Placing of New Shares
THIS ANNOUNCEMENT AND THE INFORMATION CONTAINED HEREIN IS NOT FOR PUBLICATION, RELEASE, OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN, OR INTO, THE UNITED STATES, AUSTRALIA, CANADA, JAPAN, SOUTH AFRICA OR ANY JURISDICTION IN WHICH THE SAME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.
13 July 2010
Invista Foundation Property Trust Limited (the "Company" or "IFPT")
Placing of New Ordinary Shares
IFPT today announces a placing of up to 32,327,062 new ordinary shares in the capital of the Company (the "Placing").
The Board of IFPT announces today that it has decided to raise additional equity capital through a placing of up to 32,327,062 new ordinary shares in the capital of IFPT (the "Placing Shares") with a small number of institutional investors. The Placing is being conducted through an accelerated bookbuild which will be launched immediately following this announcement. J.P. Morgan Cazenove and Numis Securities Limited have been appointed as joint bookrunners in respect of the Placing.
Highlights
· Accelerated bookbuild to place up to 32,327,062 new ordinary shares
· Company has successfully implemented a strategy to reduce risk and strengthen balance sheet
· Focus now on increasing income and dividend cover to generate sustained performance
· Proceeds to provide extra financial resources to pursue further accretive acquisitions and income enhancing asset management initiatives within the existing portfolio
· Strong support indicated from existing shareholders and other institutions
Background to and reasons for the Placing
During 2008 and 2009, the Company's strategic objectives were focused on reducing risk, stabilising its balance sheet and positioning its portfolio to generate additional recurring rental income and out-performance. The Company implemented these strategic objectives through sales of assets where the business plan in respect of those assets had been completed, repayment of debt and the use of capital on acquisitions and asset management where the level and quality of rental income could be improved.
Following the successful achievement of these objectives, the Company is now focused on growing income and dividend cover. Recent asset management initiatives announced by IFPT demonstrate the Company's ability to secure assets with good income streams at attractive yields as well as identify opportunities to invest capital into the existing portfolio to generate improved rental income and enhance the quality of the portfolio. The proceeds of the Placing will be used for new acquisitions and existing portfolio investments similar in nature to the projects announced recently and in accordance with the Company's published investment policy.
Details of the Placing
The number of Placing Shares and the price at which the Placing Shares are to be placed will be determined at the close of the bookbuild and announced shortly thereafter.
Under the terms of the Placing, IFPT intends to place up to 32,327,062 new ordinary shares in the capital of the Company, representing up to 9.99% of the current issued ordinary share capital of the Company.
As the proposed Placing may be at a discount to NAV, the Listing Rules require the Placing to be subject to Shareholder approval. A Circular will be sent to Shareholders to give further explanation of the rationale for the Placing and to convene the necessary Extraordinary General Meeting, at which consent of existing Shareholders will be sought.
The Company is expecting to make the announcement of its net asset value as at 30 June 2010 on Friday, 16 July 2010.
Commenting, Andrew Sykes, chairman of IFPT, said
"As confirmed yesterday in our results for the full year, over the last twelve months we have been successful in implementing a strategy to reduce risk and strengthen the Company's balance sheet, which, combined with a strong recovery in property values has driven positive NAV growth and the Company's continued outperformance vs. the IPD Benchmark.
Building on our recent strong track record of portfolio activity, this Placing will enable the Company to make further accretive acquisitions and invest in the significant income enhancing opportunities which have already been identified, to grow income and dividend cover, further enhancing NAV total return."
Expected timetable:
Extraordinary General Meeting 10th August 2010
Anticipated admission and commencement of dealings in the New Shares 11th August 2010
The Appendix to this announcement (which forms part of the announcement) sets out the terms and conditions of the Placing.
For further information, please contact:
Invista Real Estate Investment Management 020 7153 9300
Duncan Owen / Nick Montgomery
J.P. Morgan Cazenove 020 7588 2828
William Simmonds
Numis Securities Limited 020 7260 1000
Heraclis Economides / David Benda
Northern Trust 01481 745529
David Sauvarin
Financial Dynamics 020 7831 3113
Dido Laurimore / Rachel Drysdale /
Olivia Goodall
Important Notices
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 J.P. Morgan Securities Ltd. ("JPMSL") or Numis Securities Limited ("Numis") or by any of their respective 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.
Attention is drawn to the detailed terms and conditions of the Placing described in the Appendix to this Announcement. References in these Important Notices to the Announcement include the Appendix to it.
Members of the public are not eligible to take part in the Issue and no public offering of securities will be made.
This Announcement is for information purposes only and is directed only at: (a) persons in member states of the European Economic Area who are Qualified Investors as defined in Article (2)(1)(e) ("Qualified Investors") of Directive 2003/71/EC; (b) in the United Kingdom, Qualified Investors who are also persons (1) who have professional experience in matters relating to investments falling within Article 19(5) (investment professionals) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (as amended) (the "Order") or (2) falling within Article 49(2)(a) to (d) (high net worth companies, incorporated associations, etc.) of the Order; and (c) other persons to whom it may otherwise lawfully be communicated (all such persons together being referred to as "Relevant Persons").
This Announcement must not be acted on or relied on by persons who are not Relevant Persons. Any investment or investment activity to which this Announcement or the Issue relates is available only to Relevant Persons and will be engaged in only with Relevant Persons. As regards all persons other than Relevant Persons, the details of the Issue and the book-building set out in this Announcement and its Appendix are for information purposes only.
JPMSL and Numis, which are authorised and regulated by the Financial Services Authority, are acting respectively 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 JPMSL or Numis nor for providing advice in relation to the Placing.
The new Ordinary Shares in the Company referred to in this Announcement (the "Placing Shares") have not been, nor will they 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, and accordingly may not be offered, sold or transferred within 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 Company has not been and will not be registered under the U.S. Investment Company Act of 1940, as amended (the "Investment Company Act") and investors will not be entitled to the benefits of that Act.
This Announcement (including the Appendix), 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. 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, Canada, Japan, South Africa or any jurisdiction in which such an offer or solicitation is unlawful. There will be no public offer of the Placing Shares in the United States, the United Kingdom or elsewhere.
The distribution of this Announcement and the Placing in certain jurisdictions may be restricted by law. No action has been taken by the Company, JPMSL or Numis that would permit an offering of such shares or possession or distribution of this Announcement or any other offering or publicity material relating to such shares in any jurisdiction where action for that purpose is required. Persons into whose possession this Announcement comes are required by the Company, JPMSL and Numis to inform themselves about, and to observe, such restrictions.
Certain statements in this Announcement are forward-looking statements which are based on the Company's, expectations, intentions and projections regarding its future performance, anticipated events or trends and other matters that are not historical facts. These statements are not guarantees of future performance and are subject to known and unknown risks, uncertainties and other factors that could cause actual results to differ materially from those expressed or implied by such forward-looking statements. Given these risks and uncertainties, prospective investors are cautioned not to place undue reliance on forward-looking statements. Forward-looking statements speak only as of the date of such statements and, except as required by applicable law, the Company undertakes no obligation to update or revise publicly any forward-looking statements, whether as a result of new information, future events or otherwise. The information contained in this Announcement is subject to change without notice and neither the Company, JPMSL nor Numis assume any responsibility or obligation to update publicly or review any of the forward-looking statements contained herein.
Any indication in this Announcement of the price at which Ordinary Shares have been bought or sold in the past cannot be relied upon as a guide to future performance. No statement in this Announcement is intended to be a profit forecast.
APPENDIX: TERMS AND CONDITIONS OF THE PLACING
Eligible Participants
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING. THIS ANNOUNCEMENT AND THE TERMS AND CONDITIONS SET OUT IN THIS APPENDIX ARE FOR INFORMATION PURPOSES ONLY AND ARE DIRECTED ONLY AT: (A) PERSONS IN MEMBER STATES OF THE EUROPEAN ECONOMIC AREA WHO ARE QUALIFIED INVESTORS (WITHIN THE MEANING OF ARTICLE 2(1)(E) ("QUALIFIED INVESTORS") OF THE EU PROSPECTUS DIRECTIVE (WHICH MEANS DIRECTIVE 2003/71/EC AND INCLUDES ANY RELEVANT IMPLEMENTING DIRECTIVE MEASURE IN ANY MEMBER STATE) (THE "PROSPECTUS DIRECTIVE"); AND (B) IN THE UNITED KINGDOM, QUALIFIED INVESTORS WHO ARE ALSO PERSONS (I) WHO 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 (AS AMENDED) (THE "ORDER"); OR (II) FALLING WITHIN ARTICLE 49(2)(A) TO (D) ("HIGH NET WORTH COMPANIES, UNINCORPORATED ASSOCIATIONS, ETC") OF THE ORDER; OR (III) TO WHOM IT MAY OTHERWISE BE LAWFULLY COMMUNICATED (ALL SUCH PERSONS TOGETHER BEING REFERRED TO AS "RELEVANT PERSONS") AND 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. PERSONS DISTRIBUTING THIS ANNOUNCEMENT (INCLUDING THIS APPENDIX) MUST SATISFY THEMSELVES THAT IT IS LAWFUL TO DO SO. ANY INVESTMENT OR INVESTMENT ACTIVITY TO WHICH THIS APPENDIX AND THE TERMS AND CONDITIONS SET OUT HEREIN RELATES IS AVAILABLE ONLY TO RELEVANT PERSONS AND WILL BE ENGAGED IN ONLY WITH RELEVANT PERSONS. NEITHER THIS APPENDIX NOR THE ANNOUNCEMENT OF WHICH IT FORMS PART CONSTITUTES AN OFFER OR AN INVITATION TO ACQUIRE OR DISPOSE OF ANY SECURITIES IN THE COMPANY.
Persons who are invited to and who choose to participate in the Placing, by making an oral or written offer to acquire Placing Shares (the "Placees"), will be deemed to have read and understood this Appendix and the Announcement of which it forms part in their entirety and to be making such offer on the terms and conditions, and to be providing the representations, warranties, confirmations, acknowledgements, and undertakings contained in this Appendix. In particular each such Placee represents, warrants and acknowledges that:
(a) it is a Relevant Person (as defined above) and undertakes that it will acquire, hold, manage or dispose of any Placing Shares that are allocated to it for the purposes of its business; and
(b) in the case of a Relevant Person in a Relevant Member State, (i) it is a Qualified Investor, and (ii) in the case of any Placing Shares acquired by it as a financial intermediary, as that term is used in Article 3(2) of the Prospectus Directive, (a) the Placing Shares acquired by it in the Placing have not been acquired on behalf of, nor have they been acquired with a view to their offer or resale to, persons in any Relevant Member State other than Qualified Investors or in circumstances in which the prior consent of J.P. Morgan Securities Ltd. ("JPMSL") or Numis Securities Limited ("Numis") has been given to the offer or resale, or (b) where Placing Shares have been acquired by it on behalf of persons in any Relevant Member State other than Qualified Investors, the offer of those Placing Shares to it is not treated under the Prospectus Directive as having been made to such persons; and
(c) it is outside the United States, is not a U.S Person (within the meaning of Regulation S ("Regulation S") under the U.S. Securities Act of 1933, as amended (the "Securities Act")), is subscribing for Placing Shares in an "offshore transaction" (within the meaning of Regulation S) and is purchasing the Placing Shares for its own account or is purchasing the Placing Shares for an account with respect to which it exercises sole investment discretion and that it (and any such account) is outside the United States or it is a dealer or other professional fiduciary in the United States acting on a discretionary basis for non-U.S. beneficial owners (other than an estate or trust), in reliance upon Regulation S.
The Company, JPMSL and Numis will rely upon the truth and accuracy of the foregoing representations, warranties and acknowledgements.
EACH PLACEE SHOULD CONSULT WITH ITS OWN ADVISORS AS TO LEGAL, TAX, BUSINESS AND RELATED ASPECTS OF A PURCHASE OF PLACING SHARES.
The securities described herein are being offered and sold outside the United States to persons who are not U.S. Persons in reliance on Regulation S.
Any indication in this Announcement (including this Appendix) of the price at which Ordinary Shares have been bought or sold in the past cannot be relied upon as a guide to future performance. No statement in this Announcement (including this Appendix) is intended to be a profit forecast and no statement in this Announcement (including this Appendix) 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.
This Appendix and the Announcement of which it forms part do not constitute an offer to sell or the invitation or solicitation of an offer to buy or subscribe for ordinary shares in the capital of Invista Property Foundation Trust Limited in the United States, Canada, Australia, Japan, South Africa or in any jurisdiction in which such offer or solicitation is unlawful (the "Restricted Jurisdictions") and the information contained herein is not for publication or distribution, directly or indirectly, to persons in any Restricted Jurisdiction or to U.S. Persons. In particular, this Appendix and the Announcement of which it forms part are not an offer for sale of the securities in the United States, and the securities have not been and will not be registered under the Securities Act, and may not be sold in the United States absent registration or an exemption from registration under the Securities Act.
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 any Restricted Jurisdiction or to U.S. Persons. Any persons who have a contractual or other legal obligation to forward a copy of this Appendix or the Announcement of which it forms part to a jurisdiction outside the United Kingdom should seek appropriate advice before taking any action.
The distribution of this Announcement (including this Appendix) and the placing of the Placing Shares in certain other jurisdictions may be restricted by law. No action has been taken by the Company, Invista Real Estate Investment Management Limited (the "Investment Manager"), JPMSL or Numis that would permit an offer of such shares or possession or distribution of this Announcement (including this Appendix) 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 (including this Appendix) comes are required by the Company, the Investment Manager, JPMSL and Numis to inform themselves about and to observe any such restrictions.
Details of the Placing Agreement and the Placing Shares
JPMSL and Numis have entered into a placing agreement (the "Placing Agreement") with the Company and the Investment Manager under which JPMSL and Numis have severally, subject to the conditions set out therein, agreed as agents for the Company to use their respective reasonable endeavours to procure Placees to take up 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 of no par value in the capital of the Company ("Ordinary Shares"), including the right to receive all dividends and other distributions declared, made or paid on or in respect of such Ordinary Shares after the date of issue of the Placing Shares.
Application for listing and admission to trading
Application will be made to the Financial Services Authority (the "FSA") for admission of the Placing Shares to the Official List of the UK Listing Authority (the "Official List") and to London Stock Exchange plc for admission to trading of the Placing Shares on its main market for listed securities (together, "Admission"). It is expected that Admission will become effective on or around 11 August 2010 and that dealings in the Placing Shares will commence at that time. Application will also be made to list the Placing Shares on the Channel Island Stock Exchange (the "CISX"), however the Placing is not conditional on such listing.
Bookbuild
JPMSL and Numis will today commence the bookbuilding process in respect to the Placing (the "Bookbuild") to determine demand for participation in the Placing by Placees. This Appendix gives details of the terms and conditions of, and the mechanics of participation in, the Placing. No commissions will be paid to Placees or by Placees in respect of any Placing Shares.
JPMSL, Numis 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. JPMSL and Numis are arranging the Placing as joint bookrunners and agents of the Company.
2. Participation in the Placing will only be available to persons who may lawfully be, and are, invited to participate by JPMSL or Numis. JPMSL, Numis and their respective affiliates are entitled to enter bids in the Bookbuild as principal.
3. The Bookbuild will establish a single price payable to JPMSL by all Placees (including Placees who are procured by Numis) whose bids are accepted (the "Placing Price"). The Placing Price and the aggregate proceeds to be raised through the Placing will be agreed between JPMSL, Numis 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. The Placing Price will be announced through a Regulatory Information Service 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 JPMSL or Numis. Each bid should state the number of Placing Shares which the prospective Placee wishes to acquire at either the Placing Price which is ultimately established by the Company, JPMSL and Numis or at prices up to a price limit specified in its bid. Bids may be scaled down by JPMSL and Numis on the basis referred to paragraph 8 below.
5. The Bookbuild is expected to close no later than 5.00 p.m. (GMT) on 13 July 2010 but may be closed earlier or later at the discretion of JPMSL and Numis. JPMSL and Numis may, in agreement with the Company, accept bids that are received after the Bookbuild has closed.
6. Each Placee's allocation will be confirmed to Placees orally by JPMSL or Numis following the close of the Bookbuild, and a trade confirmation will be dispatched as soon as possible thereafter by JPMSL. JPMSL's or Numis's oral confirmation to such Placee will constitute an irrevocable legally binding commitment upon such person (who will at that point become a Placee) in favour of JPMSL, Numis and the Company, under which it agrees to acquire 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 Articles of Association.
7. The Company will make the Pricing Announcement following the close of the Bookbuild detailing the number of Placing Shares to be issued and the Placing Price.
8. Subject to paragraphs 4 and 5 above, JPMSL and Numis may choose to accept bids, either in whole or in part, on the basis of allocations determined at their discretion and may scale down any bids for this purpose on such basis as JPMSL and Numis may determine. JPMSL and Numis 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. The Company reserves the right to reduce or seek to increase the amount to be raised pursuant to the Placing.
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 JPMSL's and Numis's consent will not be capable of variation or revocation after the time at which it is submitted. Each Placee will also have an immediate, separate, irrevocable and binding obligation, owed to JPMSL (for itself and on behalf of Numis), to pay JPMSL (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 acquire. Each Placee's obligations will be owed to the Company, JPMSL and Numis.
10. Except as required by law or regulation, no press release or other announcement will be made by JPMSL, Numis 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 the Placing will be subject to fulfilment or (where applicable) waiver 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 JPMSL nor Numis nor any of their respective affiliates shall have any liability to Placees (or to any other person whether acting on behalf of a Placee or otherwise). In particular, neither JPMSL nor Numis nor any of their respective affiliates shall have any liability (including to the extent permissible by law, any fiduciary duties) in respect of JPMSL's and Numis's conduct of the Bookbuild or of such alternative method of effecting the Placing as JPMSL, Numis and the Company may agree.
Conditions of the Placing
The Placing is conditional upon the Placing Agreement becoming unconditional and not having been terminated in accordance with its terms. JPMSL's and Numis's obligations under the Placing Agreement are conditional on, inter alia:
(a) Admission taking place not later than 8.00 a.m. on 12 August 2010 or such later date as the Company, JPMSL and Numis may otherwise agree but not being later than close of business on 26 August 2010;
(b) the ordinary resolution to permit the issue of the Placing Shares at a discount to their Net Asset Value having been passed by the Company's shareholders;
(c) the warranties contained in the Placing Agreement being true and accurate and not misleading in any material respect at the date of the Placing Agreement and at Admission by reference to the facts and the circumstances then subsisting;
(d) since the date of the Placing Agreement, there not occurring any development or event (or any development or event involving a prospective change of which the Company is aware) which will or is likely to have a material adverse effect on the condition (financial, operational, legal or otherwise), prospects, solvency, liquidity, management, results of operations, financial position or business of the Company or of the Group, respectively, taken as a whole, whether or not foreseeable and whether or not arising in the ordinary course of business; and
(e) the Company and the Investment Manager complying with all their respective obligations under the Placing Agreement to the extent that the same fall to be performed prior to Admission.
If (i) any of the conditions contained in the Placing Agreement, including those described above, are not fulfilled or (where applicable) waived by JPMSL and Numis by the respective time or date where specified (or such later time or date as the Company, JPMSL and Numis may agree) or (ii) the Placing Agreement is terminated in the circumstances specified below, the Placing will lapse and the Placee's rights and obligations hereunder in relation to the Placing Shares shall cease and terminate at such time and each Placee agrees that no claim can be made by the Placee in respect thereof.
JPMSL and Numis may, at their discretion and upon such terms as they think fit, waive compliance by the Company with the whole or any part of any of the Company's obligations in relation to the conditions in the Placing Agreement save that the above conditions relating to shareholder approval and Admission taking place may not be waived. Any such extension or waiver will not affect Placees' commitments as set out in this Announcement (including this Appendix).
Neither JPMSL nor Numis nor the Company shall have any liability to any Placee (or to any other person whether acting on behalf of a Placee or otherwise) in respect of any decision it may make as to whether or not to waive or to extend the time and/or date for the satisfaction of any condition to the Placing nor for any decision they may make as to the satisfaction of any condition or in respect of the Placing generally and by participating in the Placing each Placee agrees that any such decision is within the absolute discretion of JPMSL and Numis.
Right to terminate under the Placing Agreement
Each of JPMSL and Numis is entitled, at any time before Admission, to terminate their respective obligations under the Placing Agreement in accordance with the terms of the Placing Agreement in certain circumstances, including:
(a) any of the warranties given to JPMSL in the Placing Agreement being untrue or inaccurate or having become misleading in respect of a matter which is material;
(b) in the opinion of JPMSL or Numis (acting in good faith) the Company or the Investment Manager is in breach in any material respect of any of their respective obligations under the Placing Agreement; or
(c) the occurrence of a force majeure event as specified in the Placing Agreement which in the opinion of JPMSL or Numis (acting in good faith), is likely to significantly or materially prejudice the success of the Placing.
If both JPMSL and Numis exercise their right to terminate their obligations under the Placing Agreement, the Placing Agreement will be terminated and the Placing will not proceed.
By participating in the Placing, Placees agree that the exercise by JPMSL or Numis of any right of termination or other discretion under the Placing Agreement shall be within the absolute discretion of JPMSL and Numis and that it need not make any reference to Placees and that it shall have no liability to Placees (and no claim may be made by any Placee) whatsoever in connection with any such exercise.
No Prospectus
The Placing Shares are being offered to Relevant Persons only and will not be offered in such a way as to require a prospectus in Guernsey, the United Kingdom or elsewhere. No offering document or prospectus has been or will be submitted to be approved by the Guernsey Financial Services Commission nor the States of Guernsey Policy Council nor 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). Each Placee, by accepting a participation in the Placing, agrees that the content of this Announcement (including this Appendix) is exclusively the responsibility of the Company and confirms that it has neither received nor relied on any other information, representation, warranty, or statement made by or on behalf of the Company, JPMSL, Numis or the Investment Manager or any other person and neither JPMSL nor Numis nor the Company nor the Investment Manager nor any other person will be liable for any Placee's decision to participate in the Placing based on any other information, representation, warranty or statement which the Placees may have obtained or received. Each Placee acknowledges and agrees that it has relied on its own investigation of the business, financial or other position of the Company in accepting a participation in the Placing. Nothing in this paragraph shall exclude the liability of any person for fraudulent misrepresentation.
Registration and Settlement
Settlement of transactions in the Placing Shares (ISIN: GB00B01HM147) following Admission will take place within the CREST system, subject to certain exceptions. JPMSL, Numis and the Company reserve the right to require settlement for and delivery of the Placing Shares to Placees by such other means that they deem necessary if delivery or settlement is not practicable within the CREST system within the timetable set out in this Announcement (including this Appendix) or would not be consistent with the regulatory requirements in the Placee's jurisdiction.
Each Placee allocated Placing Shares in the Placing (including Placees procured by Numis) will be sent a trade confirmation by JPMSL in accordance with the standing arrangements in place with JPMSL stating the number of Placing Shares allocated to it at the Placing Price, the aggregate amount owed by such Placee to JPMSL (for itself and on behalf of Numis) 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 JPMSL.
It is expected that settlement will be on 11 August 2010 in accordance with the instructions set out in the trade confirmation.
Interest is chargeable daily on payments not received from Placees on the due date in accordance with the arrangements set out above at the rate of two percentage points above LIBOR per annum as determined by JPMSL.
Each Placee is deemed to agree that, if it does not comply with these obligations, JPMSL and/or Numis may sell any or all of the Placing Shares allocated to that Placee on such Placee's behalf and retain from the proceeds, for JPMSL's and Numis's own account and benefit, an amount equal to the aggregate amount owed by the Placee plus any interest due. The relevant Placee will, however, remain liable for any shortfall below the aggregate amount owed by it and may be required to bear any stamp duty or stamp duty reserve tax or similar tax imposed in any jurisdiction (together with any interest or penalties) which may arise upon the sale of such Placing Shares on such Placee's behalf.
Placees will not be entitled to receive any fee or commission in connection with the Placing.
If Placing Shares are to be delivered to a custodian or settlement agent, Placees should ensure that the trade confirmation is copied and delivered immediately to the relevant person within that organisation.
Insofar as Placing Shares are registered in a Placee's name or that of its nominee or in the name of any person for whom a Placee is contracting as agent or that of a nominee for such person, such Placing Shares should, subject as provided below, be so registered free from any liability to UK stamp duty or stamp duty reserve tax. Placees will not be entitled to receive any fee or commission in connection with the Placing.
Representations, Warranties and Further Terms
By participating in the Placing each Placee (and any person acting on such Placee's behalf):
1 represents and warrants that it has read this Announcement, including the Appendix, in its entirety;
2 acknowledges that no offering document or prospectus has been prepared in connection with the placing of the Placing Shares and represents and warrants that it has not received a prospectus or other offering document in connection therewith;
3 acknowledges that neither JPMSL nor Numis nor the Company nor the Investment Manager nor any of their affiliates nor any person acting on behalf of any of them has provided, and will not provide it, with any material regarding the Placing Shares or the Company other than this Announcement (including this Appendix); nor has it requested any of JPMSL, Numis, the Company, the Investment Manager, any of their affiliates or any person acting on behalf of any of them to provide it with any such information;
4 acknowledges that the content of this Announcement (including this Appendix) is exclusively the responsibility of the Company and that none of JPMSL, Numis, their respective affiliates or any person acting on JPMSL's or Numis's behalf has or shall have any liability for any information, representation or statement contained in this Announcement (including this Appendix) or any information previously published by or on behalf of the Company and will not be liable for any Placee's decision to participate in the Placing based on any information, representation or statement contained in this Announcement (including this Appendix) or otherwise. Each Placee further represents, warrants and agrees that the only information on which it is entitled to rely and on which such Placee has relied in committing itself to acquire the Placing Shares is contained in this Announcement (including this Appendix) and any information previously published by the Company by notification to a Regulatory Information Service, such information being all that it deems necessary to make an investment decision in respect of the Placing Shares and that it has neither received nor relied on any other information given or representations, warranties or statements made by any of JPMSL, Numis, the Company or the Investment Manager and neither JPMSL nor Numis nor the Company nor the Investment Manager will be liable for any Placee's decision to accept an invitation to participate in the Placing based on any other information, representation, warranty or statement, provided that nothing in this paragraph excludes the liability of any person for fraudulent misrepresentation made by that person. Each Placee further acknowledges and agrees that it has relied on its own investigation of the business, financial or other position of the Company in deciding to participate in the Placing;
5 acknowledges that neither JPMSL nor Numis nor any person acting on behalf of them nor any of their respective affiliates has or shall have any liability for any publicly available or filed information or any information, representation, warranty or statement relating to the Company contained therein or otherwise, provided that nothing in this paragraph excludes the liability of any person for fraudulent misrepresentation made by that person;
6 if it is in a member state of the European Economic Area, it is a "Qualified Investor" as such term is defined in section 86(7) of the Financial Services and Markets Act 2000 ("FSMA") or in Article 2(1)(e) of the Prospectus Directive;
7 if it is in the United Kingdom, it is a Qualified Investor and also a person (i) who has professional experience in matters relating to investments and falls within article 19(5) (investment professionals) of the Order or (ii) who falls under article 49(2)(a) to (d) (high net worth companies, unincorporated associations etc.) of the Order, and it undertakes that it will acquire, hold, manage or dispose of any Placing Shares that are allocated to it for the purposes of its business;
8 it (and/or any beneficial owner on whose behalf it is making an investment) is entitled to acquire Placing Shares under the laws of all relevant jurisdictions which apply to it (and/or any such beneficial owner) and that it (and/or any such beneficial owner) has fully observed such laws and obtained all such governmental and other guarantees and other consents which may be required thereunder and complied with all necessary formalities;
9 represents and warrants that it is not, and at the time the Placing Shares are acquired will not be a resident of any Restricted Jurisdiction, and, each of it and the beneficial owner of the Placing Shares is, and at the time the Placing Shares are acquired will be, acquiring the Placing Shares in an "offshore transaction" in accordance with Rule 903 or Rule 904 of Regulation S under the Securities Act, and has such knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Placing Shares, will not look to JPMSL or Numis for all or part of any such loss it may suffer, is able to bear the economic risk of an investment in the Placing Shares, is able to sustain a complete loss of the investment in the Placing Shares and has no need for liquidity with respect to its investment in the Placing Shares;
10 acknowledges that the Placing Shares have not been and will not be registered or qualified for offer and sale nor will a prospectus be cleared in respect of any of the Placing Shares under the securities laws or legislation of any Restricted Jurisdiction and, subject to certain exceptions, may not be offered, sold, or delivered or transferred, directly or indirectly, within those jurisdictions;
11 represents and warrants that it is, or at the time the Placing Shares are acquired that it will be, the beneficial owner of such Placing Shares, or that the beneficial owner of such Placing Shares is not a resident of any Restricted Jurisdiction and that it (i) is not a U.S. Person and is acquiring the Placing Shares for its own account or (ii) is outside the United States and is acquiring the Placing Shares for the account of a non-U.S. Person with respect to which it exercises sole investment discretion or (iii) it is a dealer or other professional fiduciary in the United States acting in reliance upon Regulation S under the Securities Act on a discretionary basis for a non-U.S. Person;
12 represents and warrants that the issue to it, or the person specified by it for registration as holder, of Placing Shares will not give rise to a liability under any of sections 67, 70, 93 or 96 of the Finance Act 1986 (depositary receipts and clearance services) and that the Placing Shares are not being acquired in connection with arrangements to issue depositary receipts or to transfer Placing Shares into a clearance system;
13 represents and warrants that it has complied with its obligations in connection with money laundering and terrorist financing under the Proceeds of Crime Act 2002, the Terrorism Act 2000, and the Money Laundering Regulations 2007 of the UK and The Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) Law 1999 and the Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) Regulations 2002 and The Money Laundering (Disclosure of Information) (Guernsey) Law 1995 of Guernsey (together, the "Regulations") and, if making payment on behalf of a third party, that satisfactory evidence has been obtained and recorded by it to verify the identity of the third party as required by the Regulations;
14 acknowledges that pursuant to the Data Protection (Bailiwick of Guernsey) Law 2001, (the "DP Law") the Company and/or its Registrar, may hold personal data (as defined in the DP Law) relating to past and present shareholders and that such personal data held is used by the Registrar to maintain the Company's register of shareholders and mailing lists and this may include sharing data with third parties in one or more countries when (a) effecting the payment of dividends and redemption proceeds to shareholders and the payment of commissions to third parties and (b) filing returns of shareholders and their respective transactions in shares with statutory bodies and regulatory authorities;
15 if a financial intermediary, as that term is used in Article 3(2) of the EU Prospectus Directive, represents and warrants that the Placing Shares purchased by it in the Placing will not be acquired on a non-discretionary basis on behalf of, nor will they be acquired with a view to their offer or resale to, persons in a Member State of the European Economic Area which has implemented the Prospectus Directive other than to Qualified Investors, or in circumstances in which the prior consent of JPMSL or Numis has been given to the offer or resale;
16 represents and warrants that it has not offered or sold and, prior to the expiry of a period of six months from Admission, will not offer or sell any Placing Shares to persons in the United Kingdom, except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their business or otherwise in circumstances which have not resulted and which will not result in an offer to the public in the United Kingdom within the meaning of section 85(1) of the FSMA;
17 represents and warrants that it has not offered or sold and will not offer or sell any Placing Shares to persons in the European Economic Area prior to Admission except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their business or otherwise in circumstances which have not resulted in and which will not result in an offer to the public in any member state of the European Economic Area within the meaning of the Prospectus Directive;
18 represents and warrants that it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) relating to the Placing Shares in circumstances and in a manner in which section 21(1) of the FSMA does not require approval of the communication by an authorised person;
19 represents and warrants that it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Placing Shares in, from or otherwise involving, the United Kingdom;
20 represents and warrants that it and any person acting on its behalf is entitled to acquire the Placing Shares under the laws of all relevant jurisdictions and that it has all necessary capacity and has obtained all necessary consents and authorities to enable it to commit to this participation in the Placing and to perform its obligations in relation thereto (including, without limitation, in the case of any person on whose behalf it is acting, all necessary consents and authorities to agree to the terms set out or referred to in this Appendix) and will honour such obligations;
21 undertakes that it (and any person acting on its behalf) will make payment for the Placing Shares allocated to it in accordance with this Appendix on the due time and date set out herein, failing which the relevant Placing Shares may be placed with other Placees or sold as JPMSL and/or Numis may in their sole discretion determine and without liability to such Placee;
22 acknowledges that none of JPMSL nor Numis nor any of their respective affiliates, nor any person acting on behalf of any of them, is making any recommendations to it, advising it regarding the suitability of any transactions it may enter into in connection with the Placees and that participation in the Placing is on the basis that it is not and will not be a client of JPMSL or Numis and that JPMSL and Numis have no duties or responsibilities to it for providing the protections afforded to their clients or customers or for providing advice in relation to the Placing nor in respect of any representations, warranties, undertakings or indemnities contained in the Placing Agreement nor for the exercise or performance of any of their respective rights and obligations thereunder including any rights to waive or vary any conditions or exercise any termination right;
23 undertakes that the person whom it specifies for registration as holder of the Placing Shares will be (i) itself or (ii) its nominee, as the case may be. Neither JPMSL nor Numis 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 or otherwise. Each Placee and any person acting on behalf of such Placee agrees to participate in the Placing and it agrees to indemnify on an after-tax basis the Company, JPMSL and Numis and their respective affiliates in respect of the same on the basis that the Placing Shares will be allotted to the CREST stock account of JPMSL who will hold them as nominee on behalf of such Placee (including Placees procured by Numis) until settlement in accordance with its standing settlement instructions;
24 acknowledges that any agreements entered into by it pursuant to these terms and conditions and any non-contractual obligations arising out of or in connection with such agreements shall be governed by and construed in accordance with the laws of England and Wales and it submits (on behalf of itself and on behalf of any person on whose behalf it is acting) to the exclusive jurisdiction of the English courts as regards any claim, dispute or matter arising out of any such contract, except that enforcement proceedings in respect of the obligation to make payment for the Placing Shares (together with any interest chargeable thereon) may be taken by the Company, JPMSL or Numis in any jurisdiction in which the relevant Placee is incorporated or in which any of its securities have a quotation on a recognised stock exchange;
25 agrees that the Company, JPMSL, Numis and their respective affiliates and others will rely upon the truth and accuracy of the foregoing representations, warranties, acknowledgements and undertakings which are given to JPMSL and Numis on their own behalf and on behalf of the Company and are irrevocable;
26 agrees to indemnify on an after-tax basis and hold the Company, JPMSL, Numis and their respective affiliates harmless from any and all costs, claims, liabilities and expenses (including legal fees and expenses) arising out of or in connection with any breach of the representations, warranties, acknowledgements, agreements and undertakings in this Appendix and further agrees that the provisions of this Appendix shall survive after completion of the Placing;
27 acknowledges that the Ordinary Shares are listed on the Official List of the Financial Services Authority, and the Company is therefore required to publish certain business and financial information in accordance with the rules and practices of the UK Listing Authority, which includes a description of the nature of the Company's business and the Company's most recent balance sheet and profit and loss account and that it is able to obtain or access such information without undue difficulty, and is able to obtain access to such information or comparable information concerning any other publicly traded company, without undue difficulty;
28 represents and warrants that it has neither received nor relied on any confidential price sensitive information concerning the Company in accepting this invitation to participate in the Placing;
29 acknowledges that no action has been or will be taken by any of the Company, JPMSL or Numis or any person acting on behalf of the Company or JPMSL or Numis that would, or is intended to, permit a public offer of the Placing Shares in any country or jurisdiction where any such action for that purpose is required;
30 acknowledges that the Placing Shares have not been and will not be registered under the Securities Act or with any State or other jurisdiction of the United States, nor approved or disapproved by the US Securities and Exchange Commission, any state securities commission in the United States or any other US regulatory authority, that there will be no sales in the United States and that any sales outside the United States are being made in accordance with Regulation S under the Securities Act;
31 acknowledges that no representation has been made as to the availability of Rule 144 or any other exemption under the Securities Act for the reoffer, resale, pledge or transfer of the Placing Shares; and
32 represents and warrants that neither it nor its affiliates nor any person acting on its or their behalf have engaged or will engage in any "directed selling efforts" with respect to the Placing Shares in the United States.
The agreement to settle a Placee's acquisition of Placing Shares (and/or the acquisition by a person for whom such Placee is contracting as agent) free of stamp duty and stamp duty reserve tax depends on the settlement relating only to an acquisition 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 acquired in connection with arrangements to issue depositary receipts or to transfer the Placing Shares into a clearance service. If there are any such arrangements, or the settlement related to any other dealing in the Placing Shares, stamp duty or stamp duty reserve tax may be payable, for which neither the Company nor JPMSL nor Numis will be responsible. If this is the case, each Placee should seek its own advice and notify JPMSL and/or Numis accordingly.
In addition, Placees should note that they will be liable for any stamp duty and all other stamp, issue, securities, transfer, registration, documentary or other duties or taxes (including any interest, fines or penalties relating thereto) payable outside the UK by them or any other person on the acquisition by them of any Placing Shares or the agreement by them to acquire any Placing Shares.
Each Placee, and any person acting on behalf of the Placee, acknowledges that neither JPMSL nor Numis owes any fiduciary or other duties to any Placee in respect of any representations, warranties, undertakings or indemnities in the Placing Agreement and that such representations, warranties, undertakings and indemnities are not given for the benefit of any Placee.
Each Placee and any person acting on behalf of the Placee acknowledges and agrees that JPMSL, Numis or any of their respective affiliates may, at its absolute discretion, agree to become a Placee in respect of some or all of the Placing Shares.
When a Placee or person acting on behalf of the Placee is dealing with JPMSL, any money held in an account with JPMSL 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 JPMSL's money in accordance with the client money rules and will be used by JPMSL in the course of its own business and the Placee will rank only as a general creditor of JPMSL.
All times and dates in this Announcement (including this Appendix) may be subject to amendment. JPMSL and/or Numis shall notify the Placees and any person acting on behalf of the Placees of any changes.
This information is provided by RNS
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