NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED STATES, AUSTRALIA, CANADA, JAPAN, NEW ZEALAND, SWITZERLAND OR THE REPUBLIC OF SOUTH AFRICA OR INTO ANY OTHER JURISDICTION WHERE TO DO SO MIGHT CONSTITUTE A VIOLATION OR BREACH OF ANY APPLICABLE LAW. PLEASE SEE THE IMPORTANT NOTICE AT THE END OF THIS ANNOUNCEMENT.
This announcement is an advertisement and not a prospectus. Investors should not purchase or subscribe for any transferable securities referred to in this announcement except on the basis of information contained in the prospectus (the "Prospectus") expected to be published by Kennedy Wilson Europe Real Estate Plc (the "Company") in due course in connection with the offering and admission of new ordinary shares of no par value in the capital of the Company(the "New Ordinary Shares") to the premium listing segment of the Official List of the Financial Conduct Authority (the "FCA") and to trading on the London Stock Exchange's main market for listed securities ("Admission"). A copy of the Prospectus will, following publication, be available free of charge on the Company's website at www.kennedywilsoneuropeplc.com and during normal business hours on any weekday (public holidays excepted) at the Company's registered office: 47 Esplanade, St Helier, Jersey, JE1 0BD. This announcement is not an offer to sell, or a solicitation of an offer to acquire, securities in the United States or in any other jurisdiction. Securities may not be offered or sold in the United States absent registration or an exemption from registration and the securities described herein will be sold in accordance with all applicable laws and regulations.
2 October 2014
KENNEDY WILSON EUROPE REAL ESTATE PLC
PROPOSED FIRM PLACING AND PLACING AND OPEN OFFER OF APPROXIMATELY 35 MILLION SHARES
Kennedy Wilson Europe Real Estate Plc announces a proposed Firm Placing and Placing and Open Offer (the "Issue") of, in aggregate, approximately 35 million New Ordinary Shares, representing approximately 35% of the Existing Issued Share Capital.
The Firm Placing and conditional Placing of the Open Offer Shares (subject to clawback) is being conducted through an accelerated bookbuilding process (the "Bookbuild") which will be launched immediately following this announcement and which is expected to close on or around 3 October 2014.
Deutsche Bank and BofA Merrill Lynch are acting as Joint Global Co-ordinators and Joint Bookrunners and J.P. Morgan Cazenove and Davy are acting as Joint Bookrunners in each case in relation to the Issue. Deutsche Bank is also acting as Sponsor in connection with Admission.
Issue Highlights
n The proposed Issue of approximately 35 million New Ordinary Shares comprises:
o approximately 10 million New Ordinary Shares (representing approximately 10% of the Existing Issued Share Capital) to be issued through the Firm Placing; and
o approximately 25 million New Ordinary Shares (representing approximately 25% of the Existing Issued Share Capital) to be issued through the Placing and Open Offer
in each case, at the issue price per Share (the "Issue Price") and the exact number of Shares to be determined following the Bookbuild.
n The Net Proceeds of the Issue received by the Company will be utilised to fund future investments in real estate assets and real estate loans in accordance with the Group's investment policy and for general corporate purposes.
o KW and its relevant affiliateshave irrevocably undertaken to take up their maximum permitted pro rata entitlements of New Ordinary Shares under the Open Offer and intend, subject to the allocation policy of the Banks in respect of the Firm Placing, to take up New Ordinary Shares in the Firm Placing.
o William McMorrow and Mary Ricks, both directors of the Company and affiliates of KW, have also irrevocably undertaken to take up their maximum permitted pro rata entitlements of New Ordinary Shares under the Open Offer and intend, subject to the allocation policy of the Banks in respect of the Firm Placing, to take up New Ordinary Shares in the Firm Placing.
o Irrevocable commitment from KW and its relevant affiliates1 and other top shareholders to take up their pro rata entitlement in the Open Offer (49.7% of Open Offer or 12.4 million New Ordinary Shares).
o Each of KW and its relevant affiliates1, including William McMorrow and Mary Ricks, has agreed with the Banks and the Company, subject to certain customary exceptions and an exception for share pledges in connection with financing, to a 90-day lock-up period from the relevant date of Admission, in respect of New Ordinary Shares acquired by it under the Issue.
The Prospectus containing details of the Issueis expected to be published on or around 3 October2014 and following publication, will be available on the Company's website, www.kennedywilsoneuropeplc.com.
Commenting on today's announcement, Charlotte Valeur, Chair of Kennedy Wilson Europe Real Estate Plc said:
"Since the launch of the Company's IPO in February 2014, we have demonstrated our ability to act quickly to identify and acquire highly attractive assets, by deploying all of the £1bn of IPO proceeds into our target markets. Today's secondary fundraising is testament to ongoing support from our investors for our strategy whilst allowing us to build on the momentum we have achieved to date as we continue to grow our portfolio across the Company's target markets."
Mary Ricks, President and CEO of KW Europe, reflecting the view of the Investment Manager, added:
"This capital raise will enable us to capture further opportunities we believe exist in the European real estate market. We have identified significant opportunities to make further acquisitions and historically the fourth quarter has generated a very active pipeline with assets having been marked to market by vendors. Supported by our experienced management team and our strong relationships with financial institutions, we are in good position to capture the market opportunity and prudently and expeditiously deploy the proceeds from the capital raise. This will enable us to support our objective to generate and grow long-term cash flows to create value for shareholders."
Background to and reasons for the Issue
n The Directors believe that, since the Company's Initial Admission in February 2014, the Group has made excellent progress in successfully implementing its investment strategy by acquiring a diverse portfolio of real estate assets and real estate loans. These include high quality real estate assets in good locations that have been acquired at significant discount to the unpaid principal balance (in the case of the Loan Portfolios) and the previous owner's costs (in the case of the Property Portfolios).
n The Group's strategy continues to be to capitalise on the recovery in the European real estate market and the accelerated de-leveraging programmes by European financial institutions, through opportunistic acquisitions of real estate assets and active asset management.
n The Group intends to continue to explore opportunities and invest in the UK, Ireland and Spain and other European jurisdictions, including Italy, which the Directors and the Investment Manager believe offer substantial opportunities and will deliver attractive returns, without specific restrictions on exposure to a specific asset class, or a particular type of tenant, or geographical area.
n The Directors believe that the Investment Manager's strong relationships with many of the major banks and financial institutions in the Group's target markets that are currently deleveraging their balance sheets and its investment sourcing ability, as well as the KW Europe Group's reputation as a reliable and highly efficient counterparty, has made the Group a very attractive counterparty for sellers of assets. Moreover, historically there has typically been increased acquisition activity by banks and financial institutions in the fourth quarter of the year.
n The Directors have considered carefully the funding requirements of the Group and the funding alternatives most readily available to the Group. The Directors believe that it is essential for the Group to secure the optimum capital structure to enhance future investment opportunities and growth prospects. The Directors and the Investment Manager believe that the opportunities in the European market that were in place at the time of Initial Admission continue to be available, and the expertise of the Investment Manager in sourcing and executing investments for the Group will allow the Group to continue to take advantage of such opportunities and continue to build its Investment Portfolio. The Directors have therefore concluded that it is an appropriate time for the Company to raise new funds through the proposed Issue in order to continue to implement the Group's proven investment strategy.
Group Highlights
o The Group's Investment Portfolio at the date of this announcement comprises:
o nine Property Portfolios made up of 79 office, industrial, retail, multi-family, leisure and mixed-use real estate assets, comprising approximately 6.4 million square feet in aggregate, located across the UK and Ireland; and
o three Loan Portfolios made up of a total of 19 real estate loans secured by 42 real estate assets located in the UK and Ireland.
o As at 31 August 2014, the Group's Investment Portfolio generated gross income of approximately £85.3 million.
o As at 31 August 2014, the Property Portfolios comprised in aggregate 79 real estate assets totalling approximately 6.4 million square feet, with a market value of approximately £1.04 billion, excluding acquisition costs and expenses.
o As at 31 August 2014, the Property Portfolios generated in aggregate annualised gross rental income of approximately £69.3 million5 per annum reflecting a gross yield (excluding the development site at Vantage, Central Park) of approximately 7.5%5 on the purchase price.
o As at 31 August 2014, the Property Portfolios had an occupancy rate of approximately 89%5 (calculated by area) and had a WALT of approximately 8.3 years.
o The Group has entered into new leases in respect of space in the Property Portfolios (excluding the Leisure Assets and the residential assets in the UK and Ireland) covering approximately 421,560 square feet, equating to annualised gross rental income of £8.7 million. This includes two significant lease renewals in the Jupiter Portfolio with ConocoPhilips and the Opera Portfolio with KPMG, which account for 232,033 square feet, equating to annualised gross rental income of approximately £6.5 million.
o Leases in respect of a further 79,861 square feet (equating to gross annualised rental income of approximately £1.0 million) are under offer with tenants, (of which approximately 43,000 square feet are currently let) and leases in respect of approximately 195,000 square feet are under negotiation, (of which approximately 32,000 square feet are currently let on short-term licences) in each case in the Property Portfolios (excluding the Leisure Assets and the residential assets in UK and Ireland).
n As at 31 August 2014, the Loan Portfolios comprised three portfolios of real estate loans secured by, in aggregate, 42 real estate assets, with an aggregate unpaid principal balance of approximately 306.0 million. The Loan Portfolios have been valued as at 31 August 2014 at, in aggregate, approximately £177.6 million (excluding acquisition costs and expenses).
Current Trading and Prospects
n Since 30 June 2014, the Group completed the acquisitions of the Portmarnock Hotel & Golf Links, the Elliott Portfolio, the Marshes Shopping Centre and the Fairmont St Andrews Hotel, for a total consideration of approximately £150.4 million.
n The Directors believe that the Group has made excellent progress since its Initial Admission and, as announced on 7 August 2014, the Company declared its first dividend of 2 pence per Ordinary Share in respect of the period from incorporation to 30 June 2014, which was paid to its Shareholders on 29 August 2014.
n The Company has maintained a strong liquidity position supported by cash balances of approximately £298.9 million reflecting the drawdown of the full amount available under the £127 million Tiger-Artemis Facility Agreement and the £184 million Jupiter Facility Agreement, and including restricted cash balances of £25.0 million, and a new undrawn £225.0 million Revolving Credit Facility.
n The Group LTV ratio is approximately 34.0% with non-recourse debt of £506 million.
Details of the Firm Placing and the Placing
The Bookbuild will open with immediate effect following this announcement. The number of Firm Placed Shares and Open Offer Shares, the subject of the conditional Placing, and the price at which the New Ordinary Shares are to be placed (the "Placing Price") will be agreed by the Joint Global Co-ordinators and the Company at the close of the Bookbuild. The timing of the closing of the Bookbuild, pricing and allocations are at the discretion of Joint Global Co-ordinators and the Company. Details of the number of Firm Placed Shares and Open Offer Shares will be announced as soon as practicable after the close of the Bookbuild. The Firm Placed Shares and Open Offer Shares, when issued, will be fully paid and will rank pari passu in all respects with the Existing Ordinary Shares.
Application will be made for the Firm Placed Shares to be admitted to the premium listing segment of the Official List and to trading on the main market of the London Stock Exchange plc (together, the "Firm Placing Admission"). It is expected that settlement of the Firm Placed Shares and Firm Placing Admission will take place at 8:00 a.m. on or around 8 October 2014.
The Firm Placing is conditional, inter alia, upon:
i. Firm Placing Admission becoming effective by not later than 8.00 a.m. on 8 October 2014 (or such later time and/or date as the Company and the Investment Manager may agree with the Joint Global Co-ordinators (for themselves and on behalf of the other Banks), not being later than 8.00 a.m. on 15 October 2014); and
ii. the Placing Agreement having become unconditional in all respects, save for the conditions relating to Open Offer Admission, and not having been terminated in accordance with its terms. A summary of the material terms of the Placing Agreement is contained in paragraph 7.1 of Part XIII (Additional Information) of the Prospectus.
Accordingly, if any such conditions are not satisfied the Firm Placing will not proceed. The Firm Placing is not conditional on completion of the Placing and Open Offer nor is it subject to Shareholder approval.
Your attention is drawn to the detailed terms and conditions of the Firm Placing and Placing and Open Offer described in the Appendix to this announcement (which forms part of this announcement).
By choosing to participate in the Firm Placing and by making an oral and legally binding offer to acquire Firm Placed Shares, investors will be deemed to have read and understood this Announcement in its entirety (including the Appendix) and to be making such offer on the terms and subject to the conditions in it, and to be providing the representations, warranties and acknowledgements contained in the Appendix.
For further information, please contact:
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Deutsche Bank Sponsor, Joint Global Co-ordinator and Joint Bookrunner |
Georg Hansel Tel: +44 (0) 20 7545 8000 |
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BofA Merrill Lynch Joint Global Co-ordinator and Joint Bookrunner |
Kari Pitkin Tel: +44 (0) 20 7628 1000 |
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J.P. Morgan Cazenove Joint Bookrunner |
Bronson Albery Tel: +44 (0) 20 7742 4000
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Davy Joint Bookrunner |
Ronan Godfrey Tel: +353 1 679 6363 |
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FTI Consulting Financial Public Relations |
Dido Laurimore / Richard Sunderland / Nick Taylor Tel: +44 (0)203 727 1000 kennedywilson@fticonsulting.com
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IMPORTANT NOTICE
The information in this announcement is for information purposes only and does not purport to be full or complete. No reliance may be placed for any purpose on the information contained in this announcement or its accuracy or completeness. The material set forth herein is for information purposes only and is not intended, and should not be construed, as an offer of securities for sale in the United States or any other jurisdiction.
This announcement is an advertisement and not a prospectus and investors should not subscribe for any Ordinary Shares referred to in this announcement except on the basis of information in the Prospectus to be published by the Company in due course in connection with Admission.
This announcement is not for publication or distribution, directly or indirectly, in or into the United States (including its territories and possessions, any state of the United States and the District of Columbia), Australia, Canada, the Republic of South Africa, Switzerland or Japan. Neither the content of the Company's website nor any website accessible by hyperlinks to the Company's website is incorporated in, or forms part of, this announcement. The distribution of this announcement, the Prospectus and any other documentation associated with the Firm Placing and Placing and Open Offer and/or the transfer of the Firm Placed Shares and the Open Offer Shares may be restricted by law in certain jurisdictions and persons into whose possession any document or other information referred to herein comes should inform themselves about and observe any such restriction. Any failure to comply with these restrictions may constitute a violation of the securities laws of any such jurisdiction.
This announcement is for information purposes only and does not constitute or form part of any offer or invitation to sell, or any solicitation of any offer to purchase or subscribe for any Ordinary Shares nor shall it (or any part of it) or the fact of its distribution, form the basis of, or be relied on in connection with, any contract therefor.
In particular, this announcement does not contain or constitute an offer for sale of, or the solicitation of an offer or an invitation to buy or subscribe for, Ordinary Shares to any person in the United States, Australia, Canada, the Republic of South Africa, Switzerland or Japan or in any jurisdiction to whom or in which such offer or solicitation is unlawful.
The Company will not be registered under the US Investment Company Act of 1940, as amended (the "Investment Company Act"). In addition, the Ordinary Shares referred to herein have not been and will not be registered under the US Securities Act of 1933, as amended (the "Securities Act"), or under the securities laws of any state or other jurisdiction of the United States and may not be offered or sold in the United States or to or for the account or benefit of US persons absent registration or an exemption from the registration requirements of the Securities Act and in compliance with any applicable state securities laws and under circumstances that would not require the Company to register under the Investment Company Act.
In addition, the Ordinary Shares referred to herein have not been and will not be registered under the applicable securities laws of any state, province or territory of Australia, Canada, the Republic of South Africa, Switzerland or Japan. Subject to certain exceptions, the Ordinary Shares referred to herein may not be offered or sold in Australia, Canada, the Republic of South Africa, Switzerland or Japan or to, or for the account or benefit of, any national, resident or citizen of Australia, Canada, the Republic of South Africa, Switzerland or Japan. There will be no public offer of the New Ordinary Shares in the United States, Australia, Canada, the Republic of South Africa, Switzerland or Japan or any other jurisdiction where the extension or availability of the Issue would breach any applicable law.
This communication is only addressed and directed at (a) persons in member states in the European Economic Area who are "Qualified Investors" within the meaning of Article 2(1)(e) of the Prospectus Directive (this Directive together with any implementing measures in any member state, the "Prospectus Directive") and are located in Ireland, Luxembourg, Spain, Switzerland, Belgium and the Netherlands; (b) persons in the United Kingdom who (i) have professional experience in matters relating to investments and who fall within the definition of "investment professionals" in Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (as amended) or are high net worth companies, unincorporated associations or partnerships or trustees of high value trusts as described in Article 49(2) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (as amended) and investment personnel of any of the foregoing (each within the meaning of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005) and (ii) are "qualified investors" as defined in section 86 of the Financial Services and Markets Act 2000, as amended;(c) outside the United States, to non-US Persons (as defined in Regulation S ("Regulation S") under the US Securities Act of 1933, as amended (the "Securities Act"), in reliance upon Regulation S; (d) in the United States, to persons reasonably believed to be "qualified institutional buyers" as defined in Rule 144A under the Securities Act who are also "qualified purchasers" as defined in Section 2(a)(51) of the US Investment Company Act of 1940, as amended (the "Investment Company Act"); and (e) other persons to whom it may otherwise lawfully be communicated (all such persons together being referred to as "Relevant Persons"). This document must not be acted on or relied on (i) in the United Kingdom, by persons who are not Relevant Persons, (ii) in any member state of the European Economic Area listed above other than the United Kingdom, by persons who are not Qualified Investors, and (iii) in the European Economic Area, by persons located in any jurisdictions other than the Ireland, Luxembourg, Spain, Switzerland, Belgium and the Netherlands. No other person should act or rely on this document and persons distributing this document must satisfy themselves that it is lawful to do so. By accepting this document you represent, warrant and agree that you are a Relevant Person.
No reliance may or should be placed by any person for any purposes whatsoever on the information contained in this announcement or on its completeness, accuracy or fairness. The information contained in this announcement is given at the date of its publication (unless otherwise marked) and is subject to updating, revision and amendment. In particular, the proposals referred to herein are tentative and are subject to verification, material updating, revision and amendment.
The Firm Placing and Placing and Open Offer timetable, including the date of Admission, may be influenced by a range of circumstances such as market conditions. There is no guarantee that Admission will occur and you should not base your financial decisions on the Company's intentions in relation to the Issue and Admission at this stage.
Without limitation, results can be positively or negatively affected by market conditions beyond the control of the Company and the Investment Manager which may be different in many respects from those that prevail at present or in the future, with the result that the performance of investment portfolios originated now may be significantly different from those originated in the past. Past performance is not a reliable indicator of, and cannot be relied upon as a guide to, the future performance of the Company or the Investment Manager. Acquiring investments to which this announcement relates may expose an investor to significant risk of losing all of the amount invested. Persons considering making such an investment should consult an authorised person specialising in advising on such investments. This announcement does not constitute a recommendation concerning the Issue and prospective investors should note that the value of Ordinary Shares can decrease as well as increase. Potential investors should consult a professional adviser as to the suitability of the Issue for the person concerned.
Deutsche Bank, which is authorised under German Banking law (competent authority: BaFin - Federal Financial Supervisory Authority) and subject to limited regulation by the Financial Conduct Authority (the "FCA") and the Prudential Regulation Authority (the "PRA") in the United Kingdom, is acting as sponsor, joint global co-ordinator and joint bookrunner in connection with the matters described herein.
BofA Merrill Lynch, which is authorised in the United Kingdom by the PRA and regulated in the United Kingdom by the FCA and the PRA, is acting as joint global co-ordinator and joint bookrunner in connection with the matters described herein. BofA Merrill Lynch can be contacted at 2 King Edward Street, London, EC1A 1HQ.
J.P. Morgan Securities plc, which conducts its UK banking business as J.P. Morgan Cazenove and which is authorised in the United Kingdom by the PRA and regulated by the FCA and the PRA, is acting as joint bookrunner in connection with the matters described herein.
Davy, which is authorised and regulated in Ireland by the Central Bank of Ireland, is acting as joint bookrunner in connection with the matters described herein.
Deutsche Bank, BofA Merrill Lynch, J.P. Morgan Cazenove and Davy are acting exclusively for the Company and no one else in connection with the Issue and Admission and will not be responsible to anyone other than the Company for providing the protections afforded to their respective clients, or for providing any advice in relation to the Issue, Admission, the contents of this announcement or any transaction, arrangement or other matters referred to herein, and will not regard any other person (whether or not a recipient of this announcement) as their respective client in relation to the Issue and Admission, the contents of this announcement or any transaction, arrangement or other matter referred to herein.
In connection with the Issue and Admission, each of Deutsche Bank, BofA Merrill Lynch, J.P. Morgan Cazenove, Davy and any of their respective affiliates, acting as investors for their own accounts, may subscribe for or purchase Ordinary Shares and in that capacity may retain, purchase, sell, offer to sell or otherwise deal for their own accounts in such Ordinary Shares and other securities of the Company or related investments in connection with the Issue and Admission or otherwise. Accordingly, references in the Prospectus, once published, to the Ordinary Shares being issued, offered, subscribed, acquired, placed or otherwise dealt in should be read as including any issue or offer to, or subscription, acquisition, placing or dealing by Deutsche Bank, BofA Merrill Lynch, J.P. Morgan Cazenove, Davy and any of their affiliates acting as investors for their own accounts. Deutsche Bank, BofA Merrill Lynch, J.P. Morgan Cazenove, Davy do not intend to disclose the extent of any such investment or transactions otherwise than in accordance with any legal or regulatory obligations to do so. In addition, Deutsche Bank, BofA Merrill Lynch, J.P. Morgan Cazenove, Davy and any of their affiliates may enter into financing arrangements (including swaps) with investors in connection with which Deutsche Bank, BofA Merrill Lynch, J.P. Morgan Cazenove, Davy (or their affiliates) may from time to time acquire, hold or dispose of Ordinary Shares. This announcement has been issued by, and is the sole responsibility of, the Company.
None of the Investment Manager, the Investment Advisers, Deutsche Bank, BofA Merrill Lynch, J.P. Morgan Cazenove, Davy or any of their respective affiliates, directors, officers, employees, advisers or agents accepts any responsibility or liability whatsoever for or makes any representation or warranty, express or implied, as to this announcement, including the truth, accuracy or completeness of the information in this announcement (or whether any information has been omitted from the announcement) or any other information relating to the Company, the Investment Manager, their respective subsidiaries or associated companies, whether written, oral or in a visual or electronic form, and howsoever transmitted or made available or for any loss howsoever arising from any use of the announcement or its contents or otherwise arising in connection therewith. The Investment Manager, the Investment Advisers, Deutsche Bank, BofA Merrill Lynch, J.P. Morgan Cazenove, Davy and their respective affiliates accordingly disclaim all and any liability whether arising in tort, contract or otherwise which they might otherwise have in respect of this announcement or its contents or otherwise arising in connection therewith.
This announcement includes statements that are, or may be deemed to be, "forward-looking statements". These forward-looking statements can be identified by the use of forward-looking terminology, including the terms "believes", "estimates", "anticipates", "expects", "intends", "may", "will" or "should" or, in each case, their negative or other variations or comparable terminology. These forward-looking statements relate to matters that are not historical facts. By their nature, forward-looking statements involve risks and uncertainties because they relate to events and depend on circumstances that may or may not occur in the future. Forward-looking statements are not guarantees of future performance. The Company's actual investment performance, results of operations, financial condition, liquidity, dividend policy and the development of its financing strategies may differ materially from the impression created by the forward-looking statements contained in this announcement. In addition, even if the investment performance, result of operations, financial condition, liquidity and dividend policy of the Company and development of its financing strategies, are consistent with the forward-looking statements contained in this announcement, those results or developments may not be indicative of results or developments in subsequent periods.
These forward-looking statements speak only as at the date of this announcement. Subject to their legal and regulatory obligations (including under the Prospectus Rules of the UK Listing Authority), each of the Company, the Investment Manager, the Investment Advisers, Deutsche Bank, BofA Merrill Lynch, J.P. Morgan Cazenove, Davy and their respective affiliates expressly disclaims any obligations to update, review or revise any forward-looking statement contained herein whether to reflect any change in expectations with regard thereto or any change in events, conditions or circumstances on which any statement is based or as a result of new information, future developments or otherwise.
Certain figures contained in this announcement, including financial information, have been subject to rounding adjustments. Accordingly, in certain instances, the sum or percentage change of the numbers contained in this document may not conform exactly with the total figure given.
Summary of the principal terms of the proposed Firm Placing and Placing and Open Offer
Structure
The Company intends to issue approximately 35 million New Ordinary Shares by way of a Firm Placing and Placing and Open Offer.
Firm Placing
The Company is proposing to issue Firm Placed Shares pursuant to the Firm Placing to institutional and other investors. The Firm Placed Shares are not subject to clawback and do not form part of the Placing and Open Offer. The Firm Placing is not conditional on completion of the Placing and Open Offer. The Firm Placing is subject to the same conditions, save for the conditions relating to Open Offer Admission, and termination rights which apply to the Placing and Open Offer. Subject to the conditions relating to the Firm Placing (as described below) being satisfied, it is expected that Firm Placing Admission will become effective on 8 October 2014 and that dealings for normal settlement in the Firm Placed Shares will commence at 8.00 am. on the same day.
Placing and Open Offer
The Company is proposing to issue Open Offer Shares pursuant to the Placing and Open Offer.
Qualifying Shareholders are being given the opportunity to apply for the Open Offer Shares at the Issue Price on and subject to the terms and conditions of the Open Offer, pro rata to their holdings of Existing Ordinary Shares on the Record Date on the following basis:
0.249 New Ordinary Shares for every 1 Existing Ordinary Shares
Fractions of New Ordinary Shares will not be allotted and each Qualifying Shareholder's entitlement under the Open Offer will be rounded down to the nearest whole number. Fractional entitlements will be aggregated and will be placed pursuant to the Placing for the benefit of the Company.
The Banks have agreed, pursuant to the Placing Agreement, to use reasonable endeavours to conditionally place all the Open Offer Shares (other than the Committed Shares) at the Issue Price with institutional and other investors. The commitments of these placees will be subject to clawback in respect of valid applications for Open Offer Shares by Qualifying Shareholders pursuant to the Open Offer. Subject to waiver or satisfaction of the conditions relating to Open Offer Admission and the Placing and Open Offer not being terminated, any Open Offer Shares which are not applied for in respect of the Open Offer will be issued to the placees and/or other subscribers procured by the Banks, with the net proceeds retained for the benefit of the Company.
Qualifying Shareholders may apply for any whole number of New Ordinary Shares up to their maximum entitlement which, in the case of Qualifying Non-CREST Shareholders, is equal to the number of Open Offer Entitlements as shown on their Application Form or, in the case of Qualifying CREST Shareholders, is equal to the number of Open Offer Entitlements standing to the credit of their stock account in CREST. Qualifying Shareholders with holdings of Existing Ordinary Shares in both certificated and uncertificated form will be treated as having separate holdings for the purpose of calculating their Open Offer Entitlements.
No application in excess of a Qualifying Shareholder's Open Offer Entitlement will be met, and any Qualifying Shareholder so applying will be deemed to have applied for its Open Offer Entitlement only.
Conditions
The Firm Placing is conditional, inter alia, upon:
i. Firm Placing Admission becoming effective by not later than 8.00 a.m. on 8 October 2014 (or such later time and/or date as the Company and the Investment Manager may agree with the Joint Global Co-ordinators (acting for themselves and on behalf of the other Banks), not being later than 8.00 a.m. on 15 October 2014); and
ii. the Placing Agreement having become unconditional in all respects, save for the conditions relating to Open Offer Admission, and not having been terminated in accordance with its terms..
Accordingly, if any such conditions are not satisfied the Firm Placing will not proceed. The Firm Placing is not conditional on completion of the Placing and Open Offer nor is it subject to Shareholder approval.
The Placing and Open Offer are conditional, inter alia, upon:
i. in relation to the Firm Placing and the Placing and Open Offer, Firm Placing Admission becoming effective by not later than 8.00 a.m. on 8October 2014 (or such later time and/or date as the Company and the Investment Manager may agree with the Joint Global Co-ordinators (acting for themselves and on behalf of the other Banks), not being later than 8.00 a.m. on 14 October 2014);
ii. in relation to the Placing and Open Offer only, Open Offer Admission becoming effective by not later than 8.00 a.m. on 23 October 2014 (or such later time and/or date as the Company and the Investment Manager may agree with the Joint Global Co-ordinators (acting for themselves and on behalf of the other Banks), not being later than 8.00 a.m. on 30 October 2014); and
iii. the Placing Agreement having become unconditional in all respects and not having been terminated in accordance with its terms.
Accordingly, if any such conditions are not satisfied the Placing and Open Offer will not proceed, any Open Offer Entitlements admitted to CREST will thereafter be disabled and application monies received under the Open Offer will be refunded to the applicants, by cheque (at the applicant's risk) in the case of Qualifying Non-CREST Shareholders and by way of a CREST payment in the case of Qualifying CREST Shareholders, without interest, as soon as practicable thereafter.
The Placing and Open Offer is not subject to Shareholder approval.
Applications for Admission
Application will be made to the FCA for the Firm Placed Shares to be admitted to listing on the premium listing segment of the Official List and to the London Stock Exchange for the Firm Placed Shares to be admitted to trading on its main market for listed securities. Subject to the above conditions, among others, in relation to the Firm Placing being satisfied, it is expected that Firm Placing Admission will become effective on 8 October 2014 and that dealings for normal settlement in the Firm Placed Shares will commence at 8.00 a.m. on the same day.
Application will be made to the FCA for the Open Offer Shares to be admitted to listing on the premium listing segment of the Official List and to the London Stock Exchange for the Open Offer Shares to be admitted to trading on its main market for listed securities. Subject to the above conditions, among others, in relation to the Placing and Open Offer being satisfied, it is expected that Open Offer Admission will become effective on 23 October 2014 and that dealings for normal settlement in the Open Offer Shares will commence at 8.00 a.m. on the same day.
Expected Timetable of Principal Events(1)(2)(3)
Each of the dates and times in the table below is indicative only and may be adjusted by the Company , in which event details of the new times and dates will be notified to the UKLA, the London Stock Exchange and, where appropriate, to Qualifying Shareholders by way of an announcement issued via a RIS provider.
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Record Date for entitlements under the Open Offer |
6.00 p.m. on 2 October 2014 |
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Announcement of the Issue |
2 October 2014 |
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|
Ex-entitlement date for the Open Offer |
3 October 2014 |
|
|
Publication and posting of the Prospectus and the Application Forms |
3 October 2014 |
|
|
Open Offer Entitlements credited to stock accounts in CREST of Qualifying CREST Shareholders |
As soon as practicable after 8.00 a.m. on 6 October 2014 |
|
|
Announcement of the results of the Firm Placing |
3 October 2014 |
|
|
Firm Placing Admission and commencement of dealings in respect of New Ordinary Shares issued under the Firm Placing and CREST stock accounts credited in respect of New Ordinary Shares issued under the Firm Placing |
8.00 a.m. on 8 October 2014 |
|
|
Latest recommended time and date for requesting withdrawal of Open Offer Entitlements from CREST (i.e. if your Open Offer Entitlements are in CREST and you wish to convert them into certificated form) |
4.30 p.m. on 14 October 2014 |
|
|
Latest recommended time and date for depositing Open Offer Entitlements into CREST (i.e. if your Open Offer Entitlements are represented by an Application Form and you wish to convert them to uncertificated form) |
3.00 p.m. on 15 October 2014 |
|
|
Latest time and date for splitting Application Forms (to satisfy bona fide market claims) |
3.00 p.m. on 16 October 2014 |
|
|
Latest time and date for receipt of completed Application Forms and payment in full under the Open Offer or settlement of relevant CREST instructions (as appropriate) |
11.00 a.m. on 20 October 2014 |
|
|
Announcement of the results of the Placing and Open Offer |
21 October 2014 |
|
|
Open Offer Admission and commencement of dealings in respect of the New Ordinary Shares issued under the Placing and Open Offer and CREST stock accounts credited in respect of New Ordinary Shares issued under the Placing and Open Offer |
8.00 a.m. on 23 October 2014 |
|
|
Despatch of share certificates in respect of New Ordinary Shares issued under the Placing and Open Offer in certificated form |
on, or around 27 October 2014 |
|
Notes:
(1) References to times are to London time unless otherwise stated.
(2) The ability to participate in the Issue is subject to certain restrictions relating to Shareholders with a registered address or located or resident outside the UK, details of which will be set out in Part XIV (Terms and Conditions of the Firm Placing and Placing and Open Offer) of the Prospectus.
(3) If you have any queries on the procedure for acceptance and payment in respect of the Open Offer or on the procedure for splitting Application Forms, you should refer to Part XIV (Terms and Conditions of the Firm Placing and Placing and Open Offer) of the Prospectus which contains the Terms and Conditions of the Firm Placing and Placing and Open Offer or alternatively you should contact the Shareholder Helpline on 0870 707 4040, if calling from within the UK, or +44 870 707 4040, if calling from outside the UK. Calls to the 0870 707 4040 number from within the UK cost 10 pence per minute from a BT landline. Other network providers' or network costs may vary. Calls to the +44 870 707 4040 number from outside the UK will be charged at applicable international rates. Different charges may apply to calls from mobile telephones. The Shareholder Helpline is open 9.00 a.m. to 5.00 p.m. (London time). Calls may be recorded and randomly monitored for security and training purposes. The helpline cannot provide advice on the merits of the Issue nor give any financial, legal, business, tax or investment advice.
APPENDIX
In this announcement, the following expressions have the following meanings unless the context requires otherwise or previously defined:
|
£ or Sterling or pounds |
the lawful currency of the United Kingdom; |
|
Admission |
Firm Placing Admission and/or Open Offer Admission; |
|
Application Form |
the personalised application form being sent to Qualifying Non- CREST Shareholders for use in connection with the Open Offer; |
|
Banks |
Deutsche Bank, Merrill Lynch International, J.P. Morgan Cazenove and Davy; |
|
Board or Directors |
the directors of the Company as at the date of this announcement; |
|
Bookbuilding |
the Firm Placing and conditional placing of the Open Offer Shares (subject to clawback) is being conducted through an accelerated bookbuilding process; |
|
Carried Interest Partner |
KW Carried Interest Partner LP; |
|
Company |
Kennedy Wilson Europe Real Estate Plc; |
|
Conditional Placees |
any persons who have agreed or shall agree to subscribe for Open Offer Shares pursuant to the Placing subject to clawback to satisfy valid applications by Qualifying Shareholders pursuant to the Open Offer; |
|
CREST |
the facilities and procedures for the time being of the relevant system of which Euroclear has been approved as "Operator" pursuant to the Regulations; |
|
Davy |
J&E Davy of Davy House, 49 Dawson Street, Dublin 2, Ireland; |
|
Deutsche Bank |
Deutsche Bank AG, London Branch, of Winchester House, 1 Great Winchester Street, London EC2N 2DB, United Kingdom; |
|
EBITDA |
earnings before interest, tax, depreciation and amortisation; |
|
Existing Issued Share Capital |
100,225,215 Ordinary Shares in issue as at the date of this announcement; |
|
Existing Ordinary Shares |
Ordinary Shares currently in issue; |
|
FCA |
the UK Financial Conduct Authority (or its successor bodies); |
|
Firm Placed Shares |
the New Ordinary Shares which are the subject of the Firm Placing; |
|
Firm Placees |
those persons with whom Firm Placed Shares are to be placed; |
|
Firm Placing |
the placing of the Firm Placed Shares with the Firm Placees; |
|
Firm Placing Admission |
admission of the Firm Placed Shares to the Official List and/or admission to trading on the main market of the London Stock Exchange, as the context may require, becoming effective in accordance with the Listing Rules and/or the LSE Admission Standards, as the context may require; |
|
FSMA |
the UK Financial Services and Markets Act 2000, as amended; |
|
Group |
the Company and its subsidiary undertakings from time to time; |
|
Initial Admission |
the admission of the Existing Ordinary Shares to the premium listing segment of the Official List and to trading on the London Stock Exchange's main market for listed securities on 28 February 2014; |
|
Investment Advisers |
KW Europe, KW UK and KW España; |
|
Investment Management Agreement |
the investment management agreement dated 25 February 2014 between the Investment Manager and the Company under which it is appointed as the Investment Manager of the Company; |
|
Investment Manager |
KW Investment Management Ltd, a company incorporated in Jersey with registered number 114679; |
|
Investment Portfolio |
the Property Portfolios and the Loan Portfolios, as described in Part V (The Investment Portfolio) of the Prospectus, or such other real estate assets or real estate loans acquired by the Group from time to time; |
|
Issue |
the issue of New Ordinary Shares pursuant to the Firm Placing and Placing and Open Offer; |
|
Issue Price |
The new issue price per Share; |
|
J.P. Morgan Cazenove |
J.P. Morgan Securities plc of 25 Bank Street, London E14 5JP, United Kingdom; |
|
Joint Bookrunners |
Deutsche Bank, Merrill Lynch International, J.P. Morgan Cazenove and Davy; |
|
Joint Global Co-ordinators |
Deutsche Bank and Merrill Lynch International; |
|
Jupiter Facility Agreement |
the £184.0 million term loan facility agreement dated 24 September 2014 between, among others, Jupiter Holdco Ltd, RBS (as mandated lead arranger and lender) and Mount Street Mortgage Servicing Limited (as agent and security agent); |
|
KW or KW Group |
KW Holdings, KW Europe Group and each of their respective subsidiaries, or any one or more of them, as the context may require; |
|
KW Europe |
Kennedy Wilson Europe Limited; |
|
KW Europe Investors |
KW Europe Investors Ltd; |
|
KW Europe Group |
the Investment Manager and the Investment Advisers; |
|
Latest Practicable Date
|
the latest practicable date prior to the publication of the Prospectus, being 3 October 2014 (unless otherwise stated); |
|
Leisure Assets |
the Portmarnock Hotel & Golf Links and the Fairmont St Andrews Hotel; |
|
Listing Rules |
the listing rules made by the FCA under section 73A of FSMA; |
|
Loan Portfolios |
the Avon Portfolio, the Corbo Portfolio and the Elliott Portfolio; |
|
London Stock Exchange or LSE |
the London Stock Exchange plc; |
|
Merrill Lynch International or BofA Merrill Lynch |
Merrill Lynch International, of 2 King Edward Street, London EC1A 1HQ; |
|
Net Proceeds |
the aggregate value of all of the New Ordinary Shares issued pursuant to the Issue less expenses relating to the Issue; |
|
New Ordinary Shares |
the new ordinary shares of no par value in the capital of the Company which the Company is proposing to issue pursuant to the Issue; |
|
Official List |
the list maintained by the FCA pursuant to Part VI of FSMA; |
|
Open Offer |
the offer to Qualifying Shareholders constituting an invitation to apply for the Open Offer Shares on the terms and subject to the conditions set out in the Prospectus, and in the case of Qualifying Non-CREST Shareholders, the Application Form; |
|
Open Offer Admission |
admission of the Open Offer Shares to the Official List and/or admission to trading on the main market of the London Stock Exchange, as the context may require, becoming effective in accordance with the Listing Rules and/or the LSE Admission Standards as the context may require; |
|
Open Offer Entitlements |
an entitlement of a Qualifying Shareholder to apply for 1 Open Offer Shares for every 0.249 Existing Ordinary Shares held by him or her on the Record Date pursuant to the Open Offer; |
|
Open Offer Shares |
the New Ordinary Shares to be offered to Qualifying Shareholders pursuant to the Open Offer or to Conditional Placees pursuant to the Placing; |
|
Ordinary Shares or Shares |
ordinary shares of no par value in the capital of the Company issued and designated as "Ordinary Shares" and having the rights, restrictions and entitlements set out in the articles of association of the Company (which include the Existing Ordinary Shares and the New Ordinary Shares); |
|
Overseas Shareholders |
Shareholders who are resident in, or citizens of, or who have registered addresses in, territories other than the United Kingdom; |
|
Placing |
the conditional placing of the Open Offer Shares (other than the Committed Shares) with Conditional Placees in accordance with the Placing Agreement, subject to clawback to satisfy valid applications by Qualifying Shareholders under the Open Offer; |
|
Placing Agreement |
the conditional agreement among the Company, the Directors, the Investment Manager and the Banks dated 2 October 2014; |
|
Placing and Open Offer |
the Placing and Open Offer; |
|
Placing Price |
The number of Firm Placed Shares and Open Offer Shares, the subject of the conditional Placing, and the price at which the New Ordinary Shares are to be placed; |
|
Property Portfolios |
the Artemis Portfolio, Vantage, Central Park, the Fairmont St Andrews Hotel, the Jupiter Portfolio, the Liffey Trust Building, the Marshes Shopping Centre, the Portmarnock Hotel & Golf Links, the Opera Portfolio and the Tiger Portfolio; |
|
Prospectus |
the prospectus expected to be published by the Company; |
|
Qualifying CREST Shareholders |
Qualifying Shareholders whose Ordinary Shares are in uncertificated form in CREST on the Record Date; |
|
Qualifying Non-CREST Shareholder |
Qualifying Shareholders whose Ordinary Shares are in certificated form on the Record Date; |
|
Qualifying Shareholder |
holders of Existing Ordinary Shares on the register of members of the Company on the Record Date, with the exception of certain Overseas Shareholders; |
|
Record Date |
the date on which the entitlement of Qualifying Shareholders to subscribe for Open Offer Shares will be determined by reference to the register of members of the Company, expected to be 6.00 p.m. on 2 October 2014; |
|
Revolving Credit Facility |
the £225.0 million revolving credit facility agreement dated 29 August 2014 between the Company, certain of its wholly owned subsidiaries and Bank of America Merrill Lynch International Limited; |
|
RIS |
a regulatory information service; |
|
Shareholder |
the registered holder of an Ordinary Share; |
|
Sponsor |
Deutsche Bank; |
|
Tiger-Artemis Facility |
the £127.0 million facility agreement dated 7 August 2014 between, among others, KW Artemis UK Properties Holdco Ltd, GE Real Estate Loans Limited (as mandated lead arranger and lender) and CBRE Loan Servicing Limited (as agent and security agent); |
|
UK or United Kingdom |
the United Kingdom of Great Britain and Northern Ireland; |
|
UKLA |
the Financial Conduct Authority in its capacity as the United Kingdom Listing Authority; |
|
US or USA or United States |
the United States of America, its territories and possessions, any state of the United States and the District of Columbia; |
|
US Investment Company Act |
the US Investment Company Act of 1940, as amended; |
|
US Securities Act |
the US Securities Act of 1933, as amended; |
|
WALT |
the weighted average period of unexpired lease term, or if an earlier period, to the next lease break, across the portfolio weighted by contracted rental income (including rent-frees). The calculation excludes Leisure Assets, short-term lettings, residential leases and properties allocated as developments. |
TERMS AND CONDITIONS
OF THE FIRM PLACING AND CONDITIONAL PLACING
IMPORTANT INFORMATION ON THE FIRM PLACING AND CONDITIONAL PLACING
FOR INVITED PLACEES ONLY
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE FIRM PLACING OR THE CONDITIONAL PLACING OF OPEN OFFER SHARES SUBJECT TO CLAWBACK IN RESPECT OF VALID APPLICATIONS BY QUALIFYING SHAREHOLDERS PURSUANT TO THE OPEN OFFER (THE "CONDITIONAL PLACING"). THE TERMS AND CONDITIONS SET OUT HEREIN ARE FOR INFORMATION PURPOSES ONLY AND ARE ONLY DIRECTED AT, AND BEING DISTRIBUTED TO, 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 ("EEA"), PERSONS WHO ARE QUALIFIED INVESTORS WITHIN THE MEANING OF ARTICLE 2(1)(E) OF THE EU PROSPECTUS DIRECTIVE (WHICH MEANS DIRECTIVE 2003/71/EC, AS AMENDED FROM TIME TO TIME, AND INCLUDES ANY RELEVANT IMPLEMENTING DIRECTIVE MEASURE IN ANY MEMBER STATE OF THE EEA TO THE EXTENT IMPLEMENTED IN THE RELEVANT MEMBER STATE OF THE EEA) (THE "PROSPECTUS DIRECTIVE") ("QUALIFIED INVESTORS") AND ARE PERSONS WHO ARE DOMICILED OR HAVE A REGISTERED OFFICE IN STATES WHICH HAVE NOT IMPLEMENTED THE AIFM DIRECTIVE OR WHO ARE DOMICILED OR HAVE A REGISTERED OFFICE IN THE FOLLOWING COUNTRIES: BELGIUM, IRELAND, LUXEMBOURG, THE NETHERLANDS, SPAIN OR THE UNITED KINGDOM AND IN THE CASE OF BELGIUM, IRELAND, LUXEMBOURG OR THE NETHERLANDS, ONLY TO PROFESSIONAL INVESTORS (AS THAT TERM IS DEFINED IN THE AIFM DIRECTIVE); (B) IF IN THE UNITED KINGDOM, 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, AS AMENDED ("THE ORDER") OR ARE PERSONS FALLING WITHIN ARTICLE 49(2) OF THE ORDER AND ARE "QUALIFIED INVESTORS" AS DEFINED IN SECTION 86 OF THE FINANCIAL SERVICES AND MARKETS ACT 2000, AS AMENDED; (C) IF OUTSIDE THE UNITED STATES, PERSONS WHO ARE NON-US PERSONS (AS DEFINED IN REGULATION S ("REGULATION S") UNDER THE US SECURITIES ACT OF 1933, AS AMENDED (THE "US SECURITIES ACT"), IN RELIANCE UPON REGULATION S; AND (D) IF IN THE UNITED STATES OR US PERSONS (AS DEFINED IN REGULATION S), PERSONS REASONABLY BELIEVED TO BE "QUALIFIED INSTITUTIONAL BUYERS" AS DEFINED IN RULE 144A UNDER THE US SECURITIES ACT ("QIBs") WHO ARE ALSO "QUALIFIED PURCHASERS" AS DEFINED IN SECTION 2(a)(51) OF THE US INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE "US INVESTMENT COMPANY ACT"), AND THE RELATED RULES THEREUNDER ("QPs") (E) ANY OTHER PERSON TO WHOM IT MAY OTHERWISE LAWFULLY BE COMMUNICATED; AND, IN EACH CASE, (F) HAVE BEEN INVITED TO PARTICIPATE IN THE FIRM PLACING AND THE CONDITIONAL PLACING BY THE BANKS (ALL SUCH PERSONS TOGETHER BEING REFERRED TO AS "RELEVANT PERSONS").
THE TERMS AND CONDITIONS SET OUT HEREIN MUST NOT BE ACTED ON OR RELIED ON BY PERSONS WHO ARE NOT RELEVANT PERSONS. ANY PERSON WHO HAS RECEIVED OR IS DISTRIBUTING THESE TERMS AND CONDITIONS MUST SATISFY THEMSELVES THAT IT IS LAWFUL TO DO SO. ANY INVESTMENT OR INVESTMENT ACTIVITY TO WHICH THESE TERMS AND CONDITIONS RELATE IS AVAILABLE ONLY TO RELEVANT PERSONS AND WILL BE ENGAGED IN ONLY WITH RELEVANT PERSONS. THESE TERMS AND CONDITIONS DO NOT THEMSELVES CONSTITUTE AN OFFER FOR SALE OR SUBSCRIPTION OF ANY SECURITIES IN KENNEDY WILSON EUROPE REAL ESTATE PLC (THE "COMPANY"). THE SECURITIES HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE US SECURITIES ACT OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES AND THE SECURITIES MAY NOT BE OFFERED OR SOLD DIRECTLY OR INDIRECTLY IN, INTO OR WITHIN THE UNITED STATES, OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, US PERSONS, EXCEPT PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE US SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS AND UNDER CIRCUMSTANCES THAT WILL NOT REQUIRE THE COMPANY TO REGISTER UNDER THE US INVESTMENT COMPANY ACT. THE COMPANY HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE US INVESTMENT COMPANY ACT AND INVESTORS WILL NOT BE ENTITLED TO THE BENEFITS OF THAT ACT. THERE WILL BE NO PUBLIC OFFERING OF THE SECURITIES IN THE UNITED STATES.
Unless otherwise defined in these terms and conditions, capitalised terms used in these terms and conditions shall have the meaning given to them in the draft prospectus dated 2 October 2014 prepared by, and relating to, the Company (the "Placing Proof") in connection with the proposed offer and sale of the Firm Placed Shares and the Open Offer Shares to be issued in connection with the Firm Placing and the Conditional Placing. The Placing Proof has not been approved by the FCA under section 87A of the FSMA.
If a person indicates to the Banks that it wishes to participate in the Firm Placing or the Conditional Placing (together, the "Placings") by making an oral offer to acquire Firm Placed Shares pursuant to the Firm Placing and Open Offer Shares pursuant to the terms of the Conditional Placing (the Firm Placed Shares and the Open Offer Shares together, the "Placing Shares") (each such person, a "Placee") it will be deemed to have read and understood these terms and conditions and the Placing Proof in their entirety and to be making such offer on the terms and conditions, and to be providing the representations, warranties, indemnities, agreements and acknowledgements, contained in these terms and conditions, the Placing Proof, the placing letter to be completed and signed by Placees in connection with the Placings (the "Placing Letter") and, if the Placee is located in the United States or is, or is acting for the account or benefit of, a US Person, in the US investor letter in the form provided (the "US Investor Letter"). In particular, each such Placee represents, warrants and acknowledges that it is a Relevant Person and undertakes that it will acquire, hold, manage and dispose of any of the Placing Shares that are allocated to it for the purposes of its business only. Further, each such Placee represents, warrants and agrees that: (a) if it is a financial intermediary, as that term is used in Article 3(2) of the Prospectus Directive, that the Placing Shares acquired by and/or subscribed for by it in the Issue 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 Global Co-ordinators (for themselves and on behalf of the other Banks) has been given to each such proposed offer or resale and it will sign and return the form of acceptance contained in the Placing Letter; and (b) it is and, at the time the Placing Shares are acquired, will be either (i) outside the United States and not a US Person, or acting for the account or benefit of a US Person, and acquiring the Placing Shares in an offshore transaction in accordance with Rule 903 and Rule 904 of Regulation S for its own account or purchasing the Placing Shares for an account with respect to which it exercises sole investment discretion and it will sign and return the form of acceptance contained in the Placing Letter; or (ii) a QIB who is also a QP or purchasing Placing Shares on behalf of a QIB who is also a QP, and it will sign and return the form of acceptance in the Placing Letter and the US Investor Letter referred to therein. These terms and conditions do not constitute an offer to sell or issue or the invitation or solicitation of an offer to buy or acquire Placing Shares in any jurisdiction including, without limitation, the United States, Australia, Canada, Japan, Switzerland, the Republic of South Africa or any other Excluded Territory.
Subject to certain exceptions, these terms and conditions and the information contained herein are not for release, publication or distribution, directly or indirectly, in whole or in part, to persons in the United States, Australia, Canada, Japan, Switzerland, the Republic of South Africa or any other Excluded Territory.
In particular, the Placing Shares referred to in these terms and conditions have not been and will not be registered under the US Securities Act or the securities laws of any state or other jurisdiction of the United States and the Placing Shares may not be offered or sold directly or indirectly in, into or within the United States, or to, or for the account or benefit of, US Persons, except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the US Securities Act and applicable state securities laws and under circumstances that will not require the Company to register under the US Investment Company Act. The Company has not been, and will not be, registered under the US Investment Company Act and investors will not be entitled to the benefits of that Act. There will be no public offering of the Placing Shares in the United States. Subject to certain exceptions, no offering of the Placing Shares will be made in the United States. The Placing Shares have not been approved or disapproved by the US Securities and Exchange Commission, any state securities commission in the United States or any other regulatory authority in the United States, nor have any of the foregoing authorities passed upon or endorsed the merits of the Placings or the accuracy or adequacy of these terms and conditions. Any representation to the contrary is a criminal offence in the United States.
The distribution of these terms and conditions and the offer and/or placing of Placing Shares in certain other jurisdictions may be restricted by law. No action has been taken by the Banks or the Company or KW Investment Management Ltd, the Company's investment manager (the "Investment Manager"), that would permit an offer of the Placing Shares or possession or distribution of these terms and conditions or any other offering or publicity material relating to the Placing Shares in any jurisdiction where action for that purpose is required, save as mentioned above. Persons into whose possession these terms and conditions come are required by the Banks, the Company and the Investment Manager to inform themselves about and to observe any such restrictions.
Each Placee's commitments will be made solely on the basis of the information set out in the Placing Letter and the Placing Proof and the pricing information expected to be dated on or around 2 October 2014 (the "Pricing Information") which will be provided to each Placee. Each Placee, by participating in the Placings, agrees that it has neither received nor relied on any other information, representation, warranty or statement made by or on behalf of any of the Banks, the Company or the Investment Manager and none of the Banks, the Company, the Investment Manager or any person acting on such person's behalf nor any of their respective affiliates has or shall have liability for any Placee's decision to accept this invitation to participate in the Placings based on any other information, representation, warranty or statement. 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 Placings. Nothing in this paragraph shall exclude the liability of any person for fraudulent misrepresentation.
No undertaking, representation, warranty or any other assurance, express or implied, is made or given by or on behalf of any of the Banks, the Investment Manager or any of their respective affiliates, their respective directors, officers, employees, agents, advisers, or any other person, as to the accuracy, completeness, correctness or fairness of the information or opinions contained in the Placing Proof or the Pricing Information or for any other statement made or purported to be made by any of them, or on behalf of them, in connection with the Company or the Issue and no such person shall have any responsibility or liability for any such information or opinions or for any errors or omissions. Accordingly, save to the extent permitted by law, no liability whatsoever is accepted by the Investment Manager, each of the Banks or any of such persons' directors, officers, employees or affiliates or any other person for any loss howsoever arising, directly or indirectly, from any use of this document or such information or opinions contained herein or otherwise arising in connection with the Placing Proof or the Pricing Information.
These terms and conditions do not constitute or form part of, and should not be construed as, any offer or invitation to sell or issue, or any solicitation of any offer to purchase or subscribe for, any Placing Shares or any other securities or an inducement to enter into investment activity, nor shall it (or any part of it), nor the fact of its distribution, form the basis of, or be relied on in connection with, any investment activity. No statement in these terms and conditions is intended to be nor may be construed as a profit or net asset forecast and no statement made herein should be interpreted to mean that the Company's profits or earnings per share or net assets for any future period will necessarily match or exceed historical published profits or earnings per share or net assets of the Company.
Proposed Firm Placing of Firm Placed Shares and Conditional Placing of Open Offer Shares subject to clawback in respect of valid applications by Qualifying Shareholders pursuant to the Open Offer
Placees are referred to these terms and conditions, the Placing Proof and the Pricing Information containing details of, inter alia, the Issue. These terms and conditions, the Placing Proof and the Pricing Information have been prepared and issued by the Company, and each of these documents is the sole responsibility of the Company.
Firm Placing
The Firm Placed Shares are not subject to clawback and do not form part of the Conditional Placing and Open Offer. The Firm Placing is subject to the same conditions, save for the conditions relating to Open Offer Admission, and termination rights which apply to the Conditional Placing and Open Offer. Subject to waiver or satisfaction of the conditions relating to the Firm Placing and the Firm Placing not being terminated, up to 9,982,431 Firm Placed Shares will be issued to placees procured by the Banks or failing which, to the Banks, in each case at the Issue Price, which will be jointly agreed by the Joint Global Co-ordinators (for themselves and on behalf of the Banks) and the Company and the Investment Manager and recorded in the pricing supplement to the Placing Agreement which forms a schedule to the Placing Agreement (the "Pricing Supplement").
Application will be made to the FCA for the Firm Placed Shares to be issued pursuant to the Firm Placing to be admitted to listing on the premium listing segment of the Official List and application will be made to the London Stock Exchange for the Firm Placed Shares to be issued pursuant to the Firm Placing to be admitted to trading on its main market for listed securities. Subject to the conditions below being satisfied, it is expected that Firm Placing Admission will become effective on 8 October 2014 and that dealings for normal settlement in the Firm Placed Shares will commence at 8.00 a.m. on the same day. The Firm Placed Shares, when issued and fully paid, will be identical to, and rank pari passu with, the Existing Ordinary Shares, including the right to receive all dividends and other distributions declared, made or paid on the Existing Ordinary Shares by reference to a record date on or after Firm Placing Admission.
The Firm Placees will not be entitled to participate in the Open Offer in respect of Firm Placed Shares.
The Firm Placing is conditional, inter alia, upon:
(i) Firm Placing Admission becoming effective by not later than 8.00 a.m. on 8 October 2014 (or such later time and/or date as the Company and the Investment Manager may agree with the Joint Global Co-ordinators (for themselves and on behalf of the other Banks), not being later than 8.00 a.m. on 15 October 2014); and
(ii) the Placing Agreement having become unconditional in all respects, save for the conditions relating to Open Offer Admission, and not having been terminated in accordance with its terms.
The Firm Placing is not conditional on completion of the Conditional Placing and Open Offer.
Conditional Placing and Open Offer
The Banks have agreed, pursuant to the Placing Agreement and subject to the execution of a Pricing Supplement following the institutional Bookbuild, to use reasonable endeavours to conditionally place, as agent for the Company, all the Open Offer Shares (other than the Committed Shares) at the Issue Price with Placees. The commitments of Placees are subject to clawback in respect of valid applications for Open Offer Shares by Qualifying Shareholders pursuant to the Open Offer. Subject to waiver or satisfaction of the conditions relating to Open Offer Admission and the Conditional Placing and Open Offer not being terminated, any Open Offer Shares which are not applied for in respect of the Open Offer will be issued to Placees procured by the Banks, or failing which, to the Banks, in each case at the Issue Price, with the net proceeds retained for the benefit of the Company.
Qualifying Shareholders are being given the opportunity to apply for the Open Offer Shares at the Issue Price on and subject to the terms and conditions of the Open Offer, pro rata to their holdings of Existing Ordinary Shares on the Record Date. Fractions of New Ordinary Shares will not be allotted and each Qualifying Shareholder's entitlement under the Open Offer will be rounded down to the nearest whole number. Fractional entitlements will be aggregated and will be placed pursuant to the Placing for the benefit of the Company.
The New Ordinary Shares issued under the Conditional Placing and Open Offer, when issued and fully paid, will be identical to, and rank pari passu with, the Existing Ordinary Shares, including the right to receive all dividends and other distributions declared, made or paid on the Existing Ordinary Shares by reference to a record date on or after Open Offer Admission.
Application will be made to the FCA for the Open Offer Shares to be issued under the Conditional Placing and Open Offer to be admitted to the premium listing segment of the Official List and application will be made to the London Stock Exchange for the Open Offer to be issued under the Conditional Placing and Open Offer to be admitted to trading on its main market for listed securities. Subject to the conditions below being satisfied, it is expected that Open Offer Admission will become effective on 23 October 2014 and that dealings for normal settlement in the New Ordinary Shares will commence at 8.00 a.m. on the same day.
The Conditional Placing and Open Offer are conditional, inter alia, upon:
(i) Firm Placing Admission occurring not later than 8.00 a.m. on 8 October 2014 (or such later time and/or date (not later than 8.00 a.m. on 15 October 2014) as the Company and the Investment Manager may agree with the Joint Global Co-ordinators (for themselves and on behalf of the other Banks);
(ii) Open Offer Admission occurring not later than 8.00 a.m. on 23 October 2014 (or such later time and/or date (not later than 8.00 a.m. on 30 October 2014) as the Company and the Investment Manager may agree with the Joint Global Co-ordinators (for themselves and on behalf of the other Banks); and
(iii) the Placing Agreement having become unconditional in all respects and not having been terminated in accordance with its terms.
The Conditional Placing and Open Offer are conditional on completion of the Firm Placing.
The full terms and conditions of the Open Offer will be contained in the final prospectus (the "Final Prospectus") to be issued by the Company in connection with the Issue and Admission and, in respect of Qualifying Shareholders who hold their Existing Ordinary Shares in certificated form, in the Application Form. The Final Prospectus to be issued by the Company will be approved by the FCA under section 87A of the FSMA and made available to the public in accordance with Rule 3.2 of the Prospectus Rules made under Part VI of the FSMA.
Bookbuild of the Placings (the "Bookbuild")
Commencing on 2 October 2014, the Banks will be conducting the Bookbuild to determine demand for participation in the Placings. The Banks will seek to procure Placees as agent for the Company as part of this Bookbuild. These terms and conditions give details of the terms and conditions of, and the mechanics of participation in, the Bookbuild and Placings.
Principal terms of the Bookbuild
a) By participating in the Bookbuild and the Placings, Placees will be deemed to have read and understood these terms and conditions, the Placing Proof and the Pricing Information in their entirety and to be participating and making an offer for any Placing Shares on these terms and conditions, and to be providing the representations, warranties, indemnities, acknowledgements and undertakings, contained in these terms and conditions, the Placing Letter and, if the Placee is located in the United States or is, or is acting for the account or benefit of, a US Person, in the US Investor Letter.
b) The Banks are arranging the Placings severally, and not jointly, nor jointly and severally, as agents of the Company.
c) Participation in the Placings will only be available to persons who are Relevant Persons and who may lawfully be invited to participate by the Banks. The Banks and their respective affiliates are entitled to offer to subscribe for Placing Shares as principal in the Bookbuild.
d) Any offer to subscribe for Placing Shares should state the number of Firm Placed Shares and Open Offer Shares which the Placee wishes to acquire or the total monetary amount which it is offering to acquire Placing Shares at the Issue Price which is ultimately established by the Company and the Banks, or at a price up to a price limit specified in its bid.
e) The Bookbuild will establish a single price for the Firm Placed Shares and the Open Offer Shares. The Issue Price will be jointly agreed between the Joint Global Co-ordinators (for themselves and on behalf of the Banks) and the Company and the Investment Manager following completion of the Bookbuild and will be payable to the Banks by the Placees in respect of the Placing Shares allocated to them. Any discount to the market price of the Ordinary Shares has been determined within the limits specified by the Listing Rules as published by the FCA pursuant to Part VI of FSMA.
f) The Bookbuild is expected to close on 3 October 2014. The timing of the closing of the books, pricing and allocations is at the discretion of the Joint Global Co-ordinators (subject to consultation with the other Banks) following consultation with the Company and the Investment Manager (the "Allocation Policy"). The Banks may, at their sole discretion, accept offers to subscribe for Placing Shares that are received after the Bookbuild has closed.
g) An offer to subscribe for Placing Shares in the Bookbuild will be made on the basis of these terms and conditions, the Placing Proof and the Pricing Information and will be legally binding on the Placee by which, or on behalf of which, it is made and will not be capable of variation or revocation after the close of the Bookbuild.
h) Subject to paragraph (g) above, the Banks reserve the right not to accept an offer to subscribe for Placing Shares, either in whole or in part, on the basis of the Allocation Policy and may scale down any offer to subscribe for Placing Shares, Firm Placed Shares or Open Offer Shares for this purpose. The acceptance of any offer to subscribe for Placing Shares shall be at the Banks' absolute discretion.
i) If successful, each Placee's allocation will be confirmed to it by the Banks following the close of the Bookbuild, and a Placing Letter will be dispatched as soon as possible thereafter. Oral or written confirmation (at the Banks' discretion) from the Banks to such Placee, following completion of the Bookbuild, will constitute a legally binding commitment upon such Placee, in favour of the Banks and the Company to acquire the number of Placing Shares allocated to it (and in the respective numbers of Firm Placed Shares and Open Offer Shares (subject to clawback) so allocated) on the terms and conditions set out herein, in the Placing Letter, and if the Placee is located in the United States or is, or is acting for the account or benefit of, a US Person, in the US Investor Letter, and in accordance with the Company's Articles of Association. Each Placee will confirm such legally binding commitment by completing, signing and returning a form of acceptance contained in the Placing Letter in accordance with the instructions therein, and, if the Placee is located in the United States or is, or is acting for the account or benefit of, a US Person, a US Investor Letter, and should a Placee fail to do so the Banks will retain the right to cancel their allocation or terminate such legally binding commitment. Each Placee will have an immediate, separate, irrevocable and binding obligation, owed to the Banks, to pay to the Banks (or as the Banks may direct) as agent for the Company in cleared funds an amount equal to the product of the Issue Price and the sum of the number of Firm Placed Shares and once apportioned after clawback (in accordance with the procedure described in the paragraph entitled 'Placing Procedure' below), the Open Offer Shares, which such Placee has agreed to acquire.
j) The Company will make a further announcement following the close of the Bookbuild detailing the Issue Price and the number of Placing Shares to be issued (the "Pricing Announcement"). It is expected that such Pricing Announcement will be made as soon as practicable after the close of the Bookbuild.
k) Irrespective of the time at which a Placee's allocation(s) pursuant to the Placings is/are confirmed, settlement for all Placing Shares to be acquired pursuant to the Firm Placing will be required to be made at the time specified and all Placing Shares to be acquired pursuant to the Conditional Placing will be required to made at the later time specified, on the basis explained below under the paragraph entitled "Registration and Settlement".
l) No commissions are payable to Placees in respect of the Firm Placing or the Conditional Placing.
All obligations under the Placings will be subject to the fulfilment of the conditions referred to below under the paragraph entitled "Conditions of the Placings and Termination of the Placing Agreement".
Conditions of the Placings and Termination of the Placing Agreement
Placees will only be called on to acquire Placing Shares if the obligations of the Banks under the Placing Agreement have become unconditional in all respects and the Banks have not terminated the Placing Agreement prior to Firm Placing Admission or Open Offer Admission (as the case may be).
The Banks' obligations under the Placing Agreement in respect of the Firm Placing and the Conditional Placing and Open Offer are conditional upon, inter alia:
(a) the Final Prospectus being approved pursuant to the Listing Rules and the Prospectus Rules by the FCA not later than 6.00 p.m. on 3 October 2014 (or such later time and/or date as the Sponsor (acting on behalf of itself and the other Banks) may agree with the Company and the Investment Manager;
(b) in relation to the Firm Placing and the Conditional Placing and Open Offer, Firm Placing Admission occurring not later than 8.00 a.m. on 8 October 2014 (or such later time and/or date as the Company and the Investment Manager may agree with the Joint Global Co-ordinators (for themselves and on behalf of the other Banks), not being later than 8.00 a.m. on 15 October 2014);
(c) in relation to the Conditional Placing and Open Offer only, Open Offer Admission occurring not later than 8.00 a.m. on 23 October 2014 (or such later time and/or date as the Company and the Investment Manager may agree with the Joint Global Co-ordinators (for themselves and on behalf of the other Banks), not being later than 8.00 a.m. on 30 October 2014);
(d) the Company and the Investment Manager having complied with all their respective obligations and having satisfied all conditions to be satisfied by any of them in relation to Firm Placing Admission (in respect of the Firm Placing) or Open Offer Admission (in respect of the Conditional Placing and Open Offer) (as the case may be), in all respects which, in the good faith opinion of the Joint Global Co-ordinators (for themselves and on behalf of the other Banks), are material under the Placing Agreement or under the terms and conditions of the Firm Placing or the Conditional Placing and Open Offer (as the case may be) which fall to be performed or satisfied on or prior to Firm Placing Admission (in respect of the Firm Placing) and Open Offer Admission (in respect of the Conditional Placing and Open Offer), respectively;
(e) the warranties, undertakings and covenants on the part of the Company and the Investment Manager contained or referred to in the Placing Agreement being true, accurate and not misleading on and as of the date of the Placing Agreement, the time of execution of the Pricing Supplement, the applicable time being 8.00 p.m. (BST) on 2 October 2014 or such other time as agreed by the Company and the Joint Global Co-ordinators (for themselves and on behalf of the other Banks), Firm Placing Admission (in the case of the Firm Placing) and Open Offer Admission (in the case of the Conditional Placing and Open Offer) and the date of any supplementary prospectus, as though they had been given and made on such dates by references to the facts and circumstances then subsisting, provided that this condition shall still be met if, at each relevant time, any of the warranties, either singly or in aggregate, are not true and accurate in any respect or are misleading in any respect, but in the good faith opinion of the Joint Global Co-ordinators (for themselves and on behalf of the other Banks) it is still practical and advisable to proceed with the Firm Placing or the Conditional Placing and Open Offer (as the case may be);
(f) no event referred to in section 87G of FSMA arising between the date of publication of the Final Prospectus and, in the case of the Firm Placing, Firm Placing Admission, and, in the case of the Conditional Placing and Open Offer, Open Offer Admission, and no supplementary prospectus being published by or on behalf of the Company prior to Firm Placing Admission (in respect of the Firm Placing) and Open Offer Admission (in respect of the Conditional Placing and Open Offer) that, in each case, in the good faith opinion of the Joint Global Co-ordinators (for themselves and on behalf of the other Banks), would make it impracticable or inadvisable to market the Firm Placed Shares (in respect of the Firm Placing) or the Open Offer Shares (in respect of the Conditional Placing and Open Offer), to proceed with the offer or the delivery of the Firm Placed Shares (in respect of the Firm Placing) or the Open Offer Shares (in respect of the Conditional Placing and Open Offer) or to enforce contracts for the sale of the Firm Placed Shares (in respect of the Firm Placing) or the Open Offer Shares (in respect of the Conditional Placing and Open Offer) pursuant to the Placing Agreement or as contemplated by the Final Prospectus; and
(g) the Issue Price having been determined and the Pricing Supplement having been executed by all parties to the Placing Agreement by no later than 6.00 p.m. on 3 October 2014 (or such later time and/or date as the Company may agree with the Joint Global Co-ordinators (for themselves and on behalf of the Banks),
(all such conditions included in the Placing Agreement being together the "Conditions").
The Placing Agreement can be terminated at any time before Firm Placing Admission (in respect of the Firm Placing or the Conditional Placing and Open Offer) or Open Offer Admission (in respect of the Conditional Placing and Open Offer only) (as the case may be) by the Joint Global Co-ordinators (for themselves and on behalf of the other Banks) giving notice to the Company in certain circumstances, including (but not limited to) where (a) any of the relevant conditions in the Placing Agreement are not satisfied at the required times and continue not to be satisfied on Firm Placing Admission (in respect of the Firm Placing) or Open Offer Admission (in respect of the Conditional Placing and Open Offer) (as the case may be) (unless waived); (b) any matter has arisen which would require the publication of a supplementary prospectus; (c) there has been a breach by the Company or the Investment Manager of any of the warranties, undertakings or covenants in the Placing Agreement or any of the warranties has ceased to be true, accurate and not misleading, and which, in the good faith opinion of the Joint Global Co-ordinators is singly or in the aggregate material in the context of the Issue, the underwriting of the Firm Placed Shares (in respect of the Firm Placing) and the Open Offer Shares (in respect of the Conditional Placing and Open Offer) (as the case may be) and/or is such as to make it impracticable or inadvisable to proceed with the Issue, Firm Placing Admission (in respect of the Firm Placing) or Open Offer Admission (in respect of the Conditional Placing and Open Offer) (as the case may be) or to underwrite, market or enforce contracts for the sale of, any New Ordinary Shares.
If any Condition has not been satisfied, has not been waived by the Banks or has become incapable of being satisfied (and is not waived by the Banks as described below) or if the Placing Agreement is terminated, all obligations under these terms and conditions and/or any Placing Letters will automatically terminate. By participating in the Bookbuild and the Placings, each Placee agrees that its rights and obligations hereunder are conditional upon the Placing Agreement becoming unconditional in all respects in respect of the Firm Placing (in respect of Firm Placed Shares subscribed for) and/or in respect of the Conditional Placing and Open Offer (in respect of Open Offer Shares subscribed for) and that its rights and obligations will terminate only in the circumstances described above and will not be capable of rescission or termination by it after oral or written confirmation by the Banks (at the Banks' discretion) following the close of the Bookbuild.
The Joint Global Co-ordinators may (for themselves and on behalf of the other Banks) in writing waive fulfilment of certain of the Conditions in the Placing Agreement or extend the time provided for fulfilment of such Conditions. Any such extension or waiver will not affect Placees' commitments as set out in these terms and conditions, the Placing Letter or, if the Placee is located in the United States or is, or is acting for the account or benefit of, a US Person, in the US Investor Letter. None of the Banks, the Investment Manager nor the Company shall have any liability to any Placee (or to any other person whether acting on behalf of a Placee or otherwise) in respect of any decision made as to whether or not to waive or to extend the time and/or date for the fulfilment of any condition in the Placing Agreement.
By participating in the Placings each Placee agrees that the exercise by the Company, the Investment Manager or the Banks of any right or other discretion under the Placing Agreement shall be within the absolute discretion of the Company, the Investment Manager and the Banks (as the case may be) and that neither the Company, the Investment Manager nor the Banks need make any reference to such Placee and that neither the Company, the Investment Manager nor the Banks shall have any liability to such Placee (or to any other person whether acting on behalf of a Placee or otherwise) whatsoever in connection with any such exercise.
Withdrawal Rights
Placees acknowledge that their acceptance of any of the Placing Shares is not by way of acceptance of the public offer made in the Final Prospectus and Application Form but is by way of a collateral contract and as such section 87Q of the FSMA does not entitle Placees to withdraw in the event that the Company publishes a supplementary prospectus in connection with the Issue. If, however, a Placee is entitled to withdraw, by accepting the offer of a placing participation, the Placee agrees to confirm their acceptance of the offer on the terms contained in the Placing Letter on the same terms immediately after such right of withdrawal arises.
Placing Procedure
Placees shall acquire the Firm Placed Shares and Open Offer Shares to be issued pursuant to the Placings (after clawback) and any allocation of the Firm Placed Shares and Open Offer Shares (subject to clawback) to be issued pursuant to the Placings will be notified to them on 3 October 2014 (or such other time and/or date as the Company, the Investment Manager and the Joint Global Co-ordinators (for themselves and on behalf of the other Banks) may agree).
Placees will be called upon to subscribe for, and shall subscribe for, the Open Offer Shares only to the extent that valid applications by Qualifying Shareholders under the Open Offer are not received by 11.00 a.m. on 20 October 2014 (or by such later time and/or date as the Company and the Investment Manager may agree with the Joint Global Co-ordinators (for themselves and on behalf of the other Banks), or if applications have otherwise not been deemed to be valid in accordance with the Final Prospectus and the Application Form.
Payment in full for any Firm Placed Shares and Open Offer Shares so allocated in respect of the Placings at the Issue Price must be made by no later than 4.30 p.m. on 20 October 2014 (or such other time and/or date as shall be notified to each Placee by the relevant Bank) on the closing date for the Firm Placing and the closing date for the Open Offer, respectively (or such other time and/or date as the Company, the Investment Manager and the Joint Global Co-ordinators (for themselves and on behalf of the other Banks) may agree). The Banks will notify Placees if any of the dates in these terms and conditions should change, including as a result of delay in the posting of the Final Prospectus, the Application Forms or the crediting of the Open Offer Entitlements in CREST or the production of a supplementary prospectus or otherwise.
Registration and Settlement
Settlement of transactions in the Placing Shares following Firm Placing Admission or Open Offer Admission will take place within the CREST system, subject to certain exceptions. The Banks 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 possible within the CREST system within the timetable set out in the Placing Proof and/or Final Prospectus or would not be consistent with the regulatory requirements in the Placee's jurisdiction. Each Placee will be deemed to agree that it will do all things necessary to ensure that delivery and payment is completed in accordance with either the standing CREST or certificated settlement instructions which they have in place with the relevant Bank.
Each Placee allocated any Firm Placed Shares and conditionally allocated any Open Offer Shares in the Placings will be sent a Placing Letter confirming the contract concluded upon acceptance by the Banks of such Placee's earlier oral offer to subscribe for Placing Shares and also confirming the number of Firm Placed Shares and Open Offer Shares conditionally allocated to it, the Issue Price and the aggregate amount owed by such Placee to the Banks. Settlement for the Firm Placing will be on a T+3 and delivery versus payment basis and settlement is expected to take place on 8 October 2014. Settlement for the Conditional Placing will be on a T+16 and delivery versus payment basis and settlement is expected to take place on 23 October 2014. Interest is chargeable daily on payments to the extent that value is received after the due date from Placees at the rate of two percentage points above prevailing LIBOR. Each Placee is deemed to agree that if it does not comply with these obligations, the Banks may sell any or all of the Placing Shares allocated to it on its behalf and retain from the proceeds, for its own account and benefit, an amount equal to the aggregate amount owed by the Placee plus any interest due. By communicating a bid for Placing Shares, each Placee confers on the Banks all such authorities and powers necessary to carry out any such sale and agrees to ratify and confirm all actions which the Banks lawfully take in pursuance of such sale. The relevant Placee will, however, remain liable for any shortfall below the aggregate amount owed by it and may be required to bear any stamp duty or stamp duty reserve tax (together with any interest or penalties) which may arise upon any transaction in the 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 Placing Letter is copied and delivered immediately to the relevant person within that organisation.
Acceptance
By participating in the Placings and/or completing (as applicable), signing and returning the form of acceptance attached to the Placing Letter, a Placee:
1. undertakes to the Banks and the Company, in consideration of its allocation of a placing participation, to subscribe at the Issue Price for any Placing Shares comprised in its allocation for which it is required to subscribe pursuant to these terms and conditions and/or the Placing Letter, subject to clawback of the Open Offer Shares in respect of valid applications from Qualifying Shareholders in the Open Offer;
2. confirms that it has read these terms and conditions, the Placing Proof and the Pricing Information and that it has neither received nor relied on any information given or any investigations, representations, warranties or statements made at any time by any person in connection with Admission, the Placings, the Company, the New Ordinary Shares, or otherwise, other than the information contained in these terms and conditions, the Placing Proof, the Pricing Information and the Placing Letter and that in accepting the offer of its placing participation it will be relying solely on the information contained in these terms and conditions, the Placing Proof, the Pricing Information and the Placing Letter, receipt of which is hereby acknowledged, and undertakes not to redistribute such documents;
3. acknowledges that the content of these terms and conditions, the Placing Proof and the Pricing Informationare exclusively the responsibility of the Company and agrees that none of the Banks or the Investment Manager, nor any of their respective affiliates nor any person acting on behalf of any of such persons will be responsible for or shall have liability for any information, representation or statements contained therein or any information previously published by or on behalf of the Company, and none of the Banks, the Investment Manager or the Company, or any of their respective affiliates or any person acting on behalf of any such person will be responsible or liable for a Placee's decision to accept its placing participation;
4. confirms that (i) it has not relied on, and will not rely on, any information relating to the Company contained or which may be contained in any research report or investor presentation prepared or which may be prepared by any of the Banks or any of their affiliates; (ii) none of the Banks, their affiliates or any person acting on behalf of any of such persons has or shall have any responsibility or liability for public information relating to the Company; (iii) none of the Banks, their affiliates or any person acting on behalf of any of such persons has or shall have any responsibility or liability for any additional information that has otherwise been made available to it, whether at the date of publication of such information, the date of these terms and conditions or otherwise; and that (iv) none of the Banks, their affiliates or any person acting on behalf of any of such persons makes any representation or warranty, express or implied, as to the truth, accuracy or completeness of any such information referred to in (i) to (iii) above, whether at the date of publication of such information, the date of this letter or otherwise;
5. each Placee acknowledges and agrees that it has made its own assessment of the Company and has relied on its own investigation of the business, financial or other position of the Company in deciding to participate in the Placings;
6. represents and warrants that it is acting as principal only in respect of the Placings or, if it is acting for any other person (i) it is duly authorised to do so and has full power to make the acknowledgments, representations and agreements herein on behalf of each such person, (ii) it is and will remain liable to the Company and the Banks for the performance of all its obligations as a Placee in respect of the Placings (regardless of the fact that it is acting for another person), (iii) if it is in the United Kingdom, it is a person (a) who has professional experience in matters relating to investments and who falls within the definition of "investment professionals" in Article 19(5) of the Order or who falls within Article 49(2) of the Order, and (b) is a "qualified investor" as defined in section 86 of the FSMA, (iv) if it is in a member state of the EEA, it is a "qualified investor" within the meaning of Article 2(1)(e) of the Prospectus Directive, (v) if domiciled or having a registered office in an EEA state, it is either a state which has not implemented the AIFM Directive or is one of the following: Belgium, Ireland, Luxembourg, the Netherlands, Spain or the United Kingdom (and, in the case of Belgium, Ireland, Luxembourg or the Netherlands it is a professional investor (as that term is defined in the AIFM Directive), and (vi) if it is a financial intermediary, as that term is used in Article 3(2) of the Prospectus Directive, the Placing Shares subscribed by it in the Placings are not being acquired on a non-discretionary basis for, or on behalf of, nor will they be acquired with a view to their offer or resale to persons in a member state of the EEA in circumstances which may give rise to an offer of shares to the public, other than their offer or resale to qualified investors within the meaning of Article 2(1)(e) of the Prospectus Directive in a member state of the EEA which has implemented the Prospectus Directive;
7. represents and warrants that if it has received any confidential price sensitive information about the Company in advance of the Placings, 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, prior to the information being made generally available;
8. represents and warrants that it has complied with its obligations in connection with money laundering and terrorist financing under the Proceeds of Crime Act 2002, the Terrorism Act 2000, the Terrorism Act 2006 and the Money Laundering Regulations 2007 and the Criminal Justice (Money Laundering and Terrorism Financing) Act 2010 and any related or similar rules, regulations or guidelines, issued, administered or enforced by any government agency having jurisdiction in respect thereof (the "Regulations") and, if it is making payment on behalf of a third party, it has obtained and recorded satisfactory evidence to verify the identity of the third party as may be required by the Regulations;
9. represents and warrants that it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of FSMA) relating to the Placing Shares in circumstances in which section 21(1) of FSMA does not require approval of the communication by an authorised person;
10. represents and warrants that it is not acting in concert (within the meaning given in the City Code on Takeovers and Mergers) with any other Placee or any other person in relation to the Company;
11. represents and warrants that it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Placing Shares in, from or otherwise involving the United Kingdom;
12. represents and warrants that it and any person acting on its behalf is entitled to acquire the Placing Shares under the laws of all relevant jurisdictions and that it has all necessary capacity and has obtained all necessary consents and authorities to enable it to commit to this participation in the Placings 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 these terms and conditions);
13. unless otherwise agreed by the Company in its sole discretion (after agreement with the Banks), represents and warrants that it is not, and at the time the Placing Shares are subscribed for and purchased will not be, subscribing on behalf of a resident of Australia, Canada, Japan, Switzerland, the Republic of South Africa or any other Excluded Territory;
14. represents and warrants that it does not expect the Banks to have any duties or responsibilities towards it for providing protections afforded to clients under the rules of the FCA Handbook (the "Rules") or advising it with regard to the Placing Shares and that it is not, and will not be, a client of any of the Banks as defined by the Rules. Likewise, any payment by it will not be treated as client money governed by the Rules;
15. represents and warrants that any exercise by the Joint Global Co-ordinators (for themselves and on behalf of the other Banks) of any right to terminate the Placing Agreement or of other rights or discretions under the Placing Agreement or the Placings or the terms of the Placing Letter shall be within the Joint Global Co-ordinators' (for themselves and on behalf of the other Banks) absolute discretion and the Joint Global Co-ordinators (for themselves and on behalf of the other Banks) shall not have any liability to it whatsoever in relation to any decision to exercise or not to exercise any such right or the timing thereof;
16. represents and warrants that neither it, nor the person specified by it for registration as a holder of Placing Shares is, or is acting as nominee(s) or agent(s) for, and that the Placing Shares will not be allotted to, a person/person(s) whose business either is or includes issuing depository receipts or the provision of clearance services and therefore that the issue to the Placee, or the person specified by the Placee for registration as holder, of the Placing Shares will not give rise to a liability under any of sections 67, 70, 93 and 96 of the Finance Act 1986 (depositary receipts and clearance services) and that the Placing Shares are not being acquired in connection with arrangements to issue depository receipts or to issue or transfer Placing Shares into a clearance system;
17. confirms that the person who it specifies for registration as holder of the Placing Shares will be (i) itself or (ii) its nominee, as the case may be, and acknowledges that the Banks and the Company will not be responsible for any liability to pay stamp duty or stamp duty reserve tax (together with interest and penalties) resulting from a failure to observe this requirement; and each Placee and any person acting on behalf of such Placee agrees to participate in the Placings on the basis that the Placing Shares will be allotted to a CREST stock account of one of the Banks who will hold them as nominee on behalf of the Placee until settlement in accordance with its standing settlement instructions with it;
18. acknowledges that where it is acquiring Placing Shares for one or more managed accounts, it represents and warrants that it is authorised in writing by each managed account to acquire Placing Shares for that managed account;
19. if it is a pension fund or investment company, acknowledges that its acquisition of any Placing Shares is in full compliance with applicable laws and regulations;
20. represents and warrants that it is not, and is not acting on behalf of (i) (a) an employee benefit plan (as defined in Section 3(3) of the US Employee Retirement Income Security Act of 1974, as amended ("ERISA")) subject to the provisions of Part 4 of Subtitle B of Title I of ERISA, (b) a plan to which section 4975 of the US Internal Revenue Code of 1986, as amended (the "Code"), applies or (c) any entity whose underlying assets include plan assets by reason of an employee benefit plan's or a plan's investment in such entity (a "Benefit Plan Investor") or (ii) any person (other than a Benefit Plan Investor) that has discretionary authority or control with respect to the assets of the Company or that provides investment advice for a fee (direct or indirect) with respect to such assets or an "affiliate" (within the meaning of the plan asset regulations promulgated by the United States Department of Labor at 29 C.F.R. section 2510.3-101, as modified by section 3(42) of ERISA (the "Plan Asset Regulations")) of such a person (a "Controlling Person") unless, in the case of a Benefit Plan Investor, it acquires the Securities on or prior to listing of the Securities on the Official List and admission to trading on the main market of the London Stock Exchange with the written consent of the Company, and, in the case of a Controlling Person, it acquires the Securities with the written consent of the Company;
21. (i) if it is, or is acting on behalf of, a Benefit Plan Investor, represents and warrants that its acquisition, holding and disposition of the Placing Shares does not and will not constitute or result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and (ii) if it is a governmental, church, non-US or other plan which is subject to any federal, state, local or non-US law that is similar to the prohibited transaction provisions of section 406 of ERISA and/or section 4975 of the Code ("Similar Law"), represents and warrants that (a) it is not, and for so long as it holds such Securities or an interest therein will not be, subject to any federal, state, local, non-US or other laws or regulations that could cause the underlying assets of the Company to be treated as assets of a shareholder by virtue of the Investor's interest in the Securities and thereby subject the Company (or any persons responsible for the investment and operation of the Company's assets) to any Similar Law and (b) its acquisition, holding and disposition of such Securities will not constitute or result in a non-exempt violation of any Similar Law;
22. represents and warrants that it understands and acknowledges that the Company will not be required to accept for registration of transfer any Ordinary Shares in favour of any person, as determined by the Directors, to whom a sale or transfer of Ordinary Shares, or whose direct, indirect or beneficial ownership of Securities, would or might (i) cause the Company to be required to register as an ''investment company'' under the US Investment Company Act (including because the holder of the Securities is not a Qualified Purchaser) or to lose an exemption or status thereunder to which it might otherwise be entitled; (ii) cause the Company to be required to register under the US Commodity Exchange Act of 1936, as amended (the "US Commodity Exchange Act"); (iii) cause the Company to be required to register under the US Exchange Act of 1934, as amended (the "US Exchange Act") or any similar legislation; (iv) cause the Company not to be considered a ''foreign private issuer'' as such term is defined in rule 3b-4(c) under the US Exchange Act; (v) result in any Ordinary Shares being owned, directly or indirectly, by Benefit Plan Investors or Controlling Persons other than, in the case of Benefit Plan Investors, persons that acquire the Ordinary Shares on or prior to listing of the shares in the Official List and admission to trading on the main market of the London Stock Exchange with the written consent of the Company, and, in the case of Controlling Persons, persons that acquire the Ordinary Shares with the written consent of the Company; (vi) cause the assets of the Company to be considered ''plan assets'' under the Plan Asset Regulations; (vii) cause the Company to be a ''controlled foreign corporation'' for the purposes of the Code; (viii) result in withholding obligations on payments to such person in connection with FATCA or otherwise prevent the Company from qualifying as, or complying with any obligations or requirements imposed on, a "Participating FFI" within the meaning of US Treasury Regulation Section 1.1471-1(b)(85) or a "deemed-compliant FFI" within the meaning of US Treasury Regulation Section 1.1471-5(f); or (ix) cause the Company to be in violation of the US Investment Company Act, the US Exchange Act, the US Commodity Exchange Act, ERISA, the Code or any applicable federal, state, local, non-US or other laws or regulations that are substantially similar to section 406 of ERISA or Section 4975 of the Code (any such person a "Non-Qualified Holder"). For purposes of these terms and conditions, "FATCA" means Sections 1471-1474 of the Code, an agreement entered into pursuant to such Sections of the Code, an intergovernmental agreement entered into in furtherance of such Sections of the Code, or non-US laws implementing such an intergovernmental agreement;
23. represents and warrants that it understands and acknowledges that if it comes to the notice of the Company that any Ordinary Shares are owned directly, indirectly or beneficially by any Non-Qualified Holder, the Board may, under the Articles, serve a notice upon such Non-Qualified Holder requiring such Non-Qualified Holder to transfer the Securities to an eligible transferee within 14 days of such notice; and, if the obligation to transfer is not met, the Company may compulsorily transfer the Securities, in a manner consistent with the restrictions set forth in the Articles;
24. represents and warrants that it has not offered or sold and, prior to the expiry of a period of six months from Open Offer Admission, will not offer or sell any Placing Shares to persons in the United Kingdom, except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their business or otherwise in circumstances which have not resulted and which will not result in an offer to the public in the United Kingdom within the meaning of section 85(1) of the FSMA;
25. represents and warrants that it has not offered or sold and will not offer or sell any New Ordinary Shares to persons in any member state of the EEA prior to Firm Placing Admission or Open Offer Admission (as the case may be) except to persons whose ordinary activities involve them acquiring, holding, managing or disposing of investments (as principal or agent) for the purpose of their business or otherwise in circumstances which have not resulted 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;
26. acknowledges that participation in the Placings is on the basis that, for the purposes of the Placings, it is not and will not be a client of Merrill Lynch International, Deutsche Bank AG, London Branch, J&E Davy or J.P. Morgan Securities plc and that none of Merrill Lynch International, Deutsche Bank AG, London Branch, J&E Davy or J.P. Morgan Securities plc have any duties or responsibilities to it for providing the protections afforded to their clients nor for providing advice in relation to the Placings nor in respect of any representations, warranties, undertakings or indemnities contained in the Placing Agreement or the contents of these terms and conditions;
27. agrees to provide the Banks with such relevant documents as they may reasonably request to comply with requests or requirements that either they or the Company may receive from relevant regulators in relation to the Placings, subject to its legal, regulatory and compliance requirements and restrictions;
28. acknowledges that any agreements entered into by it pursuant to these terms and conditions shall be governed by and construed (save where such agreements relate to matters of US law) in accordance with the laws of England and Wales and it submits (on its behalf and on behalf of any Placee on whose behalf it is acting) to the exclusive jurisdiction of the English courts as regards any claim, dispute or matter arising out of any such contract, except that enforcement proceedings in respect of the obligation to make payment for the Placing Shares (together with any interest chargeable thereon) may be taken by the Banks 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;
29. agrees to fully and effectively indemnify and hold harmless the Company, the Investment Manager and the Banks and each of their respective affiliates (as defined in Rule 501(b) under the US Securities Act) and each person, if any, who controls any Bank within the meaning of Section 15 of the US Securities Act or Section 20 of the US Exchange Act and any such person's respective affiliates, subsidiaries, branches, associates and holding companies, and in each case their respective directors, employees, officers and agents from and against any and all losses, claims, damages and liabilities (i) arising from any breach by such Placee of any of the provisions of these terms and conditions, the Placing Letter and (ii) incurred by the Banks and/or the Company arising from the performance of the Placee's obligations as set out in these terms and conditions;
30. agrees to indemnify on an after-tax basis and hold the Company, the Investment Manager and the Banks and any of their affiliates and any person acting on their behalf harmless from any and all losses, claims, damages, liabilities and expenses (including legal fees and expenses) arising out of or in connection with any breach of the representations, warranties, acknowledgments, agreements and undertakings in these terms and conditions and further agrees that the provisions of these terms and conditions shall survive after completion of the Issue;
31. in making any decision to subscribe for the Placing Shares, confirms that (i) it has knowledge and experience in financial, business and international investment matters as is required to evaluate the merits and risks of acquiring the Placing Shares; (ii) it is experienced in investing in securities of this nature and is aware that it may be required to bear, and is able to bear, the economic risk of, 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 Placings, including the merits and risks involved; (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) will not look to the Banks, the Investment Manager, 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;
32. agrees that the Banks, the Investment Manager and the Company and their respective affiliates and others will rely upon the truth and accuracy of the foregoing representations, warranties, acknowledgments and undertakings which are irrevocable.
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 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 assumes that such Placing Shares are not being acquired in connection with arrangements to issue depositary receipts or to transfer such Placing Shares into a clearance service. If there were any such arrangements, or the settlement related to other dealing in such Placing Shares, stamp duty or stamp duty reserve tax may be payable, for which neither the Company nor the Banks would be responsible. If this is the case, it would be sensible for Placees to take their own advice and they should notify the relevant Bank accordingly. In addition, Placees should note that they will be liable for any capital duty, stamp duty and all other stamp, issue, securities, transfer, registration, documentary or other duties or taxes (including any interest, fines or penalties relating thereto) payable outside the UK by them or any other person on the acquisition by them of any Placing Shares or the agreement by them to acquire any Placing Shares.
Selling Restrictions
By participating in the Bookbuild and the Placings, a Placee:
1. represents and warrants that it is not a person who has a registered address in, or is a resident, citizen or national of, a country or countries, in which it is unlawful to make or accept an offer to subscribe for Placing Shares;
2. represents, warrants and undertakes that it has fully observed and will fully observe the applicable laws of any relevant territory, including complying with the selling restrictions set out herein and obtaining any requisite governmental or other consents and it has fully observed and will fully observe any other requisite formalities and pay any issue, transfer or other taxes due in such territories;
3. represents and warrants that, if it is in the United Kingdom, it is a person (i) who has professional experience in matters relating to investments and who falls within the definition of "investment professionals" in Article 19(5) of the Order or who falls within Article 49(2) of the Order, and (ii) is a "qualified investor" as defined in section 86 of the FSMA;
4. represents and warrants that, if it is in a member state of the EEA, it is a "qualified investor" within the meaning of Article 2(1)(e) of the Prospectus Directive;
5. confirms that it is a person whose ordinary activities involve it (as principal or agent) in acquiring, holding, managing or disposing of investments for the purpose of its business and it undertakes that it will (as principal or agent) acquire, hold, manage or dispose of any Placing Shares that are allocated to it for the purposes of its business;
6. confirms that it is and, at the time the Placing Shares are purchased, will be either (i) outside the United States and not, and not acting for the account or benefit of, a US Person, purchasing in an offshore transaction pursuant to Regulation S or (ii) both a QIB and a QP or purchasing Placing Shares for the account or benefit of one or more persons, all of whom are both QIBs and QPs, and will sign and return a US Investor Letter to the Banks and the Company;
7. acknowledges that none of the Placing Shares have been or will be registered under the US Securities Act or with any securities regulatory authority of any state or other jurisdiction of the United States and that the Company has not been, and will not be, registered under the US Investment Company Act and investors will not be entitled to the benefits of that Act;
8. acknowledges that none of the Placing Shares may be offered, sold, taken up or delivered directly or indirectly, in whole or in part, into or within the United States except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and in compliance with any applicable securities laws of any state or other jurisdiction of the United States and under circumstances that will not require the Company to register under the US Investment Company Act; and
9. represents and warrants that it (on its behalf and on behalf of any Placee on whose behalf it is acting) has (a) fully observed the laws of all relevant jurisdictions which apply to it; (b) obtained all governmental and other consents which may be required; (c) fully observed any other requisite formalities; (d) paid or will pay any issue, transfer or other taxes; (e) not taken any action which will or may result in the Company or the Banks (or any of them) being in breach of a legal or regulatory requirement of any territory in connection with the Placings: (f) obtained all other necessary consents and authorities required to enable it to give its commitment to subscribe for the relevant Placing Shares and (g) the power and capacity to, and will, perform its obligations under the terms contained in these terms and conditions and in the Placing Letter.
Offset and Miscellaneous
If a Placee is entitled to participate in the Open Offer by virtue of being a Qualifying Shareholder it will be able to apply to subscribe for Open Offer Shares under the terms and conditions of the Open Offer. Any participation by a Placee as a Qualifying Shareholder in the Open Offer will reduce such Placee's commitment, in respect of the Open Offer Shares only, that make up its placing participation in the manner set out in the Placing Letter. The Company reserves the right to treat as invalid any application or purported application for Open Offer Shares that appears to the Company or its agents to have been executed, effected or dispatched from the United States or an Excluded Territory or in a manner that may involve a breach of the laws or regulations of any jurisdiction or if the Company or its agents believe that the same may violate applicable legal or regulatory requirements or if it provides an address for delivery of the share certificates of Open Offer Shares or in the case of a credit of Open Offer Entitlements to a stock account in CREST, to a CREST member whose registered address would be in an Excluded Territory or the United States, or any other jurisdiction outside the United Kingdom in which it would be unlawful to deliver such share certificates or make such a credit.
When a Placee or person acting on behalf of the Placee is dealing with any of the Banks, any money held in an account with any of the Banks 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. 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 Banks' money in accordance with the client money rules and will be used by each of the Banks in the course of its own business; and the Bank will rank only as a general creditor of the relevant Bank.
Times
Unless the context otherwise requires, all references to time are to London time. All times and dates in these terms and conditions may be subject to amendment. The Banks will notify Placees and any persons acting on behalf of the Placees of any changes.