NOT FOR DISTRIBUTION DIRECTLY OR INDIRECTLY IN OR INTO THE UNITED STATES, AUSTRALIA, SOUTH AFRICA, CANADA OR JAPAN OR ANY OTHER JURISDICTION WHERE TO DO SO WOULD CONSTITUTE A VIOLATION OF THE RELEVANT LAWS OF SUCH JURISDICTION.
Topps Tiles plc
PROPOSED PLACING OF UP TO 17,109,302 NEW ORDINARY SHARES
Topps Tiles plc ("Topps Tiles" or the "Company"), today announces its intention to place (the "Placing") up to 17,109,302 new ordinary shares of 3 1/3 pence each in the capital of the Company (the "Placing Shares") with existing and new institutional shareholders. The Placing Shares represent up to approximately 10 per cent. of Topps Tiles' existing issued ordinary share capital.
The Placing is being conducted through an accelerated bookbuild process which will be launched immediately following this announcement. KBC Peel Hunt Ltd ("KBC Peel Hunt") has been appointed as sole bookrunner and corporate broker (the "Bookrunner") in respect of the Placing.
The net proceeds from the Placing will help provide Topps Tiles with both additional financial flexibility in the event of a further downturn in consumer confidence and spending and also additional resources to support the Company's growth strategy as opportunities arise in the market.
The Company will make a further announcement once the number of Placing Shares, if any, and the price at which the Placing Shares are to be placed (the "Placing Price") have been determined.
Background to the Placing and use of proceeds
The board of Topps Tiles (the "Board") has taken the decision that it is appropriate at this juncture to further improve the financial flexibility of the Company's group through the issuance of up to 17,109,302 Placing Shares representing up to approximately 10 per cent. of Topps Tiles' existing issued ordinary share capital to the market via an accelerated bookbuild placing. This is a precautionary step in the event of a further downturn in consumer confidence and spending but will also give us additional resources to support the Company's growth strategy as opportunities arise in the market. The Board does not envisage any changes to the Company's current banking facilities ahead of the next refinancing, scheduled for the first half of 2011.
Details of the Placing
The Placing is being conducted through an accelerated bookbuilding process to be carried out by KBC Peel Hunt and is subject to the terms and conditions set out in the Appendix to this announcement.
The timing of the closing of the book, the number of Placing Shares, the price at which the Placing Shares are to be placed (the "Placing Price") and allocations are at the discretion of Topps Tiles and KBC Peel Hunt. Details of the number of Placing Shares and the Placing Price will be announced as soon as practicable after the close of the bookbuilding process.
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 3 1/3 pence each 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 shares after the date of issue. The Placing will be made on a non-pre-emptive basis. If the maximum number of Placing Shares are placed, the Placing would represent an increase of approximately 10 per cent. of the existing issued ordinary share capital of the Company, and the Placing Shares would represent approximately 9.1 per cent. of the enlarged issued ordinary share capital of the Company.
The allotment and issue of the Placing Shares will be made by the Company to placees procured by KBC Peel Hunt (acting as agent for the Company) in consideration for the transfer to the Company of certain shares in a Jersey incorporated subsidiary of the Company by KBC Peel Hunt.
The Company will apply for admission of the Placing Shares to listing on the Official List of the UK Listing Authority and to trading on the main market of the London Stock Exchange plc ("Admission"). It is expected that Admission will take place and that trading in the Placing Shares will commence on 27 November 2009.
The Placing is conditional upon, amongst other things, Admission becoming effective and on the Placing Agreement between the Company and KBC Peel Hunt not being terminated prior to Admission.
The Appendix to this announcement (which forms part of this announcement) sets out the terms and conditions of the Placing.
This announcement, including the Appendix (together "this Announcement"), is not for distribution directly or indirectly in or into the United States, Australia, South Africa, Canada or Japan or any other jurisdiction where to do so would constitute a violation of the relevant laws of such jurisdiction. 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, Australia, South Africa, Canada or Japan or any jurisdiction in which such an offer or solicitation would be unlawful. The shares in the Company referred to in this Announcement have not been and will not be registered under the US Securities Act of 1933, as amended (the "Securities Act") and may not be offered or sold within the United States except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act. No public offering of the Placing Shares is being made in the United Kingdom, the United States or elsewhere.
This Announcement has been issued by and is the sole responsibility of the Company. No representation or warranty express or implied, is or will be made as to, or in relation to, and no responsibility or liability is or will be accepted, by KBC Peel Hunt 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.
KBC Peel Hunt, which is authorised and regulated in the United Kingdom by the Financial Services Authority (the "FSA"), is acting for the Company in connection with the Placing and no-one else and will not be responsible to anyone other than the Company for providing the protections afforded to clients of KBC Peel Hunt nor for providing advice in relation to the Placing.
The distribution of this Announcement and the offering of the Placing Shares in certain jurisdictions may be restricted by law. No action has been taken by the Company or KBC Peel Hunt 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 to inform themselves about, and to observe, any such restrictions.
Certain statements in this Announcement are or may be 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. Such forward-looking statements can be identified by the fact that they do not relate only to historical or current facts. Forward-looking statements sometimes use words such as "aim", "anticipate", "target", "expect", "estimate", "intend", "plan", "goal", "believe", or other words of similar meaning. 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, neither the Company nor KBC Peel Hunt assumes any obligation to update or revise publicly any forward-looking statements, whether as a result of new information, future events or otherwise.
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.
The price of shares and the income from them may go down as well as up and investors may not get back the full amount invested on disposal of the shares.
For further information, please contact:
Topps Tiles plc c/o Bell Pottinger Corporate & Financial 020 7861 3232
Matthew Williams, CEO
Rob Parker, Finance Director
Barry Bester, Chairman
KBC Peel Hunt (Bookrunner and broker) 020 7418 8900
Garry Levin
Matt Goode
Dan Webster
Bell Pottinger Corporate & Financial 020 7861 3232
Emma Kent / Duncan Mayall
APPENDIX
FURTHER INFORMATION ON THE PLACING
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION DIRECTLY OR INDIRECTLY IN OR INTO THE UNITED STATES, AUSTRALIA, SOUTH AFRICA, CANADA, JAPAN OR ANY OTHER JURISDICTION WHERE TO DO SO WOULD CONSTITUTE A VIOLATION OF THE RELEVANT LAWS OF SUCH JURISDICTION.
IMPORTANT INFORMATION ON THE PLACING FOR INVITED PLACEES ONLY.
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING.
THIS APPENDIX, INCLUDING THE TERMS AND CONDITIONS OF THE PLACING SET OUT BELOW, IS FOR INFORMATION PURPOSES ONLY AND IS DIRECTED ONLY AT PERSONS WHO (A) ARE "QUALIFIED INVESTORS" AS REFERRED TO IN SECTION 86(7) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000, AS AMENDED ("FSMA") AND (B) WHO (1) HAVE PROFESSIONAL EXPERIENCE IN MATTERS RELATING TO INVESTMENTS FALLING WITHIN ARTICLE 19(5) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER 2005 (THE "ORDER"); (II) ARE PERSONS FALLING WITHIN ARTICLES 49(2)(A) TO (D) ("HIGH NET WORTH COMPANIES, UNINCORPORATED ASSOCIATIONS, ETC") OF THE ORDER; OR (III) ARE PERSONS AT OR TO WHOM ANY PRIVATE COMMUNICATION RELATING TO THE COMPANY THAT IS A "FINANCIAL PROMOTION" (AS SUCH TERM IS USED IN RELATION TO FSMA) MAY LAWFULLY BE ISSUED, DIRECTED OR OTHERWISE COMMUNICATED WITHOUT THE NEED FOR IT TO BE APPROVED, MADE OR DIRECTED BY AN "AUTHORISED PERSON" (AS SUCH TERMS IS USED IN RELATION TO FSMA) (ALL SUCH PERSONS IN (A) AND (B) TOGETHER REFERRED TO AS "FSMA QUALIFIED INVESTORS").
THIS APPENDIX AND THE TERMS AND CONDITIONS SET OUT HEREIN MUST NOT BE ACTED ON OR RELIED ON BY PERSONS WHO ARE NOT FSMA QUALIFIED INVESTORS. ANY INVESTMENT, CONTROLLED INVESTMENT, INVESTMENT ACTIVITY OR CONTROLLED ACTIVITY TO WHICH THIS APPENDIX AND THE TERMS AND CONDITIONS SET OUT HEREIN RELATES IS AVAILABLE ONLY TO FSMA QUALIFIED INVESTORS AND WILL BE ENGAGED IN ONLY WITH FSMA QUALIFIED INVESTORS.
THE DISTRIBUTION OF THIS ANNOUNCEMENT AND THE PLACING AND/OR ISSUE OF ORDINARY SHARES PURSUANT TO THE PLACING IN CERTAIN JURISDICTIONS MAY BE RESTRICTED BY LAW. FSMA QUALIFIED INVESTORS WHO SEEK TO PARTICIPATE IN THE PLACING MUST INFORM THEMSELVES ABOUT AND OBSERVE ANY SUCH RESTRICTIONS. IN PARTICULAR, THIS APPENDIX AND THE TERMS AND CONDITIONS SET OUT HEREIN DO NOT CONSTITUTE AN OFFER TO SELL OR ISSUE OR THE SOLICITATION OF AN OFFER TO BUY OR ACQUIRE ORDINARY SHARES IN THE UNITED STATES, AUSTRALIA, SOUTH AFRICA, CANADA OR JAPAN OR ANY JURISDICTION IN WHICH SUCH AN OFFER OR SOLICITATION WOULD BE UNLAWFUL. THE PLACING SHARES HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED, (THE "SECURITIES ACT") AND MAY NOT BE OFFERED OR SOLD IN THE UNITED STATES EXCEPT PURSUANT TO AN APPLICABLE EXEMPTION FROM, OR AS PART OF A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. NO PUBLIC OFFERING OF SECURITIES INCLUDING THE PLACING SHARES IS BEING MADE IN THE UNITED KINGDOM, THE UNITED STATES OR ELSEWHERE. NO MONEY, SECURITIES OR OTHER CONSIDERATION FROM ANY PERSON INSIDE THE UNITED STATES IS BEING SOLICITED PURSUANT TO THIS ANNOUNCEMENT OR THE PLACING.
EACH PLACEE SHOULD CONSULT WITH ITS OWN ADVISERS 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 to the Company and KBC Peel Hunt that it is:
a) a FSMA Qualified Investor (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) outside of the United States and is subscribing for the Placing Shares in an "offshore transaction" (within the meaning of Regulation S under the Securities Act).
The Company and KBC Peel Hunt will rely upon the truth and accuracy of the foregoing representations, warranties, acknowledgements and undertakings.
This Announcement and the information contained herein is not for publication or distribution, directly or indirectly, to persons in the United States, Australia, South Africa, Canada or Japan or in any other jurisdiction where to do so would constitute a violation of the relevant laws of such jurisdiction.
The Placing Shares may not be offered, sold or transferred within the United States except pursuant to an exemption from, or as part of a transaction not subject to, the registration requirements of the Securities Act. The Placing Shares are being offered and sold outside of the United States in accordance with Regulation S under the Securities Act. Any offering to be made in the United States will be made pursuant to an exemption from registration under the Securities Act or in a transaction not involving any public offering.
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 a criminal offence in the United States.
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, South Africa 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, South Africa or Japan or any other jurisdiction outside of the United Kingdom.
Persons (including, without limitation, nominees and trustees) who have contractual or other legal obligation to forward a copy of this Appendix or the Announcement of which it forms part should seek appropriate professional advice before taking any action.
The Placing
KBC Peel Hunt is arranging the Placing as agent for and on behalf of the Company. KBC Peel Hunt will determine in its absolute discretion the extent of each Placee's participation in the Placing, which will not necessarily be the same for each Placee. No commissions will be paid to or by Placees in respect of their agreement to subscribe for any Placing Shares.
Each Placee will be required to pay to KBC Peel Hunt, on the Company's behalf, the Placing Price as the subscription sum for each Placing Share agreed to be subscribed by it under the Placing in accordance with the terms set out in this Appendix. Each Placee's obligation to subscribe and pay for Placing Shares under the Placing will be owed to each of the Company and KBC Peel Hunt. Each Placee will be deemed to have read this Announcement in its entirety. To the fullest extent permitted by law and applicable FSA rules, neither KBC Peel Hunt nor any other person being (i) an undertaking which is a subsidiary undertaking of KBC Peel Hunt, (ii) a parent undertaking of KBC Peel Hunt or (other than KBC Peel Hunt) a subsidiary undertaking of any such parent undertaking, or (iii) a director, officer, agent or employee of any such person ("KBC Person") will have any liability to Placees or to any person other than the Company in respect of the Placing.
The Company reserves the right to allow officers of the Company and/or employees of its Group companies to subscribe for some of the Placing Shares at the Placing Price, with KBC Peel Hunt's agreement, on substantially the same or similar terms as apply to those FSMA Qualified Investors subscribing shares under the Placing.
KBC Peel Hunt has entered into a Placing Agreement (the "Placing Agreement") with the Company under which it has, on the terms and subject to the conditions set out therein, as agent for and on behalf of the Company, undertaken to use its reasonable endeavours to procure subscribers for the Placing Shares.
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 the right to receive all dividends and other distributions declared in respect of such Ordinary Shares after the date of issue of the Placing Shares.
Application for listing and admission to trading
Application will be made to the FSA for the admission of the Placing Shares to the Official List of the UK Listing Authority (the "Official List") and to London Stock Exchange plc for the 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 8.00 a.m. on 27 November 2009 and that dealings in the Placing Shares will commence at that time.
Bookbuild
KBC Peel Hunt will today commence the bookbuilding process in respect of 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.
KBC Peel Hunt 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
1. KBC Peel Hunt is arranging the Placing as sole bookrunner and agent of the Company.
2. Participation in the Placing will only be available to persons who may lawfully be, and are, invited to participate by KBC Peel Hunt. KBC Peel Hunt and its affiliates are entitled to enter bids in the Bookbuild as principal.
3. The Bookbuild will establish a single price payable to KBC Peel Hunt by all Placees whose bids are successful being the Placing Price. The Placing Price and the aggregate proceeds to be raised through the Placing will be agreed between KBC Peel Hunt and the Company following completion of the Bookbuild and any discount to the market price of the Ordinary Shares will be determined in accordance with the Listing Rules of the UK Listing Authority (the "Listing Rules"). The Placing Price and the number of Placing Shares will be announced on a Regulatory Information Service (as defined in the Listing Rules) following the completion of the Bookbuild (the "Pricing Announcement").
4. To bid in the Bookbuild, Placees should communicate their bid by telephone to their usual sales contact at KBC Peel Hunt. Each bid should state the number of Placing Shares which the prospective Placee wishes to subscribe for at either the Placing Price which is ultimately established by the Company and KBC Peel Hunt or at prices up to a price limit specified in its bid. Bids may be scaled down by KBC Peel Hunt on the basis referred to in paragraph 8 below.
5. The Bookbuild is expected to close no later than 5.00p.m. (London time) on 24 November 2009 but may be closed earlier or later at the discretion of KBC Peel Hunt. KBC Peel Hunt may, in agreement with the Company, accept bids that are received after the Bookbuild has closed. The Company reserves the right (with the agreement of KBC Peel Hunt) to reduce or seek to increase the amount to be raised pursuant to the Placing, in its absolute discretion.
6. Each prospective Placee's allocation will be confirmed to Placees orally by KBC Peel Hunt (as agent of the Company) following the close of the Bookbuild and a written confirmation will be dispatched by KBC Peel Hunt as soon as possible thereafter. The 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 KBC Peel Hunt and the Company, under which it agrees to subscribe for the number of Placing Shares allocated to it at the Placing Price on the terms and conditions set out in this Appendix and in accordance with the Company's Memorandum and Articles of Association.
7. The Company will make a further announcement following the close of the Bookbuild detailing the number of Placing Shares to be issued and the price at which Placing Shares have been placed.
8. Subject to paragraphs 4 and 5 above, KBC Peel Hunt may choose to accept bids, either in whole or in part, on the basis of allocations determined at its discretion and may scale down any bids for this purpose on such basis as it may determine. KBC Peel Hunt may also, notwithstanding paragraphs 4 and 5 above, subject to the prior consent of the Company (i) allocate Placing Shares after the time of any initial allocation to any person submitting a bid after that time and (ii) allocate Placing Shares after the Bookbuild has closed to any person submitting a bid after that time.
9. A bid in the Bookbuild 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 consent of KBC Peel Hunt will not be capable of variation or revocation after the time at which it is communicated. Each Placee will also have an immediate, separate, irrevocable and binding obligation, owed to KBC Peel Hunt as agent of the Company, 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 such Placee has agreed to subscribe. Each Placee's obligations will be owed to the Company and to KBC Peel Hunt.
10. Except as required by law, a court order or regulation, no press release or other announcement will be made by KBC Peel Hunt 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.
11. Irrespective of the time at which a Placee's allocation pursuant to the Placing is confirmed, settlement for all Placing Shares to be acquired pursuant to the Placing will be required to be made at the same time, on the basis explained below under "Registration and Settlement".
12. All obligations under the Bookbuild and Placing will be subject to fulfilment of the conditions referred to below under "Conditions of the Placing" and to the Placing not being terminated on the basis referred to below under "Right to terminate under the Placing Agreement".
13. By participating in the Bookbuild, each Placee will agree that its rights and obligations in respect of the Placing will terminate only in the circumstances described below and will not be capable of rescission or termination by the Placee.
14. To the fullest extent permissible by law, neither KBC Peel Hunt nor any of its affiliates shall have any liability to Placees (or to any other person whether acting on behalf of a Placee or otherwise). In particular, neither KBC Peel Hunt nor any KBC Person shall have any liability (including to the extent permissible by law, any fiduciary duties) in respect of KBC Peel Hunt's conduct of the Bookbuild or of such alternative method of effecting the Placing as KBC Peel Hunt and the Company may agree.
Conditions of the Placing
The obligations of KBC Peel Hunt under the Placing Agreement are conditional upon, inter alia:
(a) Admission taking place not later than 8.00 a.m. on 27 November 2009 or such later date as the Company and KBC Peel Hunt may otherwise agree; and
(b) the obligations of KBC Peel Hunt under the Placing Agreement not having been terminated.
If (i) any of the conditions contained in the Placing Agreement in relation to the Placing Shares are not fulfilled or waived (to the extent they can be waived) by KBC Peel Hunt by the respective time or date where specified (such times or dates may be extended by KBC Peel Hunt), or (ii) the Placing Agreement is terminated in the circumstances specified below, the Placing will lapse and each Placee's rights and obligations hereunder in relation to the Placing Shares shall cease and terminate at such time and each Placee agrees that no claim can be made by it in respect thereof.
KBC Peel Hunt may, at its discretion, 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 may not be waived. Any such extension or waiver will not affect Placees' commitments as set out in this Announcement.
None of KBC Peel Hunt, the Company or any other person shall have any liability to any Placee (or to any other person whether acting on behalf of a Placee or otherwise) in respect of any decision it may make as to whether or not to waive or to extend the time and/or the date for the satisfaction of any condition to the Placing nor for any decision they may make as to the satisfaction of any condition or in respect of the Placing generally and by participating in the Placing each Placee agrees that any such decision is within the absolute discretion of KBC Peel Hunt.
Right to terminate under the Placing Agreement
KBC Peel Hunt is entitled, at any time before Admission, to terminate the Placing Agreement in relation to its obligations in respect of the Placing Shares by giving notice to the Company in certain circumstances, including a material breach of the warranties given to KBC Peel Hunt in the Placing Agreement, the failure of the Company to comply with obligations under the Placing Agreement or the occurrence of a force majeure event.
By participating in the Placing, Placees agree that the exercise by KBC Peel Hunt of any right of termination or other discretion under the Placing Agreement shall be within the absolute discretion of KBC Peel Hunt and that they need not make any reference to Placees and that they shall have no liability to Placees whatsoever in connection with any such exercise.
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 (including this Appendix) released by the Company today.
Registration and settlement
Participation in the Placing is only available to persons who are invited to participate in it by KBC Peel Hunt.
Settlement of transactions in the Placing Shares (ISIN: GB00B18P5K83) following Admission will take place within the system administered by Euroclear UK & Ireland Limited ("CREST"), provided that, the Company reserves the right to require settlement for and delivery of the Placing Shares (or a portion thereof) to Placees by such other means that it deems necessary if, in KBC Peel Hunt's and the Company's opinion, delivery or settlement is not possible or practicable within the CREST system within the timetable set out in this Announcement or would not be consistent with the regulatory requirements in the Placee's jurisdiction.
Following the close of the Bookbuild, each Placee allocated Placing Shares in the Placing will be sent a written confirmation in accordance with the standing arrangements in place with KBC Peel Hunt, stating the number of Placing Shares allocated to it at the Placing Price and settlement instructions. Each Placee agrees that it will do all things necessary to ensure that delivery and payment is completed in accordance with either the standing CREST or certificated settlement instructions that it has in place with KBC Peel Hunt.
The Company will deliver the Placing Shares to a CREST account operated by KBC Peel Hunt as agent for the Company (which will hold the Placing Shares as nominee for the Placees until the registration of the Placees) and KBC Peel Hunt will enter its delivery (DEL) instruction into the CREST system. The input to CREST by a Placee of a matching or acceptance instruction will then allow delivery of the relevant Placing Shares to that Placee against payment.
It is expected that such written confirmations will be despatched on the date of this Announcement, that the "trade date" for settlement purposes will be 24 November 2009 and the "settlement date" will be 27 November 2009.
Interest may be charged in respect of payments not received by KBC Peel Hunt for value by the required time referred to above at the rate of two percentage points above the base rate of Barclays Bank plc.
If Placing Shares are to be delivered to a custodian or settlement agent, Placees should ensure that the written 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.
Payment default
Each Placee's entitlement to receive any Placing Shares will be conditional upon KBC Peel Hunt's receipt of payment by the time to be stated in the written confirmation or by such later time and date as KBC Peel Hunt may in its absolute discretion determine, and otherwise in accordance with that confirmation's terms. KBC Peel Hunt may, in its absolute discretion, waive such condition, and will not be liable to the Placee in the event of it deciding whether to waive or not to waive such condition.
If a Placee fails to make such payment by the required time for any Placing Shares (1) the Company may release itself, and (if at its absolute discretion it decides to do so) will be released from, all obligations it may have to allot and/or issue any such Placing Shares to such Placee or at such Placee's direction which are then unallotted and/or unissued, (2) the Company may exercise all rights of lien, forfeiture and set-off over and in respect of any such Placing Shares to the fullest extent permitted under its articles of association or otherwise by law and to the extent that the Placee then has any interest in or rights in respect of any such shares, (3) the Company or, as applicable, KBC Peel Hunt may sell (and each of them is irrevocably authorised by the Placee to do so) all or any of such shares on the Placee's behalf and then retain from the proceeds, for the account and benefit of the Company or, where applicable, KBC Peel Hunt (i) any amount up to the total amount due to it as, or in respect of, subscription monies, or as interest on such monies, for any Placing Shares, (ii) any amount required to cover any stamp duty or stamp duty reserve tax arising on the sale, and (iii) any amount required to cover dealing costs and/or commissions necessarily or reasonably incurred by it in respect of such sale, and (4) the Placee will remain liable to the Company and to KBC Peel Hunt for the full amount of any losses and of any costs which either of them may suffer or incur as a result of either of them (a) not receiving payment in full for such Placing Shares by the required time, and/or (b) the sale of any such Placing Shares to any other person at whatever price and on whatever terms are actually obtained for such sale by or for it. Interest may be charged in respect of payments not received by KBC Peel Hunt for value by the required time referred to above at the rate of two percentage points above the base rate of Barclays Bank plc.
Representations and warranties
By agreeing with KBC Peel Hunt to subscribe for Placing Shares under the Placing, each Placee irrevocably acknowledges, confirms, represents, warrants and undertakes to, and agrees with, each of the Company and KBC Peel Hunt (in its capacity as placing agent), in each case as a fundamental term of the Placee's application for Placing Shares and of the Company's obligation to allot and/or issue any Placing Shares to the Placee or at the Placee's direction, that:
(a) it accepts all of the terms and conditions set out in this Appendix;
(b) its rights and obligations in respect of the Placing will terminate only in the circumstances described in the Announcement and will not be subject to rescission or termination by it in any other circumstances;
(c) the Announcement, which has been issued by the Company, is the sole responsibility of the Company;
(d) it has not relied on any representation or warranty in reaching its decision to subscribe Placing Shares under the Placing, save as given or made by the Company in the Announcement in relation to the Placing Shares, the Company and any other member of the Company's group in connection with the Placing, and in particular, it has not been, and will not be, given any warranty or representation by any KBC Person in relation to any Placing Shares, the Company or any other member of the Company's group and no KBC Person will have any liability to it for any information contained in the Announcement or which has otherwise been published by the Company (which is solely the responsibility of the Company) or for any decision by it to participate in the Placing based on any such information or on any other information provided to it;
(e) other than the content of the Announcement (including this Appendix), which is exclusively the responsibility of the Company, it has neither received nor relied on any other information, representation, warranty, or statement made by or on behalf of the Company (or its affiliates) or KBC Peel Hunt or any KBC Person or any other person and none of KBC Peel Hunt, any KBC Person, the Company (or its affiliates) 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;
(f) it is not, and does not regard itself as being, a client of KBC Peel Hunt in relation to the Placing and KBC Peel Hunt is not acting for it in connection with the Placing and will not be responsible to it in respect of the Placing for providing protections afforded to its clients;
(g) it will pay the full subscription amount as and when required in respect of all Placing Shares allocated to it and will do all things necessary on its part to ensure that payment for such shares and their delivery to it or at its direction is completed in accordance with the standing CREST instructions (or, where applicable, standing certificated settlement instructions) that it has in place with KBC Peel Hunt or will put in place with KBC Peel Hunt with its agreement;
(h) it is entitled to subscribe for Placing Shares under the laws of all relevant jurisdictions which apply to it and it has complied, and will fully comply, with all such laws (including where applicable, the Anti-Terrorism, Crime and Security Act 2001, the Proceeds of Crime Act 2002 (as amended) and the Money Laundering Regulations 2007 ("the Regulations")) and has obtained all governmental and other consents (if any) which may be required for the purpose of, or as a consequence of, such subscription, and it will provide promptly to KBC Peel Hunt such evidence, if any, as to the identity or location or legal status of any person which KBC Peel Hunt may request from it in connection with the Placing (for the purpose of its complying with the Regulations or ascertaining the nationality of any person or the jurisdiction(s) to which any person is subject or otherwise) in the form and manner requested by KBC Peel Hunt on the basis that any failure by it to do so may result in the number of Placing Shares that are to be allotted and/or issued to it or at its direction pursuant to the Placing being reduced to such number, or to nil, as KBC Peel Hunt may decide at its sole discretion;
(i) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done or to be done by it in relation to any Placing Shares in, from or otherwise involving the United Kingdom and it has not made or communicated or caused to be made or communicated, and it will not make or communicate or cause to be made or communicated, any "financial promotion" in relation to Placing Shares in contravention of section 21 of FSMA;
(j) it is a FSMA Qualified Investor or it is otherwise a person at or to whom any private communication relating to the Company that is a "financial promotion" (as such term is used in relation to FSMA) may lawfully be issued, directed or otherwise communicated without the need for it to be approved, made or directed by an "authorised person" as referred to in FSMA;
(k) it is acting as principal only in respect of the Placing or, if it is acting for any other person in respect of the Placing (i) it is duly authorised to do so, (ii) it is and will remain liable to the Company and/or KBC Peel Hunt for the performance of all its obligations as a Placee in respect of the Placing (regardless of the fact that it is acting for another person), (iii) it is both an "authorised person" for the purposes of FSMA and a "qualified investor" as defined at Article 2.1(e)(i) of Directive 2003/71/EC (known as the Prospectus Directive) acting as agent for such person, and (iv) such person is either (1) a FSMA Qualified Investor or (2) a "client" (as defined in section 86(2) of FSMA) of its that has engaged it to act as its agent on terms which enable it to make decisions concerning the Placing or any other offers of transferable securities on its behalf without reference to it;
(l) nothing has been done or will be done by it in relation to the Placing or to any Placing Shares that has resulted or will result in any person being required to publish a prospectus in relation to the Company or to any Ordinary Shares in accordance with FSMA or the UK Prospectus Rules of the FSA or in accordance with any other laws applicable in any part of the European Union or the European Economic Area;
(m) (i) it is not acting in relation to the Placing as nominee or agent for a person who is or may be liable to stamp duty or stamp duty reserve tax in respect of any agreement to acquire (or any acquisition of) shares or other securities at a rate in excess of 0.5% (including, without limitation, under sections 67, 70, 93 or 96 of the Finance Act 1986 concerning depositary receipts and clearance services), and the allocation, allotment, issue and/or delivery to it, or any person specified by it for registration as holder, of Placing Shares will not give rise to a liability under any such section, (ii) the person whom it specifies for registration as holder of Placing Shares will be it or its nominee or (as applicable) the person for whom it is acting or its nominee, (iii) it and any person for whom it is acting will acquire Placing Shares on the basis that they will be allotted to the CREST stock account of KBC Peel Hunt and that KBC Peel Hunt will then hold them as settlement agent and as nominee for it or such person until settlement in accordance with KBC Peel Hunt's settlement instructions, (iv) payment for Placing Shares will be made simultaneously on their receipt in its stock account on a delivery versus payment basis, and (v) neither KBC Peel Hunt nor the Company will be responsible to it or anyone else for any liability to pay stamp duty or stamp duty reserve tax resulting from any breach of, or non-compliance, with this paragraph;
(n) it will not treat any Placing Shares in any manner that would contravene any legislation applicable in any territory or jurisdiction and no aspect of its participation in the Placing will contravene any legislation applicable in any territory or jurisdiction in any respect or cause the Company or KBC Peel Hunt to contravene any such legislation in any respect;
(o) (applicable terms and expressions used in this paragraph have the meanings that they have in Regulation S made under the Securities Act) (1) the Placing has not been and will not be registered under the US Securities Act or under the state securities laws of any state or other jurisdiction of the United States, (2) Placing Shares may not be offered, sold, resold, or delivered, directly or indirectly, into or within the United States or to, or for the account or benefit of, any US person (as defined in Regulation S under the US Securities Act), (3) it is not within the United States and it is not a US person, (4) it has not offered, sold or delivered and will not offer sell or deliver any of the Placing Shares to persons within the United States, directly or indirectly, (5) neither it, its affiliates, nor any persons acting on its behalf, have engaged or will engage in any directed selling efforts with respect to the Placing Shares, (6) it will not be subscribing for Placing Shares with a view to resale in or into the United States, and (7) it will not distribute this Announcement or any offering material relating to Placing Shares, directly or indirectly, in or into the United States or to any persons resident in the United States;
(p) KBC Peel Hunt may (at its absolute discretion) satisfy its obligations to procure Placees by itself agreeing to become a Placee in respect of some or all of the Placing Shares or by nominating any other KBC Person or any person associated with any KBC Person to do so or by allowing officers of the Company and/or employees of Group companies to subscribe Placing Shares under the Placing at the Placing Price;
(q) time is of the essence as regards its obligations under this Appendix;
(r) this Appendix and any contract which may be entered into between it and KBC Peel Hunt and/or the Company pursuant to it or the Placing will be governed by and construed in accordance with the laws of England, for which purpose it submits (for 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 or relating to this Appendix or such contract, except that each of the Company and KBC Peel Hunt will have the right to bring enforcement proceedings in respect of any judgment obtained against it in the English courts or in the courts of any other relevant jurisdiction;
(s) each right or remedy of the Company or KBC Peel Hunt provided for in this Appendix is in addition to any other right or remedy which is available to such person and the exercise of any such right or remedy in whole or in part will not preclude the subsequent exercise of any such right or remedy;
(t) any document that is to be sent to it in connection with the Placing will be sent at its risk and may be sent to it at any address provided by it to KBC Peel Hunt;
(u) nothing in this Appendix will exclude any liability of any person for fraud upon its part and all times and dates in this Announcement are subject to amendment at the discretion of KBC Peel Hunt; and
(v) none of its rights or obligations in respect of the Placing is conditional on any other person agreeing to subscribe for any Placing Shares under the Placing and no failure by any other Placee to meet any of its obligations in respect of the Placing shall affect any of its obligations in respect 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 upon 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 issue or transfer the Placing Shares into a clearance service and will not give rise to a liability under any of sections 67, 70, 93 or 96 of the Finance Act 1986. If there are any such arrangements, or the settlement relates to any other dealing in the Placing Shares, stamp duty or stamp duty reserve tax may be payable, for which neither the Company nor KBC Peel Hunt will be responsible. If this is the case, each Placee should seek its own advice and notify KBC Peel Hunt accordingly. Furthermore, each Placee agrees to indemnify on an after-tax basis and hold KBC Peel Hunt and/or the Company and their respective affiliates harmless from any and all interest, fines or penalties in relation to stamp duty, stamp duty reserve tax and all other similar duties or taxes to the extent that such interest, fines or penalties arise from the unreasonable default or delay of that Placee or its agent.
In addition, Placees should note that they will be liable for, and each Placee agrees to indemnify on an after-tax basis and hold KBC Peel Hunt and/or the Company and their respective affiliates harmless from, 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 such Placee 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 KBC Peel Hunt does not owe any fiduciary or other duties to any Placee with respect to it or its interests and accordingly, owes it no obligations of any nature whatsoever, other than those expressly set out in this Appendix.
When a Placee or person acting on behalf of the Placee is dealing with KBC Peel Hunt, any money held in an account with KBC Peel Hunt 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 KBC Peel Hunt's money in accordance with the client money rules and will be used by KBC Peel Hunt in the course of its own business and the Placee will rank only as a general creditor of KBC Peel Hunt.
All times and dates in this Announcement may be subject to amendment. KBC Peel Hunt shall notify the Placees and any person acting on behalf of the Placees of any changes.
Past performance is no guide to future performance and persons needing advice should consult an independent financial adviser.
This information is provided by RNS
