Terms and Conditions of the P

RNS Number : 3274X

HSBC Infrastructure Company Limited

03 December 2010

 



THIS ANNOUNCEMENT AND THE INFORMATION CONTAINED HEREIN IS NOT FOR PUBLICATION, RELEASE, OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN, OR INTO, THE UNITED STATES, AUSTRALIA, CANADA, JAPAN, SOUTH AFRICA OR ANY JURISDICTION IN WHICH THE SAME WOULD BE UNLAWFUL OR TO U.S. PERSONS.  THE INFORMATION CONTAINED HEREIN DOES NOT CONSTITUTE AN OFFER OF SECURITIES FOR SALE INCLUDING IN THE UNITED STATES, AUSTRALIA, CANADA, JAPAN OR SOUTH AFRICA OR TO U.S. PERSONS.

For Immediate Release	3 December 2010

HSBC Infrastructure Company Limited

 (the "Company")

Proposed Placing, Open Offer and Offer for Subscription with a target size of 110 million C Shares of 0.01 pence each at an Issue Price of £1.00 per C Share

Terms and Conditions of the Placing

IMPORTANT INFORMATION FOR PLACEES ONLY

MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING. THIS ANNOUNCEMENT AND THE TERMS AND CONDITIONS SET OUT AND REFERRED TO HEREIN ARE DIRECTED ONLY AT PERSONS SELECTED BY COLLINS STEWART EUROPE LIMITED AND/OR ORIEL SECURITIES LIMITED ("COLLINS STEWART" AND "ORIEL" RESPECTIVELY AND TOGETHER THE "PLACING AGENTS") WHO ARE "INVESTMENT PROFESSIONALS" FALLING WITHIN ARTICLE 19(5) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER 2005 (THE "FPO") OR "HIGH NET WORTH COMPANIES, UNINCORPORATED ASSOCIATIONS ETC" FALLING WITHIN ARTICLE 49(2) OF THE FPO OR TO PERSONS TO WHOM IT MAY OTHERWISE LAWFULLY BE COMMUNICATED (ALL SUCH PERSONS TOGETHER BEING REFERRED TO AS "RELEVANT PERSONS"). THIS ANNOUNCEMENT AND THE TERMS AND CONDITIONS SET OUT HEREIN MUST NOT BE ACTED ON OR RELIED ON BY PERSONS WHO ARE NOT RELEVANT PERSONS.

THE C SHARES THAT ARE THE SUBJECT OF THE PLACING (THE "PLACING SHARES") ARE NOT BEING OFFERED OR SOLD TO ANY PERSON IN THE EUROPEAN UNION, OTHER THAN TO "QUALIFIED INVESTORS" AS DEFINED IN ARTICLE 2.1(E) OF DIRECTIVE 2003/71/EC (THE "PROSPECTUS DIRECTIVE"), WHICH INCLUDES LEGAL ENTITIES WHICH ARE REGULATED BY THE FINANCIAL SERVICES AUTHORITY (THE "FSA") OR ENTITIES WHICH ARE NOT SO REGULATED WHOSE CORPORATE PURPOSE IS SOLELY TO INVEST IN SECURITIES.

The Placing Shares have not been and will not be registered under the U.S. Securities Act of 1933, as amended (the "Securities Act") or with any securities regulatory authority of any State or other jurisdiction of the United States (as defined below), and accordingly may not be offered, sold or transferred within the United States of America, its territories or possessions, any State of the United States or the District of Columbia (the "United States") except pursuant to an exemption from, or in a transaction not subject to, registration under the Securities Act. No offering of the Placing Shares is being made in the United States or to U.S. persons as defined in and in accordance with Regulation S under the Securities Act ("U.S. Persons"). The Placing (as defined below) is being made outside the United States only in offshore transactions (as defined in Regulation S under the Securities Act ("Regulation S")) meeting the requirements of Regulation S, other than to U.S. Persons or persons acquiring for the account or benefit of U.S. Persons, and may be made to persons within the United States or to U.S. Persons (or to persons who are acting for the account or benefit of U.S. Persons) who are qualified institutional buyers ("QIBs") within the meaning of Rule 144A ("Rule 144A") under the Securities Act, who are also qualified purchasers ("QPs") as defined in Section 2(a)(51) of the U.S. Investment Company Act of 1940, as amended (the "Investment Company Act"), pursuant to a transaction that is exempt from, or not subject to, the registration requirements of the Securities Act. The Company has not been and will not be registered under the Investment Company Act and investors will not be entitled to the benefits of the Investment Company Act. Persons receiving this announcement (including custodians, nominees and trustees) must not forward, distribute, mail or otherwise transmit it in or into the United States or to U.S. Persons or use the United States mails, directly or indirectly, in connection with the Placing.

This announcement does not constitute an offer to sell or issue or a solicitation of an offer to buy or subscribe for Placing Shares in any jurisdiction including, without limitation, the United States, Australia, Canada, Japan or South Africa or any other jurisdiction in which such offer or solicitation is or may be unlawful (a "Prohibited Jurisdiction"). This announcement and the information contained herein are not for publication or distribution, directly or indirectly, to persons in a Prohibited Jurisdiction unless permitted pursuant to an exemption under the relevant local law or regulation in any such jurisdiction.

The distribution of this announcement, the Placing and/or issue of the Placing Shares in certain jurisdictions may be restricted by law and/or regulation. No action has been taken by the Company, the Placing Agents or any of their respective affiliates as defined in Rule 501(b) under the Securities Act (as applicable in the context used, "Affiliates") that would permit an offer of the Placing Shares or possession or distribution of this announcement or any other publicity material relating to such Placing Shares in any jurisdiction where action for that purpose is required. Persons receiving this announcement are required to inform themselves about and to observe any such restrictions.

Collins Stewart and Oriel, each of which is authorised and regulated in the United Kingdom by the Financial Services Authority, are acting for the Company and for no one else in connection with the Placing and will not be responsible to anyone other than the Company for providing the protections afforded to clients of Collins Stewart and Oriel or for affording advice in relation to the Placing, or any other matters referred to herein.

By participating in the Placing (as defined below), each person who is invited to and who chooses to participate in the Placing (a "Placee") by making an oral offer to take up Placing Shares is deemed to have read and understood this announcement in its entirety and to be providing the representations, warranties, undertakings, agreements and acknowledgements contained herein.

Details of the Placing Agreement and the Placing Shares

The Company and HSBC Specialist Fund Management Limited (the "Investment Adviser") have entered into a placing, open offer and offer agreement (the "Placing Agreement") with Collins Stewart and Oriel, under which the Placing Agents have, subject to the terms set out therein, agreed to use reasonable endeavours, as agents of the Company, to procure Placees for the Placing Shares (the "Placing").

The Placing Shares will, when issued, be credited as fully paid and will rank pari passu in all respects with each other and upon conversion of the C Shares, the resulting Ordinary Shares will rank pari passu in all respects with the existing Ordinary Shares then in issue including the right to receive all dividends and other distributions declared, made or paid in respect of such Ordinary Shares after the date of conversion.

The Placing Shares will convert into ordinary shares of 0.01p each in the capital of the Company upon certain investment criteria having been met. Details of the terms of the Placing Shares and the Conversion Ratio, including the Calculation Time (both as defined in the Prospectus) are set out in Part IX of the Prospectus.

The Placing Shares will be issued free of any encumbrance, lien or other security interest.

Application for listing and admission to trading

Application will be made to the FSA (as the competent authority for listing) for admission of the Placing Shares to the Official List maintained by the FSA in accordance with section 74(1) of the Financial Services and Markets Act 2000 ("FSMA") for the purposes of part VI of FSMA and to London Stock Exchange plc (the "London Stock Exchange") for admission to trading of the Placing Shares on the London Stock Exchange's main market for listed securities ("Admission"). It is expected that Admission will become effective and that dealings will commence on 15 December 2010, and in any event no later than 31 December 2010.

Participation in, and principal terms of, the Placing

A single price per Placing Share (the "Placing Price") will be payable to the Placing Agents by all Placees.

Prospective Placees will be identified and contacted by the Placing Agents.

The Placing is expected to close at noon on 9 December 2010. However, the Company may, with the prior approval of Collins Stewart, bring forward or postpone this date.  In the event such date is changed, the Company will notify investors who have applied for C Shares either by post, by electronic mail or by the publication of a notice through a regulatory information service provider to the London Stock Exchange.

Collins Stewart or Oriel (as the case may be) will re-contact and confirm orally to Placees the size of their respective allocations and a trade confirmation will be dispatched as soon as possible thereafter.  Collins Stewart's or Oriel's (as the case may be) oral confirmation of the size of allocations and each Placee's oral commitment to accept the same will constitute a legally binding agreement pursuant to which each such Placee will be required to accept the number of Placing Shares allocated to the Placee at the Placing Price and otherwise on the terms and subject to the conditions set out herein and in the Prospectus.

The Company (after consultation with the Placing Agents and the Investment Adviser) reserves the right to scale back the number of Placing Shares to be subscribed by any Placee in the event of an oversubscription under the Placing and to take account of allocations under the Offer for Subscription. The Company and the Placing Agents also reserve the right not to accept offers to subscribe for Placing Shares or to accept such offers in part rather than in whole. The Placing Agents shall be entitled to effect the Placing by such method as they shall in their sole discretion determine. To the fullest extent permissible by law, neither the Placing Agents, nor any holding company of either of them, nor any subsidiary, branch or affiliate of the Placing Agents (each an "Affiliate") nor any person acting on behalf of any of the foregoing shall have any liability to Placees (or to any other person whether acting on behalf of a Placee or otherwise).  In particular, neither the Placing Agents, nor any Affiliate thereof nor any person acting on their behalf shall have any liability to Placees in respect of their conduct of the Placing.  No commissions will be paid to Placees or directly by Placees in respect of any Placing Shares.

Each Placee's obligations will be owed to the Company and to the Placing Agents. Following the oral confirmation referred to above, each Placee will also have an immediate, separate, irrevocable and binding obligation, owed to the Placing Agents, to pay to the Placing Agents (or as the Placing Agents may direct) in cleared funds an amount equal to the product of the Placing Price and the number of Placing Shares which such Placee has agreed to acquire.  The Company shall allot such Placing Shares to each Placee following each Placee's payment to the Placing Agents of such amount.

All obligations of the Placing Agents under the Placing will be subject to fulfilment of the conditions referred to below under "Conditions 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.

The obligations of the Placing Agents under the Placing Agreement (which are several obligations) are conditional, inter alia, on:

1.   admission occurring by no later than 8 a.m. on 15 December 2010 (or such later date as may be agreed between the Company and the Placing Agents, not being later than close of business on 31 December 2010);

2.   the Company and the Investment Adviser delivering, by no later than 5.00 p.m. on the business day prior to Admission, to the Placing Agents certificates confirming, inter alia, that none of the representations, warranties and undertakings given by the Company or the Investment Adviser, respectively, in the Placing Agreement has been breached or was untrue, inaccurate or misleading in any respect when made or, by reason of any event occurring or circumstance arising before the date of the certificates, would cease to be true and accurate were it to be repeated by reference to the facts subsisting on the date of the certificates; and

3.   minimum net proceeds of £50 million being raised under the Placing, Open Offer and Offer for Subscription (or such lower amount as shall be agreed between the Company and the Placing Agents in consultation with the Investment Adviser).

If (a) the conditions are not fulfilled (or to the extent permitted under the Placing Agreement waived by the Placing Agents), or (b) the Placing Agreement is terminated in the circumstances specified below, the Placing will lapse and each Placee's rights and obligations under the Placing shall cease and determine at such time and no claim may be made by a Placee in respect thereof. The Placing Agents shall have no liability to any Placee (or to any other person whether acting on behalf of a Placee or otherwise) in respect of any decision they may make as to whether or not to waive or to extend the time and/or date for the satisfaction of any condition in the Placing Agreement or in respect of the Placing generally.

By participating in the Placing, each Placee agrees that its rights and obligations hereunder terminate only in the circumstances described above and under "Right to terminate under the Placing Agreement" below, and will not be capable of rescission or termination by the Placee.

Right to terminate under the Placing Agreement

Collins Stewart (after consultation with Oriel) or Oriel (with the prior written consent of Collins Stewart) may, following consultation with the Company and the Investment Adviser as is practicable in the circumstances, at any time before Admission, terminate the Placing Agreement by giving notice to the Company if:

a) any statement contained in the Prospectus is or has become untrue, incorrect in any respect or misleading in any material respect; or

b) matters have arisen which would, if the Prospectus were issued at that time, constitute a material omission therefrom; or

c) there has been a breach of any of the Warranties which is material in the context of the Issue; or

d) one or more of the Warranties was untrue or inaccurate in a manner which was material in the context of the Placing when given or, by reason of any event occurring or circumstance arising after the date of the Placing Agreement, any one or more of the Warranties would cease to be true and accurate in a manner which is material in the context of the Issue if repeated at that time; or

e) by reason of any event occurring or circumstance arising after the date of the Placing Agreement the Company or the Investment Adviser would have been in material breach of the Warranties if given at the time such event occurred or circumstance arose; or

f) the Company or the Investment Adviser has failed to comply with any material obligation under the Placing Agreement or otherwise relating to the Issue.

By participating in the Placing, each Placee agrees with Collins Stewart and Oriel that the exercise by the Placing Agents of any right of termination or other discretion under the Placing Agreement shall be within the absolute discretion of the Placing Agents and that the Placing Agents need not make any reference to the Placee in this regard and that, to the fullest extent permitted by law, the Placing Agents shall not have any liability whatsoever to the Placee in connection with any such exercise.

Prospectus

The Prospectus has been published in connection with the Placing, Open Offer and Offer for Subscription and Admission. The Prospectus has been approved by the UK Listing Authority. A Placee may only rely on the information contained in the Prospectus in deciding whether or not to participate in the Placing.

Each Placee, by accepting a participation in the Placing, agrees that the content of this announcement is exclusively the responsibility of the Company and that the Prospectus is exclusively the responsibility of the Company and the persons stated therein as accepting responsibility for the Prospectus and confirms to the Placing Agents, the Company and the Investment Adviser that it has neither received nor relied on any information, representation, warranty or statement made by or on behalf of the Placing Agents (other than the amount of the relevant Placing participation in the oral confirmation given to Placees and the trade confirmation referred to below), any of their respective Affiliates, any persons acting on its behalf or the Company other than the Prospectus and neither the Placing Agents, nor any of their Affiliates, nor any persons acting on their behalf, nor the Company, nor the Investment Adviser will be liable for the decision of any Placee to participate in the Placing based on any other information, representation, warranty or statement which the Placee may have obtained or received (regardless of whether or not such information, representation, warranty or statement was given or made by or on behalf of any such persons) other than the Prospectus. By participating in the Placing, each Placee acknowledges to and agrees with the Placing Agents for themselves and as agents for the Company that, except in relation to the information contained in this announcement and the Prospectus, it has relied on its own investigation of the business, financial or other position of the Company in deciding to participate 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 GG00B4TB1205) following Admission will take place within the CREST system, using the DVP mechanism, subject to certain exceptions. The Placing Agents reserve the right to require settlement for and delivery of the Placing Shares to Placees by such other means as they may deem necessary, if 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. 

Each Placee allocated Placing Shares in the Placing will be sent a trade confirmation stating the number of Placing Shares allocated to it, the Placing Price, the aggregate amount owed by such Placee to Collins Stewart or Oriel (as the case may be) and settlement instructions. Placees should settle against CREST ID: 288 (for Collins Stewart, with member account ID: PLACING) or CREST ID: BAQAQ (for Oriel). It is expected that such trade confirmation will be despatched on 10 December 2010 and that this will also be the trade date. Each Placee agrees that it will do all things necessary to ensure that delivery and payment is completed in accordance with either the standing CREST or certificated settlement instructions which it has in place with the Placing Agents.

It is expected that settlement will be on 15 December 2010 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 2 percentage points above the base rate of Barclays Bank Plc.

Each Placee is deemed to agree that if it does not comply with these obligations, the Placing Agents may sell any or all of the Placing Shares allocated to the Placee on such Placee's behalf and retain from the proceeds, for their own account and profit, an amount equal to the aggregate amount owed by the Placee plus any interest due. The Placee will, however, remain liable for any shortfall below the aggregate amount owed by such Placee and it may be required to bear any tax or other charges (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, the Placee 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 the Placee's name or that of its nominee or in the name of any person for whom the Placee is contracting as agent or that of a nominee for such person, such Placing Shares will, subject as provided below, be so registered free from any liability to PTM levy, stamp duty or stamp duty reserve tax. If there are any circumstances in which any other stamp duty or stamp duty reserve tax is payable in respect of the issue of the Placing Shares, neither Collins Stewart, nor Oriel nor the Company shall be responsible for the payment thereof. Placees will not be entitled to receive any fee or commission in connection with the Placing.

Representations and Warranties

By participating in the Placing, each Placee (and any person acting on such Placee's behalf):

1.   represents and warrants that it has read and understood this announcement in its entirety and acknowledges that its participation in the Placing will be governed by the terms of this announcement and the Prospectus;

2.   agrees to indemnify on an after-tax basis and hold harmless each of the Company, Collins Stewart, Oriel, their respective Affiliates and any person acting on their behalf 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 announcement and further agrees that the provisions of this announcement shall survive after completion of the Placing;

3.   acknowledges that the C Shares of the Company will be admitted to the Official List of the UK Listing Authority, and the Company is therefore required to publish certain business and financial information in accordance with the rules and practices of the FSA (collectively, the "Exchange Information") and that the Placee is able to obtain or access the Exchange Information without undue difficulty;

4.   acknowledges that neither the Placing Agents, nor any of their respective Affiliates nor any person acting on their behalf has provided, and will not provide it with any material or information regarding the Placing Shares or the Company; nor has it requested the Placing Agents, any of its Affiliates or any person acting on its behalf to provide it with any such material or information;

5.   acknowledges that the content of this announcement is exclusively the responsibility of the Company and the persons stated therein as accepting responsibility for the announcement and that neither the Placing Agents, nor any of their respective Affiliates nor any person acting on their behalf will be responsible for or shall have any liability for any information, representation or statement relating to the Company contained in this announcement or any information previously published by or on behalf of the Company and neither the Placing Agents, nor any of their respective Affiliates nor any person acting on their behalf will 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 to subscribe for the Placing Shares is contained in this announcement, the Prospectus and any Exchange Information, such information being all that it deems necessary to make an investment decision in respect of the Placing Shares, and that it has relied on its own investigation with respect to the Placing Shares and the Company in connection with its decision to subscribe for the Placing Shares and acknowledges that it is not relying on any investigation that the Placing Agents, any of their respective Affiliates or any person acting on their behalf may have conducted with respect to the Placing Shares or the Company and none of such persons has made any representations to it, express or implied, with respect thereto;

6.   acknowledges that it has not relied on any information relating to the Company contained in any research reports prepared by Collins Stewart, Oriel, their respective Affiliates or any person acting on their or any of their Affiliates' behalf and understands that (i) none of Collins Stewart, Oriel, any of their Affiliates nor any person acting on their behalf has or shall have any liability for public information or any representation; (ii) none of Collins Stewart, Oriel, any of their Affiliates nor any person acting on their behalf has or shall have any liability for any additional information that has otherwise been made available to such Placee, whether at the date of publication, the date of this announcement or otherwise; and that (iii) none of Collins Stewart, Oriel, any of their Affiliates nor any person acting on their behalf makes any representation or warranty, express or implied, as to the truth, accuracy or completeness of such information, whether at the date of publication, the date of this announcement or otherwise;

7.   represents and warrants that (i) it is entitled to acquire the Placing Shares under the laws and regulations of all relevant jurisdictions which apply to it; (ii) it has fully observed such laws and regulations and obtained all such governmental and other guarantees and other consents and authorities which may be required thereunder and complied with all necessary formalities; (iii) it has all necessary capacity to commit to participation in the Placing and to perform its obligations in relation thereto and will honour such obligations; (iv) it has paid any issue, transfer or other taxes due in connection with its participation in any territory and (v) it has not taken any action which will or may result in the Company, the Placing Agents, the Investment Adviser, any of their respective Affiliates or any person acting on their behalf being in breach of the legal and/or regulatory requirements of any territory in connection with the Placing;

8.   represents and warrants that the issue to the Placee, or the person specified by the Placee 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 issue or transfer Placing Shares into a clearance system;

9.   represents and warrants that it understands that the Placing Shares have not been and will not be registered under the Securities Act or under the securities laws of any state or other jurisdiction of the United States and that the Company has not been registered as an "investment company" under the Investment Company Act;

10. represents and warrants that, unless it duly executes and delivers to the Company and the Placing Agents a U.S. purchaser letter in the form provided to it by the Company or the Placing Agents (the "U.S. Purchaser Letter") in which it will make certain acknowledgements, undertakings, representations, warranties and agreements (in addition to those contained below in "Additional U.S. Representations and Warranties"), it (a) is, or at the time the Placing Shares are acquired, it will be, the beneficial owner of such Placing Shares and is neither a person located in the United States nor acting on behalf of a person in the United States, (b) is, or at the time the Placing Shares are acquired, it will be, acquiring the Placing Shares in an "offshore transaction" (as defined in Regulation S) and (c) will not offer or sell, directly or indirectly, any of the Placing Shares in the United States except in accordance with Regulation S or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act;

11. represents and warrants that it has not offered or sold and will not offer or sell any Placing Shares to persons in the United Kingdom prior to Admission except to "qualified investors" as defined in Article 2.1(e) of the Prospectus Directive;

12. represents and warrants that it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of FSMA) relating to the Placing Shares in circumstances in which it is permitted to do so pursuant to section 21 of FSMA;

13. represents and warrants that it has complied and will comply with all applicable provisions of FSMA with respect to anything done by it in relation to the Placing Shares in, from or otherwise involving the United Kingdom;

14. represents and warrants that it has complied with its obligations in connection with money laundering and terrorist financing under the Criminal Justice Act 1993, the Proceeds of Crime Act 2002, the Terrorism Act 2000, the Anti-terrorism Crime and Security Act 2001 and the Money Laundering Regulations 2007 (the "Regulations") and, if it is 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;

15. represents and warrants that it is (a) a person falling within Article 19(5) of the FPO or (b) a person falling within Article 49(2)(a) to (d) of the FPO 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;

16. represents and warrants that it is a qualified investor as defined in section 86(7) of FSMA, being a person falling within Article 2.1(e)(i), (ii) or (iii) of the Prospectus Directive;

17. undertakes that it (and any person acting on its behalf) will pay for the Placing Shares acquired by it in accordance with this announcement on the due time and date set out herein against delivery of such Placing Shares to it, failing which the relevant Placing Shares may be placed with other Placees or sold as the Placing Agents may, in their absolute discretions, determine and it will remain liable for any shortfall below the net proceeds of such sale and the placing proceeds of such Placing Shares and may be required to bear any stamp duty or stamp duty reserve tax (together with any interest or penalties due pursuant to the terms set out or referred to in this announcement) which may arise upon the sale of such Placee's Placing Shares on its behalf;

18. acknowledges that neither the Placing Agents, nor any of their respective Affiliates nor any person acting on their behalf is making any recommendations to it or advising it regarding the suitability or merits of any transaction it may enter into in connection with the Placing, and acknowledges that neither the Placing Agents, nor any of its Affiliates nor any person acting on its behalf has any duties or responsibilities to it for providing advice in relation to the Placing or in respect of any representations, warranties, undertakings or indemnities contained in the Placing Agreement or for the exercise or performance of any of Collins Stewart's or Oriel's rights and obligations thereunder, including any right to waive or vary any condition or exercise any termination right contained therein;

19. undertakes that (i) the person whom it specifies for registration as holder of the Placing Shares will be (a) the Placee or (b) the Placee's nominee, as the case may be, (ii) neither the Placing Agents 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 and (iii) the Placee and any person acting on its behalf agrees to acquire the Placing Shares on the basis that the Placing Shares will be allotted to the CREST stock account of Collins Stewart or Oriel (as the case may be) which will hold them as settlement agent as nominee for the Placees until settlement in accordance with its standing settlement instructions with payment for the Placing Shares being made simultaneously upon receipt of the Placing Shares in the Placee's stock account on a delivery versus payment basis;

20. 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 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;

21. acknowledges that it irrevocably appoints any director of the Placing Agents as its agent for the purposes of executing and delivering to the Company and/or its registrars any documents on its behalf necessary to enable it to be registered as the holder of any of the Placing Shares agreed to be taken up by it under the Placing;

22. represents and warrants that it is not a resident of any Prohibited Jurisdiction and acknowledges that the Placing Shares have not been and will not be registered nor will a prospectus be cleared in respect of the Placing Shares under the securities legislation of any Prohibited Jurisdictions and, subject to certain exceptions, may not be offered, sold, taken up, renounced, delivered or transferred, directly or indirectly, within any Prohibited Jurisdiction;

23. represents and warrants that any person who confirms to Collins Stewart or Oriel (as the case may be) on behalf of a Placee an agreement to subscribe for Placing Shares and/or who authorises Collins Stewart or Oriel (as the case may be) to notify the Placee's name to the Company's registrar, has authority to do so on behalf of the Placee;

24. acknowledges that the agreement to settle each Placee's acquisition of Placing Shares (and/or the acquisition of a person for whom it is contracting as agent) free of stamp duty and stamp duty reserve tax depends on the settlement relating only to an acquisition by it and/or such person direct from the Company of the Placing Shares in question. Such agreement assumes that the Placing Shares are not being acquired in connection with arrangements to issue depositary receipts or to issue or transfer the Placing Shares into a clearance service. If there were 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 the Placing Agents will be responsible. If this is the case, the Placee should take its own advice and notify Collins Stewart and/or Oriel accordingly;

25. acknowledges that the Placing Shares will be issued and/or transferred subject to the terms and conditions set out in this announcement and otherwise as stated in the Prospectus;

26. acknowledges that when a Placee or any person acting on behalf of the Placee is dealing with Collins Stewart or Oriel, any money held in an account with Collins Stewart or Oriel's settlement agent ("Oriel's Agent") (as the case may be) 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 relevant rules and regulations of the FSA. 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 Collins Stewart money or Oriel's Agent money (as the case may be) in accordance with the client money rules and will be used by Collins Stewart or Oriel's Agent (as the case may be) in the course of its business; and the Placee will rank only as a general creditor of Collins Stewart or Oriel's Agent (as the case may be);

27. acknowledges and understands that the Company, the Placing Agents, and others will rely upon the truth and accuracy of the foregoing representations, warranties, agreements, undertakings and acknowledgements; and

28. acknowledges that the basis of allocation will be determined by the Company (after consulting with the Placing Agents and the Investment Adviser) at its absolute discretion. The right is reserved to reject in whole or in part and/or scale back any participation in the Placing.

Additional U.S. Representations and Warranties

In addition to the foregoing, each Placee that is located in the United States or who is a U.S. Person must duly execute and deliver to the Company and the Placing Agents a U.S. Purchaser Letter in which it will make certain acknowledgements, undertakings, representations, warranties and agreements in addition to those contained herein.  Each such Placee irrevocably acknowledges, undertakes, represents, warrants and agrees, for the express benefit of the Company and the Placing Agents, and with the intention that the Company and the Placing Agents rely hereon, as follows:

29. in making any decision to subscribe or purchase the Placing Shares, it confirms that it has sufficient knowledge, sophistication and experience in financial, business and international investment matters as is required to evaluate the merits and risks of purchasing the Placing Shares. It is experienced in investing in securities of this nature in this region and sector;

30. it (a) is aware and understands that any investment in the Placing Shares involves a considerable degree of risk and no United States federal or state or non-U.S. agency has made any finding or determination as to the fairness for investment or any recommendation or endorsement of the Placing Shares; (b) has no need of liquidity with respect to an investment in the Placing Shares; and (c) is able to bear and sustain the economic and financial risk (including a complete loss) of an investment in the Placing Shares and will not look to either of the Placing Agents for all or part of any such loss it may suffer;

31. it understands that the Company believes there is a significant likelihood that, for U.S. federal income tax purposes, the Company will be considered a "passive foreign investment company" in the current and in future years and that there will be certain consequences under U.S. and other tax laws resulting from an investment in the Placing Shares, and it will satisfy itself  concerning any such tax consequences;

32. the Placing Shares are being subscribed for investment purposes, and not with a view to re-sale or distribution in the United States or to or for the account of a U.S. Person;

33. that it is (a) a QIB who is a QP, (b) not a broker dealer which owns and invests on a discretionary basis less than US$25 million in securities of unaffiliated issuers, (c) not a participant directed employee plan, such as a 401(k) plan, (d) acquiring the Placing Shares for its own account, or for the account of one or more QIBs each of which is also a QP and as to which it has full power and authority to make the acknowledgements, undertakings, representations, warranties and agreements contained herein and in the U.S. Purchaser Letter, (e) not formed for the purpose of investing in the Placing Shares or the Company, and (f) aware, and each beneficial owner of the Placing Shares has been advised, that the Company may be relying on the exemption from the registration provisions of the Securities Act provided by Rule 144A. If it is acquiring any Placing Shares as a fiduciary or agent for one or more investor accounts, it represents that (a) it has sole investment discretion with respect to each such account and that it has full power and authority to make the above acknowledgements, representations and agreements and those contained in the U.S. Purchaser Letter on behalf of each account and (b) these provisions and those contained in the U.S. Purchaser Letter constitute legal, valid and binding obligations of it and any other person for whose account it is acting, enforceable in accordance with their terms;

34. it understands and agrees that the Placing Shares are being offered in a transaction not involving any public offering within the United States, have not been and will not be registered under the Securities Act, or under the applicable state securities laws of the United States, and that the Company has not registered, and does not intend to register, as an investment company under the Investment Company Act, and accordingly, it understands that the Placing Shares may not be offered, sold, pledged or otherwise transferred directly or indirectly in or into the United States, or to or for the account or benefit of any US Person, except that the Placing Shares may be offered and sold (a) to persons in the United States or US Persons (or to persons who are acting for the account or benefit of US Persons) who are QIBs and QPs, in reliance on the exemption from registration provided by Rule 144A, and (b) outside the United States only in "offshore transactions" to persons that are not US Persons in accordance with and in reliance on Regulation S, in each case in accordance with any applicable securities laws of any state or other jurisdiction of the United States;

35. it acknowledges and agrees that it is not taking up any Placing Shares as a result of any "general solicitation" or "general advertising" as those terms are defined in Regulation D under the Securities Act;

36. it understands and acknowledges that the Placing Shares will be "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, and agrees that such securities may not be deposited into any unrestricted depositary facility established or maintained by any depositary bank;

37. it agrees, on its own behalf and on behalf of any accounts for which it is acting, that it will not re-offer, resell, pledge or otherwise transfer the Placing Shares, except in a transaction executed in, on or through the facilities of a "designated offshore securities market" as defined in Regulation S;

38. it agrees, on a proposed transfer of the Placing Shares, to notify any purchaser of such Placing Shares or the executing broker, as applicable, (a) that the Placing Shares have not been and will not be registered under the Securities Act, (b) that the Company has not registered, and does not intend to register, as an investment company under the Investment Company Act and (c) that subsequent transfer of Placing Shares by such purchasers may only be made (i) in a transaction executed in, or through the facilities of a designated offshore securities market within the meaning of Regulation S or (ii) to persons other than U.S. Persons, as defined in Regulation S, who are outside the United States at the time of purchase;

39. it understands and agrees that if any beneficial owner of the Placing Shares is at any time a U.S. Person and not a QIB and also a QP, the Company may (i) require such beneficial owner to sell its Placing Shares to a person who is not a U.S. Person or who is both a QIB and QP and is qualified to purchase such shares in a transaction exempt from registration under the Securities Act or (ii) sell such shares on behalf of such beneficial owner at the best price reasonably obtainable to a person who is not a U.S. Person or who is both a QIB and a QP and is qualified to purchase such shares in a transaction exempt from registration under the Securities Act;

40. it understands and acknowledges that the Company shall have no obligation to recognise any offer, sale, pledge or other transfer made other than in compliance with the restrictions on transfer set forth and described herein and in the U.S. Purchaser Letter and that the Company may make notation on its records or give instructions to any transfer agent or registrar of the Placing Shares;

41. it represents that no portion of the assets used to purchase or hold the Placing Shares or any beneficial interest therein constitutes or will constitute the assets of an "employee benefit plan" (within the meaning of Section 3(3) of the U.S. Employee Retirement Income Security Act of 1974, as amended ("ERISA")) that is subject to Title I of ERISA, a plan, individual retirement account or other arrangement that is subject to Section 4975 of the U.S. Internal Revenue Code of 1986, as amended (the "Code"), or any other laws or regulations of any state of the United States or other jurisdiction that would have the same effect as the regulations promulgated under ERISA or the Code; and

42. it understands and acknowledges that the Company, its Affiliates, the Placing Agents and their respective Affiliates and others are entitled to rely upon the truth and accuracy of the acknowledgements, undertakings, representations, warranties and agreements contained herein and in the U.S. Purchaser Letter, and agrees that if any of the acknowledgements, undertakings, representations, warranties or agreements made herein or in the U.S. Purchaser Letter are no longer accurate or complete, it shall promptly notify the Company and the Placing Agents in writing.  

The acknowledgements, agreements, undertakings, representations and warranties referred to above are given to each of the Company and the Placing Agents (for their own benefit and, where relevant, the benefit of their respective Affiliates and any person acting on their behalf) and are irrevocable.

No UK stamp duty or stamp duty reserve tax should be payable to the extent that the Placing Shares are issued or transferred (as the case may be) into CREST to, or to the nominee of, a Placee who holds those shares beneficially (and not as agent or nominee for any other person) within the CREST system and registered in the name of such Placee or such Placee's nominee.

Any arrangements to issue or transfer the Placing Shares into a depositary receipts system or a clearance service or to hold the Placing Shares as agent or nominee of a person to whom a depositary receipt may be issued or who will hold the Placing Shares in a clearance service, or any arrangements subsequently to transfer the Placing Shares, may give rise to stamp duty and/or stamp duty reserve tax, for which neither the Company nor Collins Stewart nor Oriel will be responsible and the Placee to whom (or on behalf of whom, or in respect of the person for whom it is participating in the Placing as an agent or nominee) the allocation, allotment, issue or delivery of Placing Shares has given rise to such stamp duty or stamp duty reserve tax undertakes to pay such stamp duty or stamp duty reserve tax forthwith and to indemnify on an after-tax basis and to hold harmless the Company, Collins Stewart and Oriel in the event that any of the Company, Collins Stewart and Oriel has incurred any such liability to stamp duty or stamp duty reserve tax.

In addition, Placees should note that they will be liable for any capital duty, stamp duty and all other stamp, issue, securities, transfer, registration, documentary or other duties or taxes (including any interest, fines or penalties relating thereto) payable outside the UK by them or any other person on the acquisition by them of any Placing Shares or the agreement by them to acquire any Placing Shares.

All times and dates in this announcement may be subject to amendment.  The Placing Agents shall notify the Placees and any person acting on behalf of the Placees of any such changes.

This announcement has been issued by the Company and is the sole responsibility of the Company.

The rights and remedies of Collins Stewart, Oriel and the Company under these terms and conditions are in addition to any rights and remedies which would otherwise be available to each of them and the exercise or partial exercise or partial exercise of one will not prevent the exercise of others.

Each Placee may be asked to disclose in writing or orally to each of Collins Stewart and Oriel:

(a)    if he is an individual, his nationality; or

(b)   if he is a discretionary fund manager, the jurisdiction in which the funds are managed or owned.

Enquiries:

HSBC Specialist Fund Management Limited	020 7991 8888
Tony Roper
Keith Pickard
Collins Stewart Europe Limited	020 7523 8000
David Yovichic
Lucy Lewis
Oriel Securities Limited	020 7710 7600
Tom Durie
Gareth Price

 

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