TIDMTOT
RNS Number : 5677D
Total Produce Plc
01 February 2018
THIS ANNOUNCEMENT, INCLUDING THE APPIX, AND THE INFORMATION
CONTAINED HEREIN IS RESTRICTED AND IS NOT FOR RELEASE, PUBLICATION
OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, IN OR
INTO THE UNITED STATES, CANADA, AUSTRALIA, JAPAN, SOUTH AFRICA OR
ANY OTHER STATE OR JURISDICTION IN WHICH SUCH RELEASE, PUBLICATION
OR DISTRIBUTION WOULD BE UNLAWFUL. PLEASE SEE THE IMPORTANT NOTICE
AT THE OF THIS ANNOUNCEMENT.
THIS ANNOUNCEMENT CONTAINS INSIDE INFORMATION
1 February 2018
Total Produce plc
("Total Produce" or the "Company")
Proposed Placing to Fund Investment in Dole Food Company
("Dole")(1)
The Board of Total Produce announces a placing to raise
approximately $150 million in the capital of the Company (the
"Placing"). The Placing is being conducted, subject to the
satisfaction of certain conditions set out in the Appendix to this
announcement (which forms part of this announcement, such
announcement and the Appendix together being the "Announcement"),
through an accelerated bookbuild (the "Bookbuild") which will be
launched immediately following this Announcement and will be made
available to new and existing eligible investors. Goldman Sachs
International ("Goldman Sachs") and J&E Davy ("Davy") are
acting as Joint Bookrunners in respect of the Placing. Coöperatieve
Rabobank U.A. ("Rabobank" or the "Co-Lead Manager") is acting as
Co-Lead Manager in respect of the Placing.
Background to the Placing and use of proceeds
The Company has separately announced today that it has entered
into a binding agreement to acquire a 45% equity stake in Dole Food
Company, from Mr. David H. Murdock for a cash consideration of $300
million (the "Transaction").
The Transaction is expected to generate low double digit
adjusted earnings per share accretion for Total Produce in the
first full fiscal year post closing.
Total Produce aims to finance the cash consideration of $300
million through a balanced mix of Total Produce equity and debt.
The conservative funding strategy in relation to this Transaction
will allow Total Produce to retain a strong balance sheet
post-closing for strategic and financial flexibility going forward.
Total Produce has fully committed acquisition financing in place to
secure funding of the Transaction.
Current trading and prospects
Total Produce is now expecting increased fiscal 2017 adjusted
earnings per share of approx. 13.4 cents, slightly above the
previously announced guidance range of 12.5 to 13.0 cents per
share. Total Produce expects to maintain its current approach to
dividend payout post-closing of the Transaction.
(1) References to the investment in Dole Food Company mean the
investment into DFC Holdings LLC, of which Dole Food Company,
Inc.is a wholly owned subsidiary.
Details of the Placing
Goldman Sachs and Davy (together, the "Joint Bookrunners" and
each a "Joint Bookrunner") will today commence a bookbuilding
process in respect of the Placing (the "Bookbuild") to determine
demand for participation in the Placing by Placees. No commissions
will be paid to Placees or by Placees in respect of any Placing
Shares. The book will open with immediate effect. Except as
disclosed in this Announcement under "Details of the Placing",
members of the public are not entitled to participate in the
Placing.
The Joint Bookrunners have entered into an agreement with the
Company (the "Placing Agreement") under which, subject to the
conditions set out therein, the Joint Bookrunners will agree to use
their respective reasonable endeavours to procure placees for the
Placing Shares at a price determined following completion of the
Bookbuild and as set out in the Placing Agreement.
The price per Ordinary Share at which the Placing Shares are to
be placed (the "Placing Price") and the final number of Placing
Shares will be decided at the close of the Bookbuild following the
execution of the placing terms by the Company and the Joint
Bookrunners (the "Placing Terms"). All investors who participate in
the Placing will be required to make bids for Placing Shares in
Euro. The timing of the closing of the book, pricing and
allocations are at the discretion of the Company, Goldman Sachs and
Davy. Details of the Placing Price and the number of Placing Shares
will be announced as soon as practicable after the close of the
Bookbuild.
Under the terms of the Placing, Total Produce intends to raise
gross proceeds of approximately $150 million through the placing of
the Placing Shares.
Balkan Investment Company, which together with related parties
(including Arnsberg Investment Company) is the largest shareholder
in the Company, has indicated that it intends to participate in the
Placing for a total of at least EUR21 million.
The Placing Shares, when issued, will be fully paid and will
rank pari passu in all respects with the existing Ordinary Shares
of the Company (other than treasury shares which are non-voting and
do not qualify for dividends), including the right to receive all
dividends and other distributions declared, made or paid after the
date of issue. The Company currently has 324,829,462 Ordinary
Shares (excluding 22,000,000 treasury shares) in issue.
Applications for admission to trading
The Company will apply to the Irish Stock Exchange and to the
London Stock Exchange for the Placing Shares to be admitted to
trading on ESM and AIM respectively ("Admission"). It is expected
that settlement of the Placing Shares will occur, Admission will
become effective and that dealings will commence in the Placing
Shares at 8.00 a.m. on 5 February 2018. The Placing is conditional,
among other things, upon Admission becoming effective and the
Placing Agreement not being terminated in accordance with its
terms. The Appendix sets out further information relating to the
Bookbuild and the terms and conditions of the Placing.
By choosing to participate in the Placing and by making an oral
and legally binding offer to acquire Placing Shares, investors will
be deemed to have read and understood this Announcement in its
entirety and to be making such offer on the terms and subject to
the conditions in it, and to be providing the representations,
warranties, indemnities, acknowledgements and undertakings
contained in the Appendix.
This Announcement should be read in its entirety. In particular,
you should read and understand the information provided in the
"Important Notice" section of this Announcement.
This Announcement contains inside information for the purposes
of the Market Abuse Regulation (EU) No 596/2014 ("MAR"). Market
soundings, as defined in MAR, were taken in respect of the Placing,
with the result that certain persons became aware of inside
information, as permitted by MAR. That inside information is set
out in this Announcement and the accompanying announcement of the
Transaction. Therefore, those persons that received inside
information in a market sounding are no longer in possession of
inside information relating to the Company and its securities.
The person responsible for arranging release of this
Announcement on behalf of Total Produce is Frank Davis.
For further information on the Announcement, please contact:
Total Produce plc: +353 1 8872600
Carl McCann, Executive Chairman
Rory Byrne, Chief Executive
Frank Davis, Finance Director
Jacinta Devine, Company Secretary
Goldman Sachs (Joint Bookrunner) +44 7774 1000
Tim Ingrassia
Hugo MacNeill
Duncan Stewart
Asad Ali
Christian Bauer
Davy (Joint Bookrunner) +353 1 6796363
Ivan Murphy
Fergal Meegan
Barry Murphy
Ronan Veale
Orla Cowzer
Rabobank (Co-Lead Manager) +353 1 607 6100
Kevin Brady
Jeremy Perl
Willem Kröner
Wilson Hartnell PR (Media Enquiries) +353 1 6690030
Brian Bell
Important Notice
This Announcement and the information contained herein is
restricted and is not for release, publication or distribution,
directly or indirectly, in whole or in part, in, into or from the
United States (including its territories and possessions, any state
of the United States and the District of Columbia, collectively the
"United States"), Australia, Canada, Japan, South Africa or any
other state or jurisdiction in which the same would be restricted,
unlawful or unauthorised, in each case except pursuant to an
available exemption from applicable securities laws (each, a
"Restricted Territory").
This Announcement is for information purposes only and does not
constitute an offer to buy, sell, issue, acquire or subscribe for,
or the solicitation of an offer to buy, sell, issue, acquire or
subscribe for shares in the capital of the Company in any
Restricted Territory or to any person to whom it is unlawful to
make such offer or solicitation. Any failure to comply with these
restrictions may constitute a violation of the securities laws of
such jurisdictions. No public offer of the shares referred to in
this Announcement is being made in Ireland, the United Kingdom, any
Restricted Territory or elsewhere.
This Announcement has been issued by and is the sole
responsibility of the Company. Neither of the Joint Bookrunners,
nor the Co-Lead Manager, nor any of their respective affiliates
accept any responsibility whatsoever for the contents of the
information contained in this Announcement or for any other
statement made or purported to be made by or on behalf of the Joint
Bookrunners or the Co-Lead Manager or any of their respective
affiliates in connection with the Company, the Placing Shares or
the Placing. The Joint Bookrunners and the Co-Lead Manager and each
of their respective affiliates accordingly disclaim all and any
liability, whether arising in tort, contract or otherwise in
respect of any statements or other information contained in this
Announcement and no representation or warranty, express or implied,
is made by the Joint Bookrunners or the Co-Lead Manager or any of
their respective affiliates as to the accuracy, completeness or
sufficiency of the information contained in this Announcement.
Subject to certain exemptions, the securities referred to herein
may not be offered or sold in any Restricted Territory or for the
account or benefit of any national resident or citizen of any
Restricted Territory. The Placing Shares have not been and will not
be registered under the United States Securities Act of 1933, as
amended ("Securities Act"), or under the securities laws of, or
with any securities regulatory authority of, any state or other
jurisdiction of the United States, and may not be offered, sold or
transferred, directly or indirectly, in or into the United States
absent registration under the Securities Act or pursuant to an
exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act and in compliance
with any applicable securities laws of any state or other
jurisdiction of the United States. Any offering of the Placing
Shares to be made (i) in the United States will be made only to a
limited number of "qualified institutional buyers" ("QIBs") within
the meaning of Rule 144A under the Securities Act ("Rule 144A") in
accordance with Rule 144A or pursuant to an exemption from the
registration requirements of the Securities Act in a transaction
not involving any "public offering" and (ii) outside the United
States in offshore transactions within the meaning of, and in
reliance on, Regulation S under the Securities Act ("Regulation
S").
Except as disclosed in this Announcement under "Details of the
Placing", members of the public are not eligible to take part in
the Placing. All offers of the Placing Shares will be made pursuant
to an exemption under Directive 2003/71/EC, as amended, including
by Directive 2010/73/EC (the "2010 PD Amending Directive"), to the
extent implemented, in the relevant member state of the European
Economic Area ("EEA")) (the "Prospectus Directive"), from the
requirement to produce a prospectus for offers of the Placing
Shares. In member states of the EEA, this Announcement and the
terms and conditions set out herein are directed only at and may
only be communicated to persons who are qualified investors within
the meaning of Article 2(1)(e) of the Prospectus Directive
("Qualified Investors"). In the United Kingdom, this Announcement
and the terms and conditions set out herein is directed only at and
may only be communicated to Qualified Investors who are also (i)
persons who fall within the definition of "investment
professionals" in Article 19(5) of the Financial Services and
Markets Act 2000 (Financial Promotion) Order 2005 (the "Order");
(ii) persons who fall within Article 49(2)(a) to (d) of the Order
("High Net Worth Companies, Unincorporated Associations, etc); or
(iii) persons to whom it may otherwise by lawfully communicated
(all such persons together, "Relevant Persons").
Except as disclosed in this Announcement under "Details of the
Placing", this Announcement and the terms and conditions set out in
the Appendix to this Announcement must not be acted on or relied on
(a) in the United Kingdom, by persons who are not Relevant Persons,
and (b) in any other member state of the EEA, by persons who are
not Qualified Investors. Except as disclosed in this Announcement
under "Details of the Placing", any investment or investment
activity to which this Announcement relates is only available to,
and will be engaged in only with, Relevant Persons in the United
Kingdom and in member states of the EEA with Qualified Investors.
This Announcement does not itself constitute an offer for sale or
subscription of any securities in the Company.
By participating in the bookbuilding process and the Placing,
each person who is invited to and who chooses to participate in the
Placing by making an oral and legally binding offer to acquire
Placing Shares will be deemed to have read and understood this
Announcement in its entirety, to be participating, making an offer
and acquiring Placing Shares on the terms and conditions contained
in the Appendix to this Announcement and to be providing the
representations, warranties, indemnities, acknowledgements and
undertakings contained in the Appendix to this Announcement.
Goldman Sachs, which is authorised by the Prudential Regulation
Authority in the United Kingdom and regulated in the United Kingdom
by the Prudential Regulation Authority and by the Financial Conduct
Authority, is acting as a Joint Bookrunner for the Company and for
no-one else in connection with the Placing referred to in this
Announcement and is not, and will not be, responsible to anyone
other than the Company for providing the protections afforded to
its clients, nor for providing advice in relation to the Placing
and/or any other matter referred to in this Announcement.
Davy, which is regulated in Ireland by the Central Bank of
Ireland is acting as a Joint Bookrunner for the Company and no-one
else in connection with the Placing and is not, and will not be,
responsible to anyone other than the Company for providing the
protections afforded to its clients nor for providing advice in
relation to the Placing and/or any other matter referred to in this
Announcement.
Rabobank, which is regulated in the Netherlands by the Dutch
Central Bank ('De Nederlandsche Bank') and the Dutch Authority for
the Financial Markets ('Stichting Autoriteit Financiële Markten'),
is acting as Co-Lead Manager for the Company and for no-one else in
connection with the Placing referred to in this Announcement and is
not, and will not be, responsible to anyone other than the Company
for providing the protections afforded to its clients, nor for
providing advice in relation to the Placing and/or any other matter
referred to in this Announcement.
In connection with the Placing, each of the Joint Bookrunners
and the Co-Lead Manager and any of their respective affiliates,
acting as investors for their own accounts, may purchase Placing
Shares and in that capacity may retain, purchase, sell, offer to
sell or otherwise deal for their own accounts in such Placing
Shares and other securities of the Company or related investments
in connection with the Placing or otherwise.
The distribution of this Announcement and the offering of the
Placing Shares in certain jurisdictions may be restricted by law.
No action has been taken by the Company, the Joint Bookrunners or
the Co-Lead Manager that would permit an offering of such shares or
possession or distribution of this Announcement or any other
offering or publicity material relating to such shares in any
jurisdiction where action for that purpose is required. Persons
into whose possession this Announcement comes are required by the
Company and the Joint Bookrunners to inform themselves about, and
to observe, such restrictions. The information in this Announcement
may not be forwarded or distributed to any other person and may not
be reproduced in any manner whatsoever. Any forwarding,
distribution, reproduction, or disclosure of this information in
whole or in part is unauthorised. Failure to comply with this
directive may result in a violation of the Securities Act or the
applicable laws of other jurisdictions.
This Announcement does not identify or suggest, or purport to
identify or suggest, the risks (direct or indirect) that may be
associated with an investment in the Placing Shares. Any investment
decision to buy Placing Shares in the Placing must be made solely
on the basis of publicly available information, which has not been
independently verified by the Joint Bookrunners or the Co-Lead
Manager.
This Announcement contains (or may contain) certain
forward-looking statements with respect to certain of the Company's
current expectations and projections about future events and the
Company's future financial condition and performance. These
statements, which sometimes use words such as "aim", "anticipate",
"believe", "may", "will", "should", "intend", "plan", "assume",
"estimate", "expect" (or the negative thereof) and words of similar
meaning, reflect the directors' current beliefs and expectations
and involve known and unknown risks, uncertainties and assumptions,
many of which are outside the Company's control and difficult to
predict, that could cause actual results and performance to differ
materially from any expected future results or performance
expressed or implied by the forward-looking statement. Statements
contained in this Announcement regarding past trends or activities
should not be taken as a representation that such trends or
activities will continue in the future. The information contained
in this Announcement speaks only as of the date of this
Announcement and is subject to change without notice and the
Company does not assume any responsibility or obligation to, and
does not intend to, update or revise publicly or review any of the
information contained herein, whether as a result of new
information, future events or otherwise, except to the extent
required by the London Stock Exchange, the Irish Stock Exchange,
the Central Bank of Ireland or by applicable law. No statement in
this Announcement is or is intended to be a profit forecast or
profit estimate or
to imply that the earnings of the Company for the current or
future financial years will necessarily match or exceed the
historical or published earnings of the Company.
The price of shares and the income from them may go down as well
as up and investors may not get back the full amount invested on
disposal of shares acquired. Past performance is no guide to future
performance and persons needing advice should consult an
independent financial adviser.
This Announcement does not constitute a recommendation
concerning any investor's options with respect to the Placing. The
price of shares and any income expected from them may go down as
well as up and investors may not get back the full amount invested
upon disposal of the shares. Past performance is no guide to future
performance. The contents of this Announcement are not to be
construed as legal, business, financial or tax advice. Each
investor or prospective investor should consult his, her or its own
legal adviser, business adviser, financial adviser or tax adviser
for legal, financial, business or tax advice.
The Placing Shares to be issued pursuant to the Placing will not
be admitted to trading on any stock exchange other than the
Alternative Investment Market of the London Stock Exchange and the
Enterprise Securities Market of the Irish Stock Exchange.
The Placing has not been approved and will not be approved or
disapproved by the U.S. Securities and Exchange Commission, any
state securities commission or any other regulatory authority in
the United States, nor have any of the foregoing authorities passed
upon or endorsed the merits of the Placing or the accuracy or
adequacy of this Announcement. Any representation to the contrary
is unlawful. Persons (including, without limitation, nominees and
trustees) who have a contractual or other legal obligation to
forward a copy of the Appendix or this Announcement should seek
appropriate advice before taking any action.
The most recent Annual and Interim Reports and other information
are available on the Total Produce website at
https://investors.totalproduce.com/investors. Neither the content
of the Company's website nor any website accessible by hyperlinks
on the Company's website is incorporated in, or forms part of, this
Announcement.
Information to Distributors
Solely for the purposes of the product governance requirements
contained within: (a) EU Directive 2014/65/EU on markets in
financial instruments, as amended ("MiFID II"); (b) Articles 9 and
10 of Commission Delegated Directive (EU) 2017/593 supplementing
MiFID II; and (c) local implementing measures (together, the "MiFID
II Product Governance Requirements"), and disclaiming all and any
liability, whether arising in tort, contract or otherwise, which
any "manufacturer" (for the purposes of the Product Governance
Requirements) may otherwise have with respect thereto, the Placing
Shares have been subject to a product approval process, which has
determined that the Placing Shares are: (i) compatible with an end
target market of retail investors and investors who meet the
criteria of professional clients and eligible counterparties, each
as defined in MiFID II; and (ii) eligible for distribution through
all distribution channels as are permitted by MiFID II (the "Target
Market Assessment"). Notwithstanding the Target Market Assessment,
Distributors should note that: the price of the Placing Shares may
decline and investors could lose all or part of their investment;
the Placing Shares offer no guaranteed income and no capital
protection; and an investment in the Placing Shares is compatible
only with investors who do not need a guaranteed income or capital
protection, who (either alone or in conjunction with an appropriate
financial or other adviser) are capable of evaluating the merits
and risks of such an investment and who have sufficient resources
to be able to bear any losses that may result therefrom. The Target
Market Assessment is without prejudice to the requirements of any
contractual, legal or regulatory selling restrictions in relation
to the Placing. Furthermore, it is noted that, notwithstanding the
Target Market Assessment, the Joint Bookrunners and the Co-Lead
Manager will only procure investors who meet the criteria of
professional clients and eligible counterparties.
For the avoidance of doubt, the Target Market Assessment does
not constitute: (a) an assessment of suitability or appropriateness
for the purposes of MiFID II; or (b) a recommendation to any
investor or group of investors to invest in, or purchase, or take
any other action whatsoever with respect to the Placing Shares.
Each distributor is responsible for undertaking its own target
market assessment in respect of the Placing Shares and determining
appropriate distribution channels.
APPIX
TERMS AND CONDITIONS
IMPORTANT INFORMATION ON THE PLACING FOR INVITED PLACEES
ONLY
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE
PLACING EXCEPT AS DISCLOSED IN THIS ANNOUNCEMENT UNDER "DETAILS OF
THE PLACING". THIS ANNOUNCEMENT (INCLUDING THE APPIX) AND THE TERMS
AND CONDITIONS SET OUT HEREIN (THE "ANNOUNCEMENT") IS FOR
INFORMATION PURPOSES ONLY AND IS DIRECTED ONLY AT PERSONS WHOSE
ORDINARY ACTIVITIES INVOLVE THEM IN ACQUIRING, HOLDING, MANAGING
AND DISPOSING OF INVESTMENTS (AS PRINCIPAL OR AGENT) FOR THE
PURPOSES OF THEIR BUSINESS AND WHO HAVE PROFESSIONAL EXPERIENCE IN
MATTERS RELATING TO INVESTMENTS AND ARE: (A) IF IN A MEMBER STATE
OF THE EUROPEAN ECONOMIC AREA (THE "EEA"), PERSONS WHO ARE
QUALIFIED INVESTORS ("QUALIFIED INVESTORS"), BEING PERSONS FALLING
WITHIN THE MEANING OF ARTICLE 2(1)(E) OF DIRECTIVE 2003/71/EC, AS
AMED, INCLUDING BY THE 2010 PD AMING DIRECTIVE (DIRECTIVE
2010/73/EU), TO THE EXTENT IMPLEMENTED IN THE RELEVANT MEMBER STATE
(THE "PROSPECTUS DIRECTIVE"); OR (B) IF IN THE UNITED KINGDOM,
QUALIFIED INVESTORS WHO ARE (I) PERSONS WHO FALL WITHIN THE
DEFINITION OF "INVESTMENT PROFESSIONAL" IN ARTICLE 19(5) OF THE
FINANCIAL SERVICES AND MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER
2005, AS AMED (THE "ORDER"), OR (II) PERSONS WHO FALL WITHIN
ARTICLE 49(2)(A) TO (D) ("HIGH NET WORTH COMPANIES, UNINCORPORATED
ASSOCIATIONS, ETC") OF THE ORDER, OR (C) PERSONS TO WHOM IT MAY
OTHERWISE BE LAWFULLY COMMUNICATED (ALL SUCH PERSONS REFERRED TO IN
(A), (B) AND (C) ABOVE TOGETHER BEING REFERRED TO AS "RELEVANT
PERSONS").
THIS ANNOUNCEMENT MUST NOT BE ACTED ON OR RELIED ON BY PERSONS
WHO ARE NOT RELEVANT PERSONS. PERSONS DISTRIBUTING THIS
ANNOUNCEMENT MUST SATISFY THEMSELVES THAT IT IS LAWFUL TO DO SO.
ANY INVESTMENT OR INVESTMENT ACTIVITY TO WHICH THIS ANNOUNCEMENT
RELATES IS AVAILABLE ONLY TO RELEVANT PERSONS AND WILL BE ENGAGED
IN ONLY WITH RELEVANT PERSONS. THIS ANNOUNCEMENT DOES NOT ITSELF
CONSTITUTE AN OFFER FOR SALE OR SUBSCRIPTION OF ANY SECURITIES IN
THE COMPANY.
EACH PLACEE SHOULD CONSULT WITH ITS OWN ADVISERS AS TO LEGAL,
TAX, BUSINESS AND RELATED ASPECTS OF AN INVESTMENT IN THE PLACING
SHARES.
THE PLACING SHARES HAVE NOT BEEN AND WILL NOT BE REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMED (THE
"SECURITIES ACT"), OR UNDER THE SECURITIES LAWS OF, OR WITH ANY
SECURITIES REGULATORY AUTHORITY OF, ANY STATE OR OTHER JURISDICTION
OF THE UNITED STATES, AND MAY NOT BE OFFERED, SOLD OR TRANSFERRED,
DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED STATES ABSENT
REGISTRATION UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN COMPLIANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION OF THE UNITED STATES. ANY OFFERING OF THE PLACING
SHARES TO BE MADE (i) IN THE UNITED STATES WILL BE MADE ONLY TO A
LIMITED NUMBER OF "QUALIFIED INSTITUTIONAL BUYERS" ("QIBs") WITHIN
THE MEANING OF RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") IN
ACCORDANCE WITH RULE 144A OR PURSUANT TO AN AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IN A
TRANSACTION NOT INVOLVING A "PUBLIC OFFERING" AND (ii) OUTSIDE THE
UNITED STATES IN OFFSHORE TRANSACTIONS WITHIN THE MEANING OF, AND
IN RELIANCE ON, REGULATION S UNDER THE SECURITIES ACT. NO PUBLIC
OFFERING OF THE SHARES REFERRED TO IN THIS ANNOUNCEMENT IS BEING
MADE IN IRELAND, THE UNITED KINGDOM ANY RESTRICTED TERRITORY OR
ELSEWHERE.
Unless otherwise stated, capitalised terms in this Appendix have
the meanings ascribed to them in the Terms and Conditions
below.
This Announcement is for information only and does not itself
constitute or form part of an offer to sell or issue or the
solicitation of an offer to buy or subscribe for securities
referred to herein in any jurisdiction including, without
limitation, the United States, any Restricted Territory (as defined
below) or in any jurisdiction where such offer or solicitation is
unlawful. No public offering of securities will be made in
connection with the Placing in the United Kingdom, the United
States, any Restricted Territory or elsewhere.
This Announcement, and the information contained herein, is not
for release, publication or distribution, directly or indirectly,
to persons in the United States, Australia, Canada, Japan, South
Africa (each a "Restricted Territory") or in any jurisdiction in
which such publication or distribution is unlawful. The
distribution of this Announcement and the Placing and/or the offer
or sale of the Placing Shares in certain jurisdictions may be
restricted by law. No action has been taken by the Company, the
Joint Bookrunners or the Co-Lead Manager or any of their respective
affiliates or agents which would permit an offer of the Placing
Shares or possession or distribution of this Announcement or any
other offering or publicity material relating to such Placing
Shares in any jurisdiction where action for that purpose is
required. Persons distributing any part of this Announcement must
satisfy themselves that it is lawful to do so. Persons (including,
without limitation, nominees and trustees) who have a contractual
or other legal obligation to forward a copy of this Announcement
should seek appropriate advice
before taking any such action. Persons into whose possession
this Announcement comes are required by the Company, the Joint
Bookrunners and the Co-Lead Manager to inform themselves about, and
to observe, any such restrictions.
All offers of the Placing Shares will be made pursuant to an
exemption under the Prospectus Directive from the requirement to
produce a prospectus. This Announcement is being distributed and
communicated to persons in the UK only in circumstances to which
section 21(1) of the Financial Services and Markets Act 2000, as
amended ("FSMA") does not apply.
The Placing has not been approved and will not be approved or
disapproved by the U.S. Securities and Exchange Commission, any
State securities commission or any other regulatory authority in
the United States, nor have any of the foregoing authorities passed
upon or endorsed the merits of the Placing or the accuracy or
adequacy of this Announcement. Any representation to the contrary
is unlawful.
Subject to certain exceptions, the securities referred to in
this Announcement may not be offered or sold in any Restricted
Territory or to, or for the account or benefit of, a citizen or
resident, or a corporation, partnership or other entity created or
organised in or under the laws of a Restricted Territory.
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 the
Joint Bookrunners or the Co-Lead Manager or any of its 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 party or
its advisers, and any liability therefore is expressly
disclaimed.
The Joint Bookrunners and the Co-Lead Manager are acting
exclusively for the Company and no-one else in connection with the
Placing and are not, and will not be, responsible to anyone
(including the Placees) other than the Company for providing the
protections afforded to their clients nor for providing advice in
relation to the Placing and/or any other matter referred to in this
Announcement.
None of the Company, the Joint Bookrunners or the Co-Lead
Manager makes any representation to any Placees regarding an
investment in the securities referred to in this Announcement under
the laws applicable to such Placees. Each Placee should consult its
own advisers as to the legal, tax, business, financial and related
aspects of an investment in the Placing Shares.
By participating in the Placing, Placees (including individuals,
funds or otherwise) by whom or on whose behalf a commitment to
acquire Placing Shares has been given will (i) be deemed to have
read and understood this Announcement, in its entirety; and (ii) be
making such offer on the terms and conditions contained in
Appendix, including being deemed to be providing (and shall only be
permitted to participate in the Placing on the basis that they have
provided) the representations, warranties, acknowledgements and
undertakings set out herein.
In particular each such Placee represents, warrants and
acknowledges that:
(a) it is a Relevant Person 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;
(b) it is and, at the time the Placing Shares are acquired, will
be either (i) outside the United States and is acquiring the
Placing Shares in an "offshore transaction" in accordance with Rule
903 or Rule 904 of Regulation S under the Securities Act
("Regulation S"); or (ii) a "qualified institutional buyer" (a
"QIB") as defined in Rule 144A under the Securities Act ("Rule
144A"), which is acquiring the Placing Shares for its own account
or for the account of one or more QIBs, each of which is acquiring
beneficial interests in the Placing Shares for its own account; if
acquiring the Shares for the account of one or more other persons,
it has full power and authority to make the representations,
warranties, agreements and acknowledgements herein on behalf of
each such account; and
(c) if it is a financial intermediary, as that term is used in
Article 3(2) of the Prospectus Directive, that it understands the
resale and transfer restrictions set out in this Appendix and that
any Placing Shares acquired 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
circumstances which may give rise to an offer of securities to the
public other than an offer or resale in a member state of the EEA
which has implemented the Prospectus Directive to Qualified
Investors, or in circumstances in which the prior consent of the
Joint Bookrunners has been given to each such proposed offer or
resale.
IMPORTANT INFORMATION FOR PLACEES ONLY REGARDING THE PLACING
Defined terms used in this Appendix are set out at the end of
this Appendix.
Bookbuild
The Joint Bookrunners will today commence a bookbuilding process
in respect of the Placing (the "Bookbuild") to determine demand for
participation in the Placing by Placees. No commissions will be
paid to Placees or by Placees in respect of any Placing Shares. The
book will open with immediate effect. Members of the public are not
entitled to participate in the Placing. This Appendix gives details
of the terms and conditions of, and the mechanics of participation
in, the Placing.
Details of the Placing Agreement and of the Placing Shares
The Joint Bookrunners have entered into an agreement with the
Company (the "Placing Agreement") under which, subject to the
conditions set out therein, the Joint Bookrunners will agree to use
their respective reasonable endeavours to procure placees for the
Placing Shares at a price determined following completion of the
Bookbuild and as set out in the Placing Agreement.
The price per Ordinary Share at which the Placing Shares are to
be placed (the "Placing Price") and the final number of Placing
Shares will be decided at the close of the Bookbuild following the
execution of the placing terms by the Company and the Joint
Bookrunners (the "Placing Terms"). All investors who participate in
the Placing will be required to make bids for Placing Shares in
Euro. The timing of the closing of the book, pricing and
allocations are at the discretion of the Company, Goldman Sachs and
Davy. Details of the Placing Price and the number of Placing Shares
will be announced as soon as practicable after the close of the
Bookbuild.
If any Placee defaults in paying the Placing Price in respect of
any Placing Shares allotted to it, the Joint Bookrunners have
agreed to acquire such shares, and the Company has agreed to allot
or issue, as applicable, such shares to the Joint Bookrunners, at
the Placing Price, on and subject to the terms set out in the
Placing Agreement
The Placing Shares have been duly authorised and will, when
issued, be credited as fully paid and will rank pari passu in all
respects with the existing Ordinary Shares (other than treasury
shares which are non-voting and do not qualify for dividends),
including the right to receive all dividends and other
distributions declared, made or paid in respect of the Ordinary
Shares after the date of issue. The Placing Shares will be issued
free of any pre-emption rights, encumbrances, liens or other
security interests.
The Placing will be effected by way of a placing of new ordinary
shares in the Company for non-cash consideration. Goldman Sachs
will subscribe for ordinary shares and redeemable preference shares
in Calanthe Limited, a wholly owned subsidiary of the Company, for
an amount approximately equal to the net proceeds of the Placing.
The Company will allot and issue the Placing Shares on a
non-pre-emptive basis to Placees in consideration for the
cancellation of the ordinary shares and redeemable preference
shares in Calanthe Limited that will be issued to Goldman
Sachs.
Application for admission to trading
The Company will apply to the Irish Stock Exchange and to the
London Stock Exchange for the Placing Shares to be admitted to
trading on ESM and AIM respectively ("Admission"). It is expected
that Admission will become effective and that dealings will
commence in the Placing Shares at 8.00 a.m. on 5 February 2018 (or
such later date as may be agreed between the Company and the Joint
Bookrunners). The Placing is conditional upon, amongst other
things, Admission becoming effective.
Participation in, and principal terms of, the Placing
1. The Joint Bookrunners are arranging the Placing severally,
and not jointly, nor jointly and severally, as Joint Bookrunners
and agents of the Company. Participation will only be available to
persons who may lawfully be, and are, invited to participate by any
of the Joint Bookrunners. Each of the Joint Bookrunners and their
respective affiliates are entitled to enter bids as principal in
the Bookbuild.
2. The Bookbuild, if successful, will establish the Placing
Price to the Joint Bookrunners by all Placees whose bids are
successful. The Placing Price and the aggregate proceeds to be
raised through the Placing will be agreed between the Joint
Bookrunners and the Company following completion of the Bookbuild.
The Placing Price will be announced on a Regulatory Information
Service following the completion of the Bookbuild.
3. To bid in the Bookbuild, Placees should communicate their bid
by telephone or in writing to their usual sales contact at one of
the Joint Bookrunners. Each bid should state the number of Placing
Shares which the prospective Placee wishes to acquire at the
Placing Price ultimately established by the Company and the Joint
Bookrunners or at prices up to a price limit specified in its bid.
Bids may be scaled down by the Joint Bookrunners on the basis
referred to in paragraph 6 below.
4. The Bookbuild is expected to close no later than 4:30 p.m.
(London time) on 1 February 2018, but may be closed earlier or
later, at the discretion of the Joint Bookrunners. The Joint
Bookrunners may, in agreement with the Company, accept bids that
are received after the Bookbuild has closed.
5. Each Placee's allocation will be confirmed to Placees orally
by the relevant Joint Bookrunner following the close of the
Bookbuild, and a contract note will be dispatched as soon as
possible thereafter. The relevant Joint Bookrunner's oral
confirmation to such Placee will constitute an irrevocable legally
binding commitment upon such person (who will at that point become
a Placee) in favour of such Joint Bookrunner and the Company, under
which such Placee agrees to acquire the number of Placing Shares
allocated to it and to pay the relevant Placing Price on the terms
and conditions set out in this Appendix and in accordance with the
Company's corporate documents.
6. Subject to paragraphs 2 and 3 above, the Joint Bookrunners
will, in effecting the Placing, agree with the Company the identity
of the Placees and the basis of allocation of the Placing Shares
and may scale down any bids for this purpose on such basis as it
may determine. The Joint Bookrunners may also, notwithstanding
paragraphs 2 and 3 above and 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 acceptance of offers
shall be at the absolute discretion of the Joint Bookrunners.
7. A bid in the Bookbuild will be made on the terms and subject
to the conditions in this Appendix and will be legally binding on
the Placee on behalf of which it is made and except with the
relevant Joint Bookrunner's consent will not be capable of
variation or revocation after the time at which it is submitted.
Each Placee will also have an immediate, separate, irrevocable and
binding obligation, owed to the relevant Joint Bookrunner, to pay
it (or as it may direct) in cleared funds an amount equal to the
product of the Placing Price and the number of Placing Shares that
such Placee has agreed to acquire. Each Placee's obligations will
be owed to the relevant Joint Bookrunner.
8. Except as required by law or regulation, no press release or
other announcement will be made by any of the Joint Bookrunners,
the Co-Lead Manager 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.
9. 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".
10. All obligations under the Bookbuild and 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".
11. By participating in the Bookbuild, each Placee agrees that
its rights and obligations in respect of the Placing will terminate
only in the circumstances described below and will not be capable
of rescission or termination by the Placee after confirmation (oral
or otherwise) by a Joint Bookrunner.
12. To the fullest extent permissible by law, none of the Joint
Bookrunners, the Co-Lead Manager, the Company or any of their
respective affiliates shall have any responsibility or liability to
Placees (or to any other person whether acting on behalf of a
Placee or otherwise). In particular, neither of the Joint
Bookrunners, nor the Company, nor the Co-Lead Manager, nor any of
their respective affiliates shall have any responsibility or
liability (including to the extent permissible by law, any
fiduciary duties) in respect of the Joint Bookrunners' conduct of
the Bookbuild or of such alternative method of effecting the
Placing as the Joint Bookrunners, their respective affiliates 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. The Joint Bookrunners' obligations under the Placing
Agreement are conditional on certain conditions, including:
(a) Admission of the Placing Shares occurring at or before 8:00
a.m. (London time) on 5 February 2018 (or at such later time or
date as the Company and the Joint Bookrunners may agree);
(b) the Company having complied with its obligations under the
Placing Agreement;
(c) the publication by the Company of the results of the Placing
on a Regulatory Information Service as soon as reasonably
practicable after execution of the Placing Terms and in any event
by 7.00 a.m. on the Business Day following the date of the Placing
Agreement; and
(d) the Placing Terms having been executed by the Company and
the Joint Bookrunners;
(e) the Subscription Agreement having been duly executed and
delivered by the parties thereto and there having occurred no event
of default or breach of the terms thereof and the Subscription
Agreement remaining in full force and effect and having become
wholly unconditional (save for any conditions therein relating to
Admission); and
(f) each of the warranties on the part of the Company in the
Placing Agreement being true and accurate and not misleading on and
as of the date of the Placing Agreement and as of the closing of
the Placing;
(g) no event having occurred that gives any party to any
document entered into in connection with the Transaction a right to
terminate, or the rescission or termination of any document entered
into in connection with the Acquisition;
(h) no event having occurred that gives any party to any
document entered into in connection with the Financing a right to
terminate or the rescission or termination of any document entered
into in connection with the Financing; and
(i) the Company allotting and/or issuing, as applicable, subject
only to Admission, the Placing Shares in accordance with the
Placing Agreement.
If: (i) any of the conditions contained in the Placing
Agreement, including those described above, are not fulfilled or
(where applicable) waived by the Joint Bookrunners by the relevant
time or date specified (or such later time or date as the Company
and the Joint Bookrunners may agree); or (ii) the Placing Agreement
is terminated in the circumstances specified below, the Placing
will lapse and the Placees' rights and obligations hereunder in
relation to the Placing Shares shall cease and terminate at such
time and each Placee agrees that no claim can be made by it in
respect thereof.
The Joint Bookrunners may, at their discretion waive compliance
by the Company with the whole or any part of any of the Company's
obligations in relation to the conditions in the Placing Agreement
save that the above conditions relating, inter alia, to Admission
taking place and the Company allotting and/or issuing, as
applicable, the Placing Shares may not be waived. Any such
extension or waiver will not affect Placees' commitments as set out
in this Announcement.
None of the Joint Bookrunners 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
it may make as to the satisfaction of any condition or in respect
of the Placing generally and by participating in the Placing each
Placee agrees that any such decision is within the absolute
discretion of the Joint Bookrunners.
By participating in the Bookbuild, each Placee agrees that its
rights and obligations hereunder terminate only in the
circumstances described above and under "Termination of the Placing
Agreement" below, and will not be capable of rescission or
termination by the Placee.
Termination of the Placing Agreement
The Joint Bookrunners are entitled, at any time before
Admission, to terminate the Placing Agreement in accordance with
its terms in certain circumstances, including, if: (i) there has
been a breach by the Company of any of the warranties or
undertakings contained in the Placing Agreement or an event has
occurred or matter has arisen which would have rendered any of the
warranties untrue, inaccurate or misleading in any respect; (ii) in
the joint opinion of the Joint Bookrunners (acting in good faith),
there has been a material adverse change in or affecting, or any
development reasonably likely to result in a material adverse
change in or affecting, the condition (financial, operational,
legal or otherwise) or earnings, management, business affairs,
solvency, credit rating or financial prospects of (a) the Company
or any other member of the Group or (b) Dole and its group (taken
as a whole), whether or not arising in the ordinary course of
business; or (iii) the application for Admission is refused by the
London Stock Exchange or the Irish Stock Exchange or is withdrawn
by the Company.
By participating in the Placing, Placees agree that the exercise
by any Joint Bookrunner of any right of termination or other
discretion under the Placing Agreement shall be within the absolute
discretion of the Company or such Joint Bookrunner or for agreement
between the Company and the Joint Bookrunner(s) (as the case may
be) and that neither the Company or such Joint Bookrunner need not
make any reference to, or consultation with, Placees and that
neither they nor any of their respective affiliates, agents,
directors, officers or employees shall have any liability to
Placees whatsoever in connection with any such exercise.
No prospectus
No offering document, prospectus or admission document has been
or will be prepared or submitted to be approved by the Central Bank
of Ireland or the UK Financial Conduct Authority (or any other
authority) in relation to the Placing, and Placees' commitments
will be made solely on the basis of publicly available information
taken together with the information contained in this Announcement,
and any Exchange Information (as defined below) previously
published by or on behalf of the Company simultaneously with or
prior to the date of this Announcement and subject to the further
terms set forth in the contract note to be provided to individual
prospective Placees.
Each Placee, by accepting a participation in the Placing, agrees
that the content of this Announcement and the publicly available
information released by or on behalf of the Company 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 (other
than publicly available information) or the Joint Bookrunners or
the Co-Lead Manager or their respective Affiliates or any other
person and none of the Joint Bookrunners, the Co-Lead Manager or
the Company, or any of their respective Affiliates or 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 (regardless of whether or not such information,
representation, warranty or statement was given or made by or on
behalf of any such persons). 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 or limit the liability of any person for fraudulent
misrepresentation by that person.
Lock-up
The Company has undertaken to the Joint Bookrunners that,
between the date of the Placing Agreement and 90 days after the
Closing Date, it will not, without the prior written consent of the
Joint Bookrunners (such consent not to be unreasonably withheld or
delayed) enter into certain transactions involving or relating to
the Ordinary Shares, subject to certain carve-outs agreed between
the Joint Bookrunners and the Company.
By participating in the Placing, Placees agree that the exercise
by the Joint Bookrunners of any power to grant consent to waive the
undertaking by the Company of a transaction which would otherwise
be subject to the lock-up under the Placing Agreement shall be
within the absolute discretion of the Joint Bookrunners and that
they need not make any reference to, or consultation with, Placees
and that they shall have no liability to Placees whatsoever in
connection with any such exercise of the power to grant
consent.
Registration and settlement
Settlement of transactions in the Placing Shares (ISIN:
IE00B1HDWM43) following Admission will take place within the
relevant system administered by Euroclear UK & Ireland Limited
("CREST"), using the delivery versus payment mechanism, subject to
certain exceptions. Subject to certain exceptions, the Joint
Bookrunners 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 in CREST within the timetable set out in this
Announcement or would not be consistent with the regulatory
requirements in the Placee's jurisdiction.
Following the close of the Bookbuild for the Placing, each
Placee allocated Placing Shares in the Placing will be sent a
contract note stating the number of Placing Shares to be allocated
to it at the Placing Price, the aggregate amount owed by such
Placee to the Joint Bookrunners and settlement instructions.
Placees should settle against CREST ID: 303 for Goldman Sachs.
Placees should settle against CREST ID: 189 for J&E Davy. It is
expected that such contract note will be despatched on 2 February
2018 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
that it has in place with the relevant Joint Bookrunner.
The Company will deliver the Placing Shares to a CREST account
operated by Davy as agent for the Company and Davy will enter its
delivery (DEL) instruction into the CREST system. Davy will hold
any Placing Shares delivered to this account as nominee for the
Placees. The input to CREST by a Placee of a matching or acceptance
instruction will then allow delivery of the relevant Placing Shares
to that Placee against payment.
It is expected that settlement will be on 5 February 2018 on a
T+2 basis in accordance with the instructions given to the Joint
Bookrunners.
Interest is chargeable daily on payments not received from
Placees on the due date in accordance with the arrangements set out
above at the rate of two percentage points above LIBOR as
determined by the Joint Bookrunners.
Each Placee agrees that, if it does not comply with these
obligations, the Joint Bookrunners may sell any or all of the
Placing Shares allocated to that Placee on such Placee's behalf and
retain from the proceeds, for the Company's account and benefit, an
amount equal to the aggregate amount owed by the Placee plus any
interest due. The relevant Placee will, however, remain liable for
any shortfall below the aggregate amount owed by it and shall be
required to bear any stamp duty, stamp duty reserve tax or other
stamp, securities, transfer, registration, execution, documentary
or other similar impost, duty or tax (together with any interest or
penalties) which may arise upon the sale of such Placing Shares on
such Placee's behalf.
If Placing Shares are to be delivered to a custodian or
settlement agent, Placees should ensure that the contract note 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 to as provided
below, be so registered free from any liability to UK or Irish
stamp duty or UK stamp duty reserve tax. If there are any
circumstances in which any other stamp duty or stamp duty reserve
tax (together with interest and penalties) is payable in respect of
the issue of the Placing Shares, neither the Joint Bookrunners nor
the Company shall be responsible for the payment thereof.
Representations and warranties
By participating in the Placing each Placee (and any person
acting on such Placee's behalf) irrevocably acknowledges, confirms,
undertakes, represents, warrants and agrees (as the case may be)
with the Joint Bookrunners (in their capacity as Joint Bookrunners
and placing agents of the Company in respect of the Placing) and
the Company, in each case as a fundamental term of its application
for Placing Shares, the following:
1. it has read and understood this Announcement, including this
Appendix, in its entirety and that its subscription for and
purchase of Placing Shares is subject to and based upon all the
terms, conditions, representations, warranties, indemnities,
acknowledgements, agreements and undertakings and other information
contained herein and undertakes not to redistribute or duplicate
this Announcement and that it has not relied on, and will not rely
on, any information given or any representations, warranties or
statements made at any time by any person in connection with
Admission, the Placing, the Company, the Placing Shares or
otherwise;
2. that no offering document or prospectus or admission document
has been or will be prepared in connection with the Placing or is
required under the Prospectus Directive and it has not received and
will not receive a prospectus, admission document or other offering
document in connection with the Bookbuild, the Placing or the
Placing Shares;
3. that the Ordinary Shares are admitted to trading on the AIM
market of the London Stock Exchange and the ESM market of the Irish
Stock Exchange, and that the Company is therefore required to
publish certain business and financial information in accordance
with the EU Market Abuse Regulation (2014/596/EU) ("MAR") and the
rules and practices of the London Stock Exchange and the Irish
Stock Exchange (collectively, the "Exchange Information"), 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 similar statements for preceding financial years and
that it has reviewed such Exchange Information and that it is able
to obtain or access such Exchange Information, or comparable
information concerning any other publicly traded company, without
delay;
4. that none of the Joint Bookrunners, the Co-Lead Manager or
the Company or any of their respective Affiliates nor any person
acting on behalf of any of them has provided, and none of them will
provide, it with any material or information regarding the Placing
Shares, the Placing or the Company or any other person other than
this Announcement, nor has it requested any of the Joint
Bookrunners, the Co-Lead Manager, the Company, or any of their
respective Affiliates nor any person acting on behalf of any of
them to provide it with any such material or information;
5. unless otherwise specifically agreed with the Joint
Bookrunners, that they are not, and at the time the Placing Shares
are acquired, neither it nor the beneficial owner of the Placing
Shares will be, a resident of a Restricted Territory or any other
jurisdiction in which it would be unlawful to make or accept an
offer to acquire the Placing Shares, and further acknowledges that
the Placing Shares have not been and will not be registered or
otherwise qualified, for offer and sale nor will an offering
document, prospectus or admission document be cleared or approved
in respect of any of the Placing Shares under the securities
legislation of the United States or any other Restricted Territory
and, subject to certain exceptions, may not be offered, sold,
transferred, delivered or distributed, directly or indirectly, in
or into those jurisdictions or in any country or jurisdiction where
any such action for that purpose is required;
6. that the Company anticipates using the proceeds raised
through the Placing for the Transaction is dependent upon certain
conditions being satisfied and that none of the Company, the Joint
Bookrunners or the Co-Lead Manager warrant or represent that the
Transaction will take place;
7. that the content of this Announcement is exclusively the
responsibility of the Company and that none of the Joint
Bookrunners, the Co-Lead Manager or any of their respective
Affiliates or any person acting on their behalf has or shall have
any responsibility or liability for any information, representation
or statement contained in this Announcement or any information
previously or subsequently published by or on behalf of the
Company, including, without limitation, any Exchange Information,
and will not be liable for any Placee's decision to participate in
the Placing based on any information, representation or statement
contained in this Announcement or any information previously
published by or on behalf of the Company or otherwise. Each Placee
further represents, warrants and agrees that the only information
on which it is entitled to rely and on which such Placee has relied
in committing itself to acquire the Placing Shares is contained in
this Announcement and any 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 neither received nor
relied on any other information given or investigations,
representations, warranties or statements made by the Joint
Bookrunners or the Company and none of the Joint Bookrunners, the
Co-Lead Manager or the Company will be liable for any Placee's
decision to accept an invitation to participate in the Placing
based on any other information, representation, warranty or
statement. 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
and that none of the Joint Bookrunners, the Co-Lead Manager or any
of their Affiliates have made any representations to it, express or
implied, with respect to the Company, the Placing and the Placing
Shares or the accuracy, completeness or adequacy of the Exchange
Information, and each of them expressly disclaims any liability in
respect thereof. Nothing in this paragraph or otherwise in this
Announcement excludes the liability of any person for fraudulent
misrepresentation made by that person;
8. that it has not relied on any information relating to the
Company contained in any research reports prepared by the Joint
Bookrunners, any of its Affiliates or any person acting on the
Joint Bookrunners or any of its Affiliates' behalf and understands
that (i) none of the Joint Bookrunners, the Co-Lead Manager or any
of their respective Affiliates nor any person acting on its behalf
has or shall have any liability for public information or any
representation; (ii) none of the Joint Bookrunners, the Co-Lead
Manager or any of their respective Affiliates nor any person acting
on its 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 document or
otherwise; and that (iii) none of the Joint Bookrunners, the
Co-Lead Manager or any of their respective 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;
9. that the allocation, allotment, issue and delivery 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 it is not participating in the Placing
as nominee or agent for any person to whom the allocation,
allotment, issue or delivery of the Placing Shares would give rise
to such a liability 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
service;
10. acknowledges that no action has been or will be taken by the
Company, the Joint Bookrunners or any person acting on behalf of
the Company or the Joint Bookrunners 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;
11. that it and any person acting on its behalf is entitled to
acquire the Placing Shares under the laws of all relevant
jurisdictions which apply to it and that it has fully observed such
laws and obtained all such governmental and other guarantees,
permits, authorisations, approvals and consents which may be
required thereunder and complied with all necessary formalities and
that it has not taken any action or omitted to take any action
which will or may result in the Joint Bookrunners, the Company or
any of their respective Affiliates acting in breach of the legal or
regulatory requirements of any jurisdiction in connection with the
Placing;
12. that it has all necessary capacity and has obtained all
necessary consents and authorities to enable it to commit to its
participation in the Placing and to perform its obligations in
relation thereto (including, without limitation, in the case of any
person on whose behalf it is acting, all necessary consents and
authorities to agree to the terms set out or referred to in this
Announcement) and will honour such obligations;
13. that it has complied with its obligations under the Criminal
Justice Act 1993, section 118 of the Financial Services and Markets
Act 2000, as amended (the "FSMA"), the EU Market Abuse Regulation
and in connection with money laundering and terrorist financing
under the Proceeds of Crime Act 2002 (as amended), the Terrorism
Act 2000, the Terrorism Act 2006, the Money Laundering Regulations
2007 (the "Regulations") and the Money Laundering Sourcebook of the
FCA 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. If within a reasonable time after a request for
verification of identity, the Joint Bookrunners has not received
such satisfactory evidence, the Joint Bookrunners may, in their
absolute discretion, terminate the Placee's Placing Participation
in which event all funds delivered by the Placee to the Joint
Bookrunners will be returned without interest to the account of the
drawee bank or CREST account from which they were originally
debited;
14. that it is acting as principal only in respect of the
Placing or, if it is acting for any other person: (i) it is duly
authorised to do so and has full power to make, and does make, the
acknowledgments, representations and agreements herein on behalf of
each such person; and (ii) it is and will remain liable to the
Joint Bookrunners and the Company for the performance of all its
obligations as a Placee in respect of the Placing (regardless of
the fact that it is acting for another person);
15. if in a Member State of the EEA and except as disclosed in
this Announcement under "Details of the Placing", that it is a
"Qualified Investor" within the meaning of Article 2(1)(e) of the
Prospectus Directive;
16. if in the United Kingdom, that it is a person (i) who falls
within the definition of "investment professional" in Article 19(5)
of the Financial Services and Markets Act 2000 (Financial
Promotion) Order 2005 (the "Order") or (ii) who falls within
Article 49(2)(a) to (d) ("High Net Worth Companies, Unincorporated
Associations, etc") of the Order or (iii) to whom this Announcement
may otherwise lawfully be communicated and it undertakes that it
will acquire, hold, manage and (if applicable) dispose of any
Placing Shares that are allocated to it for the purposes of its
business only;
17. that it will not distribute, transfer or otherwise transmit
this Announcement or any part of it, or any other presentation or
other materials concerning the Placing, in or into the United
States (including electronic copies thereof) to any person, and it
has not distributed, forwarded, transferred or otherwise
transmitted any such materials to any person;
18. where it is acquiring the Placing Shares for one or more
managed accounts, it represents, warrants and undertakes that it is
authorised in writing by each managed account to acquire the
Placing Shares for each managed account and it has full power to
make the acknowledgements, representations and agreements herein on
behalf of each such account;
19. that if it is a pension fund or investment company, it
represents, warrants and undertakes that its acquisition of Placing
Shares is in full compliance with applicable laws and
regulations;
20. if it is acting as a financial intermediary, as that term is
used in Article 3(2) of the Prospectus Directive, that the Placing
Shares acquired for by it in the Placing will not be acquired for
on a nondiscretionary basis on behalf of, nor will they be acquired
for with a view to their offer or resale to, persons in a member
state of the EEA other than Qualified Investors, or in
circumstances in which the prior consent of the Joint Bookrunners
has been given to the proposed offer or resale;
21. 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
Qualified Investors 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 FSMA;
22. that any offer of Placing Shares may only be directed at
persons in member states of the EEA who are Qualified Investors and
represents, warrants and undertakes that it has not offered or sold
and will not offer or sell any Placing Shares to persons in the EEA
prior to Admission except to Qualified Investors or otherwise in
circumstances which have not resulted in and which will not result
in an offer to the public in any member state of the EEA within the
meaning of the Prospectus Directive (including any relevant
implementing measure in any member state);
23. that it has only communicated or caused to be communicated
and will only communicate or cause to be communicated any
invitation or inducement to engage in investment activity (within
the meaning of section 21 of the FSMA) relating to the Placing
Shares in circumstances in which section 21(1) of the FSMA does not
require approval of the communication by an authorised person;
24. that it has complied and will comply with all applicable
laws (including all relevant provisions of the FSMA) with respect
to anything done by it in relation to the Placing Shares in respect
of anything done in, from or otherwise involving, the United
Kingdom;
25. if it has received any confidential price sensitive
information about the Company in advance of the Placing, it has
not: (i) dealt in the securities of the Company; (ii) encouraged or
required another person to deal in the securities of the Company;
or (iii) disclosed such information to any person except as
permitted by the EU Market Abuse Regulation, prior to the
information being made publicly available;
26. that (i) it (and any person acting on its behalf) has
capacity and authority and is otherwise entitled to purchase the
Placing Shares under the laws of all relevant jurisdictions which
apply to it; (ii) it has paid any issue, transfer or other taxes
due in connection with its participation in any territory; (iii) it
has not taken any action which will or may result in the Company,
the Joint Bookrunners, any of their Affiliates or any person acting
on their behalf being in breach of the legal and/or regulatory
requirements and/or any anti money laundering requirements of any
territory in connection with the Placing and (iv) that the
subscription for and purchase of the Placing Shares by it or any
person acting on its behalf will be in compliance with applicable
laws and regulations in the jurisdiction of its residence, the
residence of the Company, or otherwise;
27. that it (and any person acting on its behalf) will make
payment for the Placing Shares allocated to it in accordance with
this Announcement on the due time and date set out herein against
delivery of such Placing Shares to it, failing which the relevant
Placing Shares may be placed with other Placees or sold as the
Joint Bookrunners may in their absolute discretion determine and
without liability to such Placee. It will, however, 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;
28. that its allocation (if any) of Placing Shares will
represent a maximum number of Placing Shares to which it will be
entitled, and required, to acquire, and that the Joint Bookrunners
or the Company may call upon it to acquire a lower number of
Placing Shares (if any), but in no event in aggregate more than the
aforementioned maximum;
29. that none of the Joint Bookrunners, the Co-Lead Manager 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 transactions it may
enter into in connection with the Placing and that participation in
the Placing is on the basis that it is not and will not be a client
of the Joint Bookrunners and that the Joint Bookrunners do not have
any duties or responsibilities to it for providing the protections
afforded to their respective clients or customers or for providing
advice in relation to the Placing nor in respect of any
representations, warranties, undertakings or indemnities contained
in the Placing Agreement nor for the exercise or performance of any
of the Joint Bookrunners rights and obligations thereunder
including any rights to waive or vary any conditions or exercise
any termination right;
30. 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 the Joint Bookrunners nor the Company will
be responsible for any liability to stamp duty or stamp duty
reserve tax or other similar duties or taxes (together with any
interest or penalties) resulting from a failure to observe this
requirement. Each Placee and any person acting on behalf of such
Placee agrees to indemnify each of the Joint Bookrunners, the
Company and any of their respective Affiliates in respect of the
same on an after-tax basis on the basis that the Placing Shares
will be allotted to the CREST stock account of Davy who will hold
them as nominee on behalf of such Placee until settlement in
accordance with its standing settlement instructions;
31. that these terms and conditions and 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 Ireland 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 Irish 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 Joint Bookrunners or the Company 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;
32. that each of the Joint Bookrunners, the Company and their
respective Affiliates and others will rely upon the truth and
accuracy of the representations, warranties, agreements,
undertakings and acknowledgements set forth herein and which are
given to each of the Joint Bookrunners on their own behalf and on
behalf of the Company and are irrevocable and it irrevocably
authorises each of the Joint Bookrunners and the Company to produce
this Announcement, pursuant to, in connection with, or as may be
required by any applicable law or regulation, administrative or
legal proceeding or official inquiry with respect to the matters
set forth herein;
33. that it will indemnify on an after-tax basis and hold each
of the Joint Bookrunners, the Company and their respective
Affiliates and any person acting on their behalf 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;
34. acknowledges that it irrevocably appoints any director of
the Joint Bookrunners 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;
35. that it acknowledges that its commitment to acquire Placing
Shares on the terms set out herein and in the contract note will
continue notwithstanding any amendment that may in future be made
to the terms and conditions of the Placing and that Placees will
have no right to be consulted or require that their consent be
obtained with respect to the Company's or the Joint Bookrunners
conduct of the Placing;
36. that in making any decision to acquire the Placing Shares
(i) it has sufficient knowledge, sophistication and experience in
financial, business and international investment matters as is
required to evaluate the merits and risks of subscribing for or
purchasing the Placing Shares, (ii) it is experienced in investing
in securities of this nature in this sector and is aware that it
may be required to bear, and is able to bear, the economic risk of
participating in, and is able to sustain a complete loss in
connection with, the Placing, (iii) it has relied on its own
examination, due diligence and analysis of the Company and its
Affiliates taken as a whole, including the markets in which the
Group operates, and the terms of the Placing, including the merits
and risks involved and not upon any view expressed or information
provided by or on behalf of the Joint Bookrunners, (iv) it has had
sufficient time to consider and conduct its own investigation with
respect to the offer and purchase of the Placing Shares, including
the legal, regulatory, tax, business,
currency and other economic and financial considerations
relevant to such investment, and (v) it will not look to the
Company, the Joint Bookrunners, any of their respective Affiliates
or any person acting on their behalf for all or part of any such
loss or losses it or they may suffer;
37. acknowledges and agrees that none of the Joint Bookrunners,
the Co-Lead Manager, or the Company owe any fiduciary or other
duties to it or any Placee in respect of any representations,
warranties, undertakings or indemnities in the Placing
Agreement;
38. understands and agrees that it may not rely on any
investigation that the Joint Bookrunners or any person acting on
its behalf may or may not have conducted with respect to the
Company and its Affiliates or the Placing and the Joint Bookrunners
has not made any representation or warranty to it, express or
implied, with respect to the merits of the Placing, the
subscription for or purchase of the Placing Shares, or as to the
condition, financial or otherwise, of the Company and its
Affiliates, or as to any other matter relating thereto, and nothing
herein shall be construed as a recommendation to it to acquire the
Placing Shares. It acknowledges and agrees that no information has
been prepared by, or is the responsibility of, the Joint
Bookrunners for the purposes of this Placing;
39. acknowledges and agrees that it will not hold any of the
Joint Bookrunners, the Co-Lead Manager or any of their respective
Affiliates or any person acting on their behalf responsible or
liable for any misstatements in or omission from any publicly
available information relating to the Group or information made
available (whether in written or oral form) relating to the Group
(the "Information") and that none of the Joint Bookrunners, the
Co-Lead Manager or any person acting on behalf of the Joint
Bookrunners or the Co-Lead Manager, makes any representation or
warranty, express or implied, as to the truth, accuracy or
completeness of such Information or accepts any responsibility for
any of such Information;
40. that in connection with the Placing, the Joint Bookrunners,
the Co-Lead Manager and any of their respective Affiliates acting
as an investor for its own account may take up shares in the
Company and in that capacity may retain, purchase or sell for its
own account such shares in the Company and any securities of the
Company or related investments and may offer or sell such
securities or other investments otherwise than in connection with
the Placing. Accordingly, references in this Announcement to shares
being issued, offered or placed should be read as including any
issue, offering or placement of such shares in the Company to the
Joint Bookrunners, the Co-Lead Manager and any of their respective
Affiliates acting in such capacity. In addition the Joint
Bookrunners may enter into financing arrangements and swaps with
investors in connection with which the Joint Bookrunners may from
time to time acquire, hold or dispose of such securities of the
Company, including the Placing Shares. None of the Joint
Bookrunners, the Co-Lead Manager or any of their respective
Affiliates intend to disclose the extent of any such investment or
transactions otherwise than in accordance with any legal or
regulatory obligation to do so;
41. acknowledges that (i) 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, nor approved or disapproved by the U.S. Securities and
Exchange Commission, any state securities commission in the United
States or any other United States regulatory authority; (ii) the
Placing Shares are being offered and sold (a) in the United States
to a limited number of QIBs in accordance with Rule 144A or
pursuant to an available exemption from the registration
requirements of the Securities Act in a transaction not involving
any "public offering", (b) outside the United States in reliance on
Regulation S, or (c) pursuant to another transaction exempt from or
not subject to the registration requirements of the Securities Act
and (iii) the Placing Shares may not be reoffered, resold, pledged
or otherwise transferred except in transactions not requiring
registration under the Securities Act;
42. represents and warrants that unless it is a QIB in the
United States to whom the Placing Shares will be offered on a
private placement basis, (a) each of it and each beneficial owner
of the Placing Shares for whom it is acting is and at the time the
Placing Shares are acquired will be, located outside the United
States and is and will be acquiring the Placing Shares in an
"offshore transaction" as defined in, and in accordance with,
Regulation S and (b) it will not offer or sell, directly or
indirectly, any of the Placing Shares except in an "offshore
transaction" in accordance with Regulation S or in the United
States pursuant to an available exemption from, or in a transaction
not subject to, the registration requirements of the Securities
Act; and
43. that it is not acquiring any of the Placing Shares as a
result of any form of general solicitation or general advertising
(within the meaning of Rule 502(c) of Regulation D under the
Securities Act) or it is located outside the United States and it
is not acquiring any of the Placing Shares as a result of any form
of directed selling efforts (as defined in Regulation S).
Additional representations and warranties from investors located
in the United States
In addition to the foregoing, by participating in the Placing,
each Placee (and any person acting on such Placee's behalf) who is
located in the United States subscribing for Placing Shares being
offered under a relevant exemption from the registration
requirements of the Securities Act represents, warrants, agrees and
confirms:
44. it (and any account for which it is purchasing) is a
QIB;
45. that it is acquiring the Placing Shares for its own account
(or for an account as to which it exercises sole investment
discretion and it has authority to make, and does make, the
acknowledgements, agreements, representations, undertakings and
warranties contained herein on behalf of each such account) for
investment purposes and not with a view to, or for offer or sale in
connection with, any distribution of the Placing Shares;
46. it (and any account for which it is purchasing) is not
acquiring the Placing Shares with a view to any offer, sale or
distribution thereof, or resale in connection with the distribution
thereof, within the meaning of the Securities Act that would be in
violation of the securities laws of the United States or any state
thereof and its purchase of the Placing Shares has not been
solicited by or through anyone other than the Joint
Bookrunners;
47. that the Placing Shares or any other securities of the
Company have not been, and will not be, registered under the
Securities Act or with any state or other jurisdiction of the
United States and that the Placing Shares or any other securities
of the Company may not be offered, sold, pledged or otherwise
transferred, directly or indirectly, in or into the United States
absent registration under the Securities Act, or pursuant to an
available exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act and in compliance
with any applicable securities laws of any state or other
jurisdiction of the United States;
48. it understands that the Placing Shares are being offered and
sold to it in a transaction exempt from, or otherwise not subject
to, the registration requirements of the Securities Act;
49. it has made its own assessment and has satisfied itself
concerning the legal, tax, regulatory, currency and other economic
considerations relevant to an investment in the Placing Shares;
50. that the Placing Shares may not be reoffered, resold,
pledged or otherwise transferred by it except (i) outside the
United States in an offshore transaction pursuant to Rule 903 or
904 of Regulation S (and not in a pre-arranged transaction
resulting in the resale of the Placing Shares into the United
States), (ii) in accordance with Rule 144A to a QIB purchasing for
its own account or for the account of a QIB, or (iii) pursuant to
another available exemption, if any, from registration under the
Securities Act, in each case in compliance with all applicable
securities laws of the states of the United States and other
jurisdictions;
51. that (a) the Placing Shares offered and sold in the United
States are "restricted securities" within the meaning of Rule
144(a)(3) under the Securities Act, and (b) it understands that the
Placing Shares are expected to be issued to it through CREST but
may be issued to it in certificated, definitive form and
acknowledges and agrees that the Placing Shares will, to the extent
they are delivered in certificated form, bear a legend to the
following effect unless agreed otherwise with the Company:
" THIS SECURITY HAS BEEN ACQUIRED FOR INVESTMENT AND WITHOUT A
VIEW TO DISTRIBUTION AND HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT"), OR UNDER ANY STATE SECURITIES
LAWS OR UNDER THE SECURITIES LAWS OF ANY OTHER JURISDICTION. NO
TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION
THEREIN MAY BE MADE EXCEPT (A) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR (B) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE ACT AND APPLICABLE STATE
SECURITIES LAWS AND THE SECURITIES LAWS OF ANY OTHER APPLICABLE
JURISDICTION AND, IN THE CASE OF CLAUSE (B), UNLESS THE COMPANY
RECEIVES AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY
TO THE COMPANY TO THE EFFECT THAT REGISTRATION IS NOT REQUIRED
UNDER THE ACT AND APPLICABLE STATE OR OTHER SECURITIES
LAWS."
52. that (i) it will notify any transferee to whom it
subsequently reoffers, resells, pledges or otherwise transfers the
Placing Shares of the foregoing restrictions on transfer (ii) prior
to any such disposal of the Placing Shares conducted in reliance on
clause 50(iii) above, will (a) furnish to the Company or its
designee, if the Company so requests, an opinion of counsel
experienced in securities law matters to such effect and such other
documents as the Company may require (including a letter from the
purchaser substantially in the form of the US Investor Letter
(Schedule 7 of the Placing Agreement) (the "US Investor Letter")
and (b) provide notice of the transfer restrictions laid out in the
US Investor Letter to any subsequent transferee and (ii) it agrees
not to reoffer, resell, pledge or otherwise transfer the Placing
Shares or any beneficial interest therein, to any person except to
a person that meets all of the requirements laid out herein and in
the Placing Agreement and agrees not to subsequently transfer the
Placing Shares or any beneficial interest therein except in
accordance with the transfer restrictions laid out herein and in
the Placing Agreement, including the US Investor Letter;
53. it understands that the registrar and transfer agent for the
Placing Shares will not be required to accept for registration of
transfer any such Placing Shares by it except upon presentation of
evidence satisfactory to the Company and the transfer agent that
the foregoing restrictions on transfer have been complied with;
54. that so long as the Placing Shares are "restricted
securities" within the meaning of Rule 144(a)(3) under the
Securities Act, it will segregate such Placing Shares from any
other shares in the Company that it holds that are not restricted
securities and will not deposit the Placing Shares into any
unrestricted depositary receipt facility maintained by any
depositary bank in respect of the Company's Ordinary Shares and
will only transfer such Placing Shares in accordance with the
foregoing restrictions;
55. that no representation has been made as to the availability
of the exemption provided by Rule 144, Rule 144A or any other
exemption under the Securities Act for the reoffer, resale, pledge
or transfer of the Placing Shares;
56. it understands and acknowledges that no agency of the United
States or any state thereof has made any finding or determination
as to the fairness of the terms of, or any recommendation or
endorsement in respect of, the Placing Shares; and
57. it will sign and return the US Investor Letter in the form
agreed between the Company and the Joint Bookrunners as soon as
possible after confirmation of its allocation in the Placing and in
any event prior to settlement of the Placing Shares on 5 February
2018.
The foregoing acknowledgements, agreements, undertakings,
representations, warranties and confirmations are given for the
benefit of the Company as well as each of the Joint Bookrunners
(for their own benefit and, where relevant, the benefit of their
respective Affiliates and any person acting on their behalf) and
are irrevocable. Each Placee, and any person acting on behalf of a
Placee, acknowledges that none of the Joint Bookrunners, the
Co-Lead Manager or the Company owe any fiduciary or other duties to
any Placee in respect of any representations, warranties,
undertakings or indemnities in the Placing Agreement.
Please also note that the agreement to allot and issue Placing
Shares to Placees (or the persons for whom Placees are contracting
as agent) free of Irish stamp duty and stamp duty reserve tax in
the UK relates only to their allotment and issue to Placees, or
such persons as they nominate as their agents, direct from the
Company for the Placing Shares in question.
Such agreement also assumes, and is based on a warranty from
each Placee, 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.
Neither the Joint Bookrunners nor the Company are liable to bear
any stamp duty or stamp duty reserve tax or any other similar
duties or taxes (transfer taxes) that arise on a sale of Placing
Shares, if there are any such arrangements, or any arrangements
that arise subsequent to their acquisition by Placees or for
transfer taxes arising otherwise than under the laws of Ireland or
the United Kingdom. Each Placee should, therefore, take its own
advice as to whether any such transfer tax liability arises.
Furthermore, each Placee agrees to indemnify on an after-tax basis
and hold the Joint Bookrunners, the Co-Lead Manager and/or the
Company and their respective Affiliates harmless from any and all
interest, fines or penalties in relation to transfer taxes to the
extent that such interest, fines or penalties arise from the
unreasonable default or delay of that Placee or its agent.
Each Placee and any person acting on behalf of each Placee
acknowledges and agrees that any of the Joint Bookrunners, the
Co-Lead Manager or any of their respective Affiliates may, at their
absolute discretion, agree to become a Placee in respect of some or
all of the Placing Shares. Each Placee acknowledges and is aware
that the Joint Bookrunners is receiving a fee in connection with
their role in respect of the Placing as detailed in the Placing
Agreement.
When a Placee or person acting on behalf of the Placee is
dealing with the Joint Bookrunners, any money held in an account
with any of the Joint Bookrunners on behalf of the Placee and/or
any person acting on behalf of the Placee will not be treated as
client money within the meaning of the rules and regulations of the
FCA made under the FSMA or the Central Bank of Ireland. 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 the Joint Bookrunners money in
accordance with the client money rules and will be used by the
Joint Bookrunners in the course of its own business; and the Placee
will rank only as a general creditor of the Joint Bookrunners.
All times and dates in this Announcement may be subject to
amendment by the Joint Bookrunners (in its absolute discretion).
The Joint Bookrunners shall notify the Placees and any person
acting on behalf of the Placees of any changes.
Past performance is no guide to future performance and persons
needing advice should consult an independent financial adviser.
The rights and remedies of the Joint Bookrunners 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 of one will not prevent the exercise
of others.
Each Placee may be asked to disclose in writing or orally to the
Joint Bookrunners:
(a) if he or she is an individual, his or her nationality;
or
(b) if he or she is a discretionary fund manager, the
jurisdiction in which the funds are managed or owned.
DEFINITIONS
In this Announcement:
"Admission" means the admission of the Placing Shares to trading
on the Alternative Investment Market of the London Stock Exchange
and the Enterprise Securities Market of the Irish Stock
Exchange;
"Affiliate" has the meaning given in Rule 501(b) of Regulation D
under the Securities Act or Rule 405 under the Securities Act, as
applicable;
"AIM" means the AIM market operated by the London Stock
Exchange;
"Announcement" means this Announcement (including the Appendix
to this Announcement);
"Bookbuild" means the bookbuilding process to be commenced by
the Joint Bookrunners to use reasonable endeavours to procure
placees for the Placing Shares, as described in this Announcement
and subject to the terms and conditions set out in this
Announcement and the Placing Agreement;
"Company" means Total Produce plc;
"Co-Lead Manager" means Coöperatieve Rabobank U.A.;
"CREST" means the relevant system, as defined in the Companies
Act 1990 (Uncertificated Securities) Regulations 1996 and the
Companies Act 1990 (Uncertificated Securities) (Amendment)
Regulations 2005, including any modification thereof or any
regulations in substitution thereof under section 1086 of the Irish
Companies Act and for the time being in force(in respect of which
Euroclear UK & Ireland Limited is the operator);
"ESM" means the Enterprise Securities Market operated by the
Irish Stock Exchange;
"FSMA" means the Financial Services and Markets Act 2000;
"Group" means the Company and its subsidiary undertakings;
"Irish Stock Exchange" means the Irish Stock Exchange plc;
"Joint Bookrunners" means Goldman Sachs International and
J&E Davy;
"London Stock Exchange" means the London Stock Exchange plc;
"Ordinary Share" means an ordinary share of EUR0.01 each in the
capital of the Company;
"Placee" means any person (including individuals, funds or
otherwise) by whom or on whose behalf a commitment to acquire
Placing Shares has been given;
"Placing" means the placing of the Placing Shares by the Joint
Bookrunners, on behalf of the Company;
"Placing Agreement" means the placing agreement between the
Company and the Joint Bookrunners in respect of the Placing;
"Placing Price" means the price per Ordinary Share at which the
Placing Shares are placed;
"Placing Shares" means the new Ordinary Shares to be issued
pursuant to the Placing;
"Prospectus Directive" means the Directive of the European
Parliament and of the Council of the European Union 2003/71/EC, as
amended (which includes any relevant implementing measure in each
member state of the European Economic Area and amendments thereto,
including the Directive of the European Parliament and of the
Council of the European Union 2010/73/EU to the extent implemented
in each member state of the European Economic Area);
"QIB" means a qualified institutional buyer as defined in Rule
144A;
"Regulation S" means Regulation S promulgated under the
Securities Act;
"Regulatory Information Service" means an information service
that is approved by the Irish Stock Exchange and the London Stock
Exchange;
"Restricted Territory" means the United States, Australia,
Canada, Japan or South Africa;
"Rule 144A" means Rule 144A under the Securities Act;
"Securities Act" means the U.S. Securities Act of 1933, as
amended;
"Terms and Conditions" means the terms and conditions of the
Placing set out in the Appendix to this Announcement;
"United Kingdom" or "UK" means the United Kingdom of Great
Britain and Northern Ireland;
"United States" or "US" means the United States of America, its
territories and possessions, any state of the United States and the
District of Columbia;
"US Investor Letter" means the letter in the form set out in
Schedule 7 of the Placing Agreement; and
"EUR" means the lawful currency of Ireland.
This information is provided by RNS
The company news service from the London Stock Exchange
END
IOESSUSIFFASEIE
(END) Dow Jones Newswires
February 01, 2018 02:00 ET (07:00 GMT)
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