TIDMSKG
RNS Number : 9309F
Smurfit Kappa Group PLC
19 November 2020
THIS ANNOUNCEMENT, INCLUDING THE APPIX, AND THE INFORMATION
CONTAINED HEREIN IS RESTRICTED AND IS NOT FOR RELEASE, PUBLICATION
OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, IN OR
INTO THE UNITED STATES, CANADA, AUSTRALIA, JAPAN, SOUTH AFRICA OR
ANY OTHER STATE OR JURISDICTION IN WHICH SUCH RELEASE, PUBLICATION
OR DISTRIBUTION WOULD BE UNLAWFUL. PLEASE SEE THE IMPORTANT NOTICE
SECTION OF THIS ANNOUNCEMENT.
THIS ANNOUNCEMENT IS FOR INFORMATION PURPOSES ONLY AND IS NOT AN
OFFER OF SECURITIES IN ANY JURISDICTION.
This announcement contains inside information.
19 November 2020
Smurfit Kappa Group plc
("Smurfit Kappa", the "Company" or the "Group")
Proposed Placing of New Ordinary Shares
Smurfit Kappa, one of the leading providers of paper-based
packaging solutions in the world, today announces its intention to
conduct an equity raise, through a non-pre-emptive placing of new
ordinary shares of EUR0.001 each in the capital of the Company (the
"Placing Shares"), to raise gross proceeds of approximately EUR650
million (the "Placing").
The Placing will be conducted through an accelerated bookbuild
(the "Bookbuild") which will be launched immediately following this
Announcement and will be made available to qualifying new and
existing investors. The Placing is subject to the terms and
conditions set out in the Appendix to this announcement. Credit
Suisse Securities (Europe) Limited ("Credit Suisse"), J&E Davy
("Davy") and BNP Paribas ("BNP Paribas") are acting as joint global
co-ordinators and joint bookrunners (together, the 'Bookrunners')
in respect of the Placing.
Tony Smurfit, Group CEO:
"Our strong track record of delivery has resulted in the Group
being very well-positioned to capitalise on structural growth
opportunities. From this position of s trength we are now focused
on investing to strengthen the business and accelerating our
vision.
Net proceeds from the Placing, together with internally
generated cash flows, will enable us to accelerate investment over
the next three years, and enable us to deliver for our customers
with enhanced financial flexibility.
The continued development of e--commerce and the increasing
demand for sustainable, paper-based packaging are presenting
opportunities for Smurfit Kappa. Accelerated investment, at this
time, will allow us to increase our competitive advantage, align us
with the sustainability goals of our customers and enhance our
operational efficiency.
The unrelenting dedication, commitment and loyalty of the
broader Smurfit Kappa team has enabled us to strengthen our
position, continuing to deliver for all stakeholders. We sincerely
thank each and every one of our employees for their continuing
contribution to an ever brighter future for Smurfit Kappa."
Company Track Record
Smurfit Kappa has consistently delivered, operationally and
financially, driven by its unrivalled market offering (including
its SMART suite of applications and 'Better Planet Packaging'
initiative), its leading market positions (#1 in Europe in
corrugated boxes, kraftliner and containerboard production) and its
world class asset-base. The Company is a leader in sustainability
and has a strong performance-led, customer-focused culture.
The Group has a proven track-record of disciplined and effective
capital allocation, which coupled with its strong operational
capabilities, has delivered secure and superior returns as
demonstrated by its resilient EBITDA margin, Return on Capital
Employed ("ROCE") and, most recently, by the earnings achieved in
challenging market conditions in the year-to-date.
The Group's vision is to be a globally admired business,
dynamically delivering secure and superior returns for all
stakeholders. The Group believes there is now an opportunity to
accelerate its vision by capitalising on the structural trends in
e-commerce and sustainability that are creating significant
opportunities for its business.
Reasons for the Placing
The Group operates in a growth industry, supported by the strong
structural growth drivers of sustainable packaging, e-commerce and
changing consumer retail habits. The Group believes that the
acceleration in e-commerce growth, the consumer and customer focus
on reducing plastic packaging use, customers setting ambitious
climate change goals throughout their supply chains, high growth
geographies continuing to deliver, the importance of innovation to
cater for customers' complex and dynamic requirements, all provide
significant opportunities on which the Group can capitalise.
The Group has identified EUR1.2-1.4 billion of investment
opportunities, which it believes will strengthen the business for
the long-term by increasing the Group's competitive advantage in
the market place operationally, commercially and financially.
Increased investment in the business will enable the Group to
strengthen its partnerships with customers through innovation and
added-value products and to capitalise on the drivers of growth in
the industry as e-commerce penetration deepens and the consumer
demand for sustainable packaging increases. A number of projects
have been identified that will improve the Group's sustainability
credentials and positioning, benefitting all stakeholders. The
Group has identified additional investment opportunities that will
increase its operational efficiency. These investments will enhance
the margin resilience of the business and enable the Group to
improve productivity, as well as develop capacity in growing
segments. The identified opportunities are in line with the Group's
17% ROCE through the cycle target.
These opportunities are as follows :
1. Capitalising on Structural Drivers of Growth
The Group has identified between EUR900 million and EUR1 billion
of opportunities, expected through 2021--2023, to capitalise on
structural drivers of growth of which approximately two-thirds
relates to downstream conversion opportunities to cater for growth
and added-value products and one-third is focused on containerboard
integration and light-weighting opportunities.
Smurfit Kappa's business is significantly orientated toward FMCG
customers and over recent years we have continued to develop our
added-value packaging proposition for customers as they seek to
cater for changes in consumer habits. Retailers are increasingly
focused on quick turnaround, digital solutions and generating
in-store purchases through high quality shelf-ready packaging.
Shelf-ready packaging also facilitates the reduction of costs in
the supply-chain through labour cost reduction. Sustainability
credentials, positioning and solutions are also leading to
opportunities in added-value packaging where consumers are
demanding sustainable retail channels and see brands as responsible
for sustainability. Examples include the replacement of plastic
shrink-wrap on cans and bottles, replacing polystyrene buffers and
replacing plastic trays with 100% paper-based alternatives.
The move to reduce the use of plastic packaging is being driven
by the consumer's desire for more sustainable packaging, as voiced
by numerous NGO's, which in turn is driving an increased focus with
brand-owners and manufacturers, both from a reputational risk
perspective and as a market opportunity. The growing trend towards
more sustainable packaging is also increasingly supported by
legislation.
A key secular trend in the packaging industry is e-commerce and
this channel has experienced significant growth as a result of the
COVID pandemic and its impact on consumers' online spending habits.
Paper-based corrugated packaging facilitates faster packing and an
easy returns process while the complexity of supply chains as a
result of the development of e-commerce has introduced an increased
need for packaging to perform through the supply-chain.
The Group is uniquely positioned to capitalise on these
long-term trends with its unrivalled market offering, leading
market positions, world-class asset base and performance-led
culture. The Group partners with its customers to grow their
business by helping them increase their sales, reduce costs and
improve the sustainability of their consumer offering.
Of the identified EUR900 million to EUR1 billion of projects,
over EUR500 million relates to corrugated expansion and corrugated
conversion assets, such as die-cutters and multi-point gluers, to
cater for growth in e--commerce and added-value FMCG segments.
2. Investing in Sustainability
2019 and 2020 have seen a rise in global FMCG brands setting
increasingly ambitious climate goals and customers looking for
suppliers with aligned strategies and ambitions, with the objective
of reducing emissions in their supply chains. By investing in
leading industrial sustainability initiatives, the Group believes
that it has an opportunity to lead and position itself as the
sustainable partner of choice, creating a long-term competitive
advantage.
In particular, the Group has recently announced new ambitious
sustainability targets, with the objective of being at least "net
zero" by 2050, with a target of 55% reduction in fossil fuel
emissions intensity by 2030.
The Group has identified between EUR150 million and EUR200
million of projects to be implemented between 2021 and 2023 to
accelerate the delivery on its sustainability objectives and
improve its competitive advantage. Examples include EUR75 million
on boiler investments in Colombia and Germany.
3. Increasing Operational Efficiency
Finally, the Group has undertaken a review of its business
operations and identified between EUR140 million and EUR175 million
of opportunities where it believes that through a programme of
increased investment it will be able to deliver improved efficiency
and financial savings, further enhancing its well--invested asset
base and the margin resilience of the business. These opportunities
include investing in low-cost corrugated box plants (mega-plants),
automating manual handling processes, focusing on demand pull for
capacity growth, optimising its operational footprint, and building
on the strong operational improvements on metrics such as
productivity per man hour and a reduction in 'parts per million
defects'. Examples include approximately EUR65 million on
warehousing and over EUR60 million on conveyorisation and handling
equipment.
Strengthening our Business for the Long-term
As a result of the Placing, the Group will continue to have a
strong balance sheet with enhanced financial flexibility. The
Group's consistent approach to balance sheet management has been a
driver of returns and success, and the Group believes that a strong
balance sheet provides the platform to accelerate growth
opportunities, including the agility to execute M&A while
underpinning the continued focus on shareholder returns.
The Group continues to aim for the lower end of its target
leverage range of 1.75x to 2.5x net debt to EBITDA, has a
progressive dividend policy, and is a proven good steward and
allocator of capital.
Director and Senior Management Participation
Certain Directors and members of the senior management team
intend to participate in the Placing in respect of in aggregate
EUR1.3 million.
Interim Dividend
The Placing shares will not be eligible for the recently
declared interim dividend of 27.9 cent per share payable on 11
December 2020.
Details of the Placing
Credit Suisse, Davy and BNP Paribas are acting as joint global
co-ordinators and joint bookrunners in relation to the Placing. The
Company and the Bookrunners have entered into a placing agreement
in connection with the Placing (the "Placing Agreement").
The Placing is subject to the Terms and Conditions set out in
the Appendix which forms part of this Announcement.
Credit Suisse, Davy and BNP Paribas will commence a bookbuilding
process in respect of the Placing immediately following this
Announcement (the "Bookbuild"). The price per ordinary share at
which the Placing Shares are to be placed (the "Placing Price")
will be determined 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 Euros. Prospective
Placees may elect to settle their allocation in Sterling at the
Sterling Placing Price. The timing of the closing of the book,
pricing and allocations are at the absolute discretion of the
Company and the Bookrunners. Details of the Placing Price, the
Sterling Placing Price, and the number of Placing Shares to be
issued will be announced as soon as practicable after the close of
the Bookbuild. The Sterling Placing Price will be based on the
Bloomberg BFIX mid-point Sterling/Euro exchange rate at the first
fixing time after the closing of the Bookbuild.
The final number of Placing Shares and the price at which such
shares will be subscribed for will be determined at the close of
the Bookbuild, and the result will be announced as soon as
practicable thereafter. The timing for the close of the Bookbuild,
the allocation of the Placing Shares and the Placing Price shall be
determined together by, and at the absolute discretion of, Credit
Suisse, Davy, BNP Paribas and the Company. The Placing is not
underwritten.
Prior to launch of the Placing, the Company consulted with a
significant number of its shareholders to gauge their feedback as
to the terms of the Placing. Feedback from this consultation was
supportive and as a result the Board has concluded that the Placing
is in the best interests of shareholders and wider stakeholders and
will promote the long-term success of the Company and has chosen to
proceed with the Placing. The Placing is being structured as a
Bookbuild to minimise execution and market risk. The Board intends
to apply the principles of pre-emption when allocating Placing
Shares to those shareholders that participate in the Placing.
The Placing Shares, when issued, will be fully paid and will
rank pari passu in all respects with each other and with the
existing ordinary shares of EUR0.001 each in the capital of the
Company (the "Ordinary Shares"), including, without limitation, the
right to receive all dividends and other distributions declared,
made or paid in respect of Ordinary Shares after the date of issue.
As at the date of this Announcement, the Company has 238,567,932
Ordinary Shares in issue.
The Company will make applications for the admission of the
Placing Shares to (a) the premium listing segment of the Official
List of the Financial Conduct Authority of the United Kingdom (the
"FCA") and to trading on the London Stock Exchange plc's (the
"London Stock Exchange") main market for listed securities
(together, the "UK Admission") and (b) to a secondary listing on
the Official List of The Irish Stock Exchange plc, trading as
Euronext Dublin ("Euronext Dublin") and to trading on the Euronext
Dublin Market operated by Euronext Dublin (together, the "Irish
Admission" and, together with the UK Admission, "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 24 November 2020. The Placing is
conditional upon, amongst other things, Admission becoming
effective and the Placing Agreement not being terminated in
accordance with its terms. The Appendix to this Announcement, which
forms part of this Announcement, sets out further information
relating to the Bookbuild and the Terms and Conditions to which the
Placing is subject.
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 Notices" section of this Announcement.
MAR information
This announcement contains inside information for the purposes
of EU Market Abuse Regulation 596/2014 ("MAR"). The person
responsible for arranging for the release of this announcement on
behalf of Smurfit Kappa Group plc is Gillian Carson-Callan, Company
Secretary. The date and time of this announcement is the same as
the date and time that it has been communicated to the media, at
4.35 pm on 19 November 2020.
In addition, 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 defined in MAR) relating to the
Company and its securities, 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 such inside information relating to the
Company and its securities.
For further information on the Announcement, please contact:
Smurfit Kappa Group plc
Garrett Quinn
Tel: +353 1 202 71 80
Email: ir@smurfitkappa.com
Credit Suisse (Joint Global Co-ordinator and Joint
Bookrunner)
Antonia Rowan
Cathal Deasy
Karl Montfort
David Watkins
Tel: +44 (0) 20 7888 8888
Davy (Joint Global Co-ordinator and Joint Bookrunner)
John Lydon
Ronan Veale
Daragh O'Reilly
Barry Murphy
Tel: +353 (0)1 679 6363
BNP Paribas (Joint Global Co-ordinator and Joint Bookrunner)
Lewis Burnett
Paul Frankfurt
Chris Byrne
Sara MacGrath
Tel: +44 (0)20 7595 2000
FTI Consulting (Media Enquiries)
Jonathan Neilan
Melanie Farrell
Tel: +353 86 231 4135 / +353 86 401 5250
Email: smurfitkappa@fticonsulting.com
About Smurfit Kappa
Smurfit Kappa, a FTSE 100 company, is one of the leading
providers of paper-based packaging solutions in the world, with
approximately 46,000 employees in over 350 production sites across
35 countries and with revenue of EUR9.0 billion in 2019. We are
located in 23 countries in Europe, and 12 in the Americas. We are
the only large-scale pan--regional player in Latin America.
With our pro-active team, we relentlessly use our extensive
experience and expertise, supported by our scale, to open up
opportunities for our customers. We collaborate with
forward-thinking customers by sharing superior product knowledge,
market understanding and insights in packaging trends to ensure
business success in their markets. We have an unrivalled portfolio
of paper-packaging solutions, which is constantly updated with our
market-leading innovations. This is enhanced through the benefits
of our integration, with optimal paper design, logistics,
timeliness of service, and our packaging plants sourcing most of
their raw materials from our own paper mills.
Our products, which are 100% renewable and produced sustainably,
improve the environmental footprint of our customers.
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smurfitkappa.com
IMPORTANT NOTICES
This Announcement has been issued by, and is the sole
responsibility of, the Company. No representation or warranty,
express or implied, is or will be made as to, or in relation to,
and no responsibility or liability is or will be accepted by Credit
Suisse, Davy or BNP Paribas or by any of their respective
affiliates or agents as to, or in relation to, the accuracy or
completeness of this Announcement or any other written or oral
information made available to or publicly available to any
interested party or its advisers in connection with the Placing and
Admission, and any liability therefor is expressly disclaimed.
Credit Suisse, which is regulated in the United Kingdom by the
Financial Conduct Authority ("FCA"), is acting exclusively as joint
global co-ordinator and joint bookrunner for the Company and for
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.
Davy, which is regulated in Ireland by the Central Bank of
Ireland, is acting exclusively as joint global co-ordinator and
joint bookrunner for the Company and for 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.
BNP Paribas, which is lead supervised by the European Central
Bank ("ECB") and the Autorité de Contrôle Prudentiel et de
Résolution ("ACPR") (and its London Branch is authorised by the
ECB, the ACPR and the Prudential Regulation Authority and subject
to limited regulation by the Financial Conduct Authority and the
Prudential Regulation Authority) is acting exclusively as joint
global co-ordinator and joint bookrunner for the Company and for
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 Bookrunners by the Financial Services and
Markets Act 2000 of the United Kingdom or by the regulatory regime
established under it, neither Credit Suisse, Davy, BNP Paribas nor
any of their respective affiliates owes or accepts any duty,
liability or responsibility whatsoever to any person who is not a
client 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 Bookrunners or their respective
affiliates in connection with the Company, the Placing Shares or
the Placing. The Bookrunners and each of their respective
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 Bookrunners or any of their respective affiliates as
to the accuracy, completeness or sufficiency of the information
contained in this Announcement. Neither Credit Suisse, Davy, BNP
Paribas nor any of their respective affiliates, directors,
officers, employees, agents or advisors have authorised the
contents of, or any part of, this Announcement.
In connection with the Placing, each of the Bookrunners and any
of their respective affiliates may take up a portion of the shares
in the Placing as a principal position and in that capacity may
retain, purchase, sell, offer to sell for its own account such
shares and other securities of the Company or related investments
in connection with the Placing or otherwise. Accordingly,
references to Placing Shares being offered, acquired, placed or
otherwise dealt in should be read as including any issue or offer
to, or acquisition, placing or dealing by, each of the Bookrunners
and any of their respective affiliates acting in such capacity. In
addition, the Bookrunners and any of their respective affiliates
may enter into financing arrangements (including swaps, warrants or
contracts for differences) with investors in connection with which
the Bookrunners and any of their respective affiliates may from
time to time acquire, hold or dispose of shares. The Bookrunners do
not intend to disclose the extent of any such investment or
transactions otherwise than in accordance with any legal or
regulatory obligations to do so.
The Bookrunners and their respective affiliates may have engaged
in transactions with, and provided various commercial banking,
investment banking, financial advisory transactions and services in
the ordinary course of its business with the Company and/or its
affiliates for which they would have received customary fees and
commissions. The Bookrunners and their respective affiliates may
provide such services to the Company and/or its affiliates in the
future.
Members of the public are not eligible to take part in the
Placing. All offers of the Placing Shares will be made pursuant to
an exemption under Regulation (EU) 2017/1129 (the "Prospectus
Regulation") from the requirement to produce a prospectus for
offers of the Placing Shares. This Announcement is directed only at
and may only be communicated to: (A) persons in a Member State of
the European Economic Area who are qualified investors ("Qualified
Investors") within the meaning of Article 2(e) of the Prospectus
Regulation; or (B) in the United Kingdom, Qualified Investors who
are also (A) persons having professional experience in matters
relating to investments who fall within the definition of
"investment professional" in Article 19(5) of the Financial
Services and Markets Act 2000 (Financial Promotion) Order 2005 of
the United Kingdom, as amended (the "Order"), (B) 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 including the
Company Placing Participants (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 is for information
purposes only and shall not constitute an offer to sell or issue or
the solicitation of an offer to buy, subscribe for or otherwise
acquire securities in any jurisdiction in which any such offer or
solicitation would be unlawful. Any failure to comply with this
restriction may constitute a violation of the securities laws of
such jurisdictions. Persons needing advice should consult an
independent financial adviser.
This announcement is not for publication or distribution,
directly or indirectly, in or into the United States of America.
This announcement is not an offer of securities for sale into the
United States. The offer and sale of the securities referred to
herein have not been and will not be registered under the U.S.
Securities Act of 1933, as amended, and such securities may not be
offered or sold in the United States, except pursuant to an
applicable exemption from registration. No public offering of
securities is being made in the United States.
This Announcement and the information contained herein is
restricted and is not for release, publication or distribution,
directly or indirectly, in whole or in part, in, into or from the
United States (including its territories and possessions, any state
of the United States and the District of Columbia, collectively the
"United States"), Australia, Canada, Japan, New Zealand, the
Republic of South Africa or any other state or jurisdiction in
which the same would be restricted, unlawful or unauthorised (each
a "Restricted Territory"). In addition, the offering of the Placing
Shares in certain jurisdictions may be restricted by law. 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. No action has been taken by the
Company or the Bookrunners 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 Bookrunners to inform themselves about, and to
observe, such restrictions. Any failure to comply with these
restrictions may constitute a violation of the securities laws of
such jurisdictions.
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 Bookrunners. The contents of this
Announcement are not to be construed as legal, financial or tax
advice. Persons needing advice should consult an independent
financial adviser.
Solely for the purposes of the product governance requirements
contained within: (a) EU Directive 2014/65/EU on markets in
financial instruments, as amended ("MiFID II"); (b) Articles 9 and
10 of Commission Delegated Directive (EU) 2017/593 supplementing
MiFID II; and (c) local implementing measures (together, the "MiFID
II Product Governance Requirements"), and disclaiming all and any
liability, whether arising in tort, contract or otherwise, which
any 'manufacturer' (for the purposes of the MiFID II Product
Governance Requirements) may otherwise have with respect thereto,
the Placing Shares have been subject to a product approval process,
which has determined that such Placing Shares are: (i) compatible
with an end target market of retail investors and investors who
meet the criteria of professional clients and eligible
counterparties, each as defined in MiFID II; and (ii) eligible for
distribution through all distribution channels as are permitted by
MiFID II (the "Target Market Assessment"). Notwithstanding the
Target Market Assessment, distributors should note that: the price
of the Placing Shares may decline and investors could lose all or
part of their investment; the Placing Shares offer no guaranteed
income and no capital protection; and an investment in the Placing
Shares is compatible only with investors who do not need a
guaranteed income or capital protection, who (either alone or in
conjunction with an appropriate financial or other adviser) are
capable of evaluating the merits and risks of such an investment
and who have sufficient resources to be able to bear any losses
that may result therefrom.
The Target Market Assessment is without prejudice to the
requirements of any contractual, legal or regulatory selling
restrictions in relation to the Placing. Furthermore, it is noted
that, notwithstanding the Target Market Assessment, The Bookrunners
will only procure investors who meet the criteria of professional
clients and eligible counterparties or who are Company Placing
Participants. For the avoidance of doubt, the Target Market
Assessment does not constitute: (a) an assessment of suitability or
appropriateness for the purposes of MiFID II; or (b) a
recommendation to any investor or group of investors to invest in,
or purchase or take any other action whatsoever with respect to the
Placing Shares. Each distributor is responsible for undertaking its
own target market assessment in respect of the Placing Shares and
determining appropriate distribution channels.
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. Many factors could cause
actual results, performance or achievements to differ materially
from those projected or implied in any forward-looking statements.
The important factors that could cause the Company's actual
results, performance or achievements to differ materially from
those in the forward-looking statements include, among others, the
macroeconomic environment (including the impact of COVID-19),
economic and business cycles, the terms and conditions of the
Company's financing arrangements, foreign currency rate
fluctuations, competition in the Company's principal markets,
acquisitions or disposals of businesses or assets and trends in the
Company's principal industries. Due to such uncertainties and
risks, readers are cautioned not to place undue reliance on such
forward-looking statements, which speak only as of the date hereof.
In light of these risks, uncertainties and assumptions, the events
described in the forward-looking statements in this Announcement
may not occur. The information contained in this Announcement,
including the forward-looking statements, 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 Euronext Dublin, the Central Bank of Ireland, the FCA,
the London Stock Exchange, 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.
Certain numbers in this Announcement have been rounded up or
down. There may therefore be discrepancies between the actual
totals of the individual amounts in this Announcement and the
underlying data.
Any indication in this Announcement of the price at which
Ordinary Shares have been bought or sold in the past cannot be
relied upon as a guide to future performance. 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
Euronext Dublin Market of Euronext Dublin and the Main Market of
the London 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 will be asked to represent,
warrant and acknowledge that: (i) it is 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; (ii) it and any account with respect to which
it exercises sole investment discretion, is either (a) outside the
United States, or (b) a QIB; and (iii) if it is a financial
intermediary, as that term is used in Article 2(d) of the
Prospectus Regulation, that it understands the resale and transfer
restrictions set out in the Appendix and that any Placing Shares
acquired by it in the Placing will not be acquired on a
non-discretionary basis on behalf of, nor will they be acquired
with a view to their offer or resale to, persons in circumstances
which may give rise to an offer of securities to the public other
than an offer or resale in a member state of the EEA to Qualified
Investors or in the United Kingdom to Relevant Persons, or in
circumstances in which the prior consent of the Bookrunners has
been given to each such proposed offer or resale.
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.
No prospectus or offering document will be made available in
connection with the matters contained in this Announcement and no
such prospectus or offering document is required (in accordance
with the Prospectus Regulation) to be published. This Announcement
has not been approved by the Central Bank of Ireland, Euronext
Dublin, the FCA, the London Stock Exchange or any other competent
regulatory authority.
The most recent Annual Report, trading update and other
information relating to the Company are available on the Smurfit
Kappa website at smurfitkappa.com . 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.
APPIX
TERMS AND CONDITIONS
IMPORTANT INFORMATION ON THE PLACING FOR INVITED PLACEES
ONLY
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE
PLACING. THIS ANNOUNCEMENT (INCLUDING THE APPIX) AND THE TERMS AND
CONDITIONS SET OUT HEREIN (THE "ANNOUNCEMENT") ARE FOR INFORMATION
PURPOSES ONLY AND ARE DIRECTED ONLY AT AND MAY ONLY BE COMMUNICATED
TO: (A) PERSONS IN A MEMBER STATE OF THE EUROPEAN ECONOMIC AREA
(THE "EEA"), WHO ARE QUALIFIED INVESTORS ("QUALIFIED INVESTORS")
WITHIN THE MEANING OF ARTICLE 2(E) OF REGULATION (EU) 2017/1129 ON
THE PROSPECTUS TO BE PUBLISHED WHEN SECURITIES ARE OFFERED TO THE
PUBLIC OR ADMITTED TO TRADING ON A REGULATED MARKET (THE
"PROSPECTUS REGULATION"); OR (B) IN THE UNITED KINGDOM, QUALIFIED
INVESTORS WHO ARE ALSO (I) PERSONS HAVING PROFESSIONAL EXPERIENCE
IN MATTERS RELATING TO INVESTMENTS WHO FALL WITHIN THE DEFINITION
OF "INVESTMENT PROFESSIONAL" IN ARTICLE 19(5) OF THE FINANCIAL
SERVICES AND MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER 2005 OF
THE UNITED KINGDOM, AS AMED (THE "ORDER"), (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 INCLUDING THE
COMPANY PLACING PARTICIPANTS (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 OFFER AND SALE OF THE PLACING SHARES HAVE NOT BEEN AND WILL
NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933,
AS AMED (THE "SECURITIES ACT"), OR UNDER THE SECURITIES LAWS OF, OR
WITH ANY SECURITIES REGULATORY AUTHORITY OF, ANY STATE OR OTHER
JURISDICTION OF THE UNITED STATES, AND MAY NOT BE OFFERED, SOLD OR
TRANSFERRED, DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED STATES
ABSENT REGISTRATION UNDER THE SECURITIES ACT OR PURSUANT TO AN
EXEMPTION FROM 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 WILL BE MADE (i) IN THE UNITED STATES, ONLY TO
"QUALIFIED INSTITUTIONAL BUYERS" ("QIBs") WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") 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 used in this Appendix
have the meanings ascribed to them at the end of this Appendix.
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 Ireland, the United Kingdom, 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 or in any jurisdiction in which such publication or
distribution is restricted, unlawful or unauthorised (each a
"Restricted Territory"). 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 Bookrunners 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 (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 Bookrunners
to inform themselves about, and to observe, any such
restrictions.
Investors should consult their professional advisers if they are
in any doubt as to whether or not they may receive and accept the
Placing.
No prospectus has been filed with any securities commission or
similar regulatory authority in Canada in connection with the offer
and sale of the Placing Shares. No securities commission or similar
regulatory authority in Canada has reviewed or in any way passed
upon this document or on the merits of the Placing Shares and any
representation to the contrary is an offence. The offer and sale of
the Placing Shares in Canada is being made on a private placement
basis only and is exempt from the requirement that the issuer
prepares and files a prospectus under applicable Canadian
securities laws. Any resale of Placing Shares acquired by a
Canadian investor in this offering must be made in accordance with
applicable Canadian securities laws, which resale restrictions may
under certain circumstances apply to resales of the Placing Shares
outside of Canada.
As applicable, each Canadian investor who purchases the Placing
Shares will be deemed to have represented to the issuer, the
Bookrunners and to each dealer from whom a purchase confirmation is
received, as applicable, that the investor (i) is purchasing as
principal, or is deemed to be purchasing as principal in accordance
with applicable Canadian securities laws, for investment only and
not with a view to resale or redistribution; (ii) is an "accredited
investor" as such term is defined in section 1.1 of National
Instrument 45-106 Prospectus Exemptions ("NI 45-106") or, in
Ontario, as such term is defined in section 73.3(1) of the
Securities Act (Ontario); and (iii) is a "permitted client" as such
term is defined in section 1.1 of National Instrument 31-103
Registration Requirements, Exemptions and Ongoing Registrant
Obligations.
Securities legislation in certain provinces or territories of
Canada may provide a purchaser with remedies for rescission or
damages if any Placing Document that constitutes an offering
memorandum for the purposes of applicable Canadian securities laws
(including any amendment thereto) contains a misrepresentation,
provided that the remedies for rescission or damages are exercised
by the purchaser within the time limit prescribed by securities
legislation of the purchaser's province or territory. The purchaser
should refer to any applicable provisions of the securities
legislation of the purchaser's province or territory for
particulars of these rights or consult with a legal advisor.
Pursuant to section 3A.3 of National Instrument 33-105
Underwriting Conflicts ("NI 33-105"), this Placing is conducted
pursuant to any exemption from the requirement that Canadian
investors be provided with certain underwriter conflicts of
interest disclosure that would otherwise be required pursuant to
subsection 2.1(1) of NI 33-105.
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
Bookrunners or any of their respective Affiliates or agents as to
or in relation to, the accuracy or completeness of this
Announcement or any other written or oral information made
available to or publicly available to any party or its advisers,
and any liability therefore is expressly disclaimed.
The Bookrunners are acting exclusively for the Company and for
no-one else in connection with the Placing and are not, and will
not be, responsible to anyone (including the Placees) other than
the Company for providing the protections afforded to their clients
or for providing advice in relation to the Placing or the contents
of the Placing Documents or any other matter referred to
therein.
None of the Company, the Bookrunners or their respective
Affiliates, or any person acting on behalf of any of them, make any
representation or warranty, express or implied, to any Placees
regarding an investment in the securities referred to in this
Announcement under the laws applicable to such Placees. Each Placee
should consult its own advisers as to the legal, tax, business,
financial and related aspects of an investment in the Placing
Shares.
By participating in the Placing, Placees (including individuals,
funds or otherwise) by whom or on whose behalf a commitment to
acquire Placing Shares has been given will 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.
In particular each such Placee represents, warrants and
acknowledges that:
a) it is a Relevant Person and undertakes that it will acquire,
hold, manage or dispose of any Placing Shares that are allocated to
it for the purposes of its business;
b) except as otherwise permitted by the Company and subject to
any available exemptions from applicable securities laws, it and
any account with respect to which it exercises sole investment
discretion, is either (i) outside the United States subscribing for
the Placing Shares in an offshore transaction as defined in and in
accordance with Regulation S under the Securities Act or (ii) a
"qualified institutional buyer" as defined in Rule 144A under the
Securities Act ("Rule 144A"); and
c) if it is a financial intermediary, as that term is used in
Article 2(d) of the Prospectus Regulation, that it understands the
resale and transfer restrictions set out in this Appendix and that
any Placing Shares acquired by it in the Placing will not be
acquired on a non-discretionary basis on behalf of, nor will they
be acquired with a view to their offer or resale to, persons in
circumstances which may give rise to an offer of securities to the
public other than an offer or resale in a member state of the EEA
to Qualified Investors or in the United Kingdom to Relevant
Persons, or in circumstances in which the prior consent of the
Bookrunners has been given to each such proposed offer or
resale.
IMPORTANT INFORMATION FOR PLACEES ONLY REGARDING THE PLACING
Details of the Placing Agreement and of the Placing Shares
Credit Suisse Securities (Europe) Limited ("Credit Suisse"),
J&E Davy ("Davy") and BNP Paribas ("BNP Paribas"), as joint
global coordinators and joint bookrunners (together, the
"Bookrunners") and Smurfit Kappa Group 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 Bookrunners, as agent for and on behalf of the
Company, have agreed to use their reasonable endeavours to procure
placees (the "Placees") for new ordinary shares of EUR0.001 each in
the capital of the Company (the "Placing Shares") to raise gross
proceeds of approximately EUR650 million at a price (in Euro) to be
determined following completion of the bookbuilding process (the
"Bookbuild") (the "Placing").
The Placing Shares have been or will be duly authorised and
will, when issued, be credited as fully paid and will rank pari
passu in all respects with the existing ordinary shares of EUR0.001
each in the capital of the Company (the "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 Ordinary Shares
after the date of issue. 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 make applications for the admission of the
Placing Shares to (a) the premium listing segment of the Official
List of the Financial Conduct Authority of the United Kingdom (the
"FCA") and to trading on the London Stock Exchange plc's (the
"London Stock Exchange") main market for listed securities
(together, the "UK Admission") and (b) a secondary listing on the
Official List of The Irish Stock Exchange plc, trading as Euronext
Dublin ("Euronext Dublin") and to trading on the Euronext Dublin
Market operated by Euronext Dublin (together, the "Irish Admission"
and, together with the UK Admission, "Admission").
It is expected that Admission will become effective and that
dealings will commence in the Placing Shares at 8.00 a.m. on 24
November 2020.
Bookbuild
The Bookrunners 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. Credit Suisse, Davy and BNP Paribas are acting as joint
global coordinators and joint bookrunners, as agents of the Company
in connection with the Placing. Credit Suisse, Davy and BNP Paribas
are arranging the Placing severally, and not jointly, nor jointly
and severally, as agents of the Company.
2. Participation in the Placing will only be available to
persons who may lawfully be, and are, invited to participate by the
Bookrunners. The Bookrunners and their respective Affiliates are
entitled to enter bids in the Bookbuild as principal.
3. The Bookbuild will establish a single price payable to the
Bookrunners as agent for the Company 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
Bookrunners and the Company following completion of the Bookbuild
and any discount to the market price of the Ordinary Shares will be
determined in accordance with the Listing Rules of the FCA. The
Placing Price and the number of Placing Shares will be announced on
a Regulatory Information Service ("RIS") following the completion
of the Bookbuild.
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 the Bookrunners. 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
Bookrunners, or at prices up to a price limit specified in its bid.
Prior to the closing of the Bookbuild, prospective Placees may
elect to settle their allocation in Sterling. The Sterling Placing
Price will be contained in the Term Sheet (as defined below) and
provided to Placees at the time of communicating allocations. The
Sterling Placing Price will be based on the Bloomberg BFIX
mid-point Sterling/Euro exchange rate at the first fixing time
after the closing of the Bookbuild. Bids may be scaled down by the
Bookrunners on the basis referred to in paragraph 9 below. Each of
the Bookrunners reserves the right not to accept bids or to accept
bids in part rather than in whole.
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 Bookrunners' 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 Bookrunners to pay to them (or as the
Bookrunners may direct) in cleared funds (in Euro, or if previously
elected, in Sterling) 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 Bookrunners. 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 5.00 p.m.
(Irish time) on 20 November 2020 but may be closed earlier or later
at the discretion of the Bookrunners and the Company. The
Bookrunners 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 Bookrunners and the Company in their sole discretion and each
Placee's allocation, and if relevant, the Sterling Placing Price,
will be confirmed orally by any of the Bookrunners (as an agent of
the Company) following the close of the Bookbuild and a contract
note or electronic confirmation will be despatched thereafter. The
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 Bookrunners 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 or electronic confirmation issued to such Placee by
the Bookrunners. These Terms and Conditions will be deemed
incorporated in that contract note or electronic confirmation.
9. Subject to paragraphs 4 and 5 above, the Bookrunners 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 they may determine.
The Bookrunners 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/or (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 Bookrunners. The Company reserves
the right (upon agreement with the Bookrunners) to reduce or seek
to increase the amount to be raised pursuant to the Placing, in its
absolute discretion.
10. The allocation of Placing Shares to Placees located in the
United States shall be conditional on the receipt, compliance
and/or execution (as may be applicable) by each Placee of or with
an investor representation letter in the form provided to that
Placee by one of the Bookrunners or its Affiliates.
11. Except as required by law or regulation, no press release or
other announcement will be made by the Bookrunners 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.
12. Irrespective of the time at which a Placee's allocation
pursuant to the Placing is confirmed, settlement of 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".
13. All obligations under the Bookbuild and Placing will be
subject to fulfilment or (where applicable) waiver of the
conditions referred to below under "Conditions of the Placing" and
to the Placing not being terminated on the basis referred to below
under "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.
14. By participating in the Bookbuild, each Placee agrees that
its rights and obligations in respect of the Placing will terminate
only in the circumstances described below and will not be capable
of rescission or termination by the Placee.
15. To the fullest extent permissible by law, neither the
Bookrunners nor the Company nor any of their respective Affiliates,
agents, advisors, directors, officers or employees shall have any
responsibility or liability to any Placee (or to any other person
whether acting on behalf of a Placee or otherwise) in connection
with the Placing. In particular, neither the Bookrunners nor the
Company nor any of their respective Affiliates, agents, advisors,
directors, officers or employees shall have any responsibility or
liability (including to the fullest extent permissible by law, any
fiduciary duties) in respect of the Bookrunners' conduct of the
Bookbuild or of such alternative method of effecting the Placing as
the Bookrunners 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 Bookrunners' under the Placing
Agreement are conditional on, amongst other things:
(A) the execution and delivery of the term sheet setting out the
Placing Price and the Sterling Placing Price by the Bookrunners and
the Company at the time of pricing of the Placing (the "Term
Sheet");
(B) the publication by the Company of the results of the Placing
on a Regulatory Information Service (the "Pricing
Announcement");
(C) each of the warranties set out in the Placing Agreement
being true and accurate and not misleading as of the date of the
Placing Agreement and at all times up to and including the time and
date of Admission as though they had been given and made on such
time and date by reference to the facts and circumstances then
existing;
(D) the Company having complied with all of the obligations on
its part to be performed under the Placing Agreement, or under the
terms and conditions of the Placing which fall to be performed on
or before Admission;
(E) other than this Announcement and the Pricing Announcement,
no supplementary announcement being required to be published in
connection with the Placing prior to Admission other than would
not, in the good faith opinion of the Bookrunners (acting jointly)
be expected to be materially adverse to the Placing;
(F) the Company issuing and allotting, subject only to
Admission, the Placing Shares in accordance with the Placing
Agreement; and
(G) Admission having occurred by 8.00 a.m. (Irish time) on the Admission Date; and
(H) in the opinion of each of the Bookrunners (acting in good
faith) there not having been a Material Adverse Change between the
date of the Placing Agreement and Admission.
If (i) any of the conditions contained in the Placing Agreement,
including those described above, are not fulfilled or, where
permitted, waived by the Bookrunners by the relevant time and/or
date specified (or such later time and/or date as the Company and
the Bookrunners 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 Bookrunners will not
affect Placees' commitments as set out in this Announcement.
The Bookrunners may, at their discretion and upon such terms as
they think 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 conditions in
the Placing Agreement relating to Admission taking place and the
Placing Shares being allotted and/or issued may not be waived. Any
such extension or waiver will not affect Placees' commitments as
set out in this Announcement.
None of the Bookrunners, the Company or any of their respective
Affiliates, or any of their or its respective Affiliates'
directors, officers, employees, agents or advisers, 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 Bookrunners 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.
Lock-up
The Company has undertaken to the Bookrunners that, between the
date of the Placing Agreement and 180 calendar days after
Admission, it will not, without the prior written consent of the
Bookrunners enter into certain transactions involving or relating
to the Ordinary Shares, subject to certain customary carve-outs
agreed between the Bookrunners and the Company.
By participating in the Placing, Placees agree that the exercise
by the Bookrunners of any power to grant consent to waive the
undertaking by the Company in respect of any transaction which
would otherwise be subject to the lock-up under the Placing
Agreement shall be within the absolute discretion of the
Bookrunners and that they need not make any reference to, or
consult with, Placees and that they shall have no liability to
Placees whatsoever in connection with any such exercise of the
power to grant consent.
Termination of the Placing Agreement
Each of the Bookrunners are entitled at any time before
Admission to terminate the Placing Agreement by giving notice to
the Company, if, amongst other things:
(i) any of the conditions to which the obligations of the
Bookrunners are conditional under the Placing Agreement which fall
to be satisfied on or before Admission have not been satisfied or
waived by the date set out therein;
(ii) any of the warranties or undertakings contained in the
Placing Agreement given by the Company is untrue, inaccurate or
misleading in any respect or there has been a breach or an alleged
breach by the Company of any of the undertakings in the Placing
Agreement, which in each case the Bookrunners (acting in good faith
and following consultation with the Company to the extent
practical) consider to be material in the context of the Placing or
Admission;
(ii) any statement contained in any Placing Document is or has
become or has been discovered to be untrue, inaccurate or
misleading, or any matter has arisen, which would, if a Placing
Document was to be issued at that time constitute or omission
therefrom, which in each case the Bookrunners (acting in good
faith, and following consultation with the Company to the extent
practical) consider to be material in the context of the Placing or
Admission;
(iii) in the opinion of either of the Bookrunners (acting in
good faith, and following consultation with the Company to the
extent practical) there has occurred or been disclosed through a
Regulatory Information Service a Material Adverse Change;
(iv) the occurrence of a material adverse change in
international financial markets, a suspension or occurrence of
material limitations to trading in any securities of the Company or
to trading generally on the New York Stock Exchange, the NASDAQ
National Market, the London Stock Exchange or Euronext Dublin, a
material disruption in commercial banking or securities settlement
or clearance services in the United States, the United Kingdom,
Ireland or the EEA, a material change or development in taxation in
the United States, the United Kingdom or Ireland, the imposition of
exchange controls in the United States, the United Kingdom or
Ireland, or the declaration of a banking moratorium by the United
States, the United Kingdom or Ireland, which, in the opinion of the
Bookrunners (acting in good faith, and following consultation with
the Company to the extent practicable), makes it impracticable or
inadvisable to proceed with the Placing or the delivery of the
Placing Shares; or
(v) if the applications of the Company for Admission are
withdrawn or refused by the London Stock Exchange or Euronext
Dublin.
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 Bookrunners of any right of termination or other discretion
under the Placing Agreement shall be within the absolute discretion
of the Company or either of the Bookrunners or for agreement
between the Company and the Bookrunners (as the case may be) and
that neither the Company nor the Bookrunners need make any
reference to, or consultation with, Placees and that neither they,
nor any of their respective Affiliates, agents, directors, officers
or employees shall have any liability to Placees whatsoever in
connection with any such exercise 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 any other competent 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, including any Exchange
Information 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 or
electronic confirmation 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 Bookrunners or their
respective Affiliates or any other person and neither the
Bookrunners 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:
IE00B1RR8406 ) following Admission will take place within the
relevant system operated 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 Bookrunners'
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 or electronic communication stating the number of
Placing Shares to be allocated to it at the Placing Price and if
relevant, the Sterling Placing Price, the aggregate amount owed by
such Placee to the Bookrunners and settlement instructions. It is
expected that the contract note or electronic communication will be
despatched on 20 November 2020 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 Bookrunners.
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 24 November 2020 on a
T + 2 basis in accordance with the instructions given to the
Bookrunners.
Interest is chargeable daily on payments not received from
Placees on the due date in accordance with the arrangements set out
above at the rate of two percentage points above LIBOR as
determined by the Bookrunners.
Each Placee agrees 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 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 or
electronic communication 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, fines and
penalties) is payable in respect of the allocation, allotment,
issue or delivery of the Placing Shares (or if, for the avoidance
of doubt, any stamp duty or stamp duty reserve tax is payable in
connection with any subsequent transfer or agreement to transfer
Placing Shares), neither the Bookrunners nor the Company shall be
responsible for the payment thereof.
Representations and warranties
By participating in the Placing each Placee (and any person
acting on such Placee's behalf) irrevocably acknowledges, confirms,
undertakes, represents, warrants and agrees (as the case may be)
with the Bookrunners (in their capacity as joint global
coordinators, joint bookrunners and placing agents of the Company
in respect of the Placing) and the Company, in each case as a
fundamental term of its application for Placing Shares, the
following:
(a) 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 Bookbuild, the Placing, the Company, the Placing
Shares or otherwise;
(b) that no offering document or prospectus or admission
document has been or will be prepared in connection with the
Placing or Admission or is required under the Prospectus Regulation
and it has not received and will not receive a prospectus,
admission document or other offering document in connection with
the Bookbuild, the Placing, Admission or the Placing Shares;
(c) that the issued Ordinary Shares are admitted to trading on
the Main Market of the London Stock Exchange and the Euronext
Dublin Market of Euronext Dublin, and that the Company is therefore
required to publish certain business and financial information in
accordance with applicable law, including the Market Abuse
Regulation (Regulation (EU) No 596/2014) ("MAR"), the rules and
practices of the London Stock Exchange, the FCA and/or Euronext
Dublin, the Disclosure Guidance and Transparency Rules of the FCA
and the Irish Transparency Regulations and Rules, the Prospectus
Regulation and the Companies Act 2014 of Ireland (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;
(d) that neither the Bookrunners 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
Bookbuild, the Placing or the Company or any other person other
than this Announcement, nor has it requested any of the
Bookrunners, 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;
(e) 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 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;
(f) that the content of this Announcement is exclusively the
responsibility of the Company and that neither the Bookrunners nor
any of their 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
acknowledges, confirms, undertakes, 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 Bookrunners or the Company or any of their
respective Affiliates, directors, officers, employees, agents or
advisors and neither the Bookrunners nor the Company or any of
their respective Affiliates, directors, officers, employees,
agents, advisors 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 Bookrunners nor any of their respective Affiliates, directors,
officers, employees, agents or advisors have made any
representations to it, express or implied, with respect to the
Company, the Bookbuild, 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;
(g) that it has not relied on any information, representation or
statement relating to the Company contained in any research reports
prepared by the Bookrunners, any of their respective Affiliates or
any person acting on the Bookrunners' or any of their respective
Affiliates' behalf and understands that (i) neither the
Bookrunners, nor any of their respective Affiliates nor any person
acting on their behalf has or shall have any liability for public
information or any representation; (ii) neither the Bookrunners,
nor any of their respective Affiliates nor any person acting on
their 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 Bookrunners, nor any of their
respective Affiliates nor any person acting on their behalf makes
any representation or warranty, express or implied, as to the
truth, accuracy or completeness of such information, representation
or statement whether at the date of publication, the date of this
Announcement or otherwise;
(h) 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;
(i) acknowledges that no action has been or will be taken by the
Company, 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 action for that purpose is required;
(j) 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, regulatory 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 Bookrunners, the Company
or any of their respective Affiliates acting in breach of the legal
or regulatory requirements of any jurisdiction in connection with
the Placing;
(k) that it (and any person acting on its behalf) 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;
(l) that it has complied with its obligations under the Criminal
Justice Act 1993 of the United Kingdom, MAR, section 118 of the
Financial Services and Markets Act 2000 of the United Kingdom (as
amended) (the "FSMA"), the European Union (Market Abuse)
Regulations 2016 (S.I. No. 349 of 2016) of Ireland, the Investment
Funds, Companies and Miscellaneous Provisions Act 2005 of Ireland
(as amended) and the Rules issued by the Central Bank of Ireland
under Section 1370(2) of the Companies Act 2014 of Ireland, and in
connection with money laundering and terrorist financing under
Criminal Justice (Money Laundering and Terrorist Financing) Acts
2010 and 2013 of Ireland, the Proceeds of Crime Act 2002 of the
United Kingdom (as amended), the Terrorism Act 2000 of the United
Kingdom, the Anti-Terrorism Crime and Security Act 2001 of the
United Kingdom, the Terrorism Act 2006 of the United Kingdom, the
Money Laundering, Terrorist Financing and Transfer of Funds
(Information on the Payer) Regulations 2017 of the United Kingdom
and the Money Laundering Sourcebook of the FCA and any related or
similar rules, regulations or guidelines issued, administered or
enforced by any government agency having jurisdiction in respect
thereof (the "Regulations") and, if 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 Bookrunners have not
received such satisfactory evidence, the Bookrunners may, in their
absolute discretion, terminate the Placee's participation in the
Placing in which event all funds delivered by the Placee to the
Bookrunners will be returned without interest to the account of the
drawee bank or CREST account from which they were originally
debited;
(m) 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
Bookrunners and the Company for the performance of all its
obligations as a Placee in respect of the Placing (regardless of
the fact that it is acting for another person);
(n) if in a Member State of the EEA, that it is a "Qualified
Investor" within the meaning of Article 2(e) of the Prospectus
Regulation or he/she is a Company Placing Participant and that it
is either (i) acquiring the Placing Shares for its own account, or
(ii) acting as a financial intermediary to which paragraph (s)
below applies;
(o) if in the United Kingdom, that it is a Qualified Investor
(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 of the United
Kingdom (the "Order"), (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, in each case, 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 or (iv) he/she is a Company Placing Participant);
(p) that it will not distribute, forward, 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 in the
United States;
(q) 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;
(r) 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;
(s) if it is acting as a financial intermediary, as that term is
used in Article 2(d) of the Prospectus Regulation, that the Placing
Shares subscribed for by it in the Placing will not be subscribed
for on a non-discretionary 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 Bookrunners has
been given to the proposed offer or resale;
(t) 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 Relevant
Persons 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;
(u) that any offer of Placing Shares may only be directed at the
Company Placing Participants or 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 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 Regulation or in any
other circumstances which would result in any requirement for the
publication of a prospectus under the Prospectus Regulation;
(v) 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;
(w) 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;
(x) if it has received any "inside information" (as defined in
MAR) about the Company in advance of the Placing, it has not: (i)
dealt in the securities of the Company; (ii) encouraged or required
another person to deal in the securities of the Company; or (iii)
disclosed such information to any person except as permitted by
MAR, prior to the information being made publicly available or
taken any other action that is in breach of MAR;
(y) 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 Bookrunners, any of their respective
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;
(z) 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
Bookrunners may in their absolute discretion determine and without
liability to such Placee. It will, however, remain liable for any
shortfall below the net proceeds of such sale and the placing
proceeds of such Placing Shares and may be required to bear any
stamp duty or stamp duty reserve tax (together with any interest or
penalties) due pursuant to the terms set out or referred to in this
Announcement which may arise upon the sale of such Placee's Placing
Shares on its behalf;
(aa) 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 Bookrunners
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;
(bb) that neither the Bookrunners nor any of their respective
Affiliates nor any person acting on their behalf, is making any
recommendations to it, or advising it regarding the suitability or
merits of any transactions it may enter into in connection with the
Placing and that participation in the Placing is on the basis that
it is not and will not be a client of the Bookrunners and that the
Bookrunners do not have any duties or responsibilities to it for
providing the protections afforded to their respective clients or
customers or for providing advice in relation to the Placing nor in
respect of any representations, warranties, undertakings or
indemnities contained in the Placing Agreement nor for the exercise
or performance of any of the Bookrunners' rights and obligations
thereunder including any rights to waive or vary any conditions or
exercise any termination right;
(cc) 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. None of the Bookrunners, the Company
or any of their respective Affiliates 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 Bookrunners, the Company and any of their respective Affiliates
in respect of the same on an after-tax basis on the basis that the
Placing Shares will be allotted to the CREST stock account of Davy
who will hold them as nominee on behalf of such Placee until
settlement in accordance with its standing settlement
instructions;
(dd) 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 (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 the Bookrunners or the Company in any jurisdiction in
which the relevant Placee is incorporated or in which any of its
securities have a quotation on a recognised stock exchange;
(ee) that each of the Bookrunners, the Company and their
respective Affiliates and others will rely upon the truth and
accuracy of the representations, warranties, agreements,
undertakings, confirmations and acknowledgements set forth herein
and which are given to each of the Bookrunners on their own behalf
and on behalf of the Company and are irrevocable and it irrevocably
authorises each of the Bookrunners and the Company to produce this
Announcement, pursuant to, in connection with, or as may be
required by any applicable law or regulation, administrative or
legal proceeding or official inquiry with respect to the matters
set forth herein;
(ff) that it will indemnify on an after-tax basis and hold each
of the Bookrunners, the Company and their respective Affiliates and
any person acting on their behalf harmless from any and all costs,
claims, liabilities and expenses (including legal fees and
expenses) arising out of, directly or indirectly, or in connection
with any breach of the representations, warranties,
acknowledgements, agreements, confirmations and undertakings in
this Appendix and further agrees that the provisions of this
Appendix shall survive after completion of the Placing;
(gg) acknowledges that it irrevocably appoints any director of
any of the Bookrunners as its agent for the purposes of executing
and delivering to the Company and/or its registrars any documents
on its behalf necessary to enable it to be registered as the holder
of any of the Placing Shares agreed to be taken up by it under the
Placing;
(hh) that it acknowledges that its commitment to subscribe for
Placing Shares on the terms set out herein and in the contract note
or electronic communication 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;
(ii) 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
Bookrunners, (iv) it has had sufficient time and access to
information 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, has so
conducted its own investigation to the extent that it deems
necessary to enable it to make an informed investment decision and
is aware and understands that an investment in the Placing Shares
involves a considerable degree of risk, and (v) it will not look to
the Company, the Bookrunners, any of their respective Affiliates or
any person acting on their behalf for all or part of any such loss
or losses it or they may suffer;
(jj) acknowledges and agrees that none of the Bookrunners, the
Company, any of their Affiliates or any person acting on behalf of
any of them owe any fiduciary or other duties to it or any Placee
in respect of any representations, warranties, undertakings or
indemnities in the Placing Agreement or otherwise;
(kk) understands and agrees that it may not rely on any
investigation that the Bookrunners or any person acting on its
behalf may or may not have conducted with respect to the Company
and its Affiliates or the Placing and the Bookrunners have 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;
(ll) acknowledges and agrees that it will not hold the
Bookrunners or any of their respective Affiliates or any person
acting on their behalf responsible or liable for any misstatements
in or omission from any publicly available information relating to
the Group or information made available (whether in written or oral
form) relating to the Group (the "Information") and that neither
the Bookrunners nor any person acting on behalf of the Bookrunners,
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;
(mm) that in connection with the Placing, the Bookrunners and
any of their respective Affiliates acting as an investor for its
own account may take up shares in the Company and in that capacity
may retain, purchase or sell for its own account such shares in the
Company and any securities of the Company or related investments
and may offer or sell such securities or other investments
otherwise than in connection with the Placing. Accordingly,
references in this Announcement to shares being issued, offered or
placed should be read as including any issue, offering or placement
of such shares in the Company to the Bookrunners and any of their
respective Affiliates acting in such capacity. In addition the
Bookrunners may enter into financing arrangements and swaps with
investors in connection with which the Bookrunners may from time to
time acquire, hold or dispose of such securities of the Company,
including the Placing Shares. Neither the Bookrunners nor any of
their respective Affiliates intend to disclose the extent of any
such investment or transactions otherwise than in accordance with
any legal or regulatory obligation to do so;
(nn) acknowledges that (i) the Placing Shares have not been and
will not be registered or otherwise qualified 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 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;
(oo) that each of the Bookrunners and their respective
Affiliate's may have engaged in transactions with, and provided
various commercial banking, investment banking,
financial advisory transactions and services in the ordinary
course of their business with the Company and/or its Affiliates for
which they would have received customary fees and commissions and
that each of the Bookrunners and their respective Affiliates may
provide such services to the Company and/or its Affiliates in the
future;
(pp) 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 Rule 144A or another exemption from, or in a
transaction not subject to, the registration requirements of the
Securities Act; and
(qq) 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).
The foregoing acknowledgements, agreements, undertakings,
representations, warranties and confirmations are given for the
benefit of the Company as well as each of the Bookrunners (for
their own benefit and, where relevant, the benefit of their
respective Affiliates and any person acting on their behalf) and
are irrevocable. Each Placee, and any person acting on behalf of a
Placee, acknowledges that none of the Bookrunners, the Company, any
of their respective Affiliates, agents, advisors, directors,
officers or employees owe any fiduciary or other duties to any
Placee in respect of any representations, warranties, undertakings
or indemnities in the Placing Agreement or otherwise.
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 is subject to the representations, warranties and
further terms set out in this Appendix and 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 Bookrunners nor the Company are
liable to bear any stamp duty or stamp duty reserve tax or any
other similar duties or taxes (transfer taxes) that arise on a sale
of Placing Shares if there are any such arrangements, or any
arrangements that arise subsequent to their acquisition by Placees
or for transfer taxes arising otherwise than under the laws of
Ireland or the United Kingdom. Each Placee should, therefore, take
its own advice as to whether any such transfer tax liability
arises. Furthermore, each Placee agrees to indemnify on an
after-tax basis and hold the 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 Bookrunners or any of their
respective Affiliates may, at their absolute discretion, agree to
become a Placee in respect of some or all of the Placing Shares.
Each Placee acknowledges and is aware that the Bookrunners are
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 Bookrunners, any money held in an account with any
of the relevant 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 relevant Bookrunner's money in
accordance with the client money rules and will be used by the
relevant Bookrunner in the course of its own business; and the
Placee will rank only as a general creditor of the relevant
Bookrunner.
All times and dates in this Announcement may be subject to
amendment by the Bookrunners and the Company (in their absolute
discretion). The Bookrunners shall notify the Placees and any
person acting on behalf of the Placees of any changes.
Past performance is no guide to future performance and persons
needing advice should consult an independent financial adviser
being (i) if you are resident in the United Kingdom, a financial
adviser who is authorised under the Financial Services and Markets
Act 2002, as amended, (ii) in the case of persons resident in
Ireland, an organisation or firm authorised or
exempt under the Investment Intermediaries Act 1995 (as amended)
or an authorised investment firm within the meaning of the European
Union (Markets in the Financial Instruments) Regulations 2017 (as
amended)) or (iii) another appropriately authorised
professional.
The rights and remedies of the Bookrunners and the Company under
these Terms and Conditions are in addition to any rights and
remedies which would otherwise be available to each of them and the
exercise or partial exercise of one will not prevent the exercise
of others.
Each Placee may be asked to disclose in writing or orally to the
Bookrunners:
(a) if the Placee is an individual, the Placee's nationality; or
(b) if the Placee is a discretionary fund manager, the
jurisdiction in which the funds are managed or owned.
DEFINITIONS
Unless otherwise stated, in this Announcement:
"Admission" means the UK Admission and the Irish Admission;
"Admission Date" means the date specified in the executed Term
Sheet or such later date which the Company and the Bookrunners may
agree in writing, being no later than 27 November 2020;
"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);
"BNP Paribas" means BNP PARIBAS;
"Bookbuild" means the bookbuilding process to be commenced by
the Bookrunners to use reasonable endeavours to procure placees for
the Placing Shares, as described in this Announcement and subject
to the Terms and Conditions set out in this Announcement and the
Placing Agreement;
"Bookrunners" means Credit Suisse, Davy and BNP Paribas;
"Company" means Smurfit Kappa Group plc;
"Company Placing Participant(s)" means the Directors and members
of senior management of the Company who intended to participate in
the Placing;
"Credit Suisse" means Credit Suisse Securities (Europe)
Limited;
"CREST" means the relevant system, as defined in the
Uncertificated Securities Regulations 2001 (SI 2001/3755) of
Ireland (in respect of which Euroclear UK & Ireland Limited is
the operator) in accordance with which securities may be held and
transferred in uncertificated form;
"Davy" means J&E Davy;
"Director" means a director of the Company;
"EEA" means European Economic Area;
"Euro" or "EUR" means the lawful currency of Ireland;
"Euronext Dublin" means The Irish Stock Exchange plc, trading as
Euronext Dublin;
"Euronext Dublin Market" means the Euronext Dublin Market,
operated by Euronext Dublin;
"Exchange Information" has the meaning given to it in paragraph
(c) under the heading "Representations and warranties" in the
Appendix to this Announcement;
"FCA" means the UK Financial Conduct Authority or its successor
from time to time;
"FSMA" means the Financial Services and Markets Act 2000 of the
United Kingdom;
"Group" means the Company and its subsidiary undertakings;
"Information" has the meaning given to it in paragraph (ll)
under the heading "Representation and warranties" in the Appendix
to this Announcement;
"Investor Presentation" means the investor presentation issued
by the Company in connection with the Placing, including to the
extent used as part of any pre-marketing of the Placing;
"Irish Admission" means the admission of all of the Placing
Shares to a secondary listing on the Official List of Euronext
Dublin and to trading on the Euronext Dublin Market operated by
Euronext Dublin;
"London Stock Exchange" or "LSE" means the London Stock Exchange
Group plc;
"MAR" means Regulation (EU) No. 596/2014 of the European
Parliament and of the Council of 16 April 2014 on market abuse
(market abuse regulation) and repealing Directive 2003/6/EC of the
European Parliament and of the Council and Commission Directives
2003/124/EC, 2003/125/EC and 2004/72/EC;
"Material Adverse Change" means any material adverse effect or
change in or affecting, or any development reasonably likely to
give rise to or involve a prospective material adverse change in or
affecting, the condition (financial, operational, legal or
otherwise), earnings, management, business affairs, solvency,
credit rating, operations or prospects of the Group (taken as a
whole), whether or not arising in the ordinary course of business
(and in each case whether or not foreseeable at the date of the
Placing Agreement);
"MiFID II" means EU Directive 2014/65/EU on markets in financial
instruments;
"MiFID II Product Governance Requirements" has the meaning given
to it under the heading "Important Notice" in this
Announcement;
"NI 33-105" means National Instrument 33-105 Underwriting
Conflicts of Canada;
"NI 45-106" means National Instrument 45-106 Prospectus
Exemptions of Canada;
"Order" means the Financial Services and Markets Act 2000
(Financial Promotion) Order 2005 of the United Kingdom;
"Ordinary Share" means an ordinary share of EUR0.001 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
Bookrunners, on behalf of the Company, including any Placing Shares
subscribed for by the Company Placing Participants;
"Placing Agreement" means the placing agreement between the
Company and the Bookrunners in respect of the Placing;
"Placing Documents" means this Announcement, the Pricing
Announcement, the Placing Agreement and the Investor
Presentation;
"Placing Price" means the price per Ordinary Share at which the
Placing Shares are placed;
"Placing Shares" means the new Ordinary Shares to be issued
pursuant to the Placing;
"Pricing Announcement" has the meaning given to it in paragraph
(B) under the heading "Conditions of the Placing" in the Appendix
to this Announcement
"Prospectus Regulation" means Regulation (EU) No 2017/1129 of
the European Parliament and of the Council of 14 June 2017 on the
prospectus to be published when securities are offered to the
public or admitted to trading on a regulated market, and repealing
Directive 2003/71/EC;
"QIB" means a qualified institutional buyer as defined in Rule
144A;
"Regulation S" means Regulation S promulgated under the
Securities Act;
"Regulations" means the Money Laundering, Terrorist Financing
and Transfer of Funds (Information on the Payer) Regulations 2017
of the United Kingdom;
"Regulatory Information Service" or "RIS" means an information
service that is approved by the London Stock Exchange and Euronext
Dublin;
"Relevant Persons" has the meaning given to it under the heading
"Important Information on the Placing for Invited Placees Only" in
the Appendix to this Announcement;
"Restricted Territory" means the United States, Australia,
Canada, Japan or South Africa or any jurisdiction in which the
release, publication or distribution of this Announcement is
restricted, unlawful or unauthorised;
"Rule 144A" means Rule 144A under the Securities Act;
"Securities Act" means the US Securities Act of 1933, as
amended;
"Sterling" or "GBP" means the lawful currency of the United
Kingdom;
"Sterling Placing Price" means the Placing Price, converted to
Sterling based on the Bloomberg BFIX mid-point Sterling/Euro
exchange rate at the first fixing time after the closing of the
Bookbuild, which will be contained in the Term Sheet and provided
to Placees at the time of communicating allocations;
"Target Market Assessment" has the meaning given to it under the
heading "Important Notice" in this Announcement;
"Term Sheet" has the meaning given to it in paragraph (A) under
the heading "Conditions of the Placing" in the Appendix to this
Announcement;
"Terms and Conditions" means the terms and conditions of the
Placing set out in the Appendix to this Announcement;
"UK Admission" means the admission of all of the Placing Shares
to the premium listing segment of the Official List of the FCA and
to trading on the London Stock Exchange's main market for listed
securities;
"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; and
"US person" means any person who is a US person within the
meaning of Regulation S.
This information is provided by RNS, the news service of the
London Stock Exchange. RNS is approved by the Financial Conduct
Authority to act as a Primary Information Provider in the United
Kingdom. Terms and conditions relating to the use and distribution
of this information may apply. For further information, please
contact rns@lseg.com or visit www.rns.com.
RNS may use your IP address to confirm compliance with the terms
and conditions, to analyse how you engage with the information
contained in this communication, and to share such analysis on an
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For further information about how RNS and the London Stock Exchange
use the personal data you provide us, please see our Privacy
Policy.
END
MSCBLBDBXXBDGGC
(END) Dow Jones Newswires
November 19, 2020 11:36 ET (16:36 GMT)
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