Source - RNS
RNS Number : 9932J
Fyffes PLC
15 September 2016
 

 

THIS ANNOUNCEMENT, INCLUDING THE APPENDIX, AND THE INFORMATION CONTAINED HEREIN IS RESTRICTED AND IS NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, IN OR INTO THE UNITED STATES, CANADA, AUSTRALIA, JAPAN, SOUTH AFRICA OR ANY OTHER STATE OR JURISDICTION IN WHICH SUCH RELEASE, PUBLICATION OR DISTRIBUTION WOULD BE UNLAWFUL. PLEASE SEE THE IMPORTANT NOTICE AT THE END OF THIS ANNOUNCEMENT.

 

THIS ANNOUNCEMENT CONTAINS INSIDE INFORMATION

 

 

15 September 2016

 

Fyffes plc

("Fyffes" or the "Company" or the "Group")

 

Proposed Placing

 

 

The Board of Fyffes announces a placing of approximately 30 million Ordinary Shares (the "Placing Shares") in the capital of the Company within the Company's existing share authorities (the "Placing"). The Placing is being conducted, subject to the satisfaction of certain conditions set out in the Appendix to this announcement, through an accelerated bookbuild (the "Bookbuild") which will be launched immediately following this placing announcement (the "Announcement") and will be made available to new and existing eligible investors. J&E Davy ("Davy") is acting as Sole Global Coordinator and Bookrunner in respect of the Placing.

 

 

Placing and Use of Proceeds

 

On Thursday 8 September 2016, Fyffes announced the acquisition of All Seasons Mushrooms Inc. ("All Seasons") a Canadian mushroom business, for CAD$59.1m (€41m). The acquisition was funded through existing bank debt. This followed the Company's acquisition of Highline Produce Limited ("Highline"), Canada's largest mushroom business, in April 2016 for CAD$145m (€98m).

 

Following the Company's move into the North American mushroom category through the recent accretive acquisitions of Highline and All Seasons, the net proceeds of the Placing will maintain the balance sheet strength and liquidity of the Company and provide funds for further acquisitions as part of Fyffes strategic objective to grow its business by pursuing attractive acquisition opportunities across each of its four existing and other new product categories.

 

Balance sheet strength and financial flexibility remains a continued focus for Fyffes. In the absence of further investment activity Fyffes would expect its 2016 year end net debt, after the acquisition of All Seasons and normal seasonal working capital outflows in the second half of the year, to be less than 2.75 times EBITDA, based on its current target EBITDA range, adjusted for the annualised earnings of Highline and All Seasons. Including the net proceeds of the Placing, Fyffes expects its 2016 year end net debt to be less than 2 times EBITDA, on the same basis.

 

Fyffes continues to have a strong pipeline of further attractive acquisition and investment opportunities across existing and new product categories which could deliver further accretive growth and returns for shareholders if completed.

 

 

Current trading and prospects

 

On 2 September 2016 Fyffes announced its interim results outlining its trading performance

in the first six months of the year, in which it stated that:

 

"Fyffes is maintaining its strong full year target earnings ranges, which were increased in April 2016 following the Highline acquisition. The result for the first half of the year was satisfactory given the difficult prevailing market conditions, including adverse currency movements as a result of the weakness of Sterling and the euro against the US Dollar. The Group was very pleased to complete the purchase of Canadian mushroom business, Highline Produce, during the period. Highline has performed in line with our expectations for the three-month period post acquisition. The first half results in the Group's other product categories were in line with the same period last year in aggregate, with strong performances in the pineapple and melon categories."

 

"The Group is pleased to reconfirm its target full year 2016 earnings ranges, which represent strong increases in respect of each of the following key measures of performance:

 

Adjusted EBITDA €63m-€69m (2015: €56.1m)

Adjusted EBITA €49m-€55m (2015: €45.8m)

Adjusted EPS 12.8 cent - 14.5 cent (2015: €12.73 cent)

 

Fyffes continues to pursue increases in selling prices in all markets to offset continuing adverse exchange rates. The Group remains confident about its future prospects and is well placed to compete strongly in its key markets."

 

On 8 September 2016 Fyffes announced the acquisition of its second North American mushroom business in the year and commented as follows on the impact of the acquisition's earnings on Fyffes:

 

"This transaction is expected to be immediately accretive for Fyffes.  Given the timing of this transaction, the impact on Fyffes 2016 earnings is expected to be limited to a c.1% increase in Adjusted EPS, based on the Group's current target earnings ranges.  On an annualised basis, the All Seasons transaction would increase Fyffes current 2016 target Adjusted EPS range by c.5%."

 

 

Details of the Placing

 

Davy is acting as Sole Global Co-ordinator and Bookrunner in respect of the Placing.

 

The Placing is subject to the terms and conditions set out in the Appendix (which forms part of this announcement, such announcement and the Appendix together being the "Announcement"). Davy will today commence a bookbuilding process in respect of the Placing (the "Bookbuild"). The price per ordinary share at which the Placing Shares are to be placed (the "Placing Price") will be decided at the close of the Bookbuild. The book will open with immediate effect following this Announcement. All investors who participate in the Placing will be required to make bids for Placing Shares in Euro. The timing of the closing of the book, pricing and allocations are at the discretion of the Company and Davy. Details of the Placing Price and the number of Placing Shares will be announced as soon as practicable after the close of the Bookbuild.

 

The Placing Shares, when issued, will be fully paid and will rank pari passu in all respects with the existing Ordinary Shares of the Company (other than treasury shares which are non-voting and do not qualify for dividends), including the right to receive all dividends and other distributions declared, made or paid after the date of issue, save for the 2016 interim dividend payable on 7 October 2016 to shareholders on the register as at 16 September 2016. The Company currently has 298,467,807 Ordinary Shares (excluding 31,075,000 treasury shares) in issue.

 

The Company will apply to the Irish Stock Exchange and to the London Stock Exchange for the Placing Shares to be admitted to trading on ESM and AIM respectively ("Admission"). It is expected that settlement of the Placing Shares will occur, Admission will become effective and that dealings will commence in the Placing Shares at 8.00 a.m. on 20 September 2016. The Placing is conditional, among other things, upon Admission becoming effective and the placing agreement between the Company and Davy (the "Placing Agreement") not being terminated in accordance with its terms. The Appendix sets out further information relating to the Bookbuild and the terms and conditions of the Placing.

 

By choosing to participate in the Placing and by making an oral and legally binding offer to acquire Placing Shares, investors will be deemed to have read and understood this Announcement in its entirety (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, indemnities, acknowledgements and undertakings contained in the Appendix.

 

This Announcement should be read in its entirety. In particular, you should read and understand the information provided in the "Important Notice" section of this Announcement.

 

This Announcement contains inside information for the purposes of the Market Abuse Regulation (EU) No 596/2014 ("MAR"). Market soundings, as defined in MAR, were taken in respect of the Placing, with the result that certain persons became aware of inside information, as permitted by MAR. That inside information is set out in this Announcement. Therefore, those persons that received inside information in a market sounding are no longer in possession of inside information relating to the Company and its securities.

 

The person responsible for arranging release of this Announcement on behalf of Fyffes is Seamus Keenan.

 

For further information on the Announcement, please contact

 

 

Fyffes plc:                                                                              +353 1 887 2700

David McCann, Executive Chairman             

Tom Murphy, Finance Director          

Seamus Keenan, Company Secretary

 

 

Davy (Sole Global Coordinator and Bookrunner)            +353 1 6796363

Ivan Murphy

Fergal Meegan

Barry Murphy

 

 

Wilson Hartnell PR (Media Enquiries)                               +353 1 6690030

Sheila Gahon

 

 

 

 

Important Notice

 

This announcement, including its Appendix (together, the "Announcement") and the information contained herein is restricted and is not for release, publication or distribution, directly or indirectly, in whole or in part, in, into or from the United States (including its territories and possessions, any state of the United States and the District of Columbia, collectively the "United States"), Australia, Canada, Japan, South Africa or any other state or jurisdiction in which the same would be restricted, unlawful or unauthorised (each a "Restricted Territory"). This Announcement is for information purposes only and does not constitute an offer to buy, sell, issue, acquire or subscribe for, or the solicitation of an offer to buy, sell, issue, acquire or subscribe for shares in the capital of the Company in any Restricted Territory or to any person to whom it is unlawful to make such offer or solicitation. Any failure to comply with these restrictions may constitute a violation of the securities laws of such jurisdictions.

 

Subject to certain exemptions, the securities referred to herein may not be offered or sold in any Restricted Territory or for the account or benefit of any national resident or citizen of any Restricted Territory. The Placing Shares have not been and will not be registered under the United States Securities Act of 1933, as amended ("Securities Act"), or under the securities laws of, or with any securities regulatory authority of, any state or other jurisdiction of the United States, and may not be offered, sold or transferred, directly or indirectly, in or into the United States absent registration under the Securities Act or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and in compliance with any applicable securities laws of any state or other jurisdiction of the United States. Any offering of the Placing Shares to be made (i) in the United States will be made only to a limited number of "qualified institutional buyers" ("QIBs") within the meaning of Rule 144A under the Securities Act ("Rule 144A") in accordance with Rule 144A or pursuant to an exemption from the registration requirements of the Securities Act in a transaction not involving any "public offering" and (ii) outside the United States in offshore transactions within the meaning of, and in reliance on, Regulation S under the Securities Act ("Regulation S"). No public offering of the shares referred to in this Announcement is being made in Ireland, the United Kingdom, any Restricted Territory or elsewhere.

 

This Announcement has been issued by, and is the sole responsibility of, the Company. No representation or warranty, express or implied, is or will be made as to, or in relation to, and no responsibility or liability is or will be accepted by Davy or by any of its respective affiliates or agents as to, or in relation to, the accuracy or completeness of this Announcement or any other written or oral information made available to or publicly available to any interested party or its advisers, and any liability therefor is expressly disclaimed.

 

Davy, which is regulated in Ireland by the Central Bank of Ireland is acting as Sole Global Co-ordinator and Bookrunner for the Company and no-one else in connection with the Placing and is not, and will not be, responsible to anyone other than the Company for providing the protections afforded to its clients nor for providing advice in relation to the Placing and/or any other matter referred to in this Announcement.

 

Apart from the responsibilities and liabilities, if any, which may be imposed on the Bookrunner by the Financial Services and Markets Act 2000 or by the regulatory regime established under it, neither the Bookrunner nor any of its respective affiliates accept any responsibility whatsoever for the contents of the information contained in this Announcement or for any other statement made or purported to be made by or on behalf of the Bookrunner or its affiliates in connection with the Company, the Placing Shares or the Placing. The Bookrunner and each of its affiliates accordingly disclaim all and any liability, whether arising in tort, contract or otherwise (save as referred to above) in respect of any statements or other information contained in this Announcement and no representation or warranty, express or implied, is made by the Bookrunner or any of its affiliates as to the accuracy, completeness or sufficiency of the information contained in this Announcement.

 

The distribution of this Announcement and the offering of the Placing Shares in certain jurisdictions may be restricted by law. No action has been taken by the Company or the Bookrunner that would permit an offering of such shares or possession or distribution of this Announcement or any other offering or publicity material relating to such shares in any jurisdiction where action for that purpose is required. Persons into whose possession this Announcement comes are required by the Company and the Bookrunner to inform themselves about, and to observe, such restrictions.

 

The information in this Announcement may not be forwarded or distributed to any other person and may not be reproduced in any manner whatsoever. Any forwarding, distribution, reproduction, or disclosure of this information in whole or in part is unauthorised. Failure to comply with this directive may result in a violation of the Securities Act or the applicable laws of other jurisdictions.

 

This Announcement does not identify or suggest, or purport to identify or suggest, the risks (direct or indirect) that may be associated with an investment in the Placing Shares. Any investment decision to buy Placing Shares in the Placing must be made solely on the basis of publicly available information, which has not been independently verified by the Bookrunner.

 

This Announcement contains (or may contain) certain forward-looking statements with respect to certain of the Company's current expectations and projections about future events and the Company's future financial condition and performance. These statements, which sometimes use words such as "aim", "anticipate", "believe", "may", "will", "should", "intend", "plan", "assume", "estimate", "expect" (or the negative thereof) and words of similar meaning, reflect the directors' current beliefs and expectations and involve known and unknown risks, uncertainties and assumptions, many of which are outside the Company's control and difficult to predict, that could cause actual results and performance to differ materially from any expected future results or performance expressed or implied by the forward-looking statement. Statements contained in this Announcement regarding past trends or activities should not be taken as a representation that such trends or activities will continue in the future. The information contained in this Announcement speaks only as of the date of this Announcement and is subject to change without notice and the Company does not assume any responsibility or obligation to, and does not intend to, update or revise publicly or review any of the information contained herein, whether as a result of new information, future events or otherwise, except to the extent required by the London Stock Exchange, the Irish Stock Exchange, the Central Bank of Ireland or by applicable law. No statement in this Announcement is or is intended to be a profit forecast or profit estimate or to imply that the earnings of the Company for the current or future financial years will necessarily match or exceed the historical or published earnings of the Company.

 

The price of shares and the income from them may go down as well as up and investors may not get back the full amount invested on disposal of shares acquired. Past performance is no guide to future performance and persons needing advice should consult an independent financial adviser.

 

The Placing Shares to be issued pursuant to the Placing will not be admitted to trading on any stock exchange other than the Alternative Investment Market of the London Stock Exchange and the Enterprise Securities Market of the Irish Stock Exchange. Persons (including individuals, funds or otherwise) by whom or on whose behalf a commitment to acquire Placing Shares has been given ("Placees") 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 conditions in it, and to be providing the representations, warranties, indemnities, acknowledgements, and undertakings contained in the Appendix. In particular, each such Placee represents, warrants and acknowledges that it is: (i) a Relevant Person (as defined in the Appendix) and undertakes that it will acquire, hold, manage or dispose of any Placing Shares that are allocated to it for the purposes of its business and it is acquiring such shares for its own account; and (ii) either (a) outside the United States,  is subscribing for the Placing Shares in an 'offshore transaction' (within the meaning of Regulation S) or (b) (i) a QIB and (ii) subscribing for the Placing Shares in accordance with Rule 144A or pursuant to an exemption from the registration requirements of the Securities Act in a transaction not involving any "public offering", or pursuant to another exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and, in either case, acknowledges that the Placing Shares have not been, and will not be, registered under the Securities Act or with any state or other jurisdiction of the United States.

 

The Placing Shares have not been approved or disapproved by the US Securities and Exchange Commission, any state securities commission or any other regulatory authority in the United States, nor have any of the foregoing authorities passed upon or endorsed the merits of the Placing or the accuracy or adequacy of this Announcement. Any representation to the contrary is unlawful. Persons (including, without limitation, nominees and trustees) who have a contractual or other legal obligation to forward a copy of the Appendix or this Announcement should seek appropriate advice before taking any action.

 

The most recent Annual and Interim Reports and other information are available on the Fyffes website at http://investors.fyffes.com/fyffesplc/en/home. Neither the content of the Company's website nor any website accessible by hyperlinks on the Company's website is incorporated in, or forms part of, this Announcement.

 

This Announcement does not constitute a recommendation concerning the Placing.

 

 



 

APPENDIX

 

TERMS AND CONDITIONS

 

IMPORTANT INFORMATION ON THE PLACING FOR INVITED PLACEES ONLY

 

MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING. THIS ANNOUNCEMENT (INCLUDING THE APPENDIX) AND THE TERMS AND CONDITIONS SET OUT HEREIN (THE "ANNOUNCEMENT") IS FOR INFORMATION PURPOSES ONLY AND IS DIRECTED ONLY AT PERSONS WHOSE ORDINARY ACTIVITIES INVOLVE THEM IN ACQUIRING, HOLDING, MANAGING AND DISPOSING OF INVESTMENTS (AS PRINCIPAL OR AGENT) FOR THE PURPOSES OF THEIR BUSINESS AND WHO HAVE PROFESSIONAL EXPERIENCE IN MATTERS RELATING TO INVESTMENTS AND ARE: (A) IF IN A MEMBER STATE OF THE EUROPEAN ECONOMIC AREA (THE "EEA"), PERSONS WHO ARE QUALIFIED INVESTORS ("QUALIFIED INVESTORS"), BEING PERSONS FALLING WITHIN THE MEANING OF ARTICLE 2(1)(E) OF DIRECTIVE 2003/71/EC, AS AMENDED, INCLUDING BY THE 2010 PD AMENDING DIRECTIVE (DIRECTIVE 2010/73/EU), TO THE EXTENT IMPLEMENTED IN THE RELEVANT MEMBER STATE (THE "PROSPECTUS DIRECTIVE"); OR (B) IF IN THE UNITED KINGDOM, QUALIFIED INVESTORS WHO ARE (I) PERSONS WHO FALL WITHIN THE DEFINITION OF "INVESTMENT PROFESSIONAL" IN ARTICLE 19(5) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER 2005, AS AMENDED (THE "ORDER"), OR (II) PERSONS WHO FALL WITHIN ARTICLE 49(2)(A) TO (D) ("HIGH NET WORTH COMPANIES, UNINCORPORATED ASSOCIATIONS, ETC") OF THE ORDER, OR (C) PERSONS TO WHOM IT MAY OTHERWISE BE LAWFULLY COMMUNICATED (ALL SUCH PERSONS REFERRED TO IN (A), (B) AND (C) ABOVE TOGETHER BEING REFERRED TO AS "RELEVANT PERSONS").

 

THIS ANNOUNCEMENT MUST NOT BE ACTED ON OR RELIED ON BY PERSONS WHO ARE NOT RELEVANT PERSONS. PERSONS DISTRIBUTING THIS ANNOUNCEMENT MUST SATISFY THEMSELVES THAT IT IS LAWFUL TO DO SO. ANY INVESTMENT OR INVESTMENT ACTIVITY TO WHICH THIS ANNOUNCEMENT RELATES IS AVAILABLE ONLY TO RELEVANT PERSONS AND WILL BE ENGAGED IN ONLY WITH RELEVANT PERSONS. THIS ANNOUNCEMENT DOES NOT ITSELF CONSTITUTE AN OFFER FOR SALE OR SUBSCRIPTION OF ANY SECURITIES IN THE COMPANY.

 

EACH PLACEE SHOULD CONSULT WITH ITS OWN ADVISERS AS TO LEGAL, TAX, BUSINESS AND RELATED ASPECTS OF AN INVESTMENT IN THE PLACING SHARES.

 

THE PLACING SHARES HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER THE SECURITIES LAWS OF, OR WITH ANY SECURITIES REGULATORY AUTHORITY OF, ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES, AND MAY NOT BE OFFERED, SOLD OR TRANSFERRED, DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED STATES ABSENT REGISTRATION UNDER THE SECURITIES ACT OR PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN COMPLIANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES. ANY OFFERING OF THE PLACING SHARES TO BE MADE (i) IN THE UNITED STATES WILL BE MADE ONLY TO A LIMITED NUMBER OF "QUALIFIED INSTITUTIONAL BUYERS" ("QIBs") WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") IN ACCORDANCE WITH RULE 144A OR PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IN A TRANSACTION NOT INVOLVING A "PUBLIC OFFERING" AND (ii) OUTSIDE THE UNITED STATES IN OFFSHORE TRANSACTIONS WITHIN THE MEANING OF, AND IN RELIANCE ON, REGULATION S UNDER THE SECURITIES ACT. NO PUBLIC OFFERING OF THE SHARES REFERRED TO IN THIS ANNOUNCEMENT IS BEING MADE IN IRELAND, THE UNITED KINGDOM, THE UNITED STATES, ANY OTHER RESTRICTED TERRITORY OR ELSEWHERE.

 

Unless otherwise stated, capitalised terms in this Appendix have the meanings ascribed to them in the Terms and Conditions below.

 

This Announcement is for information only and does not itself constitute or form part of an offer to sell or issue or the solicitation of an offer to buy or subscribe for securities referred to herein in any jurisdiction including, without limitation, the United States, any Restricted Territory (as defined below) or in any jurisdiction where such offer or solicitation is unlawful. No public offering of securities will be made in connection with the Placing in the United Kingdom, the United States, any Restricted Territory or elsewhere.

 

This Announcement, and the information contained herein, is not for release, publication or distribution, directly or indirectly, to persons in the United States, Australia, Canada, Japan, South Africa (each a "Restricted Territory") or in any jurisdiction in which such publication or distribution is unlawful. The distribution of this Announcement and the Placing and/or the offer or sale of the Placing Shares in certain jurisdictions may be restricted by law. No action has been taken by the Company, the Bookrunner or any of their respective affiliates or agents which would permit an offer of the Placing Shares or possession or distribution of this Announcement or any other offering or publicity material relating to such Placing Shares in any jurisdiction where action for that purpose is required. Persons distributing any part of this Announcement must satisfy themselves that it is lawful to do so. Persons (including, without limitation, nominees and trustees) who have a contractual or other legal obligation to forward a copy of this Announcement should seek appropriate advice before taking any such action. Persons into whose possession this Announcement comes are required by the Company and the Bookrunner to inform themselves about, and to observe, any such restrictions.

 

The securities referred to in this Announcement have not been approved or disapproved by the US Securities and Exchange Commission, any State securities commission or any other regulatory authority in the United States, nor have any of the foregoing authorities passed upon or endorsed the merits of the Placing or the accuracy or adequacy of this Announcement. Any representation to the contrary is a criminal offence in the United States.

 

Subject to certain exceptions, the securities referred to in this Announcement may not be offered or sold in any Restricted Territory or to, or for the account or benefit of, a citizen or resident, or a corporation, partnership or other entity created or organised in or under the laws of a Restricted Territory.

 

This Announcement has been issued by, and is the sole responsibility of, the Company. No representation or warranty, express or implied, is or will be made as to, or in relation to, and no responsibility or liability is or will be accepted by the Bookrunner or any of its respective affiliates or agents as to or in relation to, the accuracy or completeness of this Announcement or any other written or oral information made available to or publicly available to any party or its advisers, and any liability therefore is expressly disclaimed.

 

The Bookrunner is acting exclusively for the Company and no-one else in connection with the Placing and is not, and will not be, responsible to anyone (including the Placees (as defined below)) other than the Company for providing the protections afforded to their clients or for providing advice in relation to the Placing or the contents of the Placing Documents or any other matter referred to therein.

 

Neither the Company nor the Bookrunner makes any representation to any Placees regarding an investment in the securities referred to in this Announcement under the laws applicable to such Placees. Each Placee should consult its own advisers as to the legal, tax, business, financial and related aspects of an investment in the Placing Shares.

 

By participating in the Placing, Placees will be deemed to have read and understood this Announcement in its entirety, and to be participating, making an offer for and acquiring Placing Shares on the terms and conditions contained herein and to be providing the representations, warranties, indemnities, acknowledgments and undertakings contained herein.

 

IMPORTANT INFORMATION FOR PLACEES ONLY REGARDING THE PLACING

 

Defined terms used in this Appendix are set out at the end of this Appendix.

 

Details of the Placing Agreement and of the Placing Shares

 

J&E Davy (the "Sole Global Coordinator" and "Bookrunner") and Fyffes plc (the "Company") have today entered into a placing agreement (the "Placing Agreement") under which, on the terms and subject to the conditions set out therein, the Bookrunner, as agent for and on behalf of the Company, has agreed to use its reasonable endeavours to procure placees (the "Placees") for approximately 30 million new ordinary shares in the capital of the Company (the "Placing Shares") at a price (in Euro) determined following completion of the bookbuilding process (the "Bookbuild") (the "Placing"). Following the execution of terms of placing setting out, among other things, the final number of Placing Shares and the final Placing Price (as defined below) following completion of the Bookbuild (as defined below) (the "Terms of Placing"), if any such Placee defaults in paying the Placing Price in respect of any Placing Shares allotted to it, the Bookrunner has agreed to subscribe for such shares, and the Company has agreed to allot or issue, as applicable, such shares to the  Bookrunner, at the Placing Price, on and subject to the terms set out in the Placing Agreement.

 

The Placing Shares have been duly authorised and will, when issued, be credited as fully paid and will rank pari passu in all respects with the existing Ordinary Shares (other than treasury shares which are non-voting and do not qualify for dividends), including the right to receive all dividends and other distributions declared, made or paid in respect of the Ordinary Shares after the date of issue, save for the 2016 interim dividend payable on 7 October 2016 to shareholders on the register as at 16 September 2016. The allotment and issue of the Placing Shares will be made by the Company to Placees for cash.

 

The Placing Shares will be issued free of any pre-emption rights, encumbrances, liens or other security interests.

 

 

Application for listing and admission to trading

 

The Company will apply to the Irish Stock Exchange and to the London Stock Exchange for the Placing Shares to be admitted to trading on ESM and AIM respectively ("Admission"). It is expected that Admission will become effective and that dealings will commence in the Placing Shares at 8.00 a.m. on 20 September 2016.

 

 

Bookbuild

 

The Bookrunner will today commence the Bookbuild to determine demand for participation in the Placing by Placees. This Appendix gives details of the terms and conditions of, and the mechanics of participation in, the Placing. No commissions will be paid to Placees or by Placees in respect of any Placing Shares.

 

 

Participation in, and principal terms of, the Placing

 

1. Davy is acting as Sole Global Coordinator and Bookrunner, as agents of the Company in connection with the Placing.

 

2. Participation in the Placing will only be available to persons who may lawfully be, and are, invited to participate by the Bookrunner. The Bookrunner and its Affiliates are entitled to enter bids in the Bookbuild as principal.

 

3. The Bookbuild will establish a single price payable to the Bookrunner by all Placees whose bids are successful (the "Placing Price"). The Placing Price and the number of Placing Shares to be issued will be agreed between the Bookrunner and the Company following completion of the Bookbuild. The Placing Price and the number of Placing Shares will be announced on a Regulatory Information Service ("RIS") following the completion of the Bookbuild (the "Pricing Announcement").

 

4. To bid in the Bookbuild, prospective Placees should communicate their bid by telephone or writing to their usual sales or equity capital markets contact at Davy. Each bid must be in

Euro and should state the number of Placing Shares which the prospective Placee wishes to

subscribe for at either the Placing Price, which is ultimately established by the Company and the Davy, or at prices up to a price limit specified in its bid. Bids may be scaled down by the Bookrunner on the basis referred to in paragraph 9 below.

 

5. A bid in the Bookbuild will be made on the terms and subject to the conditions in this Announcement and will be legally binding on the prospective Placee on behalf of which it is made and, except with the Bookrunner's consent, will not be capable of variation or revocation after the time at which it is submitted. Each prospective Placee will have an immediate, irrevocable and binding obligation owed to the Bookrunner to pay to them (or as the Bookrunner may direct) in cleared funds (in Euros) at the time set out in paragraph 11, an amount equal to the product of the Placing Price and the number of Placing Shares such prospective Placee has agreed to subscribe for and the Company has agreed to allot and issue to that Placee. Each prospective Placee's obligations will be owed to the Company and the Bookrunner. The Company shall allot such Placing Shares to each Placee following each Placee's payment to the relevant Bookrunner of such amount.

 

6. The Bookbuild is expected to close no later than 4.30 p.m. (London time) on 16 September 2016 but may be closed earlier or later at the discretion of the Bookrunner and the Company. The Bookrunner may, in their absolute discretion, accept bids that are received after the Bookbuild has closed.

 

7. Each prospective Placee's allocation will be determined by the Bookrunner and the Company in their sole discretion and each Placee's allocation will be confirmed orally by the Bookrunner (as an agent of the Company) following the close of the Bookbuild and a contract note will be despatched thereafter. This oral confirmation to such prospective Placee will constitute an irrevocable legally binding commitment upon that person (who will at that point become a Placee) in favour of the Bookrunner and the Company to subscribe

for the number of Placing Shares allocated to it at the Placing Price on the terms and conditions set out in this Appendix and in accordance with the Company's articles of association and all applicable laws.

 

8. Each Placee's allocation and commitment will be evidenced by a contract note issued to such Placee by the Bookrunner. These terms and conditions will be deemed incorporated in that contract note.

 

9. Subject to paragraphs 4 and 5 above, the Bookrunner may choose to accept bids, either in whole or in part, on the basis of allocations determined in agreement with the Company and may scale down any bids for this purpose on such basis as it may determine. The Bookrunner may also, notwithstanding paragraphs 4 and 5 above and subject to the prior consent of the Company, (i) allocate Placing Shares after the time of any initial allocation to any person submitting a bid after that time and (ii) allocate Placing Shares after the Bookbuild has closed to any person submitting a bid after that time. The acceptance of offers shall be at the absolute discretion of the Bookrunner.

 

10. Except as required by law or regulation, no press release or other announcement will be made by the Bookrunner or the Company using the name of any Placee (or its agent), in its capacity as Placee (or agent), other than with such Placee's prior written consent.

 

11. Irrespective of the time at which a Placee's allocation pursuant to the Placing is confirmed, settlement for all Placing Shares to be subscribed for pursuant to the Placing will be required to be made at the same time, on the basis explained below under "Registration and Settlement".

 

12. All obligations under the Bookbuild and Placing will be subject to fulfilment of the conditions referred to below under "Conditions of the Placing" and to the Placing not being terminated on the basis referred to below under "Termination of the Placing Agreement". If the Placing Agreement does not become unconditional or is terminated, the Placing will not proceed and all funds delivered by a Placee as consideration for Placing Shares will be returned.

 

13. By participating in the Bookbuild, each Placee will agree that its rights and obligations in respect of the Placing will terminate only in the circumstances described below and will not be capable of rescission or termination by the Placee.

 

14. To the fullest extent permissible by law, neither the Bookrunner nor the Company nor any of their Affiliates shall have any responsibility or liability to any Placee (or to any other person whether acting on behalf of a Placee or otherwise). In particular, neither the Bookrunner nor the Company nor any of their Affiliates shall have any responsibility or liability (including to the fullest extent permissible by law, any fiduciary duties) in respect of the Bookrunner's conduct of the Bookbuild or of such alternative method of effecting the Placing as the Bookrunner and the Company may agree.

 

 

Conditions of the Placing

 

The Placing is conditional upon the Placing Agreement becoming unconditional and not having been terminated in accordance with its terms. The obligations of the Bookrunner under the Placing Agreement are conditional on, amongst other things:

 

1. the execution and delivery of the term sheet setting out the Placing Price by the Bookrunner and the Company at the time of pricing of the Placing (the "Term Sheet");

 

2. the representations, warranties and undertakings set out in the Placing Agreement being true, accurate and complete as of the date of the Placing Agreement, the time of execution of the Term Sheet and at Admission;

 

3. the Company having complied with all of the agreements and undertakings and satisfied or performed all of the conditions and obligations on its part to be performed or satisfied under the Placing Agreement on or before Admission;

 

4. Admission having occurred by 8.00 a.m. (London time) on 20 September 2016 (or such later date as the Company and the Bookrunner may determine); and

 

5. the Company allotting, subject only to Admission, the Placing Shares in accordance with the Placing Agreement.

 

If (i) any of the conditions contained in the Placing Agreement are not fulfilled or, where permitted, waived by the Bookrunner by the time and/or date specified (or such later time and/or date as the Company and the Bookrunner may agree), or (ii) the Placing Agreement is terminated in the circumstances specified below, the Placing will not proceed and each Placee's rights and obligations hereunder in relation to the Placing Shares shall cease and terminate at such time and each Placee agrees that no claim can be made by the Placee in respect thereof. Any such waiver by the Bookrunner will not affect Placees' commitments as set out in this Announcement.

 

The Bookrunner may, at its discretion and upon such terms as it thinks fit, extend the time for the satisfaction of any condition or waive compliance by the Company with the whole or any part of any of the Company's obligations in relation to the conditions in the Placing Agreement, save that the condition in the Placing Agreement relating to Admission taking place may not be waived. Any such extension or waiver will not affect Placees' commitments as set out in this Announcement.

 

None of the Bookrunner, the Company or any of their respective Affiliates or any other person shall have any responsibility or liability to any Placee (or to any other person whether acting on behalf of a Placee or otherwise) in respect of any decision they may make as to whether or not to waive or to extend the time and/or the date for the satisfaction of any condition to the Placing nor for any decision they may make as to the satisfaction of any condition or in respect of the Placing generally, and by participating in the Placing each Placee agrees that any such decision is within the absolute discretion of the Bookrunner and the Company.

 

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

 

 

Termination of the Placing Agreement

 

The Bookrunner is entitled at any time before Admission to terminate the Placing Agreement by giving notice to the Company, if, amongst other things:

 

1. any of the representations, warranties or undertakings is untrue, inaccurate or misleading in any respect or there has been a failure by the Company to perform any of the undertakings or agreements in the Placing Agreement, in each case that would be material in the context of the Placing;

 

2. it has come to the attention of the Bookrunner that any statement contained in any of the Placing Agreement, or any other document or announcement issued with the written consent of the Company in connection with the Placing (together, the Placing Documents) is or has become untrue, inaccurate or misleading in any material respect, or any matter has arisen, which would, if the Placing were made at that time, constitute a material omission from the Placing Documents or a material omission from or misleading inaccuracy in, the Placing Documents, or any of them, and which the Bookrunner (acting in good faith) consider to be material in the context of the Placing and Admission;

 

3. in the opinion of the Bookrunner (acting in good faith), there has been, or the Bookrunner

has become aware of, or there has been made public, a material adverse change in, or any

development reasonably likely to involve a material adverse change in or affecting, the condition, financial, operational or otherwise or in the earnings, management, business affairs, solvency, business or financial prospects of the Group since the date of the Placing Agreement such as to make it impractical or inadvisable to proceed with the Placing;

 

4. the occurrence of a force majeure event as specified in the Placing Agreement which, in the opinion of the Bookrunner (acting in good faith), makes it impracticable or inadvisable to proceed with the Placing; or

 

5. if the applications of the Company for Admission are withdrawn or refused by the London Stock Exchange or the Irish Stock Exchange or the listing or trading in any ordinary shares has been suspended or limited by the London Stock Exchange or the Irish Stock Exchange or any exchange or over-the-counter market or trading generally on the New York Stock Exchange, the NASDAQ National Market, the London Stock Exchange or the Irish Stock Exchange have been suspended or limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by any of the said exchanges or by such system or by order of the regulatory authorities of the United States, the United Kingdom or any other governmental or self-regulatory authority, or a material disruption has occurred in commercial banking or shares settlement or clearance services in the United Kingdom, Ireland, the United States or in Europe.

 

Upon such notice being given, the parties to the Placing Agreement shall be released and discharged (except for any liability arising before or in relation to such termination) from their respective obligations under, or pursuant to, the Placing Agreement, subject to certain exceptions.

 

By participating in the Placing, Placees agree that the exercise by the Bookrunner of any right of termination or other discretion under the Placing Agreement shall be within the absolute discretion of the Bookrunner and that the Bookrunner does not need to make any reference to Placees and that the Bookrunner shall not have any liability to Placees whatsoever in connection with any such exercise or failure so to exercise.

 

 

No prospectus

 

No offering document, prospectus or admission document has been or will be prepared or submitted to be approved by the Central Bank of Ireland (or other authority) in relation to the Placing, and Placees' commitments will be made solely on the basis of publicly available information taken together with the information contained in this Announcement, and any Exchange Information (as defined above) previously published by or on behalf of the Company simultaneously with or prior to the date of this Announcement and subject to the further terms set forth in the contract note to be provided to individual prospective Placees.

 

Each Placee, by accepting a participation in the Placing, agrees that the content of this Announcement and the publicly available information released by or on behalf of the Company is exclusively the responsibility of the Company and confirms that it has neither received nor relied on any other information, representation, warranty, or statement made by or on behalf of the Company (other than publicly available information) or the Bookrunner or their respective Affiliates or any other person and none of the Bookrunner nor the Company nor any of their respective Affiliates nor any other person will be liable for any Placee's decision to participate in the Placing based on any other information, representation, warranty or statement which the Placees may have obtained or received (regardless of whether or not such information, representation, warranty or statement was given or made by or on behalf of any such persons). Each Placee acknowledges and agrees that it has relied on its own investigation of the business, financial or other position of the Company in

accepting a participation in the Placing. Nothing in this paragraph shall exclude or limit the liability of any person for fraudulent misrepresentation by that person.

 

 

Registration and settlement

 

Settlement of transactions in the Placing Shares (ISIN: IE0003295239) following Admission will take place within the system administered by Euroclear UK & Ireland Limited ("CREST"), using the delivery versus payment mechanism, subject to certain exceptions. The Company reserves the right to require settlement for and delivery of the Placing Shares (or a portion thereof) to Placees in certificated form if, in the Bookrunner's opinion, delivery or settlement is not possible or practicable within the CREST system within the timetable set out in this Announcement or would not be consistent with the regulatory requirements in the Placee's jurisdiction.

 

Following the close of the Bookbuild for the Placing, each Placee allocated Placing Shares in the Placing will be sent a contract note stating the number of Placing Shares to be allocated to it at the Placing Price, the aggregate amount owed by such Placee to the Bookrunner and

settlement instructions. Placees should settle against CREST ID: 189 for J&E Davy. It is expected that such contract note will be despatched on 16 September 2016 and that this will also be the trade date.

 

Each Placee agrees that it will do all things necessary to ensure that delivery and payment is completed in accordance with either the standing CREST or certificated settlement instructions that it has in place with the Bookrunner.

 

The Company will deliver the Placing Shares to a CREST account operated by Davy as agent for the Company and Davy will enter its delivery (DEL) instruction into the CREST system. Davy will hold any Placing Shares delivered to this account as nominee for the Placees. The input to CREST by a Placee of a matching or acceptance instruction will then allow delivery of the relevant Placing Shares to that Placee against payment.

 

It is expected that settlement will be on 20 September 2016 on a T + 2 basis in accordance with the instructions given to the Bookrunner.

 

Interest is chargeable daily on payments not received from Placees on the due date in accordance with the arrangements set out above at the rate of two percentage points above LIBOR as determined by the Bookrunner.

 

Each Placee agrees that, if it does not comply with these obligations, the Bookrunner may sell any or all of the Placing Shares allocated to that Placee on such Placee's behalf and retain from the proceeds, for the Company's account and benefit, an amount equal to the aggregate amount owed by the Placee plus any interest due. The relevant Placee will, however, remain liable for any shortfall below the aggregate amount owed by it and shall be required to bear any stamp duty, stamp duty reserve tax or other stamp, securities, transfer, registration, execution, documentary or other similar impost, duty or tax (together with any interest or penalties) which may arise upon the sale of such Placing Shares on such Placee's behalf.

 

If Placing Shares are to be delivered to a custodian or settlement agent, Placees should ensure that the contract note is copied and delivered immediately to the relevant person within that organisation. Insofar as Placing Shares are registered in a Placee's name or that of its nominee or in the name of any person for whom a Placee is contracting as agent or that of a nominee for such person, such Placing Shares should, subject to as provided below, be so registered free from any liability to UK or Irish stamp duty or UK stamp duty reserve tax. If there are any circumstances in which any other stamp duty or stamp duty reserve tax (together with interest and penalties) is payable in respect of the issue of the Placing Shares, neither the Bookrunner nor the Company shall be responsible for the payment thereof.

 

 

Representations and warranties

 

By participating in the Placing each Placee (and any person acting on such Placee's behalf) irrevocably acknowledges, confirms, undertakes, represents, warrants and agrees (as the case may be) with the Bookrunner (in its capacity as bookrunner and placing agents of the Company in respect of the Placing) and the Company, in each case as a fundamental term of its application for Placing Shares, the following:

 

1. it has read and understood this Announcement, including this Appendix, in its entirety and that its subscription for and purchase of Placing Shares is subject to and based upon all the terms, conditions, representations, warranties, indemnities, acknowledgements, agreements and undertakings and other information contained herein and undertakes not to redistribute or duplicate this Announcement and that it has not relied on, and will not rely on, any information given or any representations, warranties or statements made at any time by any person in connection with Admission, the Placing, the Company, the Placing Shares or otherwise;

 

2. that no offering document or prospectus or admission document has been or will be prepared in connection with the Placing or is required under the Prospectus Directive and it has not received and will not receive a prospectus, admission document or other offering document in connection with the Bookbuild, the Placing or the Placing Shares;

 

3. that the Ordinary Shares are admitted to trading on the AIM market of the London Stock Exchange and the ESM market of the Irish Stock Exchange, and that the Company is therefore required to publish certain business and financial information in accordance with the rules and practices of the London Stock Exchange and the Irish Stock Exchange (collectively, the "Exchange Information"), which includes a description of the nature of the Company's business and the Company's most recent balance sheet and profit and loss account, and similar statements for preceding financial years and that it has reviewed such Exchange Information and that it is able to obtain or access such Exchange Information, or comparable information concerning any other publicly traded company, without delay;

 

4. that neither the Bookrunner nor the Company nor any of their respective Affiliates nor any

person acting on behalf of any of them has provided, and none of them will provide, it with any material or information regarding the Placing Shares, the Placing or the Company or any other person other than this Announcement, nor has it requested any of the Bookrunner, the Company, or any of their respective Affiliates nor any person acting on behalf of any of them to provide it with any such material or information;

 

5. unless otherwise specifically agreed with the Bookrunner, that it is not, and at the time the

Placing Shares are acquired, neither it nor the beneficial owner of the Placing Shares will be, a resident of a Restricted Territory or any other jurisdiction in which it would be unlawful to make or accept an offer to acquire the Placing Shares, and further acknowledges that the Placing Shares have not been and will not be registered or otherwise qualified, for offer and sale nor will an offering document, prospectus or admission document be cleared or approved in respect of any of the Placing Shares under the securities legislation of the United States or any other Restricted Territory and, subject to certain exceptions, may not be offered, sold, transferred, delivered or distributed, directly or indirectly, in or into those jurisdictions or in any country or jurisdiction where any such action for that purpose is required;

 

6. that the content of this Announcement is exclusively the responsibility of the Company and that neither the Bookrunner nor any of its respective Affiliates nor any person acting on their behalf has or shall have any responsibility or liability for any information, representation or statement contained in this Announcement or any information previously or subsequently published by or on behalf of the Company, including, without limitation, any Exchange Information, and will not be liable for any Placee's decision to participate in the Placing based on any information, representation or statement contained in this Announcement or any information previously published by or on behalf of the Company or otherwise. Each Placee further represents, warrants and agrees that the only information on which it is entitled to rely and on which such Placee has relied in committing itself to subscribe for the Placing Shares is contained in this Announcement and any Exchange Information, such information being all that it deems necessary to make an investment decision in respect of the Placing Shares, and that it has neither received nor relied on any other information given or investigations, representations, warranties or statements made by the Bookrunner or the Company and neither the Bookrunner nor the Company will be liable for any Placee's decision to accept an invitation to participate in the Placing based on any other information, representation, warranty or statement. Each Placee further acknowledges and agrees that it has relied on its own investigation of the business, financial or other position of the Company in deciding to participate in the Placing and that neither the Bookrunner nor any of their Affiliates have made any representations to it, express or implied, with respect to the Company, the Placing and the Placing Shares or the accuracy, completeness or adequacy of the Exchange Information, and each of them expressly disclaims any liability in respect thereof. Nothing in this paragraph or otherwise in this Announcement excludes the liability of any person for fraudulent misrepresentation made by that person;

 

7. that it has not relied on any information relating to the Company contained in any research reports prepared by the Bookrunner, any of its Affiliates or any person acting on the Bookrunners' or any of its Affiliates' behalf and understands that (i) neither the Bookrunner, nor any of its Affiliates nor any person acting on its behalf has or shall have any liability for public information or any representation; (ii) neither the Bookrunner, nor any of its Affiliates nor any person acting on its behalf has or shall have any liability for any additional information that has otherwise been made available to such Placee, whether at the date of publication, the date of this document or otherwise; and that (iii) neither the Bookrunner, nor any of its Affiliates nor any person acting on their behalf makes any representation or warranty, express or implied, as to the truth, accuracy or completeness of such information, whether at the date of publication, the date of this Announcement or otherwise;

 

8. that the allocation, allotment, issue and delivery to it, or the person specified by it for registration as holder, of Placing Shares will not give rise to a liability under any of sections 67, 70, 93 or 96 of the Finance Act 1986 (depositary receipts and clearance services) and that it is not participating in the Placing as nominee or agent for any person to whom the allocation, allotment, issue or delivery of the Placing Shares would give rise to such a liability and that the Placing Shares are not being acquired in connection with arrangements to issue depositary receipts or to issue or transfer Placing Shares into a clearance service;

 

9. acknowledges that no action has been or will be taken by the Company, the Bookrunner or any person acting on behalf of the Company or the Bookrunner that would, or is intended to, permit a public offer of the Placing Shares in any country or jurisdiction where any such action for that purpose is required;

 

10. that it and any person acting on its behalf is entitled to acquire the Placing Shares under the laws of all relevant jurisdictions which apply to it and that it has fully observed such laws and obtained all such governmental and other guarantees, permits, authorisations, approvals and consents which may be required thereunder and complied with all necessary formalities and that it has not taken any action or omitted to take any action which will or may result in the Bookrunner, the Company or any of their respective Affiliates acting in breach of the legal or regulatory requirements of any jurisdiction in connection with the Placing;

 

11. that it has all necessary capacity and has obtained all necessary consents and authorities to enable it to commit to its participation in the Placing and to perform its obligations in relation thereto (including, without limitation, in the case of any person on whose behalf it is acting, all necessary consents and authorities to agree to the terms set out or referred to in this Announcement) and will honour such obligations;

 

12. that it has complied with its obligations under the Criminal Justice Act 1993, section 118 of the Financial Services and Markets Act 2000, as amended (the "FSMA"), and in connection with money laundering and terrorist financing under the Proceeds of Crime Act 2002 (as amended), the Terrorism Act 2000, the Terrorism Act 2006, the Money Laundering Regulations 2007 (the "Regulations") and the Money Laundering Sourcebook of the FCA and, if making payment on behalf of a third party, that satisfactory evidence has been obtained and recorded by it to verify the identity of the third party as required by the Regulations. If within a reasonable time after a request for verification of identity, the Bookrunner has not received such satisfactory evidence, the Bookrunner may, in their absolute discretion, terminate the Placee's Placing Participation in which event all funds delivered by the Placee to the Bookrunner will be returned without interest to the account of the drawee bank or CREST account from which they were originally debited;

 

13. that it is acting as principal only in respect of the Placing or, if it is acting for any other person: (i) it is duly authorised to do so and has full power to make, and does make, the acknowledgments, representations and agreements herein on behalf of each such person; and (ii) it is and will remain liable to the Bookrunner and the Company for the performance of all its obligations as a Placee in respect of the Placing (regardless of the fact that it is acting for another person);

 

14. if in a Member State of the EEA, that it is a "Qualified Investor" within the meaning of Article 2(1)(e) of the Prospectus Directive;

 

15. if in the United Kingdom, that it is a person (i) having professional experience in matters relating to investments who falls within the definition of "investment professional" in Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (the "Order") or (ii) who falls within Article 49(2)(a) to (d) ("High Net Worth Companies, Unincorporated Associations, etc") of the Order or (iii) to whom this Announcement may otherwise lawfully be communicated and it undertakes that it will acquire, hold, manage and (if applicable) dispose of any Placing Shares that are allocated to it for the purposes of its business only;

 

16. that it will not distribute, transfer or otherwise transmit this Announcement or any part of it, or any other presentation or other materials concerning the Placing, in or into the United States (including electronic copies thereof) to any person, and it has not distributed, forwarded, transferred or otherwise transmitted any such materials to any person;

 

17. where it is acquiring the Placing Shares for one or more managed accounts, it represents, warrants and undertakes that it is authorised in writing by each managed account to acquire the Placing Shares for each managed account and it has full power to make the acknowledgements, representations and agreements herein on behalf of each such account;

 

18. that if it is a pension fund or investment company, it represents, warrants and undertakes that its acquisition of Placing Shares is in full compliance with applicable laws and regulations;

 

19. if it is acting as a financial intermediary, as that term is used in Article 3(2) of the Prospectus Directive, that the Placing Shares subscribed for by it in the Placing will not be subscribed for on a nondiscretionary basis on behalf of, nor will they be subscribed for with a view to their offer or resale to, persons in a member state of the EEA other than Qualified Investors, or in circumstances in which the prior consent of the Bookrunner has been given to the proposed offer or resale;

 

20. that it has not offered or sold and, prior to the expiry of a period of six months from Admission, will not offer or sell any Placing Shares to persons in the United Kingdom, except to Qualified Investors or otherwise in circumstances which have not resulted and which will not result in an offer to the public in the United Kingdom within the meaning of section 85(1) of FSMA;

 

21. that any offer of Placing Shares may only be directed at persons in member states of the EEA who are Qualified Investors and represents, warrants and undertakes that it has not offered or sold and will not offer or sell any Placing Shares to persons in the EEA prior to Admission except to Qualified Investors or otherwise in circumstances which have not resulted in and which will not result in an offer to the public in any member state of the EEA within the meaning of the Prospectus Directive (including any relevant implementing measure in any member state);

 

22. that it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) relating to the Placing Shares in circumstances in which section 21(1) of the FSMA does not require approval of the communication by an authorised person;

 

23. that it has complied and will comply with all applicable laws (including all relevant provisions of the FSMA) with respect to anything done by it in relation to the Placing Shares in respect of anything done in, from or otherwise involving, the United Kingdom;

 

24. if it has received any confidential price sensitive information about the Company in advance of the Placing, it has not: (i) dealt in the securities of the Company; (ii) encouraged or required another person to deal in the securities of the Company; or (iii) disclosed such information to any person, prior to the information being made publicly available;

 

25. that (i) it (and any person acting on its behalf) has capacity and authority and is otherwise entitled to subscribe for and purchase the Placing Shares under the laws of all relevant jurisdictions which apply to it; (ii) it has paid any issue, transfer or other taxes due in connection with its participation in any territory; (iii) it has not taken any action which will or may result in the Company, the Bookrunner, any of their Affiliates or any person acting on their behalf being in breach of the legal and/or regulatory requirements and/or any anti money laundering requirements of any territory in connection with the Placing and (iv) that the subscription for and purchase of the Placing Shares by it or any person acting on its behalf will be in compliance with applicable laws and regulations in the jurisdiction of its residence, the residence of the Company, or otherwise;

 

26. that it (and any person acting on its behalf) will make payment for the Placing Shares allocated to it in accordance with this Announcement on the due time and date set out herein against delivery of such Placing Shares to it, failing which the relevant Placing Shares may be placed with other Placees or sold as the Bookrunner may in their absolute discretion determine and without liability to such Placee. It will, however, remain liable for any shortfall below the net proceeds of such sale and the placing proceeds of such Placing Shares and may be required to bear any stamp duty or stamp duty reserve tax (together with any interest or penalties) due pursuant to the terms set out or referred to in this Announcement which may arise upon the sale of such Placee's Placing Shares on its behalf;

 

27. that its allocation (if any) of Placing Shares will represent a maximum number of Placing Shares to which it will be entitled, and required, to subscribe for, and that the Bookrunner or the Company may call upon it to subscribe for a lower number of Placing Shares (if any), but in no event in aggregate more than the aforementioned maximum;

 

28. that neither the Bookrunner nor any of its Affiliates nor any person acting on their behalf, is making any recommendations to it, or advising it regarding the suitability or merits of any transactions it may enter into in connection with the Placing and that participation in the Placing is on the basis that it is not and will not be a client of the Bookrunner and that the Bookrunner does not have any duties or responsibilities to it for providing the protections afforded to their respective clients or customers or for providing advice in relation to the Placing nor in respect of any representations, warranties, undertakings or indemnities contained in the Placing Agreement nor for the exercise or performance of any of the Bookrunners rights and obligations thereunder including any rights to waive or vary any conditions or exercise any termination right;

 

29. that the person whom it specifies for registration as holder of the Placing Shares will be (i) itself or (ii) its nominee, as the case may be. Neither the Bookrunner nor the Company will be responsible for any liability to stamp duty or stamp duty reserve tax or other similar duties or taxes (together with any interest or penalties) resulting from a failure to observe this requirement. Each Placee and any person acting on behalf of such Placee agrees to indemnify each of the Bookrunner, the Company and any of their respective Affiliates in respect of the same on an after-tax basis on the basis that the Placing Shares will be allotted to the CREST stock account of Davy who will hold them as nominee on behalf of such Placee until settlement in accordance with its standing settlement instructions;

 

30. that these terms and conditions and any agreements entered into by it pursuant to these terms and conditions, and any non-contractual obligations arising out of or in connection with such agreements, shall be governed by and construed in accordance with the laws of Ireland and it submits (on behalf of itself and on behalf of any person on whose behalf it is acting) to the exclusive jurisdiction of the Irish courts as regards any claim, dispute or matter arising out of any such contract, except that enforcement proceedings in respect of the obligation to make payment for the Placing Shares (together with any interest chargeable thereon) may be taken by the Bookrunner or the Company in any jurisdiction in which the relevant Placee is incorporated or in which any of its securities have a quotation on a recognised stock exchange;

 

31. that each of the Bookrunner, the Company and their respective Affiliates and others will rely upon the truth and accuracy of the representations, warranties, agreements, undertakings and acknowledgements set forth herein and which are given to each of the Bookrunner on their own behalf and on behalf of the Company and are irrevocable and it irrevocably authorises each of the Bookrunner and the Company to produce this Announcement, pursuant to, in connection with, or as may be required by any applicable law or regulation, administrative or legal proceeding or official inquiry with respect to the matters set forth herein;

 

32. that it will indemnify on an after-tax basis and hold each of the Bookrunner, the Company and their respective Affiliates and any person acting on their behalf harmless from any and all costs, claims, liabilities and expenses (including legal fees and expenses) arising out of or in connection with any breach of the representations, warranties, acknowledgements, agreements and undertakings in this Appendix and further agrees that the provisions of this Appendix shall survive after completion of the Placing;

 

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

 

34. that it acknowledges that its commitment to subscribe for Placing Shares on the terms set out herein and in the contract note will continue notwithstanding any amendment that may in future be made to the terms and conditions of the Placing and that Placees will have no right to be consulted or require that their consent be obtained with respect to the Company's or the Bookrunners conduct of the Placing;

 

35. that in making any decision to subscribe for the Placing Shares (i) it has sufficient knowledge, sophistication and experience in financial, business and international investment matters as is required to evaluate the merits and risks of subscribing for or purchasing the Placing Shares, (ii) it is experienced in investing in securities of this nature in this sector and is aware that it may be required to bear, and is able to bear, the economic risk of participating in, and is able to sustain a complete loss in connection with, the Placing, (iii) it has relied on its own examination, due diligence and analysis of the Company and its Affiliates taken as a whole, including the markets in which the Group operates, and the terms of the Placing, including the merits and risks involved and not upon any view expressed or information provided by or on behalf of the Bookrunner, (iv) it has had sufficient time to consider and conduct its own investigation with respect to the offer and purchase of the Placing Shares, including the legal, regulatory, tax, business, currency and other economic and financial considerations relevant to such investment, and (v) it will not look to the Company, the Bookrunner, 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;

 

36. acknowledges and agrees that the Bookrunner does not owe any fiduciary or other duties to it or any Placee in respect of any representations, warranties, undertakings or indemnities in the Placing Agreement;

 

37. understands and agrees that it may not rely on any investigation that the Bookrunner or any person acting on its behalf may or may not have conducted with respect to the Company and its Affiliates or the Placing and the Bookrunner has not made any representation or warranty to it, express or implied, with respect to the merits of the Placing, the subscription for or purchase of the Placing Shares, or as to the condition, financial or otherwise, of the Company and its Affiliates, or as to any other matter relating thereto, and nothing herein shall be construed as a recommendation to it to subscribe for the Placing Shares. It acknowledges and agrees that no information has been prepared by, or is the responsibility of, the Bookrunner for the purposes of this Placing;

 

38. acknowledges and agrees that it will not hold the Bookrunner or any of its Affiliates or any person acting on their behalf responsible or liable for any misstatements in or omission from any publicly available information relating to the Group or information made available (whether in written or oral form) relating to the Group (the "Information") and that neither the Bookrunner nor any person acting on behalf of the Bookrunner, makes any representation or warranty, express or implied, as to the truth, accuracy or completeness of such Information or accepts any responsibility for any of such Information;

 

39. that in connection with the Placing, the Bookrunner and any of its Affiliates acting as an investor for its own account may take up shares in the Company and in that capacity may retain, purchase or sell for its own account such shares in the Company and any securities of the Company or related investments and may offer or sell such securities or other investments otherwise than in connection with the Placing. Accordingly, references in this Announcement to shares being issued, offered or placed should be read as including any issue, offering or placement of such shares in the Company to the Bookrunner and any of its Affiliates acting in such capacity. In addition the Bookrunner may enter into financing arrangements and swaps with investors in connection with which the Bookrunner may from time to time acquire, hold or dispose of such securities of the Company, including the Placing Shares. Neither the Bookrunner nor any of its Affiliates intend to disclose the extent of any such investment or transactions otherwise than in accordance with any legal or regulatory obligation to do so;

 

40. acknowledges that (i) the Placing Shares have not been and will not be registered under the Securities Act or under the securities laws of any state or other jurisdiction of the United States, nor approved or disapproved by the US Securities and Exchange Commission, any state securities commission in the United States or any other United States regulatory authority; (ii) the Placing Shares are being offered and sold (a) in the United States to a limited number of QIBs in accordance with Rule 144A or pursuant to an exemption from the registration requirements of the Securities Act in a transaction not involving any "public offering", (b) outside the United States in reliance on Regulation S ,  or (c) pursuant to another  transaction exempt from or not subject to the registration requirements of the Securities Act and (iii) the Placing Shares may not be reoffered, resold, pledged or otherwise transferred except in transactions not requiring registration under the Securities Act;

 

41. represents and warrants that unless it is a QIB in the United States to whom the Placing Shares will be offered on a private placement basis, (a) each of it and each beneficial owner of the Placing Shares for whom it is acting is and at the time the Placing Shares are acquired will be, located outside the United States and is and will be acquiring the Placing Shares in an "offshore transaction" as defined in, and in accordance with, Regulation S and (b) it will not offer or sell, directly or indirectly, any of the Placing Shares except in an "offshore transaction" in accordance with Regulation S or in the United States pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act; and

 

42. that it is not acquiring any of the Placing Shares as a result of any form of general solicitation or general advertising (within the meaning of Rule 502(c) of Regulation D under the Securities Act) or it is located outside the United States and it is not acquiring any of the Placing Shares as a result of any form of directed selling efforts (as defined in Regulation S).

 

 

Additional representations and warranties from investors located in the United States

 

In addition to the foregoing, by participating in the Placing, each Placee (and any person acting on such Placee's behalf) who is located in the United States subscribing for Placing Shares being offered under a relevant exemption from the registration requirements of the Securities Act represents, warrants, agrees and confirms:

 

43. it (and any account for which it is purchasing) is a QIB;

 

44. that it is acquiring the Placing Shares for its own account (or for an account as to which it exercises sole investment discretion and it has authority to make, and does make, the acknowledgements, agreements, representations, undertakings and warranties contained herein on behalf of each such account) for investment purposes and not with a view to any distribution of the Placing Shares;

 

45. it (and any account for which it is purchasing) is not acquiring the Placing Shares with a view to any offer, sale or distribution thereof, or resale in connection with the distribution thereof, within the meaning of the Securities Act that would be in violation of the securities laws of the United States or any state thereof.

 

46. that the Placing Shares or any other securities of the Company have not been, and will not be, registered under the Securities Act or with any state or other jurisdiction of the United States and that the Placing Shares or any other securities of the Company may not be offered, sold, pledged or otherwise transferred, directly or indirectly, in or into the United States absent registration under the Securities Act, or pursuant to an available exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and in compliance with any applicable securities laws of any state or other jurisdiction of the United States;

 

47. it understands that the Placing Shares are being offered and sold to it in a transaction exempt from, or otherwise not subject to, the registration requirements of the Securities Act;

 

48. it has made its own assessment and has satisfied itself concerning the legal, tax, regulatory, currency and other economic considerations relevant to an investment in the Placing Shares;

 

49. that the Placing Shares may not be reoffered, resold, pledged or otherwise transferred by it except (i) outside the United States in an offshore transaction pursuant to Rule 903 or 904 of Regulation S (and not in a pre-arranged transaction resulting in the resale of the Placing Shares into the United States), (ii) in accordance with Rule 144A to a QIB purchasing for its own account or for the account of a QIB, or (iii) pursuant to another available exemption, if any, from registration under the Securities Act, in each case in compliance with all applicable securities laws of the states of the United States and other jurisdictions;

 

50. that (a) the Placing Shares offered and sold in the United States are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, and (b) it understands that the Placing Shares are expected to be issued to it through CREST but may be issued to it in certificated, definitive form and acknowledges and agrees that the Placing Shares will, to the extent they are delivered in certificated form, bear a legend to the following effect unless agreed otherwise with the Company:

 

"THESE SECURITIES HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER THE APPLICABLE SECURITIES LAWS OR WITH ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES, AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (B) IN ACCORDANCE WITH RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB, OR (C) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES. THESE SECURITIES MAY NOT BE DEPOSITED INTO THE COMPANY'S DEPOSITARY RECEIPT FACILITY UNLESS AND UNTIL SUCH TIME AS THESE SECURITIES ARE NO LONGER "RESTRICTED SECURITIES" WITHIN THE MEANING OF RULE 144(a)(3) UNDER THE SECURITIES ACT. EACH HOLDER, BY ITS ACCEPTANCE OF THESE SHARES, REPRESENTS THAT IT UNDERSTANDS AND AGREES TO THE FOREGOING RESTRICTIONS."

 

51. that (i) it will notify any transferee to whom it subsequently reoffers, resells, pledges or otherwise transfers the Placing Shares of the foregoing restrictions on transfer (ii) prior to any such disposal of the Placing Shares conducted in reliance on clause 55(iii) above, will (a) furnish to the Company or its designee, if the Company so requests, an opinion of counsel experienced in securities law matters to such effect and such other documents as the Company may require (including a letter from the purchaser substantially in the form of the US Investor Letter (Schedule 3 of the Placing Agreement) (the "US Investor Letter") and (b) provide notice of the transfer restrictions laid out in the US Investor Letter to any subsequent transferee and (ii) it agrees not to reoffer, resell, pledge or otherwise transfer the Placing Shares or any beneficial interest therein, to any person except to a person that meets all of the requirements laid out herein and in the Placing Agreement and agrees not to subsequently transfer the Placing Shares or any beneficial interest therein except in accordance with the transfer restrictions laid out herein and in the Placing Agreement, including the US Investor Letter;

 

52. it understands that the registrar and transfer agent for the Placing Shares will not be required to accept for registration of transfer any such Placing Shares by it except upon presentation of evidence satisfactory to the Company and the transfer agent that the foregoing restrictions on transfer have been complied with;

 

53. that so long as the Placing Shares are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, it will segregate such Placing Shares from any other shares in the Company that it holds that are not restricted securities and will not deposit the Placing Shares into any unrestricted depositary receipt facility maintained by any depositary bank in respect of the Company's Ordinary Shares and will only transfer such Placing Shares in accordance with the foregoing restrictions;

 

54. that no representation has been made as to the availability of the exemption provided by Rule 144, Rule 144A or any other exemption under the Securities Act for the reoffer, resale, pledge or transfer of the Placing Shares;

 

55. it understands and acknowledges that no agency of the United States or any state thereof has made any finding or determination as to the fairness of the terms of, or any recommendation or endorsement in respect of, the Placing Shares; and

 

56. it will sign and return the US Investor Letter in the form agreed between the Company and the Bookrunner as soon as possible after confirmation of its allocation in the Placing and in any event prior to settlement of the Placing Shares on 20 September 2016.

 

The foregoing acknowledgements, agreements, undertakings, representations, warranties and confirmations are given for the benefit of the Company as well as each of the Bookrunner (for their own benefit and, where relevant, the benefit of their respective Affiliates and any person acting on their behalf) and are irrevocable. Each Placee, and any person acting on behalf of a Placee, acknowledges that the Bookrunner do not owe any fiduciary or other duties to any Placee in respect of any representations, warranties, undertakings or indemnities in the Placing Agreement.

 

Please also note that the agreement to allot and issue Placing Shares to Placees (or the persons for whom Placees are contracting as agent) free of stamp duty and stamp duty reserve tax in the UK relates only to their allotment and issue to Placees, or such persons as they nominate as their agents, direct from the Company for the Placing Shares in question.

 

Such agreement also assumes, and is based on a warranty from each Placee, that the Placing Shares are not being acquired in connection with arrangements to issue depositary receipts or to issue or transfer the Placing Shares into a clearance service. Neither the Bookrunner nor the Company are liable to bear any stamp duty or stamp duty reserve tax or any other similar duties or taxes (transfer taxes) that arise on a sale of Placing Shares if there are any such arrangements, or any arrangements that arise subsequent to their acquisition by Placees or for transfer taxes arising otherwise than under the laws of the United Kingdom. Each Placee should, therefore, take its own advice as to whether any such transfer tax liability arises. Furthermore, each Placee agrees to indemnify on an after-tax basis and hold the Bookrunner and/or the Company and their respective Affiliates harmless from any and all interest, fines or penalties in relation to transfer taxes to the extent that such interest, fines or penalties arise from the unreasonable default or delay of that Placee or its agent.

 

Each Placee and any person acting on behalf of each Placee acknowledges and agrees that the Bookrunner or any of its Affiliates may, at their absolute discretion, agree to become a Placee in respect of some or all of the Placing Shares. Each Placee acknowledges and is aware that the Bookrunner is receiving a fee in connection with their role in respect of the Placing as detailed in the Placing Agreement.

 

When a Placee or person acting on behalf of the Placee is dealing with the Bookrunner, any

money held in an account with any of the Bookrunner on behalf of the Placee and/or any person acting on behalf of the Placee will not be treated as client money within the meaning of the rules and regulations of the FCA made under the FSMA or the Central Bank of Ireland. The Placee acknowledges that the money will not be subject to the protections conferred by the client money rules; as a consequence, this money will not be segregated from the Bookrunner's money in accordance with the client money rules and will be used by the Bookrunner in the course of its own business; and the Placee will rank only as a general creditor of the Bookrunner.

 

All times and dates in this Announcement may be subject to amendment by the Bookrunner (in its absolute discretion). The Bookrunner shall notify the Placees and any person acting on behalf of the Placees of any changes.

 

Past performance is no guide to future performance and persons needing advice should consult an independent financial adviser.

 

The rights and remedies of the Bookrunner and the Company under these Terms and Conditions are in addition to any rights and remedies which would otherwise be available to each of them and the exercise or partial exercise of one will not prevent the exercise of others.

 

Each Placee may be asked to disclose in writing or orally to the Bookrunner:

 

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

 

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



 

DEFINITIONS

 

In this Announcement:

 

"Admission" means the admission of the Placing Shares to trading on the Alternative Investment Market of the London Stock Exchange and the Enterprise Securities Market of the Irish Stock Exchange;

 

"Affiliate" has the meaning given in Rule 501(b) of Regulation D under the Securities Act or Rule 405 under the Securities Act, as applicable;

 

"Announcement" means this Announcement (including the Appendix to this Announcement);

 

"Bookbuild" means the bookbuilding process to be commenced by the Bookrunner to use reasonable endeavours to procure placees for the Placing Shares, as described in this Announcement and subject to the terms and conditions set out in this Announcement and the Placing Agreement;

 

"Company" means Fyffes plc;

 

"CREST" means the relevant system, as defined in the Uncertificated Securities Regulations 2001 (SI 2001/3755) (in respect of which Euroclear UK & Ireland Limited is the operator);

 

"FSMA" means the Financial Services and Markets Act 2000;

 

"Group" means the Company and its subsidiary undertakings;

 

"Irish Stock Exchange" means the Irish Stock Exchange plc;

 

"London Stock Exchange" means the London Stock Exchange plc;

 

"Ordinary Share" means an ordinary share of €0.06 each in the capital of the Company;

 

"Placee" means any person (including individuals, funds or otherwise) by whom or on whose behalf a commitment to subscribe for Placing Shares has been given;

 

"Placing" means the placing of the Placing Shares by the Bookrunner, on behalf of the Company;

 

"Placing Agreement" means the placing agreement between the Company and the Bookrunner in respect of the Placing;

 

"Placing Price" means the price per Ordinary Share at which the Placing Shares are placed;

 

"Placing Shares" means approximately 30 million new Ordinary Shares to be issued pursuant to the Placing;

 

"Prospectus Directive" means the Directive of the European Parliament and of the Council of the European Union 2003/71/EC, as amended (which includes any relevant implementing measure in each member state of the European Economic Area and amendments thereto, including the Directive of the European Parliament and of the Council of the European Union 2010/73/EU to the extent implemented in each member state of the European Economic Area);

 

"QIB" means a qualified institutional buyer as defined in Rule 144A;

 

"Regulation S" means Regulation S promulgated under the Securities Act;

 

"Regulatory Information Service" means an information service that is approved by the Irish Stock Exchange and the London Stock Exchange;

 

"Restricted Territory" means the United States, Australia, Canada, Japan or South Africa;

 

"Rule 144A" means Rule 144A under the Securities Act;

 

"Securities Act" means the US Securities Act of 1933, as amended;

 

"Terms and Conditions" means the terms and conditions of the Placing set out in the Appendix to this Announcement;

 

 "United Kingdom" or "UK" means the United Kingdom of Great Britain and Northern Ireland;

 

"United States" or "US" means the United States of America, its territories and possessions, any state of the United States and the District of Columbia;

 

"US Investor Letter" means the letter in the form set out in Schedule 3 of the Placing Agreement; and

 

"€" means the lawful currency of Ireland.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


This information is provided by RNS
The company news service from the London Stock Exchange
 
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