acting on behalf of the Placee, acknowledges that JPMC does not owe any fiduciary or other duties to any Placee in respect of any representations, warranties, undertakings or indemnities in the Placing Agreement.
Each Placee and any person acting on behalf of the Placee acknowledges and agrees that JPMC 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.
When a Placee or person acting on behalf of the Placee is dealing with JPMC, any money held in an account with JPMC on behalf of the Placee and/or any person acting on behalf of the Placee will not be treated as client money within the meaning of the rules and regulations of the FSA made under the 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 JPMC's money in accordance with the client money rules and will be used by JPMC in the course of its own business and the Placee will rank only as a general creditor of JPMC.
All times and dates in this Announcement may be subject to amendment. JPMC shall notify the Placees and any person acting on behalf of the Placees of any changes.