REG - Hilton Food Grp Plc - Proposed Acquisition of Seachill and Placing <Origin Href="QuoteRef">HFG.L</Origin> - Part 2
18/10/2017 07:06
- Part 2: For the preceding part double click ID:nRSR8821Ta
(a) Admission occurring at or before 8:00 a.m. (London time) on 7 November 2017 (or such later time and/or date, not being later than 8:00 a.m. (London time) on 21 November 2017, as the Company and Numis may otherwise agree) (the "Closing Date");
(b) the Company having confirmed to the Bookrunners that, prior to the delivery of such confirmation, none of the representations, warranties and agreements of the Company contained in the Placing Agreement was untrue, inaccurate or misleading at the date of the Placing Agreement or will be untrue, inaccurate or misleading immediately prior to Admission when repeated at that time, by reference to the facts and circumstances then subsisting;
(c) the Company having complied with or performed its obligations under the Placing Agreement to the extent that the same fall to be performed prior to Admission, save for any non-compliance which in the good faith opinion of Numis is not material;
(d) the Acquisition Agreement (i) having been duly executed by the parties thereto by or on the date of this Announcement; (ii) remaining in full force and effect and not having been materially modified, or rescinded, lapsed or been terminated (in whole or in part) prior to Admission (save with the consent of Numis); and (iii) having become unconditional in all respects save for any condition relating to Admission occurring and to the Placing Agreement not having been terminated and having become
unconditional in all respects;
(e) in the good faith opinion of Numis, between the date of the Placing Agreement and Admission there has been no material adverse change in, or any development involving a prospective material adverse change in, or affecting, the condition (financial, operational, legal or otherwise) or the earnings, management, business affairs, solvency, credit rating or prospects of the Company or of the Group (taken as a whole), whether or not arising in the ordinary course of business; and
(f) in the good faith opinion of Numis, between the date of the Placing Agreement and Admission there has been no material adverse effect on the business, operations, financial condition, assets, liabilities or gross profits of the Target and its subsidiaries, taken as a whole, which results in costs or losses or liability for the Target group of £7,500,000 or more (excluding certain circumstances, such as conditions generally affecting the industries in which the Target and its subsidiaries
operate, and matters disclosed to the Company prior to the date of the Placing Agreement).
Numis, at its discretion and upon such terms as its thinks fit, waive compliance by the Company with the whole or any part of any of the Company's obligations in relation to certain conditions in the Placing Agreement save that the above conditions relating, inter alia, to Admission taking place may not be waived. Any such extension or waiver will not affect Placees' commitments as set out in this Announcement.
If: (i) any of the conditions contained in the Placing Agreement, including those described above, is not fulfilled or (where permitted) waived by Numis by the relevant time or date specified (or such later time or date as the Company and Numis may agree); or (ii) the Placing Agreement is terminated by Numis in the circumstances specified below, the Placing will lapse and the Placees' rights and obligations hereunder in relation to the Placing Shares shall cease and terminate at such time and each Placee
agrees that no claim can be made by it in respect thereof.
Neither the Bookrunners nor any of their respective affiliates, agents, directors, officers or employees 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 Numis may make as to whether or not to waive, or to extend the time and/or date for the satisfaction of, any condition in the Placing Agreement nor in respect of any decision it may make as to the satisfaction of any condition or in respect of the Placing generally
and by participating in the Placing each Placee agrees that any such decision is within the absolute discretion of Numis.
Neither the Bookrunners 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 each of them may make as to whether or not to waive or to extend the time and/or date for the satisfaction of any condition to the Placing nor for any decision each of them 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 Company and/or the Bookrunners (as applicable). Right to terminate under the Placing Agreement
Numis is entitled, at any time before Admission, to terminate the Placing Agreement in accordance with its terms in certain circumstances, including, inter alia:
(a) if it comes to the knowledge of either Bookrunner that any of the warranties given by the Company in the Placing Agreement was untrue or inaccurate or misleading when made and/or that any of such warranties would be untrue or inaccurate in a material respect or misleading if it were to be repeated at any time prior to Admission by reference to the facts, matters and circumstances then subsisting and, in the opinion of either Bookrunner (acting in good faith), the effect of such is that it
would materially prejudice the success of the Placing or the distribution of the Placing Shares;
(b) any material adverse change in, or any development reasonably likely to lead to a material adverse change in, the condition (financial, operational or legal), the assets, or the earnings, results of operations or prospects of the Enlarged Group taken as a whole whether or not arising in the ordinary course of business and, in the opinion of either Bookrunner (acting in good faith), the effect of such is that it would materially prejudice the success of the Placing or the distribution of the
Placing Shares;
(c) the occurrence of one or more specified adverse macro-economic changes, suspension or material limitation in the trading on the London Stock Exchange's main market for listed securities of any securities of the Company or a general moratorium on commercial banking activities in London or New York which, in the opinion of either Bookrunner (acting in good faith) would materially prejudice the success of the Placing or the distribution of Placing Shares; or
(d) any of the conditions to the Placing are not fulfilled or waived (as applicable).
The rights and obligations of the Placees shall terminate only in the circumstances described in these terms and conditions and in the Placing Agreement and will not be subject to termination by the Placee or any prospective Placee at any time or in any circumstances. By participating in the Placing, Placees agree that the exercise by Numis of any right of termination or other discretion under the Placing Agreement shall be within the absolute discretion of Numis and that it need not make any reference to,
or consult with, Placees and that it shall have no liability to Placees whatsoever in connection with any such exercise. Placees will have no rights against either Bookrunner, the Company or any of their respective directors or employees under the Placing Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999 (as amended).
Whilst, in the circumstances described above, Panmure Gordon may also have the right to terminate its obligations under the Placing Agreement, such right shall not entitle Panmure Gordon to terminate the Placing Agreement and accordingly (subject to any concurrent right by Numis to terminate the Placing Agreement) such termination by Panmure Gordon shall be without prejudice to the surviving rights and obligations of Numis, the Company and any Placees.
The rights and obligations of the Placees shall terminate only in the
circumstances described in these terms and conditions and in the Placing
Agreement and will not be subject to termination by the Placee or any
prospective Placee at any time or in any circumstances. By participating in
the Placing, Placees agree that the exercise by Numis of any right of
termination or other discretion under the Placing Agreement shall be within
the absolute discretion of Numis and that it need not make any reference to,
or consult with, Placees and that it shall have no liability to Placees
whatsoever in connection with any such exercise. Placees will have no rights
against either Bookrunner, the Company or any of their respective directors or
employees under the Placing Agreement pursuant to the Contracts (Rights of
Third Parties) Act 1999 (as amended).
Whilst, in the circumstances described above, Panmure Gordon may also have the
right to terminate its obligations under the Placing Agreement, such right
shall not entitle Panmure Gordon to terminate the Placing Agreement and
accordingly (subject to any concurrent right by Numis to terminate the Placing
Agreement) such termination by Panmure Gordon shall be without prejudice to
the surviving rights and obligations of Numis, the Company and any Placees.
No Prospectus
The Placing Shares are being offered to a limited number of specifically
invited persons only and will not be offered in such a way as to require a
prospectus in the United Kingdom or in any other jurisdiction. No offering
document or prospectus has been or will be submitted to be approved by the FCA
or submitted to the London Stock Exchange in relation to the Placing.
Placees' commitments will be made solely on the basis of the information
contained in this Announcement (including this Appendix) released by the
Company today and subject to the further terms set forth in the trade
confirmation or contract note to be provided to individual Placees. Each
Placee, by accepting a participation in the Placing, agrees that the content
of this Announcement (including this Appendix) and all other publicly
available information previously published by the Company by notification to a
Regulatory Information Service 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 or either Bookrunner or any other person and none of the Company or
the Bookrunners nor any other person will be liable for any Placee's decision
to participate in the Placing based on any other information, representation,
warranty or statement which the Placees may have obtained or received. Each
Placee acknowledges and agrees that it has relied on its own investigation of
the business, financial or other position of the Company in accepting a
participation in the Placing. Nothing in this paragraph shall exclude the
liability of any person for fraudulent misrepresentation by that person.
Neither the Company, nor either Bookrunner are making any undertaking or
warranty to any Placee regarding the legality of an investment in the Placing
Shares by such Placee under any legal, investment or similar laws or
regulations. Each Placee should not consider any information in this
Announcement to be legal, tax or business advice. Each Placee should consult
its own solicitor, tax adviser and financial adviser for independent legal,
tax and financial advice regarding an investment in the Placing Shares.
Registration and Settlement
Settlement of transactions in the Placing Shares (ISIN: GB00B1V9NW54)
following Admission will take place within the system administered by
Euroclear UK & Ireland Limited ("CREST"). Subject to certain exceptions, the
Bookrunners and the Company reserve the right to require settlement for, and
delivery of, the Placing Shares (or any part thereof) to Placees by such other
means that they deem necessary if delivery or settlement is not possible or
practicable within the CREST system within the timetable set out in this
Announcement or would not be consistent with the regulatory requirements in
the Placee's jurisdiction.
Each Placee allocated Placing Shares in the Placing will be sent a trade
confirmation or contract note in accordance with the standing arrangements in
place with the relevant Bookrunner stating the number of Placing Shares
allocated to it at the Placing Price, the aggregate amount owed by such Placee
to the Bookrunner and settlement instructions. Each Placee agrees that it will
do all things necessary to ensure that delivery and payment is completed in
accordance with the standing CREST or certificated settlement instructions in
respect of the Placing Shares that it has in place with the relevant
Bookrunner.
Subject to, amongst other things, the Placing Agreement becoming unconditional
and not being terminated in accordance with its terms, it is expected that
settlement will be on 7 November 2017 in accordance with the instructions set
out in the trade confirmation or contract note.
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 Bookrunners.
Each Placee is deemed to agree that, if it does not comply with these
obligations, the Bookrunners may sell any or all of the Placing Shares
allocated to that Placee on such Placee's behalf and retain from the proceeds,
for the Bookrunners' 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 and shall indemnify the Bookrunners on demand 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) or other similar taxes imposed in any jurisdiction which may arise
upon the sale of such Placing Shares on such Placee's behalf. By communicating
an intention to subscribe for Placing Shares, each Placee confers on the
Bookrunners all such authorities and powers necessary to carry out any such
subscription and agrees to ratify and confirm all actions which the
Bookrunners lawfully take in pursuance of such subscription.
If Placing Shares are to be delivered to a custodian or settlement agent,
Placees should ensure that the trade confirmation or 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 as
provided below, be so registered free from any liability to UK stamp duty or
stamp duty reserve tax. Placees will not be entitled to receive any fee or
commission in connection with the Placing.
Representations, Warranties and Further Terms
By participating in the Placing each Placee (and any person acting on such Placee's behalf) irrevocably:
1. represents and warrants that it has read and understood the Announcement, including this Appendix, in its entirety and that its acquisition of Placing Shares is subject to and based upon all the terms, conditions, representations, warranties, acknowledgements, agreements and undertakings and other information contained herein and undertakes not to redistribute or duplicate this Announcement;
2. acknowledges that no offering document or prospectus has been or will be prepared in connection with the Placing and represents and warrants that it has not received and will not receive a prospectus or other offering document in connection with the Placing or the Placing Shares;
3. acknowledges that the Placing does not constitute a recommendation or financial product advice and neither Bookrunner has had regard to its particular objectives, financial situation or needs;
4. acknowledges that none of the Bookrunners, the Company, any of their respective affiliates, agents, directors, officers or employees has provided, nor will provide, it with any material regarding the Placing Shares or the Company other than this Announcement; nor has it requested any of the Bookrunners, the Company, any of their respective affiliates or any person acting on behalf of any of them to provide it with any such information;
5. acknowledges that the Ordinary Shares are listed on the Official List and are admitted to trading on the main market of the London 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/or the FCA, which includes a description of the Company's business and the Company's financial information, including balance sheets and income statements, and that it is able to
obtain or access to such information, or comparable information concerning other publicly traded companies, in each case without undue difficulty;
6. acknowledges that the content of this Announcement is exclusively the responsibility of the Company and that neither of the Bookrunners, nor their respective affiliates or any person acting on behalf of any of them, has or shall have any liability for any information, representation or statement contained in, or omission from, this Announcement or any information previously published by or on behalf of the Company, pursuant to applicable laws, 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 otherwise;
7. represents, warrants and agrees that the only information on which it is entitled to rely and on which such Placee has relied in committing itself to acquire Placing Shares is contained in this Announcement and any information previously published by the Company by notification to a Regulatory Information Service, such information being all that such Placee deems necessary or appropriate and sufficient to make an investment decision in respect of the Placing Shares and that it has neither
received nor relied on any other information given, or representations, warranties or statements made, by any of the Bookrunners or the Company nor any of their respective affiliates, agents, directors, officers or employees and none of the Bookrunners or the Company or any such affiliate, agent, director, officer or employee will be liable for any Placee's decision to accept an invitation to participate in the Placing based on any other information, representation, warranty or statement, provided that
nothing in this paragraph excludes the liability of any person for fraudulent misrepresentation made by that person;
8. acknowledges and agrees that it may not rely, and has not relied, on any investigation that either Bookrunner, any of their affiliates or any person acting on their behalf, may have conducted with respect to the Placing Shares or the Company, and none of such persons has made any representation, express or implied, with respect to the Company, the Placing Shares or the accuracy, completeness or adequacy of the information from the London Stock Exchange or any other information; each Placee further
acknowledges that it has conducted its own investigation of the Company and the Placing Shares and has received all information it believes necessary or appropriate in connection with its investment in the Placing Shares;
9. acknowledges that it has made its own assessment and has satisfied itself concerning the relevant tax, legal, currency and other economic considerations relevant to its investment in the Placing Shares;
10. acknowledges that none of the Bookrunners, their respective affiliates or any person acting on behalf of any of them has or shall have any liability for any information made publicly available by or in relation to the Company or any representation, warranty or statement relating to the Company or the Group contained therein or otherwise, and that where any such liability nevertheless arises as a matter of law Placees will immediately waive any claim against any of such persons which they may
have in respect thereof, provided that nothing in this paragraph excludes the liability of any person for fraudulent misrepresentation made by that person;
11. represents and warrants that (i) the Placing Shares have not been, and will not be, registered under the Securities Act; (ii) it is and, at the time the Placing Shares are acquired, will be outside the United States and acquiring the Placing Shares in an "offshore transaction" in accordance with Rule 903 or Rule 904 of Regulation S; (iii) if acquiring the Shares for the account of one or more other persons, it has full power and authority to make the representations, warranties, agreements,
undertakings and acknowledgements herein on behalf of each such person; (iv) it is not acquiring the Placing Shares as a result of any "directed selling efforts" as defined in Regulation S; and (v) it will not publish, distribute or transmit this Announcement or any other document or information related to the Placing, by any means or media, directly or indirectly, in whole or in part, in or into the United States;
12. acknowledges that in making any decision to acquire Placing Shares it (i) has such knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of subscribing for or purchasing the Placing Shares, (ii) will not look to either Bookrunner for all or part of any loss it may suffer as a result of any such subscription or purchase, (iii) 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 an investment in the Placing Shares, (iv) is able to sustain a complete loss of an investment in the Placing Shares and (v) has no need for liquidity with respect to its investment in the Placing Shares;
13. undertakes, unless otherwise specifically agreed with the Bookrunners, 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 Australia, Canada, Japan or South Africa and further acknowledges that the Placing Shares have not been and will not be registered under the securities legislation of Australia, Canada, Japan or South Africa and, subject to certain exceptions, may not be offered, sold, transferred,
delivered or distributed, directly or indirectly, in or into any of those jurisdictions;
14. acknowledges that the Placing Shares have not been and will not be registered, and that a prospectus will not be cleared in respect of any of the Placing Shares, under the securities laws or legislation of the United States or any state or jurisdiction thereof, Australia, Canada, Japan, or South Africa and, subject to certain exceptions, may not be offered, sold, or delivered or transferred, directly or indirectly, in or into those jurisdictions;
15. represents and warrants that the issue to it, or the person specified by it for registration as holder, of Placing Shares will not give rise to a liability under any of sections 67, 70, 93 or 96 of the Finance Act 1986 (depositary receipts and clearance services) and that the Placing Shares are not being acquired in connection with arrangements to issue depositary receipts or to issue or transfer Placing Shares into a clearance service;
16. represents and warrants that it has complied with its obligations under the Criminal Justice Act 1993, the EU Market Abuse Regulation (2015/596/EU) ("MAR") 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 and the Money Laundering Regulations 2007 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 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;
17. represents and warrants 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 the acknowledgments, warranties, representations, undertakings, and agreements herein on behalf of each such person; and (ii) it is and will remain liable to the Company and/or the Bookrunners 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);
18. if a financial intermediary, as that term is used in Article 3(2) of the EU Prospectus Directive, represents, warrants and undertakes that the Placing Shares purchased by it in the Placing will not be acquired on a non-discretionary basis on behalf of, nor will they be acquired with a view to their offer or resale to, persons in a Member State of the EEA which has implemented the Prospectus Directive other than Qualified Investors, or in circumstances in which the prior consent of the
Bookrunners has been given to the offer or resale;
19. represents, warrants and undertakes that it has not offered or sold and 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;
20. represents, warrants and undertakes that it has not offered or sold and will not, prior to Admission, offer or sell any Placing Shares to persons in the EEA except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their business or otherwise in circumstances which have not resulted in and which will not result in an offer to the public (within the meaning of the Prospectus Directive) in any
member state of the EEA;
21. represents, warrants and undertakes 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;
22. represents, warrants and undertakes 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;
23. represents and warrants, if in a Member State of the European Economic Area, unless otherwise specifically agreed with the Bookrunners in writing, that it is a "Qualified Investor";
24. represents and warrants, 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 professionals" in Article 19(5) of 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;
25. acknowledges and agrees that no action has been or will be taken by either the Company or the Bookrunners or any person acting on behalf of the Company or the Bookrunners that would, or is intended to, permit a public offer of the Placing Shares in any country or jurisdiction where any such action for that purpose is required;
26. 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, 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 to enable it to commit to this participation in the Placing and to perform its obligations in
relation thereto (including, without limitation, in the case of any person on whose behalf it is acting, all necessary consents and authorities to agree to the terms set out or referred to in this Appendix) and will honour such obligations and that it has not taken any action or omitted to take any action which will or may result in the Bookrunners, the Company or any of their respective directors, officers, agents, employees or advisers acting in breach of the legal or regulatory requirements of any
jurisdiction in connection with the Placing;
27. undertakes that it (and any person acting on its behalf) will make payment in respect of the Placing Shares allocated to it in accordance with this Appendix on the due time and date set out herein, failing which the relevant Placing Shares may be placed with other acquirers or sold as the Bookrunners may in their sole discretion determine and without liability to such Placee, who will remain liable and will indemnify the Bookrunners on demand for any amount by which the net proceeds of such
sale fall short of the product of the relevant Placing Price and the number of Placing Shares allocated to it and may be required to bear any stamp duty, stamp duty reserve tax or other similar taxes (together with any interest or penalties) which may arise upon such placing or sale of such Placee's Placing Shares;
28. acknowledges that neither of the Bookrunners, nor any of their respective affiliates, agents, directors, officers or employees is making any recommendations to it or advising it regarding the suitability of any transactions it may enter into in connection with the Placing and that its participation in the Placing is on the basis that it is not and will not be a client of either Bookrunner in connection with its participation in the Placing and that neither Bookrunner has any duty nor
responsibility to it for providing the protections afforded to its 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 its rights and obligations thereunder including any rights to waive or vary any conditions or exercise any termination right;
29. acknowledges that each of the Bookrunners does not have any duties or responsibilities to it, or its clients, similar or comparable to the duties of "best execution" and "suitability" imposed by the Conduct of Business Sourcebook in the FCA's Handbook of Rules and Guidance and that neither of the Bookrunners is acting for it or its clients and that it will not be responsible for providing protections to it or its clients;
30. undertakes that the person whom it specifies for registration as holder of the Placing Shares will be (i) itself or (ii) its nominee, as the case may be. Neither of the Bookrunners nor the Company will be responsible for any liability to stamp duty or stamp duty reserve tax or other similar taxes resulting from a failure to observe this requirement ("IndemnifiedTaxes"). Each Placee and any person acting on behalf of such Placee agrees to indemnify the Company and the Bookrunners on an after-tax
basis in respect of any Indemnified Taxes;
31. acknowledges that these terms and conditions and any agreements entered into by it pursuant to the terms and conditions set out in this Appendix, and all non-contractual or other obligations arising out of or in connection with them, shall be governed by and construed in accordance with the laws of England and Wales and it submits (on behalf of itself and on behalf of any person on whose behalf it is acting) to the exclusive jurisdiction of the English courts as regards any claim, dispute or
matter arising out of any such contract (including any dispute regarding the existence, validity or termination of such contract or relating to any non-contractual or other obligation arising out of or in connection with 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 either the Company or either Bookrunner in any jurisdiction in which the relevant Placee is incorporated or
in which any of its securities have a quotation on a recognised stock exchange;
32. agrees to indemnify on an after tax basis and hold the Company, the Bookrunners and their respective affiliates harmless from any and all costs, claims, liabilities and expenses (including legal fees and expenses) arising out of or in connection with any breach of its 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. except as set out in clause 34 below, represents and warrants that it has neither received nor relied on any 'inside information' (for the purposes of MAR and section 56 of the Criminal Justice Act 1993) concerning the Company prior to or in connection with accepting the invitation to participate in the Placing and is not purchasing Placing Shares on the basis of material non-public information;
34. if it has received any 'inside information' (for the purposes of MAR and section 56 of the Criminal Justice Act 1993) in relation to the Company and its securities, it confirms that it has received such information within the market soundings regime provided for in article 11 of MAR and associated delegated regulations and it has not: (i) dealt (or attempted to deal) in the securities of the Company; (ii) encouraged, recommended or induced another person to deal in the securities of the
Company; or (iii) unlawfully disclosed inside information to any person, prior to the information being made publicly available;
35. if it is a pension fund or investment company, its purchase of Placing Shares is in full compliance with applicable laws and regulations;
36. agrees that the Company, the Bookrunners and their respective affiliates and others will rely upon the truth and accuracy of the foregoing representations, warranties, acknowledgements, agreements, and undertakings which are given to the Bookrunners on their own behalf and on behalf of the Company and are irrevocable and it irrevocably authorises the Company and the Bookrunners 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;
37. none of the Company or the Bookrunners owes any fiduciary or other duties to any Placee in respect of any acknowledgments, confirmations, undertakings, representations, warranties or indemnities in the Placing Agreement; and
38. its commitment to take up Placing Shares on the terms set out in this Announcement (including this Appendix) will continue notwithstanding any amendment that may or in the 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 or the Bookrunners' conduct of the Placing.
The foregoing representations, warranties, agreements, undertakings,
acknowledgements and confirmations are given for the benefit of the Company as
well as each of the Bookrunners and are irrevocable. Each Placee, and any
person acting on behalf of the Placee, acknowledges that neither the Company
nor either of the Bookrunners owes any fiduciary or other duties to any Placee
in respect of any representations, warranties, undertakings or indemnities in
the Placing Agreement.
The agreement to allot and issue Placing Shares to Placees (and/or to persons
for whom such Placee is contracting as agent) free of stamp duty and stamp
duty reserve tax 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 that the Placing
Shares are not being acquired in connection with arrangements to issue
depositary receipts or to issue or transfer the Placing Shares into a
clearance service. If there are any such arrangements, or the settlement
relates to any other dealing in the Placing Shares, stamp duty or stamp duty
reserve tax or other similar taxes may be payable, for which neither the
Company nor the Bookrunners will be responsible and the Placees shall
indemnify the Company and the Bookrunners on an after-tax basis for any stamp
duty or stamp duty reserve tax paid by them in respect of any such
arrangements or dealings. If this is the case, each Placee should seek its own
advice and notify the Bookrunners accordingly.
The Company and the Bookrunners are not liable to bear any transfer taxes that
arise on a sale of Placing Shares 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 and notify the Bookrunners accordingly.
Furthermore, each Placee agrees to indemnify on an after-tax basis and hold
each of the Bookrunners and the Company and their respective affiliates
harmless from any and all interest, fines or penalties in relation to stamp
duty, stamp duty reserve tax and all other similar duties or taxes to the
extent that such interest, fines or penalties arise from the default or delay
of that Placee or its agent.
In addition, Placees should note that they will be liable for any stamp duty
and all other stamp, issue, securities, transfer, registration, documentary or
other duties or taxes (including any interest, fines or penalties relating
thereto) payable outside the UK by them or any other person on the acquisition
by them of any Placing Shares or the agreement by them to acquire any Placing
Shares.
Each Placee and any person acting on behalf of the Placee acknowledges and
agrees that any Bookrunner or any of its affiliates may, at its absolute
discretion, agree to become a Placee in respect of some or all of the Placing
Shares and that, in the event that the Bookrunners fail to procure Placees for
any of the Placing Shares then the Bookrunners will, as principal, subscribe
for such Placing Shares.
When a Placee or person acting on behalf of the Placee is dealing with a
Bookrunner, any money held in an account with such 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. 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 such Bookrunner's money in accordance with
the client money rules and will be used by such Bookrunner in the course of
its own business and the Placee will rank only as a general creditor of such
Bookrunner.
All times and dates in this Announcement may be subject to amendment. The
Bookrunners shall notify the Placees and any person acting on behalf of the
Placees of any changes.
DEFINITIONS
Acquisition the purchase by the Company of the Target pursuant to the Acquisition Agreement.
Admission admission of the Placing Shares to the Official List of the FCA and to trading on the London Stock Exchange's main market.
Bookrunners Numis and Panmure Gordon.
Buyer Hilton Foods Limited, a wholly owned subsidiary of the Company.
Circular the circular to shareholders to be published today setting out details of the Acquisition.
Class 1 Transaction a major transaction, the size of which results in a 25 per cent. threshold being reached under any of the class tests set out in the Listing Rules.
Company or Hilton Hilton Food Group plc.
Completion completion of the Acquisition pursuant to the Sale and Purchase Agreement
Enlarged Group the Group as enlarged following the acquisition of the Target.
FSMA the Financial Services and Markets Act 2000.
General Meeting The general meeting of the Company (or any adjournment of it) convened for 10 a.m. on 6 November 2017 for shareholders to approve the Resolutions, notice of which are set out in the Circular.
Group the Company and its subsidiary undertakings.
Listing Rules The listing rules made by the UKLA under Part VI of FSMA
London Stock Exchange London Stock Exchange plc.
Numis Numis Securities Limited.
Ordinary Shares ordinary shares of £0.10 each in the capital of the
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