NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION IN WHOLE OR IN PART, IN, INTO OR FROM ANY JURISDICTION WHERE TO DO SO WOULD CONSTITUTE A VIOLATION OF THE RELEVANT LAWS OF SUCH JURISDICTION
11 April 2011
RECOMMENDED SHARE OFFER
for
N.V. (“Existing NWR”)
by
Plc (“New NWR”)
Summary
• Existing (299 CZK, 0,00%) has recommended a share offer under which New will acquire the entire issued and to be issued “A” ordinary shares in the capital of Existing (the “Existing A Shares”) (the “Offer”). The Offer is being made in connection with the proposed reincorporation of the Group (the “NWR Group”) to the United Kingdom by the introduction of New as the new holding company for the Group (the “Reincorporation”).
• Under the terms of the Offer holders of Existing A Shares in the capital of Existing will be entitled to one “A” ordinary share in the capital of New (a “New A Share”) for every Existing A Share held.
BXR Mining B.V. (“BXR Mining”), which currently holds 168,274,654 Existing A Shares, representing approximately 63.6 per cent of the Existing A Shares, has irrevocably undertaken to accept the Offer in respect of its Existing A Shares on the terms described below (the “BXR Mining Irrevocable”). BXR Mining’s undertaking to accept the Offer is conditional upon New having received, or being entitled to receive, valid acceptances which, when aggregated with the acceptance which BXR Mining are required to provide pursuant to the BXR Mining Irrevocable, equal at least 80 per cent of the issued Existing A Shares and the percentage of the issued Existing A Shares in respect of which the Offer must be accepted to satisfy or fulfil the Acceptance Condition (as set out in paragraph 1(a) of Appendix I to this announcement) not being amended, varied or waived down to below 80 per cent.
Save with the prior consent of New , BXR Mining will only accept, or procure the acceptance of, the Offer in respect of such number of its Existing A Shares as will entitle BXR Mining to receive the maximum number of New A Shares to be issued under the terms of the Offer that BXR Mining may hold whilst at least 25 per cent of the New A Shares (or such lower percentage as the FSA may approve in respect of the New A Shares from time to time) are held or, subject to the satisfaction by New of its obligations under the Offer, are to be held, in public hands for the purposes of the UK Listing Rules.
The BXR Mining Irrevocable will lapse if an offer is made for the Existing A Shares by a third party and such offer is recommended by the board of Existing .
• The board of New also announces that on 8 April 2011 it entered into a share transfer agreement with RPG Property B.V. to acquire, conditionally upon the Offer becoming or being declared wholly unconditional, all the “B” ordinary shares issued in the capital of Existing (being 10,000 B Shares of EUR 0.40 nominal value each (the “Existing B Shares”)) in exchange for the allotment and issue of 10,000 “B” ordinary shares of EUR 7.00 nominal value each in the capital of New (the “New B Shares”) (the “B Share Transfer Agreement”).
• Applications will be made to: (i) the UK Financial Services Authority (the “FSA”) in its capacity as the UK competent authority under the Financial Services and Markets Act 2000 (“FSMA”) for the New A Shares to be admitted to the premium listing segment of the Official List of the FSA; (ii) the (874 GBp, 0,34%) plc for the New A Shares to be admitted to trading on the main market of the (together with (i), “UK Admission”); (iii) the Listing Committee of Burza cenných papírů Praha, a.s. (Prague Stock Exchange) for the New A Shares to be admitted to trading on the main market of the Prague Stock Exchange; and (iv) to the Management Board of Gielda Papierow Wartosciowych w Warszawie S.A. (Warsaw Stock Exchange) for the New A Shares to be admitted to trading on the main market of the Warsaw Stock Exchange (together “Admission”).
• If the Offer becomes or is declared wholly unconditional and sufficient acceptances under the Offer are received and/or sufficient Existing A Shares are otherwise acquired, the Group intends to apply as soon as possible for the cancellation of the listing of the Existing A Shares on the , Prague Stock Exchange and Warsaw Stock Exchange. De-listing is likely to reduce significantly the liquidity and marketability of any Existing A Shares in respect of which the Offer is not accepted.
• If the Offer becomes or is declared wholly unconditional and at least 95 per cent or more of the Existing A Shares are acquired, New intends to apply the provisions of either Section 2:92a of the Dutch Civil Code, or Section 2:359c of the Dutch Civil Code (as applicable) to compulsorily acquire any outstanding Existing A Shares not held by it.
• Immediately upon the Offer becoming or being declared wholly unconditional, each Existing A Shareholder will effectively have the same proportionate direct or indirect interest in the Group as they have immediately prior to the Offer becoming or being declared wholly unconditional.
• New has been incorporated in England and Wales for the purpose of becoming the new parent company of the group. New has not traded nor prepared any accounts since its incorporation and has no material assets or liabilities save for those arising in connection with the Offer and the B Share Transfer Agreement. Upon the Offer becoming or being declared wholly unconditional, New will own no material assets other than the Existing A Shares in respect of which the Offer was validly accepted and the Existing B Shares and will have no material liabilities save for those arising in connection with the Offer and the B Share Transfer Agreement.
• Existing , through its subsidiary OKD, a.s., is the Czech Republic’s largest hard coal mining company and is a leading producer of hard coal in Central Europe (in each case, on the basis of revenues and volume of coal produced) serving customers in the Czech Republic, Slovakia, Austria, Poland, Hungary and Germany. It is one of the largest industrial groups in the Czech Republic and the largest Czech natural resources company in terms of revenue and employees. For the year ended 31 December 2010, the group employed an average of 15,146 workers and utilised an average of 3,407 workers employed by contractors, making it one of the largest private employers in the Czech Republic.
• The directors of Existing (the “Existing Directors”), after having received legal and financial advice and having given due and careful consideration to the strategic and the financial consequences of the proposed transaction and having considered other possible alternatives available to Existing , have reached the conclusion that the Offer is in the best interests of Existing , the Existing A Shareholders and all other stakeholders in Existing .
• The Existing Directors, who have been so advised by J.P. Morgan Cazenove, consider the terms of the Offer to be fair and reasonable. In providing advice to the Existing Directors, J.P. Morgan Cazenove has taken into account the commercial assessments of the Existing Directors. Accordingly, the Existing Directors intend to recommend unanimously that holders of Existing A Shares accept the Offer as they intend to do (or procure to be done) in respect of their own beneficial holdings of, in aggregate, 884,438 Existing A Shares, representing (as at 8 April 2011 being the latest practicable date prior to the publication of this document) approximately 0.33 per cent. of the Existing A Shares and 0.33 per cent. of the issued share capital of Existing .
• The Offer is subject to the conditions and further terms set out in Appendix 1.
• The Combined Prospectus and Offer Document, which will contain the terms of the Offer and procedures for acceptance, is expected to be published today. The document will comprise a prospectus relating to the Offer prepared in accordance with the Prospectus Rules of the UK Listing Authority made under section 73A of FSMA and application will be made for the document to be approved by the FSA in accordance with section 85 of FSMA prior to publication and the document will, following such approval, be made available to the public in accordance with Rule 3.2 of the Prospectus Rules. New intends to request that the FSA provide a certificate of approval and a copy of the Combined Prospectus and Offer Document to the relevant competent authorities in the Czech Republic and Poland, the Czech National Bank (Česká narodní banka) and the Polish Financial Supervision Commission (Komisja Nadzoru Finansowego), respectively, together with a translation into the appropriate language of the summary contained in Part I “Summary”. In addition, the Combined Prospectus and Offer Document will be made available on the Group’s website (www.newworldresources.eu) and will be made available to the public in accordance with the applicable Czech laws and regulations along with the summary hereof drawn up, respectively, in Polish and in Czech.
• While no resolution is being put to Existing Shareholders with respect to the Offer, Existing Shareholders will, in accordance with Section 18, subsection 1, of the Dutch Decree on public takeovers (Besluit openbare biedingen Wft), be given an opportunity to further consider the proposal to create a new corporate structure for the Group by means of the Offer at the annual general meeting of the shareholders of Existing at The Schiphol Hotel, Schiphol Boulevard 701, 1118 BN Schiphol, Amsterdam, the Netherlands, on 28 April 2011, starting at 10 a.m. (CET) (the “Existing AGM”). Provision for consideration of the Offer was included in the notice of the Existing AGM published on 16 March 2011.
Commenting on the Offer, Mike Salamon, Executive Chairman of Existing and New , said:
“The group is further strengthened by today's announced offer in connection with our previously announced intention to re-incorporate in the UK. We have been premium listed in London since our IPO in 2008 and today’s announcement about our proposed re-incorporation is designed, alongside our continuing premium listed status, to pave the way for FTSE Index eligibility and further increase the attractiveness of the Company to a broader universe of the highest quality investors in Europe and globally.”
Enquiries:
Plc and N.V.
Investor Relations Corporate Communications
Tel: +31 20 570 2270 Tel: +31 65 476 4119
Email: ir@nwrgroup.eu Email: pmasinova@nwrgroup.eu
Website: www.newworldresources.eu
J.P. Morgan Securities Ltd., which conducts its UK investment banking activities as J.P. Morgan Cazenove and is authorised by the Financial Services Authority, is acting as sponsor to New and no one else in connection with the admission of the New A Shares to the Official List and to trading on the main market of the and this announcement and will not be responsible to anyone other than New for providing the protections offered to clients of J.P. Morgan Securities Ltd. nor for providing advice in connection with the Offer, Admission, the contents of this announcement or any matter referred to herein.
J.P. Morgan plc which conducts its UK investment banking activities as J.P. Morgan Cazenove and is authorised by the Financial Services Authority, is acting as exclusive financial adviser to New and Existing and no one else in connection with the Offer and this announcement and will not be responsible to anyone other than the New and Existing for providing the protections afforded to clients of J.P. Morgan plc nor for providing advice in connection with the Offer, Admission, the contents of this announcement or any matter referred to herein.
Existing A Shareholders may request a hard copy of this announcement by contacting Computershare Investor Services PLC on 09069990000 (or +44 906 999 0000 if telephoning from outside the UK) between 9.00 a.m. and 5.00 p.m. (London time) Monday to Friday (excluding UK public holidays). Existing A Shareholders may also request that all future documents, announcements and information to be sent to them in relation to the Offer should be in hard copy form.
This announcement is for information purposes only and does not constitute an offer to sell or an invitation to purchase any securities or the solicitation of an offer to buy any securities, pursuant to the Offer or otherwise. The Offer will be made solely by means of an offer document, which contains the full terms and Conditions of the Offer (including details of how the Offer may be accepted) and a prospectus relating to the New A Shares issued in connection with the Offer (prepared in accordance with the Prospectus Rules of the UKLA made under section 73 of the Financial Services and Markets Act 2000, approved by the FSA in accordance with section 85 of the Financial Services and Markets Act 2000 and made available to the public in accordance with Rule 3.2 of the Prospectus Rules).
This announcement has been prepared for the purpose of complying with English law and the City Code and the information disclosed may not be the same as that which would have been disclosed if this announcement had been prepared in accordance with the laws of jurisdictions outside the United Kingdom.
This announcement is for informational purposes only and will under no circumstances constitute the basis for a decision to invest in the shares of Existing and/or New . The Combined Prospectus and Offer Document prepared in connection with the public offering and admission and introduction of New NWR’s securities to trading on the , Prague Stock Exchange and Warsaw Stock Exchange, together with the Polish translation of the summary of the Combined Prospectus and Offer Document, is the sole legally binding document containing information on Existing and New and the offering in Poland. New will be authorized to carry out the offering to the public in Poland following: (i) approval by the UK FSA, the UK supervision authority, of the Combined Prospectus and Offer Document; (ii) receipt by the KNF (Komisja Nadzoru Finansowego), the relevant Polish financial supervision authority, of the notification from the UK FSA confirming the approval of the Combined Prospectus and Offer Document by the UK FSA; and (iii) publication of the Combined Prospectus and Offer Document together with the Polish translation of the summary thereof. For the purposes of the offering in Poland and admission and introduction of New NWR’s securities to trading on the Warsaw Stock Exchange, New will make the Combined Prospectus and Offer Document, together with the Polish translation of the summary thereof, available on the Group’s website (www.newworldresources.eu) and on the website of the Polish Offering Agent – (9,21 EUR, -0,08%) Securities S.A. (www.ingsecurities.pl).
Non-UK Shareholders
The release, publication or distribution of this announcement in certain jurisdictions may be restricted by law. Persons who are not resident in the United Kingdom or who are subject to other jurisdictions should inform themselves of, and observe, any applicable requirements.
Unless otherwise determined by New or required by the City Code, and permitted by applicable law and regulation, the Offer will not be made, directly or indirectly, in, into or from a Restricted Jurisdiction where to do so would violate the laws in that jurisdiction, and the Offer will not be capable of acceptance from or within a Restricted Jurisdiction. Accordingly, copies of this announcement and all documents relating to the Offer are not being, and must not be, directly or indirectly, mailed or otherwise forwarded, distributed or sent in, into or from a Restricted Jurisdiction where to do so would violate the laws in that jurisdiction, and persons receiving this announcement and all documents relating to the Offer (including custodians, nominees and trustees) must not mail or otherwise distribute or send them in, into or from such jurisdictions as doing so may invalidate any purported acceptance of the Offer.
The availability of the Offer to Existing A Shareholders who are not resident in the United Kingdom may be affected by the laws of the relevant jurisdictions in which they are resident. Persons who are not resident in the United Kingdom should inform themselves of, and observe, any applicable legal or regulatory requirements of their jurisdiction.
If you are a resident of the United States, please read the following:
In accordance with normal UK market practice, New , or its nominees, or its brokers (acting as agents) may from time to time make certain purchases of, or arrangements to purchase, Existing A Shares, other than pursuant to the Offer, before or during the period in which the Offer remains open for acceptance. These purchases may occur either in the open market at prevailing prices or in private transactions at negotiated prices. Any information about such purchases will be disclosed as required in the United Kingdom.
The Offer is being made in reliance on, and compliance with, Rule 14d-1(c) under the US Securities Exchange Act of 1934. The Offer is being made subject to United Kingdom disclosure requirements, which are different from certain United States disclosure requirements. In addition, US investors should be aware that this document has been prepared in accordance with a United Kingdom format and style, which differs from the United States format and style. In particular, the appendices to this document contain information concerning the Offer required by UK disclosure requirements, which may be material and may not have been summarised elsewhere in the document. Furthermore, the payment and settlement procedure with respect to the Offer will comply with the relevant United Kingdom rules, which differ from United States payment and settlement procedures. In accordance with normal United Kingdom market practice, New or any person acting on their behalf may from time to time make certain market or private purchases of, or arrangements to purchase, directly or indirectly, Existing A Shares other than pursuant to the Offer. Any information about such purchases will be publicly announced as required by law or regulation in the United Kingdom and United States.
The New A Shares have not been and will not be registered under the US Securities Act of 1933 (the “Securities Act”) or under any of the relevant securities laws of any state or other jurisdiction of the United States. Neither the US Securities and Exchange Commission nor any US state securities commission has approved of the New A Shares or determined if this document is accurate or complete. Any representation to the contrary is a criminal offence in the United States. The New A Shares will be offered in the United States only pursuant to an exemption from the registration requirements of the Securities Act. The New A Shares may not be offered or sold in the United States except pursuant to an exemption from the Securities Act or in a transaction not subject to the registration requirements of the Securities Act.
The Offer relates to the securities of a UK company. The Offer is subject to disclosure requirements of the United Kingdom, which are different from those of the United States. Financial statements included in the document, if any, have been prepared in accordance with International Financial Reporting Standards, as adopted by the EU, (“IFRS”) that may not be comparable to the financial statements of United States companies.
It may be difficult for you to enforce your rights and any claim you may have arising under the federal securities laws, since the issuer is located in a non-US jurisdiction, and some or all of its officers and directors may be residents of non-US jurisdictions. You may not be able to sue a non-US company or its officers or directors in a non-US court for violations of the US securities laws. It may be difficult to compel a non-US company and its affiliates to subject themselves to a US court’s judgment.
You should be aware that the issuer may purchase securities otherwise than under the exchange offer, such as in open market or privately negotiated purchases.
Disclaimer and Cautionary Note on Forward Looking Statements and Notes on Certain Other Matters
Certain statements in this document are not historical facts and are or are deemed to be “forward-looking”. Existing NWR’s or New NWR’s prospects, plans, financial position and business strategy, and statements pertaining to the capital resources, future expenditure for development projects and results of operations, may constitute forward-looking statements. In addition, forward-looking statements generally can be identified by the use of forward-looking terminology including, but not limited to; “may”, “expect”, “intend”, “estimate”, “anticipate”, “plan”, “foresee”, “will”, “could”, “may”, “might”, “believe” or “continue” or the negatives of these terms or variations of them or similar terminology. Although Existing and New believe that the expectations reflected in these forward-looking statements are reasonable, they can give no assurance that these expectations will prove to have been correct. These forward-looking statements involve a number of risks, uncertainties and other facts that may cause actual results to be materially different from those expressed or implied in these forward-looking statements because they relate to events and depend on circumstances that may or may not occur in the future and may be beyond Existing NWR’s or New NWR’s ability to control or predict. Forward-looking statements are not guarantees of future performances.
Factors, risk and uncertainties that could cause actual outcomes and results to be materially different from those projected include, but are not limited to, the following: risks relating to changes in political, economic and social conditions in the Czech Republic, Poland and the CEE region; future prices and demand for Existing NWR’s or New NWR’s products, and demand for the Existing NWR’s or New NWR’s customers' products; coal mine reserves; remaining life of Existing NWR’s or New NWR’s mines; coal production; trends in the coal industry and domestic and international coal market conditions; risks in coal mining operations; future expansion plans and capital expenditures; the Existing NWR’s or New NWR’s relationship with, and conditions affecting, the Existing NWR’s or New NWR’s customers; competition; railroad and other transportation performance and costs; availability of specialist and qualified workers; and weather conditions or catastrophic damage; risks relating to Czech or Polish law, regulations and taxation, including laws, regulations, decrees and decisions governing the coal mining industry, the environment and currency and exchange controls relating to Czech and Polish entities and their official interpretation by governmental and other regulatory bodies and by the courts; and risks relating to global economic conditions and the global economic environment.
Forward-looking statements are made only as of the date of this document. Existing and New expressly disclaim any obligation or undertaking to release, publicly or otherwise, any updates or revisions to any forward-looking statement contained in this announcement to reflect any change in its expectations or any change in events, conditions, assumptions or circumstances on which any such statement is based unless so required by applicable law.
Disclosure requirements of the Takeover Code (the “Code”)
Under Rule 8.3(a) of the Code, any person who is interested in 1 per cent or more of any class of relevant securities of an offeree company or of any paper offeror (being any offeror other than an offeror in respect of which it has been announced that its offer is, or is likely to be, solely in cash) must make an Opening Position Disclosure (as defined in Rule 8 of the City Code) following the commencement of the offer period and, if later, following the announcement in which any paper offeror is first identified. An Opening Position Disclosure must contain details of the person’s interests and short positions in, and rights to subscribe for, any relevant securities of each of (i) the offeree company and (ii) any paper offeror(s). An Opening Position Disclosure by a person to whom Rule 8.3(a) applies must be made by no later than 3.30 pm (London time)/ 4.30 pm (CET) on the 10th business day following the commencement of the offer period and, if appropriate, by no later than 3.30 pm (London time)/ 4.30 pm (CET) on the 10th business day following the announcement in which any paper offeror is first identified. Relevant persons who deal in the relevant securities of the offeree company or of a paper offeror prior to the deadline for making an Opening Position Disclosure must instead make a Dealing Disclosure (as defined in Rule 8 of the City Code).
Under Rule 8.3(b) of the Code, any person who is, or becomes, interested in 1per cent. or more of any class of relevant securities of the offeree company or of any paper offeror must make a Dealing Disclosure if the person deals in any relevant securities of the offeree company or of any paper offeror. A Dealing Disclosure must contain details of the dealing concerned and of the person’s interests and short positions in, and rights to subscribe for, any relevant securities of each of (i) the offeree company and (ii) any paper offeror, save to the extent that these details have previously been disclosed under Rule 8. A Dealing Disclosure by a person to whom Rule 8.3(b) applies must be made by no later than 3.30 pm (London time)/ 4.30 pm (CET) on the business day following the date of the relevant dealing.
If two or more persons act together pursuant to an agreement or understanding, whether formal or informal, to acquire or control an interest in relevant securities of an offeree company or a paper offeror, they will be deemed to be a single person for the purpose of Rule 8.3.
Opening Position Disclosures must also be made by the offeree company and by any offeror and Dealing Disclosures must also be made by the offeree company, by any offeror and by any persons acting in concert with any of them (see Rules 8.1, 8.2 and 8.4).
Details of the offeree and offeror companies in respect of whose relevant securities Opening Position Disclosures and Dealing Disclosures must be made can be found in the Disclosure Table on the Takeover Panel’s website at http://www.thetakeoverpanel.org.uk, including details of the number of relevant securities in issue, when the offer period commenced and when any offeror was first identified. If you are in any doubt as to whether you are required to make an Opening Position Disclosure or a Dealing Disclosure, you should contact the Panel’s Market Surveillance Unit on +44 (0) 20 7638 0129.
This summary should be read in conjunction with the full text of this announcement. Appendix I to this announcement contains the Conditions to, and certain further terms of, the Offer. Appendix II to this announcement contains a summary of the irrevocable undertakings given by BXR Mining B.V. and Appendix III contains definitions of certain expressions used in this summary and in this announcement.
Please be aware that addresses, electronic addresses and certain information provided by Existing A Shareholders, persons with information rights and other relevant persons for the receipt of communications from Existing may be provided to New during the offer period as requested under Section 4 of Appendix 4 of the Code to comply with Rule 2.6(c).
Publication on Website
A copy of this announcement will be made available subject to certain restrictions relating to persons resident in Restricted Jurisdictions on, at www.newworldresources.eu by no later than 12 noon (London time)/ 1.00 pm (CET) on 12 April 2011.
Rule 2.10 Requirement
In accordance with Rule 2.10 of the Code, Existing confirms that, as it announced on 30 March 2011 and also as at the date of this announcement, it has in issue 264,698,715 “A” ordinary shares of EUR 0.40 each and 10,000 “B” ordinary shares of EUR 0.40 each (excluding ordinary shares held in treasury). The International Securities Identification Number (ISIN) of the “A” ordinary shares is NL0006282204. and The “B” ordinary shares are not listed on any exchange and have no ISIN. Existing has no shares held in treasury.
In accordance with Rule 2.10 of the Code, New confirms that it has in issue two ordinary shares of EUR 0.40 each and 50,000 redeemable non-voting preference shares of GBP 1.00 each (excluding ordinary shares held in treasury). The International Securities Identification Number (ISIN) of the ordinary shares is GB00B42CTW68. The redeemable non-voting preference shares are not listed on any exchange and have no ISIN. New has no shares held in treasury.
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