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FORM 20-F
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o
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REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934
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x
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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For the fiscal year ended December 31, 2017
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o
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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o
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SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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LUXFER HOLDINGS PLC
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(Exact name of Registrant as specified in its charter)
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England and Wales
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(Jurisdiction of incorporation or organization)
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Lumns Lane, Manchester, M27 8LN
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(Address of principal executive offices)
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Heather Harding, Chief Financial Officer
Lumns Lane, Manchester, M27 8LN
Telephone No. 001 951 341 2375, E-Mail: investor.relations@luxfer.com
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(Name, Telephone, E-mail and/or Facsimile number and Address of Company Contact Person)
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Title of each class
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Name of each exchange on which registered
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Ordinary Shares, nominal value £0.50 each
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New York Stock Exchange
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Large accelerated filer
o
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Accelerated filer
x
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Non-accelerated filer
o
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Emerging growth company
o
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U.S. GAAP
o
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International Financial Reporting Standards as issued
by the International Accounting Standards Board
x
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Other
o
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TABLE OF CONTENTS
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•
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general economic conditions, or conditions affecting demand for the services offered by us in the markets in which we operate, both domestically and internationally, being less favorable than expected;
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worldwide economic and business conditions and conditions in the industries in which we operate;
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•
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fluctuations in the cost of raw materials and utilities;
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•
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currency fluctuations and other financial risks;
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•
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our ability to protect our intellectual property;
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•
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the significant amount of indebtedness we have incurred and may incur, and the obligations to service such indebtedness and to comply with the covenants contained therein;
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•
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relationships with our customers and suppliers;
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•
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increased competition from other companies in the industries in which we operate;
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•
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changing technology;
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•
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claims for personal injury, death or property damage arising from the use of products produced by us;
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•
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the occurrence of accidents or other interruptions to our production processes;
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•
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changes in our business strategy or development plans, and our expected level of capital expenditure;
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•
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our ability to attract and retain qualified personnel;
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•
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restrictions on the ability of Luxfer Holdings PLC to receive dividends or loans from certain of its subsidiaries;
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•
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regulatory, environmental, legislative and judicial developments; and
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•
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our intention to pay dividends.
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Item 1.
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Identity of Directors, Senior Management and Advisers
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Item 2.
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Offer Statistics and Expected Timetable
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Item 3.
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Key Information
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Year Ended December 31,
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||||||||||||||||||
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2017
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2016
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2015
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2014
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2013
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(in $ million, except per share data)
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Revenue
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$
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441.3
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$
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414.8
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$
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460.3
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$
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489.5
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$
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481.3
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Trading profit
(1)
:
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$
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40.5
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$
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35.3
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$
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42.3
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$
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44.8
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$
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59.2
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Trading margin
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9.2
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%
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8.5
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%
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9.2
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%
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9.2
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%
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12.3
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%
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Operating profit
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$
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19.3
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$
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35.8
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$
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37.9
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$
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40.9
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$
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56.5
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Net income
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$
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11.5
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$
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21.9
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$
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16.1
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$
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29.2
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$
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34.1
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Earnings per share - basic
(2)
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0.43
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0.83
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0.60
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1.09
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1.27
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Earnings per share - diluted
(2)
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0.43
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0.82
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0.59
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1.05
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1.22
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Net cash flows from operating activities
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$
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45.2
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$
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29.2
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$
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52.8
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$
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23.0
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$
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37.1
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As of December 31,
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||||||||||||||||||
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2017
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2016
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2015
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2014
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2013
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(in $ million)
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Revenue:
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Elektron
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$
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221.1
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$
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189.0
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$
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221.2
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$
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230.6
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$
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219.7
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Gas Cylinders
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220.2
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225.8
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239.1
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258.9
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261.6
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$
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441.3
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$
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414.8
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$
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460.3
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$
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489.5
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$
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481.3
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Trading profit
(1)
:
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Elektron
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$
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31.8
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$
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23.9
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$
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33.7
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$
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38.9
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$
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40.2
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Gas Cylinders
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8.7
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11.4
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8.6
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5.9
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19.0
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$
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40.5
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$
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35.3
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$
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42.3
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$
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44.8
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$
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59.2
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As of December 31,
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2017
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2016
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2015
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2014
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2013
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(in $ million)
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Total assets
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$
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402.6
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$
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391.5
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$
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435.7
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$
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459.8
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$
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396.1
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Total liabilities
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(240.3
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)
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(249.6
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)
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(266.0
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(284.4
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)
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(204.4
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)
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Total equity
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$
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162.3
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$
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141.9
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$
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169.7
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$
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175.4
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$
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191.7
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Cash and cash equivalents
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13.3
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13.6
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36.9
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14.6
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28.4
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Overdrafts
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(4.2
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)
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—
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—
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—
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—
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|||||
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Restricted cash
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(0.7
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)
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—
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—
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—
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—
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|||||
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Bank and other loans
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(108.8
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)
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(121.0
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)
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(131.6
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)
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(121.4
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)
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(63.8
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)
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Net debt (non-GAAP)
(3)
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$
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(100.4
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)
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$
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(107.4
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)
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$
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(94.7
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)
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$
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(106.8
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)
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$
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(35.4
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)
|
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Year ended December 31,
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||||||||||||||||||
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2017
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2016
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2015
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2014
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2013
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||||||||||
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(in $ million, except per share data)
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||||||||||||||||||
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Adjusted EBITDA
(3)
:
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|||||
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Elektron
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$
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44.5
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$
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35.6
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|
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$
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45.7
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$
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50.1
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|
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$
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49.8
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Gas Cylinders
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17.3
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|
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19.7
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|
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16.5
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|
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14.7
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|
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26.8
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|||||
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$
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61.8
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$
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55.3
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$
|
62.2
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$
|
64.8
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|
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$
|
76.6
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|
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||||||||||
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Adjusted net income
(3)
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$
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27.6
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$
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24.7
|
|
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$
|
29.5
|
|
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$
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30.9
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$
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39.8
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Adjusted net income per ordinary share
(4)
:
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||||||||||
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Basic
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$
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1.04
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|
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$
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0.93
|
|
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$
|
1.10
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$
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1.15
|
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$
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1.48
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Diluted
|
$
|
1.02
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$
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0.92
|
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$
|
1.08
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$
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1.11
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$
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1.42
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(1)
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Trading profit is defined as operating profit or loss before profit on sale of redundant site, changes to defined benefit pension plans and restructuring and other expense. For the purposes of our divisional segmental analysis, IFRS 8 requires the use of "segment profit" performance measures that are used by our chief operating decision maker. Trading profit is the "segment profit" measure used by our chief operating decision maker for divisional segmental analysis. See "Note 2—Revenue and segmental analysis" in our consolidated financial statements included elsewhere in this Annual Report (or prior Annual Reports).
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(2)
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Basic and diluted earnings per ordinary share
|
|
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Year Ended December, 31
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||||||||||||||||||
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2017
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2016
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2015
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2014
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2013
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||||||||||
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(in $ million)
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|
||||||||||||||||||
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Net income for the year
|
$
|
11.5
|
|
|
$
|
21.9
|
|
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$
|
16.1
|
|
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$
|
29.2
|
|
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$
|
34.1
|
|
|
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Acquisition and disposal charges
|
|
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|
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Unwind of discount on deferred contingent consideration from acquisitions
|
0.2
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|
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0.4
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0.4
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0.3
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—
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Net (gain) / loss on acquisitions and disposals
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(1.3
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)
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(0.2
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)
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2.0
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(4.5
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)
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0.1
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|||||
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Amortization on acquired intangibles
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1.2
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1.0
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1.4
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0.6
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—
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|||||
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IAS 19R retirement benefits finance charge
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1.8
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2.1
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3.0
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2.7
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3.8
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|||||
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Profit on sale of redundant site
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(0.4
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)
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(2.1
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)
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—
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—
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—
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Changes to defined benefit pension plans
|
—
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(0.6
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)
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(18.0
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)
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—
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1.7
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|||||
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Restructuring and other expense
|
21.6
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2.2
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|
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22.4
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3.9
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|
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1.0
|
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|||||
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Other share based compensation charges
|
2.2
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|
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1.4
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|
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1.3
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1.6
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|
|
1.3
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|||||
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Tax thereon
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(3.2
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)
|
|
(1.4
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)
|
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0.9
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|
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(2.9
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)
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(2.2
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)
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Impact of U.S. tax reform
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(6.0
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)
|
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—
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—
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—
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—
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|||||
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Adjusted net income
|
$
|
27.6
|
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$
|
24.7
|
|
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$
|
29.5
|
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$
|
30.9
|
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$
|
39.8
|
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Add back:
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||||||||||
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Impact of U.S tax reform
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6.0
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—
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—
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—
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—
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|||||
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Tax thereon
|
3.2
|
|
|
1.4
|
|
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(0.9
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)
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2.9
|
|
|
2.2
|
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|||||
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Tax expense
|
0.4
|
|
|
6.0
|
|
|
9.5
|
|
|
7.1
|
|
|
12.6
|
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|||||
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Net interest costs
|
6.7
|
|
|
5.6
|
|
|
6.9
|
|
|
6.1
|
|
|
5.9
|
|
|
|||||
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Depreciation and amortization
|
19.0
|
|
|
18.4
|
|
|
18.6
|
|
|
18.1
|
|
|
15.8
|
|
|
|||||
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Amortization on acquired intangibles
|
(1.2
|
)
|
|
(1.0
|
)
|
|
(1.4
|
)
|
|
(0.6
|
)
|
|
—
|
|
|
|||||
|
Loss on disposal of property, plant and equipment
|
0.1
|
|
|
0.2
|
|
|
—
|
|
|
0.3
|
|
|
0.3
|
|
|
|||||
|
Adjusted EBITDA
|
$
|
61.8
|
|
|
$
|
55.3
|
|
|
$
|
62.2
|
|
|
$
|
64.8
|
|
|
$
|
76.6
|
|
|
•
|
the failure of a product manufactured by a third party that incorporated components manufactured by us;
|
•
|
the reliability and skills of persons using our products or the products of our customers; and
|
•
|
the use by customers of materials or products that we produced for applications for which the material or product was not designed.
|
•
|
decreased demand for our products;
|
•
|
reputational injury;
|
•
|
initiation of investigation by regulators;
|
•
|
costs to defend related litigation;
|
•
|
diversion of management time and resources;
|
•
|
compensatory damages and fines;
|
•
|
product recalls, withdrawals or labeling, marketing or promotional restrictions;
|
•
|
loss of revenue;
|
•
|
exhaustion of any available insurance and our capital resources; and
|
•
|
a decline in our stock price.
|
•
|
failing to discover liabilities of the acquired company or business for which we may be responsible as a successor owner or operator, including environmental costs and liabilities;
|
•
|
difficulties associated with the assimilation of operations and personnel of the acquired company or business;
|
•
|
increased debt service requirements as a result of increased indebtedness to complete acquisitions;
|
•
|
the loss of key personnel in the acquired company or business; and / or
|
•
|
a negative effect on our financial results resulting from an impairment of acquired intangible assets, the creation of provisions, or write downs.
|
•
|
incurring or guaranteeing additional indebtedness;
|
•
|
capital expenditures;
|
•
|
paying dividends (including to fund cash interest payments at different entity levels) or making redemptions, repurchases or distributions with respect to ordinary shares or capital stock;
|
•
|
creating or incurring certain security interests;
|
•
|
making certain loans or investments;
|
•
|
engaging in mergers, acquisitions, investment in joint ventures, amalgamations, asset sales and sale and leaseback transactions; and
|
•
|
engaging in transactions with affiliates.
|
•
|
fluctuations in our results of operations;
|
•
|
negative publicity;
|
•
|
changes in stock market analyst recommendations regarding our company, sectors in which we operate, the securities market generally and conditions in the financial markets;
|
•
|
regulatory developments affecting our industry;
|
•
|
announcements of studies and reports relating to our products or those of our competitors;
|
•
|
changes in economic performance or market valuations of our competitors;
|
•
|
actual or anticipated fluctuations in our quarterly results;
|
•
|
conditions in industries in which we operate;
|
•
|
announcements by us or our competitors of new products, acquisitions, strategic relations, joint ventures or capital commitments;
|
•
|
additions to or departures of our key executives and employees;
|
•
|
fluctuations of exchange rates;
|
•
|
release of transfer restrictions on our outstanding ordinary shares; and
|
•
|
sales or perceived sales of additional ordinary shares.
|
•
|
have a majority of the board of directors consisting of independent directors;
|
•
|
require non-management directors to meet on a regular basis without management present;
|
•
|
establish a nominating and compensation committee composed entirely of independent directors;
|
•
|
adopt and disclose a code of business conduct and ethics for directors, officers and employees; and
|
•
|
promptly disclose any waivers of the code for directors or executive officers that should address certain specified items.
|
•
|
an affirmative determination that all members of the Audit Committee are "independent," using more stringent criteria than those applicable to us as a foreign private issuer;
|
•
|
the adoption of a written charter specifying, among other things, the Audit Committee's purpose and including an annual performance evaluation; and
|
•
|
the review of an auditor's report describing internal quality control issues and procedures and all relationships between the auditor and us.
|
Item 4.
|
Information on the Company
|
A.
|
History and development of the company.
|
•
|
the agreement to purchase Dynetek Industries Ltd, a Canadian business listed on the Toronto Stock Exchange which closed in September 2012;
|
•
|
the acquisition of the assets and businesses of Truetech Inc. and Innotech Products Limited in July 2014. These entities produce magnesium-based flameless heating pads for self-heating meals used by the U.S. military and emergency relief agencies; an extensive line of self-heating meals, soups and beverages used by military and civilian end-users; chemical agent detection kits and chemical decontamination equipment; and seawater desalinization kits; and
|
•
|
the acquisition on December 5, 2017 of the trade and assets of Specialty Metals business of ESM Group Inc., including a manufacturing facility in Saxonburg, PA, U.S.A. ESM Group’s Saxonburg plant manufactures a range of magnesium-based chips, granules, ground powders and atomized powders.
|
•
|
Advanced lightweight, corrosion-resistant and heat- and flame-resistant magnesium alloys including our new bioresorbable SynerMag
®
alloy and our dissolvable SoluMag
®
alloy.
|
•
|
Magnesium powders used in countermeasure flares that protect aircraft from heat-seeking missiles and also for heating pads for self-heating meals used by the military and emergency-relief agencies.
|
•
|
Magnesium, copper, and zinc photoengraving plates for graphic arts and luxury packaging.
|
•
|
High-performance zirconium-based materials and oxides used as catalysts and in the manufacture of advanced ceramics, fiber-optic fuel cells, and many other performance products.
|
•
|
Carbon composite cylinders for self-contained breathing apparatus (SCBA), used by firefighters and other emergency-responders. Our products are also used by scuba divers and personnel in potentially hazardous environments such as mines.
|
•
|
Aluminum and composite cylinders used for containment of oxygen and other medical gases used by patients, healthcare facilities and laboratories.
|
•
|
Carbon composite cylinders for compressed natural gas (CNG) and hydrogen containment in alternative fuel (AF) vehicles.
|
•
|
Lightweight aluminum cylinders for a variety of industrial applications such as fire extinguishers and containment of high-purity specialty gases.
|
•
|
Lightweight aluminum and titanium panels superformed into highly complex shapes used mainly in the transportation industry.
|
|
Area of Focus
|
|
Product
|
|
End-market drivers
|
|
|
Alternative fuels
|
|
• Alternative fuel cylinders
• Exhaust catalysts
• Bulk gas transportation cylinders
|
|
• "Clean air" initiatives
• Abundance of natural gas
• Favorable tax treatment
• Increasing CNG filling infrastructure
|
|
|
Environmental catalysts (cleaning of exhaust emissions)
|
|
• Zirconium compounds with specific properties used in auto-catalysis washcoats
|
|
• Emissions legislation generally
• Application of tighter regulations on diesel engines in U.S. and Europe
• Cost effective for vehicle manufacturers as they reduce the use of precious metals
|
|
|
Specialty / high-end automotive
|
|
• Superformed complex body panels, doors and trunk assemblies and other high-strength components
• Magnesium extrusions
|
|
• Fuel efficiency for a given level of performance
• Increased flexibility for vehicle designers in terms of complex shapes and strength
• Strong demand for top-end cars from affluent customers, typically in emerging markets
|
|
|
Sensors, piezoelectrics and electro-ceramics
|
|
• Zirconium-based ceramic materials used in sensors of engine management systems
|
|
• Engine efficiency
• Control of exhaust gases
|
|
|
Rail transport
|
|
• Superformed train front-cab and internal components
|
|
• Government investment in public transport
• Fuel efficiency
• Safety requirements for moving from plastic to metal for internal components
|
|
|
Military and civil aerospace
|
|
• Superform (wing leading edges, engine nacelle skins, winglets)
• Elektron® aerospace alloys in cast, extruded, and sheet form
|
|
• Growing aircraft build rate
• Increasing cost of fuel
|
|
|
Helicopters
|
|
• Magnesium sand-casting alloys, superformed panels
|
|
• Lightweighting
• Fuel efficiency
|
|
|
Recycling
|
|
• Recycling service converting magnesium scrap into good die-casting ingot
|
|
• Marketing "whole-of-life" costing for vehicles
• Legislation requiring recycling at end of vehicle's life cycle
|
|
|
Area of Focus
|
|
Product
|
|
End-market drivers
|
|
|
Life-support breathing apparatus
|
|
• Composite cylinders used in SCBA
|
|
• Increased awareness of importance of properly equipping firefighting services post 9/11
• Demand for lightweight products to upgrade from heavy all-metal cylinders
• Periodic upgrade of new U.S. National Institute for Occupational Safety and Health (NIOSH) standards and natural replacement cycles
• Asian and European fire services looking to adopt more modern SCBA equipment
|
|
|
Fire protection
|
|
• Cylinders (CO
2
fire extinguishers)
|
|
• New commercial buildings
• Cylinder replacement during annual servicing
|
|
|
Countermeasures
|
|
• Ultra-fine magnesium powders for flares used to protect aircraft from attack by heat-seeking missiles
|
|
• Use in combat and training
• Maintenance of countermeasures reserves (shelf-life restrictions)
|
|
|
Military vehicles
|
|
• Elektron® magnesium alloys in cast rolled, and extruded forms
|
|
• Maintaining high level of protection while reducing weight to improve maneuverability and fuel economy
|
|
|
Military personnel and emergency relief agencies
|
|
• Self-heating meals used by military personnel and emergency-relief agencies
• Chemical detection and chemical decontamination kits
|
|
• Ensuring protection and well-being for military personnel and victims of natural disasters
• Use in combat and training and in response to terrorist activities
|
|
|
Area of Focus
|
|
Product
|
|
End-market drivers
|
|
|
Medical gases
|
|
• Portable aluminum and composite cylinders
• Portable oxygen concentrators
|
|
• Growing use of medical gases
• Shift to paramedics, who need portable, lightweight products
• Growing trend to provide oxygen therapy in the home and to keep patients mobile
• Increasingly aging population
• Increase in respiratory diseases
|
|
|
Medical equipment casings
|
|
• Superformed panels (e.g., for MRI scanners)
|
|
• Growing use of equipment using powerful magnets and consequent need for non-ferrous, hygienic casings
|
|
|
Pharmaceutical industry
|
|
• Magnesium powders as a catalyst for chemical synthesis (Grignard process)
|
|
• Growth in pharmaceutical industry
|
|
|
Orthopedics
|
|
• Magnesium sheets
|
|
• Improved mobility through use of easy-to-wear, lightweight braces and trusses
|
|
|
Sorbents
|
|
• MELsorb® material being developed as active ingredient in dialysis equipment and enterosorbents
|
|
• Growth in kidney problems
• New technologies to remove noxious elements from the body
|
|
|
Area of Focus
|
|
Product
|
|
End-market drivers
|
|
|
Specialty gases
|
|
• Inert-interior aluminum cylinders for high-purity gases
|
|
• Semiconductor and electronics industries
• Pharmaceutical industry growth
• Specialized laboratory requirements
• Oil exploration
|
|
|
Leisure activities
|
|
• Cylinders for SCUBA diving, car and boat racing
|
|
• Leisure time
• Growth of middle class in emerging markets
|
|
|
General engineering
|
|
• Magnesium billets, sheets, coil, tooling plates
• Zirconium ceramic compounds for hard working components
|
|
• Economic growth
• Need for components to operate in more extreme environments for longer periods, such as underground or in the ocean
|
|
|
Water purification
|
|
• Isolux® (removal of heavy metals from drinking water) and MELsorb® (wastewater treatment)
|
|
• Tightened World Health Organization guidelines on levels of heavy metals in water and associated legislation
|
|
|
Paper
|
|
• Bacote™ and Zirmel™, both formaldehyde-free insolubilizers that aid high-quality printing
|
|
• Elimination of toxic chemicals
|
|
|
Graphic arts
|
|
• Photo-engraving plates
|
|
• Luxury packaging as part of marketing high-end products
|
|
•
|
A common set of values that drives accountability, innovation, customer first, personal development, teamwork and integrity.
|
•
|
Disciplined capital allocation with the aim of maximizing organic growth and the product portfolio value through value-enhancing acquisitions and divestitures.
|
•
|
Balanced score-card used in an effort to continuously improve employee performance in an effort to help translate our vision into actionable individual goals and ensure that employee compensation is commensurate with individual performance.
|
•
|
A published Customer Charter designed to enable us to retain and grow our customer base and capture additional market share.
|
•
|
A lean enterprise philosophy that helps drive operational process excellence in all functions including, sales, marketing, innovation, human resources, supply, manufacturing, information technology and finance.
|
|
|
Year ended December 31, 2017
|
|
|||||||||||||||||||
|
|
Revenue
|
|
Trading profit
(1)
|
|
Adjusted EBITDA
(2)
|
|
|||||||||||||||
|
|
Amount
|
|
Percentage
|
|
Amount
|
|
Percentage
|
|
Amount
|
|
Percentage
|
|
|||||||||
|
|
(in $ million)
|
|
(%)
|
|
(in $ million)
|
|
(%)
|
|
(in $ million)
|
|
(%)
|
|
|||||||||
|
Elektron
|
$
|
221.1
|
|
|
50.1
|
%
|
|
$
|
31.8
|
|
|
78.5
|
%
|
|
$
|
44.5
|
|
|
72.0
|
%
|
|
|
Gas Cylinders
|
220.2
|
|
|
49.9
|
%
|
|
8.7
|
|
|
21.5
|
%
|
|
17.3
|
|
|
28.0
|
%
|
|
|
|
Year ended December 31, 2016
|
|
|||||||||||||||||||
|
|
Revenue
|
|
Trading profit
(1)
|
|
Adjusted EBITDA
(2)
|
|
|||||||||||||||
|
|
Amount
|
|
Percentage
|
|
Amount
|
|
Percentage
|
|
Amount
|
|
Percentage
|
|
|||||||||
|
|
(in $ million)
|
|
(%)
|
|
(in $ million)
|
|
(%)
|
|
(in $ million)
|
|
(%)
|
|
|||||||||
|
Elektron
|
$
|
189.0
|
|
|
45.6
|
%
|
|
$
|
23.9
|
|
|
67.7
|
%
|
|
$
|
35.6
|
|
|
64.4
|
%
|
|
|
Gas Cylinders
|
225.8
|
|
|
54.4
|
%
|
|
11.4
|
|
|
32.3
|
%
|
|
19.7
|
|
|
35.6
|
%
|
|
|
|
Year ended December 31, 2015
|
|
|||||||||||||||||||
|
|
Revenue
|
|
Trading profit
(1)
|
|
Adjusted EBITDA
(2)
|
|
|||||||||||||||
|
|
Amount
|
|
Percentage
|
|
Amount
|
|
Percentage
|
|
Amount
|
|
Percentage
|
|
|||||||||
|
|
(in $ million)
|
|
(%)
|
|
(in $ million)
|
|
(%)
|
|
(in $ million)
|
|
(%)
|
|
|||||||||
|
Elektron
|
$
|
221.2
|
|
|
48.1
|
%
|
|
$
|
33.7
|
|
|
79.7
|
%
|
|
$
|
45.7
|
|
|
73.5
|
%
|
|
|
Gas Cylinders
|
239.1
|
|
|
51.9
|
%
|
|
8.6
|
|
|
20.3
|
%
|
|
16.5
|
|
|
26.5
|
%
|
|
(1)
|
Trading profit is defined as operating profit before profit on sale of redundant site, changes to defined benefit pension plans and restructuring and other expense. For purposes of our divisional segmental analysis, IFRS 8 requires the use of "segment profit" performance measures that are used by our chief operating decision maker. Trading profit is the "segment profit" measure used by our chief operating decision maker for divisional segmental analysis. See "Note 2—Revenue and segmental analysis" in our consolidated financial statements included elsewhere in this Annual Report.
|
(2)
|
Adjusted EBITDA is defined as net income for the period before income tax expense, finance income (which comprises interest receivable), finance costs (which comprises interest costs, IAS 19R retirement benefits finance charge, and the unwind of the discount on deferred contingent consideration from acquisitions), net gain / (loss) on acquisitions and disposals, profit on sale of redundant site, changes to defined benefit pension plans, restructuring and other expense, other share based compensation charges, depreciation and amortization and loss on disposal of property, plant and equipment.
See footnote (3) of Item 3.A. ("Selected financial data") of this Annual Report for a reconciliation to net income.
|
|
Products
|
|
Application / principal
markets supplied
|
|
Illustrative customers
and end-users
|
|
|
Magnesium alloys
|
|
Aerospace, oil and gas and specialist automotive
|
|
United Technologies, Fansteel-Wellman, Boeing, Lockheed Martin
|
|
|
Magnesium powders and powder-based products
|
|
Defense countermeasure flares and self-heating meals for military personnel and emergency-relief agencies
|
|
Esterline Defense Technologies, Chemring, US armed forces, FEMA, Red Cross, The Wornick Company, AmeriQual Group, LLC, Sopakco
|
|
|
Magnesium plates
|
|
Photo-engraving for packaging and decorative printing
|
|
American Greetings
|
|
|
Zirconium compounds
|
|
Catalysts
|
|
Umicore, Johnson Matthey, BASF, Sud Chemie, Dinex, UOP (Honeywell)
|
|
|
|
|
Ceramics
|
|
Bosch, EPCOS, Imerys, Oerlikon Metco, Ask-Hi Tech
|
|
|
|
|
Chemical synthesis
|
|
BASF
|
|
|
|
|
Reflective coatings
|
|
3M
|
|
|
Geographic Region
|
|
Percentage of Elektron revenue
|
|
|
|
North America
|
59
|
%
|
|
|
|
Europe, other than U.K.
|
25
|
%
|
|
|
|
Asia Pacific
|
9
|
%
|
|
|
|
U.K.
|
4
|
%
|
|
|
|
Rest of World
|
3
|
%
|
|
|
Geographic Region
|
|
Percentage of Elektron revenue
|
|
|
|
North America
|
64
|
%
|
|
|
|
U.K.
|
28
|
%
|
|
|
|
Europe, other than U.K.
|
8
|
%
|
|
|
|
|
|
|
|
|
|
Products
|
|
Application / principal markets
supplied
|
|
Illustrative customers
and end-users
|
|
|
High-pressure aluminum and composite gas-containment cylinders and systems
|
|
Self-contained breathing apparatus (SCBA)
|
|
Scott Safety (3M), MSA, Honeywell
|
|
|
|
Alternative fuels
|
|
Creative Bus, MAN
|
|
|
|
|
Bulk gas transportation
|
|
GTM Technologies
|
|
|
|
|
Specialty gases
|
|
Linde, Air Liquide, Airgas
|
|
|
|
|
Medical
|
|
Linde, Air Products
|
|
|
|
|
Fire extinguisher
|
|
Ansul (Johnson Controls), Chubb / Kidde (UTC)
|
|
|
|
|
Beverage
|
|
Coca-Cola, Pepsi
|
|
|
|
|
Scuba
|
|
XS Scuba
|
|
|
|
|
Inflation (aerospace)
|
|
Goodrich (UTC)
|
|
|
|
Superplastically-formed aluminum, titanium and magnesium products
|
|
Aerospace
|
|
Exelis, Boeing, Bombardier, Honda, Spirit, UTC Aerospace, Honeywell, Embraer, Short Brothers Plc (Bombardier), BAE Systems, GKN Aerospace.
|
|
|
|
Automotive
|
|
Aston Martin, Morgan, Bentley (VW), Ferrari S.P.A., Chrysler / FnG, McLaren Automotive
|
|
|
|
|
Medical
|
|
Siemens, Varian
|
|
|
|
|
Rail
|
|
Bombardier, Kinki Sharyo, Hitachi, LUL.
|
|
|
Geographic Region
|
|
Percentage of Gas Cylinders revenue
|
|
|
|
North America
|
49
|
%
|
|
|
|
Europe, other than U.K.
|
21
|
%
|
|
|
|
Asia Pacific
|
12
|
%
|
|
|
|
U.K.
|
14
|
%
|
|
|
|
Rest of World
|
4
|
%
|
|
|
Geographic Region
|
|
Percentage of Gas Cylinders revenue
|
|
|
|
North America
|
61
|
%
|
|
|
|
U.K.
|
27
|
%
|
|
|
|
Europe, other than U.K.
|
10
|
%
|
|
|
|
Asia Pacific
|
2
|
%
|
|
•
|
Aluminum cylinders are up to 40% lighter in weight than steel cylinders.
|
•
|
Non-corroding and non-reactive aluminum cylinders are ideal for maintaining the purity of many specialty gases used in critical manufacturing and laboratory applications.
|
•
|
Considered by many to be more cosmetically attractive than steel, aluminum cylinders are desirable for fire extinguishers, medical and scuba applications.
|
•
|
Non-magnetic aluminum cylinders may be safely used near diagnostic medical equipment containing powerful magnets.
|
•
|
Carbon composite cylinders are about one-third the weight of comparable aluminum cylinders and about 70% lighter than comparable steel cylinders.
|
•
|
High strength-to-weight ratio enables increased pressure to be used for the same size cylinder, thereby increasing cylinder volume capacity.
|
|
Name of company
|
|
Country of incorporation
|
|
Proportion of ownership interest
|
|
|
|
BA Holdings, Inc.*
|
U.S.
|
|
100
|
%
|
|
|
|
Biggleswick Limited*
|
England and Wales
|
|
100
|
%
|
|
|
|
Luxfer Group Services Limited*
|
England and Wales
|
|
100
|
%
|
|
|
|
LGL 1996 Limited*
|
England and Wales
|
|
100
|
%
|
|
|
|
BAL 1996 Limited*
|
England and Wales
|
|
100
|
%
|
|
|
|
Hart Metals, Inc.*
|
U.S.
|
|
100
|
%
|
|
|
|
Lumina Trustee Limited
(1)
|
England and Wales
|
|
100
|
%
|
|
|
|
Luxfer Australia Pty Limited*
|
Australia
|
|
100
|
%
|
|
|
|
Luxfer Gas Cylinders Limited*
|
England and Wales
|
|
100
|
%
|
|
|
|
Luxfer Gas Cylinders China Holdings Limited*
|
England and Wales
|
|
100
|
%
|
|
|
|
Luxfer Gas Cylinders (Shanghai) Co., Limited*
|
People's Republic of China
|
|
100
|
%
|
|
|
|
Luxfer Group Limited
|
England and Wales
|
|
100
|
%
|
|
|
|
Luxfer Group 2000 Limited
|
England and Wales
|
|
100
|
%
|
|
|
|
Luxfer, Inc.*
|
U.S.
|
|
100
|
%
|
|
|
|
Luxfer Overseas Holdings Limited*
|
England and Wales
|
|
100
|
%
|
|
|
|
Magnesium Elektron Limited*
|
England and Wales
|
|
100
|
%
|
|
|
|
MEL Chemicals, Inc.*
|
U.S.
|
|
100
|
%
|
|
|
|
Magnesium Elektron North America, Inc.*
|
U.S.
|
|
100
|
%
|
|
|
|
Magnesium Elektron CZ s.r.o.*
|
Czech Republic
|
|
100
|
%
|
|
|
|
MEL Chemicals China Limited*
|
England and Wales
|
|
100
|
%
|
|
|
|
Niagara Metallurgical Products Limited*
|
Canada
|
|
100
|
%
|
|
|
|
Reade Manufacturing, Inc.*
|
U.S.
|
|
100
|
%
|
|
|
|
Luxfer Gas Cylinders S.A.S.*
|
France
|
|
100
|
%
|
|
|
|
Luxfer Canada Limited*
|
Canada
|
|
100
|
%
|
|
|
|
Luxfer Germany GmbH*
|
Germany
|
|
100
|
%
|
|
|
|
Luxfer Utah LLC*
|
U.S.
|
|
100
|
%
|
|
|
|
HyPerComp Engineering Inc.*
|
U.S.
|
|
100
|
%
|
|
|
|
Luxfer Magtech Inc.*
|
U.S.
|
|
100
|
%
|
|
|
|
Luxfer Magtech International Limited*
|
England and Wales
|
|
100
|
%
|
|
|
Name of company
|
|
Country of incorporation
|
|
Proportion of voting rights and shares held
|
|
|
|
Nikkei-MEL Co Limited*
|
Japan
|
|
50
|
%
|
|
|
|
Luxfer Uttam India Private Limited*
|
India
|
|
51
|
%
|
|
|
|
Dynetek Cylinders India Private Ltd*
|
India
|
|
49
|
%
|
|
|
|
Dynetek Korea Co Limited*
|
South Korea
|
|
49
|
%
|
|
|
|
Luxfer Holdings NA, LLC*
|
U.S.
|
|
49
|
%
|
|
|
|
Sub161 Pty Limited*
|
Australia
|
|
26.4
|
%
|
|
|
Division
|
|
Property / Plant
|
|
Principal products
manufactured
|
|
Ownership
|
|
Approximate area (square feet)
|
|
|
|
Elektron
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Manchester, England (3 plants)
|
|
Magnesium alloys / zirconium chemicals
|
|
Split Lease / Own
|
|
561,264
|
|
|
|
|
|
Madison, IL
|
|
Magnesium sheet
|
|
Lease
|
|
803,795
|
|
|
|
|
|
Findlay, OH
|
|
Photo-engraving sheet
|
|
Own
|
|
43,000
|
|
|
|
|
|
Tamaqua, PA
|
|
Magnesium powders
|
|
Own
|
|
64,304
|
|
|
|
|
|
Lakehurst, NJ
|
|
Magnesium powders
|
|
Own
|
|
78,926
|
|
|
|
|
|
Flemington, NJ
|
|
Zirconium chemicals
|
|
Own
|
|
65,000
|
|
|
|
|
|
Hamilton, Canada
|
|
Magnesium powders
|
|
Lease
|
|
16,335
|
|
|
|
|
|
Litvinov, Czech Republic
|
|
Magnesium recycling
|
|
Own
|
|
62,140
|
|
|
|
|
|
Riverhead, NY
|
|
Magnesium heating pads
|
|
Own
|
|
75,000
|
|
|
|
|
|
Cincinnati, OH
|
|
Magnesium heating pads
|
|
Lease
|
|
150,000
|
|
|
|
|
|
Saxonburg, PA
|
|
Magnesium powders
|
|
Own
|
|
68,000
|
|
|
|
Gas Cylinders
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nottingham, England
|
|
Aluminum cylinders
|
|
Lease
|
|
143,222
|
|
|
|
|
|
Gerzat, France
|
|
Cylinders
|
|
Own
|
|
327,535
|
|
|
|
|
|
Calgary, Canada
|
|
Composite cylinders
|
|
Lease
|
|
65,500
|
|
|
|
|
|
Worcester, England
|
|
Aluminum panels
|
|
Lease
|
|
97,315
|
|
|
|
|
|
Kidderminster, England
|
|
Aluminum panels
|
|
Lease
|
|
60,200
|
|
|
|
|
|
Riverside, CA
|
|
Composite cylinders
|
|
Lease / Own
|
|
125,738
|
|
|
|
|
|
Graham, NC
|
|
Aluminum cylinders
|
|
Own
|
|
121,509
|
|
|
|
|
|
Riverside, CA
|
|
Aluminum panels
|
|
Lease
|
|
68,240
|
|
|
|
|
|
Brigham City, UT
|
|
Cylinders
|
|
Lease
|
|
10,670
|
|
|
|
|
|
Shanghai, China
|
|
Cylinders
|
|
Lease
|
|
15,383
|
|
|
Item 4A.
|
Unresolved Staff Comments
|
Item 5.
|
Operating and Financial Review and Prospects
|
•
|
As part of our consolidation each period, we translate the financial statements of those entities in our group that have functional currencies other than U.S. dollars into U.S. dollars at the period-end exchange rates (in the case of the balance sheet amounts) and the average exchange rates for the period (in the case of income statement and cash flow amounts). The translated values in respect of each entity fluctuate over time with the movement of the exchange rate for the entity's functional currency against the U.S. dollar. We refer to this as the currency translation risk;
|
•
|
Our operating subsidiaries make purchases and sales denominated in a number of currencies, including currencies other than their respective functional currencies. To the extent that an entity makes purchases in a currency that appreciates against its functional currency, its cost basis expressed in its functional currency will increase (or decrease if the other currency depreciates against its functional currency). Similarly, for sales in a currency other than the entity's functional currency, its revenues will increase to the extent that the other currency appreciates against the entity's functional currency and decrease to the extent that the currency depreciates against the entity's functional currency. These
|
•
|
After a purchase or sale is completed, the currency transaction risk continues to affect foreign currency accounts payable and accounts receivable on the books of those entities that made purchases or sales in a foreign currency. These entities are required to remeasure these balances at market exchange rates at the end of each period; and
|
•
|
To mitigate our exposure to currency transaction risk, we have operated a policy of hedging all contracted commitments in foreign currency, although no new hedges were taken out in the second half of 2017. We also hedge a portion of non-contracted forecast currency receipts and payments for up to 12 months forward.
|
•
|
Transportation:
Many Luxfer products serve a growing need to improve and safeguard the environment in the field of transportation, including our zirconium-based products that clean up automotive exhausts; our lightweight magnesium alloys used in fuel-efficient aerospace and automotive designs; and our lightweight, high-pressure carbon composite alternative fuel cylinders that contain clean-burning compressed natural gas. We also superform single sheets of aluminum, magnesium or titanium to create a complex, three-dimensional shapes used in automotive, aerospace and rail components. As recycling metals is an essential environmental and economic practice, we have a dedicated site specifically for recycling magnesium alloys, as well as recycling capabilities at all our production sites.
|
•
|
Defense and emergency response:
Luxfer offers a number of products that address principal factors driving growth in this market, such as heightened societal expectations regarding protection of people, equipment and property during conflicts and emergencies. Our products include magnesium powders for countermeasure flares that defend aircraft against heat-seeking missile attack, life-support cylinders for firefighters and other emergency-service personnel, inflation cylinders for aircraft escape slides and life rafts, fire extinguisher cylinders, and chemical agent detection and decontamination products.
|
•
|
Healthcare:
Luxfer has a long history in the healthcare end-market, and we see this as a major area for the introduction of new technologies. These include lightweight aluminum and composite cylinders for containment of medical and laboratory gases; magnesium powders for pharmaceutical products; magnesium materials for lightweight orthopedic devices; specialized magnesium alloys for cardiovascular stents and implants; and zirconium materials for biomedical applications and dental implants.
|
•
|
General industrial:
Our core technologies have enabled us to exploit various other niche markets and applications. Our products include zirconium-based compounds to purify drinking water and clean up industrial exhausts; magnesium alloys shaped for use in various general engineering applications; and high-pressure gas cylinders used for high-purity specialty gases, beverage dispensing, scuba diving and performance racing. Metal foil-stamping and embossing dies are used primarily for luxury packaging, labels and greeting cards. Our high-quality magnesium, copper and zinc plates are ideal for these and other graphic applications.
|
A.
|
Operating results.
|
|
|
|
Year Ended December 31,
|
|
|||||||||||||||||||
|
|
|
2017
|
|
2016
|
|
2015
|
|
|||||||||||||||
|
|
|
Amount
|
|
Percentage
of
Revenue
|
|
Amount
|
|
Percentage
of
Revenue
|
|
Amount
|
|
Percentage
of
Revenue
|
|
|||||||||
|
|
|
(in $ million)
|
|
(%)
|
|
(in $ million)
|
|
(%)
|
|
(in $ million)
|
|
(%)
|
|
|||||||||
|
Revenue
|
|
$
|
441.3
|
|
|
100.0
|
%
|
|
$
|
414.8
|
|
|
100.0
|
%
|
|
$
|
460.3
|
|
|
100.0
|
%
|
|
|
Cost of sales
|
|
(332.7
|
)
|
|
(75.4
|
)%
|
|
(321.4
|
)
|
|
(77.5
|
)%
|
|
(356.3
|
)
|
|
(77.4
|
)%
|
|
|||
|
Gross profit
|
|
108.6
|
|
|
24.6
|
%
|
|
93.4
|
|
|
22.5
|
%
|
|
104.0
|
|
|
22.6
|
%
|
|
|||
|
Distribution costs
|
|
(9.3
|
)
|
|
(2.1
|
)%
|
|
(7.8
|
)
|
|
(1.9
|
)%
|
|
(7.9
|
)
|
|
(1.7
|
)%
|
|
|||
|
Administrative expenses
|
|
(58.9
|
)
|
|
(13.3
|
)%
|
|
(50.8
|
)
|
|
(12.2
|
)%
|
|
(52.6
|
)
|
|
(11.4
|
)%
|
|
|||
|
Share of results of joint ventures and associates
|
|
0.1
|
|
|
0.1
|
%
|
|
0.5
|
|
|
0.1
|
%
|
|
(1.2
|
)
|
|
(0.3
|
)%
|
|
|||
|
Trading profit
(1)
|
|
$
|
40.5
|
|
|
9.2
|
%
|
|
$
|
35.3
|
|
|
8.5
|
%
|
|
$
|
42.3
|
|
|
9.2
|
%
|
|
|
Profit on sale of redundant site
(2)
|
|
0.4
|
|
|
0.1
|
%
|
|
2.1
|
|
|
0.5
|
%
|
|
—
|
|
|
—
|
|
|
|||
|
Changes to defined benefit pension plans
(2)
|
|
—
|
|
|
—
|
|
|
0.6
|
|
|
0.1
|
%
|
|
18.0
|
|
|
3.9
|
%
|
|
|||
|
Restructuring and other expense
(2)
|
|
(21.6
|
)
|
|
(4.9
|
)%
|
|
(2.2
|
)
|
|
(0.5
|
)%
|
|
(22.4
|
)
|
|
(4.9
|
)%
|
|
|||
|
Operating profit
|
|
$
|
19.3
|
|
|
4.4
|
%
|
|
$
|
35.8
|
|
|
8.6
|
%
|
|
$
|
37.9
|
|
|
8.2
|
%
|
|
|
Other income / (expense):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||
|
Net gain / (loss) on acquisitions and disposals
(2)
|
|
1.3
|
|
|
0.3
|
%
|
|
0.2
|
|
|
0.1
|
%
|
|
(2.0
|
)
|
|
(0.4
|
)%
|
|
|||
|
Finance income:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||
|
Interest received
|
|
0.5
|
|
|
0.1
|
%
|
|
1.2
|
|
|
0.3
|
%
|
|
0.5
|
|
|
0.1
|
%
|
|
|||
|
Finance costs:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||
|
Interest costs
|
|
(7.2
|
)
|
|
(1.6
|
)%
|
|
(6.8
|
)
|
|
(1.6
|
)%
|
|
(7.4
|
)
|
|
(1.6
|
)%
|
|
|||
|
IAS 19R retirement benefits finance charge
|
|
(1.8
|
)
|
|
(0.4
|
)%
|
|
(2.1
|
)
|
|
(0.5
|
)%
|
|
(3.0
|
)
|
|
(0.7
|
)%
|
|
|||
|
Unwind of discount on deferred contingent consideration from acquisitions
|
|
(0.2
|
)
|
|
0.1
|
%
|
|
(0.4
|
)
|
|
(0.1
|
)%
|
|
(0.4
|
)
|
|
(0.1
|
)%
|
|
|||
|
Total finance costs:
|
|
(9.2
|
)
|
|
(2.1
|
)%
|
|
(9.3
|
)
|
|
(2.2
|
)%
|
|
(10.8
|
)
|
|
(2.3
|
)%
|
|
|||
|
Profit on operations before taxation
|
|
$
|
11.9
|
|
|
2.7
|
%
|
|
$
|
27.9
|
|
|
6.7
|
%
|
|
$
|
25.6
|
|
|
5.6
|
%
|
|
|
Tax expense
|
|
(0.4
|
)
|
|
(0.1
|
)%
|
|
(6.0
|
)
|
|
(1.4
|
)%
|
|
(9.5
|
)
|
|
(2.1
|
)%
|
|
|||
|
Net income for the year
|
|
$
|
11.5
|
|
|
2.6
|
%
|
|
$
|
21.9
|
|
|
5.3
|
%
|
|
$
|
16.1
|
|
|
3.5
|
%
|
|
|
Non-GAAP measures:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||
|
Adjusted EBITDA
(3)
|
|
$
|
61.8
|
|
|
14.0
|
%
|
|
$
|
55.3
|
|
|
13.3
|
%
|
|
$
|
62.2
|
|
|
13.5
|
%
|
|
|
Adjusted net income for the year
(4)
|
|
$
|
27.6
|
|
|
6.3
|
%
|
|
$
|
24.7
|
|
|
6.0
|
%
|
|
$
|
29.5
|
|
|
6.4
|
%
|
|
(1)
|
Trading profit is defined as operating profit before profit on sale of redundant site, changes to defined benefit pension plans and restructuring and other expense. For the purposes of our divisional segmental analysis, IFRS 8 requires the use of "segment profit" performance measures that is used by our chief operating decision maker. Trading profit is the "segment profit" measure used by our chief operating decision maker for divisional segmental analysis. See "Note 2—Revenue and segmental analysis" in our consolidated financial statements included elsewhere in this Annual Report.
|
(2)
|
For further information, see analysis of trading profit and operating profit variances, below.
|
(3)
|
Adjusted EBITDA is defined as net income for the period before income tax expense, finance income (which comprises interest received) and finance costs (which comprises interest costs, IAS 19R retirement benefits finance charge and the
|
(4)
|
Adjusted net income is a non-GAAP financial measure and consists of net income for the period adjusted for the post-tax impact of non-trading items, including certain accounting charges relating to acquisitions and disposals of businesses (comprising net gain / (loss) on acquisitions and disposals, the unwind of the discount on deferred contingent consideration from acquisitions and the amortization on acquired intangibles), IAS 19R retirement benefits finance charge, profit on sale of redundant site, changes to defined benefit pension plans, restructuring and other expense and other share based compensation charges. See footnote (8) of Item 3.A. ("Selected financial data") of this Annual Report for a reconciliation to net income.
|
|
|
Elektron
|
|
Gas Cylinders
|
|
Group
|
|
||||||
|
|
(in $ million)
|
|
||||||||||
|
2016 revenue—as reported under IFRS
|
$
|
189.0
|
|
|
$
|
225.8
|
|
|
$
|
414.8
|
|
|
|
FX impact
|
4.9
|
|
|
1.5
|
|
|
6.4
|
|
|
|||
|
2016 revenue—adjusted for FX
|
$
|
193.9
|
|
|
$
|
227.3
|
|
|
$
|
421.2
|
|
|
|
Trading variances for underlying operations—2017 v 2016
|
27.2
|
|
|
(7.1
|
)
|
|
20.1
|
|
|
|||
|
2017 revenue—as reported under IFRS
|
$
|
221.1
|
|
|
$
|
220.2
|
|
|
$
|
441.3
|
|
|
|
|
Elektron
Trading
Profit
|
|
Gas Cylinders Trading Profit
|
|
Group
Trading
Profit
|
|
Profit on sale of redundant site
|
|
Changes to Defined Benefit Pension Plans
|
|
Restructuring
and Other
Expense
|
|
Group
Operating
Profit
|
|
|||||||||||||||
|
2016—as reported under IFRS
|
$
|
23.9
|
|
|
$
|
11.4
|
|
|
$
|
35.3
|
|
|
$
|
2.1
|
|
|
$
|
0.6
|
|
|
$
|
(2.2
|
)
|
|
$
|
35.8
|
|
|
|
|
FX impact
|
3.1
|
|
|
1.2
|
|
3.1
|
|
4.3
|
|
|
(0.3
|
)
|
|
—
|
|
|
(0.1
|
)
|
|
3.9
|
|
|
|||||||
|
2016—adjusted for FX
|
27.0
|
|
|
12.6
|
|
|
39.6
|
|
|
1.8
|
|
|
0.6
|
|
|
(2.3
|
)
|
|
39.7
|
|
|
||||||||
|
Trading variances for underlying operations—2016 v 2017
|
4.8
|
|
|
(3.9
|
)
|
|
0.9
|
|
|
(1.4
|
)
|
|
(0.6
|
)
|
|
(19.3
|
)
|
|
(20.4
|
)
|
|
||||||||
|
2017—as reported under IFRS
|
$
|
31.8
|
|
|
$
|
8.7
|
|
|
$
|
40.5
|
|
|
$
|
0.4
|
|
|
$
|
—
|
|
|
$
|
(21.6
|
)
|
|
$
|
19.3
|
|
|
•
|
In
2017
,
there was a release of a provision in relation to the sale in 2016 of the redundant site at Redditch, resulting in a credit of
$0.4 million
compared to a $2.1 million profit on the sale itself in 2016.
|
•
|
The restructuring and other expense charge increased from
$2.2 million
in 2016 to
$21.6 million
in
2017
. The charge in
2017
relates predominantly to the rationalization of our operations,
$12.1 million
and non-current asset impairments,
$3.7 million
. We also incurred charges in relation to a litigation claim against a competitor (
$3.5 million
) and professional fees in connection to converting our ADR listing to a direct listing (
$2.3 million
).
|
|
|
Elektron
|
|
Gas Cylinders
|
|
Group
|
|
||||||
|
|
(in $ million)
|
|
||||||||||
|
2015 revenue—as reported under IFRS
|
$
|
221.2
|
|
|
$
|
239.1
|
|
|
$
|
460.3
|
|
|
|
FX translation impact—on non-U.S. operating results
|
(6.5
|
)
|
|
(6.9
|
)
|
|
(13.4
|
)
|
|
|||
|
2015 revenue—adjusted for FX translation
|
$
|
214.7
|
|
|
$
|
232.2
|
|
|
$
|
446.9
|
|
|
|
Trading variances for underlying operations—2016 v 2015
|
(25.7
|
)
|
|
(6.4
|
)
|
|
(32.1
|
)
|
|
|||
|
2016 revenue—as reported under IFRS
|
$
|
189.0
|
|
|
$
|
225.8
|
|
|
$
|
414.8
|
|
|
|
|
Elektron Trading Profit
|
|
Gas Cylinders Trading Profit
|
|
Group Trading Profit
|
|
Profit on sale of redundant site
|
|
Changes to Defined Benefit Pension Plans
|
|
Restructuring and Other Expense
|
|
Group Operating Profit
|
|
||||||||||||||
|
2015—as reported under IFRS
|
$
|
33.7
|
|
|
$
|
8.6
|
|
|
$
|
42.3
|
|
|
$
|
—
|
|
|
$
|
18.0
|
|
|
$
|
(22.4
|
)
|
|
$
|
37.9
|
|
|
|
FX translation impact—on non-U.S. operating results
|
(0.7
|
)
|
|
0.2
|
|
|
(0.5
|
)
|
|
—
|
|
|
(2.9
|
)
|
|
1.2
|
|
|
(2.2
|
)
|
|
|||||||
|
2015—adjusted for FX translation
|
33.0
|
|
|
8.8
|
|
|
41.8
|
|
|
—
|
|
|
15.1
|
|
|
(21.2
|
)
|
|
35.7
|
|
|
|||||||
|
Trading variances for underlying operations—2015 v 2016
|
(9.1
|
)
|
|
2.6
|
|
|
(6.5
|
)
|
|
2.1
|
|
|
(14.5
|
)
|
|
19.0
|
|
|
0.1
|
|
|
|||||||
|
2016—as reported under IFRS
|
$
|
23.9
|
|
|
$
|
11.4
|
|
|
$
|
35.3
|
|
|
$
|
2.1
|
|
|
$
|
0.6
|
|
|
$
|
(2.2
|
)
|
|
$
|
35.8
|
|
|
•
|
Other trading variances net of price changes benefited the Group by $5.7 million.
|
•
|
Employment and other costs decreased by $1.5 million in 2016, driven by initiatives across the Group to reduce fixed costs.
|
•
|
Operating profit was also impacted by several other non-trading items as follows:
|
•
|
In 2016, the redundant site at Redditch was sold to a company that specializes in remediating contaminated land, realizing a profit of $2.1million.
|
•
|
During 2016, a net credit of $0.6million was recognized following the sale of $10.0 million of U.S. deferred pensioner liabilities to an insurer, and lump sum payments of $4.9 million offered to certain U.S. deferred pensioners.
|
•
|
The restructuring and other expense charge decreased from $22.4 million in 2015 to $2.2 million in 2016. The charge in 2015 was higher primarily due to restructuring activity in the Gas Cylinders Division implemented to eliminate trading losses caused by the downturn in the CNG-AF market following the oil price collapse in 2015.
|
•
|
funding acquisitions, including deferred contingent consideration payments;
|
•
|
capital expenditure requirements;
|
•
|
payment of shareholder dividends;
|
•
|
servicing interest on the Loan Notes, which is payable at each quarter end, in addition to interest and / or commitment fees on the Senior Facilities Agreement (as defined below);
|
•
|
working capital requirements, particularly in the short term as we aim to achieve organic sales growth;
|
•
|
hedging facilities used to manage our foreign exchange and aluminum purchase price risks.
|
|
|
Year Ended December 31,
|
|
||||||||||
|
|
2017
|
|
2016
|
|
2015
|
|
||||||
|
|
(in $ million)
|
|
||||||||||
|
Net cash flows from operating activities
|
$
|
45.2
|
|
|
$
|
29.2
|
|
|
$
|
52.8
|
|
|
|
Net cash used in investing activities
|
(18.1
|
)
|
|
(15.1
|
)
|
|
(21.2
|
)
|
|
|||
|
Net cash flows before financing activities
|
27.1
|
|
|
14.1
|
|
|
31.6
|
|
|
|||
|
Net cash flows from financing activities
|
(33.6
|
)
|
|
(35.5
|
)
|
|
(9.2
|
)
|
|
|||
|
Net (decrease) / increase in cash and cash equivalents
|
(6.5
|
)
|
|
(21.4
|
)
|
|
22.4
|
|
|
|||
|
Net foreign exchange differences
|
2.0
|
|
|
(1.9
|
)
|
|
(0.1
|
)
|
|
|||
|
Net movement in cash and cash equivalents
|
$
|
(4.5
|
)
|
|
$
|
(23.3
|
)
|
|
$
|
22.3
|
|
|
|
|
Year Ended December 31,
|
|
||||||||||
|
|
2017
|
|
2016
|
|
2015
|
|
||||||
|
|
(in $ million)
|
|
||||||||||
|
CASH FLOWS FROM OPERATING ACTIVITIES
|
|
|
|
|
|
|
||||||
|
Net income for the year
|
$
|
11.5
|
|
|
$
|
21.9
|
|
|
$
|
16.1
|
|
|
|
Adjustments to reconcile net income for the year to net cash flows from continuing operating activities:
|
|
|
|
|
|
|
||||||
|
Income tax expense
|
0.4
|
|
|
6.0
|
|
|
9.5
|
|
|
|||
|
Depreciation and amortization
|
19.0
|
|
|
18.4
|
|
|
18.6
|
|
|
|||
|
Loss on disposal of property, plant and equipment
|
0.1
|
|
|
0.2
|
|
|
—
|
|
|
|||
|
Profit on sale of redundant site
|
(0.4
|
)
|
|
(2.1
|
)
|
|
—
|
|
|
|||
|
Share based compensation charges net of cash settlement
|
1.7
|
|
|
1.1
|
|
|
1.3
|
|
|
|||
|
Net interest costs
|
6.7
|
|
|
5.6
|
|
|
6.9
|
|
|
|||
|
Non-cash restructuring charges
|
|
|
|
|
|
|
||||||
|
Property, plant and equipment impairment
|
5.0
|
|
|
—
|
|
|
1.7
|
|
|
|||
|
Intangibles assets impairment
|
2.0
|
|
|
—
|
|
|
3.7
|
|
|
|||
|
Investment impairment
|
2.2
|
|
|
—
|
|
|
4.6
|
|
|
|||
|
Other non-cash restructuring charges
|
1.8
|
|
|
—
|
|
|
7.7
|
|
|
|||
|
Curtailment and past service credits on retirement benefits obligations
|
—
|
|
|
(0.6
|
)
|
|
(18.2
|
)
|
|
|||
|
IAS 19R retirement benefits finance charge
|
1.8
|
|
|
2.1
|
|
|
3.0
|
|
|
|||
|
Acquisitions and disposals.
|
(1.3
|
)
|
|
(0.2
|
)
|
|
2.0
|
|
|
|||
|
Unwind of discount on deferred contingent consideration from acquisitions
|
0.2
|
|
|
0.4
|
|
|
0.4
|
|
|
|||
|
Share of results of joint ventures and associates
|
(0.1
|
)
|
|
(0.5
|
)
|
|
1.2
|
|
|
|||
|
Changes in operating assets and liabilities:
|
|
|
|
|
|
|
||||||
|
Sale / (purchase) of assets classified as held for sale
|
—
|
|
|
—
|
|
|
1.2
|
|
|
|||
|
(Increase) / decrease in receivables
|
(9.1
|
)
|
|
(1.8
|
)
|
|
5.0
|
|
|
|||
|
Decrease in inventories
|
5.0
|
|
|
4.5
|
|
|
3.0
|
|
|
|||
|
Increase / (decrease) in payables
|
9.7
|
|
|
(10.3
|
)
|
|
(0.9
|
)
|
|
|||
|
Movement in retirement benefits obligations
|
(8.0
|
)
|
|
(6.3
|
)
|
|
(8.6
|
)
|
|
|||
|
Movement in provisions
|
1.1
|
|
|
(2.6
|
)
|
|
0.3
|
|
|
|||
|
Acquisition approach costs paid
|
—
|
|
|
(1.2
|
)
|
|
(0.6
|
)
|
|
|||
|
Income taxes paid
|
(4.1
|
)
|
|
(5.4
|
)
|
|
(5.1
|
)
|
|
|||
|
|
$
|
45.2
|
|
|
$
|
29.2
|
|
|
$
|
52.8
|
|
|
|
|
Year Ended December 31,
|
|
||||||||||
|
|
2017
|
|
2016
|
|
2015
|
|
||||||
|
|
(in $ million)
|
|
||||||||||
|
CASH FLOWS FROM INVESTING ACTIVITIES
|
|
|
|
|
|
|
|
|
|
|||
|
Purchases of property, plant and equipment
|
$
|
(9.6
|
)
|
|
$
|
(16.5
|
)
|
|
$
|
(15.3
|
)
|
|
|
Purchases of intangible assets
|
(1.7
|
)
|
|
(2.4
|
)
|
|
(2.1
|
)
|
|
|||
|
Proceeds from sale of redundant site
|
—
|
|
|
3.0
|
|
|
—
|
|
|
|||
|
Receipts from sales of property, plant and equipment
|
0.1
|
|
|
0.4
|
|
|
—
|
|
|
|||
|
Cash received from compensation for insured assets
|
—
|
|
|
0.2
|
|
|
—
|
|
|
|||
|
Investment in joint ventures and associates
|
(1.0
|
)
|
|
0.2
|
|
|
(4.2
|
)
|
|
|||
|
Interest income received from joint ventures
|
0.1
|
|
|
0.3
|
|
|
0.4
|
|
|
|||
|
Net cash flows on purchase of businesses
|
(5.6
|
)
|
|
(0.3
|
)
|
|
—
|
|
|
|||
|
Acquisition and disposal costs paid
|
(0.4
|
)
|
|
—
|
|
|
—
|
|
|
|||
|
|
$
|
(18.1
|
)
|
|
$
|
(15.1
|
)
|
|
$
|
(21.2
|
)
|
|
|
|
|
Year Ended December 31,
|
|
||||||||||
|
|
|
2017
|
|
2016
|
|
2015
|
|
||||||
|
|
|
(in $ million)
|
|
||||||||||
|
CASH FLOWS FROM FINANCING ACTIVITIES
|
|
|
|
|
|
|
|
|
|
|
|||
|
Interest and similar finance costs paid on banking facilities
|
|
$
|
(1.9
|
)
|
|
$
|
(1.9
|
)
|
|
$
|
(1.7
|
)
|
|
|
Interest paid on Loan Notes
|
|
(4.3
|
)
|
|
(4.5
|
)
|
|
(4.9
|
)
|
|
|||
|
Bank interest received
|
|
0.2
|
|
|
0.2
|
|
|
0.2
|
|
|
|||
|
(Repayment) / draw down on banking facilities
|
|
(13.4
|
)
|
|
(8.5
|
)
|
|
9.6
|
|
|
|||
|
Extension to long-term debt—financing costs
|
|
(1.2
|
)
|
|
(0.2
|
)
|
|
—
|
|
|
|||
|
Dividends paid
|
|
(13.3
|
)
|
|
(13.3
|
)
|
|
(10.8
|
)
|
|
|||
|
ESOP cash movements
|
|
—
|
|
|
(1.0
|
)
|
|
0.1
|
|
|
|||
|
Proceeds from issue of shares
|
|
—
|
|
|
—
|
|
|
0.2
|
|
|
|||
|
Treasury share cash movements
|
|
0.3
|
|
|
(6.3
|
)
|
|
(1.9
|
)
|
|
|||
|
|
|
$
|
(33.6
|
)
|
|
$
|
(35.5
|
)
|
|
$
|
(9.2
|
)
|
|
|
Leverage
|
|
Margin
|
|
|
|
|
(% per annum)
|
|
||
|
Greater than 3.0:1
|
2.90
|
|
|
|
|
Less than or equal to 3.0:1, but greater than 2.5:1
|
2.50
|
|
|
|
|
Less than or equal to 2.5:1, but greater than 2.0:1
|
2.25
|
|
|
|
|
Less than or equal to 2.0:1, but greater than 1.5:1
|
2.00
|
|
|
|
|
Less than or equal to 1.5:1, but greater than 1.0:1
|
1.75
|
|
|
|
|
Less than or equal to 1.0:1
|
1.50
|
|
|
•
|
engage in mergers, demergers, consolidations or deconstructions;
|
•
|
change the nature of our business;
|
•
|
make certain acquisitions;
|
•
|
participate in certain joint ventures;
|
•
|
grant liens or other security interests on our assets;
|
•
|
sell, lease, transfer or otherwise dispose of assets, including receivables;
|
•
|
enter into certain non-arm's-length transactions;
|
•
|
grant guarantees;
|
•
|
pay off certain existing indebtedness;
|
•
|
make investments, loans or grant credit;
|
•
|
repurchase our shares;
|
•
|
issue shares or other securities; and
|
•
|
redeem, repurchase, decease, retire or repay any of our share capital.
|
•
|
non-payment of principal, interest or commitment fee;
|
•
|
violation of covenants or undertakings;
|
•
|
representations, warranties or written statements being untrue;
|
•
|
cross default and cross acceleration;
|
•
|
certain liquidation, insolvency, winding-up, attachment and bankruptcy events;
|
•
|
certain litigation, arbitration, administrative or environmental claims having a material adverse effect on us or any of our subsidiaries;
|
•
|
qualification by the auditors of our consolidated financial statements which is materially adverse to the interests of the lenders;
|
•
|
certain change of control events;
|
•
|
cessation of business;
|
•
|
material adverse change; and
|
•
|
certain ERISA matters.
|
•
|
In 2017, we invested in a new assembly facility to increase the capacity of the Superform business within the U.K. We invested a total of $1.5 million in this project.
|
•
|
In 2016, we invested in a new restrike press at our Worcester site to expand the capability of the Superform business in the U.K. We invested a total of $2.2 million in this project.
|
•
|
In 2016 and 2015, we continued to expand and upgrade the cylinders lines in place at our facilities in Riverside, California, and Graham, North Carolina. We invested a total of $3.4 million in 2016 and $2.9 million in 2015 in this project.
|
•
|
In 2015, we invested in new ERP systems at our Madison, Illinois, and Findlay, Ohio, sites, and also upgraded key manufacturing equipment at both sites. We invested a total of $3.2 million in these projects.
|
•
|
soluble magnesium alloys, branded SoluMag
®
, for down-well oil and gas applications;
|
•
|
ultra-lightweight large composite cylinders, branded G-Stor
TM
, for containment of CNG, hydrogen, helium and other gases;
|
•
|
enabling technologies for AF systems, including high-pressure valves, branded G-Flo
TM
, and pressure- release devices;
|
•
|
new magnesium alloy variants such as in Elektron
®
43, designed for use in aircraft seating;
|
•
|
zirconium catalysts for large-scale industrial chemical applications;
|
•
|
L7X
®
higher-strength aluminum alloy and carbon composite gas cylinders;
|
•
|
bioresorbable magnesium alloys, branded SynerMag
®
; and
|
•
|
zirconium sorbents, branded MELsorb
®
, being developed for use as an active ingredient in kidney dialysis equipment.
|
|
|
Payments Due by Period
|
|
||||||||||||||||||
|
|
Total
|
|
Less than
1 year
|
|
1 – 3
years
|
|
3 – 5
years
|
|
After
5 years
|
|
||||||||||
|
|
(in $ million)
|
|
||||||||||||||||||
|
Contractual cash obligations
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||
|
Loan Notes due 2018
(1)
|
15.0
|
|
|
15.0
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
|||||
|
Loan Notes due 2021
(1)
|
25.0
|
|
|
—
|
|
|
—
|
|
|
25.0
|
|
|
—
|
|
|
|||||
|
Loan Notes due 2023
(1)
|
25.0
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
25.0
|
|
|
|||||
|
Loan Notes due 2026
(1)
|
25.0
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
25.0
|
|
|
|||||
|
Revolving Credit Facility
|
21.3
|
|
|
—
|
|
|
—
|
|
|
21.3
|
|
|
—
|
|
|
|||||
|
Deferred contingent consideration
(2)
|
0.7
|
|
|
0.5
|
|
|
0.2
|
|
|
—
|
|
|
—
|
|
|
|||||
|
Deferred consideration
(3)
|
0.3
|
|
|
0.3
|
|
|
—
|
|
|
|
|
|
|
|||||||
|
Obligations under operating leases
|
34.4
|
|
|
5.4
|
|
|
8.0
|
|
|
6.5
|
|
|
14.5
|
|
|
|||||
|
Capital commitments
|
0.6
|
|
|
0.6
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
|||||
|
Interest payments
(4)
|
24.6
|
|
|
4.5
|
|
|
8.3
|
|
|
6.9
|
|
|
4.9
|
|
|
|||||
|
Total contractual cash obligations
|
$
|
171.9
|
|
|
$
|
26.3
|
|
|
$
|
16.5
|
|
|
$
|
59.7
|
|
|
$
|
69.4
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
The Loan Notes due 2018, 2021, 2023 and 2026 are gross of unamortized finance costs, which were
nil
,
$0.1 million
,
$0.3 million
and
$0.3 million
respectively, as of
December 31, 2017
. As required by IFRS, the Loan Notes due 2018, 2021, 2023 and 2026 are disclosed in our consolidated balance sheet as
$89.3 million
, being net of these costs. The amounts to be repaid exclude interest payable on the indebtedness.
|
(2)
|
The deferred contingent consideration relates to the 2014 acquisition of Luxfer Magtech. The amount is linked to its future expected profitability which, where appropriate is payable annually from 2015 to 2020.
|
(3)
|
The deferred consideration relates to the 2017 acquisition of the trade and assets of the Specialty Metals business of ESM Group Inc.
|
(4)
|
Interest payments include estimated interest payable on the Loan Notes due 2018, 2021, 2023 and 2026 at the fixed rates of 6.19%, 3.67%, 4.88% and 4.94% respectively. No interest payments have been included for the Revolving Credit Facility given that the level of debt under this facility is managed on an ongoing basis in conjunction with the level of cash and cash equivalents held by us.
|
Item 6.
|
Directors, Senior Management and Employees
|
|
Name
|
|
Age
|
|
Position
|
|
|
|
Joseph A. Bonn
(1)(2)(3)(4)
|
74
|
|
|
Non-Executive Chairman
|
|
|
|
Brian G. Purves
(5)
|
63
|
|
|
Director and Chief Executive Officer (retired)
|
|
|
|
Alok Maskara
(6)
|
46
|
|
|
Director and Chief Executive Officer
|
|
|
|
Andrew M. Beaden
(7)
|
50
|
|
|
Director and Group Finance Director (resigned)
|
|
|
|
Kevin S. Flannery
(1)(2)(3)(4)(8)
|
73
|
|
|
Non-Executive Director (retired)
|
|
|
|
David F. Landless
(1)(2)(3)(4)
|
58
|
|
|
Non-Executive Director
|
|
|
|
Dr Brian Kushner
(1)(2)(3)(4)
|
59
|
|
|
Non-Executive Director
|
|
|
|
Clive J. Snowdon
(1)(2)(3)(4)
|
64
|
|
|
Non-Executive Director
|
|
|
|
Adam Cohn
(2)(3)
|
46
|
|
|
Non-Executive Director
|
|
(1)
|
Member of the Audit Committee during the year.
|
(2)
|
Member of the Remuneration Committee during the year.
|
(3)
|
Member of the Nominating and Governance Committee during the year.
|
(4)
|
An "independent director" as such term is defined in Rule 10A-3 under the Exchange Act for Audit Committee purposes, having served on the Committee for all or part of the year.
|
(5)
|
Brian G. Purves stepped down as Chief Executive Officer on July 1, 2017 and retired as a Director of Luxfer on September 25, 2017.
|
(6)
|
Alok Maskara was appointed as a Director on May 23, 2017 and as the Chief Executive Officer on July 1, 2017.
|
(7)
|
Andrew M. Beaden resigned as Group Finance Director on October 2, 2017.
|
(8)
|
Kevin S. Flannery retired as a Director of Luxfer on May 23, 2017.
|
|
Name
|
|
Age
|
|
Position
|
|
|
|
Brian G. Purves
(1)
|
63
|
|
|
Director and Chief Executive Officer (retired)
|
|
|
|
Alok Maskara
(2)
|
46
|
|
|
Director and Chief Executive Officer
|
|
|
|
Andrew M. Beaden
(3)
|
50
|
|
|
Director and Group Finance Director (resigned)
|
|
|
|
Heather C. Harding
(4)
|
49
|
|
|
Chief Financial Officer
|
|
|
|
Edward J. Haughey
(5)
|
62
|
|
|
Divisional Managing Director of MEL Chemicals (retired)
|
|
|
|
David T. Rix
(6)
|
49
|
|
|
Divisional Managing Director of Magnesium Elektron (resigned)
|
|
|
|
Andrew W. J. Butcher
|
49
|
|
|
President of Luxfer Gas Cylinders
|
|
|
|
Graham D. Wardlow
(7)
|
50
|
|
|
Managing Director of Luxfer MEL Technologies
|
|
|
|
James G. Gardella
(7)
|
61
|
|
|
President of Luxfer Magtech
|
|
|
|
Christopher A. Barnes
(7)
|
63
|
|
|
President of Luxfer Graphic Arts
|
|
|
|
Simon P. Tarmey
(7)
|
55
|
|
|
Managing Director of Luxfer Superform
|
|
|
|
Claire L. Swarbrick
(7)
|
43
|
|
|
General Counsel and Legal Adviser
|
|
|
|
Peter N. Gibbons
(7)
|
47
|
|
|
Director of Sourcing and IT
|
|
|
|
Peter S. Dyke
(8)
|
47
|
|
|
Chief Human Resources Officer
|
|
(1)
|
Brian G. Purves stepped down as Chief Executive Officer on July 1, 2017 and retired as a Director of Luxfer on September 25, 2017.
|
(2)
|
Alok Maskara was appointed as a Director on May 23, 2017 and as the Chief Executive Officer on July 1, 2017.
|
(3)
|
Andrew M. Beaden resigned as Group Finance Director on October 2, 2017.
|
(4)
|
Heather Harding was appointed as Chief Financial Officer on January 1, 2018.
|
(5)
|
Edward J. Haughey retired from Luxfer during May 2017.
|
(6)
|
David T. Rix resigned from Luxfer in June 2017.
|
(7)
|
Appointed to the Executive Leadership Team during August 2017.
|
(8)
|
Peter S. Dyke was appointed as a Chief Human Resources Officer on January 2, 2018.
|
|
Members of Committee during 2017
|
|
|
Meetings
attended
|
|
|
Joseph Bonn
|
Member throughout entire year and Chairman (Chair) until and including November 23, 2017
|
8
|
|
|
|
Brian Kushner
|
Member and Chairman (Chair) from November 24, 2017
|
8
|
|
|
|
Adam Cohn
|
Member
|
8
|
|
|
|
Kevin Flannery
|
Member until and including May 23, 2017
|
1
|
|
|
|
David Landless
|
Member until and including November 23, 2017
|
6
|
|
|
|
Total number of meetings in 2017
|
|
8
|
|
|
U.S.$
(1)
|
|
Year
|
|
Salary
(2)
|
|
Taxable
Benefits
(3)
|
|
Annual
Bonus
(4)
|
|
Long-Term Incentive Awards
(5)
|
|
Other Share Awards
(6)
|
|
Pensions
Contributions
|
|
Total
|
|
|||||||
|
Brian Purves
|
2017
|
|
320,168
|
|
|
20,017
|
|
|
319,145
|
|
|
464,366
|
|
|
711
|
|
|
80,042
|
|
|
1,204,449
|
|
|
|
|
|
2016
|
|
534,802
|
|
|
27,635
|
|
|
—
|
|
|
135,134
|
|
|
1,236
|
|
|
137,510
|
|
|
836,317
|
|
|
|
|
Andrew Beaden
(7)
|
2017
|
|
201,952
|
|
|
16,358
|
|
|
161,045
|
|
|
297,272
|
|
|
711
|
|
|
50,489
|
|
|
727,827
|
|
|
|
|
|
2016
|
|
281,114
|
|
|
22,492
|
|
|
—
|
|
|
56,456
|
|
|
1,159
|
|
|
70,674
|
|
|
431,895
|
|
|
|
|
Alok Maskara
|
2017
|
|
365,826
|
|
|
36,524
|
|
|
530,448
|
|
|
628,869
|
|
|
1,141,098
|
|
|
91,457
|
|
|
2,794,222
|
|
|
|
(1)
|
Exchange rates
-Salary, Taxable Benefits, Awards and Pension Contributions for Brian Purves and Andy Beaden are determined and paid in GBP sterling and translated into U.S. dollars at the average exchange rate for the first nine months of the year of $1.2877:£ as used for the Consolidated Financial Statements. For consistency, the 2016 amounts remain as reported last year translated at the average exchange rate used for that full year of $1.3444:£. The Salary, Taxable Benefits, Awards and Pension Contributions of Alok Maskara are determined and paid in U.S. dollars.
|
(2)
|
Salaries
-Brian Purves remained on the Board of Directors of the Company up to and including September 25, 2017. His salary in 2017 reflects the amounts paid in respect of his duties and responsibilities during this period. Andrew Beaden resigned from his position as Group Finance Director and as a director Luxfer Holdings PLC with effect from October 2, 2017. Alok Maskara was appointed as a director of Luxfer Holdings PLC on May 23, 2017 and upon the retirement of Brian Purves, he was appointed CEO of Luxfer Holdings PLC with effect from July 1, 2017. During 2017, the actual GBP sterling salary amount for Brian Purves was £248,625 (2016: £397,800) and for Andrew Beaden £156,825 (2016: £209,100).
|
(3)
|
Taxable Benefits
-During the year an amount was paid to each director, pro rata to their period in office, in respect of expenses relating to car allowance, and medical and dental insurance. Taxable benefits for Brian Purves and Andrew Beaden are valued at their GBP sterling taxable value. During 2017, the actual GBP sterling amount for Brian Purves was £15,544 (2016: £20,556) and for Andrew Beaden £12,703 (2016: £16,730). All payments made to Alok Maskara in respect of these allowances were determined and paid in U.S. dollars.
|
(4)
|
Annual Bonus
-For the 2017 financial year, the annual bonus plan was based on the achievement of two financial performance goals, profit performance and cash performance (two of the key strategic performance indicators used by the Company to assess its development against its financial objectives during the year), measured against the annual budget. The bonus was weighted towards the achievement of the management profit target, which required a material improvement over the prior year outcome and a cash target which was equally set at a much higher level than achieved in 2016. Alok Maskara had also been set a further series of strategic project targets to achieve. These strategic project targets were achieved. In 2016, the main financial targets were not achieved and no bonus was payable. A number of the non-financial objectives were achieved during the year, however given that no bonus was generated from main financial targets, both Brian Purves and Andy Beaden thought it appropriate to waive any bonus payable in respect of the achievement of non-financial targets under the 2016 plan.
|
|
|
|
|
|
Sliding scale between threshold, target and stretch
|
|
|
|
|
|
|||||
|
|
|
Maximum Annual bonus (number of points available and % of salary)
|
|
Management Trading Profit
(3)
|
|
Net Cash Flow (after tax)
|
|
Non-
financial
objectives
|
|
Bonus
outcome
2017
(1)(2)
|
|
|||
|
Number of points available
|
|
1,800
|
|
|
0 - 800
|
|
0 - 400
|
|
600
|
|
|
1,740
|
|
|
|
Alok Maskara
|
|
150
|
%
|
|
0.0% - 66.7%
|
|
0.0% - 33.3%
|
|
50.0
|
%
|
|
145.0
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||
|
Number of points available
|
|
1,200
|
|
|
0 - 800
|
|
0 - 400
|
|
—
|
|
|
1,140
|
|
|
|
Brian Purves
|
|
100
|
%
|
|
0.0% - 66.7%
|
|
0.0% - 33.3%
|
|
—
|
|
|
95.0
|
%
|
|
|
Andrew Beaden
|
|
80
|
%
|
|
0.0% - 53.3%
|
|
0.0% - 26.7%
|
|
—
|
|
|
76.0
|
%
|
|
(1)
|
In 2017 Luxfer achieved a level of trading performance which resulted in 740 points being available in respect of the Management Trading Profit Target. Net cash flow generation in 2017 resulted in all 400 points being made available for the bonus calculations. In addition to these targets, Alok Maskara achieved all his non-financial targets in 2017.
|
(2)
|
The level of bonus for 2017 has been calculated pro rata to the length of time in office during the year.
|
(3)
|
Management trading profit is defined as operating profit or loss before profit on disposal of redundant site, restructuring expense, amortization on acquired intangibles and share based compensation charges.
|
(5)
|
The Long Term Incentive Awards
—
the 2017 Single Figure:
|
|
|
|
Number of Awards
|
|
|
|
|
|
||||||
|
|
|
Possible Awards
|
|
Awards to be made in 2018
|
|
% of possible awards made in 2018
|
|
Value of Awards
$
(1)
|
|
||||
|
Alok Maskara
|
48,550
|
|
|
48,550
|
|
|
100.0
|
%
|
|
628,869
|
|
|
|
|
Brian Purves
|
53,780
|
|
|
35,850
|
|
|
66.7
|
%
|
|
464,366
|
|
|
|
|
Andrew Beaden
|
34,425
|
|
|
22,950
|
|
|
66.7
|
%
|
|
297,272
|
|
|
(6)
|
Other Share Awards
—The awards made to Brian Purves and Andrew Beaden relate to the value ascribed to the Matching Shares awarded under the Company’s U.K. All Employee Share Investment Plan (“SIP”), as further detailed below: ‑
|
|
|
Monthly contribution from salary during 2017 (£)
|
|
No. of Partnership Shares purchased June 2017 @ average price of $11.742 each ordinary share
|
|
No. of Matching Shares awarded June 2017
|
|
Dividends shares acquired from dividend reinvestment during 2017
|
|
Total shares accumulated in SIP during 2017
|
|
|||||
|
Brian Purves
|
150
|
|
|
95
|
|
|
47
|
|
|
33
|
|
|
175
|
|
|
|
Andrew Beaden
|
150
|
|
|
95
|
|
|
47
|
|
|
30
|
|
|
172
|
|
|
(7)
|
Andrew Beaden resigned from his position as Group Finance Director and as a director of Luxfer Holdings PLC with effect from October 2, 2017. He received a compensation payment of $338,064 and the proportion of his outstanding awards under the LTiP were allowed to vest, as set out in the tables in
Payment to Past Directors and Payment for Loss of Office
on pages 79 to 80.
|
(8)
|
For details of pension arrangements see page 79.
|
|
U.S.$
(1)
|
|
Year
|
|
Base Fee
(1)
|
|
Other Fees (Fees in the form of share awards)
(2)
|
|
Total
|
|
|||
|
Joseph Bonn
|
2017
|
|
98,812
|
|
|
48,484
|
|
|
147,296
|
|
|
|
|
|
2016
|
|
80,702
|
|
|
38,704
|
|
|
119,406
|
|
|
|
|
Adam Cohn
|
2017
|
|
79,050
|
|
|
69,134
|
|
|
148,184
|
|
|
|
|
|
2016
|
|
32,940
|
|
|
—
|
|
|
32,940
|
|
|
|
|
Brian Kushner
|
2017
|
|
79,050
|
|
|
39,116
|
|
|
118,166
|
|
|
|
|
|
2016
|
|
46,116
|
|
|
37,246
|
|
|
83,362
|
|
|
|
|
David Landless
|
2017
|
|
79,050
|
|
|
39,116
|
|
|
118,166
|
|
|
|
|
|
2016
|
|
79,050
|
|
|
38,704
|
|
|
117,754
|
|
|
|
|
Clive Snowdon
|
2017
|
|
79,050
|
|
|
68,006
|
|
|
147,056
|
|
|
|
|
|
2016
|
|
32,940
|
|
|
—
|
|
|
32,940
|
|
|
|
|
Kevin Flannery
|
2017
|
|
32,940
|
|
|
1,623
|
|
|
34,563
|
|
|
|
|
|
2016
|
|
79,050
|
|
|
38,704
|
|
|
117,754
|
|
|
(1)
|
Kevin Flannery did not offer himself for re-election to the Board at the 2017 AGM and consequently he ceased to be a Director of the Company with effect from May 23, 2017. His base fee in 2017 reflects the period of service as a Non-Executive Director.
|
(2)
|
2017 Single figure:
|
•
|
An element of the fees received by the Chairman and the other Non‑Executive Directors are delivered as time‑based restricted stock units (“RSUs”). The award value is a fixed percentage of their Base Fee (50%) as provided in the Director Equity Incentive Plan (“EIP”) less the issue price per share of £0.50 translated into U.S. dollars at the exchange rate on the grant date of $1.2949:£ (65 cents). Awards were made immediately after the 2017 AGM and vest immediately before the 2018 AGM. The number of RSUs was calculated using the closing share price on the NYSE ($12.52) the day before the award was made. Additional RSUs were awarded to Adam Cohn and Clive Snowdon to reflect the period from the date of their appointment until the date of the grant of the 2017 awards. The number of awards received by each Non‑Executive Director is set out in
Awards Granted During the Year - Non‑Executive Directors Under the Director Equity Incentive Plan (EIP) on page 76
.
|
•
|
The RSU awards carry with them the right to receive accumulated dividends during the period of the award, in shares. The dividends are not credited until the award vests. The Other Fees amount includes the value of the dividends vested and paid on the 2016 RSU fee awards that vested immediately before the 2017 AGM. The value of the awards themselves were included in the Single Figure for 2016 as they were time‑based awards (see below). The dividend shares were valued at the closing share price on the NYSE on the date of vesting, being $12.50, less the issue price of £0.50 translated at the date of vesting at an exchange rate of $1.3016:£ (65 cents). The number of dividend shares allocated and their value were:
|
|
Non-Executive Director
|
|
|
Dividend shares allocated
|
|
Value of dividend less nominal cost of share $
|
|
||
|
Joseph Bonn
|
|
137
|
|
|
1,623
|
|
|
|
|
Brian Kushner
|
|
137
|
|
|
1,623
|
|
|
|
|
David Landless
|
|
137
|
|
|
1,623
|
|
|
|
|
Kevin Flannery
|
|
137
|
|
|
1,623
|
|
|
|
Chairman or Non-Executive Director
|
|
Date of Grant
|
|
Basis of Aggregate Awards Granted
|
|
Share Price at Date of Grant $
|
|
Type of Award
|
|
No. of Shares Granted
|
|
Face Value of Award $
|
|
(1)
Issue Price per share & in Aggregate $
|
|
Vesting Date
|
|
% of Face Value That Vest
|
|
|
Joseph Bonn
|
|
May 24, 2017
|
|
50% of annual fee for 2017
|
|
12.52
|
|
Restricted Stock Unit
|
|
3,947
|
|
49,416
|
|
$0.65 each share
|
|
Day before 2018 AGM
|
|
On vesting date 100%
|
|
|
Adam Cohn
|
|
May 24, 2017
|
|
50% of annual fee for 2017 & from date of appointment in 2016
|
|
12.52
|
|
Restricted Stock Unit
|
|
5,823
|
|
72,904
|
|
$0.65 each share
|
|
Day before 2018 AGM
|
|
On vesting date 100%
|
|
|
Brian Kushner
|
|
May 24, 2017
|
|
50% of annual fee for 2017
|
|
12.52
|
|
Restricted Stock Unit
|
|
3,158
|
|
39,538
|
|
$0.65 each share
|
|
Day before 2018 AGM
|
|
On vesting date 100%
|
|
|
David Landless
|
|
May 24, 2017
|
|
50% of annual fee for 2017
|
|
12.52
|
|
Restricted Stock Unit
|
|
3,158
|
|
39,538
|
|
$0.65 each share
|
|
Day before 2018 AGM
|
|
On vesting date 100%
|
|
|
Clive Snowdon
|
|
May 24, 2017
|
|
50% of annual fee for 2017 & from date of appointment in 2016
|
|
12.52
|
|
Restricted Stock Unit
|
|
5,728
|
|
71,715
|
|
$0.65 each share
|
|
Day before 2018 AGM
|
|
On vesting date 100%
|
|
|
Awards
|
|
Options
|
|
|||||||||||||||||||||||||
|
Awards
|
|
Available
Jan 1,
2017
|
|
Granted
During
Year
|
|
(Lapsed) /
(Exercised)
During
Year
|
|
Available
Dec 31,
2017
|
|
Vested
Awards
Jan 1,
2017
|
|
Vested
Awards
During
Year
|
|
(Lapsed) /
(Exercised)
During
Year
|
|
Vested
Awards
Dec 31,
2017
|
|
Available
Unvested
Awards
|
|
|||||||||
|
Brian Purves
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
IPO Options
(1)
|
179,200
|
|
|
—
|
|
|
—
|
|
|
179,200
|
|
|
179,200
|
|
|
—
|
|
|
—
|
|
|
179,200
|
|
|
—
|
|
|
|
|
M.V.
(2)
|
22,100
|
|
|
—
|
|
|
(22,100
|
)
|
|
—
|
|
|
22,100
|
|
|
—
|
|
|
(22,100
|
)
|
|
—
|
|
|
—
|
|
|
|
|
LTiP 2016
(4)
|
13,500
|
|
|
—
|
|
|
—
|
|
|
13,500
|
|
|
—
|
|
|
13,500
|
|
|
—
|
|
|
13,500
|
|
|
—
|
|
|
|
|
Totals
|
214,800
|
|
|
—
|
|
|
(22,100
|
)
|
|
192,700
|
|
|
201,300
|
|
|
13,500
|
|
|
(22,100
|
)
|
|
192,700
|
|
|
—
|
|
|
|
|
Andrew Beaden
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
IPO Options
(1)
|
69,000
|
|
|
—
|
|
|
—
|
|
|
69,000
|
|
|
69,000
|
|
|
—
|
|
|
—
|
|
|
69,000
|
|
|
—
|
|
|
|
|
M.V.
(2)
|
9,100
|
|
|
—
|
|
|
(9,100
|
)
|
|
—
|
|
|
9,100
|
|
|
—
|
|
|
(9,100
|
)
|
|
—
|
|
|
—
|
|
|
|
|
LTiP 2013
(3)
|
2,166
|
|
|
—
|
|
|
(2,166
|
)
|
|
—
|
|
|
2,166
|
|
|
—
|
|
|
(2,166
|
)
|
|
—
|
|
|
—
|
|
|
|
|
LTiP 2016
(4)
|
5,640
|
|
|
—
|
|
|
(5,640
|
)
|
|
—
|
|
|
—
|
|
|
5,640
|
|
|
(5,640
|
)
|
|
—
|
|
|
—
|
|
|
|
|
Totals
|
85,906
|
|
|
—
|
|
|
(16,906
|
)
|
|
69,000
|
|
|
80,266
|
|
|
5,640
|
|
|
(16,906
|
)
|
|
69,000
|
|
|
—
|
|
|
|
|
Alok Maskara
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Upon Appointment
(7)
|
—
|
|
|
45,000
|
|
|
—
|
|
|
45,000
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
45,000
|
|
|
|
|
Upon Appointment
(8)
|
—
|
|
|
60,000
|
|
|
—
|
|
|
60,000
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
60,000
|
|
|
|
|
Upon Appointment
(9)
|
—
|
|
|
120,000
|
|
|
—
|
|
|
120,000
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
120,000
|
|
|
|
|
Totals
|
—
|
|
|
225,000
|
|
|
—
|
|
|
225,000
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
225,000
|
|
|
|
|
Joseph Bonn
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
IPO Options
(1)
|
20,000
|
|
|
—
|
|
|
—
|
|
|
20,000
|
|
|
20,000
|
|
|
—
|
|
|
—
|
|
|
20,000
|
|
|
—
|
|
|
|
|
EIP 2016
(5)
|
3,130
|
|
|
—
|
|
|
(3,130
|
)
|
|
—
|
|
|
—
|
|
|
3,130
|
|
|
(3,130
|
)
|
|
—
|
|
|
—
|
|
|
|
|
EIP 2017
(6)
|
—
|
|
|
3,947
|
|
|
—
|
|
|
3,947
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
3,947
|
|
|
|
|
Totals
|
23,130
|
|
|
3,947
|
|
|
(3,130
|
)
|
|
23,947
|
|
|
20,000
|
|
|
3,130
|
|
|
(3,130
|
)
|
|
20,000
|
|
|
3,947
|
|
|
|
|
Adam Cohn
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EIP 2017
(6)
|
—
|
|
|
5,823
|
|
|
—
|
|
|
5,823
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
5,823
|
|
|
|
|
Totals
|
—
|
|
|
5,823
|
|
|
—
|
|
|
5,823
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
5,823
|
|
|
|
|
Brian Kushner
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EIP 2016
(5)
|
3,130
|
|
|
—
|
|
|
(3,130
|
)
|
|
—
|
|
|
—
|
|
|
3,130
|
|
|
(3,130
|
)
|
|
—
|
|
|
—
|
|
|
|
|
EIP 2017
(6)
|
—
|
|
|
3,158
|
|
|
—
|
|
|
3,158
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
3,158
|
|
|
|
|
Totals
|
3,130
|
|
|
3,158
|
|
|
(3,130
|
)
|
|
3,158
|
|
|
—
|
|
|
3,130
|
|
|
(3,130
|
)
|
|
—
|
|
|
3,158
|
|
|
|
|
David Landless
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EIP 2016
(5)
|
3,130
|
|
|
—
|
|
|
(3,130
|
)
|
|
—
|
|
|
—
|
|
|
3,130
|
|
|
(3,130
|
)
|
|
—
|
|
|
—
|
|
|
|
|
EIP 2017
(6)
|
—
|
|
|
3,158
|
|
|
—
|
|
|
3,158
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
3,158
|
|
|
|
|
Totals
|
3,130
|
|
|
3,158
|
|
|
(3,130
|
)
|
|
3,158
|
|
|
—
|
|
|
3,130
|
|
|
(3,130
|
)
|
|
—
|
|
|
3,158
|
|
|
|
|
Clive Snowdon
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EIP 2017
(6)
|
—
|
|
|
5,728
|
|
|
—
|
|
|
5,728
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
5,728
|
|
|
|
|
Totals
|
—
|
|
|
5,728
|
|
|
—
|
|
|
5,728
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
5,728
|
|
|
|
Award
|
|
Award Scheme, Type & Grant
|
|
Grant Date
|
|
Exercise Price / Nominal Cost Each Award
|
|
Remaining Vesting/ Settlement Dates
|
|
Exercise
Period
|
|
|
(1)
|
|
I.P.O. Options
|
|
Oct 2, '12
|
|
$10.00
|
|
All vested
|
|
To October 2019
|
|
|
(2)
|
|
Market Value
|
|
Jan 31, '13
|
|
$12.91
|
|
All vested
|
|
To Jan 30, 2018
|
|
|
(3)
|
|
LTiP 2013—Performance-based—EPS and TSR targets
(ii)
|
|
Jan 31, '13
|
|
£0.50
(i)
|
|
All lapsed
|
|
No longer applicable
|
|
|
(4)
|
|
LTiP 2016 Options—Time-based (iv)
|
|
Mar 21, '16
|
|
£0.50
(i)
|
|
Mar 21, 2017, 2018, 2019
|
|
To Mar 21, 2021
|
|
|
(5)
|
|
EIP 2016—Restricted Stock Units
(iii)
|
|
May 25, '16
|
|
£0.50
(i)
|
|
Day before 2017 AGM
|
|
—
|
|
|
(6)
|
|
EIP 2017—Restricted Stock Units
(iii)
|
|
May 24, '17
|
|
£0.50
(i)
|
|
Day before 2018 AGM
|
|
—
|
|
|
(7)
|
|
Upon appointment - Time-based Restricted Stock Units
(v)
|
|
Aug 23, '17
|
|
£0.50
(i)
|
|
Jun 13, 2018, 2019, 2020
|
|
To Aug 12, 2020
|
|
|
(8)
|
|
Upon appointment - Time-based Restricted Stock Units
(vi)
|
|
Aug 23, '17
|
|
£0.50
(i)
|
|
May 23, 2018, 2019, 2020, 2021
|
|
To Jul 22, 2021
|
|
|
(9)
|
|
Upon appointment - Performance-based - EPS Targets Restricted Stock Units
(vii)
|
|
Aug 23, '17
|
|
£0.50
(i)
|
|
Achievement of EPS targets
|
|
To Mar 1, 2021, 2023, 2025
|
|
(i)
|
Where the exercise price / nominal cost is indicated in GBP sterling, in so far as it is required to be translated into U.S. dollars for the purpose of the exercise / settlement, it is translated at the $:£ exchange rate reported in the Financial Times for the date of exercise / settlement.
|
(ii)
|
LTiP 2013: One sixth of the total awards were granted based upon the achievement of the TSR goal in 2013. All options which vested due to the achievement of this goal have now been fully exercised. The remaining targets were not achieved and therefore all other options under this award have lapsed.
|
(iii)
|
EIP 2016 and EIP 2017 annual awards are settled immediately on vesting, together with dividends which have been accumulated during the vesting period. The 2016 awards were settled in 2017 net of payroll taxes.
|
(iv)
|
LTiP 2016: Awards made on attainment of 2015 performance goals and include “holding period” and “claw back” provisions. Time-based option awards accumulate dividend shares until vesting only; shares are then added to the award when the option is exercised. In respect of both Brian Purves and Andrew Beaden, who stepped down from their roles as Chief Executive Officer and Group Finance Director respectively during the year, the Remuneration Committee agreed to the acceleration of the unvested element of their awards, which allowed them to be made fully available following their departure.
|
(v)
|
Upon Appointment - The Remuneration Committee determined that the new Chief Executive Officer should acquire a minimum quantity of 22,500 shares within twelve months of appointment. Upon the Chief Executive Officer acquiring the shares, the Company matched the purchase by granting an award over 45,000 nominal cost RSUs, to vest over three years.
|
(vi)
|
Upon Appointment - The Remuneration Committee determined to make a one-off share award to the new CEO, outside the terms of the LTiP, over 60,000 time-based nominal cost RSUs, to vest over four years.
|
(vii)
|
Upon Appointment - Performance-based Awards made to the new Chief Executive Officer vest upon achievement of attaining a specified adjusted diluted EPS target at each annual measurement date. Three levels of targets have been set:
|
•
|
The lower target must be achieved by the measurement date at the end of 2020 and will result in the vesting of 30,000 shares.
|
•
|
The mid-point target must be achieved by the measurement date at the end of 2022 and will result in the vesting of a further 40,000 shares.
|
•
|
The top target must be achieved by the measurement date at the end of 2024 and will result in the vesting of a further 50,000 shares.
|
|
|
|
2017
|
|
||||||||||||||||||
|
Executive Directors
|
|
Defined
Benefit
|
|
Funded Defined
Contribution
(1)
|
|
Unfunded Defined Contribution
|
|
Cash
Supplement
|
|
Total
|
|
||||||||||
|
Brian Purves
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
80,042
|
|
|
$
|
80,042
|
|
|
|
|
Andrew Beaden
|
$
|
—
|
|
|
$
|
9,658
|
|
|
$
|
—
|
|
|
$
|
40,831
|
|
|
$
|
50,489
|
|
|
|
|
Alok Maskara
|
|
$
|
—
|
|
|
$
|
16,200
|
|
|
$
|
—
|
|
|
$
|
75,257
|
|
|
$
|
91,457
|
|
|
|
|
|
2016
|
|
||||||||||||||||||
|
Executive Directors
|
|
Defined
Benefit
|
|
Funded Defined
Contribution
(1)
|
|
Unfunded Defined
Contribution
|
|
Cash
Supplement
|
|
Total
|
|
||||||||||
|
Brian Purves
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
37,233
|
|
|
$
|
100,276
|
|
|
$
|
137,509
|
|
|
|
|
Andrew Beaden
|
$
|
6,536
|
|
|
$
|
17,702
|
|
|
$
|
3,809
|
|
|
$
|
42,627
|
|
|
$
|
70,674
|
|
|
(1)
|
During 2017, the Funded Defined Contribution for Andrew Beaden was made through a salary sacrifice arrangement. The Funded Defined Contribution for Alok Maskara relates to amounts paid in respect of a 401K matching program.
|
|
Eleven months
|
|
|
|
||
|
Salary
|
|
$
|
255,167
|
|
|
|
Holidays accrued but not taken
|
|
$
|
3,205
|
|
|
|
Other benefits
|
|
$
|
79,692
|
|
|
|
Total paid in cash
|
|
$
|
338,064
|
|
|
|
Awards
|
|
% of Shares Vested and Exercised
|
|
% Balance of Award Accelerated
|
|
Number of Options Accelerated
|
|
Value of shares vested $
(2)
|
|
|||
|
LTiP 2016
(1)
|
|
33.3
|
|
|
66.7
|
%
|
|
3,760 award shares plus 239 dividend shares
|
|
55,790
|
|
|
(1)
|
All of the shares vested were exercised before the end of 2017. The value ascribed is calculated using the share price at the time of exercise, less the option cost. For further detail on the share awards, please see the table
Outstanding Share Awards During 2017
on page 77.
|
(2)
|
The value of the full award, calculated with reference to the share price at the time of grant, is disclosed in Single figure table under Long-Term Incentive Awards for 2016.
|
|
|
|
Number of Ordinary Shares
Held at Dec 31, 2017
|
|
Number of Ordinary Shares
Held at Jan 1, 2017
|
|
||
|
Joseph Bonn
(1)
|
|
7,800
|
|
|
5,783
|
|
|
|
Adam Cohn
(2)
|
|
—
|
|
|
—
|
|
|
|
Brian Kushner
(3)
|
|
1,823
|
|
|
—
|
|
|
|
David Landless
(4)
|
|
7,633
|
|
|
5,581
|
|
|
|
Alok Maskara
(5)
|
|
25,712
|
|
|
—
|
|
|
|
Clive Snowdon
()
|
|
2,000
|
|
|
2,000
|
|
|
(1)
|
The additional 2,017 shares acquired by Joseph Bonn during the year were as the result of his 2016 “Other Fees” award of 3,130 shares vesting prior to the 2017 AGM together with accrued dividend of 137 shares. He also purchased a further 213 shares on market. The shares delivered are net of those sold to pay the option costs and tax due on the value of the awards. Further details on these awards can be found in the Notes to
Single Figure-Non‑Executive Directors’ Remuneration
on pages 74 to 75.
|
(2)
|
The additional 1,823 shares acquired by Brian Kushner during the year were as the result of his 2016 “Other Fees” award of 3,130 shares vesting prior to the 2017 AGM together with accrued dividend of 137 shares. The shares delivered are net of those sold to pay the option costs and tax due on the value of the awards. Further details on these awards can be found in the notes to
Single Figure-Non‑Executive Directors’ Remuneration
on pages 74 to 75.
|
(3)
|
The additional 2,052 shares acquired by David Landless during the year were as the result of his 2016 “Other Fees” awards of 3,130 shares vesting prior to the 2017 AGM together with accrued dividend of 137 shares. The shares delivered are net of those sold to pay the option costs and tax due on the value of the awards. Additional shares were also acquired in the year through the operation of a Dividend Reinvestment Plan (DRIP) which allows the reinvestment of cash dividends to purchase additional shares. Further details of his awards can be found in Notes to
Single Figure-Non‑Executive Directors’ Remuneration
on pages 74 to 75.
|
(4)
|
The shares held by Alok Maskara were all purchased on market in the period following his appointment as an Executive Director.
|
(5)
|
The shares identified as held by Clive Snowdon are held by a connected person.
|
|
|
|
Shares Owned
Beneficially
|
|
Options Vested but not Exercised
(1)
|
|
Restricted Stock Units Not Yet Vested (assuming will be settled in Shares not Cash)
(1)
|
|
|||
|
Alok Maskara
|
|
25,712
|
|
|
—
|
|
|
225,000
|
|
|
|
Non-Executive
|
|
|
|
|
|
|
|
|
|
|
|
Joseph Bonn
|
|
7,800
|
|
|
20,000
|
|
|
3,947
|
|
|
|
Adam Cohn
|
|
—
|
|
|
—
|
|
|
5,823
|
|
|
|
Brian Kushner
|
|
1,823
|
|
|
—
|
|
|
3,158
|
|
|
|
David Landless
|
|
7,633
|
|
|
—
|
|
|
3,158
|
|
|
|
Clive Snowdon
|
|
2,000
|
|
|
—
|
|
|
5,728
|
|
|
(1)
|
A breakdown of the vested and unvested awards and brief details of the plans under which the awards were made can be found in
Outstanding Share Awards During 2017
table on page 77 of this report.
|
(1)
|
The 2017 figures include Brian Purves' remuneration for the first six months of 2017 and Alok Maskara's remuneration for the second six months of 2017.
|
(2)
|
Percentage of salary.
|
|
U.S.$
|
|
2017
|
|
2016
|
|
% change
|
|
|||
|
Salary
|
|
|
|
|
|
|
|
|
|
|
|
Chief Executive Officer
|
557,744
|
|
|
534,802
|
|
|
4.3
|
%
|
|
|
|
Employee average
|
65,953
|
|
|
42,535
|
|
|
55.1
|
%
|
|
|
|
Benefits
|
|
|
|
|
|
|
|
|
|
|
|
Chief Executive Officer
|
44,980
|
|
|
27,635
|
|
|
62.8
|
%
|
|
|
|
Employee average
|
635
|
|
|
639
|
|
|
(0.6
|
)%
|
|
|
|
Annual Bonus
|
|
|
|
|
|
|
|
|
|
|
|
Chief Executive Officer
|
690,316
|
|
|
—
|
|
|
n/a
|
|
|
|
|
Employee average
|
3,742
|
|
|
1,176
|
|
|
218.2
|
%
|
|
|
|
|
Votes for (and
percentage of
votes cast)
|
|
Votes against (and
percentage of
votes cast)
|
|
Proportion of
share capital
voting
|
|
Shares on which votes were withheld
|
|
||||
|
Annual Remuneration Implementation Report
|
|
16,654,955
|
|
|
2,609,852
|
|
|
72.50
|
%
|
|
5,231
|
|
|
|
|
|
86.45
|
%
|
|
13.55
|
%
|
|
|
|
|
|
|
|
|
Adoption of Revised Remuneraion Policy
|
|
16,703,150
|
|
|
2,556,852
|
|
|
72.50
|
%
|
|
10,036
|
|
|
|
|
|
86.72
|
%
|
|
13.28
|
%
|
|
|
|
|
|
•
|
The maximum annual cash bonus opportunity for the Chief Executive Officer is increased from 150% to 200% of base salary. Included within this, the Additional Percentage Bonus (APB) set at a maximum of 50% of base salary under the existing remuneration policy, attributable to the achievement of specific additional non-financial targets, will now be set at the start of each year at the discretion of the Remuneration Committee.
|
•
|
The maximum annual cash bonus opportunity for other Executive Directors remains unchanged at 120% of base salary. Included within this, the APB set at a maximum of 40% of base salary under the existing remuneration policy, attributable to the achievement of specific additional non-financial targets, will now be set at the start of each year at the discretion of the Remuneration Committee.
|
•
|
The maximum value of share incentive awards under the Company’s Long-term incentive plan (‘LTiP’) available for the achievement of certain financial targets for the Chief Executive Officer is increased from 150% to 220% of base salary and for the other Executive Directors increased from 120% to 150% of base salary.
|
•
|
The Non-Executive Directors, at their discretion, may choose to forgo annual or periodic increases to cash fee, in lieu of an equivalent value of share awards. Awards will continue to be made annually immediately after the annual general meeting, however, as a result, the maximum value of these awards will be
|
CHIEF EXECUTIVE OFFICER AND OTHER EXECUTIVE DIRECTORS Fixed Remuneration
|
|||
Base salary
|
Purpose and Link to Strategy
:
To attract, retain and incentivize high caliber individuals who can deliver the company’s strategy and reward performance.
To be competitive.
|
||
Operation:
Reviewed annually and normally fixed for 12 months from 1 January in each year. Paid in 12 equal monthly installments.
Reviews take account of a variety of different factors including:
- The rise in the cost of living, market rates, responsibility of the position, experience and contribution of the individual, the scale of the Group’s operations, group performance and affordability, remuneration levels and increases in the rest of the Group;
- The Executive pay packages of comparable companies; Pay and practices in both the US and the UK.
|
Maximum Opportunity:
No prescribed maximum to avoid setting expectations.
The Committee retain discretion to re-adjust salaries as part of the overall package to, at or about median of the external comparator group deemed appropriate by them to maximize the Group’s objective of top quartile performance. Where it is satisfied that salaries are at or about the median of the external comparator group, annual increases will normally be limited to the increases granted to the wider workforce, but may be higher in certain circumstances such as a change in the role or an increase in the responsibilities of the role where it will increase salaries in its discretion.
|
||
Benefits in kind
|
Purpose and Link to Strategy
:
To aid recruitment and retention of high caliber individuals and to remain competitive in the market.
|
||
Operation:
Benefits received by directors will generally include car allowance or mileage reimbursement, medical and dental insurance. Additional benefits may be provided where required by legislation or to align the remuneration package with market practice where these are not significant in value.
The company may introduce new benefits that are or become prevalent in the jurisdiction in which it operates or in which the director is based.
Where an individual director is relocated benefits such as relocation expenses, travel expenses, accommodation, tax equalization; professional advice, and post-retirement medical expenses may be provided.
Benefits are reviewed annually.
|
Maximum Opportunity:
No maximum value is set but the Committee periodically monitors the overall cost of the benefits to ensure they are affordable, competitive and in line with market practice in the UK and the US.
|
||
Performance Metric:
None
|
Provisions for Recovery or Withholding of Payment:
None
|
||
Pension or 401K Contributions
|
Purpose and Link to Strategy
:
To provide funding for retirement and aid recruitment and retention of high caliber individuals.
|
||
Operation:
Following the closure of the defined benefits scheme to future accrual in April 2016, all Directors will have benefits provided by the registered defined contribution scheme.
For those directors whose pension planning is restricted by one or more tax allowance, an equivalent allocation or payment may be made to an unregistered alternative savings vehicle, or as a salary supplement in lieu of pension contributions.
Arrangements are reviewed annually to ensure consistency with market practice and take account of the effect of regulatory change on an individual’s benefits.
For directors based in other jurisdictions they will be offered arrangements appropriate to that jurisdiction.
|
Maximum Opportunity:
Under the Defined contribution arrangements
the Company makes an annual contribution into a personal pension plan, 401K plan or salary supplement in lieu of pension or 401K contributions up to a maximum of 25% of basic salary.
|
||
Performance Metric:
None
|
Provisions for Recovery or Withholding of Payment:
None
|
Performance Metric:
None
|
Provisions for Recovery or Withholding of Payment:
Under the UK plan, matching shares are forfeited if not held for 3 years except if the participant leaves employment as a good leaver through redundancy, retirement, disability, or TUPE transfer.
|
Fees
|
Purpose and Link to Strategy
:
Reflects the time commitment required for the role.
To attract and retain executive directors with the skill set and experience required by the Company.
To be in line with UK and US market practice.
|
|
Operation:
Fees may be paid in cash, shares or a combination of both cash and shares.
Neither the Board Chairman nor the Non-Executive Directors are paid supplemental fees for any of their committee responsibilities, however, the discretion is reserved to do so if it is deemed appropriate and in line with market practice.
The cash element of the fees is reviewed annually. Reviews take account of a variety of different factors including:
- Inflation, market rates, affordability, remuneration levels and increases in the rest of the Group;
- Pay and practices in both the US and the UK.
Non-Executive Directors may choose to forgo annual or periodic increases to their cash fee, in lieu of an equivalent value of share awards at their individual discretion.
Fees for the Non-Executive Directors and Chairman are denominated in USD.
The share based element of the fees is a non-discretionary grant of share awards in the form of options, restricted stock or restricted stock units.
Awards are made annually immediately after the Annual General Meeting (AGM) and vest the day before the following years AGM.
|
Maximum Opportunity:
There is no prescribed maximum for the cash element for the fees to avoid setting expectations. Fees are and will be increased in line with the market.
Non-Executive Directors serving for at least six months from appointment receive share based fee awards valued at up to 55% of annual fees at date of award.
|
•
|
The bonus arrangements for the executives, directors and senior, middle and lower management are structured broadly on the same basis to ensure commonality of objectives but at a lower percentage level depending on the seniority of the manager in the group. There is a greater emphasis on performance-related pay for management levels, and lower levels of bonus opportunity or no bonus opportunity may apply to other employees in the group, depending on local policies;
|
•
|
Benefits are generally offered that meet market norms in the jurisdiction in which employees are employed and take into account the position in which they are employed;
|
•
|
Pension arrangements are offered where it is the market norm to offer such arrangements in the jurisdiction in which the employee is employed. Where such arrangements are in place membership is encouraged. Where local regulation permits, higher contributions may be put in place for more senior management if that is the market norm. The main pension plans that the group operates are described in Note 29 of the financial statements;
|
•
|
Participation in the LTiP is limited to Executive Directors and a selected number of senior officers and senior managers. At the discretion of the Committee, market value share awards or time-based share awards may be awarded to employees in recognition of outstanding performance or achievement and to encourage share ownership and retention. U.K. employees, if eligible, can participate in the U.K. SIP.
|
Element of Remuneration
|
Approach
|
Maximum Opportunity
|
Base salary
|
Set in line with policy at a level appropriate to the role and experience of the new executive. This may include, if appropriate, an agreement to increase base salary over a defined period up to a pre-defined level on acquiring experience and having delivered satisfactory performance in the role, in which case the salary increases may exceed inflation or increases given to the general work force in the country in which the executive is based.
|
In line with existing policy.
|
Benefits
|
In line with existing policy.
|
In line with existing policy.
|
Pension
|
In line with existing policy.
|
In line with existing policy.
|
Annual Bonus
|
In line with existing policy. May be pro-rated to reflect the proportion of the year served.
|
In line with existing policy
|
Long-term Incentives
|
In line with existing policy.
|
In line with existing policy
|
Director
|
Date of Current Contract
|
Notice Period
|
Remuneration Entitlement
|
Alok Maskara
|
May 23, 2017
|
12 months
|
Payment in lieu of notice in the event of early termination. This may include base salary benefits and pension payable for the notice period. A bonus may be paid if the period for which pay in lieu of notice is made extends past the year end subject to targets being met.
|
|
Date of Current Letter of Appointment
|
Notice Period and Entitlement to Fees
|
Joseph Bonn
|
February 28, 2007
|
3 months, except if the director fails to be re-elected at an AGM when the contract terminates immediately without notice or compensation.
|
David Landless
|
February 20, 2013
|
3 months, except if the director fails to be re-elected at an AGM when the contract terminates immediately without notice or compensation.
|
Brian Kushner
|
May 24, 2016
|
3 months, except if the director fails to be re-elected at an AGM when the contract terminates immediately without notice or compensation.
|
Adam Cohn
|
July 18, 2016
|
3 months, except if the director fails to be re-elected at an AGM when the contract terminates immediately without notice or compensation.
|
Clive Snowdon
|
July 29, 2016
|
3 months, except if the director fails to be re-elected at an AGM when the contract terminates immediately without notice or compensation.
|
1.
|
The base salary of the Executive Directors used is the 2018 confirmed salary in
U.S. dollars for the year ending 31 December, 2018.
|
2.
|
The Remuneration Committee sets bonus targets early in 2018. Annual cash bonus is earned only when Company performance exceeds a threshold level. ‘On plan’ bonus is generally set to be half the potential and is paid for achievement of the annual budget. Maximum bonus is earned for hitting a stretch target considerably above the Board-approved budget, and represents exceptional performance.
|
3.
|
The LTiP is a combination of performance and time-based awards with targets being set by the Committee. Within each year, there is a threshold level, an 'on plan’; level, and a stretch level. Performance below the threshold would mean no performance element of the LTiP would be awarded in the following year. Hitting the plan targets would result in granting total awards at maximum value of 150% of base salary for the Chief Executive Officer and at 100% of base salary for the Other Executive Director. Each subsequent year’s target represents a material improvement on the prior-year target. Reaching stretch targets would mean that the Company had considerably out-performed the Board’s expectations, would result in a maximum granting at 220% of the value of base salary for the Chief Executive Officer and at 150% of the value of base salary for the Other Executive Director.
|
4.
|
The above illustration excludes remuneration in the form of taxable benefits and pension contributions.
|
|
|
|
2018
|
|
2017
|
|
|
|
|||
|
|
|
$
|
|
$
|
|
% increase
(2)
|
|
|||
|
Alok Maskara
(1)
|
|
615,000
|
|
|
365,826
|
|
|
2.5
|
%
|
|
(1)
|
The 2017 salary of Alok Maskara is for part year only, calculated from his date of appointment. The annualized salary for 2017 is $600,000 per annum.
|
(2)
|
The increase in base salaries in 2018 over 2017 was approved by the Remuneration Committee.
|
|
|
|
|
Split; sliding scale between threshold,
target and stretch
|
|
||
|
Financial metric annual bonus opportunity
|
|
|
Management EBITA
|
|
Cash Conversion
|
|
|
Alok Maskara
|
|
|
0% - 50%
|
|
0% - 50%
|
|
|
|
|
2018
|
|
2017
|
|
%
|
|
Value of Share
|
|
Value of Share
|
|
|||
|
|
|
$
|
|
$
|
|
Increase
|
|
Awards % of Base Fee
|
|
Awards % of Base Fee
|
|
|||
|
|
|
Base Fee
|
|
Base Fee
|
|
Base Fee
|
|
2018
|
|
2017
|
|
|||
|
Joseph Bonn
(1)
|
|
98,812-101,282
|
|
98,812
|
|
|
2.5
|
%
|
|
50% - 55%
|
|
50
|
%
|
|
|
Adam Cohn
|
|
79,050-81,026
|
|
79,050
|
|
|
2.5
|
%
|
|
50% - 55%
|
|
50
|
%
|
|
|
Brian Kushner
|
|
79,050-81,026
|
|
79,050
|
|
|
2.5
|
%
|
|
50% - 55%
|
|
50
|
%
|
|
|
David Landless
|
|
79,050-81,026
|
|
79,050
|
|
|
2.5
|
%
|
|
50% - 55%
|
|
50
|
%
|
|
|
Clive Snowdon
|
|
79,050-81,026
|
|
79,050
|
|
|
2.5
|
%
|
|
50% - 55%
|
|
50
|
%
|
|
(1)
|
Base fee increase reflects additional supplement for Chairman Fees.
|
•
|
The Chief Executive Officer is responsible to the Board for the management and performance of the business within the framework of the matters reserved to the Board and for developing strategy and then implementing the strategy he has agreed with the Board; and
|
•
|
The Chairman is responsible for the leadership of the Board and ensuring its effectiveness. He ensures that Board discussions are conducted taking into account all views, promoting openness and debate by facilitating the effective contribution of the Non-Executive Directors and ensuring no individual or group dominates the Board.
|
|
|
Main Board
|
|
Telephone Board
|
|
Total Board
|
|
Audit Committee
|
|
Remuneration
Committee
|
|
Nominating and Governance
Committee
|
|
|
Joseph Bonn
|
6
|
|
3
|
|
9
|
|
-
i
|
|
8
|
|
2
|
|
|
Andrew Beaden
|
4
|
|
3
|
|
7
|
|
Non-member
ii
|
|
Non-member
|
|
Non-member
|
|
|
Adam Cohn
|
6
|
|
1
|
|
7
|
|
Non-member
|
|
8
|
|
1
vi
|
|
|
Kevin Flannery
|
1
|
|
—
|
|
1
|
|
-
i
|
|
1
|
|
-
iii
|
|
|
Brian Kushner
|
6
|
|
1
|
|
7
|
|
8
|
|
8
|
|
-
i
|
|
|
David Landless
|
6
|
|
3
|
|
9
|
|
8
|
|
6
iv
|
|
1
v
|
|
|
Alok Maskara
|
4
|
|
1
|
|
5
|
|
Non-member
ii
|
|
Non-member
ii
|
|
Non-member
ii
|
|
|
Brian Purves
|
4
|
|
3
|
|
7
|
|
Non-member
ii
|
|
Non-member
ii
|
|
Non-member
ii
|
|
|
Clive Snowdon
|
6
|
|
3
|
|
9
|
|
8
|
|
-
i
|
|
2
|
|
|
Total number of meetings
|
6
|
|
3
|
|
9
|
|
8
|
|
8
|
|
2
|
|
|
No. of meetings held at operational sites in the U.K. or U.S.
|
1
|
|
—
|
|
1
|
|
|
|
|
|
|
|
|
|
|
Meetings attended
|
|
|
David Landless
|
Member and Chairman (Chair)
|
8
|
|
|
Joseph Bonn
|
Member until and including January 30, 2017
|
-
i
|
|
|
Kevin Flannery
|
Member until and including January 30, 2017
|
-
i
|
|
|
Brian Kushner
|
Member
|
8
|
|
|
Clive Snowdon
|
Member
|
8
|
|
•
|
External Auditors:
Engagement and retention of our independent auditors, pre-approval of audit and non-audit services, approving fees paid, monitoring independence and performance, discussing audit findings with auditors;
|
•
|
Financial Reporting:
Monitoring the integrity of the financial information to be included in all consolidated financial statements and announcements, reviewing and challenging critical accounting policies, the manner in which major elements of judgment are reflected in the consolidated financial statements, disclosures, significant adjustments and compliance with standards;
|
•
|
Internal Controls and Risk Management System:
Reviewing systems of internal control and risk management and adequacy of disclosure controls and procedures. Maintaining a record of complaints regarding accounting and audit matters;
|
•
|
Whistleblowing:
Establishment and monitoring of the Group whistleblowing policy and procedures; and
|
•
|
Oversight of the Code of Ethics
.
|
•
|
A specific review of the Company's external auditors' independence with the Company's external auditors and the Company's management, which confirmed the independence of the external auditors;
|
•
|
A discussion of matters pertaining to and approval of work to be undertaken by the Company's external auditors under the Pre-approval Policy;
|
•
|
A review with the Head of Corporate Review and senior management of the internal audit work, the system of internal control and monitored the implementation of internal controls over financial reporting pursuant to Section 404 of the Sarbanes-Oxley Act and the progress of the update to the internal control over financial reporting framework to reflect the 2013 COSO framework throughout the Group;
|
•
|
A review of how Group risks are assessed, the Group's risk profile and how the Group mitigates its risks;
|
•
|
A review of the Company's annual SEC filing, statutory report and consolidated financial statements and the quarterly financial releases made by the Company;
|
•
|
An evaluation of the work of the Audit Committee.
|
|
|
|
Meetings attended
|
|
|
Joseph Bonn
|
Member throughout entire year and Chairman (Chair) until and including December 4, 2017
|
2
|
|
|
David Landless
|
Member
|
1
i
|
|
|
Kevin Flannery
|
Member until and including May 23, 2017
|
-
ii
|
|
|
Brian Kushner
|
Member until and including January 30, 2017
|
-
iii
|
|
|
Clive Snowdon
|
Member and Chairman (Chair) from December 5, 2017
|
2
|
|
|
Adam Cohn
|
Member
|
1
|
|
•
|
Identify and review individuals qualified to become Directors and fill vacancies;
|
•
|
Select and approve Directors to stand for re-election pursuant to the retirement provisions under our Articles;
|
•
|
To identify and review individuals qualified to become Senior Officers of the Company, (other than its Board members), consistent with criteria approved by the Board;
|
•
|
Develop a process for annual evaluation of the Board and its Committees;
|
•
|
Develop and recommend to the Board a succession plan, and review management's succession plan;
|
•
|
Develop and recommend to the Board a set of corporate governance principles applicable to the Company;
|
•
|
Annually review the Company's corporate governance processes and its governance principles;
|
•
|
Play a leadership role in the Company's corporate governance.
|
|
|
2017
|
|
2016
|
|
2015
|
|
|||
|
By Division:
|
|
|
|
|
|
|
|
|
|
|
Elektron
|
695
|
|
|
699
|
|
|
703
|
|
|
|
Gas Cylinders
|
963
|
|
|
988
|
|
|
1,003
|
|
|
|
Total
|
1,658
|
|
|
1,687
|
|
|
1,706
|
|
|
|
By Function:
|
|
|
|
|
|
|
|
|
|
|
Direct production and distribution
|
1,397
|
|
|
1,381
|
|
|
1,432
|
|
|
|
Indirect:
|
|
|
|
|
|
|
|
|
|
|
Sales and administration
|
204
|
|
|
246
|
|
|
218
|
|
|
|
Research and development
|
57
|
|
|
60
|
|
|
56
|
|
|
|
Total
|
1,658
|
|
|
1,687
|
|
|
1,706
|
|
|
|
By Geography:
|
|
|
|
|
|
|
|
|
|
|
Europe
|
823
|
|
|
844
|
|
|
870
|
|
|
|
North America
|
816
|
|
|
822
|
|
|
814
|
|
|
|
Rest of the World
|
19
|
|
|
21
|
|
|
22
|
|
|
|
Total
|
1,658
|
|
|
1,687
|
|
|
1,706
|
|
|
|
Name of Beneficial Owner
|
|
Ordinary Shares Beneficially Owned
(1)
|
|
Awards over Ordinary Shares
(2)
|
|
|
Percentage
ownership
|
|
||
|
Joseph A. Bonn
|
7,800
|
|
|
24,021
|
|
(3)
|
|
(*)
|
|
|
|
Alok Maskara
|
25,712
|
|
|
229,276
|
|
(4)
|
|
(*)
|
|
|
|
Adam Cohn
|
—
|
|
|
5,933
|
|
(3)
|
|
(*)
|
|
|
|
Brian G Kushner
|
1,823
|
|
|
3,217
|
|
(3)
|
|
(*)
|
|
|
|
David F. Landless
|
7,633
|
|
|
3,217
|
|
(3)
|
|
(*)
|
|
|
|
Clive J. Snowdon
|
2,000
|
|
|
5,836
|
|
(3)
|
|
(*)
|
|
(*)
|
Indicates beneficial ownership of less than one percent of our ordinary shares.
|
(1)
|
Number of shares owned as shown both in this table and the accompanying footnotes and percentage of ownership are based upon 27,136,799 £0.50 ordinary shares outstanding as at
December 31, 2017
.
|
(2)
|
Awards comprise options and restricted stock units ("RSUs") over ordinary shares granted under the agreements or incentive plans described below:
|
(3)
|
Includes 20,000 I.P.O. options and 3,947 EIP 2017 RSUs granted to Mr. Bonn, 5,823 EIP 2017 RSUs granted to Mr. Cohn, 3,158 EIP 2017 RSUs granted to Dr. Kushner, 3,158 EIP 2017 RSUs granted to Mr. Landless and 5,728 EIP 2017 RSUs granted to Mr. Snowdon.
|
(4)
|
Includes 45,000 time-based CEO 2017 options (1), 60,000 time-based CEO 2017 options (2) and 120,000 performance-based 2017 options.
|
Item 7.
|
Major Shareholders and Related Party Transactions
|
A.
|
Major Shareholders.
|
|
Shareholder
|
|
Number of Ordinary Shares Beneficially Owned
|
|
Percent
(7)
|
|
||
|
Wellington Management Group LLP
(1)
|
3,729,953
|
|
|
14.1
|
%
|
|
|
|
Nantahala Capital Management LLC
(2)
|
2,587,341
|
|
|
9.8
|
%
|
|
|
|
FMR LLC
(3)
|
2,290,632
|
|
|
8.6
|
%
|
|
|
|
T. Rowe Price Associates, Inc.
(4)
|
2,057,890
|
|
|
7.8
|
%
|
|
|
|
Paradice Investment Management LLC
(5)
|
2,026,960
|
|
|
7.6
|
%
|
|
|
|
DePrince, Race & Zollo, Inc
(6)
|
1,724,650
|
|
|
6.5
|
%
|
|
(1)
|
This information is based solely on the Schedule 13F filed on February 13, 2018, by Wellington Management Group LLP ("Wellington") (formerly known as Wellington Management Company, LLP), a Massachusetts limited liability partnership. Wellington is an investment adviser and may be deemed to beneficially own
3,729,953
ordinary shares held by its clients. Wellington's principal business address is c/o Wellington Management Company LLP, 280 Congress Street, Boston, MA 02210.
|
(2)
|
This information is based solely on the Schedule 13G filed jointly on February 14, 2018, by Nantahala Capital Management LLC, a Massachusetts limited liability company, and Wilmot B. Harkey and Daniel Mack. Includes
2,587,341
ordinary shares beneficially owned by Nantahala LLC and (ii)
2,587,341
ordinary shares beneficially owned by each of Messrs. Harker and Mack ("Nantahala Management"). The principal business address of Nantahala LLC is 19 Old Kings Highway S, Suite 200, Darien, CT 06820.
|
(3)
|
This information is based solely on the Schedule 13G filed jointly on February 13, 2018 by FMR LLC (‘‘FMR’’), a Delaware limited liability company, and Abigail P. Johnson. Includes
2,290,632
ordinary shares beneficially owned by FMR and (ii)
2,290,632
ordinary shares beneficially owned by Ms. Johnson (inclusive of the ordinary shares beneficially owned by FMR). The principal business address of each member of the Fidelity Group is 245 Summer Street, Boston, MA 02210.
|
(4)
|
This information is based solely on the Schedule 13G filed on February 14, 2018, by T. Rowe Price Associates, Inc. ("Price Associates"), a Maryland corporation. Price Associates is an investment adviser and may be deemed to beneficially own
2,057,890
ordinary shares. Price Associates disclaims beneficial ownership of such ordinary shares. The principal business address of Price Associates is 100 E. Pratt Street, Baltimore, MD 21202.
|
(5)
|
This information is based solely on the Schedule 13G filed jointly on February 13, 2018, by Paradice Investment Management LLC ("Paradice LLC"), a Delaware limited liability company, and Paradice Investment Management Pty Ltd ("Investment Pty"), a company incorporated in Australia. Includes
2,026,960
ordinary shares beneficially owned by Paradice LLC and (ii)
2,026,960
ordinary shares beneficially owned by Investment Pty (inclusive of the ordinary shares beneficially owned by Paradice LLC). The principal business address of Paradice LLC is 257 Fillmore Street, Suite 200, Denver, CO 80206. The principal business address of Paradice Investment Pty is Level 27, The Chifley Tower, 2 Chifley Square, Sydney NSW 2000, Australia.
|
(6)
|
This information is based solely on the Schedule 13G filed jointly on February 13, 2018, by DePrince, Race & Zollo, Inc., a Florida limited liability company. Includes
1,724,650
ordinary shares beneficially owned by DePrince, Race & Zollo, Inc. The principal business address of 250 Park Ave South, Suite 250, Winter Park, FL 32789.
|
(7)
|
Based upon the percentage of the total ordinary share capital in issue. As of
December 31, 2017
, this was
26,504,474
ordinary shares (
December 31, 2016
: 26,415,559).
|
•
|
the percentage of our ordinary shares beneficially owned by Nantahala increased from 5.8% to 9.8%;
|
•
|
FMR LLC and DePrince, Race & Zollo, Inc became a major shareholder; and
|
•
|
Canton Group, Stonehill Group and GMT Capital Group ceased to be major shareholders of the Company. The percentage of shares beneficially owned by Canton Group decreased from 8.1% to 3.9% and the percentage of shares beneficially owned by Stonehill Group and GMT Capital Group decreased from 5.8% and 5.3% respectively to nil.
|
•
|
the percentage of our ordinary shares beneficially owned by (i) Stonehill Group decreased from 9.2% to 5.8%, and (ii) GMT Capital Group decreased from 9.0% to 5.3%; and
|
•
|
Nantahala LLC became a major shareholder.
|
•
|
the percentage of our ordinary shares beneficially owned by (i) Canton Group increased from 7.3% to 9.4%, and (ii) T. Rowe Price Associates, Inc. decreased from 12.6% to 7.3%;
|
•
|
Paradice Investment Management LLC became a major shareholder; and
|
•
|
FMR LLC ("FMR"), a Delaware limited liability company, Edward C. Johnson 3d and Abigail P. Johnson (together with FMR and Ms. Johnson, the "Fidelity Group") ceased to be major shareholders of the Company. The percentage of shares beneficially owned by the Fidelity Group decreased from 5.2% to 1.6%.
|
B.
|
Related Party Transactions
|
Item 8.
|
Financial Information
|
A.
|
Consolidated Statements and Other Financial Information.
|
B.
|
Significant Changes.
|
Item 9.
|
The Offer and Listing.
|
A.
|
Offer and listing details.
|
|
|
|
Price
|
|
||||
|
|
|
High
|
|
Low
|
|
||
|
|
|
(in USD)
|
|
||||
|
Annual
|
|
|
|
|
|
|
|
|
2017
|
|
16.05
|
|
|
10.82
|
|
|
|
2016
|
|
13.60
|
|
|
9.17
|
|
|
|
2015
|
|
14.98
|
|
|
9.20
|
|
|
|
2014
|
|
22.05
|
|
|
13.44
|
|
|
|
2013
|
|
21.16
|
|
|
12.03
|
|
|
|
Quarter
|
|
|
|
|
|
|
|
|
2017
|
|
|
|
|
|
||
|
First Quarter
|
|
12.28
|
|
|
10.82
|
|
|
|
Second Quarter
|
|
13.49
|
|
|
10.85
|
|
|
|
Third Quarter
|
|
13.42
|
|
|
11.30
|
|
|
|
Fourth Quarter
|
|
16.05
|
|
|
11.96
|
|
|
|
2016
|
|
|
|
|
|
|
|
|
First Quarter
|
|
11.21
|
|
|
9.17
|
|
|
|
Second Quarter
|
|
13.60
|
|
|
9.99
|
|
|
|
Third Quarter
|
|
13.39
|
|
|
10.28
|
|
|
|
Fourth Quarter
|
|
12.06
|
|
|
9.28
|
|
|
|
Month
|
|
|
|
|
|
|
|
|
2017
|
|
|
|
|
|
|
|
|
September
|
|
13.00
|
|
|
11.89
|
|
|
|
October
|
|
12.84
|
|
|
11.96
|
|
|
|
November
|
|
14.83
|
|
|
12.17
|
|
|
|
December
|
|
16.05
|
|
|
14.02
|
|
|
|
2018
|
|
|
|
|
|
|
|
|
January
|
|
15.87
|
|
|
14.46
|
|
|
|
February
|
|
14.29
|
|
|
12.95
|
|
|
B.
|
Plan of distribution.
|
C.
|
Markets.
|
D.
|
Selling Shareholders.
|
E.
|
Dilution.
|
F.
|
Expenses of the issue.
|
Item 10.
|
Additional Information.
|
A.
|
Share capital.
|
B.
|
Memorandum and articles of association.
|
C.
|
Material contracts.
|
D.
|
Exchange controls.
|
E.
|
Taxation.
|
F.
|
Dividends and paying agents.
|
G.
|
Statement by experts.
|
H.
|
Documents on display.
|
I.
|
Subsidiary Information.
|
Item 11.
|
Quantitative and Qualitative Disclosures About Market Risk
|
|
Geographic Region
|
|
Percentage of revenue
|
|
|
|
North America
|
57
|
%
|
|
|
|
U.K.
|
32
|
%
|
|
|
|
Europe, excluding U.K
|
10
|
%
|
|
|
|
Rest of World
|
1
|
%
|
|
|
Geographic Region
|
|
Percentage of revenue
|
|
|
|
North America
|
54
|
%
|
|
|
|
Europe, excluding U.K.
|
23
|
%
|
|
|
|
Asia Pacific
|
11
|
%
|
|
|
|
U.K.
|
9
|
%
|
|
|
|
Rest of World
|
3
|
%
|
|
|
|
|
First quarter
|
|
Second quarter
|
|
Third quarter
|
|
Fourth quarter
|
|
Full year
|
|
||||||||||
|
|
|
2017
|
|
2017
|
|
2017
|
|
2017
|
|
2017
|
|
||||||||||
|
|
|
(in $ million)
|
|
||||||||||||||||||
|
All currencies—translation impact—(loss) / gain
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||
|
Revenue
|
|
$
|
(3.7
|
)
|
|
$
|
(2.7
|
)
|
|
$
|
1.0
|
|
|
$
|
3.8
|
|
|
$
|
(1.6
|
)
|
|
|
Operating profit
|
|
(0.1
|
)
|
|
1.1
|
|
|
0.8
|
|
|
2.1
|
|
|
3.9
|
|
|
|
|
|
December 31, 2017
|
|
|||||||
|
Sales Hedges
|
|
U.S. dollars
|
|
Euros
|
|
Australian dollars
|
|
|||
|
Contract totals / £M
|
|
17.1
|
|
|
27.5
|
|
|
2.8
|
|
|
|
Maturity dates
|
|
01/18 to 07/19
|
|
|
01/18 to 07/19
|
|
|
06/18
|
|
|
|
Exchange rates
|
|
$1.2433 to $1.3444
|
|
|
€1.0949 to €1.1803
|
|
|
1.7667
|
|
|
|
|
|
December 31, 2017
|
|
|||||||
|
Purchase Hedges
|
|
U.S. dollars
|
|
Euros
|
|
Australian dollars
|
|
|||
|
Contract totals / £M
|
|
12.5
|
|
|
0.1
|
|
|
1.7
|
|
|
|
Maturity dates
|
|
01/18 to 07/19
|
|
|
01/18
|
|
|
06/18
|
|
|
|
Exchange rates
|
|
$1.2414 to $1.3389
|
|
|
€1.1084
|
|
|
$1.7161
|
|
|
Item 12.
|
Description of Securities Other than Equity Securities.
|
A.
|
Debt Securities.
|
B.
|
Warrant and Rights.
|
C.
|
Other Securities.
|
D.
|
American Depositary Shares.
|
Item 13.
|
Defaults, Dividend Arrearages and Delinquencies.
|
Item 14.
|
Material Modifications to the Rights of Security Holders and Use of Proceeds.
|
Item 15.
|
Controls and Procedures.
|
Item 16.
|
[Reserved]
|
Item 16A.
|
Audit committee financial expert.
|
Item 16B.
|
Code of Ethics.
|
Item 16C.
|
Principal Accountant Fees and Services.
|
|
|
|
2017
|
|
2016
|
|
2015
|
|
|||
|
|
|
(in $ million)
|
|
|||||||
|
Fees payable to auditors for the audit of the consolidated financial statements and its subsidiaries
|
|
1.3
|
|
|
1.1
|
|
|
1.1
|
|
|
|
Fees payable to auditors for non-audit services:
|
|
|
|
|
|
|
|
|||
|
Accounting advisory services
|
|
0.1
|
|
|
—
|
|
|
—
|
|
|
|
Total
|
|
1.4
|
|
|
1.1
|
|
|
1.1
|
|
|
Item 16D.
|
Exemptions from the Listing Standards for Audit Committees.
|
Item 16E.
|
Purchases of Equity Securities by the Issuer and Affiliated Purchasers.
|
|
|
|
Total number of
shares
purchased
|
|
Average price
paid per share
(in U.S. dollars)
|
|
Total number of
shares
purchased as
part of publicly
announced plans
or programs
|
|
Approximate
dollar value of
shares that may
yet be purchased
under the plans
or programs
(in $ million)
|
|
Maximum
number of
shares that may
yet be purchased
under the plans
or programs
|
|
||||||
|
June 5—June 30, 2015
|
|
146,804
|
|
|
$
|
13.44
|
|
|
146,804
|
|
|
8.1
|
|
|
2,553,196
|
|
|
|
July 1—July 31, 2015
|
|
—
|
|
|
—
|
|
|
146,804
|
|
|
8.1
|
|
|
2,553,196
|
|
|
|
|
August 1—August 31, 2015
|
|
—
|
|
|
—
|
|
|
146,804
|
|
|
8.1
|
|
|
2,553,196
|
|
|
|
|
September 1—September 30, 2015
|
|
—
|
|
|
—
|
|
|
146,804
|
|
|
8.1
|
|
|
2,553,196
|
|
|
|
|
October 1—October 31, 2015
|
|
—
|
|
|
—
|
|
|
146,804
|
|
|
8.1
|
|
|
2,553,196
|
|
|
|
|
November 1—November 30, 2015
|
|
—
|
|
|
—
|
|
|
146,804
|
|
|
8.1
|
|
|
2,553,196
|
|
|
|
|
December 1—December 31, 2015
|
|
—
|
|
|
—
|
|
|
146,804
|
|
|
8.1
|
|
|
2,553,196
|
|
|
|
|
January 1—January 31, 2016
|
|
236,537
|
|
|
$
|
9.99
|
|
|
383,341
|
|
|
5.7
|
|
|
2,316,659
|
|
|
|
February 1—February 29, 2016
|
|
333,169
|
|
|
$
|
10.21
|
|
|
716,510
|
|
|
2.3
|
|
|
1,983,490
|
|
|
|
March 1—March 31, 2016
|
|
21,331
|
|
|
$
|
10.66
|
|
|
737,841
|
|
|
2.0
|
|
|
1,962,159
|
|
|
|
April 1—April 30, 2016
|
|
—
|
|
|
—
|
|
|
737,841
|
|
|
2.0
|
|
|
1,962,159
|
|
|
|
|
May 1—May 31, 2016
|
|
—
|
|
|
—
|
|
|
737,841
|
|
|
2.0
|
|
|
1,962,159
|
|
|
|
|
June 1—June 30, 2016
|
|
—
|
|
|
—
|
|
|
737,841
|
|
|
2.0
|
|
|
1,962,159
|
|
|
|
|
July 1—July 31, 2016
|
|
—
|
|
|
—
|
|
|
737,841
|
|
|
2.0
|
|
|
1,962,159
|
|
|
|
|
August 1—August 31, 2016
|
|
—
|
|
|
—
|
|
|
737,841
|
|
|
2.0
|
|
|
1,962,159
|
|
|
|
|
September 1—September 30, 2016
|
|
—
|
|
|
—
|
|
|
737,841
|
|
|
2.0
|
|
|
1,962,159
|
|
|
|
|
October 1—October 31, 2016
|
|
18,276
|
|
|
$
|
9.50
|
|
|
756,117
|
|
|
1.9
|
|
|
1,943,883
|
|
|
|
November 1—November 30, 2016
|
|
24,872
|
|
|
$
|
9.50
|
|
|
780,989
|
|
|
1.6
|
|
|
1,919,011
|
|
|
|
December 1—December 31, 2016
|
|
—
|
|
|
—
|
|
|
780,989
|
|
|
1.6
|
|
|
1,919,011
|
|
|
|
|
January 1—January 31, 2017
|
|
—
|
|
|
—
|
|
|
780,989
|
|
|
1.6
|
|
|
1,919,011
|
|
|
|
|
February 1—February 29, 2017
|
|
—
|
|
|
—
|
|
|
780,989
|
|
|
1.6
|
|
|
1,919,011
|
|
|
|
|
March 1—March 31, 2017
|
|
—
|
|
|
—
|
|
|
780,989
|
|
|
1.6
|
|
|
1,919,011
|
|
|
|
|
April 1—April 30, 2017
|
|
—
|
|
|
—
|
|
|
780,989
|
|
|
1.6
|
|
|
1,919,011
|
|
|
|
|
May 1—May 31, 2017
|
|
—
|
|
|
—
|
|
|
780,989
|
|
|
1.6
|
|
|
1,919,011
|
|
|
|
|
June 1—June 30, 2017
|
|
—
|
|
|
—
|
|
|
780,989
|
|
|
1.6
|
|
|
1,919,011
|
|
|
|
|
July 1—July 31, 2017
|
|
—
|
|
|
—
|
|
|
780,989
|
|
|
1.6
|
|
|
1,919,011
|
|
|
|
|
August 1—August 31, 2017
|
|
—
|
|
|
—
|
|
|
780,989
|
|
|
1.6
|
|
|
1,919,011
|
|
|
|
|
September 1—September 30, 2017
|
|
—
|
|
|
—
|
|
|
780,989
|
|
|
1.6
|
|
|
1,919,011
|
|
|
|
|
October 1—October 31, 2017
|
|
—
|
|
|
—
|
|
|
780,989
|
|
|
1.6
|
|
|
1,919,011
|
|
|
|
|
November 1—November 30, 2017
|
|
—
|
|
|
—
|
|
|
780,989
|
|
|
1.6
|
|
|
1,919,011
|
|
|
|
|
December 1—December 31, 2017
|
|
—
|
|
|
—
|
|
|
780,989
|
|
|
1.6
|
|
|
1,919,011
|
|
|
|
|
Total
|
|
780,989
|
|
|
$
|
10.72
|
|
|
780,989
|
|
|
1.6
|
|
|
1,919,011
|
|
|
Item 16F.
|
Change in Registrant's Certifying Accountant.
|
Item 16G.
|
Corporate Governance.
|
Item 16H.
|
Mine Safety Disclosure.
|
Item 17.
|
Financial Statements.
|
Item 18.
|
Financial Statements.
|
Item 19.
|
Exhibits.
|
1.1
|
2.1
|
2.2
|
2.3
|
2.4
|
2.5
|
2.6
|
2.7
|
4.1
|
4.2
|
4.3
|
8.1
|
List of Subsidiaries (included under Item 4.C "Organizational Structure" in this Annual Report on Form 20-F)
|
12.1
|
12.2
|
13.1
|
13.2
|
15.1
|
|
|
|
|
|
|
|
Luxfer Holdings PLC
|
||
March 19, 2018
|
|
By:
|
/s/ Alok Maskara
|
|
|
|
|
Alok Maskara
|
|
|
|
|
Chief Executive Officer
|
|
|
|
|
|
|
Page
|
|
|
Consolidated Financial Statements
|
|
|
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
|
|
|
|
2017
|
|
2016
|
|
2015
|
|
||||||
|
|
Note
|
|
$M
|
|
$M
|
|
$M
|
|
||||||
|
REVENUE
|
2
|
|
441.3
|
|
|
414.8
|
|
|
460.3
|
|
|
|||
|
Cost of sales
|
|
|
(332.7
|
)
|
|
(321.4
|
)
|
|
(356.3
|
)
|
|
|||
|
Gross profit
|
|
|
108.6
|
|
|
93.4
|
|
|
104.0
|
|
|
|||
|
Distribution costs
|
|
|
(9.3
|
)
|
|
(7.8
|
)
|
|
(7.9
|
)
|
|
|||
|
Administrative expenses
|
|
|
(58.9
|
)
|
|
(50.8
|
)
|
|
(52.6
|
)
|
|
|||
|
Share of results of joint ventures and associates
|
14
|
|
0.1
|
|
|
0.5
|
|
|
(1.2
|
)
|
|
|||
|
TRADING PROFIT
|
2
|
|
40.5
|
|
|
35.3
|
|
|
42.3
|
|
|
|||
|
Profit on sale of redundant site
|
5
|
|
0.4
|
|
|
2.1
|
|
|
—
|
|
|
|||
|
Changes to defined benefit pension plans
|
5
|
|
—
|
|
|
0.6
|
|
|
18.0
|
|
|
|||
|
Restructuring and other expense
|
5
|
|
(21.6
|
)
|
|
(2.2
|
)
|
|
(22.4
|
)
|
|
|||
|
OPERATING PROFIT
|
3
|
|
19.3
|
|
|
35.8
|
|
|
37.9
|
|
|
|||
|
Other income / (expense):
|
|
|
|
|
|
|
|
|
|
|||||
|
Net gain / (loss) on acquisitions and disposals
|
5
|
|
1.3
|
|
|
0.2
|
|
|
(2.0
|
)
|
|
|||
|
Finance income:
|
|
|
|
|
|
|
|
|
|
|||||
|
Interest received
|
7
|
|
0.5
|
|
|
1.2
|
|
|
0.5
|
|
|
|||
|
Finance costs:
|
|
|
|
|
|
|
|
|
|
|||||
|
Interest costs
|
8
|
|
(7.2
|
)
|
|
(6.8
|
)
|
|
(7.4
|
)
|
|
|||
|
IAS 19R retirement benefits finance charge
|
8
|
|
(1.8
|
)
|
|
(2.1
|
)
|
|
(3.0
|
)
|
|
|||
|
Unwind of discount on deferred contingent consideration from acquisitions
|
8
|
|
(0.2
|
)
|
|
(0.4
|
)
|
|
(0.4
|
)
|
|
|||
|
Total finance costs
|
|
|
(9.2
|
)
|
|
(9.3
|
)
|
|
(10.8
|
)
|
|
|||
|
PROFIT ON OPERATIONS BEFORE TAXATION
|
|
|
11.9
|
|
|
27.9
|
|
|
25.6
|
|
|
|||
|
Income tax expense
|
9
|
|
(0.4
|
)
|
|
(6.0
|
)
|
|
(9.5
|
)
|
|
|||
|
NET INCOME FOR THE YEAR
|
|
|
11.5
|
|
|
21.9
|
|
|
16.1
|
|
|
|||
|
Attributable to:
|
|
|
|
|
|
|
|
|
|
|||||
|
Equity shareholders
|
|
|
11.5
|
|
|
21.9
|
|
|
16.1
|
|
|
|||
|
Earnings per share:
|
|
|
|
|
|
|
|
|
||||||
|
Basic
|
|
|
|
|
|
|
|
|
||||||
|
Unadjusted
|
10
|
|
$
|
0.43
|
|
|
$
|
0.83
|
|
|
$
|
0.60
|
|
|
|
Diluted
|
|
|
|
|
|
|
|
|
|
|||||
|
Unadjusted
|
10
|
|
$
|
0.43
|
|
|
$
|
0.82
|
|
|
$
|
0.59
|
|
|
|
|
|
|
2017
|
|
2016
|
|
2015
|
|
|||
|
|
Note
|
|
$M
|
|
$M
|
|
$M
|
|
|||
|
Net income for the year
|
|
|
11.5
|
|
|
21.9
|
|
|
16.1
|
|
|
|
Other comprehensive income movements
|
|
|
|
|
|
|
|
|
|||
|
Items that may be reclassified to the consolidated income statement:
|
|
|
|
|
|
|
|
|
|||
|
Exchange differences on translation of foreign operations
|
|
|
11.6
|
|
|
(13.1
|
)
|
|
(8.6
|
)
|
|
|
Fair value movements in cash flow hedges
|
|
|
3.1
|
|
|
1.1
|
|
|
(5.4
|
)
|
|
|
Transfers to consolidated income statement on cash flow hedges
|
|
|
0.6
|
|
|
(0.9
|
)
|
|
(0.1
|
)
|
|
|
Deferred income taxes on cash flow hedges
|
|
|
(0.6
|
)
|
|
—
|
|
|
1.1
|
|
|
|
Hedge accounting income / (loss) adjustments
|
|
|
3.1
|
|
|
0.2
|
|
|
(4.4
|
)
|
|
|
Total hedge accounting and translation of foreign operations movements
|
|
|
14.7
|
|
|
(12.9
|
)
|
|
(13.0
|
)
|
|
|
Items that will not be reclassified to the consolidated income statement:
|
|
|
|
|
|
|
|
|
|||
|
Remeasurement of defined benefit retirement plans
|
29
|
|
9.5
|
|
|
(21.7
|
)
|
|
4.4
|
|
|
|
Deferred income taxes on retirement benefits remeasurements
|
23
|
|
(5.2
|
)
|
|
4.3
|
|
|
(1.5
|
)
|
|
|
Retirement benefits changes
|
|
|
4.3
|
|
|
(17.4
|
)
|
|
2.9
|
|
|
|
Total other comprehensive income / (loss) movements for the year
|
|
|
19.0
|
|
|
(30.3
|
)
|
|
(10.1
|
)
|
|
|
Total comprehensive income / (loss) for the year
|
|
|
30.5
|
|
|
(8.4
|
)
|
|
6.0
|
|
|
|
Attributed to:
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity shareholders
|
|
|
30.5
|
|
|
(8.4
|
)
|
|
6.0
|
|
|
|
|
|
|
December 31, 2017
|
|
December 31, 2016
|
|
||
|
|
Note
|
|
$M
|
|
$M
|
|
||
|
ASSETS
|
|
|
|
|
|
|
||
|
Non-current assets
|
|
|
|
|
|
|
||
|
Property, plant and equipment
|
11
|
|
125.5
|
|
|
127.9
|
|
|
|
Intangible assets
|
12
|
|
81.7
|
|
|
80.6
|
|
|
|
Investments
|
14
|
|
7.6
|
|
|
10.0
|
|
|
|
Deferred income tax assets
|
23
|
|
16.2
|
|
|
16.6
|
|
|
|
Trade and other receivables
|
16
|
|
0.3
|
|
|
0.3
|
|
|
|
|
|
|
231.3
|
|
|
235.4
|
|
|
|
Current assets
|
|
|
|
|
|
|
|
|
|
Current investments
|
14
|
|
1.6
|
|
|
—
|
|
|
|
Inventories
|
15
|
|
82.2
|
|
|
82.5
|
|
|
|
Trade and other receivables
|
16
|
|
72.6
|
|
|
57.6
|
|
|
|
Income tax receivable
|
|
|
1.6
|
|
|
2.4
|
|
|
|
Cash and cash equivalents
|
17
|
|
13.3
|
|
|
13.6
|
|
|
|
|
|
|
171.3
|
|
|
156.1
|
|
|
|
TOTAL ASSETS
|
|
|
402.6
|
|
|
391.5
|
|
|
|
EQUITY AND LIABILITIES
|
|
|
|
|
|
|
||
|
Capital and reserves
|
|
|
|
|
|
|
||
|
Ordinary share capital
|
18
|
|
25.3
|
|
|
25.3
|
|
|
|
Deferred share capital
|
18
|
|
150.9
|
|
|
150.9
|
|
|
|
Share premium account
|
18
|
|
56.4
|
|
|
56.4
|
|
|
|
Treasury shares
|
18
|
|
(5.8
|
)
|
|
(7.1
|
)
|
|
|
Own shares held by ESOP
|
18
|
|
(1.0
|
)
|
|
(0.5
|
)
|
|
|
Retained earnings
|
20
|
|
311.4
|
|
|
308.1
|
|
|
|
Hedging reserve
|
20
|
|
(0.2
|
)
|
|
(3.3
|
)
|
|
|
Translation reserve
|
20
|
|
(46.3
|
)
|
|
(57.9
|
)
|
|
|
Share based compensation reserve
|
20
|
|
5.4
|
|
|
3.8
|
|
|
|
Merger reserve
|
20
|
|
(333.8
|
)
|
|
(333.8
|
)
|
|
|
Capital and reserves attributable to the Group's equity shareholders
|
|
|
162.3
|
|
|
141.9
|
|
|
|
Total equity
|
|
|
162.3
|
|
|
141.9
|
|
|
|
Non-current liabilities
|
|
|
|
|
|
|
|
|
|
Bank and other loans
|
21
|
|
93.8
|
|
|
121.0
|
|
|
|
Retirement benefits
|
29
|
|
55.3
|
|
|
66.5
|
|
|
|
Deferred income tax liabilities
|
23
|
|
3.6
|
|
|
4.9
|
|
|
|
Deferred contingent consideration
|
25
|
|
0.2
|
|
|
1.5
|
|
|
|
Provisions
|
22
|
|
1.1
|
|
|
1.1
|
|
|
|
Trade and other payables
|
24
|
|
1.9
|
|
|
0.6
|
|
|
|
|
|
|
155.9
|
|
|
195.6
|
|
|
|
Current liabilities
|
|
|
|
|
|
|
||
|
Trade and other payables
|
24
|
|
61.3
|
|
|
51.1
|
|
|
|
Current income tax liabilities
|
|
|
0.3
|
|
|
0.1
|
|
|
|
Bank and other loans
|
21
|
|
15.0
|
|
|
—
|
|
|
|
Deferred contingent consideration
|
25
|
|
0.5
|
|
|
—
|
|
|
|
Deferred consideration
|
25
|
|
0.3
|
|
|
1.3
|
|
|
|
Provisions
|
22
|
|
2.8
|
|
|
1.5
|
|
|
|
Overdrafts
|
17
|
|
4.2
|
|
|
—
|
|
|
|
|
|
|
84.4
|
|
|
54.0
|
|
|
|
Total liabilities
|
|
|
240.3
|
|
|
249.6
|
|
|
|
TOTAL EQUITY AND LIABILITIES
|
|
|
402.6
|
|
|
391.5
|
|
|
|
|
|
|
2017
|
|
2016
|
|
2015
|
|
|||
|
|
Note
|
|
$M
|
|
$M
|
|
$M
|
|
|||
|
RECONCILIATION OF CASH FLOWS FROM CONTINUING OPERATING ACTIVITIES
|
|
|
|
|
|
|
|
|
|||
|
Net income for the year
|
|
|
11.5
|
|
|
21.9
|
|
|
16.1
|
|
|
|
Adjustments to reconcile net income for the year to net cash flows from continuing operating activities:
|
|
|
|
|
|
|
|
||||
|
Income taxes
|
9
|
|
0.4
|
|
|
6.0
|
|
|
9.5
|
|
|
|
Depreciation and amortization
|
3
|
|
19.0
|
|
|
18.4
|
|
|
18.6
|
|
|
|
Loss on disposal of property, plant and equipment
|
3
|
|
0.1
|
|
|
0.2
|
|
|
—
|
|
|
|
Profit on sale of redundant site
|
5
|
|
(0.4
|
)
|
|
(2.1
|
)
|
|
—
|
|
|
|
Share based compensation charges net of cash settlement
|
|
|
1.7
|
|
|
1.1
|
|
|
1.3
|
|
|
|
Net interest costs
|
|
|
6.7
|
|
|
5.6
|
|
|
6.9
|
|
|
|
Non-cash restructuring charges
|
|
|
|
|
|
|
|
|
|||
|
Property, plant and equipment impairment
|
11
|
|
5.0
|
|
|
—
|
|
|
1.7
|
|
|
|
Intangible assets impairment
|
12
|
|
2.0
|
|
|
—
|
|
|
3.7
|
|
|
|
Investment impairment
|
14
|
|
2.2
|
|
|
—
|
|
|
4.6
|
|
|
|
Other non-cash restructuring charges
|
|
|
1.8
|
|
|
—
|
|
|
7.7
|
|
|
|
Curtailment and past service credits on retirement benefits obligations
|
5
|
|
—
|
|
|
(0.6
|
)
|
|
(18.2
|
)
|
|
|
IAS 19R retirement benefits finance charge
|
6
|
|
1.8
|
|
|
2.1
|
|
|
3.0
|
|
|
|
Acquisitions and disposals costs
|
5
|
|
(1.3
|
)
|
|
(0.2
|
)
|
|
2.0
|
|
|
|
Unwind of discount on deferred contingent consideration from acquisitions
|
8
|
|
0.2
|
|
|
0.4
|
|
|
0.4
|
|
|
|
Share of results of joint ventures and associates
|
14
|
|
(0.1
|
)
|
|
(0.5
|
)
|
|
1.2
|
|
|
|
Changes in operating assets and liabilities:
|
|
|
|
|
|
|
|
|
|||
|
Sale of assets classified as held for sale
|
|
|
—
|
|
|
—
|
|
|
1.2
|
|
|
|
(Increase) / decrease in receivables
|
|
|
(9.1
|
)
|
|
(1.8
|
)
|
|
5.0
|
|
|
|
Decrease in inventories
|
|
|
5.0
|
|
|
4.5
|
|
|
3.0
|
|
|
|
Increase / (decrease) in payables
|
|
|
9.7
|
|
|
(10.3
|
)
|
|
(0.9
|
)
|
|
|
Movement in retirement benefits obligations
|
|
|
(8.0
|
)
|
|
(6.3
|
)
|
|
(8.6
|
)
|
|
|
Movement in provisions
|
22
|
|
1.1
|
|
|
(2.6
|
)
|
|
0.3
|
|
|
|
Acquisition approach costs paid
|
|
|
—
|
|
|
(1.2
|
)
|
|
(0.6
|
)
|
|
|
Income taxes paid
|
|
|
(4.1
|
)
|
|
(5.4
|
)
|
|
(5.1
|
)
|
|
|
NET CASH FLOWS FROM CONTINUING OPERATING ACTIVITIES
|
|
|
45.2
|
|
|
29.2
|
|
|
52.8
|
|
|
|
CASH FLOWS FROM INVESTING ACTIVITIES
|
|
|
|
|
|
|
|
|
|||
|
Purchases of property, plant and equipment
|
|
|
(9.6
|
)
|
|
(16.5
|
)
|
|
(15.3
|
)
|
|
|
Purchases of intangible assets
|
|
|
(1.7
|
)
|
|
(2.4
|
)
|
|
(2.1
|
)
|
|
|
Proceeds from sale of redundant site
|
|
|
—
|
|
|
3.0
|
|
|
—
|
|
|
|
Receipts from sales of property, plant and equipment
|
|
|
0.1
|
|
|
0.4
|
|
|
—
|
|
|
|
Cash received as compensation for insured assets
|
|
|
—
|
|
|
0.2
|
|
|
—
|
|
|
|
Investment in joint ventures and associates
|
14
|
|
(1.0
|
)
|
|
0.2
|
|
|
(4.2
|
)
|
|
|
Interest income received from joint ventures and associates
|
|
|
0.1
|
|
|
0.3
|
|
|
0.4
|
|
|
|
Net cash flows on purchase of businesses
|
25
|
|
(5.6
|
)
|
|
(0.3
|
)
|
|
—
|
|
|
|
Acquisition and disposal costs paid
|
|
|
(0.4
|
)
|
|
—
|
|
|
—
|
|
|
|
NET CASH FLOWS FROM INVESTING ACTIVITIES
|
|
|
(18.1
|
)
|
|
(15.1
|
)
|
|
(21.2
|
)
|
|
|
NET CASH FLOWS BEFORE FINANCING
|
|
|
27.1
|
|
|
14.1
|
|
|
31.6
|
|
|
|
CASH FLOWS FROM FINANCING ACTIVITIES
|
|
|
|
|
|
|
|
|
|||
|
Interest and similar finance costs paid on banking facilities
|
|
|
(1.9
|
)
|
|
(1.9
|
)
|
|
(1.7
|
)
|
|
|
Interest paid on Loan Notes
|
|
|
(4.3
|
)
|
|
(4.5
|
)
|
|
(4.9
|
)
|
|
|
Bank interest received
|
|
|
0.2
|
|
|
0.2
|
|
|
0.2
|
|
|
|
(Repayment) / draw down on banking facilities
|
|
|
(13.4
|
)
|
|
(8.5
|
)
|
|
9.6
|
|
|
|
Extension to long term debt—financing costs
|
|
|
(1.2
|
)
|
|
(0.2
|
)
|
|
—
|
|
|
|
Dividends paid
|
19
|
|
(13.3
|
)
|
|
(13.3
|
)
|
|
(10.8
|
)
|
|
|
ESOP cash movements
|
18
|
|
—
|
|
|
(1.0
|
)
|
|
0.1
|
|
|
|
Proceeds from issue of shares
|
|
|
—
|
|
|
—
|
|
|
0.2
|
|
|
|
Treasury shares cash movements
|
|
|
0.3
|
|
|
(6.3
|
)
|
|
(1.9
|
)
|
|
|
NET CASH FLOWS FROM FINANCING ACTIVITIES
|
|
|
(33.6
|
)
|
|
(35.5
|
)
|
|
(9.2
|
)
|
|
|
NET (DECREASE) / INCREASE IN CASH AND CASH EQUIVALENTS
|
|
|
(6.5
|
)
|
|
(21.4
|
)
|
|
22.4
|
|
|
|
Net foreign exchange differences
|
|
|
2.0
|
|
|
(1.9
|
)
|
|
(0.1
|
)
|
|
|
Net cash and cash equivalents at January 1
|
17
|
|
13.6
|
|
|
36.9
|
|
|
14.6
|
|
|
|
Net cash and cash equivalents at December 31
|
17
|
|
9.1
|
|
|
13.6
|
|
|
36.9
|
|
|
|
|
Equity attributable to the equity shareholders of the parent
|
|
||||||||||||||||||||||||
|
|
|
|
Ordinary
share
capital
|
|
Deferred
share
capital
|
|
Share
premium
account
|
|
Treasury
shares
|
|
Retained
earnings
|
|
Own shares
held
by ESOP
|
|
Other Reserves
(1)
|
|
Total
equity
|
|
||||||||
|
|
Note
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
||||||||
|
At January 1, 2015
|
|
|
25.3
|
|
|
150.9
|
|
|
56.2
|
|
|
—
|
|
|
308.8
|
|
|
(0.4
|
)
|
|
(365.4
|
)
|
|
175.4
|
|
|
|
Net income for the year
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
16.1
|
|
|
—
|
|
|
—
|
|
|
16.1
|
|
|
|
Currency translation differences
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(8.6
|
)
|
|
(8.6
|
)
|
|
|
Increase in fair value of cash flow hedges
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(5.4
|
)
|
|
(5.4
|
)
|
|
|
Transfer to consolidated income statement on cash flow hedges
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(0.1
|
)
|
|
(0.1
|
)
|
|
|
Remeasurement of defined benefit retirement plans
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
4.4
|
|
|
—
|
|
|
—
|
|
|
4.4
|
|
|
|
Deferred income taxes on items taken to other comprehensive income
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(1.5
|
)
|
|
—
|
|
|
1.1
|
|
|
(0.4
|
)
|
|
|
Total comprehensive income for the year
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
19.0
|
|
|
—
|
|
|
(13.0
|
)
|
|
6.0
|
|
|
|
Equity dividends
|
19
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(10.8
|
)
|
|
—
|
|
|
—
|
|
|
(10.8
|
)
|
|
|
Equity settled share based compensation charges
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
0.9
|
|
|
0.9
|
|
|
|
Arising from issue of share capital
|
18
|
|
—
|
|
|
—
|
|
|
0.2
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
0.2
|
|
|
|
Purchase of own shares
|
18
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(1.9
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(1.9
|
)
|
|
|
Purchase of shares from ESOP
|
18
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
0.1
|
|
|
—
|
|
|
0.1
|
|
|
|
Utilization of treasury shares
|
18
|
|
—
|
|
|
—
|
|
|
—
|
|
|
0.6
|
|
|
(0.1
|
)
|
|
—
|
|
|
(0.5
|
)
|
|
—
|
|
|
|
Deferred income taxes on items taken to equity
|
23
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(0.3
|
)
|
|
—
|
|
|
—
|
|
|
(0.3
|
)
|
|
|
Exchange movement on ESOP
|
18
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
0.1
|
|
|
—
|
|
|
0.1
|
|
|
|
Other changes in equity in the year
|
|
|
—
|
|
|
—
|
|
|
0.2
|
|
|
(1.3
|
)
|
|
(11.2
|
)
|
|
0.2
|
|
|
0.4
|
|
|
(11.7
|
)
|
|
|
At December 31, 2015
|
|
|
25.3
|
|
|
150.9
|
|
|
56.4
|
|
|
(1.3
|
)
|
|
316.6
|
|
|
(0.2
|
)
|
|
(378.0
|
)
|
|
169.7
|
|
|
|
Net income for the year
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
21.9
|
|
|
—
|
|
|
—
|
|
|
21.9
|
|
|
|
Currency translation differences
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(13.1
|
)
|
|
(13.1
|
)
|
|
|
Increase in fair value of cash flow hedges
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
1.1
|
|
|
1.1
|
|
|
|
Transfer to consolidated income statement on cash flow hedges
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(0.9
|
)
|
|
(0.9
|
)
|
|
|
Remeasurement of defined benefit retirement plans
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(21.7
|
)
|
|
—
|
|
|
—
|
|
|
(21.7
|
)
|
|
|
Deferred income taxes on items taken to other comprehensive income
|
23
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
4.3
|
|
|
—
|
|
|
—
|
|
|
4.3
|
|
|
|
Total comprehensive income for the year
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
4.5
|
|
|
—
|
|
|
(12.9
|
)
|
|
(8.4
|
)
|
|
|
Equity dividends
|
19
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(13.3
|
)
|
|
—
|
|
|
—
|
|
|
(13.3
|
)
|
|
|
Equity settled share based compensation charges
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
1.2
|
|
|
1.2
|
|
|
|
Purchase of own shares
|
18
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(6.3
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(6.3
|
)
|
|
|
Purchase of shares into ESOP
|
18
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(1.0
|
)
|
|
—
|
|
|
(1.0
|
)
|
|
|
Utilization of treasury shares
|
18
|
|
—
|
|
|
—
|
|
|
—
|
|
|
0.5
|
|
|
0.1
|
|
|
—
|
|
|
(0.6
|
)
|
|
—
|
|
|
|
Utilization of shares from ESOP
|
18
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
0.2
|
|
|
0.7
|
|
|
(0.9
|
)
|
|
—
|
|
|
|
Other changes in equity in the year
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(5.8
|
)
|
|
(13.0
|
)
|
|
(0.3
|
)
|
|
(0.3
|
)
|
|
(19.4
|
)
|
|
|
At December 31, 2016
|
|
|
25.3
|
|
|
150.9
|
|
|
56.4
|
|
|
(7.1
|
)
|
|
308.1
|
|
|
(0.5
|
)
|
|
(391.2
|
)
|
|
141.9
|
|
|
|
Net income for the year
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
11.5
|
|
|
—
|
|
|
—
|
|
|
11.5
|
|
|
|
Currency translation differences
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
11.6
|
|
|
11.6
|
|
|
|
Increase in fair value of cash flow hedges
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
3.1
|
|
|
3.1
|
|
|
|
Transfer to consolidated income statement on cash flow hedges
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
0.6
|
|
|
0.6
|
|
|
|
Remeasurement of defined benefit retirement plans
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
9.5
|
|
|
—
|
|
|
—
|
|
|
9.5
|
|
|
|
Deferred income taxes on items taken to other comprehensive income
|
23
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(5.2
|
)
|
|
—
|
|
|
(0.6
|
)
|
|
(5.8
|
)
|
|
|
Total comprehensive income for the year
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
15.8
|
|
|
—
|
|
|
14.7
|
|
|
30.5
|
|
|
|
Equity dividends
|
19
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(13.3
|
)
|
|
—
|
|
|
—
|
|
|
(13.3
|
)
|
|
|
Equity settled share based compensation charges
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
2.6
|
|
|
2.6
|
|
|
|
Purchase of shares into ESOP
|
18
|
|
—
|
|
|
—
|
|
|
—
|
|
|
0.8
|
|
|
—
|
|
|
(0.8
|
)
|
|
—
|
|
|
—
|
|
|
|
Utilization of treasury shares
|
18
|
|
—
|
|
|
—
|
|
|
—
|
|
|
0.5
|
|
|
0.1
|
|
|
—
|
|
|
(0.6
|
)
|
|
—
|
|
|
|
Utilization of shares from ESOP
|
18
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
0.1
|
|
|
0.3
|
|
|
(0.4
|
)
|
|
—
|
|
|
|
Deferred income taxes on items taken to equity
|
23
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
0.6
|
|
|
—
|
|
|
—
|
|
|
0.6
|
|
|
|
Other changes in equity in the year
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
1.3
|
|
|
(12.5
|
)
|
|
(0.5
|
)
|
|
1.6
|
|
|
(10.1
|
)
|
|
|
At December 31, 2017
|
|
|
25.3
|
|
|
150.9
|
|
|
56.4
|
|
|
(5.8
|
)
|
|
311.4
|
|
|
(1.0
|
)
|
|
(374.9
|
)
|
|
162.3
|
|
|
(1)
|
Other reserves include a hedging reserve of a loss of
$0.2 million
(
2016
: a loss of
$3.3 million
and
2015
: a loss of
$3.5 million
), a translation reserve of
$46.3 million
(
2016
:
$57.9 million
and
2015
:
$44.8 million
), a merger reserve of
$333.8 million
(
2016
and
2015
:
$333.8 million
) and a share based compensation reserve of
$5.4 million
(
2016
:
$3.8 million
and
2015
:
$4.1 million
).
|
1.
|
Accounting policies
|
|
Technology and patents
|
14 – 20 years
|
|
|
Tradenames and trademarks
|
20 – 25 years
|
|
|
Customer relationships
|
10 – 15 years
|
|
|
Backlogs and non-compete agreements
|
5 – 6 years
|
|
|
Development costs
|
5 – 10 years
|
|
|
Software
|
4 – 7 years
|
|
•
|
The significant risks and rewards of ownership of the goods have been transferred to the buyer;
|
•
|
The Group retain neither continuing managerial involvement to the degree usually associated with ownership nor effective control over the goods sold;
|
•
|
The amount of revenue can be reliably measured;
|
•
|
It is probable that future economic benefits will flow to the entity; and
|
•
|
The costs incurred or to be incurred in respect of the transaction can be measured reliably.
|
|
Freehold buildings
|
3% – 10%
|
|
|
Leasehold land and buildings
|
The lesser of life of lease or freehold rate
|
|
|
Plant and equipment
|
4% – 30%
|
|
|
Including:
|
|
|
|
Heavy production equipment (including casting, rolling, extrusion and press equipment)
|
4% – 6%
|
|
|
Chemical production plant and robotics
|
10% – 15%
|
|
|
Other production machinery
|
10% – 20%
|
|
|
Furniture, fittings, storage and equipment
|
10% – 30%
|
|
•
|
Restructuring of the activities of the Group and reversals of any provisions for the costs of restructuring;
|
•
|
write-downs of inventories to net realizable value or of property, plant and equipment to recoverable amount, as well as reversals of such write-downs;
|
•
|
disposals of items of property, plant and equipment;
|
•
|
disposals of investments and subsidiaries;
|
•
|
discontinued operations;
|
•
|
litigation settlements; and
|
•
|
other material reversals of provisions.
|
|
International Financial Reporting Standards
|
Effective date
|
|
||
|
IAS 7
|
Statement of cash flows (Amendments)
|
January 1, 2017
|
|
|
|
IAS 12
|
Income taxes (Amendments)
|
January 1, 2017
|
|
|
International Financial Reporting Standards
|
Mandatory effective date
|
|
||
|
IFRS 2
|
Share based payments (Amendments)
|
No earlier than January 1, 2018
|
|
|
|
IFRS 15
|
Revenue from Contracts with Customers
|
No earlier than January 1, 2018
|
|
|
|
IFRS 9
|
Financial Instruments
|
No earlier than January 1, 2018
|
|
|
|
IFRS 16
|
Leases
|
No earlier than January 1, 2019
|
|
•
|
IFRS 15—A five step approach will be taken in respect to recognizing revenue. Having undertaken a detailed review of our material revenue streams within the Group, revenue will continue to be recognized over the same profile as currently under IAS 18 and therefore there will be no change to the timing of revenue recognition. Incremental and contract fulfillment costs will need to be assessed on an ongoing basis, but at present there are no applicable costs. As a result there is not expected to be any material difference in our reported revenue numbers under IFRS 15 compared to what is currently reported under IAS 18;
|
•
|
IFRS 9—Financial assets will continue to be classified and measured at amortized cost under IFRS 9. The directors anticipate that the timing of the recognition of impairments will change rather than the size of the balance. Foreign currency exchange contracts should not be impacted although the ability to hedge component parts of the commodity hedges should allow us to decrease the risk of ineffectiveness; and
|
•
|
IFRS 16—Currently disclosed operating leases would be brought on to the balance sheet, with an offsetting liability and a depreciation charge and a finance charge would replace the lease expense charge to operating income, with the latter going through finance costs. The current level of operating lease commitments is disclosed in Note 26. These will be included within the balance sheet at a discounted amount, once the standard is adopted. These leases relate to company cars, real property leases and other vehicles. Low value assets (less than $5,000) and short-term (less than twelve months) leases do not need to be brought onto the balance sheet in the same way and can continue to be expensed through the income statement in line with current IAS 17 treatment. An assessment will also need to be carried out for any implicit leases which we have within any of our contracts.
|
2.
|
Revenue and segmental analysis
|
|
|
Gas
Cylinders
|
|
Elektron
|
|
Unallocated
|
|
Total
Continuing
Activities
|
|
||||
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
||||
|
Revenue
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Segment revenue
|
220.2
|
|
|
221.6
|
|
|
—
|
|
|
441.8
|
|
|
|
Inter-segment revenue
|
—
|
|
|
(0.5
|
)
|
|
—
|
|
|
(0.5
|
)
|
|
|
Revenue to external customers
|
220.2
|
|
|
221.1
|
|
|
—
|
|
|
441.3
|
|
|
|
Result
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adjusted EBITDA
|
17.3
|
|
|
44.5
|
|
|
—
|
|
|
61.8
|
|
|
|
Other share based compensation charges
|
(1.0
|
)
|
|
(1.2
|
)
|
|
—
|
|
|
(2.2
|
)
|
|
|
Loss on disposal of property, plant and equipment
|
—
|
|
|
(0.1
|
)
|
|
—
|
|
|
(0.1
|
)
|
|
|
Depreciation and amortization
|
(7.6
|
)
|
|
(11.4
|
)
|
|
—
|
|
|
(19.0
|
)
|
|
|
Trading profit—segment result
|
8.7
|
|
|
31.8
|
|
|
—
|
|
|
40.5
|
|
|
|
Profit on sale of redundant site
|
—
|
|
|
—
|
|
|
0.4
|
|
|
0.4
|
|
|
|
Restructuring and other expense (Note 5)
|
(6.6
|
)
|
|
(12.7
|
)
|
|
(2.3
|
)
|
|
(21.6
|
)
|
|
|
Operating profit
|
2.1
|
|
|
19.1
|
|
|
(1.9
|
)
|
|
19.3
|
|
|
|
Acquisitions and disposals (Note 5)
|
—
|
|
|
1.3
|
|
|
—
|
|
|
1.3
|
|
|
|
Net interest costs
|
—
|
|
|
—
|
|
|
(6.7
|
)
|
|
(6.7
|
)
|
|
|
IAS 19R retirement benefits finance charge
|
—
|
|
|
—
|
|
|
(1.8
|
)
|
|
(1.8
|
)
|
|
|
Unwind of discount on deferred contingent consideration from acquisitions
|
—
|
|
|
(0.2
|
)
|
|
—
|
|
|
(0.2
|
)
|
|
|
Profit / (loss) on operations before taxation
|
2.1
|
|
|
20.2
|
|
|
(10.4
|
)
|
|
11.9
|
|
|
|
Tax expense
|
|
|
|
|
|
|
|
|
(0.4
|
)
|
|
|
|
Net income for the year
|
|
|
|
|
|
|
|
|
|
11.5
|
|
|
|
Other segment information
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Segment assets
|
150.5
|
|
|
207.6
|
|
|
44.5
|
|
|
402.6
|
|
|
|
Segment liabilities
|
(22.6
|
)
|
|
(22.3
|
)
|
|
(195.4
|
)
|
|
(240.3
|
)
|
|
|
Net assets / (liabilities) employed
(2)
|
127.9
|
|
|
185.3
|
|
|
(150.9
|
)
|
|
162.3
|
|
|
|
Capital expenditure: Property, plant and equipment
|
3.5
|
|
|
5.7
|
|
|
—
|
|
|
9.2
|
|
|
|
Capital expenditure: Intangible assets
|
1.4
|
|
|
0.3
|
|
|
—
|
|
|
1.7
|
|
|
|
|
Gas
Cylinders
|
|
Elektron
|
|
Unallocated
|
|
Total
Continuing
Activities
|
|
||||
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
||||
|
Revenue
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Segment revenue
|
225.8
|
|
|
189.1
|
|
|
—
|
|
|
414.9
|
|
|
|
Inter-segment revenue
|
—
|
|
|
(0.1
|
)
|
|
—
|
|
|
(0.1
|
)
|
|
|
Revenue to external customers
|
225.8
|
|
|
189.0
|
|
|
—
|
|
|
414.8
|
|
|
|
Result
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adjusted EBITDA
|
19.7
|
|
|
35.6
|
|
|
—
|
|
|
55.3
|
|
|
|
Other share based compensation charges
|
(0.6
|
)
|
|
(0.8
|
)
|
|
—
|
|
|
(1.4
|
)
|
|
|
Loss on disposal of property, plant and equipment
|
(0.1
|
)
|
|
(0.1
|
)
|
|
—
|
|
|
(0.2
|
)
|
|
|
Depreciation and amortization
|
(7.6
|
)
|
|
(10.8
|
)
|
|
—
|
|
|
(18.4
|
)
|
|
|
Trading profit—segment result
|
11.4
|
|
|
23.9
|
|
|
—
|
|
|
35.3
|
|
|
|
Profit on sale of redundant site
|
—
|
|
|
—
|
|
|
2.1
|
|
|
2.1
|
|
|
|
Changes to defined benefit pension plans (Note 5)
|
—
|
|
|
—
|
|
|
0.6
|
|
|
0.6
|
|
|
|
Restructuring and other expense (Note 5)
|
—
|
|
|
(2.2
|
)
|
|
—
|
|
|
(2.2
|
)
|
|
|
Operating profit
|
11.4
|
|
|
21.7
|
|
|
2.7
|
|
|
35.8
|
|
|
|
Acquisitions and disposals (Note 5)
|
—
|
|
|
0.2
|
|
|
—
|
|
|
0.2
|
|
|
|
Net interest costs
|
—
|
|
|
—
|
|
|
(5.6
|
)
|
|
(5.6
|
)
|
|
|
IAS 19R retirement benefits finance charge
|
—
|
|
|
—
|
|
|
(2.1
|
)
|
|
(2.1
|
)
|
|
|
Unwind of discount on deferred contingent consideration from acquisitions
|
—
|
|
|
(0.4
|
)
|
|
—
|
|
|
(0.4
|
)
|
|
|
Profit / (loss) on operations before taxation
|
11.4
|
|
|
21.5
|
|
|
(5.0
|
)
|
|
27.9
|
|
|
|
Tax expense
|
|
|
|
|
|
|
|
|
(6.0
|
)
|
|
|
|
Net income for the year
|
|
|
|
|
|
|
|
|
|
21.9
|
|
|
|
Other segment information
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Segment assets
|
146.8
|
|
|
190.6
|
|
|
54.1
|
|
|
391.5
|
|
|
|
Segment liabilities
|
(21.7
|
)
|
|
(14.2
|
)
|
|
(213.7
|
)
|
|
(249.6
|
)
|
|
|
Net assets / (liabilities) employed
(2)
|
125.1
|
|
|
176.4
|
|
|
(159.6
|
)
|
|
141.9
|
|
|
|
Capital expenditure: Property, plant and equipment
|
6.5
|
|
|
10.0
|
|
|
—
|
|
|
16.5
|
|
|
|
Capital expenditure: Intangible assets
|
1.5
|
|
|
0.9
|
|
|
—
|
|
|
2.4
|
|
|
|
|
Gas
Cylinders
|
|
Elektron
|
|
Unallocated
|
|
Total
Continuing
Activities
|
|
||||
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
||||
|
Revenue
|
|
|
|
|
|
|
|
|
||||
|
Segment revenue
|
239.1
|
|
|
221.8
|
|
|
—
|
|
|
460.9
|
|
|
|
Inter-segment revenue
|
—
|
|
|
(0.6
|
)
|
|
—
|
|
|
(0.6
|
)
|
|
|
Revenue to external customers
|
239.1
|
|
|
221.2
|
|
|
—
|
|
|
460.3
|
|
|
|
Result
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adjusted EBITDA
|
16.5
|
|
|
45.7
|
|
|
—
|
|
|
62.2
|
|
|
|
Other share based compensation charges
|
(0.7
|
)
|
|
(0.6
|
)
|
|
—
|
|
|
(1.3
|
)
|
|
|
Depreciation and amortization
|
(7.2
|
)
|
|
(11.4
|
)
|
|
—
|
|
|
(18.6
|
)
|
|
|
Trading profit—segment result
|
8.6
|
|
|
33.7
|
|
|
—
|
|
|
42.3
|
|
|
|
Changes to defined benefit pension plans (Note 5)
|
—
|
|
|
—
|
|
|
18.0
|
|
|
18.0
|
|
|
|
Restructuring and other expense (Note 5)
|
(21.9
|
)
|
|
(0.5
|
)
|
|
—
|
|
|
(22.4
|
)
|
|
|
Operating (loss)/profit
|
(13.3
|
)
|
|
33.2
|
|
|
18.0
|
|
|
37.9
|
|
|
|
Acquisitions and disposals (Note 5)
|
(0.2
|
)
|
|
—
|
|
|
(1.8
|
)
|
|
(2.0
|
)
|
|
|
Net interest costs
|
—
|
|
|
—
|
|
|
(6.9
|
)
|
|
(6.9
|
)
|
|
|
IAS 19R retirement benefits finance charge
|
—
|
|
|
—
|
|
|
(3.0
|
)
|
|
(3.0
|
)
|
|
|
Unwind of discount on deferred contingent consideration from acquisitions
|
—
|
|
|
(0.4
|
)
|
|
—
|
|
|
(0.4
|
)
|
|
|
(Loss)/profit on operations before taxation
|
(13.5
|
)
|
|
32.8
|
|
|
6.3
|
|
|
25.6
|
|
|
|
Tax expense
|
|
|
|
|
|
|
|
|
(9.5
|
)
|
|
|
|
Net income for the year
|
|
|
|
|
|
|
|
|
|
16.1
|
|
|
|
Other segment information
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Segment assets
|
158.3
|
|
|
208.5
|
|
|
68.9
|
|
|
435.7
|
|
|
|
Segment liabilities
|
(32.3
|
)
|
|
(21.4
|
)
|
|
(212.3
|
)
|
|
(266.0
|
)
|
|
|
Net assets/(liabilities) employed
(2)
|
126.0
|
|
|
187.1
|
|
|
(143.4
|
)
|
|
169.7
|
|
|
|
Capital expenditure: Property, plant and equipment
|
6.0
|
|
|
9.3
|
|
|
—
|
|
|
15.3
|
|
|
|
Capital expenditure: Intangible assets
|
1.2
|
|
|
0.9
|
|
|
—
|
|
|
2.1
|
|
|
|
|
United
Kingdom
|
|
Rest of
Europe
|
|
North
America
|
|
Australasia
|
|
Asia
|
|
Total
|
|
||||||
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
||||||
|
Revenue
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Segment revenue
|
162.6
|
|
|
48.6
|
|
|
275.9
|
|
|
0.1
|
|
|
2.7
|
|
|
489.9
|
|
|
|
Inter-segment revenue
|
(23.1
|
)
|
|
(1.5
|
)
|
|
(24.0
|
)
|
|
—
|
|
|
—
|
|
|
(48.6
|
)
|
|
|
Revenue to external customers
|
139.5
|
|
|
47.1
|
|
|
251.9
|
|
|
0.1
|
|
|
2.7
|
|
|
441.3
|
|
|
|
Result
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adjusted EBITDA
|
16.2
|
|
|
1.3
|
|
|
44.1
|
|
|
0.1
|
|
|
0.1
|
|
|
61.8
|
|
|
|
Other share based compensation charges
|
(1.4
|
)
|
|
—
|
|
|
(0.8
|
)
|
|
—
|
|
|
—
|
|
|
(2.2
|
)
|
|
|
Loss on disposal of property, plant and equipment
|
—
|
|
|
(0.1
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(0.1
|
)
|
|
|
Depreciation and amortization
|
(5.9
|
)
|
|
(2.4
|
)
|
|
(10.7
|
)
|
|
—
|
|
|
—
|
|
|
(19.0
|
)
|
|
|
Trading profit/(loss)—segment result
|
8.9
|
|
|
(1.2
|
)
|
|
32.6
|
|
|
0.1
|
|
|
0.1
|
|
|
40.5
|
|
|
|
Sale of redundant site
|
0.4
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
0.4
|
|
|
|
Restructuring and other expense (Note 5)
|
(14.4
|
)
|
|
(2.3
|
)
|
|
(4.9
|
)
|
|
—
|
|
|
—
|
|
|
(21.6
|
)
|
|
|
Operating (loss) / profit
|
(5.1
|
)
|
|
(3.5
|
)
|
|
27.7
|
|
|
0.1
|
|
|
0.1
|
|
|
19.3
|
|
|
|
Other geographical segment information
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-current assets
(1)
|
74.3
|
|
|
14.2
|
|
|
142.5
|
|
|
—
|
|
|
0.3
|
|
|
231.3
|
|
|
|
Net assets employed
(2)
|
10.0
|
|
|
30.7
|
|
|
118.8
|
|
|
—
|
|
|
2.8
|
|
|
162.3
|
|
|
|
Capital expenditure: Property, plant and equipment
|
4.4
|
|
|
0.7
|
|
|
4.1
|
|
|
—
|
|
|
—
|
|
|
9.2
|
|
|
|
Capital expenditure: Intangible assets
|
1.4
|
|
|
—
|
|
|
0.3
|
|
|
—
|
|
|
—
|
|
|
1.7
|
|
|
|
|
United
Kingdom
|
|
Rest of
Europe
|
|
North
America
|
|
Australasia
|
|
Asia
|
|
Total
|
|
||||||
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
||||||
|
Revenue
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
|
Segment revenue
|
142.6
|
|
|
39.1
|
|
|
282.5
|
|
|
0.1
|
|
|
3.4
|
|
|
467.7
|
|
|
|
Inter-segment revenue
|
(28.6
|
)
|
|
(1.6
|
)
|
|
(22.7
|
)
|
|
—
|
|
|
—
|
|
|
(52.9
|
)
|
|
|
Revenue to external customers
|
114.0
|
|
|
37.5
|
|
|
259.8
|
|
|
0.1
|
|
|
3.4
|
|
|
414.8
|
|
|
|
Result
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adjusted EBITDA
|
17.4
|
|
|
(0.4
|
)
|
|
37.8
|
|
|
0.1
|
|
|
0.4
|
|
|
55.3
|
|
|
|
Other share based compensation charges
|
(1.0
|
)
|
|
—
|
|
|
(0.4
|
)
|
|
—
|
|
|
—
|
|
|
(1.4
|
)
|
|
|
Loss on disposal of property, plant and equipment
|
—
|
|
|
(0.1
|
)
|
|
(0.1
|
)
|
|
—
|
|
|
—
|
|
|
(0.2
|
)
|
|
|
Depreciation and amortization
|
(5.7
|
)
|
|
(2.3
|
)
|
|
(10.3
|
)
|
|
—
|
|
|
(0.1
|
)
|
|
(18.4
|
)
|
|
|
Trading profit/(loss)—segment result
|
10.7
|
|
|
(2.8
|
)
|
|
27.0
|
|
|
0.1
|
|
|
0.3
|
|
|
35.3
|
|
|
|
Sale of redundant site
|
2.1
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
2.1
|
|
|
|
Changes to defined benefit pension plans
|
—
|
|
|
—
|
|
|
0.6
|
|
|
—
|
|
|
—
|
|
|
0.6
|
|
|
|
Restructuring and other expense (Note 5)
|
(0.6
|
)
|
|
—
|
|
|
(1.6
|
)
|
|
—
|
|
|
—
|
|
|
(2.2
|
)
|
|
|
Operating profit/(loss)
|
12.2
|
|
|
(2.8
|
)
|
|
26.0
|
|
|
0.1
|
|
|
0.3
|
|
|
35.8
|
|
|
|
Other geographical segment information
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-current assets
(1)
|
77.5
|
|
|
13.8
|
|
|
143.9
|
|
|
—
|
|
|
0.2
|
|
|
235.4
|
|
|
|
Net assets employed
(2)
|
6.9
|
|
|
19.7
|
|
|
112.3
|
|
|
0.3
|
|
|
2.7
|
|
|
141.9
|
|
|
|
Capital expenditure: Property, plant and equipment
|
6.7
|
|
|
1.2
|
|
|
8.6
|
|
|
—
|
|
|
—
|
|
|
16.5
|
|
|
|
Capital expenditure: Intangible assets
|
2.0
|
|
|
—
|
|
|
0.4
|
|
|
—
|
|
|
—
|
|
|
2.4
|
|
|
|
|
United
Kingdom
|
|
Rest of
Europe
|
|
North
America
|
|
Australasia
|
|
Asia
|
|
Total
|
|
||||||
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
||||||
|
Revenue
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
|
Segment revenue
|
145.0
|
|
|
62.4
|
|
|
299.6
|
|
|
0.1
|
|
|
3.9
|
|
|
511.0
|
|
|
|
Inter-segment revenue
|
(27.0
|
)
|
|
(2.9
|
)
|
|
(20.8
|
)
|
|
—
|
|
|
—
|
|
|
(50.7
|
)
|
|
|
Revenue to external customers
|
118.0
|
|
|
59.5
|
|
|
278.8
|
|
|
0.1
|
|
|
3.9
|
|
|
460.3
|
|
|
|
Result
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
|
Adjusted EBITDA
|
13.6
|
|
|
1.3
|
|
|
46.5
|
|
|
0.2
|
|
|
0.6
|
|
|
62.2
|
|
|
|
Other share based compensation charges
|
(1.0
|
)
|
|
—
|
|
|
(0.3
|
)
|
|
—
|
|
|
—
|
|
|
(1.3
|
)
|
|
|
Depreciation and amortization
|
(6.1
|
)
|
|
(2.3
|
)
|
|
(10.1
|
)
|
|
—
|
|
|
(0.1
|
)
|
|
(18.6
|
)
|
|
|
Trading profit/(loss)—segment result
|
6.5
|
|
|
(1.0
|
)
|
|
36.1
|
|
|
0.2
|
|
|
0.5
|
|
|
42.3
|
|
|
|
Changes to defined benefit pension plans
|
18.0
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
18.0
|
|
|
|
Restructuring and other expense (Note 5)
|
(8.0
|
)
|
|
(7.8
|
)
|
|
(6.6
|
)
|
|
—
|
|
|
—
|
|
|
(22.4
|
)
|
|
|
Operating profit/(loss)
|
16.5
|
|
|
(8.8
|
)
|
|
29.5
|
|
|
0.2
|
|
|
0.5
|
|
|
37.9
|
|
|
|
Other geographical segment information
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
|
Non-current assets
(1)
|
67.8
|
|
|
14.5
|
|
|
147.6
|
|
|
—
|
|
|
0.3
|
|
|
230.2
|
|
|
|
Net assets employed
(2)
|
19.7
|
|
|
23.7
|
|
|
122.6
|
|
|
0.3
|
|
|
3.4
|
|
|
169.7
|
|
|
|
Capital expenditure: Property, plant and equipment
|
5.5
|
|
|
1.4
|
|
|
8.4
|
|
|
—
|
|
|
—
|
|
|
15.3
|
|
|
|
Capital expenditure: Intangible assets
|
1.7
|
|
|
—
|
|
|
0.4
|
|
|
—
|
|
|
—
|
|
|
2.1
|
|
|
(1)
|
The Group's non-current assets analyzed by geographic origin include property, plant and equipment, intangible assets and investments.
|
(2)
|
Represents net assets employed—excluding inter-segment assets and liabilities.
|
|
|
United
Kingdom
|
|
Rest of
Europe
|
|
Africa
|
|
North
America
|
|
South
America
|
|
Asia
Pacific
|
|
Total
|
|
|||||||
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
|||||||
|
Revenue—Continuing activities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31, 2017
|
40.7
|
|
|
102.9
|
|
|
3.0
|
|
|
238.7
|
|
|
8.6
|
|
|
47.4
|
|
|
441.3
|
|
|
|
Year ended December 31, 2016
|
36.4
|
|
|
94.2
|
|
|
2.4
|
|
|
226.3
|
|
|
9.9
|
|
|
45.6
|
|
|
414.8
|
|
|
|
Year ended December 31, 2015
|
53.5
|
|
|
98.9
|
|
|
2.7
|
|
|
245.9
|
|
|
13.4
|
|
|
45.9
|
|
|
460.3
|
|
|
3.
|
Operating profit
|
|
|
2017
|
|
2016
|
|
2015
|
|
|||||
|
|
$M
|
|
$M
|
|
$M
|
|
|||||
|
Research and development expenditure charged to the consolidated income statement
|
6.9
|
|
|
5.5
|
|
|
5.8
|
|
|
||
|
Development capital expenditure included within non-current assets (Note 12)
|
0.9
|
|
|
2.1
|
|
|
2.5
|
|
|
||
|
Total research and development expenditure
|
7.8
|
|
|
7.6
|
|
|
8.3
|
|
|
||
|
Less development expenditure capitalized within non-current assets
|
(0.9
|
)
|
|
(2.1
|
)
|
|
(2.5
|
)
|
|
||
|
Net research and development
|
6.9
|
|
|
5.5
|
|
|
5.8
|
|
|
||
|
Depreciation of property, plant and equipment (Note 11)
|
16.7
|
|
|
16.7
|
|
|
16.6
|
|
|
||
|
Amortization of intangible assets (Note 12)
|
2.3
|
|
|
1.7
|
|
|
2.2
|
|
|
||
|
Loss on disposal of property, plant and equipment
|
0.1
|
|
|
0.2
|
|
|
—
|
|
|
||
|
Operating lease expense (Note 26)
|
5.1
|
|
|
4.8
|
|
|
5.6
|
|
|
||
|
Restructuring and other expense (Note 5)
|
21.6
|
|
—
|
|
2.2
|
|
—
|
|
22.4
|
|
|
|
Net foreign exchange gains
|
—
|
|
—
|
|
(0.7
|
)
|
|
(0.6
|
)
|
|
|
|
Staff costs (Note 6)
|
121.3
|
|
|
111.7
|
|
|
119.3
|
|
|
||
|
Cost of inventories recognized as expense
|
282.9
|
|
|
287.3
|
|
|
316.2
|
|
|
4.
|
Fees payable to auditors
|
|
|
|
2017
|
|
2016
|
|
2015
|
|
|||
|
|
|
$M
|
|
$M
|
|
$M
|
|
|||
|
Fees payable to auditors for the audit of the consolidated financial statements and its subsidiaries
|
|
1.3
|
|
|
1.1
|
|
|
1.1
|
|
|
|
Fees payable to auditors for non-audit services:
|
|
|
|
|
|
|
|
|||
|
Accounting advisory services
|
|
0.1
|
|
|
—
|
|
|
—
|
|
|
|
Total fees payable
|
|
1.4
|
|
|
1.1
|
|
|
1.1
|
|
|
5.
|
Other income/ (expense) items
|
|
|
|
2017
|
|
2016
|
|
2015
|
|
|
|
|
$M
|
|
$M
|
|
$M
|
|
|
Credited to operating profit:
|
|
|
|
|
|
|
|
|||
|
Profit on sale of redundant site
|
|
0.4
|
|
|
2.1
|
|
|
—
|
|
|
|
|
|
0.4
|
|
|
2.1
|
|
|
—
|
|
|
|
Credited to operating profit:
|
|
|
|
|
|
|
|
|||
|
Changes to defined benefit pension plans
|
|
—
|
|
|
0.6
|
|
|
18.0
|
|
|
|
|
|
—
|
|
|
0.6
|
|
|
18.0
|
|
|
|
Charged to operating profit:
|
|
|
|
|
|
|
|
|||
|
Rationalization of operations
|
|
(12.1
|
)
|
|
(0.4
|
)
|
|
(21.8
|
)
|
|
|
Patent infringement litigation costs
|
|
(3.5
|
)
|
|
(0.6
|
)
|
|
(0.5
|
)
|
|
|
Direct listing costs
|
|
(2.3
|
)
|
|
—
|
|
|
—
|
|
|
|
Non-current asset impairments
|
|
(3.7
|
)
|
|
—
|
|
|
—
|
|
|
|
Receivable impairment provision
|
|
—
|
|
|
(1.2
|
)
|
|
—
|
|
|
|
I.P.O. related share based compensation charges
|
|
—
|
|
|
—
|
|
|
(0.1
|
)
|
|
|
|
|
(21.6
|
)
|
|
(2.2
|
)
|
|
(22.4
|
)
|
|
|
(Charged)/credited to non-operating profit:
|
|
|
|
|
|
|
|
|||
|
Merger and acquisition costs
|
|
(0.9
|
)
|
|
(0.3
|
)
|
|
(2.0
|
)
|
|
|
Gain on bargain purchase
|
|
1.2
|
|
|
—
|
|
|
—
|
|
|
|
Remeasurement of deferred contingent consideration
|
|
1.0
|
|
|
0.5
|
|
|
—
|
|
|
|
|
|
1.3
|
|
|
0.2
|
|
|
(2.0
|
)
|
|
6.
|
Staff Costs
|
|
|
2017
|
|
2016
|
|
2015
|
|
|||
|
|
$M
|
|
$M
|
|
$M
|
|
|||
|
Wages and salaries
|
96.1
|
|
|
92.2
|
|
|
96.3
|
|
|
|
Social security costs
|
11.0
|
|
|
10.5
|
|
|
11.2
|
|
|
|
Retirement benefits costs
|
4.8
|
|
|
4.8
|
|
|
5.9
|
|
|
|
IAS 19R retirement benefits finance charge
|
1.8
|
|
|
2.1
|
|
|
3.0
|
|
|
|
Redundancy costs: Continuing activities
|
4.5
|
|
|
0.7
|
|
|
1.5
|
|
|
|
Share based compensation charges (Note 31)
|
3.1
|
|
|
1.4
|
|
|
1.4
|
|
|
|
|
121.3
|
|
|
111.7
|
|
|
119.3
|
|
|
6.
|
Staff Costs (continued)
|
|
|
2017
|
|
2016
|
|
2015
|
|
|||
|
|
$M
|
|
$M
|
|
$M
|
|
|||
|
Remuneration (short-term benefits)
|
2.0
|
|
|
1.5
|
|
|
1.7
|
|
|
|
Social security costs
|
0.3
|
|
|
0.2
|
|
|
0.2
|
|
|
|
Post-retirement benefits
|
0.2
|
|
|
0.1
|
|
|
0.2
|
|
|
|
Compensation for loss of office
|
0.3
|
|
|
—
|
|
|
—
|
|
|
|
Total short-term and post-retirement benefits
|
2.8
|
|
|
1.8
|
|
|
2.1
|
|
|
7.
|
Finance income
|
|
|
2017
|
|
2016
|
|
2015
|
|
|||
|
|
$M
|
|
$M
|
|
$M
|
|
|||
|
Bank interest received
|
0.2
|
|
|
0.2
|
|
|
0.2
|
|
|
|
Other interest received
|
0.3
|
|
|
0.3
|
|
|
0.3
|
|
|
|
Foreign exchange gains on financing activities
|
—
|
|
|
0.7
|
|
|
—
|
|
|
|
Total finance income
|
0.5
|
|
|
1.2
|
|
|
0.5
|
|
|
8.
|
Finance costs
|
|
|
2017
|
|
2016
|
|
2015
|
|
|||
|
|
$M
|
|
$M
|
|
$M
|
|
|||
|
Bank and other loan interest payable
|
6.3
|
|
|
6.3
|
|
|
6.5
|
|
|
|
Amortization of issue costs
|
0.6
|
|
|
0.5
|
|
|
0.9
|
|
|
|
Foreign exchange loss on financing activities
|
0.3
|
|
|
—
|
|
|
—
|
|
|
|
IAS 19R retirement benefits finance charge
|
1.8
|
|
|
2.1
|
|
|
3.0
|
|
|
|
Unwind of discount on deferred contingent consideration from acquisitions
|
0.2
|
|
|
0.4
|
|
|
0.4
|
|
|
|
Total finance costs
|
9.2
|
|
|
9.3
|
|
|
10.8
|
|
|
9.
|
Income taxes
|
(a)
|
Analysis of taxation charge for the year
|
|
|
2017
|
|
2016
|
|
2015
|
|
|||
|
|
$M
|
|
$M
|
|
$M
|
|
|||
|
Current income taxes:
|
|
|
|
|
|
|
|||
|
U.K. corporation tax
|
—
|
|
|
—
|
|
|
0.3
|
|
|
|
Adjustments in respect of previous years
|
(0.3
|
)
|
|
0.2
|
|
|
(0.4
|
)
|
|
|
|
(0.3
|
)
|
|
0.2
|
|
|
(0.1
|
)
|
|
|
Non-U.K. tax
|
6.3
|
|
|
3.5
|
|
|
7.2
|
|
|
|
Adjustments in respect of previous years
|
(0.8
|
)
|
|
—
|
|
|
(0.9
|
)
|
|
|
Total current tax charge
|
5.2
|
|
|
3.7
|
|
|
6.2
|
|
|
|
Deferred income taxes:
|
|
|
|
|
|
|
|
|
|
|
Origination and reversal of temporary differences
|
(5.3
|
)
|
|
2.1
|
|
|
2.7
|
|
|
|
Adjustments in respect of previous years
|
0.5
|
|
|
0.2
|
|
|
0.6
|
|
|
|
Total deferred income taxes (credit) / charge
|
(4.8
|
)
|
|
2.3
|
|
|
3.3
|
|
|
|
Tax on profit on operations
|
0.4
|
|
|
6.0
|
|
|
9.5
|
|
|
(b)
|
Factors affecting the taxation charge for the year
|
|
|
2017
|
|
2016
|
|
2015
|
|
|||
|
|
$M
|
|
$M
|
|
$M
|
|
|||
|
Profit on operations before taxation
|
11.9
|
|
|
27.9
|
|
|
25.6
|
|
|
|
Profit on operations at 2017 standard rate of corporation tax in the U.K. of 19.25% (2016: 20% and 2015: 20.25%)
|
2.3
|
|
|
5.6
|
|
|
5.2
|
|
|
|
Effects of:
|
|
|
|
|
|
|
|
|
|
|
(Income not taxable) / non-deductible expenses
|
0.1
|
|
|
0.2
|
|
|
2.4
|
|
|
|
Unprovided deferred income taxes
|
0.3
|
|
|
(2.9
|
)
|
|
—
|
|
|
|
Foreign tax rate differences
|
4.3
|
|
|
2.7
|
|
|
2.6
|
|
|
|
Effect of U.S. tax reform
|
(6.0
|
)
|
|
—
|
|
|
—
|
|
|
|
Adjustment in respect of previous years
|
(0.6
|
)
|
|
0.4
|
|
|
(0.7
|
)
|
|
|
Tax expense
|
0.4
|
|
|
6.0
|
|
|
9.5
|
|
|
(c)
|
Factors that may affect future taxation charge
|
|
|
2017
|
|
2016
|
|
2015
|
|
||||||
|
|
$M
|
|
$M
|
|
$M
|
|
||||||
|
Basic earnings:
|
|
|
|
|
|
|
||||||
|
Net income
|
11.5
|
|
|
21.9
|
|
|
16.1
|
|
|
|||
|
Adjusted earnings:
|
|
|
|
|
|
|
||||||
|
Accounting charges relating to acquisitions and disposals of businesses
|
|
|
|
|
|
|
||||||
|
Unwind of discount on deferred contingent consideration from acquisitions
|
0.2
|
|
|
0.4
|
|
|
0.4
|
|
|
|||
|
Acquisitions and disposals (Note 5)
|
(1.3
|
)
|
|
(0.2
|
)
|
|
2.0
|
|
|
|||
|
Amortization on acquired intangibles
|
1.2
|
|
|
1.0
|
|
|
1.4
|
|
|
|||
|
IAS 19R retirement benefits finance charge
|
1.8
|
|
|
2.1
|
|
|
3.0
|
|
|
|||
|
Profit on sale of redundant site (Note 5)
|
(0.4
|
)
|
|
(2.1
|
)
|
|
—
|
|
|
|||
|
Changes to defined benefit pension plans (Note 5)
|
—
|
|
|
(0.6
|
)
|
|
(18.0
|
)
|
|
|||
|
Restructuring and other expense (Note 5)
|
21.6
|
|
|
2.2
|
|
|
22.4
|
|
|
|||
|
Other share based compensation charges
|
2.2
|
|
|
1.4
|
|
|
1.3
|
|
|
|||
|
Impact from U.S. tax reform
|
(6.0
|
)
|
|
—
|
|
|
—
|
|
|
|||
|
Income tax thereon
|
(3.2
|
)
|
|
(1.4
|
)
|
|
0.9
|
|
|
|||
|
Adjusted net income
|
27.6
|
|
|
24.7
|
|
|
29.5
|
|
|
|||
|
Weighted average number of £0.50 ordinary shares:
|
|
|
|
|
|
|
||||||
|
For basic earnings per share
|
26,460,947
|
|
|
26,443,662
|
|
|
26,918,987
|
|
|
|||
|
Exercise of share options
|
541,223
|
|
|
270,997
|
|
|
453,736
|
|
|
|||
|
For diluted earnings per share
|
27,002,170
|
|
|
26,714,659
|
|
|
27,372,723
|
|
|
|||
|
Earnings per share using weighted average number of ordinary shares outstanding:
|
|
|
|
|
|
|
||||||
|
Basic
|
|
|
|
|
|
|
||||||
|
Adjusted
|
$
|
1.04
|
|
|
$
|
0.93
|
|
|
$
|
1.10
|
|
|
|
Unadjusted
|
$
|
0.43
|
|
|
$
|
0.83
|
|
|
$
|
0.60
|
|
|
|
Diluted
|
|
|
|
|
|
|
||||||
|
Adjusted
|
$
|
1.02
|
|
|
$
|
0.92
|
|
|
$
|
1.08
|
|
|
|
Unadjusted
|
$
|
0.43
|
|
|
$
|
0.82
|
|
|
$
|
0.59
|
|
|
11.
|
Property, plant and equipment
|
|
|
Freehold
|
|
Long
leasehold
|
|
Short
leasehold
|
|
Plant and
equipment
|
|
Total
|
|
|||||
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
|||||
|
Cost:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At January 1, 2016
|
56.1
|
|
|
6.4
|
|
|
10.3
|
|
|
314.6
|
|
|
387.4
|
|
|
|
Additions
|
1.9
|
|
|
0.6
|
|
|
0.5
|
|
|
13.5
|
|
|
16.5
|
|
|
|
Disposals
|
(3.8
|
)
|
|
—
|
|
|
—
|
|
|
(23.0
|
)
|
|
(26.8
|
)
|
|
|
Transfers
|
3.8
|
|
|
(0.2
|
)
|
|
—
|
|
|
(3.6
|
)
|
|
—
|
|
|
|
Exchange difference
|
(1.6
|
)
|
|
(0.9
|
)
|
|
(0.3
|
)
|
|
(25.3
|
)
|
|
(28.1
|
)
|
|
|
At December 31, 2016
|
56.4
|
|
|
5.9
|
|
|
10.5
|
|
|
276.2
|
|
|
349.0
|
|
|
|
Additions
|
0.9
|
|
|
0.3
|
|
|
0.9
|
|
|
7.1
|
|
|
9.2
|
|
|
|
Acquired via acquisition
|
2.0
|
|
|
—
|
|
|
—
|
|
|
3.2
|
|
|
5.2
|
|
|
|
Disposals
|
(0.1
|
)
|
|
(0.1
|
)
|
|
—
|
|
|
(4.7
|
)
|
|
(4.9
|
)
|
|
|
Exchange difference
|
3.2
|
|
|
0.1
|
|
|
0.8
|
|
|
14.2
|
|
|
18.3
|
|
|
|
At December 31, 2017
|
62.4
|
|
|
6.2
|
|
|
12.2
|
|
|
296.0
|
|
|
376.8
|
|
|
|
Accumulated depreciation and impairment:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At January 1, 2016
|
20.1
|
|
|
3.9
|
|
|
4.7
|
|
|
222.7
|
|
|
251.4
|
|
|
|
Provided during the year
|
2.0
|
|
|
0.3
|
|
|
0.8
|
|
|
13.6
|
|
|
16.7
|
|
|
|
Disposals
|
(2.8
|
)
|
|
—
|
|
|
—
|
|
|
(22.8
|
)
|
|
(25.6
|
)
|
|
|
Transfers
|
7.9
|
|
|
(0.5
|
)
|
|
0.2
|
|
|
(7.6
|
)
|
|
—
|
|
|
|
Exchange difference
|
(0.6
|
)
|
|
(0.6
|
)
|
|
(0.2
|
)
|
|
(20.0
|
)
|
|
(21.4
|
)
|
|
|
At December 31, 2016
|
26.6
|
|
|
3.1
|
|
|
5.5
|
|
|
185.9
|
|
|
221.1
|
|
|
|
Provided during the year
|
2.2
|
|
|
0.3
|
|
|
0.9
|
|
|
13.3
|
|
|
16.7
|
|
|
|
Disposals
|
(0.1
|
)
|
|
(0.1
|
)
|
|
—
|
|
|
(4.5
|
)
|
|
(4.7
|
)
|
|
|
Impairment
|
2.5
|
|
|
—
|
|
|
—
|
|
|
2.5
|
|
|
5.0
|
|
|
|
Exchange difference
|
1.3
|
|
|
0.2
|
|
|
0.3
|
|
|
11.4
|
|
|
13.2
|
|
|
|
At December 31, 2017
|
32.5
|
|
|
3.5
|
|
|
6.7
|
|
|
208.6
|
|
|
251.3
|
|
|
|
Net book values:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At December 31, 2017
|
29.9
|
|
|
2.7
|
|
|
5.5
|
|
|
87.4
|
|
|
125.5
|
|
|
|
At December 31, 2016
|
29.8
|
|
|
2.8
|
|
|
5.0
|
|
|
90.3
|
|
|
127.9
|
|
|
|
At January 1, 2016
|
36.0
|
|
|
2.5
|
|
|
5.6
|
|
|
91.9
|
|
|
136.0
|
|
|
12.
|
Intangible assets
|
|
|
Goodwill
|
|
Customer
related
|
|
Technology
and trading
related
|
|
Development
costs
|
|
Software
|
|
Total
|
|
||||||
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
||||||
|
Cost:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At January 1, 2016
|
83.4
|
|
|
13.4
|
|
|
9.3
|
|
|
4.0
|
|
|
3.5
|
|
|
113.6
|
|
|
|
Additions
|
0.1
|
|
|
0.1
|
|
|
—
|
|
|
2.4
|
|
|
0.1
|
|
|
2.7
|
|
|
|
Disposals
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(0.6
|
)
|
|
(0.6
|
)
|
|
|
Exchange difference
|
(8.2
|
)
|
|
—
|
|
|
(1.3
|
)
|
|
(0.4
|
)
|
|
(0.3
|
)
|
|
(10.2
|
)
|
|
|
At December 31, 2016
|
75.3
|
|
|
13.5
|
|
|
8.0
|
|
|
6.0
|
|
|
2.7
|
|
|
105.5
|
|
|
|
Additions
|
—
|
|
|
—
|
|
|
—
|
|
|
0.9
|
|
|
0.8
|
|
|
1.7
|
|
|
|
Disposals
|
—
|
|
|
(0.1
|
)
|
|
—
|
|
|
—
|
|
|
(0.4
|
)
|
|
(0.5
|
)
|
|
|
Exchange difference
|
4.1
|
|
|
—
|
|
|
0.6
|
|
|
0.5
|
|
|
0.3
|
|
|
5.5
|
|
|
|
At December 31, 2017
|
79.4
|
|
|
13.4
|
|
|
8.6
|
|
|
7.4
|
|
|
3.4
|
|
|
112.2
|
|
|
|
Accumulated amortization and impairment:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At January 1, 2016
|
21.2
|
|
|
1.5
|
|
|
1.8
|
|
|
0.1
|
|
|
2.0
|
|
|
26.6
|
|
|
|
Provided during the year
|
—
|
|
|
0.7
|
|
|
0.4
|
|
|
0.3
|
|
|
0.3
|
|
|
1.7
|
|
|
|
Disposals
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(0.3
|
)
|
|
(0.3
|
)
|
|
|
Exchange difference
|
(2.8
|
)
|
|
(0.1
|
)
|
|
(0.3
|
)
|
|
0.1
|
|
|
—
|
|
|
(3.1
|
)
|
|
|
At December 31, 2016
|
18.4
|
|
|
2.1
|
|
|
1.9
|
|
|
0.5
|
|
|
2.0
|
|
|
24.9
|
|
|
|
Provided during the year
|
—
|
|
|
0.9
|
|
|
0.4
|
|
|
0.7
|
|
|
0.3
|
|
|
2.3
|
|
|
|
Disposals
|
—
|
|
|
(0.1
|
)
|
|
—
|
|
|
—
|
|
|
(0.4
|
)
|
|
(0.5
|
)
|
|
|
Impairment
|
—
|
|
|
—
|
|
|
0.5
|
|
|
1.5
|
|
|
—
|
|
|
2.0
|
|
|
|
Exchange difference
|
1.4
|
|
|
—
|
|
|
0.2
|
|
|
0.1
|
|
|
0.1
|
|
|
1.8
|
|
|
|
At December 31, 2017
|
19.8
|
|
|
2.9
|
|
|
3.0
|
|
|
2.8
|
|
|
2.0
|
|
|
30.5
|
|
|
|
Net book values:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At December 31, 2017
|
59.6
|
|
|
10.5
|
|
|
5.6
|
|
|
4.6
|
|
|
1.4
|
|
|
81.7
|
|
|
|
At December 31, 2016
|
56.9
|
|
|
11.4
|
|
|
6.1
|
|
|
5.5
|
|
|
0.7
|
|
|
80.6
|
|
|
|
At January 1, 2016
|
62.2
|
|
|
11.9
|
|
|
7.5
|
|
|
3.9
|
|
|
1.5
|
|
|
87.0
|
|
|
13.
|
Impairment of goodwill
|
|
|
Gas Cylinders
Division
|
|
Elektron
Division
|
|
Total
|
|
|||
|
|
$M
|
|
$M
|
|
$M
|
|
|||
|
At January 1, 2016
|
22.3
|
|
|
39.9
|
|
|
62.2
|
|
|
|
Additions
|
—
|
|
|
0.1
|
|
|
0.1
|
|
|
|
Exchange difference
|
(3.4
|
)
|
|
(2.0
|
)
|
|
(5.4
|
)
|
|
|
At December 31, 2016
|
18.9
|
|
|
38.0
|
|
|
56.9
|
|
|
|
Exchange difference
|
1.6
|
|
|
1.1
|
|
|
2.7
|
|
|
|
At December 31, 2017
|
20.5
|
|
|
39.1
|
|
|
59.6
|
|
|
|
|
Shares in joint ventures
|
|
Loans to joint ventures and associates
|
|
Total
|
|
|||
|
|
$M
|
|
$M
|
|
$M
|
|
|||
|
At January 1, 2016
|
2.4
|
|
|
4.8
|
|
|
7.2
|
|
|
|
Debt funding
|
—
|
|
|
(1.0
|
)
|
|
(1.0
|
)
|
|
|
Transfer from trade receivables
|
—
|
|
|
3.7
|
|
|
3.7
|
|
|
|
Share of results
|
0.5
|
|
|
—
|
|
|
0.5
|
|
|
|
Exchange difference
|
(0.2
|
)
|
|
(0.2
|
)
|
|
(0.4
|
)
|
|
|
At December 31, 2016
|
2.7
|
|
|
7.3
|
|
|
10.0
|
|
|
|
Debt funding
|
—
|
|
|
0.9
|
|
|
0.9
|
|
|
|
Share of results
|
0.1
|
|
|
—
|
|
|
0.1
|
|
|
|
Impairment
|
—
|
|
|
(2.2
|
)
|
|
(2.2
|
)
|
|
|
Exchange difference
|
0.1
|
|
|
0.3
|
|
|
0.4
|
|
|
|
At December 31, 2017
|
2.9
|
|
|
6.3
|
|
|
9.2
|
|
|
|
|
|
|
|
|
|
|
|
Name of company
|
|
Country of
incorporation
|
|
Holding
|
|
Proportion of voting rights and shares held
|
|
Classification
|
|
Nature of
business
|
|
|
|
Dynetek Cylinders India Private Limited
|
|
India
|
|
Ordinary shares
|
|
49
|
%
|
|
Joint venture
|
|
Engineering
|
|
|
Dynetek Korea Co. Limited
|
|
South Korea
|
|
Ordinary shares
|
|
49
|
%
|
|
Joint venture
|
|
Engineering
|
|
|
Luxfer Holdings NA, LLC
|
|
U.S.
|
|
Membership interest
|
|
49
|
%
|
|
Joint venture
|
|
Engineering
|
|
|
Luxfer Uttam India Private Limited
|
|
India
|
|
Ordinary shares
|
|
51
|
%
|
|
Joint venture
|
|
Engineering
|
|
|
Nikkei-MEL Co. Limited
|
|
Japan
|
|
Ordinary shares
|
|
50
|
%
|
|
Joint venture
|
|
Distribution
|
|
|
Sub161 Pty Limited
|
|
Australia
|
|
Ordinary shares
|
|
26.4
|
%
|
|
Associate
|
|
Engineering
|
|
15.
|
Inventories
|
|
|
December 31, 2017
|
|
December 31, 2016
|
|
||
|
|
$M
|
|
$M
|
|
||
|
Raw materials and consumables
|
31.0
|
|
|
28.3
|
|
|
|
Work in progress
|
28.1
|
|
|
30.5
|
|
|
|
Finished goods and goods for resale
|
23.1
|
|
|
23.7
|
|
|
|
|
82.2
|
|
|
82.5
|
|
|
16.
|
Trade and other receivables
|
|
|
December 31, 2017
|
|
December 31, 2016
|
|
||
|
|
$M
|
|
$M
|
|
||
|
Non-current Assets
|
|
|
|
|
|
|
|
Derivative financial instruments
|
0.3
|
|
|
0.3
|
|
|
|
|
0.3
|
|
|
0.3
|
|
|
|
Current Assets
|
|
|
|
|
|
|
|
Trade receivables
|
54.0
|
|
|
40.5
|
|
|
|
Amounts owed by joint ventures and associates
|
1.8
|
|
|
2.8
|
|
|
|
Other receivables
|
4.2
|
|
|
3.1
|
|
|
|
Prepayments and accrued income
|
10.5
|
|
|
9.4
|
|
|
|
Derivative financial instruments
|
2.1
|
|
|
1.8
|
|
|
|
|
72.6
|
|
|
57.6
|
|
|
17.
|
Cash and cash equivalents
|
|
|
December 31, 2017
|
|
December 31, 2016
|
|
||
|
|
$M
|
|
$M
|
|
||
|
Cash at bank and in hand
|
13.3
|
|
|
13.6
|
|
|
|
Overdrafts
|
(4.2
|
)
|
|
—
|
|
|
|
|
9.1
|
|
|
13.6
|
|
|
(a)
|
Ordinary share capital
|
|
|
December 31, 2017
|
|
December 31, 2016
|
|
December 31, 2017
|
|
|
December 31, 2016
|
|
|
||||
|
|
No.
|
|
No.
|
|
$M
|
|
|
$M
|
|
|
||||
|
Authorized:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ordinary shares of £0.50 each
|
40,000,000
|
|
|
40,000,000
|
|
|
35.7
|
|
(1)
|
|
35.7
|
|
(1)
|
|
|
Deferred ordinary shares of £0.0001 each
|
769,423,688,000
|
|
|
769,423,688,000
|
|
|
150.9
|
|
(1)
|
|
150.9
|
|
(1)
|
|
|
|
769,463,688,000
|
|
|
769,463,688,000
|
|
|
186.6
|
|
(1)
|
|
186.6
|
|
(1)
|
|
|
Allotted, called up and fully paid:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ordinary shares of £0.50 each
|
27,136,799
|
|
|
27,136,799
|
|
|
25.3
|
|
(1)
|
|
25.3
|
|
(1)
|
|
|
Deferred ordinary shares of £0.0001 each
|
769,413,708,000
|
|
|
769,413,708,000
|
|
|
150.9
|
|
(1)
|
|
150.9
|
|
(1)
|
|
|
|
769,440,844,799
|
|
|
769,440,844,799
|
|
|
176.2
|
|
(1)
|
|
176.2
|
|
(1)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
The Group's ordinary and deferred share capital are shown in U.S. dollars at the exchange rate prevailing at the month end spot rate at the time of the share capital being issued. This rate at the end of February 2007 was
$1.9613
:
£1
when the first
20,000,000
shares were issued; the rate at the end of October 2012 was
$1.6129
:
£1
when
7,000,000
shares were issued; the rate at the end of March 2013 was
$1.5173
:
£1
when
1,924
shares were issued; the rate at the end of January 2014 was
$1.6487
:
£1
when
12,076
shares were issued; the rate at the end of May 2014 was
$1.6760
:
£1
when
24,292
shares were issued; the rate at the end of August 2014 was
$1.6580
:
£1
when
58,399
shares were issued; the rate at the end of February 2015 was
$1.5436
:
£1
when
8,563
shares were issued; the rate at the end of March 2015 was
$1.4847
:
£1
when
3,866
shares were issued; and the rate at the end of June 2015 was
$1.5715
:
£1
when
27,679
shares were issued.
|
(b)
|
American Depositary Shares
|
(c)
|
Share premium account
|
|
|
$M
|
|
|
|
At January 1, 2016
|
56.4
|
|
|
|
At December 31, 2016
|
56.4
|
|
|
|
At December 31, 2017
|
56.4
|
|
|
(d)
|
Treasury shares
|
(e)
|
Own shares held by ESOP
|
|
|
2017
|
|
2016
|
|
2015
|
|
|||
|
|
$M
|
|
$M
|
|
$M
|
|
|||
|
Dividends declared and paid during the year:
|
|
|
|
|
|
|
|
|
|
|
Interim dividend paid February 4, 2015 ($0.10 per ordinary share)
|
—
|
|
|
—
|
|
|
2.7
|
|
|
|
Interim dividend paid May 6, 2015 ($0.10 per ordinary share)
|
—
|
|
|
—
|
|
|
2.7
|
|
|
|
Interim dividend paid August 5, 2015 ($0.10 per ordinary share)
|
—
|
|
|
—
|
|
|
2.7
|
|
|
|
Interim dividend paid November 4, 2015 ($0.10 per ordinary share)
|
—
|
|
|
—
|
|
|
2.7
|
|
|
|
Interim dividend paid February 3, 2016 ($0.125 per ordinary share)
|
—
|
|
|
3.4
|
|
|
—
|
|
|
|
Interim dividend paid May 4, 2016 ($0.125 per ordinary share)
|
—
|
|
|
3.3
|
|
|
—
|
|
|
|
Interim dividend paid August 3, 2016 ($0.125 per ordinary share)
|
—
|
|
|
3.3
|
|
|
—
|
|
|
|
Interim dividend paid November 2, 2016 ($0.125 per ordinary share)
|
—
|
|
|
3.3
|
|
|
—
|
|
|
|
Interim dividend paid February 1, 2017 ($0.125 per ordinary share)
|
3.3
|
|
|
—
|
|
|
—
|
|
|
|
Interim dividend paid May 3, 2017 ($0.125 per ordinary share)
|
3.3
|
|
|
—
|
|
|
—
|
|
|
|
Interim dividend paid August 2, 2017 ($0.125 per ordinary share)
|
3.3
|
|
|
—
|
|
|
—
|
|
|
|
Interim dividend paid November 1, 2017 ($0.125 per ordinary share)
|
3.4
|
|
|
—
|
|
|
—
|
|
|
|
|
13.3
|
|
|
13.3
|
|
|
10.8
|
|
|
|
|
2017
|
|
2016
|
|
2015
|
|
|||
|
|
$M
|
|
$M
|
|
$M
|
|
|||
|
Dividends declared and paid after December 31 (not recognized as a liability at December 31):
|
|
|
|
|
|
|
|
|
|
|
Interim dividend paid February 3, 2016: ($0.125 per ordinary share)
|
—
|
|
|
—
|
|
|
2.7
|
|
|
|
Interim dividend paid February 1, 2017: ($0.125 per ordinary share)
|
—
|
|
|
3.3
|
|
|
—
|
|
|
|
Interim dividend paid February 7, 2018: ($0.125 per ordinary share)
|
3.4
|
|
|
—
|
|
|
—
|
|
|
|
|
3.4
|
|
|
3.3
|
|
|
2.7
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Retained
earnings
|
|
Hedging
reserve
|
|
Translation
reserve
|
|
Share based
compensation
reserve
|
|
Merger
reserve
|
|
|||||
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
|||||
|
At January 1, 2015
|
308.8
|
|
|
0.9
|
|
|
(36.2
|
)
|
|
3.7
|
|
|
(333.8
|
)
|
|
|
Net income for the year
|
16.1
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
|
Currency translation differences
|
—
|
|
|
—
|
|
|
(8.6
|
)
|
|
—
|
|
|
—
|
|
|
|
Decrease in fair value of cash flow hedges
|
—
|
|
|
(5.4
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
|
Transfer to consolidated income statement on cash flow hedges
|
—
|
|
|
(0.1
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
|
Remeasurement of defined benefit retirement plans
|
4.4
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
|
Deferred income taxes on items taken to other comprehensive income
|
(1.5
|
)
|
|
1.1
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
|
Equity dividends
|
(10.8
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
|
Equity settled share based compensation charges
|
—
|
|
|
—
|
|
|
—
|
|
|
1.4
|
|
|
—
|
|
|
|
Cash settled share based compensation charges
|
—
|
|
|
—
|
|
|
—
|
|
|
(0.5
|
)
|
|
—
|
|
|
|
Deferred income taxes on items taken to equity
|
(0.3
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
|
Utilization of treasury shares
|
(0.1
|
)
|
|
—
|
|
|
—
|
|
|
(0.5
|
)
|
|
—
|
|
|
|
At December 31, 2015
|
316.6
|
|
|
(3.5
|
)
|
|
(44.8
|
)
|
|
4.1
|
|
|
(333.8
|
)
|
|
|
Net income for the year
|
21.9
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
|
Currency translation differences
|
—
|
|
|
—
|
|
|
(13.1
|
)
|
|
—
|
|
|
—
|
|
|
|
Increase in fair value of cash flow hedges
|
—
|
|
|
1.1
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
|
Transfer to consolidated income statement on cash flow hedges
|
—
|
|
|
(0.9
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
|
Remeasurement of defined benefit retirement plans
|
(21.7
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
|
Deferred income taxes on items taken to other comprehensive income
|
4.3
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
|
Equity dividends
|
(13.3
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
|
Equity settled share based compensation charges
|
—
|
|
|
—
|
|
|
—
|
|
|
1.2
|
|
|
—
|
|
|
|
Utilization of treasury shares
|
0.1
|
|
|
—
|
|
|
—
|
|
|
(0.6
|
)
|
|
—
|
|
|
|
Utilization of ESOP shares
|
0.2
|
|
|
—
|
|
|
—
|
|
|
(0.9
|
)
|
|
—
|
|
|
|
At December 31, 2016
|
308.1
|
|
|
(3.3
|
)
|
|
(57.9
|
)
|
|
3.8
|
|
|
(333.8
|
)
|
|
|
Net income for the year
|
11.5
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
|
Currency translation differences
|
—
|
|
|
—
|
|
|
11.6
|
|
|
—
|
|
|
—
|
|
|
|
Increase in fair value of cash flow hedges
|
—
|
|
|
3.1
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
|
Transfer to consolidated income statement on cash flow hedges
|
—
|
|
|
0.6
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
|
Remeasurement of defined benefit retirement plans
|
9.5
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
|
Deferred income taxes on items taken to other comprehensive income
|
(5.2
|
)
|
|
(0.6
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
|
Equity dividends
|
(13.3
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
|
Equity settled share based compensation charges
|
—
|
|
|
—
|
|
|
—
|
|
|
2.6
|
|
|
—
|
|
|
|
Utilization of treasury shares
|
0.1
|
|
|
—
|
|
|
—
|
|
|
(0.6
|
)
|
|
—
|
|
|
|
Utilization of ESOP shares
|
0.1
|
|
|
—
|
|
|
—
|
|
|
(0.4
|
)
|
|
—
|
|
|
|
Deferred income taxes on items taken to equity
|
0.6
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
|
At December 31, 2017
|
311.4
|
|
|
(0.2
|
)
|
|
(46.3
|
)
|
|
5.4
|
|
|
(333.8
|
)
|
|
21.
|
Bank and other loans
|
|
|
December 31, 2017
|
|
December 31, 2016
|
|
||
|
|
$M
|
|
$M
|
|
||
|
Loan Notes due 2018—gross
|
15.0
|
|
|
15.0
|
|
|
|
Unamortized finance costs
|
—
|
|
|
(0.1
|
)
|
|
|
Loan Notes due 2018—net
|
15.0
|
|
|
14.9
|
|
|
|
Loan Notes due 2021—gross
|
25.0
|
|
|
25.0
|
|
|
|
Unamortized finance costs
|
(0.1
|
)
|
|
(0.1
|
)
|
|
|
Loan Notes due 2021—net
|
24.9
|
|
|
24.9
|
|
|
|
Loan Notes due 2023—gross
|
25.0
|
|
|
25.0
|
|
|
|
Unamortized finance costs
|
(0.3
|
)
|
|
(0.3
|
)
|
|
|
Loan Notes due 2023—net
|
24.7
|
|
|
24.7
|
|
|
|
Loan Notes due 2026—gross
|
25.0
|
|
|
25.0
|
|
|
|
Unamortized finance costs
|
(0.3
|
)
|
|
(0.3
|
)
|
|
|
Loan Notes due 2026—net
|
24.7
|
|
|
24.7
|
|
|
|
Revolving credit facility—gross
|
21.3
|
|
|
32.8
|
|
|
|
Unamortized finance costs
|
(1.8
|
)
|
|
(1.0
|
)
|
|
|
Revolving credit facility—net
|
19.5
|
|
|
31.8
|
|
|
|
|
108.8
|
|
|
121.0
|
|
|
|
|
|
|
|
|
||
|
Included in current liabilities
|
15.0
|
|
|
—
|
|
|
|
Included in non-current liabilities
|
93.8
|
|
|
121.0
|
|
|
|
|
108.8
|
|
|
121.0
|
|
|
22.
|
Provisions
|
|
|
Rationalization
and
redundancy
|
|
Employee
benefits
|
|
Environmental
provisions
|
|
Total
|
|
||||
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
||||
|
At January 1, 2016
|
2.6
|
|
|
1.5
|
|
|
1.2
|
|
|
5.3
|
|
|
|
Charged to consolidated income statement
|
1.4
|
|
|
—
|
|
|
—
|
|
|
1.4
|
|
|
|
Credited to consolidated income statement
|
(0.2
|
)
|
|
(0.4
|
)
|
|
—
|
|
|
(0.6
|
)
|
|
|
Cash payments
|
(3.0
|
)
|
|
—
|
|
|
(0.3
|
)
|
|
(3.3
|
)
|
|
|
Translation
|
—
|
|
|
—
|
|
|
(0.2
|
)
|
|
(0.2
|
)
|
|
|
At December 31, 2016
|
0.8
|
|
|
1.1
|
|
|
0.7
|
|
|
2.6
|
|
|
|
Charged to consolidated income statement
|
4.3
|
|
|
0.5
|
|
|
0.4
|
|
|
5.2
|
|
|
|
Credited to consolidated income statement
|
—
|
|
|
—
|
|
|
(0.4
|
)
|
|
(0.4
|
)
|
|
|
Cash payments
|
(3.0
|
)
|
|
(0.5
|
)
|
|
—
|
|
|
(3.5
|
)
|
|
|
At December 31, 2017
|
2.1
|
|
|
1.1
|
|
|
0.7
|
|
|
3.9
|
|
|
|
|
|
|
|
|
|
|
|
|
||||
|
At December 31, 2017
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Included in current liabilities
|
2.1
|
|
|
—
|
|
|
0.7
|
|
|
2.8
|
|
|
|
Included in non-current liabilities
|
—
|
|
|
1.1
|
|
|
—
|
|
|
1.1
|
|
|
|
|
2.1
|
|
|
1.1
|
|
|
0.7
|
|
|
3.9
|
|
|
|
At December 31, 2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Included in current liabilities
|
0.8
|
|
|
—
|
|
|
0.7
|
|
|
1.5
|
|
|
|
Included in non-current liabilities
|
—
|
|
|
1.1
|
|
|
—
|
|
|
1.1
|
|
|
|
|
0.8
|
|
|
1.1
|
|
|
0.7
|
|
|
2.6
|
|
|
23.
|
Deferred income taxes
|
|
|
Accelerated
tax
depreciation
|
|
Other
temporary
differences
|
|
Tax
losses
|
|
Retirement
benefit
obligations
|
|
Total
|
|
|||||
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
|||||
|
At January 1, 2016
|
(11.0
|
)
|
|
5.1
|
|
|
4.7
|
|
|
13.3
|
|
|
12.1
|
|
|
|
Credited/(charged) to consolidated income statement
|
0.1
|
|
|
(2.1
|
)
|
|
0.9
|
|
|
(1.2
|
)
|
|
(2.3
|
)
|
|
|
Credited to other comprehensive income
|
—
|
|
|
—
|
|
|
—
|
|
|
4.3
|
|
|
4.3
|
|
|
|
Exchange difference
|
—
|
|
|
(0.2
|
)
|
|
(0.5
|
)
|
|
(1.7
|
)
|
|
(2.4
|
)
|
|
|
At December 31, 2016
|
(10.9
|
)
|
|
2.8
|
|
|
5.1
|
|
|
14.7
|
|
|
11.7
|
|
|
|
Credited/(charged) to consolidated income statement
|
5.2
|
|
|
(1.0
|
)
|
|
—
|
|
|
0.6
|
|
|
4.8
|
|
|
|
Charged to other comprehensive income
|
—
|
|
|
(0.6
|
)
|
|
—
|
|
|
(5.2
|
)
|
|
(5.8
|
)
|
|
|
Credited to equity
|
—
|
|
|
0.6
|
|
|
—
|
|
|
—
|
|
|
0.6
|
|
|
|
Exchange difference
|
—
|
|
|
0.2
|
|
|
0.3
|
|
|
0.8
|
|
|
1.3
|
|
|
|
At December 31, 2017
|
(5.7
|
)
|
|
2.0
|
|
|
5.4
|
|
|
10.9
|
|
|
12.6
|
|
|
|
|
December 31, 2017
|
|
December 31, 2016
|
|
||
|
|
$M
|
|
$M
|
|
||
|
Deferred income tax liabilities
|
(3.6
|
)
|
|
(4.9
|
)
|
|
|
Deferred income tax assets
|
16.2
|
|
|
16.6
|
|
|
|
Net deferred income tax assets
|
12.6
|
|
|
11.7
|
|
|
|
|
December 31, 2017
|
|
December 31, 2016
|
|
||
|
|
$M
|
|
$M
|
|
||
|
Non-current Liabilities
|
|
|
|
|
||
|
Accruals
|
1.5
|
|
|
—
|
|
|
|
Derivative financial instruments
|
0.4
|
|
|
0.6
|
|
|
|
|
1.9
|
|
|
0.6
|
|
|
|
Current Liabilities
|
|
|
|
|
|
|
|
Trade payables
|
28.4
|
|
|
24.0
|
|
|
|
Other taxation and social security
|
1.3
|
|
|
1.3
|
|
|
|
Accruals
|
29.7
|
|
|
20.4
|
|
|
|
Interest payable
|
0.4
|
|
|
0.2
|
|
|
|
Derivative financial instruments
|
1.5
|
|
|
5.2
|
|
|
|
|
61.3
|
|
|
51.1
|
|
|
|
|
December 31, 2017
|
|
December 31, 2016
|
|
||
|
|
$M
|
|
$M
|
|
||
|
Net cash flows on purchase of business:
|
|
|
|
|
||
|
Included in net cash flows from investing activities:
|
|
|
|
|
||
|
Consideration paid
|
4.3
|
|
|
0.5
|
|
|
|
Deferred consideration paid
|
1.4
|
|
|
—
|
|
|
|
Cash receipt on disposal of business
|
(0.1
|
)
|
|
—
|
|
|
|
Cash acquired
|
—
|
|
|
(0.2
|
)
|
|
|
|
5.6
|
|
|
0.3
|
|
|
|
|
December 31, 2017
|
|
December 31, 2016
|
|
December 31, 2015
|
|
|||
|
|
$M
|
|
$M
|
|
$M
|
|
|||
|
Operating lease commitments—Group as a lessee
|
|
|
|
|
|
|
|||
|
Minimum lease payments under operating leases recognized in the consolidated income statement
|
5.1
|
|
|
4.8
|
|
|
5.6
|
|
|
|
|
December 31, 2017
|
|
December 31, 2016
|
|
December 31, 2015
|
|
|||
|
|
$M
|
|
$M
|
|
$M
|
|
|||
|
Within one year
|
5.4
|
|
|
4.6
|
|
|
4.9
|
|
|
|
In two to five years
|
14.5
|
|
|
11.8
|
|
|
13.5
|
|
|
|
In over five years
|
14.5
|
|
|
10.7
|
|
|
12.4
|
|
|
|
|
34.4
|
|
|
27.1
|
|
|
30.8
|
|
|
|
|
December 31, 2017
|
|
December 31, 2016
|
|
||||||||||||||||||||
|
|
Within 12 months
|
|
1-5 years
|
|
> 5 years
|
|
Total
|
|
Within 12 months
|
|
1-5 years
|
|
> 5 years
|
|
Total
|
|
||||||||
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
||||||||
|
Loan Notes due 2018
|
15.0
|
|
|
—
|
|
|
—
|
|
|
15.0
|
|
|
—
|
|
|
15.0
|
|
|
—
|
|
|
15.0
|
|
|
|
Loan Notes due 2021
|
—
|
|
|
25.0
|
|
|
—
|
|
|
25.0
|
|
|
—
|
|
|
25.0
|
|
|
—
|
|
|
25.0
|
|
|
|
Loan Notes due 2023
|
—
|
|
|
—
|
|
|
25.0
|
|
|
25.0
|
|
|
—
|
|
|
—
|
|
|
25.0
|
|
|
25.0
|
|
|
|
Loan Notes due 2026
|
—
|
|
|
—
|
|
|
25.0
|
|
|
25.0
|
|
|
—
|
|
|
—
|
|
|
25.0
|
|
|
25.0
|
|
|
|
Revolving credit facility
|
—
|
|
|
21.3
|
|
|
—
|
|
|
21.3
|
|
|
—
|
|
|
32.8
|
|
|
—
|
|
|
32.8
|
|
|
|
Deferred contingent consideration
|
0.5
|
|
|
0.2
|
|
|
—
|
|
|
0.7
|
|
|
—
|
|
|
1.5
|
|
|
—
|
|
|
1.5
|
|
|
|
Deferred consideration
|
0.3
|
|
|
—
|
|
|
—
|
|
|
0.3
|
|
|
1.3
|
|
|
—
|
|
|
—
|
|
|
1.3
|
|
|
|
Trade payables
|
28.4
|
|
|
—
|
|
|
—
|
|
|
28.4
|
|
|
24.0
|
|
|
—
|
|
|
—
|
|
|
24.0
|
|
|
|
Accruals
|
29.7
|
|
|
1.5
|
|
|
—
|
|
|
31.2
|
|
|
20.4
|
|
|
—
|
|
|
—
|
|
|
20.4
|
|
|
|
Interest payable
|
0.4
|
|
|
—
|
|
|
—
|
|
|
0.4
|
|
|
0.2
|
|
|
—
|
|
|
—
|
|
|
0.2
|
|
|
|
Derivative financial instruments
|
1.5
|
|
|
0.4
|
|
|
—
|
|
|
1.9
|
|
|
5.2
|
|
|
0.6
|
|
|
—
|
|
|
5.8
|
|
|
|
Overdrafts
|
4.2
|
|
|
—
|
|
|
—
|
|
|
4.2
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
|
|
80.0
|
|
|
48.4
|
|
|
50.0
|
|
|
178.4
|
|
|
51.1
|
|
|
74.9
|
|
|
50.0
|
|
|
176.0
|
|
|
|
|
December 31, 2017
|
|
December 31, 2016
|
|
||
|
|
$M
|
|
$M
|
|
||
|
Undiscounted contractual maturity of financial liabilities:
|
|
|
|
|
||
|
Amounts payable:
|
|
|
|
|
||
|
Within 12 months
|
84.5
|
|
|
56.4
|
|
|
|
1-5 years
|
63.6
|
|
|
90.5
|
|
|
|
> 5 years
|
54.9
|
|
|
57.4
|
|
|
|
|
203.0
|
|
|
204.3
|
|
|
|
Less: future finance charges
|
(24.6
|
)
|
|
(28.3
|
)
|
|
|
|
178.4
|
|
|
176.0
|
|
|
•
|
Managing funding and liquidity;
|
•
|
Optimizing shareholder return; and
|
•
|
Maintaining a strong, investment-grade credit rating
|
|
|
2017
|
|
2016
|
|
2015
|
|
|||
|
|
$M
|
|
$M
|
|
$M
|
|
|||
|
For continuing operations:
|
|
|
|
|
|
|
|||
|
Operating profit
|
19.3
|
|
|
35.8
|
|
|
37.9
|
|
|
|
Deduct:
|
|
|
|
|
|
|
|||
|
Profit on sale of redundant site (Note 5)
|
(0.4
|
)
|
|
(2.1
|
)
|
|
—
|
|
|
|
Changes to defined benefit pension plans (Note 5)
|
—
|
|
|
(0.6
|
)
|
|
(18.0
|
)
|
|
|
Add back:
|
|
|
|
|
|
|
|||
|
Restructuring and other expense (Note 5)
|
21.6
|
|
|
2.2
|
|
|
22.4
|
|
|
|
Loss on disposal of property, plant and equipment
|
0.1
|
|
|
0.2
|
|
|
—
|
|
|
|
Other share based compensation charges
|
2.2
|
|
|
1.4
|
|
|
1.3
|
|
|
|
Depreciation and amortization
|
19.0
|
|
|
18.4
|
|
|
18.6
|
|
|
|
Adjusted EBITDA
|
61.8
|
|
|
55.3
|
|
|
62.2
|
|
|
|
|
|
|
|
|
|
|
|||
|
Bank and other loans
|
108.8
|
|
|
121.0
|
|
|
131.6
|
|
|
|
Total debt
|
108.8
|
|
|
121.0
|
|
|
131.6
|
|
|
|
Less: Cash and cash equivalents
|
(13.3
|
)
|
|
(13.6
|
)
|
|
(36.9
|
)
|
|
|
Add: Overdrafts
|
4.2
|
|
|
—
|
|
|
—
|
|
|
|
Add: Restricted cash
|
0.7
|
|
|
—
|
|
|
—
|
|
|
|
Net debt
|
100.4
|
|
|
107.4
|
|
|
94.7
|
|
|
|
Net debt: Adjusted EBITDA ratio
|
1.6
|
x
|
|
1.9
|
x
|
|
1.5
|
x
|
|
|
|
Cash at bank and in hand
|
|
Overdrafts
|
|
Bank and other loans due within one year
|
|
Bank and other loans due after one year
|
|
Total
|
|
|||||
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
|||||
|
Net debt at January 1, 2016
|
(36.9
|
)
|
|
—
|
|
|
—
|
|
|
131.6
|
|
|
94.7
|
|
|
|
Cash flows
|
21.4
|
|
|
—
|
|
|
—
|
|
|
(9.0
|
)
|
|
12.4
|
|
|
|
Foreign exchange adjustments
|
1.9
|
|
|
—
|
|
|
—
|
|
|
(2.1
|
)
|
|
(0.2
|
)
|
|
|
Other non-cash movements
|
—
|
|
|
—
|
|
|
—
|
|
|
0.5
|
|
|
0.5
|
|
|
|
Net debt at January 1, 2017
|
(13.6
|
)
|
|
—
|
|
|
—
|
|
|
121.0
|
|
|
107.4
|
|
|
|
Cash flows
|
6.5
|
|
|
—
|
|
|
—
|
|
|
(14.5
|
)
|
|
(8.0
|
)
|
|
|
Reclassification
|
(4.2
|
)
|
|
4.2
|
|
|
14.9
|
|
|
(14.9
|
)
|
|
—
|
|
|
|
Foreign exchange adjustments
|
(2.0
|
)
|
|
—
|
|
|
—
|
|
|
1.7
|
|
|
(0.3
|
)
|
|
|
Restricted cash
|
0.7
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
0.7
|
|
|
|
Other non-cash movements
|
—
|
|
|
—
|
|
|
0.1
|
|
|
0.5
|
|
|
0.6
|
|
|
|
Net debt at December 31, 2017
|
(12.6
|
)
|
|
4.2
|
|
|
15.0
|
|
|
93.8
|
|
|
100.4
|
|
|
|
|
|
|
Neither past due nor impaired
|
|
Past due but not impaired
|
|
|||||||||||||||
|
|
Total
|
|
< 31 days
|
|
31-60 days
|
|
61-90 days
|
|
91-121 days
|
|
> 121 days
|
|
|||||||||
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
|||||||
|
At December 31, 2017
|
54.0
|
|
|
37.3
|
|
|
11.0
|
|
|
3.2
|
|
|
1.7
|
|
|
0.8
|
|
|
—
|
|
|
|
At December 31, 2016
|
40.5
|
|
|
33.4
|
|
|
5.5
|
|
|
1.0
|
|
|
0.5
|
|
|
0.1
|
|
|
—
|
|
|
(a)
|
Financial instruments of the Group
|
|
|
Book value
|
|
Fair value
|
|
Book value
|
|
Fair value
|
|
||||
|
|
December 31, 2017
|
|
December 31, 2017
|
|
December 31, 2016
|
|
December 31, 2016
|
|
||||
|
Financial instruments:
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
||||
|
Financial assets:
|
|
|
|
|
|
|
|
|
||||
|
Cash at bank and in hand
|
13.3
|
|
|
13.3
|
|
|
13.6
|
|
|
13.6
|
|
|
|
Financial liabilities
(1)
:
|
|
|
|
|
|
|
|
|
||||
|
Loan Notes due 2018
|
15.0
|
|
|
15.3
|
|
|
15.0
|
|
|
15.9
|
|
|
|
Loan Notes due 2021
|
25.0
|
|
|
25.2
|
|
|
25.0
|
|
|
25.0
|
|
|
|
Loan Notes due 2023
|
25.0
|
|
|
26.6
|
|
|
25.0
|
|
|
26.3
|
|
|
|
Loan Notes due 2026
|
25.0
|
|
|
27.1
|
|
|
25.0
|
|
|
26.5
|
|
|
|
Revolving credit facility
|
21.3
|
|
|
21.3
|
|
|
32.8
|
|
|
32.8
|
|
|
|
Overdrafts
|
4.2
|
|
|
4.2
|
|
|
—
|
|
|
—
|
|
|
|
Deferred contingent consideration
|
0.7
|
|
|
0.7
|
|
|
1.5
|
|
|
1.5
|
|
|
|
Deferred consideration
|
0.3
|
|
|
0.3
|
|
|
1.3
|
|
|
1.3
|
|
|
(1)
|
The financial instruments included in financial liabilities are shown gross of unamortized finance costs.
|
(2)
|
The fair value of these financial instruments is calculated by discounting the future cash flows, including interest payments due.
|
|
|
Book value
|
|
Fair value
|
|
Book value
|
|
Fair value
|
|
||||
|
Derivative financial instruments are as follows:
|
December 31, 2017
|
|
December 31, 2017
|
|
December 31, 2016
|
|
December 31, 2016
|
|
||||
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
||||
|
Held to hedge purchases and sales by trading businesses:
|
|
|
|
|
|
|
|
|
||||
|
Forward foreign currency exchange rate contracts
|
(0.7
|
)
|
|
(0.7
|
)
|
|
(3.1
|
)
|
|
(3.1
|
)
|
|
|
LME derivative contracts
|
1.2
|
|
|
1.2
|
|
|
(0.6
|
)
|
|
(0.6
|
)
|
|
|
|
December 31, 2017
|
|
Level 1
|
|
Level 2
|
|
Level 3
|
|
||||
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
||||
|
Net derivative financial (assets) / liabilities at fair value through profit or loss:
|
|
|
|
|
|
|
|
|
||||
|
Forward foreign currency exchange rate contracts
|
0.7
|
|
|
—
|
|
|
0.7
|
|
|
—
|
|
|
|
LME derivative contracts
|
(1.2
|
)
|
|
—
|
|
|
(1.2
|
)
|
|
—
|
|
|
|
Interest bearing loans and borrowings:
|
|
|
|
|
|
|
|
|
||||
|
Loan Notes due 2018
|
15.3
|
|
|
—
|
|
|
15.3
|
|
|
—
|
|
|
|
Loan Notes due 2021
|
25.2
|
|
|
—
|
|
|
25.2
|
|
|
—
|
|
|
|
Loan Notes due 2023
|
26.6
|
|
|
—
|
|
|
26.6
|
|
|
—
|
|
|
|
Loan Notes due 2026
|
27.1
|
|
|
—
|
|
|
27.1
|
|
|
—
|
|
|
|
Revolving credit facility
|
21.3
|
|
|
—
|
|
|
21.3
|
|
|
—
|
|
|
|
Other financial liabilities:
|
|
|
|
|
|
|
|
|
||||
|
Deferred contingent consideration
|
0.7
|
|
|
—
|
|
|
—
|
|
|
0.7
|
|
|
|
Deferred consideration
|
0.3
|
|
|
—
|
|
|
—
|
|
|
0.3
|
|
|
|
|
2017
|
|
2016
|
|
||
|
|
$M
|
|
$M
|
|
||
|
Balance at January 1
|
2.8
|
|
|
2.9
|
|
|
|
Payments made during year
|
(1.3
|
)
|
|
—
|
|
|
|
New deferred consideration
|
0.3
|
|
|
—
|
|
|
|
Gains recognized in profit or loss
|
(0.8
|
)
|
|
(0.1
|
)
|
|
|
Balance at December 31
|
1.0
|
|
|
2.8
|
|
|
|
Total gains for the period included in profit and loss for assets held at the end at December 31
|
(0.8
|
)
|
|
(0.1
|
)
|
|
|
Change in unrealized (gains) or losses for the period included in profit and loss for assets held at the end at December 31
|
(0.8
|
)
|
|
(0.1
|
)
|
|
(b)
|
Interest rate risks
|
|
|
December 31, 2017
|
|
December 31, 2016
|
|
||
|
Overdraft by currency:
|
$M
|
|
$M
|
|
||
|
U.S. dollar
|
(3.0
|
)
|
|
—
|
|
|
|
GBP sterling
|
(1.2
|
)
|
|
—
|
|
|
|
|
(4.2
|
)
|
|
—
|
|
|
|
|
December 31, 2017
|
|
December 31, 2016
|
|
||||||||||||||||||||
|
|
Within 12 months
|
|
1-5 years
|
|
> 5 years
|
|
Total
|
|
Within 12 months
|
|
1-5 years
|
|
> 5 years
|
|
Total
|
|
||||||||
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
||||||||
|
Floating interest rate risk:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||
|
Revolving credit facility (including interest payments)
|
0.7
|
|
|
24.2
|
|
|
—
|
|
|
24.9
|
|
|
0.9
|
|
|
34.1
|
|
|
—
|
|
|
35.0
|
|
|
|
Fixed interest rate risk:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||
|
Loan Notes due 2018 (including interest payments)
|
15.5
|
|
|
—
|
|
|
—
|
|
|
15.5
|
|
|
0.9
|
|
|
15.5
|
|
|
—
|
|
|
16.4
|
|
|
|
Loan Notes due 2021 (including interest payments)
|
0.9
|
|
|
27.5
|
|
|
—
|
|
|
28.4
|
|
|
1.0
|
|
|
28.7
|
|
|
—
|
|
|
29.7
|
|
|
|
Loan Notes due 2023 (including interest payments)
|
1.2
|
|
|
4.9
|
|
|
25.6
|
|
|
31.7
|
|
|
1.2
|
|
|
4.9
|
|
|
26.8
|
|
|
32.9
|
|
|
|
Loan Notes due 2026 (including interest payments)
|
1.2
|
|
|
5.0
|
|
|
29.3
|
|
|
35.5
|
|
|
1.2
|
|
|
5.0
|
|
|
30.6
|
|
|
36.8
|
|
|
|
|
19.5
|
|
|
61.6
|
|
|
54.9
|
|
|
136.0
|
|
|
5.2
|
|
|
88.2
|
|
|
57.4
|
|
|
150.8
|
|
|
(c)
|
Hedging activities
|
|
December 31, 2017
|
|
|
|
|
Australian dollars
|
|
||||
|
Sales hedges
|
U.S. dollars
|
|
Euros
|
|
|
|||||
|
Contract totals/£m
|
17.1
|
|
|
27.5
|
|
|
2.8
|
|
|
|
|
Maturity dates
|
01/18 to 07/19
|
|
|
01/18 to 07/19
|
|
|
06/18
|
|
|
|
|
Exchange rates
|
$1.2433 to $1.3444
|
|
|
€1.0949 to €1.1803
|
|
|
$
|
1.7667
|
|
|
|
Purchase hedges
|
U.S. dollars
|
|
Euros
|
|
Australian dollars
|
|
|||
|
Contract totals/£m
|
12.5
|
|
|
0.1
|
|
|
1.7
|
|
|
|
Maturity dates
|
01/18 to 07/19
|
|
|
01/18
|
|
|
06/18
|
|
|
|
Exchange rates
|
$1.2414 to $1.3389
|
|
|
€1.1084
|
|
|
$1.7161
|
|
|
|
December 31, 2016
|
|
|
|
|
Australian dollars
|
|
|||
|
Sales hedges
|
U.S. dollars
|
|
Euros
|
|
|
||||
|
Contract totals/£m
|
27.6
|
|
|
39.4
|
|
|
2.9
|
|
|
|
Maturity dates
|
01/17 to 11/18
|
|
|
01/17 to 11/18
|
|
|
09/17
|
|
|
|
Exchange rates
|
$1.2310 to $1.5638
|
|
|
€1.0951 to €1.4200
|
|
|
$1.7237
|
|
|
Purchase hedges
|
|
|
U.S. dollars
|
|
Euros
|
|
||
|
Contract totals/£m
|
|
|
25.7
|
|
|
2.5
|
|
|
|
Maturity dates
|
|
|
01/17 to 10/18
|
|
|
01/17 to 06/17
|
|
|
|
Exchange rates
|
|
|
$1.2311 to $1.5618
|
|
|
€1.1121 to €1.1804
|
|
|
(d)
|
Foreign currency translation risk disclosures
|
(e)
|
Un-drawn committed facilities
|
|
|
2017
|
|
2016
|
|
||
|
|
$M
|
|
$M
|
|
||
|
Balance at January 1
|
66.5
|
|
|
58.9
|
|
|
|
(Credited) / charged to the consolidated income statement:
|
|
|
|
|
||
|
Past service credit
|
—
|
|
|
—
|
|
|
|
Curtailment credit
|
—
|
|
|
(0.6
|
)
|
|
|
Current service cost
|
0.1
|
|
|
0.4
|
|
|
|
Net interest on net liability
|
1.8
|
|
|
2.0
|
|
|
|
Administrative costs
|
0.7
|
|
|
0.9
|
|
|
|
Total charge for defined contribution plans
|
4.0
|
|
|
3.7
|
|
|
|
Cash contributions
|
(12.9
|
)
|
|
(10.9
|
)
|
|
|
(Credited) / charged to the consolidated statement of comprehensive income
|
(9.5
|
)
|
|
21.7
|
|
|
|
Exchange difference
|
4.6
|
|
|
(9.6
|
)
|
|
|
Balance at December 31
|
55.3
|
|
|
66.5
|
|
|
|
|
Projected Unit Credit Valuation
|
|
||||||||||
|
|
U.K.
|
|
Non-U.K.
|
|
||||||||
|
|
2017
|
|
2016
|
|
2015
|
|
2017
|
|
2016
|
|
2015
|
|
|
|
%
|
|
%
|
|
%
|
|
%
|
|
%
|
|
%
|
|
|
Discount rate
|
2.40
|
|
2.60
|
|
3.70
|
|
3.60
|
|
4.20
|
|
4.50
|
|
|
Retail Price Inflation
|
3.10
|
|
3.20
|
|
3.00
|
|
—
|
|
—
|
|
—
|
|
|
Inflation related assumptions:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Salary inflation
|
n/a
|
|
n/a
|
|
4.00
|
|
—
|
|
—
|
|
—
|
|
|
Consumer Price Inflation
|
2.10
|
|
2.20
|
|
2.00
|
|
—
|
|
—
|
|
—
|
|
|
Pension increases—pre 6 April 1997
|
1.90
|
|
2.00
|
|
1.80
|
|
—
|
|
—
|
|
—
|
|
|
—1997 - 2005
|
2.10
|
|
2.20
|
|
2.10
|
|
—
|
|
—
|
|
—
|
|
|
—post 5 April 2005
|
1.70
|
|
1.80
|
|
1.70
|
|
—
|
|
—
|
|
—
|
|
|
|
2017
|
|
2016
|
|
|
Other principal actuarial assumptions:
|
Years
|
|
Years
|
|
|
Life expectancy of male / female in the U.K. aged 65 at accounting date
|
21.6 / 24.6
|
|
21.5 / 24.5
|
|
|
Life expectancy of male / female in the U.K. aged 65 at 20 years after accounting date
|
23.3 / 26.5
|
|
23.2 / 26.4
|
|
|
|
2017
|
|
2017
|
|
2017
|
|
2016
|
|
2016
|
|
2016
|
|
2015
|
|
2015
|
|
2015
|
|
|||||||||
|
|
U.K.
|
|
Non-U.K.
|
|
Total
|
|
U.K.
|
|
Non-U.K.
|
|
Total
|
|
U.K.
|
|
Non-U.K.
|
|
Total
|
|
|||||||||
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
|||||||||
|
In respect of defined benefit plans:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||
|
Current service cost
|
—
|
|
|
0.1
|
|
|
0.1
|
|
|
0.3
|
|
|
0.1
|
|
|
0.4
|
|
|
1.4
|
|
|
0.1
|
|
|
1.5
|
|
|
|
Net interest on net liability
|
1.4
|
|
|
0.4
|
|
|
1.8
|
|
|
1.5
|
|
|
0.5
|
|
|
2.0
|
|
|
2.5
|
|
|
0.5
|
|
|
3.0
|
|
|
|
Administrative expenses
|
0.2
|
|
|
0.5
|
|
|
0.7
|
|
|
0.4
|
|
|
0.5
|
|
|
0.9
|
|
|
1.0
|
|
|
0.3
|
|
|
1.3
|
|
|
|
Past service credit
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(14.9
|
)
|
|
—
|
|
|
(14.9
|
)
|
|
|
Curtailment credit
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(0.6
|
)
|
|
(0.6
|
)
|
|
(3.3
|
)
|
|
—
|
|
|
(3.3
|
)
|
|
|
Total charge / (credit) for defined benefit plans
|
1.6
|
|
|
1.0
|
|
|
2.6
|
|
|
2.2
|
|
|
0.5
|
|
|
2.7
|
|
|
(13.3
|
)
|
|
0.9
|
|
|
(12.4
|
)
|
|
|
In respect of defined contribution plans:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||
|
Total charge for defined contribution plans
|
1.9
|
|
|
2.1
|
|
|
4.0
|
|
|
1.6
|
|
|
2.1
|
|
|
3.7
|
|
|
1.3
|
|
|
1.8
|
|
|
3.1
|
|
|
|
Total charge / (credit) for pension plans
|
3.5
|
|
|
3.1
|
|
|
6.6
|
|
|
3.8
|
|
|
2.6
|
|
|
6.4
|
|
|
(12.0
|
)
|
|
2.7
|
|
|
(9.3
|
)
|
|
|
|
2017
|
|
2017
|
|
2017
|
|
2016
|
|
2016
|
|
2016
|
|
||||||
|
|
U.K.
|
|
Non-U.K.
|
|
Total
|
|
U.K.
|
|
Non-U.K.
|
|
Total
|
|
||||||
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
||||||
|
Assets in active markets:
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
|
Equities and growth funds
|
203.4
|
|
|
22.9
|
|
|
226.3
|
|
|
171.6
|
|
|
20.6
|
|
|
192.2
|
|
|
|
Government bonds
|
49.9
|
|
|
—
|
|
|
49.9
|
|
|
44.3
|
|
|
—
|
|
|
44.3
|
|
|
|
Corporate bonds
|
72.7
|
|
|
18.3
|
|
|
91.0
|
|
|
64.5
|
|
|
16.0
|
|
|
80.5
|
|
|
|
Cash
|
0.3
|
|
|
—
|
|
|
0.3
|
|
|
(0.1
|
)
|
|
—
|
|
|
(0.1
|
)
|
|
|
Total market value of assets
|
326.3
|
|
|
41.2
|
|
|
367.5
|
|
|
280.3
|
|
|
36.6
|
|
|
316.9
|
|
|
|
Present value of plan liabilities
|
(369.7
|
)
|
|
(53.1
|
)
|
|
(422.8
|
)
|
|
(334.8
|
)
|
|
(48.6
|
)
|
|
(383.4
|
)
|
|
|
Deficit in the plans
|
(43.4
|
)
|
|
(11.9
|
)
|
|
(55.3
|
)
|
|
(54.5
|
)
|
|
(12.0
|
)
|
|
(66.5
|
)
|
|
|
Related deferred income tax assets
|
7.8
|
|
|
3.1
|
|
|
10.9
|
|
|
10.2
|
|
|
4.4
|
|
|
14.6
|
|
|
|
Net pension liabilities
|
(35.6
|
)
|
|
(8.8
|
)
|
|
(44.4
|
)
|
|
(44.3
|
)
|
|
(7.6
|
)
|
|
(51.9
|
)
|
|
|
|
2017
|
|
2017
|
|
2017
|
|
2016
|
|
2016
|
|
2016
|
|
||||||
|
|
U.K.
|
|
Non-U.K.
|
|
Total
|
|
U.K.
|
|
Non-U.K.
|
|
Total
|
|
||||||
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
||||||
|
At January 1
|
334.8
|
|
|
48.6
|
|
|
383.4
|
|
|
334.4
|
|
|
61.0
|
|
|
395.4
|
|
|
|
Service cost
|
—
|
|
|
0.1
|
|
|
0.1
|
|
|
0.3
|
|
|
0.1
|
|
|
0.4
|
|
|
|
Interest on obligation
|
8.9
|
|
|
1.9
|
|
|
10.8
|
|
|
10.9
|
|
|
2.6
|
|
|
13.5
|
|
|
|
Contributions from plan members
|
—
|
|
|
—
|
|
|
—
|
|
|
0.1
|
|
|
—
|
|
|
0.1
|
|
|
|
Actuarial gains on financial assumptions
|
6.9
|
|
|
3.8
|
|
|
10.7
|
|
|
67.5
|
|
|
2.6
|
|
|
70.1
|
|
|
|
Actuarial gains on plan experience
|
3.5
|
|
|
0.5
|
|
|
4.0
|
|
|
(3.3
|
)
|
|
(0.2
|
)
|
|
(3.5
|
)
|
|
|
Exchange difference
|
31.7
|
|
|
0.3
|
|
|
32.0
|
|
|
(59.3
|
)
|
|
(0.1
|
)
|
|
(59.4
|
)
|
|
|
Benefits paid
|
(16.1
|
)
|
|
(2.1
|
)
|
|
(18.2
|
)
|
|
(15.8
|
)
|
|
(2.6
|
)
|
|
(18.4
|
)
|
|
|
Curtailment credit
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(14.8
|
)
|
|
(14.8
|
)
|
|
|
At December 31
|
369.7
|
|
|
53.1
|
|
|
422.8
|
|
|
334.8
|
|
|
48.6
|
|
|
383.4
|
|
|
|
Assumption
|
|
Change in assumption
|
|
Impact on total defined
benefit obligations
|
|
|
Discount rate
|
|
Increase/decrease by 1.0%
|
|
Decrease/increase by 18%
|
|
|
CPI inflation (and related increases)
|
|
Increase/decrease by 1.0%
|
|
Increase/decrease by 10%
|
|
|
Post retirement mortality
|
|
Increase by 1 year
|
|
Increase by 4%
|
|
|
|
2017
|
|
2017
|
|
2017
|
|
2016
|
|
2016
|
|
2016
|
|
||||||
|
|
U.K.
|
|
Non-U.K.
|
|
Total
|
|
U.K.
|
|
Non-U.K.
|
|
Total
|
|
||||||
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
$M
|
|
||||||
|
At January 1
|
280.3
|
|
|
36.6
|
|
|
316.9
|
|
|
287.1
|
|
|
49.4
|
|
|
336.5
|
|
|
|
Interest on plan assets
|
7.5
|
|
|
1.5
|
|
|
9.0
|
|
|
9.4
|
|
|
2.1
|
|
|
11.5
|
|
|
|
Actuarial gains
|
20.4
|
|
|
3.8
|
|
|
24.2
|
|
|
43.7
|
|
|
1.2
|
|
|
44.9
|
|
|
|
Exchange difference
|
27.4
|
|
|
—
|
|
|
27.4
|
|
|
(49.8
|
)
|
|
—
|
|
|
(49.8
|
)
|
|
|
Contributions from employer
|
7.0
|
|
|
1.9
|
|
|
8.9
|
|
|
6.0
|
|
|
1.2
|
|
|
7.2
|
|
|
|
Contributions from plan members
|
—
|
|
|
—
|
|
|
—
|
|
|
0.1
|
|
|
—
|
|
|
0.1
|
|
|
|
Administrative expenses
|
(0.2
|
)
|
|
(0.5
|
)
|
|
(0.7
|
)
|
|
(0.4
|
)
|
|
(0.5
|
)
|
|
(0.9
|
)
|
|
|
Benefits paid
|
(16.1
|
)
|
|
(2.1
|
)
|
|
(18.2
|
)
|
|
(15.8
|
)
|
|
(2.6
|
)
|
|
(18.4
|
)
|
|
|
Settlement credit
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(14.2
|
)
|
|
(14.2
|
)
|
|
|
At December 31
|
326.3
|
|
|
41.2
|
|
|
367.5
|
|
|
280.3
|
|
|
36.6
|
|
|
316.9
|
|
|
|
|
Number of shares held by ESOP Trustees
|
|
||||
|
|
£0.0001 deferred shares
|
|
£0.50 ordinary shares
|
|
||
|
At January 1, 2017
|
15,977,968,688
|
|
|
55,816
|
|
|
|
Shares utilized during the year
|
—
|
|
|
(34,594
|
)
|
|
|
Shares transferred into ESOP during the year
|
—
|
|
|
83,487
|
|
|
|
At December 31, 2017
|
15,977,968,688
|
|
|
104,709
|
|
|
|
|
2017
|
|
2016
|
|
2015
|
|
|||
|
|
$M
|
$M
|
|
$M
|
|
||||
|
I.P.O. related share based compensation charges
|
—
|
|
|
—
|
|
|
0.1
|
|
|
|
Other share based compensation charges
|
2.2
|
|
|
1.4
|
|
|
1.3
|
|
|
|
Restructuring share based compensation charges
|
0.9
|
|
|
—
|
|
|
—
|
|
|
|
|
3.1
|
|
|
1.4
|
|
|
1.4
|
|
|
|
|
2017
|
|
2017
|
|
2016
|
|
2016
|
|
||
|
|
Number
|
|
Weighted average exercise price
|
|
Number
|
|
Weighted average exercise price
|
|
||
|
At January 1
|
963,789
|
|
|
$8.51
|
|
1,144,534
|
|
|
$7.26
|
|
|
Granted during the year
|
386,614
|
|
|
$0.65
|
|
107,660
|
|
|
$0.67
|
|
|
Exercised during the year
|
(172,501
|
)
|
|
$(5.03)
|
|
(132,599
|
)
|
|
$(0.67)
|
|
|
Accrued dividend awards
|
12,258
|
|
|
$0.65
|
|
12,572
|
|
|
$0.67
|
|
|
Lapsed during the year
|
(7,845
|
)
|
|
$(0.65)
|
|
(168,378
|
)
|
|
$(0.67)
|
|
|
At December 31
|
1,182,315
|
|
|
$6.42
|
|
963,789
|
|
|
$8.51
|
|
|
|
2017
|
|
2016
|
|
|
Dividend yield (%)
|
4.00
|
|
4.00
|
|
|
Expected volatility range (%)
|
26.81 - 35.81
|
|
29.73 – 38.73
|
|
|
Risk-free interest rate (%)
|
1.00 - 2.01
|
|
0.36 – 1.05
|
|
|
Expected life of share options range (years)
|
0.50 - 7.36
|
|
1 - 3.5
|
|
|
Weighted average exercise price ($)
|
$0.65
|
|
$0.67
|
|
|
Model used
|
Black-Scholes
|
|
Black-Scholes
|
|
(1)
|
Luxfer Holdings PLC
(registered in England and Wales with number 3690830) (
Company
);
|
(2)
|
The parties
listed in Part 1 (The Original Borrowers) of Schedule 1
(
Original Borrowers
)
;
|
(3)
|
The parties
listed in Part 2 (The Original Guarantors) of Schedule 1
(
Original Guarantors
)
;
|
(4)
|
Lloyds Bank plc, The Royal Bank of Scotland plc, Clydesdale Bank plc (trading as Yorkshire Bank)
,
HSBC Bank plc and Citibank, N.A. (London Branch)
as mandated lead arrangers (whether acting individually or together
(
Arrangers
);
|
(5)
|
The Financial Institutions
listed in Part 3 (The Original Lenders) of Schedule 1 as lenders
(
Original Lenders
);
|
(6)
|
Lloyds Bank plc, Clydesdale Bank PLC (trading as Yorkshire Bank), HSBC Bank plc, National Westminster Bank plc and Citibank, N.A. (London Branch)
as ancillary facilities providers
(
Original Ancillary Lenders
);
|
(7)
|
The Royal Bank of Scotland plc
as agent of the other Finance Parties
(
Agent
); and
|
(8)
|
Lloyds Bank plc
as document co-ordinator
(Document co-ordinator).
|
(A)
|
Prior to the date of this Agreement, Bank of America ceased to be an Arranger pursuant to the Appointment, Resignation and Transfer Deed.
|
(B)
|
Prior to the date of this Agreement, HSBC and Citibank were appointed as Arrangers.
|
(C)
|
Prior to the date of this Agreement, Lloyds resigned as Agent and RBS was appointed in its place pursuant to the Appointment, Resignation and Transfer Deed.
|
(D)
|
Santander and Bank of America have made the Required Transfers immediately prior to the Parties entering into this Agreement. Following completion of the Required Transfers, the Commitments of each Lender immediately prior to the date of this Agreement are set out in part 3 (The Original Lenders) of schedule 1.
|
(E)
|
Following completion of the Required Transfers and the other action referred to in (A) above Santander and Bank of America are no longer a Finance Party in any capacity for the purposes of the Original Facilities Agreement.
|
(a)
|
Unless otherwise defined in this Agreement, a term defined in the Original Facilities Agreement has the same meaning when used in this Agreement or any notices, acknowledgements or other documents issued under or in connection with this Agreement.
|
(b)
|
Clause 1.2 (Interpretation) of the Original Facilities Agreement is incorporated in this Agreement as if set out here in full but so that each reference in that clause to "this Agreement" shall be read as a reference to this Agreement.
|
(a)
|
Unless expressly provided to the contrary in any Finance Document, a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or enjoy the benefit of any term of this Agreement or any other Finance Document issued or entered into under or in connection with it.
|
(b)
|
Unless expressly provided to the contrary in any Finance Document the consent of any person who is not a Party is not required to rescind or vary this Agreement or any other Finance Document entered into under or in connection with it.
|
(a)
|
The Agent shall (acting on the instructions of all the Lenders if a waiver is required) notify the Company promptly in writing when it has received or waived the requirement to receive all the documents and other evidence listed in Schedule 2 (Conditions precedent) of this Agreement in form and substance satisfactory to the Agent.
|
(i)
|
a Default is continuing or would result from the restatement of the Original Facilities Agreement pursuant to clause 2.1; or
|
(ii)
|
the representations in clause 3 (Representations) to be made by each Obligor are not true.
|
(i)
|
the New Borrower, shall, with effect on and from the Fourth Restatement Date, be bound by the terms and provisions of the Restated Agreement and other Finance Documents as a Borrower pursuant to clause 30.2 (Additional Borrowers) of the Original Facilities Agreement as if it had been an original party in the capacity of Borrower and will be entitled to all rights and benefits and subject to all obligations and liabilities under the Restated Agreement as a Borrower; and
|
(ii)
|
the New Guarantor, shall, with effect on and from the Fourth Restatement Date, be bound by the terms and provisions of the Restated Agreement and other Finance Documents as a Guarantor pursuant to clause 30.4 (Additional Guarantors) or the Original Facilities Agreement as if it had been an original party in the capacity of Guarantor and will be entitled to all rights and benefits and subject to all obligations and liabilities under the Restated Agreement as a Guarantor.
|
(b)
|
The address and facsimile number of the New Borrower and the New Guarantor for notices and demands under the Restated Agreement are:
|
(c)
|
The Company confirms that no Default is continuing or would result from the New Borrower becoming a Borrower and the New Guarantor becoming a Guarantor.
|
(d)
|
With effect from the Fourth Restatement Date, all the Lenders approve the New Borrower becoming a Borrower and the New Guarantor becoming a Guarantor.
|
(e)
|
This clause 2.5 shall be deemed to be, and shall take effect as, an Accession Deed as defined in and for the purposes of the Restated Agreement.
|
(a)
|
Each Obligor makes the Repeating Representations by reference to the facts and circumstances then existing on the date of this Agreement;
|
(b)
|
Each Obligor makes all of the representations set out in clause 23 (Representations) of the Restated Agreement by reference to the facts and circumstances then existing on the Fourth Restatement Date.
|
(c)
|
Each Obligor confirms that the Group Structure Chart delivered to the Agent pursuant to clause 2.2(a) (Conditions precedent) is true, complete and accurate in all material respects as at the Fourth Restatement Date.
|
6.1
|
The Company must pay to each Lender for its own account a participation fee in an amount and at the time referred to in the Participation Fee Letter.
|
6.2
|
The Company must pay to the Agent for its own account an agency fee in an amount and at a time referred to in the Agency Fee Letter.
|
6.3
|
The Company shall, within 3 Business Days of demand, reimburse the Agent or the Document Co-ordinator, for the amount of all costs and expenses (including agreed legal fees) reasonably incurred by the Agent or the Document Co-ordinator in connection with the negotiation, preparation, printing, execution and perfection of this Agreement and any other documents referred to in this Agreement.
|
6.4
|
The Obligors shall pay and, within 3 Business Days of demand, indemnify each Finance Party against any cost, loss or liability that Finance Party incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of this Agreement.
|
Company Name
|
Company Number
|
Relevant Jurisdiction
|
Luxfer Holdings PLC
|
3690830
|
England & Wales
|
BA Holdings, Inc.
|
|
Delaware
|
Luxfer Group Limited
|
3944037
|
England & Wales
|
Luxfer Group 2000 Limited
|
4027006
|
England & Wales
|
MEL Chemicals Inc.
|
|
New Jersey
|
Magnesium Elektron North America Inc.
|
|
Delaware
|
Luxfer Gas Cylinders Limited
|
3376625
|
England & Wales
|
Company Name
|
Company Number
|
Relevant Jurisdiction
|
Luxfer Holdings PLC
|
3690830
|
England & Wales
|
BA Holdings, Inc.
|
|
Delaware
|
Luxfer Group Limited
|
3944037
|
England & Wales
|
Luxfer Group 2000 Limited
|
4027006
|
England & Wales
|
MEL Chemicals Inc.
|
|
New Jersey
|
Magnesium Elektron North America, Inc.
|
|
Delaware
|
Luxfer Gas Cylinders Limited
|
3376625
|
England & Wales
|
Luxfer Group Services Limited
|
3981395
|
England & Wales
|
Magnesium Elektron Limited
|
3141950
|
England & Wales
|
Luxfer Overseas Holdings Limited
|
3081726
|
England & Wales
|
Luxfer Gas Cylinders China Holdings Limited
|
5165622
|
England & Wales
|
Luxfer Inc.
|
|
Delaware
|
Hart Metals, Inc.
|
|
Delaware
|
Reade Manufacturing Company
|
|
Delaware
|
Luxfer Magtech Inc.
|
|
Delaware
|
Luxfer Canada Limited
|
2017012705
|
Alberta, Canada
|
|
Total Commitment following
Required Transfers |
Bilateral Limit following
Required Transfers |
Lloyds Bank plc
|
$30,000,000
|
£17,000,000
|
Clydesdale Bank PLC (trading as Yorkshire Bank)
|
$30,000,000
|
£3,000,000
|
National Westminster Bank plc
|
$30,000,000
|
$5,000,000
|
HSBC Bank plc
|
$30,000,000
|
$25,000,000
|
Citibank, N.A. (London Branch)
|
$30,000,000
|
$10,000,000
|
Total
|
$150,000,000
|
|
(a)
|
A copy of the constitutional documents of each Obligor or a certificate of an authorised signatory of each relevant Obligor certifying that the constitutional documents previously delivered to the Agent for the purposes of the Original Facilities Agreement have not been amended and remain in full force and effect.
|
(b)
|
A copy of a resolution of the board or, if applicable, a committee of the board of directors of each Obligor:
|
(i)
|
approving the terms of, and the transactions contemplated by, the New Finance Documents and resolving that it execute, deliver and perform the New Finance Documents;
|
(ii)
|
authorising a specified person or persons to execute the New Finance Documents on its behalf;
|
(iii)
|
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices to be signed and/or despatched by it under or in connection with the New Finance Documents.
|
(c)
|
If applicable, a copy of a resolution of the board of directors of the relevant company, establishing the committee referred to in paragraph 1(b) above.
|
(d)
|
A specimen of the signature of each person authorised by the resolution referred to in paragraph 1(b) above in relation to the New Finance Documents and related documents.
|
(e)
|
Where required by the applicable constitutional documents or applicable laws, a copy of a resolution signed by all the holders of the issued shares in each Guarantor (other than the Company), approving the terms of, and the transactions contemplated by, the New Finance Documents.
|
(f)
|
Where required by the applicable constitutional documents or applicable laws, a copy of a resolution of the board of directors of each corporate shareholder of each Guarantor approving the terms of the resolution referred to in paragraph 1(e) above.
|
(g)
|
A certificate from a director of the Company confirming that borrowing or guaranteeing, as appropriate, the Total Commitments and any Uncommitted Accordion Facility would not cause any borrowing, guarantee or similar limit binding on any Obligor to be exceeded.
|
(h)
|
A certificate from a director or officer of each Obligor certifying that each copy document relating to it specified in this Schedule 2 is correct, complete and in full force and effect and has not been amended, varied, novated, supplemented, superseded or terminated as at a date no earlier than the Fourth Restatement Date.
|
(b)
|
The Participation Fee Letter executed by the Company.
|
(c)
|
The Agency Fee Letter executed by the Company.
|
(a)
|
A legal opinion of Addleshaw Goddard LLP, legal advisers to the Agent as to English law substantially in the form provided to the Agent and/or distributed to the Finance Parties prior to execution and delivery of this Agreement.
|
(b)
|
A legal opinion of the Company's solicitors, Fried, Frank, Harris, Shriver & Jacobson LLP, as to the laws of the state of Delaware in substantially in the form provided to the Agent and/or distributed to the Finance Parties prior to execution and delivery of this Agreement.
|
(c)
|
A legal opinion of the Company's solicitors, Montalbano, Condon & Frank, P.C., as to the laws of the state of New Jersey in substantially in the form provided to the Agent and/or distributed to the Finance Parties prior to execution and delivery of this Agreement.
|
(d)
|
A legal opinion of the Company's solicitors, Torys LLP, as to the laws of the Province of Alberta and the federal laws of Canada applicable therein in substantially in the form provided to the Agent and/or distributed to the Finance Parties prior to execution and delivery of this Agreement.
|
(a)
|
The Appointment, Resignation and Transfer Deed. executed by each party to that deed.
|
(b)
|
The Group Structure Chart which shows the Group as at the Fourth Restatement Date.
|
(c)
|
A certified copy of the latest financial statements of the Company and each Obligor.
|
(d)
|
A copy of the Compliance Certificate for the Relevant Period ending 31 March 2017.
|
(e)
|
Personal Property Security Act searches and related lien searches (and other customary searches) against any Canadian Obligor.
|
(f)
|
Evidence that the fees, costs and expenses then due from the Company pursuant to clause 6 (Fees, costs and expenses) have been paid or will be paid by the Fourth Restatement Date.
|
(g)
|
The Agent and each Lender being satisfied with the results of its "know your customer" and money laundering checks on the Obligors, their officers and shareholders.
|
(h)
|
A copy of any other Authorisation or other document, opinion or assurance which the Agent notifies the Company is necessary in connection with the entry into and performance of the transactions contemplated by this Agreement or for the validity and enforceability of this Agreement.
|
(1)
|
Luxfer Holdings PLC
(registered in England and Wales with number 3690830) (
Company
);
|
(2)
|
The parties
listed in Part 1 - (Original Borrowers) of Schedule 1 (
Original Borrowers
);
|
(3)
|
The parties
listed in Part 2 - (Original Guarantors) of Schedule 1 (
Original Guarantors
);
|
(4)
|
Lloyds Bank plc
,
Clydesdale Bank plc (trading as Yorkshire Bank), HSBC Bank plc, Citibank, N.A. (London Branch)
and
The Royal Bank of Scotland plc
as mandated lead arrangers (whether acting individually or together the
Arrangers
);
|
(5)
|
The Financial Institutions
listed in Part 3 - (The Original Lenders) of Schedule 1 as lenders (
Original Lenders
);
|
(6)
|
Lloyds Bank plc
,
Clydesdale Bank plc (trading as Yorkshire Bank), HSBC Bank plc, Citibank, N.A. (London Branch)
and
National Westminster Bank plc
as ancillary facilities providers (
Original Ancillary Lenders
);
|
(7)
|
Lloyds Bank plc
as document co-ordinator (
Document Co-ordinator
); and
|
(8)
|
The Royal Bank of Scotland plc
as agent of the other Finance Parties (
Agent
).
It is agreed
|
(a)
|
a Lender (provided that such Lender is not a Defaulting Lender)
|
(b)
|
a bank or financial institution which has a rating for its short-term unsecured and non credit-enhanced debt obligations of A-3 or higher by Standard & Poor's Rating Services, F(3) or higher by Fitch Ratings Ltd or P-3 or higher by Moody's Investors Service Limited or a comparable rating from an internationally recognised credit rating agency; or
|
(c)
|
any other bank or financial institution approved by the Agent, or if the Agent is an Impaired Agent the Majority Lenders.
|
(a)
|
the principal amount under each overdraft facility (net of any Available Credit Balance);
|
(b)
|
the face amount of each letter of credit under that Ancillary Facility (less any amount prepaid or repaid in respect of such instrument and taking account of any decrease in the liability under such instrument as a consequence of a decrease in the underlying liability in respect of which such instrument was issued); and
|
(c)
|
the amount fairly representing the aggregate exposure (excluding interest and similar charges) of that Ancillary Lender under each other type of accommodation provided under that Ancillary Facility,
|
(a)
|
the Base Currency Amount of its participation in any outstanding Loans under that Facility and, in the case of the Revolving Facility or an Uncommitted Accordion Revolving Facility only, the Base Currency Amount of the aggregate of its applicable Ancillary Commitments; and
|
(b)
|
in relation to any duly requested proposed Loan, the Base Currency Amount of its participation in any other Loans that are due to be made under that Facility on or before the proposed Utilisation Date and in the case of the Revolving Facility or an Uncommitted Accordion Revolving Facility only, the Base Currency Amount of its Ancillary Commitment in relation to any new Ancillary Facility under the relevant Facility that is due to be made available on or before the proposed Utilisation Date.
|
(i)
|
that Lender's participation in any Revolving Facility Loans or any Uncommitted Accordion Facility Loans that are due to be repaid or prepaid on or before the proposed Utilisation Date; and
|
(ii)
|
that Lender's Ancillary Commitments under the relevant Facility to the extent that they are due to be reduced or cancelled on or before the proposed Utilisation Date.
|
(a)
|
in relation to a Loan, the amount specified in the Utilisation Request delivered by a Borrower (or the Company on its behalf) for that Loan (or, if the amount requested is not denominated in the Base Currency, that amount converted into the Base Currency at the Agent's Spot Rate of Exchange on the date which is 3 Business Days before the Utilisation Date or, if later, on the date the Agent receives the Utilisation Request in accordance with the terms of this Agreement);
|
(b)
|
in relation to an Ancillary Commitment, the amount specified as such in the notice delivered to the Agent by the Company pursuant to clause 7.2 (Availability); or
|
(c)
|
if the amount specified is not denominated in the Base Currency, that amount converted into the Base Currency at the Agent's Spot Rate of Exchange on the date which is 3 Business Days before the Ancillary Commencement Date for that Ancillary Facility or, if later, the date the Agent receives the notice of the Ancillary Commitment in accordance with the terms of this Agreement,
|
(a)
|
in relation to LIBOR, as the rate at which the relevant Base Reference Bank could borrow funds in the London interbank market; or
|
(b)
|
in relation to EURIBOR, as the rate at which the relevant Base Reference Bank could borrow funds in the European interbank market,
|
(a)
|
the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel III: A global regulatory framework for more resilient banks and banking systems", "Basel III: International framework for liquidity risk measurement, standards and monitoring" and "Guidance for national authorities operating the countercyclical capital buffer" published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated
|
(b)
|
the rules for global systemically important banks contained in "Global systemically important banks: assessment methodology and the additional loss absorbency requirement – Rules text" published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated and
|
(c)
|
any further guidance or standards published by the Basel Committee on Banking Supervision relating to Basel III.
|
(a)
|
the interest (other than the Margin) which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the amount of the Loan or Unpaid Sum received been paid on the last day of that Interest Period,
|
(b)
|
the amount which that Lender would be able to obtain by placing an amount equal to the amount of the Loan or Unpaid Sum received by it on deposit with a leading bank in the Relevant Interbank Market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.
|
(a)
|
in relation to any date for payment or purchase of a currency other than euro, the principal financial centre of the country of that currency; or
|
(b)
|
in relation to any date for payment or purchase of euro, any TARGET Day.
CA2006
means the Companies Act 2006.
|
(a)
|
certificates of deposit maturing within 6 Months after the relevant date of calculation and issued by an Acceptable Bank;
|
(b)
|
any investment in marketable debt obligations issued or guaranteed by the government of the United States of America, the United Kingdom or any member state of the European Economic Area (subject to any such member state of the European Economic Area having a credit rating equivalent to or better than the United States of America or the United Kingdom), or by an instrumentality or agency of any of them having an equivalent credit rating, maturing within 3 Months after the relevant date of calculation and not convertible or exchangeable to any other security;
|
(c)
|
commercial paper not convertible or exchangeable to any other security:
|
(i)
|
for which a recognised trading market exists;
|
(ii)
|
issued by an issuer incorporated in the United States of America, the United Kingdom or any member State of the European Economic Area;
|
(iii)
|
which matures within 3 Months after the relevant date of calculation; and
|
(iv)
|
which has a credit rating of either A-1 or higher by Standard & Poor's Rating Services, F-1 or higher by Fitch Ratings Ltd or P-1 or higher by Moody's Investors Service Limited, or, if no rating is available in respect of the commercial paper, the issuer of which has, in respect of its long-term unsecured and non-credit enhanced debt obligations, an equivalent rating;
|
(i)
|
have a credit rating of either A-1 or higher by Standard & Poor's Rating Services, F-1 or higher by Fitch Ratings Ltd or P-1 or higher by Moody's Investors Service Limited;
|
(ii)
|
invest substantially all their assets in securities of the types described in paragraphs (a) to (c); and
|
(i)
|
the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to:
|
(A)
|
cast, or control the casting of, more than 50% of the maximum number of votes that might be cast at a general meeting of the Company; or
|
(B)
|
appoint or remove all, or the majority, of the directors or other equivalent officers of the Company; or
|
(C)
|
give directions with respect to the operating and financial policies of the Company with which the directors or other equivalent officers of the Company are obliged to comply; or
|
(ii)
|
the holding beneficially of more than 50% of the issued share capital of the Company (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital); and
|
(b)
|
acting in concert
means, a group of persons who, pursuant to an agreement or understanding (whether formal or informal), actively co-operate, through the acquisition, directly or indirectly, of shares in the Company by any of them, either directly or indirectly, to obtain or consolidate control of the Company.
|
(a)
|
any member of the Group, or any of its advisers; or
|
(b)
|
another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers,
|
(i)
|
is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of clause 40.6 (Confidentiality); or
|
(ii)
|
is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or
|
(iii)
|
is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality.
|
(a)
|
purchases by way of assignment or transfer;
|
(b)
|
enters into any sub-participation in respect of; or
|
(c)
|
enters into any other agreement or arrangement having an economic effect substantially similar to a sub-participation in respect of,
|
(a)
|
which has failed to make its participation in a Loan available or has notified the Agent that it will not make its participation in a Loan available, in each case, by the Utilisation Date of that Loan in accordance with clause 5.4 (Lenders' participation); or
|
(b)
|
which has otherwise rescinded or repudiated a Finance Document or any term of a Finance Document; or
|
(c)
|
with respect to which an Insolvency Event has occurred,
unless, in the case of paragraph (a) above: |
(ii)
|
the Lender is disputing in good faith whether it is contractually obliged to make the payment in question.
|
(a)
|
Luxfer Group Pension Plan
|
(b)
|
Luxfer Group Supplementary Pension Plan
|
(c)
|
BA Holdings inc. Defined Benefit Pension Plan
|
(d)
|
Pension Plan for Hourly Employees of Luxfer Inc
|
(e)
|
BA Holdings Inc. Executive Supplemental Retirement Plan
|
(f)
|
IPC Supplementary Pension scheme and
|
(g)
|
IDR Termination Indemnities
|
(a)
|
listed on the annex to the Executive Order;
|
(b)
|
owned or controlled by, or acting for or on behalf of, any person listed on the annex to the Executive Order;
|
(c)
|
listed on the "Specially Designated Nationals and Blocked Persons" list maintained by OFAC of the United States Department of the Treasury, as updated or amended from time to time;
|
(d)
|
whose property has been blocked, or is subject to seizure, forfeiture or confiscation, under any applicable Anti-Terrorism Law; or
|
(e)
|
that commits, threatens or conspires to commit or support "terrorism" as defined in the Executive Order.
|
(a)
|
a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facilities (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or
|
(b)
|
the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:
|
(i)
|
from performing its payment obligations under the Finance Documents; or
|
(ii)
|
from communicating with other Parties in accordance with the terms of the Finance Documents,
|
(a)
|
air (including, without limitation, air within natural or man made structures, whether above or below ground);
|
(b)
|
water (including, without limitation, territorial, coastal and inland waters, water under or within land and water in drains and sewers); and
|
(c)
|
land (including, without limitation, land under water).
|
(a)
|
the pollution or protection of the Environment;
|
(b)
|
the conditions of the workplace; or
|
(c)
|
the generation, handling, storage, use, release or spillage of any substance which alone, or in combination with any other, is capable of causing harm to the Environment, including without limitation, any waste.
|
(a)
|
any reportable event, as defined in section 4043(c) of ERISA, with respect to an Employee Plan as to which the PBGC has not by regulation waived the requirement of section 4043(a) of ERISA that it be notified within thirty days of the occurrence of that event. However, a failure to meet the minimum funding standard of section 412 of the Internal Revenue Code or section 302 of ERISA shall be a reportable event for the purposes of this paragraph (a) regardless of the issuance of any waiver under said sections;
|
(b)
|
the requirements of subsection (1) of section 4043(b) of ERISA (without regard to subsection (2) of that section) are met with respect to a contributing sponsor, as defined in section 4001(a)(13) of ERISA, of an Employee Plan and an event described in
|
(c)
|
the filing under section 4041(c) of ERISA of a notice of intent to terminate any Employee Plan;
|
(d)
|
the termination of any Employee Plan under section 4041(c) of ERISA;
|
(e)
|
the institution of proceedings under section 4042 of ERISA by the PBGC for the termination of, or the appointment of a trustee to administer, any Employee Plan;
|
(f)
|
the failure to make a required contribution to any Employee Plan that would result in the imposition of an encumbrance pursuant to section 412 of the Internal Revenue Code or section 302 of ERISA; or
|
(g)
|
engagement with an Employee Plan in a non-exempt prohibited transaction within the meaning of section 4975 of the Internal Revenue Code or section 406 of ERISA other than as a result of entering into this Agreement.
|
(a)
|
the applicable Screen Rate;
|
(b)
|
(if no Screen Rate is available for the Interest Period of that Loan) the Interpolated Screen Rate for that Loan; or
|
(c)
|
if
|
(a)
|
any deposit account specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of the Company or any of its Subsidiary's salaried employees;
|
(b)
|
any deposit account credited at any time with an amount not exceeding $100,000 (or its equivalent in any currency) individually and, when aggregated with the amounts in all other such accounts, $500,000 (or its equivalent in any currency);
|
(c)
|
any deposit account, the balance of which consists solely of funds set aside in connection with tax, trust or similar accounts that are or are or will be promptly applied in the ordinary course of business toward valid applicable obligations of such Obligor; and
|
(d)
|
any "lock-box" deposit account the balance of which is swept on a daily basis into other deposit accounts of the Company or any of its Subsidiaries that are deposit accounts as set forth under the preceding limbs (a) - (c) (inclusive).
|
(a)
|
in respect of a Lender, the office or offices notified by that Lender to the Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than 7 days' written notice) as the office or offices through which it will perform its obligations under this Agreement; or
|
(b)
|
in respect of any other Finance Party, the office in the jurisdiction in which it is resident for tax purposes.
|
(a)
|
in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 January 2014;
|
(b)
|
in relation to a "withholdable payment" described in section 1473(1)(A)(ii) of the Code (which relates to "gross proceeds" from the disposition of property of a type that can produce interest from sources within the US), 1 January 2019; or
|
(c)
|
in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b) above, 1 January 2019,
|
(i)
|
the Original Lenders and the Company; or
|
(ii)
|
the Agent and the Company,
|
(c)
|
the Participation Fee Letter (as defined in the Fourth Amendment and Restatement Agreement).
|
(a)
|
maintain a specified level of net worth, shareholders' equity, total assets, cash flow or net income;
|
(b)
|
maintain any specified ratio of any component of its capital structure to any other component thereof (including, without limitation, the relationship of indebtedness, senior indebtedness or subordinated indebtedness to total capitalisation or to net worth); or
|
(c)
|
maintain any measure of its ability to service its indebtedness (including, without limitation, any specified ratio of revenues, cash flow or net income to indebtedness, interest expense, rental expense, capital expenditures and/or scheduled payments of indebtedness).
|
(a)
|
monies borrowed and debit balances at banks or other financial institutions;
|
(b)
|
acceptance under any acceptance credit or bill discounting facility (or dematerialised equivalent);
|
(c)
|
any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;
|
(d)
|
any Finance Leases;
|
(e)
|
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);
|
(f)
|
any Treasury Transaction (and, when calculating the value of that Treasury Transaction, only the marked to market value (or, if any actual amount is due as a result of the
|
(g)
|
any counter-indemnity obligation in respect of a guarantee, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution in respect of (i) an underlying liability of an entity which is not a member of the Group which liability would fall within one of the other paragraphs of this definition;
|
(h)
|
any amount of any liability under an advance or deferred purchase agreement if (i) one of the primary reasons behind entering into the agreement is to raise finance or to finance the acquisition or construction of the asset or service in question or (ii) the agreement is in respect of the supply of assets or services and payment is due more than 180 days after the date of supply;
|
(i)
|
any amount raised under any other transaction (including any forward sale or purchase sale and sale back or sale and leaseback agreement) having the commercial or economic effect of a borrowing or otherwise classified as borrowings under the Accounting Principles;
|
(j)
|
any amount raised by the issue of redeemable shares which are redeemable (other than at the option of the issuer) before the Termination Date or are otherwise classified as borrowings under the Accounting Principles; and
|
(k)
|
the amount of any liability in respect of any guarantee for any of the items referred to in paragraphs (a) to (j).
|
(a)
|
it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for payment;
|
(b)
|
the Agent otherwise rescinds or repudiates as Finance Document;
|
(c)
|
(if the Agent is also a Lender) it is a Defaulting Lender under paragraph (a) or (b) of the definition of
Defaulting Lender
and, in the case of the events or circumstances referred to in paragraph (a), none of the exceptions apply to that paragraph; or
|
(d)
|
an Insolvency Event has occurred and is continuing with respect to the Agent, unless, in the case of paragraph (a) above:
|
(iii)
|
the Agent is disputing in good faith whether it is contractually obliged to make the payment in question.
|
(a)
|
any receiver, administrative receiver, administrator, liquidator, compulsory manager or other similar officer is appointed in respect of that Finance Party or all or substantially all of its assets; or
|
(b)
|
that Finance Party is subject to any event which has an analogous effect to any of the events specified in paragraph (a) under the applicable laws of any jurisdiction; or
|
(a)
|
any patents, trade marks, service marks, designs, business names, copyrights, database rights, design rights, domain names, moral rights, inventions, confidential information, know-how and other intellectual property rights and interests (which may now or in the future subsist), whether registered or unregistered; and
|
(b)
|
the benefit of all applications and rights to use such assets of each member of the Group (which may now or in the future subsist).
|
(a)
|
the principle that equitable remedies may be granted or refused at the discretion of a court and the limitation of enforcement by laws relating to insolvency, reorganisation and other laws generally affecting the rights of creditors;
|
(b)
|
the time barring of claims under the Limitation Acts, the possibility that an undertaking to assume liability for or indemnify a person against non-payment of UK stamp duty may be void and defences of set-off or counterclaim;
|
(c)
|
the possibility that the courts may recharacterise any security purporting to be a fixed charge as a floating charge (or vice versa); and
|
(d)
|
similar principles, rights and defences under the laws of any Relevant Jurisdiction.
Lender
means:
|
(a)
|
the applicable Screen Rate;
|
(b)
|
(if no Screen Rate is available for the Interest Period of that Loan) the Interpolated Screen Rate for that Loan; or
|
(c)
|
if:
|
(i)
|
no Screen Rate is available for the currency of that Loan; or
|
(ii)
|
no Screen Rate is available for the Interest Period of that Loan and it is not possible to calculate an Interpolated Screen Rate for that Loan the Base Reference Bank Rate,
|
(a)
|
in relation to each Revolving Facility Loan, the percentage rate per annum determined pursuant to clause 15.1 (Margin adjustment);
|
(b)
|
in relation to any Uncommitted Accordion Facility Loan, the rate per annum specified in the relevant Uncommitted Accordion Facility Commitment Notice, subject to any margin adjustment mechanism also specified therein;
|
(c)
|
in relation to any Unpaid Sum relating or referable to a Facility, the rate per annum specified for that Facility; and
|
(d)
|
in relation to any other Unpaid Sum, the highest rate specified above.
|
(a)
|
the business, operations, property, condition (financial or otherwise) or prospects of the Group taken as a whole
|
(b)
|
the ability of an Obligor to perform its payment obligations under the Finance Documents (taking into account the financial resources available to that Obligor from other members of the Group) or
|
(c)
|
the rights or remedies of any Finance Party under any of the Finance Documents.
Material Company
means, at any time:
|
(a)
|
an Obligor;
|
(b)
|
a wholly-owned member of the Group that holds shares in an Obligor; or
|
(c)
|
a Subsidiary of the Company which has earnings before interest, tax and amortisation calculated on the same basis as EBITA representing 5% or more of EBITA, or has gross assets, (excluding intra-group items) representing 5%, or more of the gross assets of the Group, calculated on a consolidated basis.
|
(a)
|
(subject to paragraph (c)) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;
|
(b)
|
if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and
|
(a)
|
the note purchase agreement for up to US $65,000,000 entered into by BA Holdings Inc on or around the date of this Agreement;
|
(b)
|
the guarantee entered into by each Obligor on or around the Closing Date in the form set out in the note purchase agreement referred to in limb (a) above;
|
(c)
|
each note issued pursuant to the note purchase agreement referred to in limb (a) above;
|
(d)
|
the hedging letter issued pursuant to the note purchase agreement referred to in limb (a) above;
|
(e)
|
a letter dated 21 March 2011 between the Company and Pricoa Capital Group; and
|
(f)
|
any other Note Document as defined in the note purchase agreement referred to in limb (a) above.
|
(a)
|
in relation to the Company its consolidated audited financial statements for its financial year ended 31 December 2016;
|
(b)
|
in relation to the Company the consolidated unaudited monthly management accounts for the period from 1 January 2017 to 31 May 2017;
|
(c)
|
in relation to each Obligor (other than a Canadian Obligor or a US Obligor), its audited financial statements for the financial year ended 31 December 2016; and
|
(d)
|
in relation to any other Obligor, its audited financial statements delivered to the Agent as required by clause 30 (Changes to the Obligors).
|
(a)
|
an acquisition pursuant to a Permitted Share Issue;
|
(b)
|
the incorporation of a company which on incorporation becomes a member of the Group, but only if that company is incorporated with limited liability in the European Union, the United Kingdom, the United States, or such other jurisdiction in which an existing member
|
(c)
|
an acquisition by a member of the Group of an asset sold, leased, transferred or otherwise disposed of by another member of the Group in circumstances constituting a Permitted Disposal;
|
(d)
|
an acquisition (not being an acquisition by the Company), of (A) all or the amount required to hold a controlling interest of the issued share capital of a limited liability company or (B) (if the acquisition is made by a limited liability company) a business or undertaking carried on as a going concern, but only if:
|
(i)
|
no Default is continuing on the closing date for the acquisition or would occur as a result of the acquisition;
|
(ii)
|
the acquired company, business or undertaking:
|
(iii)
|
Leverage (calculated on a proforma basis taking into account the acquisition), subject to a Permitted Temporary Leverage Increase, does not exceed 2.5:1;
|
(A)
|
the EBITDA of the acquired company, business or undertaking (in respect of the period of 12 Months ending on the last day of the Month prior to the date the Company legally commits to the acquisition) is positive; or
|
(B)
|
the EBITDA of the acquired company, business or undertaking (in respect of the period of 12 Months ending on the last day of the Month prior to the date the Company legally commits to the acquisition) is negative and the prior written consent of the Majority Lenders (not to be unreasonably withheld or delayed) to the acquisition has been obtained;
|
(v)
|
the Company has delivered to the Lender not later than 5 Business Days prior to the date it (or the relevant member of the Group) legally commits to make such acquisition (such date being the
Acquisition Commitment Date
), a certificate signed by two directors of the Company:
|
(A)
|
giving notice to the Agent of the proposed acquisition;
|
(B)
|
to which is attached forecasts (which have been prepared on the basis of recent historical information and reasonable assumptions, and which assume that the acquisition has occurred), demonstrating that the Company will remain in compliance with its obligations under clause 25 (Financial covenants) for a period of not less than 12 Months from the closing date for the acquisition; and
|
(C)
|
certifying that Leverage (calculated on a proforma basis taking into account the acquisition) does not, subject to a Permitted Temporary Leverage Increase, exceed 2.5:1; and
|
(e)
|
an acquisition by the Company of its own shares (to be held in treasury) or by any other member of the Group of shares in the Company, in each case in connection with any employee share ownership or share incentive plan; or
|
(f)
|
an acquisition permitted by the Agent (acting on the instructions of the Majority Lenders (such consent not to be unreasonably withheld or delayed)) in writing.
|
(a)
|
of trading stock or cash made by any member of the Group in the ordinary course of trading of the disposing entity;
|
(b)
|
of any asset by a member of the Group to another member of the Group;
|
(c)
|
of assets in exchange for other assets comparable or superior as to type, value or quality;
|
(d)
|
of assets to a Permitted Joint Venture;
|
(e)
|
of obsolete or redundant Real Property, vehicles, plant and equipment for cash;
|
(f)
|
of Cash Equivalent Investments for cash or in immediate exchange for other Cash Equivalent Investments;
|
(g)
|
constituted by a licence of intellectual property rights permitted by clause 26.22 (Intellectual Property);
|
(h)
|
arising as a result of any Permitted Security;
|
(i)
|
of cash by way of a Permitted Loan;
|
(j)
|
of cash in order to complete a Permitted Acquisition;
|
(k)
|
of assets for cash where the higher of the market value or the net consideration receivable in respect of such asset (when aggregated with the higher of the market value or the net consideration receivable for any other sale, lease, licence, transfer or other disposal of an asset not allowed under the preceding paragraphs) does not exceed $25,000,000 (or its equivalent) in aggregate;
|
(l)
|
that is a Permitted Transaction;
|
(m)
|
of shares in the Company by the Company or any other member of the Group in connection with any employee share ownership or share incentive plan; or
|
(n)
|
of cash in order to fund the acquisition of shares in the Company in connection with any employee share ownership or share incentive plan.
|
(a)
|
the payment of a dividend to any member of the Group by any of that member of the Group's Subsidiaries;
|
(b)
|
the payment of a dividend by the Company provided no Event of Default has occurred and is continuing or would result from such payment, in each case, at the time such dividend is declared;
|
(c)
|
the redemption of up to £50,000 B preference shares at par value (plus any accrued dividend) issued by the Company to Brian Purves and Ian Mckinnon; or
|
(a)
|
arising under any of the Finance Documents, the Note Documents, in each case as in force on the date of this Agreement and amended from time to time in compliance with this Agreement;
|
(b)
|
arising under a Permitted Loan, a Permitted Guarantee or as permitted by clause 26.26 (Treasury transactions);
|
(c)
|
arising under a foreign exchange transaction for spot or forward delivery entered into in connection with protection against fluctuation in currency rates where that foreign exchange exposure arises in the ordinary course of trade or in respect of Loans made in Optional Currencies, but not a foreign exchange transaction for investment or speculative purposes;
|
(d)
|
under finance or capital leases of vehicles, plant, equipment or computers, provided that the aggregate capital value of all such items so leased under outstanding leases by members of the Group does not exceed $16,500,000 (or its equivalent in other currencies) at any time;
|
(e)
|
of a company that becomes a member of the Group as a result of a Permitted Acquisition provided that the Financial Indebtedness is repaid in full within 45 days of that company becoming a member of the Group;
|
(f)
|
arising under any Bilateral Facility;
|
(g)
|
owed by a member of the Group to another member of the Group;
|
(h)
|
performance bonds issued in the ordinary course of trading in respect of non-financial obligations;
|
(i)
|
permitted by the Agent (acting on the instructions of the Majority Lenders) in writing; and
|
(j)
|
such other Financial Indebtedness not permitted by the preceding paragraphs, provided that the outstanding principal amount of all Financial Indebtedness of the Group (including the Financial Indebtedness permitted pursuant to paragraphs (a) to (i) above (other than the Financial Indebtedness permitted under limbs (c), (f) or (g) of Permitted Loan)) does not exceed $300,000,000 (or its equivalent) in aggregate for the Group at any time.
|
(a)
|
the endorsement of negotiable instruments in the ordinary course of trade;
|
(b)
|
any guarantee to a property landlord of which a member of the Group is a tenant;
|
(c)
|
any performance or similar bond guaranteeing performance by a member of the Group under any contract entered into in the ordinary course of trade;
|
(d)
|
any guarantee or indemnity arising under any Transaction Document;
|
(e)
|
any indemnity given by a member of the Group for its liabilities in the ordinary course of trade;
|
(f)
|
a guarantee in respect of Financial Indebtedness permitted under limb (h) of the definition of Permitted Financial Indebtedness;
|
(g)
|
a guarantee of Financial Indebtedness as part of a Permitted Joint Venture;
|
(h)
|
a guarantee in respect of obligations of another member of the Group;
|
(i)
|
any guarantee given in respect of the netting or set-off arrangements permitted pursuant to paragraph (c) of the definition of Permitted Security;
|
(j)
|
any guarantee or indemnity given by a member of the Group in respect of any obligations of an employee or officer of a member of the Group, which obligations shall not exceed $165,000 (or its equivalent) in aggregate for all such obligations supported by such guarantee or indemnity pursuant to this clause (j) outstanding at any time; or
|
(k)
|
any guarantee arising under the Shelf Facility.
|
(A)
|
Leverage (as shown in the latest Compliance Certificate) does not, subject to a Permitted Temporary Leverage Increase, exceed 2.5:1; and
|
(B)
|
the Company has delivered to the Lender not later than 5 Business Days prior to the relevant member of the Group legally committing to make such joint venture investment, a certificate signed by two directors of the Company:
|
1)
|
giving notice to the Agent of the proposed joint venture investment; and
|
2)
|
to which is attached forecasts (which have been prepared on the basis of recent historical information and reasonable assumptions, and which assume that the joint venture investment has occurred), demonstrating that the Company will remain in compliance with its obligations under clause 25 (Financial covenants) for a period of not less than 12 Months from the date of the joint venture investment;
|
(iv)
|
that entity carries on or owns the same, a similar, complementary or related business to that carried on by the Group; and
|
(v)
|
the aggregate (without double counting) of:
|
(A)
|
all outstanding amounts lent, advances, contributed to or for equity in, or otherwise invested in, such entity by members of the Group;
|
(B)
|
the market value (at the date of transfer or contribution) of all assets transferred or contributed to such entity by members of the Group to the extent exceeding the value of the consideration for such transfers or contributions; and
|
(C)
|
all outstanding Financial Indebtedness incurred (whether by way of guarantee or otherwise) in relation to such entity by members of the Group,
|
(a)
|
any trade credit extended by any member of the Group to its customers on normal commercial terms and in the ordinary course of its trading activities;
|
(b)
|
Financial Indebtedness which is referred to in the definition of, or otherwise constitutes, Permitted Financial Indebtedness;
|
(c)
|
any loan made to a Permitted Joint Venture;
|
(d)
|
any loan or advance made to employees of any member of the Group which loans and advances shall not exceed $3,300,000 in aggregate for all loans to employees (or its equivalent) outstanding at any time;
|
(e)
|
any loan, advance or other financial facility in an aggregate amount not to exceed $2,000,000 in any calendar year made available to the trustee of the ESOP, the trustee or administrator (or any similar third party) of any other employee share ownership or share incentive plan or similar scheme or to an employee whether for the purpose of acquiring ordinary, preference or deferred shares or American depositary receipts or shares in the Company or any member of the Group, provided that such loan, advance or other financial facility may not exceed $10,000,000 at any one time outstanding;
|
(f)
|
a loan made by a member of the Group to another member of the Group; or
|
(g)
|
any loan (other than a loan that would fall within one of the limbs set out above) so long as the aggregate amount of Financial Indebtedness under any such loan does not exceed $825,000 (or its equivalent) at any time.
|
(a)
|
any such new Financial Indebtedness created by such increase would constitute Permitted Financial Indebtedness; or
|
(b)
|
the increase in fees or commission is in consideration for the amendment or waiver of, or the giving of a consent under, any term of a Note Document.
|
(i)
|
the Security or Quasi-Security was created prior to the date on which the asset was acquired and was not created in contemplation of the acquisition of that asset by a member of the Group;
|
(ii)
|
the principal amount secured has not been increased in contemplation of or since the acquisition of that asset by a member of the Group; and
|
(iii)
|
within 90 days of the date of acquisition of such asset, the Security or Quasi-Security is removed or discharged in full or part to the extent required to ensure that such Security or Quasi Security is Permitted Financial Indebtedness and Permitted Security (other than in respect of this paragraph g); or
|
(i)
|
the Security or Quasi-Security was created prior to the date on which that company becomes a member of the Group and was not created in contemplation of the acquisition of that company;
|
(ii)
|
the principal amount secured has not increased in contemplation of or since the acquisition of that company; and
|
(iii)
|
within 90 days of that company becoming a member of the Group, the Security or Quasi-Security is removed or discharged in full or part to the extent required to ensure that such Security or Quasi Security is Permitted Financial Indebtedness and Permitted Security (other than in respect of this paragraph h).
|
(a)
|
ordinary shares by the Company, paid for in full in cash upon issue and which by their terms are not redeemable and where such issue does not lead to a Change of Control of the Company;
|
(b)
|
any shares issued in connection with the ESOP or any other employee share ownership or share incentive plan or similar scheme, where such issue does not lead to a Change of Control; and
|
(c)
|
shares by a member of the Group (other than the Company) which is a Subsidiary to any Holding Company or, in the case of any Subsidiary which is Joint Venture, to the shareholder(s) of such Joint Venture provided that any investment in a Joint Venture by a member of the Group by way of subscription for shares is permitted under the definition of Permitted Joint Venture.
|
(a)
|
any disposal required, Financial Indebtedness incurred, guarantee, indemnity or Security or Quasi-Security given, or other transaction arising, under the Finance Documents;
|
(b)
|
the solvent liquidation or reorganisation of any member of the Group (other than the Company) so long as any payments or assets distributed as a result of such liquidation or reorganisation are distributed to other members of the Group; or
|
(c)
|
transactions (other than (i) any sale, lease, license, transfer or other disposal and (ii) the granting or creation of Security or the incurring or permitting to subsist of Financial Indebtedness) conducted in the ordinary course of trading on arm's length terms.
|
(a)
|
if the currency is sterling, the first day of that period;
|
(b)
|
if the currency is euro, 2 TARGET Days before the first day of that period; or
|
(c)
|
for any other currency, 2 Business Days before the first day of that period,
|
(a)
|
any freehold, leasehold, commonhold or immovable property; and
|
(b)
|
any buildings, fixtures, fittings, fixed plant or machinery from time to time situated on or forming part of that freehold, leasehold, commonhold or immovable property.
|
(a)
|
in relation to euro, the European interbank market; and
|
(b)
|
in relation to any other currency, the London interbank market.
Relevant Jurisdiction
means, in relation to an Obligor:
|
(a)
|
its jurisdiction of incorporation; and
|
(b)
|
any jurisdiction where it conducts its business.
|
(a)
|
in relation to an Original Lender, the amount in the Base Currency set opposite its name in Part 3 - (Original Lenders) of Schedule 1 and the amount of any other commitment transferred to it under this Agreement or assumed by it in accordance with clause 2.2 (Increase); and
|
(b)
|
in relation to any other Lender, the amount in the Base Currency of any Revolving Facility Commitment transferred to it under this Agreement or assumed by it in accordance with clause 2.2 (Increase),
|
(i)
|
made or to be made on the same day that a maturing Revolving Facility Loan is due to be repaid;
|
(ii)
|
the aggregate amount of which is equal to or less than the amount of the maturing Revolving Facility Loan;
|
(iii)
|
in the same currency as the maturing Revolving Facility Loan (unless it arose as a result of the operation of clause 6.2 (Unavailability of a currency)); and
|
(iv)
|
made or to be made to the same Borrower for the purpose of refinancing that maturing Revolving Facility Loan; and
|
(i)
|
made or to be made on the same day that a maturing Uncommitted Accordion Revolving Facility Loan is due to be repaid;
|
(ii)
|
the aggregate amount of which is equal to or less than the amount of the maturing Uncommitted Accordion Revolving Facility Loan;
|
(iii)
|
in the same currency as the maturing Uncommitted Accordion Revolving Facility Loan (unless it arose as a result of the operation of clause 6.2 (Unavailability of a currency); and
|
(iv)
|
made or to be made to the same Borrower for the purpose of refinancing that maturing Uncommitted Accordion Revolving Facility Loan.
|
(a)
|
in relation to LIBOR the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person that takes over the administration of that rate) for the relevant currency and period displayed on pages LIBOR01 or LIBOR02 of the Reuters screen (or any replacement Reuters page which displays that rate); and
|
(b)
|
in relation to EURIBOR, the euro interbank offered rate administered by the Banking Federation of the European Union (or any other person that takes over the administration of that rate) for the relevant period displayed on page EURIBOR01 of the Reuters screen (or any replacement Reuters page which displays that rate),
|
(a)
|
the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and
|
(b)
|
the date on which the Agent executes the relevant Assignment Agreement or Transfer Certificate.
|
(a)
|
in relation to an entity identified as a Lender in an Uncommitted Accordion Facility Commitment Notice, the amount in the Base Currency set out opposite its name under the heading "Uncommitted Accordion Revolving Facility Commitment" in such Uncommitted Accordion Facility Commitment Notice and the amount of any other Uncommitted Accordion Revolving Facility Commitment transferred to it under this Agreement; and
|
(a)
|
in relation to an entity identified as a Lender in an Uncommitted Accordion Facility Commitment Notice, the amount in the Base Currency set out opposite its name under the heading "Uncommitted Accordion Term Facility Commitment" in such Uncommitted Accordion Facility Commitment Notice and the amount of any other Uncommitted Accordion Term Facility Commitment transferred to it under this Agreement; and
|
(b)
|
in relation to any other Lender, the amount in the Base Currency of any Uncommitted Accordion Term Facility Commitment transferred to it under this Agreement,
|
(i)
|
the Agent, the Arrangers, any Finance Party, any Lender, any Obligor, any Party, any Ancillary Lender, any Bilateral Lender or any other person shall be construed so as to include its successors in title, permitted assigns and permitted transferees and, in the case of the Agent any person for the time being appointed as Agent (as the case may be) in accordance with the Finance Documents;
|
(ii)
|
a document in
agreed form
is a document which is previously agreed in writing by or on behalf of the Agent and the Company or, if not so agreed, is in the form specified by the Agent;
|
(iii)
|
assets
includes present and future properties, revenues and rights of every description (including any right to receive such revenues);
|
(iv)
|
a Finance Document or a Transaction Document or any other agreement or instrument is a reference to that Finance Document or Transaction Document or other agreement or instrument as amended, novated, supplemented or restated (however fundamentally) or (in the case of an Ancillary Document or a Bilateral Document) replaced;
|
(v)
|
guarantee means (other than in clause 22 (Guarantee and indemnity)) any guarantee, letter of credit, bond, indemnity or similar assurance against loss, or any obligation, direct or indirect, actual or contingent, to purchase or assume any indebtedness of any person or to make an investment in or loan to any person or to purchase assets of any person where, in each case, such obligation is assumed in order to maintain or assist the ability of such person to meet its indebtedness;
|
(vi)
|
indebtedness includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;
|
(vii)
|
a person includes any individual person, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality) or any other entity or body of any description;
|
(viii)
|
a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law but if not having the force of law, then being a type with which persons to which it applies customarily comply) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation;
|
(ix)
|
a provision of law is a reference to a provision, of any treaty, legislation, regulation, decree, order or by-law and any secondary legislation enacted under a power given by that provision, as amended, applied or re-enacted or replaced (whether with or without modification) whether before or after the date of this Agreement;
|
(x)
|
a time of day is a reference to London time;
|
(xi)
|
a
group of Lenders
includes all the Lenders of the particular group;
|
(xii)
|
a reference to the date of this Agreement means 13 May 2011;
|
(xiii)
|
sterling and £ shall be construed as a reference to the lawful currency of the United Kingdom;
|
(xiv)
|
euro and € shall be construed as a reference to the single currency of Participating Member States; and
|
(xv)
|
US Dollar and $ shall be construed as a reference to the lawful currency of the United States.
|
(i)
|
the account is with the Ancillary Lender; and
|
(ii)
|
until no amount is or may be outstanding under Ancillary Facility, withdrawals from the account may only be made to pay a Finance Party amounts due and payable to it under this Agreement in respect of the Ancillary Facility.
|
(i)
|
that Borrower providing cash cover for the Ancillary Outstandings;
|
(ii)
|
the maximum amount payable under the Ancillary Facility being reduced or cancelled in accordance with its terms; or
|
(iii)
|
the Ancillary Lender being satisfied that it has no further liability under the Ancillary Facility,
|
(h)
|
An amount borrowed includes any amount utilised under an Ancillary Facility.
|
(i)
|
Any certificate provided by a director of an Obligor pursuant to the terms of a Finance Document shall be given without incurring any personal liability.
|
(j)
|
A reference to "the date of this Agreement" is a reference to 13 May 2011.
|
(k)
|
A reference to an amount in a currency other than the Base Currency shall be converted to the Base Currency at the Agent's Spot Rate of Exchange unless another conversion rate is expressly stated.
|
(a)
|
Unless expressly provided to the contrary in this Agreement a person (other than a Bilateral Lender) who is not a Party has no right under the Third Parties Act to enforce or enjoy the benefit of any term of this Agreement.
|
(b)
|
Unless expressly provided to the contrary in any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement or any other Finance Document entered into under or in connection with it.
|
(a)
|
Subject to the terms of this Agreement, the Lenders make available a multicurrency revolving credit facility the Base Currency Amount of which is equal to the Total Revolving Facility Commitments.
|
(b)
|
The Uncommitted Accordion Facility will be available to all Borrowers.
|
(c)
|
The Revolving Facility will be available to all the Borrowers.
|
(d)
|
Subject to the terms of this Agreement and the Ancillary Documents, an Ancillary Lender may make available an Ancillary Facility to any of the Borrowers under the Revolving Facility in place of all or part of its Revolving Facility Commitment.
|
(e)
|
Subject to the terms of this Agreement and the Ancillary Documents, an Ancillary Lender may make available an Ancillary Facility to any of the Borrowers under an Uncommitted Accordion Revolving Facility in place of all or part of its Uncommitted Accordion Revolving Facility Commitment.
|
(f)
|
Subject to the terms of this Agreement and the Bilateral Documents, a Bilateral Lender may make available a Bilateral Facility to any of the Borrowers.
|
(a)
|
The Company may by giving prior notice to the Agent after the effective date of a cancellation of:
|
(i)
|
the Available Commitments of a Defaulting Lender in accordance with clause 10.7 (Right of cancellation in relation to a Defaulting Lender); or
|
(ii)
|
the Commitments of a Lender in accordance with clause 10.1 (Illegality),
|
(iii)
|
the increased Commitments will be assumed by one or more Lenders or other banks, financial institutions, trusts, funds or other entities (each an
Increase Lender
) selected by the Company (each of which shall not be a member of the Group and which is further acceptable to the Agent (acting reasonably)) and each of which confirms its willingness to assume and does assume all the obligations of a Lender corresponding to that part of the increased Commitments which it is to assume, as if it had been an Original Lender;
|
(iv)
|
each of the Obligors and any Increase Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and the Increase Lender would have assumed and/or acquired had the Increase Lender been an Original Lender;
|
(v)
|
each Increase Lender shall become a Party as a Lender and any Increase Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Increase Lender and those Finance Parties would have assumed and/or acquired had the Increase Lender been an Original Lender;
|
(vi)
|
the Commitments of the other Lenders shall continue in full force and effect; and
|
(vii)
|
any increase in the Total Commitments shall take effect on the date specified by the Company in the notice referred to above or any later date on which the conditions set out in clause 2.2(b) below are satisfied.
|
(i)
|
the execution by the Agent of an Increase Confirmation from the relevant Increase Lender; and
|
(ii)
|
in relation to an Increase Lender which is not a Lender immediately prior to the relevant increase the performance by the Agent of all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the assumption of the increased Commitments by that Increase Lender, the completion of which the Agent shall promptly notify to the Company and the Increase Lender.
|
(d)
|
The Company shall, on the date upon which the increase takes effect, promptly on demand pay the Agent the amount of all costs and expenses (including legal fees
|
(e)
|
The Company may pay to the Increase Lender a fee in the amount and at the times agreed between the Company and the Increase Lender in a Fee Letter.
|
(f)
|
Clause 28.4 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 2.2 in relation to an Increase Lender as if references in that clause to:
|
(i)
|
an Existing Lender were references to all the Lenders immediately prior to the relevant increase;
|
(ii)
|
the New Lender were references to that Increase Lender; and
|
(iii)
|
a re-transfer and re-assignment were references to respectively a transfer and assignment.
|
(a)
|
The Company may confirm that one or more Lenders or any other entity referred to in paragraph (b) below has agreed to commit Uncommitted Accordion Facility Commitments by delivering to the Agent an Uncommitted Accordion Facility Commitment Notice duly signed by those parties that have agreed to participate in the relevant Uncommitted Accordion Facility.
|
(b)
|
The Company shall offer the Original Lenders the first right to provide any Uncommitted Accordion Facility, provided that:
|
(A)
|
if no Original Lender agrees to arrange and underwrite such Facility on terms satisfactory to the Company within any time limit specified by the Company in such offer to all of the Original Lenders (being not less than 15 Business Days) and subject to compliance with the terms of this clause 2.3, any other bank, financial institution, trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets provided it is not a member, nominee or Affiliate of the Group (
Third Party Lender
) may provide such Facility; or
|
(B)
|
subject to paragraph (C) below, if one or more Original Lenders agree to arrange and underwrite such Facility (the amount of such Facility which an Original Lender agrees to arrange and underwrite being such Original Lender's
Original Offer Amount
) on terms satisfactory to the Company within any time limit specified by the Company in such offer to all of the Original Lenders (being not less than 15 Business Days) and subject to compliance with the terms of this clause 2.3, that Facility shall be allocated in equal amounts
1
to each such Original Lender;
|
(C)
|
if an Original Lender does not agree to arrange and underwrite such Facility on terms satisfactory to the Company within any time limit specified by the Company in such offer to all of the Original Lenders (being not less than 15 Business Days) or, in the case of paragraph (B) above, provide the full amount of their equal share in such Facility (in
|
(D)
|
the Company shall only offer such Facility to a Third Party Lender on the same or no more favourable terms as it has offered to the Original Lenders pursuant to clause 2.3(b). For avoidance of doubt this paragraph (D) will apply at any time the Company offers a Facility to a Third Party Lender under this clause 2.3;
|
(E)
|
for avoidance of doubt, under this clause 2.3 no Lender will have to provide more than their Original Offer Amount; and
|
(F)
|
if the provisions of paragraph (C) would result in a shortfall to the Original Lender Shortfall, any Lenders whose Original Offer Amount is not yet reached can provide the remainder of the Original Lender Shortfall, in equal amounts if there is more than one such Lender (with such process to be repeated until all such Original Offer Amounts have been reached); or
|
(ii)
|
to the extent that an Original Lender has assigned or transferred any of its Revolving Facility Commitments under this Agreement to a New Lender (as defined in clause 28.1 (Assignments and transfers by the Lenders)), any such New Lender shall be treated as an Original Lender for the purposes of paragraph (i) above, provided that if such Revolving Facility Commitments have been assigned or transferred to one or more New Lenders, all such New Lenders (and including the relevant Original Lender if it still holds any Revolving Facility Commitments) shall be taken together and treated as one Original Lender for the purposes of paragraph (i) and the one equal share of any Uncommitted Accordion Facility which is offered to each Original Lender in accordance with paragraph (i) shall be offered to such New Lenders (and, if relevant, the Original Lender) as if they were one Original Lender and, as between themselves only, pro rata to their share of the relevant Revolving Facility Commitments.
|
(i)
|
the date on which the Uncommitted Accordion Facility Commitments are to become effective and the applicable Availability Period;
|
(ii)
|
the amount of the Uncommitted Accordion Facility Commitments, which shall be not less than $10,000,000 (or its equivalent in other currencies);
|
(iii)
|
the final repayment date for the Loans to be made under the Uncommitted Accordion Facility;
|
(iv)
|
the purpose for which any amounts drawn under the Uncommitted Accordion Facility may be used;
|
(v)
|
the name(s) of the Borrower(s) under the Uncommitted Accordion Facility;
|
(vi)
|
the amount of the Uncommitted Accordion Facility Commitment allocated to each entity named in the Uncommitted Accordion Facility Commitment Notice as a Lender;
|
(vii)
|
the Margin (and any applicable Margin adjustment mechanism) applicable to each Loan to be made available under the Uncommitted Accordion Facility;
|
(viii)
|
any provisions agreed between the Company and the entities providing the Uncommitted Accordion Facility Commitments relating to fees (including any arrangement fee) and conditionality; and
|
(ix)
|
|
1)
|
forecasts (which have been prepared on the basis of recent historical information and reasonable assumptions, and which assume that the acquisition has occurred), demonstrating that the Company will remain in compliance with its obligations under clause 25 (Financial covenants) for a period of not less than 12 Months from the closing date of the acquisition; and
|
2)
|
board papers in respect of the acquisition; or
|
(i)
|
it states the amount of the commitment fee, if any;
|
(ii)
|
it states the amount of the arrangement fee if any;
|
(iii)
|
subject to clause 12.4, the aggregate of all Uncommitted Accordion Facility Commitments (including those specified in the relevant Uncommitted Accordion Facility Commitment Notice), whether utilised or unutilised is less than or equal to the Uncommitted Accordion Facility Maximum Amount;
|
(iv)
|
it states the currency of the Uncommitted Accordion Facility Commitments (which must be the Base Currency or an Optional Currency);
|
(v)
|
there is no Event of Default which is continuing or which would be caused by a Utilisation of the Uncommitted Accordion Facility; and
|
(vi)
|
if an Uncommitted Accordion Revolving Facility Commitment is to be provided by a Third Party Lender, details of any limits on the aggregate Ancillary Commitments for that Third Party Lender.
|
(e)
|
Each Uncommitted Accordion Facility Commitment Notice shall be signed by the Company and the Borrower and countersigned by each entity to which Uncommitted Accordion Facility Commitments are allocated. Any entity to which Uncommitted Accordion Facility Commitments are allocated shall comply with the provisions of clause 28 (Changes to the Lenders) to the extent applicable. By countersigning the Uncommitted
|
(f)
|
Upon receipt of a duly completed Uncommitted Accordion Facility Commitment Notice, the Agent shall acknowledge receipt of such notice and, if appropriate (and subject to paragraph (j) below), the accession of the relevant Lenders to this Agreement and the Agent shall inform all the Lenders of such receipt. The Agent is authorised to disclose details in the Uncommitted Accordion Facility Commitment Notice and in relation to any Uncommitted Accordion Facility to the Lenders on request. The Agent shall only be obliged to sign an Uncommitted Accordion Facility Commitment Notice upon its satisfactory completion of all "know your customer" or other checks relating to any person that it is required to carry out in relation to the accession of any entity as a Lender.
|
(g)
|
The Agent shall notify the Company and the Lenders of the proposed changed amounts of the Uncommitted Accordion Facility Commitments promptly after receipt of each Uncommitted Accordion Facility Commitment Notice and each Uncommitted Accordion Facility Commitment Cancellation Notice.
|
(h)
|
The terms and conditions relating to each Uncommitted Accordion Facility will be set out in a separate Uncommitted Accordion Facility Commitment Notice entered into by the Company and the relevant Lenders or other entities providing the relevant Uncommitted Accordion Facility Commitments.
|
(i)
|
If the other provisions of this Clause 2.3 are met, each Party:
|
(i)
|
agrees that Uncommitted Accordion Facility Commitments may be made available to the Borrowers; and
|
(ii)
|
authorises and instructs the Agent to sign an Uncommitted Accordion Facility Commitment Notice to record the Uncommitted Accordion Facility Commitments as set out in the relevant Uncommitted Accordion Facility Commitment Notice and accordingly the establishment of (or the increase in Uncommitted Accordion Facility Commitments in respect of) the Uncommitted Accordion Facility.
|
(j)
|
Upon the relevant Uncommitted Accordion Facility Commitment Notice being signed by the Agent, the Company and the relevant Lenders, the relevant Uncommitted Accordion Facility and corresponding Uncommitted Accordion Facility Commitments will be established for the purpose of this Agreement and the other Finance Documents (and, in the case of any Uncommitted Accordion Facility Lender (as defined in clause 28.10 (Uncommitted Accordion Facility)), the accession of that Uncommitted Accordion Facility Lender hereunder shall become effective).
|
(i)
|
the authority of the Company to agree and implement the establishment of Uncommitted Accordion Facility Commitments and the Uncommitted Accordion Facility in accordance with the procedures and up to the amounts permitted by this Agreement (as amended or modified from time to time); and
|
(ii)
|
that all its guarantee and indemnity obligations recorded in clause 22 (Guarantee and indemnity) and/or in any Accession Deed or other Finance Document will continue in full force and effect, is, subject to the Legal Reservations, a valid and binding obligation of such Obligor and is, subject to the Legal Reservations, enforceable in accordance with its terms, that as at the date of the Uncommitted Accordion Facility Commitment Notice, no defenses, offsets, claims or counterclaims exist in respect of the guarantee given by it which affect the
|
(iii)
|
that utilising the Uncommitted Accordion Facility Commitment in full would not breach any borrowing limit binding on any Obligor;
|
(iv)
|
that utilising the Uncommitted Accordion Facility Commitment would not cause any guarantee limit applicable to any Obligor to be breached; and
|
(v)
|
each Party agrees that it shall within 10 Business Days of a request to do so it will sign any amendment agreement required in respect of this Agreement in order to document any purely administrative amendment required solely to record the amount of or any terms of any Uncommitted Accordion Facility Commitments made available in accordance with this clause 2.3.
|
(l)
|
For the avoidance of doubt, the Obligors shall not grant Security in favour of any Finance Party to secure the liabilities under any Uncommitted Accordion Facility unless equivalent Security is granted in favour of the Finance Parties to secure the liabilities under the Revolving Facility.
|
(a)
|
The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.
|
(b)
|
The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor is a separate and independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with clause 2.4(c). The rights of each Finance Party include any debt owing to that Finance Party under the Finance Documents and, for the avoidance of doubt, any part of a Loan or any other amount owed by an Obligor which relates to a Finance Party's participation in a Facility or its role under a Finance Document (including any such amount payable to the Agent on its behalf) is a debt owing to that Finance Party by that Obligor.
|
(c)
|
A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.
|
(a)
|
Each Obligor (other than the Company) by its execution of this Agreement or an Accession Deed irrevocably appoints the Company to act on its behalf as its agent in relation to the Finance Documents and irrevocably authorises:
|
(i)
|
the Company on its behalf to supply all information concerning itself contemplated by this Agreement to the Finance Parties and to give all notices and instructions (including Utilisation Requests), to execute on its behalf any Accession Deed to make such agreements and to effect the relevant amendments, supplements and variations capable of being given, made or effected by any Obligor notwithstanding that they may affect the Obligor, without further reference to or the consent of that Obligor; and
|
(ii)
|
each Finance Party to give any notice, demand or other communication to that Obligor pursuant to the Finance Documents to the Company,
|
(b)
|
Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice or other communication given or made by the Obligors' agent or given to the Obligors' agent under any Finance Document on behalf of another Obligor or in connection with any Finance Document (whether or not known to any other Obligor and whether occurring before or after such other Obligor became an Obligor under any Finance Document) shall be binding for all purposes on that Obligor as if that Obligor had expressly made, given or concurred with it. In the event of any conflict between any notices or other communications of the Obligors' agent and any other Obligor, those of the Obligors' agent shall prevail.
|
(a)
|
The Company shall provide the Agent all the documents and other evidence in Part 1 - (Conditions precedent to signing this Agreement) of Schedule 2 (Conditions precedent) in form and substance satisfactory to the Agent on or before the date of this Agreement.
|
(b)
|
The Lenders will only be obliged to comply with clause 5.4 (Lenders' participation) in relation to any Loan if on or before the Utilisation Date for that Utilisation, the Agent has received all of the documents and other evidence listed in Part 2 - (Conditions precedent to initial Utilisation) of Schedule 2 (Conditions precedent) in form and substance satisfactory to the Agent.
|
(c)
|
The Agent shall, in each case, notify the Company and the Lenders promptly upon being so satisfied.
|
(a)
|
in the case of a Rollover Loan, no Event of Default is continuing or would result from the proposed Loan and, in the case of any other Loan, no Default is continuing or would result from the proposed Loan; and
|
(b)
|
in relation to any Loan on the Closing Date, all the representations and warranties in clause 23 (Representations) or, in relation to any other Loan, the Repeating Representations, to be made by each Obligor are true.
|
(i)
|
it is readily available in the amount and for the period required and freely convertible into the Base Currency in the Relevant Interbank Market on the Quotation Day and the Utilisation Date for that Loan; and
|
(ii)
|
it is Euro or Sterling or has been approved by the Agent (acting on the instructions of all the Lenders) on or prior to receipt by the Agent of the relevant Utilisation Request for that Loan.
|
(b)
|
If the Agent has received a written request from the Company for a currency to be approved under clause 4.3(a)(ii), the Agent will confirm to the Company by the Specified Time:
|
(i)
|
whether or not the Lenders have granted their approval; and
|
(ii)
|
if approval has been granted, the minimum amount for any subsequent Loan in that currency.
|
(a)
|
A Borrower (or the Company on its behalf) may not deliver a Utilisation Request if as a result of the proposed Loan:
|
(i)
|
more than 10 Revolving Facility Loans would be outstanding; or
|
(ii)
|
more than 5 Uncommitted Accordion Facility Loans would be outstanding.
|
(b)
|
Any Loan made by a single Lender under clause 6.2 (Unavailability of a currency) shall not be taken into account in this clause 4.4.
|
(a)
|
Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:
|
(i)
|
it identifies the Borrower and the Facility to be utilised;
|
(ii)
|
the proposed Utilisation Date is a Business Day within the Availability Period;
|
(iii)
|
the currency and amount of the Loan comply with clause 5.3; and
|
(iv)
|
the proposed Interest Period complies with clause 14 (Interest Periods).
|
(b)
|
Multiple Loans may be requested in a Utilisation Request where the proposed Utilisation Date is the Closing Date. Only 1 Loan may be requested in each subsequent Utilisation Request.
|
(a)
|
The currency specified in a Utilisation Request or an Uncommitted Accordion Facility Notice must be the Base Currency or an Optional Currency.
|
(b)
|
The amount of the proposed Loan must be:
|
(i)
|
in respect of an Uncommitted Accordion Term Facility, equal to or less than the Available Facility;
|
(ii)
|
in respect of the Revolving Facility or an Uncommitted Accordion Revolving Facility:
|
(A)
|
if the currency selected is Sterling, a minimum of £1,500,000 (and a multiple of £500,000) or, if less, the Available Facility; or
|
(B)
|
if the currency selected is Euro, a minimum of Euro 2,000,000 (and a multiple of Euro 500,000) or, if less, the Available Facility; or
|
(C)
|
if the currency selected is the Base Currency, a minimum of $2,000,000 (and a multiple of $500,000) or, if less, the Available Facility; or
|
(D)
|
if the currency selected is an Optional Currency other than Euro or Sterling, the minimum amount specified by the Agent pursuant to clause 4.3(b)(ii) (Conditions relating to Optional Currencies) or, if less, the Available Facility.
|
(a)
|
If the conditions set out in this Agreement have been met and subject to clause 9.2 (Repayment of Revolving Facility Loans) and clause 9.3 (Repayment of Uncommitted Accordion Revolving Facility Loans), each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office.
|
(b)
|
The amount of each Lender's participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to making that Loan.
|
(c)
|
The Agent shall determine the Base Currency Amount of each Loan which is to be made in an Optional Currency and notify each Lender of the amount, currency and the Base Currency Amount of each Loan and the amount of its participation in that Loan and, if different, the amount of that participation to be made available in cash, by the Specified Time.
|
(a)
|
The maximum aggregate amount of the Ancillary Commitments of all the Lenders shall not at any time exceed $36,465,000 (or its equivalent in any currency).
|
(b)
|
The maximum aggregate amount of the Ancillary Commitments of all the Lenders in respect of overdraft facilities and bilateral loan facilities shall not at any time exceed $21,450,000 (or its equivalent in any currency).
|
(c)
|
The maximum aggregate amount of the Ancillary Commitments of all the Lenders in respect of guarantee, bonding, documentary or stand-by letters of credit facilities shall not at any time exceed $15,015,000 (or its equivalent in any currency).
|
(d)
|
The maximum aggregate amount of the Ancillary Commitments of all the Lenders in respect of derivatives facilities and foreign exchange facilities shall not at any time exceed $15,015,000 (or its equivalent in any currency).
|
(a)
|
The Uncommitted Accordion Facility Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period.
|
(b)
|
The Revolving Facility Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period.
|
(a)
|
the Optional Currency requested is not readily available to it in the amount and for the period required; or
|
(b)
|
compliance with its obligation to participate in a Loan in the proposed Optional Currency would contravene a law or regulation applicable to it,
|
(a)
|
an overdraft facility;
|
(b)
|
a guarantee, bonding, documentary or stand-by letter of credit facility;
|
(c)
|
a short term loan facility;
|
(d)
|
a derivatives facility;
|
(e)
|
a foreign exchange facility; or
|
(f)
|
any other facility or accommodation required in connection with the business of the Group and which is agreed by the Company with an Ancillary Lender.
|
(a)
|
If the Company and a Lender agree and except as otherwise provided in this Agreement, that Lender may provide an Ancillary Facility on a bilateral basis in place of all or part of that Lender's unutilised Revolving Facility Commitment or unutilised Uncommitted Accordion
|
(b)
|
An Ancillary Facility shall not be made available unless, not later than 14 days prior to the Ancillary Commencement Date for an Ancillary Facility, the Agent has received from the Company:
|
(A)
|
the proposed Borrower(s) or Affiliates of a Borrower (under the Revolving Facility or the relevant Uncommitted Accordion Revolving Facility (as applicable)) which may use the Ancillary Facility;
|
(B)
|
the proposed Ancillary Commencement Date and expiry date of the Ancillary Facility;
|
(C)
|
the proposed type of Ancillary Facility to be provided;
|
(D)
|
the proposed Ancillary Lender;
|
(E)
|
the proposed Ancillary Commitment, the maximum amount of the Ancillary Facility and, in the case of a Multi-account Overdraft, its Designated Gross Amount and its Designated Net Amount;
|
(F)
|
the proposed currency of the Ancillary Facility (if not denominated in the Base Currency); and
|
(G)
|
whether the proposed Ancillary Commitment is to be provided under a Revolving Facility or an Uncommitted Accordion Revolving Facility; and
|
(ii)
|
any other information which the Agent may reasonably request in connection with the Ancillary Facility.
|
(c)
|
The Agent shall promptly notify the Ancillary Lender and the other Lenders of the establishment of an Ancillary Facility and whether it is established under a Revolving Facility or an Uncommitted Accordion Revolving Facility.
|
(i)
|
No amendment or waiver of a term of any Ancillary Facility shall require the consent of any Finance Party other than the relevant Ancillary Lender unless such amendment or waiver itself relates to or gives rise to a matter which would require an amendment of or under this Agreement (including, for the avoidance of doubt, under this clause). In such a case, the provisions of clause 40 (Amendments and waivers) will apply.
|
(ii)
|
The Company shall notify the Agent and provide details of any material amendment or waiver of a term of any Ancillary Facility which does not require the consent of any other Finance Party, no later than 14 days prior to the date of such amendment or waiver.
|
(i)
|
the Lender concerned will become an Ancillary Lender; and
|
(ii)
|
the Ancillary Facility will be available,
|
(f)
|
As at the Fourth Restatement Date, the only Ancillary Facilities provided are under the Revolving Facility.
|
(a)
|
Except as provided below, the terms of any Ancillary Facility will be those agreed by the Ancillary Lender and the Company.
|
(i)
|
must be based upon normal commercial rates and terms at that time (except as varied by this Agreement);
|
(ii)
|
may allow only Borrowers (or Affiliates of Borrowers nominated pursuant to clause 7.9) (under the Revolving Facility or the relevant Uncommitted Accordion Revolving Facility (as applicable)) to use the Ancillary Facility;
|
(iii)
|
may not allow the Ancillary Outstandings to exceed the Ancillary Commitment;
|
(iv)
|
may not allow the Ancillary Commitment of a Lender to exceed the Available Commitment with respect to the Revolving Facility or the relevant Uncommitted Accordion Revolving Facility of that Lender; and
|
(v)
|
must require that the Ancillary Commitment is reduced to nil, and that all Ancillary Outstandings are repaid not later than the Termination Date (or such earlier date as the Revolving Facility Commitment or the relevant Uncommitted Accordion Revolving Facility Commitment of the relevant Ancillary Lender (or its Affiliate) is reduced to zero).
|
(c)
|
If there is any inconsistency between any term of an Ancillary Facility and any term of this Agreement, this Agreement shall prevail except for (i) clause 37.3 (Day count convention) which shall not prevail for the purposes of calculating fees, interest or commission relating to an Ancillary Facility and (ii) an Ancillary Facility comprising more than one account where the terms of the Ancillary Documents shall prevail to the extent required to permit the netting of balances on those accounts and (iii) where the relevant term of this Agreement would be contrary to, or inconsistent with, the law governing the relevant Ancillary Document, in which case that term of this Agreement shall not prevail.
|
(a)
|
An Ancillary Facility shall cease to be available on the Termination Date in relation to the Revolving Facility or the relevant Uncommitted Accordion Revolving Facility (as the case may be) or such earlier date on which its expiry date occurs or on which it is cancelled in accordance with the terms of this Agreement.
|
(b)
|
If an Ancillary Facility expires in accordance with its terms the Ancillary Commitment of the Ancillary Lender shall be reduced to zero (and its Revolving Facility Commitment or its relevant Uncommitted Accordion Revolving Facility Commitment (as the case may be) shall be increased accordingly).
|
(c)
|
No Ancillary Lender may demand repayment or prepayment of any amounts under its Ancillary Facility unless:
|
(i)
|
required to reduce the Gross Outstandings of a Multi-account Overdraft to or towards an amount equal to its Net Outstandings;
|
(ii)
|
the Total Revolving Facility Commitments or the relevant Total Uncommitted Accordion Revolving Facility Commitments (as the case may be) have been
|
(iii)
|
it becomes unlawful in any applicable jurisdiction for the Ancillary Lender to perform any of its obligations as contemplated by this Agreement or to fund, issue or maintain its participation in its Ancillary Facility (or it becomes unlawful for any Affiliate of an Ancillary Lender to do so); or
|
(iv)
|
the Ancillary Outstandings (if any) under that Ancillary Facility can be refinanced by a Revolving Facility Loan or an Uncommitted Accordion Revolving Facility Loan (as the case may be) and the Ancillary Lender gives sufficient notice to enable a Loan of the Revolving Facility or the relevant Uncommitted Accordion Revolving Facility (as the case may be) to be made to refinance those Ancillary Outstandings in accordance with the terms of this Agreement.
|
(d)
|
For the purposes of determining whether or not the Ancillary Outstandings under an Ancillary Facility mentioned in clause 7.4(c)(iv) can be refinanced by a Revolving Loan or an Uncommitted Accordion Revolving Facility Loan (as the case may be):
|
(i)
|
the Revolving Facility Commitment or the relevant Uncommitted Accordion Revolving Facility Commitment (as the case may be) of that Lender will be increased by the amount of its Ancillary Commitment; and
|
(ii)
|
the Loan may (so long as clause 7.4(c)(i) does not apply) be made irrespective of whether a Default is outstanding or any other applicable condition precedent is not satisfied (but only to the extent that the proceeds are applied in refinancing those Ancillary Outstandings) and irrespective of whether clause 4.4 (Maximum number of Loans) or clause 5.2(b) (Completion of a Utilisation Request) applies.
|
(e)
|
On the making of a Revolving Facility Loan or the relevant Uncommitted Accordion Revolving Facility Loan (as the case may be) to refinance Ancillary Outstandings:
|
(i)
|
each Lender will participate in that Loan in an amount (as determined by the Agent) which will result as nearly as possible in the aggregate amount of its participation in the Revolving Facility Loans or the relevant Uncommitted Accordion Revolving Facility Loans (as the case may be) then outstanding bearing the same proportion to the aggregate amount of the Revolving Facility Loans or the relevant Uncommitted Accordion Revolving Facility Loans (as the case may be) then outstanding as its Commitment bears to the Total Revolving Facility Commitments or the Total Uncommitted Accordion Revolving Facility Commitments (as the case may be); and
|
(ii)
|
the relevant Ancillary Facility shall be cancelled.
|
(f)
|
In relation to an Ancillary Facility which comprises an overdraft facility where a Designated Net Amount has been established, the Ancillary Lender providing that Ancillary Facility shall only be obliged to take into account for the purposes of calculating compliance with the Designated Net Amount those credit balances which it is permitted to take into account
|
(a)
|
the Ancillary Outstandings under any Ancillary Facility provided by that Ancillary Lender shall not exceed the Ancillary Commitment applicable to that Ancillary Facility; and
|
(b)
|
in relation to a Multi-account Overdraft:
|
(i)
|
the Ancillary Outstandings shall not exceed the Designated Net Amount applicable to that Multi-account Overdraft; and
|
(ii)
|
the Gross Outstandings shall not exceed the Designated Gross Amount applicable to that Multi-account Overdraft.
|
7.6
|
Adjustment for Ancillary Facilities upon acceleration
In this clause 7.6: |
(a)
|
If a notice is served under clause 27.19 (Acceleration) (other than a notice declaring Utilisations to be due on demand), each Lender and each Ancillary Lender shall promptly adjust by corresponding transfers (to the extent necessary) their claims in respect of amounts outstanding to them under the Revolving Facility and each Uncommitted Accordion Revolving Facility and each Ancillary Facility to ensure that after such transfers the Outstandings of each Lender under the Revolving Facility or the relevant Uncommitted Accordion Revolving Facility (as the case may be) bear the same proportion to the Total Outstandings as such Lender's Revolving Facility Commitment or the relevant Uncommitted Accordion Revolving Facility Commitment (as the case may be) bears to the Total Revolving Facility Commitments or the relevant Total Uncommitted Accordion Revolving Facility Commitments (as the case may be), each as at the date the notice is served under clause 27.19 (Acceleration).
|
(b)
|
If an amount outstanding under an Ancillary Facility is a contingent liability and that contingent liability becomes an actual liability or is reduced to zero after the original adjustment is made under paragraph (a) above, then each Lender and Ancillary Lender will make a further adjustment by corresponding transfers (to the extent necessary), to
|
(c)
|
Prior to the application of the provisions of paragraph (a) of this clause 7.6, an Ancillary Lender that has provided an overdraft comprising more than one account under an Ancillary Facility shall set-off any liabilities owing to it under such overdraft facility against credit balances on any account comprised in such overdraft facility.
|
(d)
|
All calculations to be made pursuant to this clause 7.6 shall be made by the Agent based upon information provided to it by the Lenders and Ancillary Lenders.
|
(a)
|
Subject to the terms of this Agreement, an Affiliate of a Lender may become an Ancillary Lender. In such case, the Lender and its Affiliate shall be treated as a single Lender whose Revolving Facility Commitment is the amount set out opposite the relevant Lender's name in Part 3 - (Original Lenders) of Schedule 1 and/or the amount of any Revolving Facility Commitment transferred to or assumed by that Lender under this Agreement, to the extent (in each case) not cancelled, reduced or transferred by it under this Agreement.
|
(b)
|
The Company shall specify any relevant Affiliate of a Lender in any notice delivered by the Company to the Agent pursuant to clause 7.2(b)(i).
|
(c)
|
If a Lender assigns all of its rights and benefits or transfers all of its rights and obligations to a New Lender, its Affiliate shall cease to have any obligations under this Agreement or any Ancillary Document.
|
(d)
|
Where this Agreement or any other Finance Document imposes an obligation on an Ancillary Lender and the relevant Ancillary Lender is an Affiliate of a Lender which is not a party to that document, the relevant Lender shall ensure that the obligation is performed by its Affiliate.
|
(a)
|
Subject to the terms of this Agreement, an Affiliate of a Borrower may with the approval of the relevant Lender become a borrower with respect to an Ancillary Facility.
|
(b)
|
The Company shall specify any relevant Affiliate of a Borrower in any notice delivered by the Company to the Agent pursuant to clause 7.2(b)(i).
|
(c)
|
Where this Agreement or any other Finance Document imposes an obligation on a Borrower under an Ancillary Facility and the relevant Borrower is an Affiliate of a Borrower which is not a party to that document, the relevant Borrower shall ensure that the obligation is performed by its Affiliate.
|
(d)
|
Any reference in this Agreement or any other Finance Document to a Borrower being under no obligations (whether actual or contingent) as a Borrower under such Finance Document shall be construed to include a reference to any Affiliate of a Borrower being under no obligations under any Finance Document or Ancillary Document.
|
7.10
|
Revolving Facility and Uncommitted Accordion Revolving Facility Commitment amounts
|
(a)
|
a foreign exchange facility; or
|
(b)
|
any other facility or accommodation required in connection with the business of the Group (other than any facility or accommodation for the purpose of or having the effect of a term loan or a revolving credit facility) and which is agreed by the Company with a Bilateral Lender.
|
(a)
|
If a Borrower and a Bilateral Lender agree and except as otherwise provided in this Agreement, that Bilateral Lender may provide a Bilateral Facility to that Borrower.
|
(b)
|
The aggregate amount of all Bilateral Facilities shall at no time exceed the relevant Bilateral Limit.
|
(c)
|
The Company shall promptly notify the Agent of the establishment of a Bilateral Facility.
|
(d)
|
No amendment or waiver of a term of a Bilateral Facility shall require the consent of any Finance Party other than the relevant Bilateral Lender unless such amendment or waiver itself relates to or gives rise to a matter which would require an amendment of or under this Agreement (including, for the avoidance of doubt, under this clause). In such a case, the provisions of this Agreement with regard to amendments and waivers will apply.
|
(e)
|
The Company shall notify the Agent and provide details of any material amendment or waiver of a term of any Bilateral Facility which does not require the consent of any Finance Party, no later than 14 days prior to the date of such amendment or waiver.
|
(A)
|
the acceleration of any Bilateral Liabilities or the making of any declaration that any Bilateral Liabilities are prematurely due and payable (other than as a result of it becoming unlawful for a Bilateral Lender to perform its obligations under, or of any voluntary or mandatory prepayment (or offer to prepay) arising under, the Bilateral Documents at any time when no Event of Default has occurred and is continuing);
|
(B)
|
the making of any declaration that any Bilateral Liabilities are payable on demand;
|
(C)
|
the making of a demand in relation to a Bilateral Liability that is payable on demand;
|
(D)
|
the making of any demand against any member of the Group in relation to any guarantee of that member of the Group;
|
(E)
|
the exercise of any right to require any member of the Group to acquire any Bilateral Liability (including exercising any put or call option against any member of the Group for the redemption or purchase of any Bilateral Liability but excluding any mandatory offer to prepay arising under the Bilateral Documents in respect of any Disposal Proceeds or Insurance Proceeds); or
|
(F)
|
the suing for, commencing or joining of any legal or arbitration proceedings against any member of the Group to recover any Bilateral Liabilities;
|
(ii)
|
the entering into of any composition, compromise, assignment or arrangement with any member of the Group which owes any Bilateral Liabilities, or has given a guarantee or indemnity or other assurance against loss in respect of the Bilateral Liabilities; or
|
(iii)
|
the petitioning, applying or voting for, or the taking of any steps (including the appointment of any liquidator, receiver, administrator or similar officer) in relation to, the winding up, dissolution, administration or reorganisation of any member of the Group which owes any Bilateral Liabilities, or has given any guarantee, indemnity or other assurance against loss in respect of any of the Bilateral Liabilities, or any of such member of the Group's assets or any suspension of payments or moratorium of any indebtedness of any such member of the Group, or any analogous procedure or step in any jurisdiction,
|
(A)
|
the taking of any action falling within paragraphs (i)(E) or (iii) above which is necessary (but only to the extent necessary) to preserve the validity, existence or priority of claims in respect of Bilateral Liabilities, including the registration of such claims before any court or governmental authority and the bringing, supporting or joining of proceedings to prevent any loss of the right to bring, support or join proceedings by reason of applicable limitation periods; or
|
(B)
|
a Party bringing legal proceedings against any person solely for the purpose of:
|
(1)
|
obtaining injunctive relief (or any analogous remedy outside England and Wales) to restrain any actual or putative breach of any Finance Document to which it is party;
|
(2)
|
obtaining specific performance (other than specific performance of an obligation to make a payment) with no claim for damages; or
|
(3)
|
requesting judicial interpretation of any provision of any Finance Document to which it is party with no claim for damages.
|
(i)
|
any resolution is passed or order made for the winding up, dissolution, administration or reorganisation of that member of the Group, a moratorium is declared in relation to any indebtedness of that member of the Group or an administrator is appointed to that member of the Group;
|
(ii)
|
any composition, compromise, assignment or arrangement is made with any of its creditors;
|
(iii)
|
the appointment of any liquidator, receiver, administrator, administrative receiver, compulsory manager or other similar officer in respect of that member of the Group or any of its assets; or
|
(iv)
|
any analogous procedure or step is taken in any jurisdiction.
|
(b)
|
Restriction on Enforcement: Bilateral Lenders
|
(c)
|
Permitted Enforcement: Bilateral Lenders
|
(i)
|
at the same time as, or prior to, that action, Enforcement Action has been taken in respect of the Facilities (other than the Ancillary Facilities), in which case the Bilateral Lenders may take the same Enforcement Action as has been taken in respect of those Facilities; or
|
(ii)
|
at the same time as or prior to, that action, the consent of the Majority Lenders to that Enforcement Action is obtained; or
|
(iii)
|
an Insolvency Event has occurred in relation to any member of the Group, in which case after the occurrence of that Insolvency Event, each Bilateral Lender shall be entitled (if it has not already done so) to exercise any right it may otherwise have in respect of that member of the Group to:
|
(A)
|
accelerate any of that member of the Group's Bilateral Liabilities or declare them prematurely due and payable on demand;
|
(B)
|
make a demand under any guarantee, indemnity or other assurance against loss given by that member of the Group in respect of any Bilateral Liabilities;
|
(C)
|
exercise any right of set off or take or receive any payment in respect of any Bilateral Liabilities of that member of the Group; or
|
(D)
|
claim and prove in the liquidation of that member of the Group for the Bilateral Liabilities owing to it.
|
(a)
|
Each Borrower which has drawn a Revolving Facility Loan shall repay that Loan on the last day of its Interest Period.
|
(b)
|
Without prejudice to each Borrower's obligation under clause 9.2(a) above, if one or more Revolving Facility Loans are to be made available to a Borrower:
|
(i)
|
on the same day that a maturing Revolving Facility Loan is due to be repaid by that Borrower;
|
(ii)
|
in the same currency as the maturing Revolving Facility Loan (unless it arose as a result of the operation of clause 6.2 (Unavailability of a currency)); and
|
(iii)
|
in whole or in part for the purpose of refinancing the maturing Revolving Facility Loan,
|
(A)
|
if the amount of the maturing Revolving Facility Loan exceeds the aggregate amount of the new Revolving Facility Loans:
|
1)
|
the relevant Borrower will only be required to pay an amount in cash in the relevant currency equal to that excess; and
|
2)
|
each Lender's participation (if any) in the new Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender's participation (if any) in the maturing Revolving Facility Loan and that Lender will not be required to make its participation in the new Revolving Facility Loans available in cash; and
|
(B)
|
if the amount of the maturing Revolving Facility Loan is equal to or less than the aggregate amount of the new Revolving Facility Loans:
|
1)
|
the relevant Borrower will not be required to make any payment in cash; and
|
2)
|
each Lender will be required to make its participation in the new Revolving Facility Loans available in cash only to the extent that its participation (if any) in the new Revolving Facility Loans exceeds that Lender's participation (if any) in the maturing Revolving Facility Loan and the remainder of that Lender's participation in the new Revolving Facility Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender's participation in the maturing Revolving Facility Loan.
|
(a)
|
Each Borrower which has drawn an Uncommitted Accordion Revolving Facility Loan shall repay that Loan on the last day of its Interest Period.
|
(b)
|
Without prejudice to each Borrower's obligation under clause 9.3(a) above, if one or more Uncommitted Accordion Revolving Facility Loans are to be made available to a Borrower:
|
(i)
|
on the same day that a maturing Uncommitted Accordion Revolving Facility Loan is due to be repaid by that Borrower;
|
(ii)
|
in the same currency as the maturing Uncommitted Accordion Revolving Facility Loan (unless it arose as a result of the operation of clause 6.2 (Unavailability of a currency)); and
|
(iii)
|
in whole or in part for the purpose of refinancing the maturing Uncommitted Accordion Revolving Facility Loan,
|
(A)
|
if the amount of the maturing Uncommitted Accordion Revolving Facility Loan exceeds the aggregate amount of the new Uncommitted Accordion Revolving Facility Loans:
|
1)
|
the relevant Borrower will only be required to pay an amount in cash in the relevant currency equal to that excess; and
|
2)
|
each Lender's participation (if any) in the new Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender's participation (if any) in the maturing Uncommitted Accordion Revolving Facility Loan and that Lender will not be required to make its participation in the new Uncommitted Accordion Revolving Facility Loans available in cash; and
|
(B)
|
if the amount of the maturing Uncommitted Accordion Revolving Facility Loan is equal to or less than the aggregate amount of the new Uncommitted Accordion Revolving Facility Loans:
|
1)
|
the relevant Borrower will not be required to make any payment in cash; and
|
2)
|
each Lender will be required to make its participation in the new Uncommitted Accordion Revolving Facility Loans available in cash only to the extent that its participation (if any) in the new Uncommitted Accordion Revolving Facility Loans exceeds that Lender's participation (if any) in the maturing Uncommitted Accordion Revolving Facility Loans and the remainder of that Lender's participation in the new Uncommitted Accordion Revolving Facility Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender's participation in the maturing Uncommitted Accordion Revolving Facility Loan.
|
(a)
|
that Lender, shall promptly notify the Agent upon becoming aware of that event;
|
(b)
|
upon the Agent notifying the Company, the Available Commitment of that Lender will be immediately cancelled; and
|
(c)
|
to the extent that the Lender's participation has not been transferred pursuant to clause 40.6 (Replacement of Lender):
|
(i)
|
each Borrower shall repay that Lender's participation in the Loans made to that Borrower on the last day of the then current Interest Period for each Loan occurring after the Agent has notified the Company or, if earlier, the date specified by the Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law) and that Lender's corresponding Commitment shall be cancelled in the amount of the participations repaid; and
|
(ii)
|
to the extent that Lender (or any Affiliate of that Lender) has entered into any Treasury Transaction in relation to its corresponding Commitment, that Lender (or any Affiliate of that Lender) shall be entitled to terminate such Treasury Transaction.
|
(a)
|
Subject to clause 10.3(b), the Company may, if it gives the Agent not less than 3 Business Days' (or such shorter period as the Majority Lenders may agree) prior written notice, cancel the whole or any part (being a minimum amount of $2,000,000, £1,500,000 or €2,000,000 (or its equivalent in any currency) and a multiple of $500,000 (or its equivalent in any currency)) of an Available Facility. Any cancellation under this clause 10.3 shall reduce the Commitments of the Lenders rateably under the relevant Facility.
|
(b)
|
The Company shall not cancel any part of the Available Commitment with respect to the Revolving Facility unless it cancels a pro rata amount of the Available Commitment for any Uncommitted Accordion Revolving Facility and the Company shall not cancel any part of the Available Commitment with respect to any Uncommitted Accordion Revolving Facility unless it cancels a pro rata amount of the Available Commitment for each other Uncommitted Accordion Revolving Facility and the Revolving Facility.
|
10.5
|
Voluntary prepayment of Revolving Facility Loans and Uncommitted Accordion Revolving Facility Loans
|
(i)
|
any sum payable to any Lender by an Obligor is required to be increased under clause 17.2(c) (Tax gross-up); or
|
(ii)
|
any Lender claims indemnification from an Obligor under clause 17.3 (Tax indemnity) or clause 18.1 (Increased costs),
|
(b)
|
On receipt of a notice referred to in clause 10.6(a) in relation to a Lender, the Commitment of that Lender shall immediately be reduced to zero.
|
(c)
|
On the last day of each Interest Period which ends after the Company has given notice under clause 10.6(a) in relation to a Lender (or, if earlier, the date specified by the Company in that notice), each Borrower to which a Loan is outstanding shall repay that Lender's participation in that Loan together with all interest and other amounts accrued under the Finance Documents.
|
(a)
|
If any Lender becomes a Defaulting Lender, the Company may, at any time whilst the Lender continues to be a Defaulting Lender, give the Agent 10 Business Days' notice of cancellation of each Available Commitment of that Lender.
|
(b)
|
On the notice referred to in clause 10.7(a) above becoming effective, each Available Commitment of the Defaulting Lender shall immediately be reduced to zero.
|
(c)
|
The Agent shall as soon as practicable after receipt of a notice referred to in clause 10.7(a) above, notify all the Lenders.
|
(a)
|
the Company delivers to the Agent a duly completed Withdrawal Request not later than 11am 14 days before the proposed date of withdrawal;
|
(b)
|
no Default is continuing; and
|
(c)
|
the amount so withdrawn is applied in immediate prepayment of the Ancillary Facilities.
|
(a)
|
a Change of Control; or
|
(b)
|
the sale of all or substantially all of the assets of the Group whether in a single transaction or a series of related transactions,
|
(A)
|
to meet a third party claim;
|
(B)
|
to cover operating losses in respect of which the relevant insurance claim was made;
|
(C)
|
to the replacement, reinstatement and/or repair of the assets or otherwise in amelioration of the loss in respect of which the relevant insurance claim was made; or
|
(D)
|
by an Obligor to purchase assets useful to the business of the Obligors,
|
(i)
|
fees costs and expenses properly incurred by any member of the Group with respect to that Disposal to persons who are not members of the Group (including without limitation bonus payments to management of the disposed business);
|
(ii)
|
any Tax incurred and required to be paid by the seller in connection with that Disposal (as reasonably determined by the seller) or the transfer of the proceeds thereof intra-Group;
|
(iii)
|
amounts reasonably retained to cover anticipated liabilities in connection with any Disposal provided such amounts are approved by the Majority Lenders (acting reasonably); and
|
(iv)
|
out-of-pocket costs of closure, relocation, reorganisation and restructuring and out-of-pocket costs incurred preparing the asset for any Disposal, in each case, approved by the Majority Lenders (acting reasonably).
|
(i)
|
in respect of Disposal Proceeds, subject to clauses 11.2(c)(ii) to 11.2(f) (inclusive), in an amount so that the aggregate amount of such proceeds is applied on a pro rata and pari passu basis between the principal amount outstanding under the Loans, the principal amount outstanding under the Notes outstanding under the Note Documents and the principal amount outstanding under the notes outstanding under the Shelf Facility; and
|
(ii)
|
in respect of Insurance Proceeds, in an amount so that the aggregate amount of such proceeds is applied on a pro rata and pari passu basis between the principal amount outstanding under the Loans, the principal amount outstanding under the Notes outstanding under the Note Documents and the principal amount outstanding under the notes outstanding under the Shelf Facility.
|
(i)
|
applied in accordance with clause 11.2(b) (Disposal and Insurance); or
|
(ii)
|
subject to clause 11.2(f), if Leverage (as at the Relevant Period immediately prior to the date of such Disposal) does not exceed 2.5:1.0 and the Majority Lenders have given their written prior consent, retained by the Company provided that:
|
(A)
|
within the 18 month period from the date of receipt of the Disposal Proceeds (
Retention Period
), such Disposal Proceeds are applied to
|
(B)
|
prior to the end of applicable Retention Period:
|
1)
|
such Disposal Proceeds are contractually committed to be applied; or
|
2)
|
subject to Majority Lender consent (acting reasonably), such Disposal Proceeds are designated by the board of directors of the Company to be applied,
|
(i)
|
not so applied within the relevant Retention Period pursuant to clause 11.2(c)(ii)(A); or
|
(ii)
|
not so applied within 12 months of the end of the relevant Retention Period pursuant to clause 11.2(c)(ii)(B),
|
(i)
|
promptly notify the Agent of any change or termination of any contractual commitments or designations by the board of directors of the Company in respect of such Disposal Proceeds after the end of the applicable Retention Period; and
|
(ii)
|
any such Disposal Proceeds retained by the Company after the Retention Period which exceed the relevant contractual commitments or designations by the board of directors of the Company shall be applied in accordance with clause 11.2(b) (Disposal and Insurance).
|
(f)
|
If a Mandatory Prepayment Default is continuing, the Company shall ensure a sum equal to any Disposal Proceeds not applied to purchase (or otherwise reinvest into) assets (other than shares) comparable or superior as to type, value or quality in replacement or substitution of assets to which the Disposal Proceeds relate, towards Permitted Acquisitions, Permitted Joint Ventures or the capital expenditure of the Group to the extent permitted pursuant to this Agreement pursuant to clause 11.2(c)(ii)(A) or clause 11.2(c)(ii)(B) are, within 2 Business Days of the Agent's request, applied in mandatory prepayment in accordance with clause 11.2(b) (Disposal and Insurance).
|
(a)
|
A prepayment and/or cancellation made under clause 11.2 shall be applied in the following order:
|
(i)
|
first in prepayment of any Uncommitted Accordion Term Facility Loans as contemplated in clause 11.3(b);
|
(ii)
|
second in pro rata cancellation of the Available Commitments under the Uncommitted Accordion Term Facilities (and the Available Commitment of the Lenders under the Uncommitted Accordion Term Facilities will be cancelled rateably);
|
(iii)
|
third, in pro rata prepayment of Revolving Facility Loans and any Uncommitted Accordion Revolving Facility Loans and pro rata cancellation of such Revolving Facility Commitments and the Uncommitted Accordion Revolving Facility Commitments; and
|
(iv)
|
fourth, in pro rata prepayment and cancellation of the Ancillary Outstandings provided under the Revolving Facility and any Uncommitted Accordion Revolving Facility and pro rata cancellation of Ancillary Commitments provided under the Revolving Facility and any Uncommitted Accordion Revolving Facility.
|
(b)
|
A prepayment made under clause 11.2 shall prepay the Uncommitted Accordion Term Facility Loans as follows:
|
(i)
|
in prepayment of such Uncommitted Accordion Term Facility Loans pro rata: and
|
(ii)
|
if applicable, in reducing the relevant Repayment Instalment for each Repayment Date falling after the date of prepayment in the manner contemplated by clause 9.4 (Effect of cancellation and prepayment on scheduled repayments and reductions).
|
(c)
|
A prepayment relating to the amounts of Disposal Proceeds or Insurance Proceeds made under clause 11.2 shall be made promptly upon receipt of those proceeds.
|
(a)
|
Margin; and
|
(b)
|
LIBOR or, in relation to any Loan in euro, EURIBOR.
|
(a)
|
If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to clause 13.3(b), is 2% higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Agent (acting
|
(b)
|
If any overdue amount consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan:
|
(i)
|
the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and
|
(ii)
|
the rate of interest applying to the overdue amount during that first Interest Period shall be 2% higher than the rate which would have applied if the overdue amount had not become due.
|
(c)
|
Default interest (if unpaid) arising on an overdue amount will be compounded with the overdue amount at the end of each Interest Period applicable to that overdue amount but will remain immediately due and payable.
|
(a)
|
A Borrower (or the Company on its behalf) may select an Interest Period for a Loan in the Utilisation Request for that Loan or (if the Loan is an Uncommitted Accordion Term Facility Loan and has already been borrowed) in a Selection Notice.
|
(b)
|
Each Selection Notice for an Uncommitted Accordion Term Facility Loan is irrevocable and must be delivered to the Agent by a Borrower not later than the Specified Time.
|
(c)
|
If a Borrower fails to deliver a Selection Notice to the Agent in accordance with clause 14.1(b), the relevant Interest Period will be 3 Months.
|
(d)
|
Subject to this clause 14, the Borrower (or the Company on its behalf) may select an Interest Period of 1, 2, 3 or 6 Months or any other period agreed between the Agent (acting on the instructions of all the Lenders in relation to the relevant Loan) and the Company. In addition a Borrower (or the Company on its behalf) may select an Interest Period of (in relation to an Uncommitted Accordion Term Facility which is an amortising facility) a period of less than three Months, if necessary to ensure that there are Uncommitted Accordion Term Facility Loans (with an aggregate Base Currency Amount equal to the Repayment Instalment) which have an Interest Period ending on a Repayment Date relating to the relevant Facility for the Borrowers to make the Repayment Instalment due on that date.
|
(e)
|
No Interest Period for a Loan shall extend beyond the Termination Date applicable to its Facility.
|
(f)
|
Each Interest Period for an Uncommitted Accordion Facility Loan shall start on the Utilisation Date or (if already made) on the last day of its preceding Interest Period.
|
(g)
|
A Revolving Facility Loan or Uncommitted Accordion Revolving Facility Loan has 1 Interest Period only.
|
(a)
|
Prior to determining the interest rate for an Uncommitted Accordion Term Facility Loan which is an amortising Loan, the Agent may shorten an Interest Period for any such Uncommitted Accordion Term Facility Loan to ensure there are sufficient such Uncommitted Accordion Term Facility Loans (with an aggregate Base Currency Amount equal to or greater than the relevant Repayment Instalment) which have an Interest Period ending on a Repayment Date for the Borrowers to make the relevant Repayment Instalment due on that date.
|
(b)
|
If the Agent makes any of the changes to an Interest Period referred to in this clause 14.2 it shall promptly notify the Company and the Lenders.
|
(a)
|
This clause 14.4 (relates only to the Canadian Obligors and the amounts payable thereby (or by any of them) pursuant to the terms hereof and of the other Finance Documents.
|
(b)
|
For the purposes of the
Interest Act
(Canada) and any other applicable laws which may hereafter regulate the calculation or computation of interest on borrowed funds and disclosure thereunder, whenever any interest or any fee to be paid hereunder or in connection herewith is to be calculated on the basis of a 360-day or 365-day year, the yearly rate of interest to which the rate used in such calculation is equivalent is the rate so used multiplied by the actual number of days in the calendar year in which the same is to be ascertained and divided by 360 or 365, as applicable. The rates of interest under this Agreement are nominal rates, and not effective rates or yields. The principle of deemed reinvestment of interest does not apply to any interest calculation under this Agreement.
|
(c)
|
Any provision of this Agreement or any other Finance Document that would oblige a Canadian Obligor to pay any fine, penalty or rate of interest on any arrears of principal or interest secured by a mortgage on real property or hypothec on immovables that has the effect of increasing the charge on arrears beyond the rate of interest payable on principal money not in arrears shall not apply to such Canadian Obligor, which shall be required to pay interest on money in arrears at the same rate of interest payable on principal money not in arrears.
|
(d)
|
If any provision of this Agreement or any other Finance Document would oblige a Canadian Obligor to make any payment of interest or other amount payable in an amount or calculated at a rate which would be prohibited by any applicable law or would result in a receipt by a Lender of “interest” at a “criminal rate” (as such terms are construed under the
Criminal Code
(Canada)), then, notwithstanding such provision, such amount or rate shall be deemed to have been adjusted with retroactive effect to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by applicable law or so result in a receipt by that Lender of “interest” at a “criminal rate”, such adjustment to be effected, to the extent necessary (but only to the extent necessary), as follows:
|
(i)
|
first, by reducing the amount or rate of interest required to be paid to the affected Lender; and
|
(ii)
|
thereafter, by reducing any fees, commissions, costs, expenses, premiums and other amounts required to be paid to the affected Lender which would constitute interest for purposes of section 347 of the Criminal Code (Canada).
|
(i)
|
no Default is continuing; and
|
(ii)
|
Leverage in respect of the most recently completed Relevant Period (as evidenced by the last Compliance Certificate) is within the range set out below,
|
Leverage
|
Margin % p.a.
|
Greater than 3.0:1.0
|
2.90
|
Less than or equal to 3.0:1.0, but greater than 2.5:1.0
|
2.50
|
Less than or equal to 2.5:1.0, but greater than 2.0:1.0
|
2.25
|
Less than or equal to 2.0:1.0 but greater than 1.5:1.0
|
2.00
|
Less than or equal to 1.5:1.0 but greater than 1.0:1.0
|
1.75
|
Less than or equal to 1.0:1.0
|
1.50
|
(i)
|
Any increase or decrease in the Margin shall take effect on the date which is the first day of the Interest Period for each Revolving Facility Loan.
|
(ii)
|
If, following receipt by the Agent of the Annual Financial Statements of the Group and related Compliance Certificate, those statements and Compliance Certificate do not confirm the basis for a reduced Margin, then the provisions of clause 13.2 (Payment of interest) shall apply and the Margin for each Revolving Facility Loan shall be the percentage per annum determined in accordance with clause 15.1(a) and the revised ratio of Leverage calculated using the figures in the Compliance Certificate and the Company shall (or shall ensure the relevant Borrower shall) promptly pay to the Agent any amounts necessary to put the Lenders in the position they would have been in had the reduced Margin not have been applied during such period.
|
(iii)
|
While a Default is continuing unremedied and unwaived, the Margin for each Revolving Facility Loan shall be the highest percentage per annum set out in clause 15.1(a) for a Revolving Facility Loan.
|
(a)
|
Interpolated Screen Rate: If no Screen Rate is available for LIBOR or, if applicable, EURIBOR for the Interest Period of a Loan, the applicable LIBOR or EURIBOR shall be the Interpolated Screen Rate for a period equal in length to the Interest Period of that Loan.
|
(b)
|
Base Reference Bank Rate: If no Screen Rate is available for LIBOR or, if applicable, EURIBOR for:
|
(i)
|
the currency of a Loan; or
|
(ii)
|
the Interest Period of a Loan and it is not possible to calculate the Interpolated Screen Rate,
|
(c)
|
Cost of funds: If clause 15.2(b) applies but no Base Reference Bank Rate is available for the relevant currency or Interest Period there shall be no LIBOR or EURIBOR for that Loan and clause 15.5 shall apply to that Loan for that Interest Period.
|
(a)
|
Subject to clause 15.3(b), if LIBOR or EURIBOR is to be determined on the basis of a Base Reference Bank Rate but a Base Reference Bank does not supply a quotation by the Specified Time, the Base Reference Bank Rate shall be calculated on the basis of the quotations of the remaining Base Reference Banks.
|
(b)
|
If at or about noon on the Quotation Day, none or only one of the Base Reference Banks supplies a quotation, there shall be no Base Reference Bank Rate for the relevant Interest Period.
|
(a)
|
If this clause 15.5 applies, the rate of interest on each Lender's share of the relevant Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of:
|
(i)
|
the Margin; and
|
(ii)
|
the rate notified to the Agent by that Lender as soon as practicable and in any event by close of business on the date falling 2 Business Days after the Quotation Day (or, if earlier, on the date falling 2 Business Days before the date on which interest is due to be paid in respect of that Interest Period), to be that which expresses as a percentage rate per annum the cost to the relevant Lender of funding its participation in that Loan from whatever source it may reasonably select.
|
(b)
|
If this clause 15.5 applies and the Agent or the Company so requires, the Agent and the Company shall enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate of interest.
|
(c)
|
Any alternative basis agreed pursuant to clause 15.5(b) shall, with the prior consent of all the Lenders and the Company, be binding on all Parties.
|
(i)
|
a Lender's Funding Rate is less than LIBOR or, in relation to any Loan in euro, EURIBOR; or
|
(ii)
|
a Lender does not supply a quotation by the time specified in clause 15.5(a)(ii),
|
(e)
|
If this clause 15.5 applies pursuant to clause 15.2 but any Lender does not supply a quotation by the time specified in clause 15.5(a)(ii) the rate of interest shall be calculated on the basis of the quotations of the remaining Lenders.
|
(a)
|
Each Borrower shall, within three Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of a Loan or Unpaid Sum being paid by that Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum.
|
(b)
|
Each Lender shall, as soon as reasonably practicable after a demand by the Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue.
|
(a)
|
The Company shall pay to the Agent (for the account of each Lender) a fee in the Base Currency computed at the rate of 35% of the applicable Margin on that Lender's Available Commitment under the Revolving Facility for the Availability Period.
|
(b)
|
The accrued commitment fee is payable on the last day of each successive period of 3 Months which ends during the Availability Period, on the Fourth Restatement Date, on the last day of the Availability Period and on the cancelled amount of the relevant Lender's Available Commitment at the time the cancellation is effective.
|
(i)
|
a Lender (other than a Lender within (ii) below) which is beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document and is:
|
(1)
|
which is a bank (as defined for the purpose of section 879 of ITA) making an advance under a Finance Document; or
|
(2)
|
in respect of an advance made under a Finance Document by a person that was a bank (as defined for the purpose of section 879 of ITA) at the time that that advance was made,
|
(a)
|
a company so resident in the United Kingdom; or
|
(b)
|
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA;
|
(i)
|
a company so resident in the United Kingdom; or
|
(ii)
|
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or
|
(a)
|
is treated as a resident of a Treaty State for the purposes of the Treaty;
|
(b)
|
does not carry on a business in the United Kingdom through a permanent establishment with which that Lender's participation in the Loan is effectively connected; and
|
(c)
|
fulfils any other conditions that must be fulfilled under the relevant Treaty by residents of that Treaty State for such residents to obtain exemption from taxation of interest imposed by the United Kingdom, assuming for these purposes that all relevant procedural steps and formalities have been duly completed.
|
(a)
|
Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.
|
(b)
|
The Company shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Agent accordingly. Similarly, a Lender shall notify the Agent on becoming so aware in respect of a payment payable to that Lender. If the Agent receives such notification from a Lender it shall notify the Company and that Obligor.
|
(c)
|
If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.
|
(d)
|
A payment shall not be increased under clause 17.2(c) by reason of a Tax Deduction on account of Tax imposed by the United Kingdom from a payment of interest on a Loan, or an amount treated as interest on a loan for Tax purposes, if on the date on which the payment falls due:
|
(i)
|
the payment could have been made to the relevant Lender without a Tax Deduction if the Lender had been a Qualifying Lender, but on that date that Lender is not or has ceased to be a Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty, or any published practice or published concession of any relevant taxing authority;
|
(ii)
|
the relevant Lender is a Qualifying Lender solely by virtue of paragraph (i)(B) of the definition of Qualifying Lender and:
|
(A)
|
an officer of HM Revenue & Customs has given (and not revoked) a direction (Direction) under section 931 of ITA which relates to that payment and that Lender has received from the Obligor making the payment or from the Company a certified copy of that Direction; and
|
(B)
|
the payment could have been made to the Lender without any Tax Deduction if that Direction had not been made;
|
(iii)
|
the relevant Lender is a Qualifying Lender solely by virtue of paragraph (i)(B) of the definition of Qualifying Lender and:
|
(A)
|
the relevant Lender has not given a Tax Confirmation to the Company; and
|
(B)
|
the payment could have been made to the Lender without any Tax Deduction if the Lender had given a Tax Confirmation to the Company, on the basis that the Tax Confirmation would have enabled the Company to have formed a reasonable belief that the payment was an "excepted payment" for the purpose of section 930 of the ITA;
|
(iv)
|
the relevant Lender is a Treaty Lender and the Obligor making the payment is able to demonstrate that the payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations under clause 17.2(g); or
|
(v)
|
the relevant Lender is a Treaty Lender and the Obligor making the payment is able to demonstrate that the payment could have been made to the Lender without the Tax Deduction had that Lender not granted a sub-participation to a person who, if that person had been a Lender, would not be a Qualifying Lender with regard to that payment but on that date that subparticipant is, if that person had been a Lender, not a Qualifying Lender (or, has ceased to be a Qualifying Lender) other than as a result of any change after the date it became a sub-participant in (or in the official interpretation, administration or application of) any law or treaty, or any published practice or published concession of any relevant taxing authority. For the avoidance of doubt there shall be no obligation on a Finance Party to disclose any sub-participation to any Obligor.
|
(e)
|
If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.
|
(f)
|
Within 28 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Agent for the Finance Party entitled to the payment a statement under section 975 of the ITA or other evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.
|
(g)
|
|
(i)
|
Subject to clause 17.2(g)(ii) below, a Treaty Lender and each Obligor which makes a payment to which that Treaty Lender is entitled shall co-operate in completing any procedural formalities necessary for that Obligor to obtain authorisation to make that payment without a Tax Deduction
|
(A)
|
register under the HMRC DT Treaty Passport scheme;
|
(B)
|
apply the HMRC DT Treaty Passport scheme to any Loan if it has so registered; or
|
(C)
|
file Treaty forms if it has included an indication to the effect that it wishes the HMRC DT Treaty Passport scheme to apply to this Agreement in accordance with clause 17.2(i) below or clause 17.7(a), and the Obligor making that payment has not complied with its obligations under clause 17.2(j) or clause 17.7(b).
|
(i)
|
each Original Borrower shall, to the extent that that Lender is a Lender under the Facility made available to that Original Borrower pursuant to clause 2.1 (The
|
(ii)
|
each Additional Borrower shall, to the extent that that Lender is a Lender under the Facility made available to that Additional Borrower pursuant to clause 2.1 (The Facilities), file a duly completed form DTTP2 in respect of such Lender with HM Revenue & Customs within 30 days of becoming an Additional Borrower and shall promptly provide the Lender with a copy of that filing.
|
(a)
|
Each Obligor shall, within 3 Business Days of demand by the Agent, pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document.
|
(A)
|
under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or
|
(B)
|
under the law of the jurisdiction in which that Finance Party's Facility Office is located in respect of amounts received or receivable in that jurisdiction,
|
(A)
|
is compensated for by an increased payment under clause 17.2; or
|
(B)
|
would have been compensated for by an increased payment under clause 17.2 but was not so compensated solely because one of the exclusions in clause 17.2(d) or clause 17.2(l) applied.
|
(c)
|
A Protected Party making, or intending to make a claim under clause 17.3(a) shall promptly notify the Agent of the event which will give, or has given, rise to the claim, and will give details of the amount claimed following which the Agent shall notify the Company.
|
(d)
|
A Protected Party shall, on receiving a payment from an Obligor under this clause 17.3, notify the Agent.
|
(a)
|
a Tax Credit is attributable either to an increased payment of which that Tax Payment forms part or to that Tax Payment; and
|
(b)
|
that Finance Party has obtained, utilised and retained that Tax Credit,
|
(a)
|
not a Qualifying Lender;
|
(b)
|
a Qualifying Lender (other than a Treaty Lender); or
|
(c)
|
a Treaty Lender.
|
(a)
|
A New Lender or an Increase Lender that is a Treaty Lender that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall include an indication to that effect (for the benefit of the Agent and without liability to any Obligor) in the Transfer Certificate, Assignment Agreement or Increase Confirmation or Uncommitted Accordion Facility Commitment Notice which it executes by including its scheme reference number and its jurisdiction of tax residence in that Transfer Certificate, Assignment Agreement, Increase Confirmation or Uncommitted Accordion Facility Commitment Notice.
|
(b)
|
Where a New Lender or an Increase Lender includes the indication described in clause 17.7(a) above in the relevant Transfer Certificate, Assignment Agreement, Increase Confirmation or Uncommitted Accordion Facility Commitment Notice:
|
(i)
|
each Borrower which is a Party as a Borrower as at the relevant Transfer Date or the date on which the increase in Total Commitments described in the relevant Increase Confirmation or Uncommitted Accordion Facility Commitment Notice takes effect shall, to the extent that that New Lender or Increase Lender becomes a Lender under the Facility which is made available to that Borrower pursuant to clause 2.1 (The Facilities), file a duly completed form DTTP2 in respect of such Lender with HM Revenue & Customs within 30 days of that Transfer Date or that date on which the increase in Total Commitments takes effect and shall promptly provide the Lender with a copy of that filing; and
|
(ii)
|
each Additional Borrower which becomes an Additional Borrower after the relevant Transfer Date or the date on which the increase in Total Commitments described in the relevant Increase Confirmation or Uncommitted Accordion Facility Commitment Notice takes effect shall, to the extent that that New Lender or Increase Lender is a Lender under the Facility which is made available to that Additional Borrower pursuant to clause 2.1 (The Facilities), file a duly completed form DTTP2 in respect of such Lender with HM Revenue & Customs within 30 days of becoming an Additional Borrower and shall promptly provide the Lender with a copy of that filing.
|
(a)
|
register under the HMRC DT Treaty Passport scheme; or
|
(b)
|
apply the HMRC DT Treaty Passport scheme to any Loan if it has so registered; or
|
(c)
|
file Treaty forms if it has included an indication to the effect that it wishes the HMRC DT Treaty Passport scheme to apply to this Agreement in accordance with clause 17.2(i) or clause 17.7(a), and the Obligor making that payment has not complied with its obligations under clause 17.2(j) or clause 17.7(b).
|
(a)
|
Each Finance Party that is a "United States person" within the meaning of Section 7701(a)(30) of the Internal Revenue Code shall deliver to each applicable Obligor and the Agent executed originals of US Internal Revenue Service Form W-9 or such other documentation or information prescribed by applicable law or reasonably requested by the applicable Obligor or the Agent as will enable such Obligor or the Agent, as the case may be, certifying to such Finance Party's exemption from US backup withholding and/or information reporting requirements.
|
(b)
|
Each Non-US Finance Party shall deliver to each applicable Obligor and the Agent (in such number of copies as shall be requested by the recipient) as soon as reasonably practicable following the date on which such Non-US Finance Party becomes a Finance Party under this Agreement, but no later than three Business Days prior to the date the first payment is due under the Finance Documents to that Non-US Finance Party (and from time to time thereafter upon the request of such Obligor or the Agent), whichever of the following is applicable:
|
(i)
|
properly completed and duly executed originals of US Internal Revenue Service Form W-8BEN (claiming a complete exemption from United States withholding tax on payments made to such Non-US Finance Party pursuant to the Finance Documents under the benefits of an applicable income tax treaty);
|
(ii)
|
properly completed and duly executed originals of US Internal Revenue Service Form W-ECI (claiming a complete exemption from United States withholding tax because payments made to such Non-US Finance Party pursuant to the Finance Documents are effectively connected with a US trade or business);
|
(iii)
|
properly completed and duly executed originals of US Internal Revenue Service Form W-8IMY and all required supporting documentation (claiming a complete exemption from United States withholding tax because payments made to such Non-US Finance Party pursuant to the Finance Documents); or
|
(iv)
|
in the case of a Non-US Finance Party claiming the benefits of the exemption for portfolio interest under Sections 871(h) or 881(c) of the Internal Revenue Code, (x) a certificate to the effect that such Non-US Finance Party is not (A) a "bank" within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (B) a "10 percent shareholder" of the Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code, or (C) a "controlled foreign corporation" described in Section 881(c)(3)(C) of the Internal Revenue Code and (y) properly completed and duly executed originals of US Internal Revenue Service Form W-8BEN.
|
(a)
|
All amounts set out or expressed in a Finance Document to be payable by any Party to a Finance Party which (in whole or in part) constitute the consideration for a supply or supplies for VAT purposes shall be deemed to be exclusive of any VAT which is chargeable on such supply or supplies, and accordingly, subject to clause 17.11(b), if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document, that Party shall pay to the Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of such VAT (and such Finance Party shall promptly provide an appropriate VAT invoice to such Party).
|
(b)
|
If VAT is or becomes chargeable on any supply made by any Finance Party (Supplier) to any other Finance Party (Recipient) under a Finance Document, and any Party other than the Recipient (Subject Party) is required by the terms of any Finance Document to pay an amount equal to the consideration for such supply to the Supplier (rather than being required to reimburse the Recipient in respect of that consideration), such Party shall also pay to the Supplier (in addition to and at the same time as paying such amount) an amount equal to the amount of such VAT. The Recipient will promptly pay to the Subject Party an amount equal to any credit or repayment obtained by the Recipient from the relevant tax authority which the Recipient reasonably determines is in respect of such VAT.
|
(c)
|
Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.
|
(d)
|
Any reference in this clause 17.11 to any Party shall, at any time when such Party is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the representative member of such group at such time (the term "representative member" to have the same meaning as in the Value Added Tax Act 1994).
|
(ii)
|
supply to that other Party such forms, documentation and other information relating to its status under FATCA (including its applicable pass thru percentage
|
(b)
|
If a Party confirms to another Party pursuant to clause 17.12(a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.
|
(c)
|
Clause 17.12(a) above shall not oblige any Finance Party to do anything which would or might in its reasonable opinion constitute a breach of:
|
(i)
|
any law or regulation;
|
(ii)
|
any policy of that Finance Party;
|
(iii)
|
any fiduciary duty; or
|
(iv)
|
any duty of confidentiality.
|
(d)
|
If a Party fails to confirm its status or to supply forms, documentation or other information requested in accordance with clause 17.12(a) (including, for the avoidance of doubt, where clause 17.12(c) applies), then:
|
(i)
|
if that Party failed to confirm whether it is (and/or remains) a FATCA Exempt Party then such Party shall be treated for the purposes of the Finance Documents as if it is not a FATCA Exempt Party; and
|
(ii)
|
if that Party failed to confirm its applicable passthru percentage then such Party shall be treated for the purposes of the Finance Documents (and payments made thereunder) as if its applicable passthru percentage is 100%,
|
(a)
|
Subject to clause 18.3 the Obligors shall, within 3 Business Days of a demand by the Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of:
|
(i)
|
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation; or
|
(ii)
|
compliance with any law or regulation made after the date of this Agreement; or
|
(iii)
|
to the extent the costs were not reasonably foreseeable as at the Fourth Restatement Date, the implementation or application of, or compliance with, Basel III or CRD IV or any other law or regulation which implements Basel III or CRD IV (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates).
|
(i)
|
a reduction in the rate of return from a Facility or on a Finance Party's (or its Affiliate's) overall capital;
|
(ii)
|
an additional or increased cost; or
|
(iii)
|
a reduction of any amount due and payable under any Finance Document,
|
(a)
|
A Finance Party intending to make a claim pursuant to clause 18.1 shall notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify the Company.
|
(b)
|
Each Finance Party shall, as soon as practicable after a demand by the Agent, provide a certificate confirming the amount of its Increased Costs.
|
(i)
|
attributable to a Tax Deduction required by law to be made by an Obligor;
|
(ii)
|
attributable to a FATCA Deduction required to be made by a Party;
|
(iii)
|
compensated for by clause 17.3 (Tax indemnity) (or would have been compensated for under clause 17.3 (Tax indemnity) but was not so compensated solely because any of the exclusions in clause 17.3(b) (Tax indemnity) applied); or
|
(iv)
|
attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation.
|
(b)
|
In this clause 18.3 reference to a
Tax Deduction
has the same meaning given to the term in clause 17.1 (Definitions).
|
(a)
|
If any sum due from an Obligor under the Finance Documents (
Sum
), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (
First Currency
) in which that Sum is payable into another currency (
Second Currency
) for the purpose of:
|
(i)
|
making or filing a claim or proof against that Obligor; or
|
(ii)
|
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,
|
(b)
|
Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable (or in which it is otherwise determined to be payable pursuant to clause 34.10 (Change of currency).
|
(a)
|
The Company shall (or shall ensure that an Obligor will), within 3 Business Days of demand, indemnify each Finance Party against any cost, loss or liability incurred by it as a result of:
|
(i)
|
the occurrence of any Event of Default;
|
(ii)
|
a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of clause 33 (Sharing among the Finance Parties);
|
(iii)
|
funding, or making arrangements to fund, its participation in a Loan requested by a Borrower in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of gross negligence or wilful default by that Finance Party alone); or
|
(iv)
|
a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given by a Borrower (or the Company on its behalf).
|
(a)
|
investigating any event which it reasonably believes is a Default; or
|
(b)
|
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised.
|
(a)
|
Each Finance Party shall, in consultation with the Company, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of clause 10.1 (Illegality), clause 17 (Tax gross up and indemnities), clause 18 (Increased costs), including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.
|
(b)
|
Clause 20.1(a) does not in any way limit the obligations of any Obligor under the Finance Documents.
|
(a)
|
The Company shall (or shall ensure that an Obligor will), within 3 Business Days of demand indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under clause 20.1.
|
(b)
|
A Finance Party is not obliged to take any steps under clause 20.1 if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.
|
(a)
|
this Agreement and any other documents referred to in this Agreement; and
|
(b)
|
any other Finance Documents executed after the date of this Agreement.
|
(a)
|
an Obligor requests an amendment, waiver or consent; or
|
(b)
|
an amendment is required pursuant to clause 34.10 (Change of currency),
|
(a)
|
jointly and severally guarantees to each Finance Party punctual performance by each other Obligor of all that Obligor's obligations under the Finance Documents;
|
(b)
|
jointly and severally undertakes with each Finance Party that whenever another Obligor does not pay any amount when due under or in connection with any Finance Document, that Guarantor shall immediately on demand pay that amount as if it was the principal obligor; and
|
(c)
|
jointly and severally (or in the case of a Canadian Obligor, severally and not jointly and severally) agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Finance Party immediately on demand against any cost, loss or liability it incurs as a result of an Obligor not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Finance Document on the date when it would have been due. The amount payable by a Guarantor under this indemnity will not exceed the amount it would have had to pay under this clause 22 if the amount claimed had been recoverable on the basis of a guarantee.
|
(a)
|
any time, waiver or consent granted to, or composition with, any Obligor or other person;
|
(b)
|
the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;
|
(c)
|
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or Security over assets of, any Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any Security;
|
(d)
|
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;
|
(e)
|
any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or Security including without limitation any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document or other document or Security;
|
(f)
|
any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or Security; or
|
(g)
|
any insolvency or similar proceedings.
|
(a)
|
business acquisitions of any nature;
|
(h)
|
any other variation or extension of the purposes for which any such facility or amount might be made available from time to time; and
|
(a)
|
refrain from applying or enforcing any other moneys, Security or rights held or received by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and no Guarantor shall be entitled to the benefit of the same; and
|
(b)
|
hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of any Guarantor's liability under this clause 22.
|
(a)
|
to be indemnified by an Obligor;
|
(b)
|
to claim any contribution from any other guarantor of any Obligor's obligations under the Finance Documents;
|
(c)
|
to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under the Finance Documents or of any other guarantee or Security taken pursuant to, or in connection with, the Finance Documents by any Finance Party;
|
(d)
|
to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which any Guarantor has given a guarantee, undertaking or indemnity under clause 22.1 (Guarantee and indemnity);
|
(e)
|
to exercise any right of set-off against any Obligor; and/or
|
(f)
|
to claim or prove as a creditor of any Obligor in competition with any Finance Party.
|
(a)
|
that Retiring Guarantor is released by each other Guarantor from any liability (whether past, present or future and whether actual or contingent) to make a contribution to any other Guarantor arising by reason of the performance by any other Guarantor of its obligations under the Finance Documents; and
|
(b)
|
each other Guarantor waives any rights it may have by reason of the performance of its obligations under the Finance Documents to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under any Finance Document or of any other Security taken pursuant to, or in connection with, any Finance Document where such rights or Security are granted by or in relation to the assets of the Retiring Guarantor.
|
(i)
|
it will receive valuable direct or indirect benefits as a result of the transactions financed by the Finance Documents;
|
(ii)
|
those benefits will constitute reasonably equivalent value and fair consideration for the purpose of any Fraudulent Transfer Law;
|
(iii)
|
each Lender has acted in good faith in connection with the guarantee given by that US Guarantor and the transactions contemplated by the Finance Documents; and
|
(iv)
|
it has not incurred and does not intend to incur debts beyond its ability to pay as they mature.
|
(b)
|
Each Lender agrees that each US Guarantor's liability under this clause is limited to the extent (if any) necessary so that no obligation of, or payment by, any US Guarantor under this clause is subject to avoidance or turnover under any Fraudulent Transfer Law.
|
(i)
|
the aggregate amount of its debts (including its obligations under the Finance Documents (other than obligations that are, at the relevant time, wholly contingent or prospective)) is less than the aggregate value (being the lesser of fair valuation and present fair saleable value) of its assets;
|
(ii)
|
its capital is not unreasonably small to carry on its business as it is being conducted;
|
(iii)
|
it has not incurred and does not intend to incur debts beyond its ability to pay as they become due; and
|
(iv)
|
it has not made a transfer or incurred any obligation under any Finance Document with the intent to hinder, delay or defraud any of its present or future creditors.
|
(a)
|
It and each of its Subsidiaries is a limited liability corporation, corporation or partnership duly incorporated, continued, amalgamated or formed (as the case may be) and validly existing under the law of its jurisdiction of incorporation, continuance, amalgamation or formation (as applicable).
|
(b)
|
It and each of its Subsidiaries has the power to own its assets and carry on its business as it is being conducted.
|
(a)
|
any law or regulation applicable to it;
|
(b)
|
the constitutional documents of any member of the Group; or
|
(c)
|
any agreement or instrument binding upon it or any member of the Group or any of its or any member of the Group's assets or constitute a default or termination event (however described) under any such agreement or instrument unless such conflict, default or termination event would not have or is not reasonably likely to have a Material Adverse Effect.
|
(a)
|
It has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, the Transaction Documents to which it is or will be a party and the transactions contemplated by those Transaction Documents.
|
(b)
|
No limit on its powers will be exceeded as a result of the borrowing, grant of Security or giving of guarantees or indemnities contemplated by the Transaction Documents to which it is a party.
|
(i)
|
to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Transaction Documents to which it is a party; and
|
(ii)
|
to make the Transaction Documents to which it is a party admissible in evidence in its Relevant Jurisdictions,
|
(b)
|
All Authorisations necessary for the conduct of the business, trade and ordinary activities of the members of the Group have been obtained or effected and are in full force and effect if failure to obtain or effect those Authorisations has or is reasonably likely to have a Material Adverse Effect.
|
(a)
|
The choice of governing law of the Finance Documents will be recognised and enforced in its Relevant Jurisdictions.
|
(b)
|
Any judgment obtained in relation to a Finance Document in the jurisdiction of the governing law of that Finance Document will be recognised and enforced in its Relevant Jurisdictions.
|
(i)
|
corporate action, legal proceeding or other procedure or step described in clause 27.7(a) (Insolvency proceedings); or
|
(ii)
|
creditors' process described in clause 27.8 (Creditors' process),
|
(b)
|
No corporate action, legal proceeding or other procedure or step described in clause 27.7(b) (Insolvency proceedings) has been taken or, so far as it is aware, threatened in relation to an Obligor or a Material Subsidiary incorporated in the US.
|
(c)
|
None of the circumstances described in clause 27.6 (Insolvency) applies to an Obligor or a Material Subsidiary.
|
(i)
|
falling within paragraph (i)(A) of the definition of Qualifying Lender;
|
(ii)
|
except where a Direction has been given under section 931 of the ITA in relation to the payment concerned, falling within paragraph (i)(B) of the definition of Qualifying Lender; or
|
(iii)
|
falling within paragraph (ii) of the definition of Qualifying Lender or;
|
(b)
|
a Treaty Lender and the payment is one specified in a direction given by the Commissioners of Revenue & Customs under Regulation 2 of the Double Taxation Relief (Taxes on Income) (General) Regulations 1970 (SI 1970/488).
|
(a)
|
No Event of Default and, on the date of this Agreement and the Closing Date, no Default is continuing or is reasonably likely to result from the making of any Loan or the entry into, the performance of, or any transaction contemplated by, any Transaction Document.
|
(b)
|
No other event or circumstance is outstanding which constitutes (or, with the expiry of a grace period, the giving of notice, the making of any determination or any combination of any of the foregoing, would constitute) a default or termination event (however described) under any other agreement or instrument which is binding on it or any of its Subsidiaries or to which its (or any of its Subsidiaries') assets are subject which has or is reasonably likely to have a Material Adverse Effect.
|
(a)
|
All material information provided to a Finance Party by or on behalf of the Group on or before the Fourth Restatement Date and not superseded before that date is accurate and not misleading in any material respect and the most recent projections provided to any Finance Party on or before the Fourth Restatement Date and not superseded before that date have been prepared in good faith on the basis of assumptions which were reasonable at the time at which they were prepared and supplied.
|
(b)
|
All other written information provided by the Company to a Finance Party was true, complete and accurate in all material respects as at the date it was provided and is not misleading in any material respect.
|
(a)
|
Its Original Financial Statements were prepared in accordance with the Accounting Principles consistently applied.
|
(b)
|
Its unaudited Original Financial Statements fairly represent its financial condition and results of operations for the relevant period in accordance with basis of preparation and Accounting Principles unless expressly disclosed to the Agent in writing to the contrary prior to the date of this Agreement.
|
(d)
|
There has been no material adverse change in its assets, business or financial condition (or the assets, business or consolidated financial condition of the Group, in the case of the Company) since 31 December 2016.
|
(e)
|
The Original Financial Statements of the Company do not consolidate the results, assets or liabilities of any person or business which does not form part of the Group (other than in respect of any joint venture) as at the Fourth Restatement Date.
|
(f)
|
Its most recent financial statements delivered pursuant to clause 24.1 (Financial statements) on or after the Fourth Restatement Date:
|
(i)
|
have been prepared in accordance with the Accounting Principles as applied to the Original Financial Statements (or if there has been a change to the Accounting Principles the requirements of clause24.3(c) have been complied with); and
|
(i)
|
give a true and fair view of (if audited) or fairly present (if unaudited) its consolidated financial condition as at the end of, and consolidated results of operations for, the period to which they relate.
|
(g)
|
The budgets and forecasts supplied under this Agreement on or after the Fourth Restatement Date were arrived at after careful consideration and have been prepared in good faith on the basis of recent historical information and on the basis of assumptions which were reasonable as at the date they were prepared and supplied (it being acknowledged by the Finance Parties that financial projections or forecasts are subject to uncertainties and contingencies and no representation or warranty is given that such financial projections or forecasts warranties will be realised).
|
(h)
|
Since the date of the most recent financial statements delivered pursuant to clause 24.1 (Financial statements) on or after the Fourth Restatement Date there has been no material adverse change in the business, assets or financial condition of the Group.
|
(a)
|
No litigation, arbitration or administrative proceedings or investigations of, or before, any court, arbitral body or agency which, if adversely determined, are reasonably likely to result in liabilities to it or any of its Subsidiaries (whether actual or contingent) which has or is reasonably likely to have a Material Adverse Effect have (so far as it is aware) been started or threatened against it or any of its Subsidiaries.
|
(b)
|
No labour disputes are current or, so far as it is aware, threatened against any member of the Group which have or are reasonably likely to result in liabilities to it or any of its Subsidiaries which has or is reasonably likely to have a Material Adverse Effect.
|
(a)
|
It and each of its Subsidiaries is in compliance with clause 26.3 (Environmental compliance) and, so far as it is aware, no circumstances have occurred which would prevent such compliance in a manner or to an extent which has or is reasonably likely to result in a Material Adverse Effect.
|
(b)
|
No Environmental Claim has been commenced or, so far as it is aware, is threatened against any member of the Group where that claim has or is reasonably likely, if determined against that member of the Group, to result in a Material Adverse Effect.
|
(c)
|
The cost to the Group of compliance with Environmental Laws (including Environmental Permits) is, so far as it is aware, adequately provided for in the most recent audited financial statements of the Company.
|
(a)
|
It is not (and none of its Subsidiaries is) materially overdue in the filing of any Tax returns and it is not (and none of its Subsidiaries is) overdue in the payment of any amount in respect of Tax.
|
(b)
|
No claims or investigations are being, or are reasonably likely to be, made or conducted against it (or any of its Subsidiaries) with respect to Taxes such that a liability of, or claim against, any member of the Group which would have or is reasonably likely to have a Material Adverse Effect.
|
(a)
|
No Security or Quasi-Security exists over all or any of the present or future assets of any member of the Group other than as permitted by this Agreement.
|
(b)
|
No member of the Group has any Financial Indebtedness outstanding other than as permitted by this Agreement.
|
(b)
|
does not, in carrying on its businesses, infringe any Intellectual Property of any third party in any respect which has or is reasonably likely to have a Material Adverse Effect; and
|
(c)
|
has taken all formal or procedural actions (including payment of fees) required to maintain any Intellectual Property owned by it which is required by it in order to carry on its business as it is being conducted and as contemplated to be conducted.
|
(a)
|
Each Subsidiary of the Company incorporated in the United Kingdom (other than a Dormant Subsidiary, Biggleswick Limited, Lumina Trustees Limited and Luxfer Magtech International Limited) and each Material Company (other than the French Subsidiary and the Czech Subsidiary) incorporated in any other jurisdiction is an Obligor on or prior to the Fourth Restatement Date.
|
(b)
|
The aggregate:
|
(i)
|
earnings before interest, tax and amortisation (calculated on the same basis as EBITA) of the Guarantors on the Closing Date (calculated on an unconsolidated basis and excluding all unrealised intra-Group profits of any member of the Group) exceeds 80% of EBITA of the Group; and
|
(ii)
|
gross assets of the Guarantors on the Closing Date (calculated on an unconsolidated basis and excluding all intra-Group items and investments in Subsidiaries of any member of the Group) exceeds 80% of the consolidated gross assets of the Group.
|
(i)
|
in order to enable any Finance Party to enforce its rights under any Finance Document; or
|
(ii)
|
by reason of the execution of any Finance Document or the performance by it of its obligations under any Finance Document,
|
(b)
|
No Finance Party is or will be deemed to be resident, domiciled or carrying on business in its Relevant Jurisdictions by reason only of the execution, performance and/or enforcement of any Finance Document.
|
(i)
|
No Obligor or ERISA Affiliate has incurred during any time within the last six years or could be reasonably expected to incur any liability to, or on account of, a Multiemployer Plan as a result of a violation of section 515 of ERISA or pursuant to section 4201, 4204 or 4212(c) of ERISA.
|
(ii)
|
Each Employee Plan complies in form and operation in all material respects with ERISA, the Internal Revenue Code and all other applicable laws and regulations.
|
(iii)
|
The present value of the aggregate benefit liabilities under each of the Employee Plans (other than any Multiemployer Plan), determined as of the end of such plan's most recently ended plan year on the basis of the actuarial methods and assumptions specified for funding purposes in such plan's most recent actuarial valuation report, did not exceed the aggregate current value of the assets of such plan allocable to such benefit liabilities by more than US$12,000,000 (or its equivalent) in the aggregate for all Employee Plans. The term "benefit liabilities" has the meaning specified in section 4001 of ERISA and the terms "current value" and "present value" have the meaning specified in section 3 of ERISA.
|
(iv)
|
There is (to the best of each Obligor's and ERISA Affiliates' knowledge and belief) no litigation, arbitration, administrative proceeding or claim pending or threatened against or with respect to any Employee Plan (other than routine claims for benefits) which has or, if adversely determined, could reasonably be expected have a Material Adverse Effect.
|
(v)
|
Within the last 6 years, each Obligor and each ERISA Affiliate has made all material contributions to each Employee Plan and Multiemployer Plan required by law within the applicable time limits prescribed by law, the terms of that plan and any contract or agreement requiring contributions to that plan.
|
(vi)
|
No Obligor or ERISA Affiliate has ceased operations at a facility so as to be subject to the provisions of section 4062(e) of ERISA, withdrawn as a substantial employer so as to be subject to the provisions of section 4063 of ERISA, or ceased making contributions to any Employee Plan subject to section 4064(a) of ERISA to which it made contributions.
|
(vii)
|
No Obligor or ERISA Affiliate has incurred any material liability to the PBGC, which remains outstanding or could reasonably be expected to incur any material liability to the PBGC.
|
(viii)
|
No ERISA Event has occurred or, as at the date of this Agreement, is reasonably likely to occur that could reasonably be expected to have a Material Adverse Effect.
|
(i)
|
The proceeds of any Utilisation will not be used, directly or indirectly, in whole or in part, for
purchasing
or
carrying
Margin Stock or for any purpose which might (whether immediately, incidentally or ultimately) cause all or any part of the Facilities to be a
purpose credit
within the meaning of Regulation T, U or X.
|
(ii)
|
Following the application of the proceeds of any Utilisation, not more than 25 per cent of the value of the assets of the Obligors, as a group (on a consolidated basis), will be invested in Margin Stock.
|
(iii)
|
Neither any Obligor nor any agent acting on its behalf has taken or will take any action which might cause any document delivered under or in connection with the Facility to violate any regulation of the Board of Governors of the Federal Reserve System (including Regulation T, U or X) or violate the United States Securities Exchange Act of 1934 or any applicable US federal or state securities law.
|
(A)
|
a
public utility
within the meaning of, or subject to regulation under, the United States Federal Power Act of 1920
|
(B)
|
an
investment company
or a company
controlled
by an
investment company
within the meaning of the United States Investment Company Act of 1940 or
|
(C)
|
subject to regulation under any United States federal or state law or regulation that limits its ability to incur or guarantee indebtedness.
|
(i)
|
is in violation of any Anti-Terrorism Law or
|
(ii)
|
is a Designated Person.
|
(a)
|
All the representations and warranties in this clause 23 are made by each Obligor on the date of this Agreement and the Fourth Restatement Date.
|
(b)
|
The Repeating Representations are deemed to be made by each Obligor on the date of each Utilisation Request, on each Utilisation Date and on the first day of each Interest Period (except that those contained in clause 23.13(a) to 23.13(e) will cease to be so made once subsequent financial statements have been delivered under this Agreement).
|
(c)
|
All the representations and warranties in this clause 23 except clause 23.12 and clause 23.25 are deemed to be made by each Additional Obligor on the day on which it becomes (or it is proposed that it becomes) an Additional Obligor.
|
(d)
|
Each representation or warranty deemed to be made after the date of this Agreement shall be deemed to be made by reference to the facts and circumstances existing at the date the representation or warranty is deemed to be made.
|
(a)
|
as soon as they are available, but in any event within 180 days after the end of each of its Financial Years:
|
(i)
|
its audited consolidated financial statements for that Financial Year; and
|
(ii)
|
the financial statements (consolidated if appropriate) of each Obligor (audited where required under the Relevant Jurisdiction) for that Financial Year;
|
(b)
|
as soon as they are available, but in any event within 45 days after the end of each calendar month its management financial statements on a consolidated basis for that calendar month and for the Financial Year to date.
|
(a)
|
The Company shall supply a Compliance Certificate to the Agent with each set of its Annual Financial Statements and each set of its Quarterly Financial Statements.
|
(b)
|
The Compliance Certificate shall, amongst other things, set out (in reasonable detail) computations as to compliance with clause 25 (Financial covenants).
|
(c)
|
Each Compliance Certificate delivered with each set of its Annual Financial Statements and each set of its Quarterly Financial Statements (other than the Compliance Certificate
|
(i)
|
each set of Annual Financial Statements shall be audited by the auditors and shall include the audited profit and loss accounts, balance sheets and cashflow statements of each Obligor (prepared in the case of the Company on a consolidated basis); and
|
(ii)
|
each set of Monthly Financial Statements shall be in the form of the monthly management accounts supplied by the Company to the Agent pursuant to clause 4.1 (Initial conditions precedent).
|
(i)
|
in the case of the Annual Financial Statements, shall be accompanied by any letter addressed to the management of the relevant company (to the extent the Company receives such a letter) by the auditors accompanying those Annual Financial Statements;
|
(ii)
|
in the case of the Monthly Financial Statements of the Company, shall be accompanied by a commentary by the finance director of the Company comparing actual performance for the period to which the financial statements relate to:
|
(A)
|
the projected performance for that period set out in the Budget; and
|
(B)
|
the actual performance for the corresponding period in the preceding Financial Year; and
|
(c)
|
Where there is a change in the Accounting Principles, accounting practices or financial reference periods to those applied:
|
(i)
|
in the case of the Company, in the preparation of the audited consolidated financial statements for the Financial Year ended 31 December 2016; and
|
(ii)
|
in the case of any Obligor, in the preparation of the financial statements, audited where required by local law, for the Financial Year ended 31 December 2016 for that Obligor which has an effect on:
|
(A)
|
the determination of EBIT, EBITA or EBITDA, which results in EBIT, EBITA or EBITDA being increased or decreased by not less than $500,000 as a result of such change;
|
(B)
|
the determination of Total Net Debt, which results in Total Net Debt being increased or decreased by not less than $1,000,000 as a result of such change;
|
(C)
|
the determination of Net Finance Charges, which results in Net Finance Charges being increased or decreased by not less than $200,000 as a result of such change; or
|
(D)
|
the determination of the gross assets for any Guarantor, which results in the amount of gross assets being increased or decreased by not less than $1,000,000 as a result of such change,
|
(d)
|
If at any time a Default is continuing the Agent wishes to discuss the financial position of any member of the Group with the auditors, the Agent may notify the Company, stating the questions or issues which the Agent wishes to discuss with the auditors. In this event, the Company must ensure that the auditors are authorised (at the expense of the Company):
|
(i)
|
to discuss the financial position of each member of the Group with the Agent on request from the Agent; and
|
(ii)
|
to disclose to the Agent for the Finance Parties any information which the Agent may reasonably request.
|
(a)
|
The Company shall supply to the Agent in sufficient copies for all the Lenders, as soon as the same become available but in any event before the start of each of its Financial Years, an annual Budget for that Financial Year.
|
(A)
|
a projected consolidated profit and loss, balance sheet and cashflow statement for each principal division of the Group; and
|
(B)
|
projected financial covenant calculations for that Financial Year;
|
(ii)
|
is prepared in accordance with the Accounting Principles and the accounting practices and financial reference periods applied to financial statements under clause 24.1; and
|
(c)
|
If the Company materially updates or changes the Budget, it shall promptly and within not more than 15 Business Days of the update or change being made deliver to the Agent,
|
(a)
|
at the same time as they are dispatched, copies of all documents dispatched by the Company to its shareholders generally (or any class of them) or dispatched by the Company or any Obligor to its creditors generally (or any class of them);
|
(b)
|
promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings which are current, threatened or pending against any member of the Group, and which, if adversely determined, would have a Material Adverse Effect;
|
(c)
|
promptly upon becoming aware of them, the details of any judgment or order of a court, arbitral tribunal or other tribunal or any order or sanction of any governmental or other regulatory body which is made against any member of the Group and which is reasonably likely to have a Material Adverse Effect;
|
(d)
|
promptly on the reasonable request of the Agent, such further information regarding the financial condition, assets and operations of the Group and/or any member of the Group (including any requested amplification or explanation of any item in the financial statements, Budget or other material provided by any Obligor under this Agreement); and
|
(e)
|
any changes to the main board or the executive board of the Company and an up to date copy of its register of members (or equivalent in its jurisdiction of incorporation)) as any Finance Party through the Agent may reasonably request (provided that the Agent shall not request a copy of its register of members more frequently than twice in any Financial Year unless the Agent requires the register of members for know your customer requirements and/or if the Agent suspects that there has been a Change of Control).
|
(a)
|
Each Obligor shall notify the Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence (unless such a notification has already been provided by another Obligor).
|
(b)
|
If the Agent reasonably suspects that a Default is continuing promptly upon a request by the Agent, the Company shall supply to the Agent a certificate signed by two of its directors certifying that no Default is continuing (or if a Default is continuing, specifying the Default and the steps, if any, being taken to remedy it).
|
(i)
|
the implementation or introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement;
|
(ii)
|
any change in the status of an Obligor or the composition of the shareholders of an Obligor after the date of this Agreement; or
|
(iii)
|
a proposed assignment or transfer by a Lender of any of its rights and/or obligations under this Agreement to a party that is not a Lender prior to such assignment or transfer,
|
(b)
|
Each Lender shall promptly upon the request of the Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself) in order for the Agent to carry out and be satisfied with the results of all necessary "know your customer" or other checks on Lenders or prospective new Lenders pursuant to the transactions contemplated in the Finance Documents.
|
(c)
|
The Company shall, by not less than ten Business Days prior written notice to the Agent, notify the Agent (who shall promptly notify the Lenders) of its intention to request that one of its Subsidiaries becomes an Additional Obligor pursuant to clause 30 (Changes to the Obligors).
|
(d)
|
Following the giving of any notice pursuant to clause 24.8(c), if the accession of such Additional Obligor obliges the Agent or any Lender to comply with "know your customer" or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall promptly upon the request of the Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of any Lender) or any Lender (for itself or on behalf of any prospective new Lender) in order for the Agent or such Lender or any prospective new Lender to carry out and be satisfied it has complied with all necessary "know your customer" or other checks in relation to any relevant person pursuant to such Subsidiary becoming an Additional Obligor.
|
(a)
|
promptly upon a request by the Lender, deliver to the Lender copies of the Annual Report (IRS form 5500 Series) together with all schedules and documentation reasonably requested by the Agent with respect to each Employee Plan; and
|
(b)
|
within 21 Business Days after it or any ERISA Affiliate becomes aware that any ERISA Event has occurred or, in the case of any ERISA Event which requires advance notice under section 4043(b) of ERISA, will occur, deliver to the Lender a statement signed by a director, member or officer of the Obligor or ERISA Affiliate describing that ERISA Event and the action, if any, taken or proposed to be taken with respect to that ERISA Event.
|
25.1
|
Financial definitions
|
(a)
|
including the operating profit before interest, tax, depreciation, amortisation and impairment charges (calculated on the same basis as EBITDA) of a member of the Group for the Relevant Period (or attributable to a business or assets acquired during the Relevant Period) prior to its becoming a member of the Group or (as the case may be) prior to the acquisition of the business or assets; and
|
(b)
|
excluding operating profit before interest, tax, depreciation, amortisation and impairment charges (calculated on the same basis as EBITDA) attributable to any member of the Group (or to any business or assets) disposed of during the Relevant Period.
|
(a)
|
receivables in relation to corporation and deferred Tax;
|
(b)
|
Exceptional Items and other non-operating items;
|
(c)
|
insurance claims; and
|
(d)
|
any interest owing to any member of the Group.
|
(a)
|
liabilities for Financial Indebtedness and Finance Charges;
|
(b)
|
liabilities for corporation and deferred Tax;
|
(c)
|
Exceptional Items and other non-operating items;
|
(d)
|
insurance claims; and
|
(e)
|
liabilities in relation to dividends declared but not paid by the Company or by a member of the Group in favour of a person which is not a member of the Group.
|
(a)
|
before deducting any interest, commission, fees, discounts, prepayment fees, premiums or charges, gains or losses on Financial Indebtedness and other finance payments whether paid, payable or capitalised by any member of the Group (calculated on a consolidated basis) in respect of that Relevant Period;
|
(b)
|
not including any accrued interest owing or paid to any member of the Group;
|
(c)
|
before taking into account any Exceptional Items;
|
(d)
|
before deducting any Transaction Costs;
|
(e)
|
before taking into account any gain or loss arising from an upward or downward revaluation of any other asset except for the impairment of working capital items;
|
(f)
|
after deducting the amount of any profit (or adding back the amount of any loss) of any member of the Group which is attributable to minority interests;
|
(g)
|
before taking into account any unrealised gains or losses on any derivative instrument (other than any derivative instrument which is accounted for on a hedge accounting basis); and
|
(h)
|
excluding any profit or loss arising from the disposal of fixed assets,
|
(a)
|
the restructuring of the activities of an entity, including the associated redundancy programme costs and reversals of any provisions for the cost of restructuring;
|
(b)
|
disposals, revaluations or impairment of non-current assets;
|
(c)
|
disposals of assets associated with discontinued operations and acquisition costs in relation to the acquisition of new operations;
|
(d)
|
Environmental remediation costs and provisions – not in the ordinary course of business;
|
(e)
|
one-off gains and losses recognised on the early termination, curtailment or change in employee retirement defined benefits; and
|
(f)
|
disposal of a business operation whereby this is not classified as a discontinued operation for accounting purposes.
|
(a)
|
excluding any upfront fees or costs;
|
(b)
|
including the interest (but not the capital) element of payments in respect of Finance Leases;
|
(c)
|
including any commission, fees, discounts and other finance payments payable by (and deducting any such amounts payable to) any member of the Group under any interest rate hedging arrangement;
|
(d)
|
taking no account of any unrealised gains or losses on any financial instruments other than any derivative investments which are accounted for on a hedge accounting basis;
|
(e)
|
excluding any Transaction Costs; and
|
(f)
|
excluding any interest cost or expected return on plan assets in relation to any post employment benefit schemes,
|
(a)
|
excluding any such obligations to any other member of the Group;
|
(b)
|
including in the case of Finance Leases only their capitalised value;
|
(c)
|
excluding unrealised gains and losses on Treasury Transactions (including currency exchange gains and losses); and
|
(d)
|
excluding any obligations in respect of performance bonds issued in the ordinary course of trading in respect of non-financial obligations to the extent such performance bonds are not called or enforced,
|
(a)
|
Interest Cover: Interest Cover in respect of any Relevant Period shall not be less than 4.0:1.
|
(b)
|
Leverage: Subject to clause 25.4 (Permitted Temporary Leverage Increase), Leverage in respect of any Relevant Period shall not exceed 3.0:1.
|
(c)
|
Capital expenditure: The aggregate capital expenditure of the Group (other than capital expenditure funded by the retention of Excluded Insurance Proceeds referred to in paragraphs (i)(C) and (i)(D) of the definition of “Excluded Insurance Proceeds” in accordance with clause 11.2 (Disposal and Insurance)) in respect of any Financial Year shall not exceed $25,000,000.
|
(a)
|
The financial covenants set out in clause 25.2 shall be calculated in accordance with the Accounting Principles and tested by reference to:
|
(i)
|
the Annual Financial Statements; and
|
(ii)
|
the Quarterly Financial Statements for the Relevant Period.
|
(b)
|
If in respect of any period there is a discrepancy between the information set out in the Quarterly Financial Statements for such period and that set out in the Annual Financial Statements for such period, the information in the Annual Financial Statements shall prevail.
|
(c)
|
In respect of any Relevant Period, the exchange rate used to calculate Total Net Debt shall be the Average Exchange Rate for that Relevant Period.
|
(a)
|
Subject to clauses 25.4(b) and 25.4(c), the Company shall be entitled to serve notice on the Agent requesting a temporary increase in the Leverage ratio set out in clause 25.2(b) (Financial Condition) (
Leverage Increase Request
) provided:
|
(i)
|
such increase is being requested in connection with a Relevant Permitted Acquisition; and
|
(ii)
|
no Event of Default is continuing as at the date of such notice.
|
(i)
|
be in writing and be delivered to the Agent not less than 17 Business Days before the proposed completion date of the Relevant Permitted Acquisition; and
|
(ii)
|
contain details of the Relevant Permitted Acquisition and the proposed temporary increase in, and proposed period of, the Leverage covenant ratio.
|
(c)
|
The Company shall, promptly and in any event within 5 Business Days of the Agent's request, provide to the Agent all information relating to the Relevant Permitted Acquisition as may be reasonably requested by the Lenders in order that they may consider a Leverage Increase Request, including, without limitation, financial information regarding
|
(d)
|
The Lenders shall respond to any Leverage Increase Request by the date falling 15 Business Days after the date the Agent receives the Leverage Increase Request (
Response Date
).
|
(e)
|
All the Lenders must approve the Leverage Increase Request and the Lenders shall have an absolute discretion as to whether to approve any such Leverage Increase Request.
|
(f)
|
If a Lender fails to respond or approve the Leverage Increase Request by the Response Date, the failure to respond or approve the Leverage Increase Request shall be deemed to be a rejection of such Leverage Increase Request by that Lender.
|
(g)
|
The Agent shall notify the Company of any rejection of any Leverage Increase Request by any Lender or, if applicable, notify the Company of the conditions subject to which a Lender shall approve the Leverage Increase Request.
|
(h)
|
If the terms of the Leverage Increase Request are consented to by all the Lenders, the Company and the Agent shall be authorised to make such amendments to the terms of the Agreement as may be required to effect the temporary increase in the Leverage ratio set out in clause 25.2(b) (Financial Condition) for the agreed period.
|
(i)
|
No more than one Leverage Increase Request may be delivered by the Company or granted by the Lenders in any 12 Month period.
|
(a)
|
obtain, comply with and do all that is necessary to maintain in full force and effect; and
|
(b)
|
upon request by the Agent, supply certified copies to the Agent of, any Authorisation required under any law or regulation of a Relevant Jurisdiction to:
|
(i)
|
enable it to perform its obligations under the Finance Documents;
|
(ii)
|
ensure the legality, validity, enforceability or admissibility in evidence of any Finance Document; and
|
(iii)
|
carry on its business where failure to do so has or is reasonably likely to have a Material Adverse Effect.
|
(a)
|
comply with all Environmental Law;
|
(b)
|
obtain, maintain and ensure compliance with all requisite Environmental Permits; and
|
(c)
|
implement procedures to monitor compliance with and to prevent liability under any Environmental Law,
|
(a)
|
any Environmental Claim against any member of the Group which is current, pending or threatened; and
|
(b)
|
any facts or circumstances which are reasonably likely to result in any Environmental Claim being commenced or threatened against any member of the Group,
|
(a)
|
Each Obligor shall pay and discharge all Taxes imposed upon it or its assets within the time period allowed without incurring penalties unless and only to the extent that:
|
(i)
|
such payment is being contested in good faith;
|
(ii)
|
adequate reserves are being maintained for those Taxes and the costs required to contest them in accordance with the Accounting Principles; and
|
(iii)
|
such payment can be lawfully withheld and failure to pay those Taxes does not have or is not reasonably likely to have a Material Adverse Effect.
|
(b)
|
No Obligor may change its residence for Tax purposes, where such change would have an adverse effect on the interests of the Lenders in the opinion of the Agent (acting reasonably).
|
(a)
|
No Obligor shall (and the Company shall ensure that no other member of the Group will):
|
(i)
|
acquire a company or any shares or securities or a business or undertaking (or, in each case, any interest in any of them); or
|
(ii)
|
incorporate a company.
|
(b)
|
Clause 26.8(a) does not apply to an acquisition of a company, of shares, securities or a business or undertaking (or, in each case, any interest in any of them) or the incorporation of a company which is a Permitted Acquisition or a Permitted Transaction.
|
(a)
|
enter into, invest in or acquire (or agree to acquire) any shares, stocks, securities or other interest in any Joint Venture; or
|
(b)
|
transfer any assets or lend to or guarantee or give an indemnity for or give Security for the obligations of a Joint Venture or maintain the solvency of or provide working capital to any Joint Venture (or agree to do any of the foregoing).
|
(a)
|
No Obligor shall (and the Company shall ensure that no other member of the Group will) create or permit to subsist any Security over any of its assets.
|
(b)
|
No Obligor shall (and the Company shall ensure that no other member of the Group will):
|
(i)
|
sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by an Obligor or any other member of the Group;
|
(ii)
|
sell, transfer or otherwise dispose of any of its receivables on recourse terms;
|
(iii)
|
enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
|
(iv)
|
enter into any other preferential arrangement having a similar effect,
|
(c)
|
Clauses 26.12(a) and 26.12(b) do not apply to any Security or (as the case may be) Quasi-Security, which is (i) Permitted Security or (ii) created or subsists as a result of a Permitted Transaction.
|
(a)
|
No Obligor shall (and the Company shall ensure that no member of the Group will) enter into a single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary to sell, lease, transfer or otherwise dispose of any asset.
|
(b)
|
Clause 26.13(a) above does not apply to any sale, lease, transfer or other disposal which is:
|
(i)
|
a Permitted Disposal; or
|
(ii)
|
a sale, lease, transfer or other disposal that does not constitute a Permitted Disposal where the Disposal Proceeds of such transaction are applied in accordance with clause 11.2(c) (
Disposal and Insurance
); or
|
(a)
|
No Obligor shall (and the Company shall ensure no member of the Group will) enter into any transaction with any person except on arm's length terms and for full market value.
|
(b)
|
Clause 26.14(a) does not apply to:
|
(i)
|
intra-Group loans permitted under clause 26.15;
|
(ii)
|
fees, costs and expenses payable under the Transaction Documents in the amounts set out in the Transaction Documents delivered to the Agent under clause 4.1 (Initial conditions precedent) or agreed by the Agent;
|
(iii)
|
any Permitted Transaction;
|
(iv)
|
the sale and/or licensing by Revere Graphics Worldwide of certain Intellectual Property for a nominal amount to a third party as approved by the Federal Trade Commission in the US; or
|
(a)
|
No Obligor shall (and the Company shall ensure that no member of the Group will) be a creditor in respect of any Financial Indebtedness.
|
(a)
|
No Obligor shall (and the Company shall ensure that no member of the Group will) incur or allow to remain outstanding any guarantee in respect of any obligation of any person.
|
(i)
|
declare, make or pay any dividend, charge, fee or other distribution (or interest on any unpaid dividend, charge, fee or other distribution) (whether in cash or in kind) on or in respect of its share capital (or any class of its share capital);
|
(ii)
|
repay or distribute any dividend or share premium reserve;
|
(iii)
|
pay or allow any member of the Group to pay any management, advisory or other fee to or to the order of any of the shareholders of the Company; or
|
(iv)
|
redeem, repurchase, defease, retire or repay any of its share capital or resolve to do so.
|
(a)
|
No Obligor shall (and the Company shall ensure that no member of the Group will) incur or allow to remain outstanding any Financial Indebtedness.
|
(b)
|
Clause 26.18(a) does not apply to Permitted Financial Indebtedness or a Permitted Transaction.
|
(a)
|
No Obligor shall (and the Company shall ensure no member of the Group will) issue any shares.
|
(a)
|
The Company shall ensure that all pension schemes operated by or maintained for the benefit of members of the Group and/or any of its employees are funded in accordance with the statutory funding objective under sections 221 and 222 of the Pensions Act 2004 and that no action or omission is taken by any member of the Group in relation to such a pension scheme which has or is reasonably likely to have a Material Adverse Effect (including, without limitation, the termination or commencement of winding-up
|
(b)
|
Except for the Defined Benefit Schemes, the Company shall ensure that no member of the Group is or has been at any time an employer (for the purposes of sections 38 to 51 of the Pensions Act 2004) of an occupational pension scheme which is not a money purchase scheme (both terms as defined in the Pension Schemes Act 1993) or connected with or an associate of (as those terms are used in sections 38 or 43 of the Pensions Act 2004) such an employer.
|
(c)
|
If requested, the Company shall deliver to the Agent at such times as those reports are prepared in order to comply with the then current statutory or auditing requirements (as applicable either to the trustees of any relevant schemes or to the Company), the actuarial reports in relation to all pension schemes mentioned in clause 26.21(a).
|
(d)
|
The Company shall promptly notify the Agent of any material change in the rate of contributions to any pension schemes mentioned in clause 26.21(a) above paid or recommended to be paid (whether by the scheme actuary or otherwise) or required (by law or otherwise).
|
(e)
|
Each Obligor shall as soon as it becomes aware of it immediately notify the Agent of any investigation or proposed investigation by the Pensions Regulator which may lead to the issue of a Financial Support Direction or a Contribution Notice to any member of the Group.
|
(f)
|
Each Obligor shall immediately notify the Agent if it receives a Financial Support Direction or a Contribution Notice from the Pensions Regulator.
|
(g)
|
No Canadian Obligor maintains or is required to make contributions to any pension plan registered under the
Income Tax Act
(Canada), the
Pension Benefits Act
(Ontario) or any other applicable pension standards legislation which contains a “defined benefit provision”, as such term is defined in subsection 147.1(1) of the
Income Tax Act
(Canada). All obligations of each Canadian Obligor (including fiduciary, funding, investment and administration obligations) required to be performed in connection with the Pension Plans and the funding agreements thereunder have been performed on a timely basis except as would not have or is reasonably likely to have a Material Adverse Effect (including, without limitation, the termination or commencement of winding-up proceedings of any such pension plan). There are no outstanding disputes concerning the assets of any pension plan maintained by a Canadian Obligor and there have been no improper withdrawals of any assets of any pension plan maintained by a Canadian Obligor except as would not have or be reasonably likely to have a Material Adverse Effect. All assessments owed to the Pension Benefits Guarantee Fund established under the
Pension Benefits Act
(Ontario), or other assessments or payments required under similar legislation in any other Canadian jurisdiction have been paid when due in respect of each pension plan maintained by a Canadian Obligor except as would not have or would be reasonably likely to have a Material Adverse Effect.
|
26.22
|
Intellectual Property
|
(a)
|
preserve and maintain the subsistence and validity of the Intellectual Property necessary for the business of the relevant Obligor;
|
(b)
|
use reasonable endeavours to prevent any infringement in any material respect of the Intellectual Property;
|
(c)
|
make registrations and pay all registration fees and Taxes necessary to maintain the Intellectual Property that the relevant Obligor is required to maintain under clause 26.22(a) above in full force and effect and record its interest in that Intellectual Property;
|
(d)
|
not use or permit the Intellectual Property to be used in a way or take any step or omit to take any step in respect of that Intellectual Property which may materially and adversely affect the existence or value of the Intellectual Property or imperil the right of any Obligor to use such property; and
|
(e)
|
not discontinue the use of the Intellectual Property,
|
(a)
|
No Obligor shall amend, vary, novate, supplement, supersede, waive or terminate any term of a Transaction Document (subject to paragraph (b), other than a Note Document) or any other document delivered to the Agent pursuant to clause 4.1 (Initial conditions precedent) or clause 30 (Changes to the Obligors) or enter into any agreement with any shareholders of the Company or any of their Affiliates which is not a member of the Group except in writing:
|
(i)
|
in accordance with the provisions of clause 40 (Amendments and waivers);
|
(ii)
|
prior to or on the Closing Date, with the prior written consent of the Original Lenders; or
|
(iii)
|
after the Closing Date, in a way which could not be reasonably expected materially and adversely to affect the interests of the Lenders.
|
(b)
|
No Obligor shall amend or waive the terms of the Note Documents if the amendment or waiver is:
|
(i)
|
an amendment or waiver constituting an increase in the aggregate principal amount of the Notes (other than a Permitted Note Increase);
|
(ii)
|
an amendment or waiver making the due date of payment of any amount under the Note Documents earlier than as set out in the Note Documents;
|
(iii)
|
an amendment or waiver constituting an increase in, or addition of, any fees or commission other than such an increase or addition which is:
|
(iv)
|
an amendment or waiver the effect of which is to make any member of the Group liable to make additional or increased payments not:
|
(c)
|
The Company shall promptly supply to the Agent a copy of any document relating to any of the matters referred to in clause 26.23(a)(i) to 26.23(a)(iii) and clause 26.23(b) above.
|
(d)
|
Each Obligor shall (and the Company shall ensure that each member of the Group will) comply with the material terms of all Transaction Documents to which it is party.
|
(a)
|
any hedging of the interest rate liabilities of the Borrowers in respect of the Facilities;
|
(b)
|
spot and forward delivery foreign exchange contracts entered into in the ordinary course of business and not for speculative purposes; and
|
(c)
|
any Treasury Transaction entered into for the hedging of actual or projected real exposures arising in the ordinary course of trading activities of a member of the Group and not for speculative purposes.
|
(i)
|
earnings before interest, tax and amortisation (calculated on the same basis as EBITA) of the Guarantors (calculated on an unconsolidated basis and excluding all unrealised intra-Group profits of any member of the Group) exceeds 80% of EBITA of the Group; and
|
(ii)
|
gross assets of the Guarantors (calculated on an unconsolidated basis and excluding all intra-Group items and investments in Subsidiaries of any member of the Group) exceeds 80% of the consolidated gross assets of the Group.
|
(a)
|
to comply with all Anti-Terrorism Laws;
|
(b)
|
immediately to notify the Agent if it obtains knowledge that it or any of its Affiliates has become or been listed as a Designated Person or has been charged with or has engaged in any violation of any Anti-Terrorism Law;
|
(c)
|
to exclude any funds derived from any Designated Person or from any person or entity involved in the violation of any Anti-Terrorism Law from being used to pay debt service or any other amounts owing under the Finance Documents;
|
(d)
|
except for transfers of stock of any publicly traded Obligor or Affiliate effected on a stock exchange, not to transfer or permit the transfer of any legal or beneficial ownership interest of any kind in such Obligor or any Affiliate of such Obligor to a Designated Person or any person or entity that such Obligor has to its best knowledge (based upon reasonable inquiry by such Obligor) been involved in the violation of any Anti-Terrorism Law;
|
(e)
|
not to acquire, directly or indirectly, ownership interest of any kind in any Designated Person or any person or entity that such Obligor has, to its best knowledge (based upon reasonable inquiry by such Obligor) been involved in the violation of any Anti-Terrorism Law, not to form any partnership or joint venture with any such person and not to act, directly or indirectly, as the agent or representative of any such person; and
|
(f)
|
to indemnify the Lenders for any costs incurred by any of them as a result of any violation of an Anti-Terrorism Law by any Obligor or any Affiliate of any Obligor.
|
(a)
|
ensure that neither it nor any ERISA Affiliate engages in a complete or partial withdrawal, within the meaning of sections 4203 and 4205 of ERISA, from any Multiemployer Plan without the prior consent of the Agent;
|
(b)
|
ensure that any material liability imposed on it or any ERISA Affiliate pursuant to Title IV of ERISA is paid and discharged when due;
|
(c)
|
ensure that neither it nor any ERISA Affiliate adopts an amendment to an Employee Plan requiring the provision of Security under ERISA or the Internal Revenue Code without the prior consent of the Lender; and
|
(d)
|
ensure that no Employee Plan is terminated under section 4041 of ERISA
|
(a)
|
Each Obligor shall (and the Company shall ensure that each Obligor shall) use the proceeds of the Loans without violating Regulation T, U or X or any other applicable US federal or state laws or regulations.
|
(b)
|
If requested by the Agent, each Obligor shall furnish to the Agent a statement in conformity with the requirements of FR Form U-1 referred to in Regulation U.
|
26.35
|
Comparative Covenants
|
(a)
|
the Note Documents or the Shelf Facility (or any instrument which refinances or replaces the Note Documents or the Shelf Facility) include any Financial Covenant (howsoever described) not set out in the Finance Documents (any such provision, a
New Covenant
); or
|
(b)
|
any Financial Covenant contained in the Note Documents or the Shelf Facility (or any instrument which refinances or replaces the Note Documents or the Shelf Facility) would be more beneficial to the Finance Parties than any analogous provision contained in the Finance Documents (any such provision, an
Improved Covenant
and, together with any New Covenants, the
Additional Covenants
), then the Company shall provide an Additional Covenant notice to the Agent. Upon receipt of such notice, unless waived in writing by the Majority Lenders within 16 days of receipt of such Additional Covenant notice by the Agent, such Additional Covenant shall be deemed automatically incorporated by reference into this Agreement as if set out fully therein, without any further action required on the part of any person, effective as of the date when such Additional Covenant became effective under the Note Documents. Thereafter upon the request of the Agent, the Company shall enter into any additional agreement or amendment to this Agreement reasonably requested by the Agent evidencing that such Additional Covenant is incorporated into this Agreement.
|
(a)
|
No Obligor shall (and the Company shall ensure that no other member of the Group will) directly or to the best of its knowledge indirectly use the proceeds of the Facilities for any purpose which would breach the Bribery Act 2010, the United States Foreign Corrupt Practices Act of 1977 or other similar legislation in other applicable jurisdictions.
|
(b)
|
Each Obligor shall (and the Company shall ensure that each other member of the Group will):
|
(i)
|
conduct its businesses in compliance with applicable anti-corruption laws; and
|
(ii)
|
maintain policies and procedures designed to promote and achieve compliance with such laws.
|
(a)
|
An Obligor does not comply with any provision of the Finance Documents (other than those referred to in clause 27.1 and clause 27.2).
|
(b)
|
No Event of Default under clause 27.3(a) will occur if the failure to comply is capable of remedy and is remedied within 15 Business Days of the earlier of:
|
(i)
|
the Agent giving notice to the Company or relevant Obligor; and
|
(ii)
|
the Company or the relevant Obligor becoming aware of the failure to comply.
|
(a)
|
Any representation or statement made or deemed to be made by an Obligor in the Finance Documents or any other document delivered by or on behalf of any Obligor under or in connection with any Finance Document is or proves to have been incorrect or misleading when made or deemed to be made.
|
(b)
|
No Event of Default under clause 27.4(a) will occur if:
|
(i)
|
the event or circumstance causing the representation or statement to be incorrect or misleading is capable of remedy; and
|
(ii)
|
such Obligor shall have remedied such event or circumstance within 15 Business Days after the earlier of:
|
(A)
|
the relevant Obligor becoming aware of such incorrect or misleading representation or statement; and
|
(B)
|
receipt by the relevant Obligor of written notice from the Agent to such Obligor requiring the event or circumstance to be remedied.
|
(a)
|
Any Financial Indebtedness of any member of the Group is not paid when due nor within any originally applicable grace period.
|
(b)
|
Any Financial Indebtedness of any member of the Group is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described).
|
(c)
|
Any commitment for any Financial Indebtedness of any member of the Group is cancelled or suspended by a creditor of any member of the Group as a result of an event of default (however described).
|
(d)
|
Any creditor of any member of the Group becomes entitled to declare any Financial Indebtedness of any member of the Group due and payable prior to its specified maturity as a result of an event of default (however described).
|
(e)
|
No Event of Default will occur under this clause 27.5 if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within clause 27.5(a) to 27.5(d) (inclusive) is less than $4,125,000 (or its equivalent in any other currency or currencies).
|
(a)
|
An Obligor or a Material Company is unable or admits inability to pay its debts as they fall due, suspends or threatens to suspend making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors (excluding any Finance Party in its capacity as such) with a view to rescheduling any of its indebtedness or a Canadian Obligor commits an act of bankruptcy pursuant to the Canadian Bankruptcy and Insolvency Act that is material and adverse to the interests of the Lenders.
|
(b)
|
A moratorium is declared in respect of any indebtedness of any Obligor or a Material Company. If a moratorium occurs, the ending of the moratorium will not remedy any Event of Default caused by that moratorium.
|
(i)
|
the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any Obligor or a Material Company;
|
(ii)
|
a composition, compromise, assignment or arrangement with any creditor of any Obligor or a Material Company other than as permitted under paragraph (b) of the definition of Permitted Transaction;
|
(iii)
|
the appointment of a liquidator, receiver, administrative receiver, administrator, compulsory manager (or, in respect of an insolvency process initiated by or against any Canadian Obligor, a trustee in bankruptcy, custodian or monitor) or other similar officer in respect of any Obligor or a Material Company or any of its assets; or
|
(iv)
|
enforcement of any Security over any assets of any Obligor or a Material Company,
|
(i)
|
it makes a general assignment for the benefit of creditors;
|
(ii)
|
it commences a voluntary case or proceeding under any US Bankruptcy Law;
|
(iii)
|
an involuntary proceeding under any US Bankruptcy Law is commenced against it and is not challenged by appropriate means within thirty (30) days and is not dismissed or stayed within ninety (90) days after commencement of such case; or
|
(iv)
|
a custodian, conservator, receiver, liquidator, assignee, trustee, sequestrator or other similar official is appointed under any US Bankruptcy Law for, or takes charge of, all or a substantial part of the property of a US Obligor
|
(c)
|
Clause 27.7 shall not apply to any winding-up petition which is frivolous or vexatious and is discharged, stayed or dismissed within 14 days of commencement.
|
(a)
|
It is or becomes unlawful for an Obligor to perform any of its obligations under the Finance Documents.
|
(b)
|
Any obligation or obligations of any Obligor under any Finance Documents are not (subject to the Legal Reservations) or cease to be legal, valid, binding or enforceable and the cessation individually or cumulatively materially and adversely affects the interests of the Lenders under the Finance Documents.
|
(c)
|
Any Finance Document ceases to be in full force and effect or is alleged by a party to it (other than a Finance Party) to be ineffective.
|
(a)
|
$8,250,000 (or its equivalent in any currency); and
|
(b)
|
10% of the Group's EBITDA (by reference to the latest audited Annual Financial Statements delivered to the Agent pursuant to clause 24.1(a) (Financial statements)).
|
(a)
|
any Obligor or ERISA Affiliate incurs a liability to or on account of a Multiemployer Plan as a result of a violation of section 515 of ERISA or under section 4201, 4204 or 4212(c) of ERISA;
|
(b)
|
with respect to each Employee Plan subject to Title IV of ERISA, such plan's funded ratio (defined for this purpose as the actuarial value of the assets of such plan divided by the present value of all benefits accrued or earned with respect to such plan) is less than (i) 76 per cent as of 1 January 2011, and (ii) 80 per cent on the first day of any calendar year thereafter. The calculation of such ratio shall be computed using the actuarial value, assumptions and methods used by the actuary to the Employee Plan in its most recent valuation of such plan; or
|
(c)
|
any Obligor or ERISA Affiliate incurs or is likely to incur a liability to or on account of an Employee Plan under section 409, 502(i) or 502(I) of ERISA or section 4971 or 4975 of the Internal Revenue Code other than as a result of entering into this Agreement.
|
(a)
|
cancel the Total Commitments and/or Ancillary Commitments at which time they shall immediately be cancelled;
|
(b)
|
declare that all or part of the Loans, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, at which time they shall become immediately due and payable;
|
(c)
|
declare that all or part of the Loans be payable on demand, at which time they shall immediately become payable on demand by the Agent on the instructions of the Majority Lenders; and/or
|
(d)
|
declare all or any part of the amounts (or cash cover in relation to those amounts) outstanding under the Ancillary Facilities to be immediately due and payable, at which time they shall become immediately due and payable.
|
(a)
|
the Total Commitment shall immediately be cancelled automatically, without any direction, notice, declaration or other act;
|
(b)
|
all of the Utilisations, together with accrued interest, and all other amounts accrued and outstanding under the Finance Documents shall be immediately due and payable, automatically and without any direction, notice, declaration or other act; and
|
(c)
|
each amount expressed hereunder to be payable by any US Obligor on demand shall, after that Event of Default has occurred, be immediately due and payable without the need for any demand or other claim on any US Obligor.
|
(i)
|
to another Lender or an Affiliate of a Lender;
|
(ii)
|
if the Existing Lender is a fund, to a fund which is a Related Fund of the Existing Lender; or
|
(iii)
|
made at a time when an Event of Default is continuing.
|
(i)
|
receipt by the Agent (whether in the Assignment Agreement or otherwise) of written confirmation from the New Lender (in form and substance satisfactory to the Agent) that the New Lender will assume the same obligations to the other Finance Parties as it would have been under if it was an Original Lender at that time; and
|
(ii)
|
the performance by the Agent of all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to such assignment to a New Lender, the completion of which the Agent shall promptly notify to the Existing Lender and the New Lender.
|
(i)
|
a Lender assigns or transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and
|
(ii)
|
as a result of circumstances existing at the date the assignment, transfer or change occurs, an Obligor would be obliged to make a payment to the New Lender or Lender acting through its new Facility Office under clause 18 (Increased costs),
|
(a)
|
Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:
|
(i)
|
the legality, validity, effectiveness, adequacy or enforceability of the Transaction Documents or any other documents;
|
(ii)
|
the financial condition of any Obligor;
|
(iii)
|
the performance and observance by any Obligor or any other member of the Group of its obligations under the Transaction Documents or any other documents; or
|
(iv)
|
the accuracy of any statements (whether written or oral) made in or in connection with any Transaction Document or any other document,
|
(i)
|
has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender or any other Finance Party in connection with any Transaction Document; and
|
(ii)
|
will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities and of the risks arising under or in connection with the Finance Documents on the terms set out in clause 31.16 (Credit appraisal by the Lenders and Ancillary Lenders) whilst any amount is or may be outstanding under the Finance Documents or any Commitment is in force.
|
(i)
|
accept a re-transfer or re-assignment from a New Lender of any of the rights and obligations assigned or transferred under this clause 28; or
|
(ii)
|
guarantee, indemnify or otherwise hold harmless a New Lender in respect of any cost, loss or liability directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor of its obligations under the Transaction Documents or otherwise.
|
(a)
|
Subject to the conditions set out in clause 28.2 a transfer is effected in accordance with clause 28.5(c) when the Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Agent shall, subject to clause 28.5(b), as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Transfer Certificate. Each Obligor and each Finance Party (other than the Existing Lender and the Agent) irrevocably authorises the Agent to execute on its behalf each duly completed Transfer Certificate delivered to the Agent and acknowledges that it will be bound by such transfer.
|
(b)
|
The Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary "know your customer" or similar checks under all applicable laws and regulations in relation to the transfer to such New Lender.
|
(c)
|
Subject to clause 28.9, on the Transfer Date:
|
(i)
|
to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under the Finance Documents each of the Obligors and the Existing Lender shall be released from further obligations towards one another under the Finance Documents and their respective rights against one another under the Finance Documents shall be cancelled (Discharged Rights and Obligations);
|
(ii)
|
each of the Obligors and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Discharged Rights and Obligations only insofar as that Obligor or other member of the Group and the New Lender have assumed and/or acquired the same in place of that Obligor and the Existing Lender;
|
(iii)
|
the Agent, the Arrangers, the New Lender, the other Lenders and any relevant Ancillary Lender shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had the New
|
(b)
|
The Agent shall only be obliged to execute an Assignment Agreement delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the assignment to such New Lender.
|
(i)
|
the Existing Lender will assign absolutely to the New Lender its rights under the Finance Documents expressed to be the subject of the assignment in the Assignment Agreement;
|
(ii)
|
the Existing Lender will be released from the obligations (
Relevant Obligations
) expressed to be the subject of the release in the Assignment Agreement; and
|
(iii)
|
the New Lender shall become a Party as a "Lender" and will be bound by obligations equivalent to the Relevant Obligations.
|
(d)
|
Lenders may utilise procedures other than those set out in this clause 28.6 to assign their rights under the Finance Documents (but not, without the consent of the relevant Obligor or unless in accordance with clause 28.5, to obtain a release by that Obligor from the obligations owed to that Obligor by the Lenders nor the assumption of equivalent obligations by a New Lender) provided that they comply with the conditions set out in clause 28.2.
|
28.7
|
Copy of Transfer Certificate, Assignment Agreement, Increase Confirmation or Uncommitted Accordion Facility Commitment Notice to Company
|
(a)
|
any Security to secure obligations to a federal reserve or central bank or to a government authority, department or agency (including HM Treasury); and
|
(b)
|
in the case of any Lender which is a fund any Security granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities,
|
(i)
|
release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant Security for the Lender as a party to any of the Finance Documents; or
|
(ii)
|
require any payments to be made by an Obligor or grant to any person any more extensive rights than those required to be made or granted to the relevant Lender under the Finance Documents.
|
(a)
|
any interest or fees in respect of the relevant participation which are expressed to accrue by reference to the lapse of time shall continue to accrue in favour of the Existing Lender up to but excluding the Transfer Date (
Accrued Amounts
) and shall become due and payable to the Existing Lender (without further interest accruing on them) on the last day of the current Interest Period (or, if the Interest Period is longer than six Months, on the next of the dates which falls at six Monthly intervals after the first day of that Interest Period); and
|
(b)
|
the rights assigned or transferred by the Existing Lender will not include the right to the Accrued Amounts so that, for the avoidance of doubt:
|
(i)
|
when the Accrued Amounts become payable, those Accrued Amounts will be payable for the account of the Existing Lender; and
|
(ii)
|
the amount payable to the New Lender on that date will be the amount which would, but for the application of this clause 28.9, have been payable to it on that date, but after deduction of the Accrued Amounts.
|
(a)
|
each of the Obligors will owe obligations to the Uncommitted Accordion Facility Lender as recorded in the Finance Documents;
|
(b)
|
without limiting paragraph 28.11(a) above, and subject to any limits recorded in the Finance Documents, the guarantees and security recorded in the Finance Documents in favour of the Finance Parties will extend to the Uncommitted Accordion Facility Lender and the Uncommitted Accordion Facility Loans;
|
(c)
|
the Agent, the Uncommitted Accordion Facility Lender and the other Lenders shall acquire the rights and assume the obligations between themselves as if the Uncommitted
|
(d)
|
to the extent the Uncommitted Accordion Facility Lender is not an Existing Lender it shall be treated as a New Lender for the purposes of paragraph 28.4 (Limitation of responsibility of Existing Lenders).
|
(a)
|
Subject to compliance with the provisions of clause 24.8(c) ("Know your customer" checks) and 24.8(d) ("Know your customer" checks), the Company may request, at any time after the first Utilisation Date, in connection with any of its wholly owned Subsidiaries, which is not a Dormant Subsidiary, becomes a Borrower under the Facilities. That Subsidiary shall become a Borrower upon satisfaction of each of the following conditions:
|
(A)
|
it is incorporated in the same jurisdiction as an existing Borrower and the Majority Lenders approve the addition of that Subsidiary or otherwise if all the Lenders approve the addition of that Subsidiary;
|
(B)
|
the Company and that Subsidiary deliver to the Agent a duly completed and executed Accession Deed;
|
(C)
|
the Subsidiary is (or becomes) a Guarantor prior to becoming a Borrower;
|
(D)
|
the Company confirms that no Default is continuing or would occur as a result of that Subsidiary becoming an Additional Borrower and the Company confirms this; and
|
(E)
|
the Agent has received all of the documents and other evidence listed in Part 3 - (Conditions precedent required to be delivered by an Additional Obligor) of Schedule 2 (Conditions precedent) in relation to that Additional Borrower, each in form and substance satisfactory to the Agent.
|
(b)
|
The Agent shall notify the Company and the Lenders promptly upon being satisfied that it has received (in form and substance satisfactory to it) all the documents and other evidence listed in Part 3 - (Conditions precedent required to be delivered by an Additional Obligor) of Schedule 2 (Conditions precedent).
|
(c)
|
Upon becoming an Additional Borrower that Subsidiary shall make any filings (and provide copies of such filings) as required by clause 17.2(j) (Tax gross-up) and
|
(a)
|
With the prior consent of all the Lenders (such consent to be provided if the Borrower is the subject of a disposal that is permitted under clause 26.13 (Disposals)), the Company may request that such Borrower ceases to be a Borrower by delivering to the Agent a Resignation Letter.
|
(b)
|
The Agent shall accept a Resignation Letter and notify the Company and the other Finance Parties of its acceptance if:
|
(i)
|
the Company has confirmed that no Default is continuing or would result from the acceptance of the Resignation Letter;
|
(ii)
|
the Borrower is under no actual or contingent obligations as a Borrower under any Finance Documents;
|
(iii)
|
where the Borrower is also a Guarantor (unless its resignation has been accepted in accordance with clause 30.5), its obligations in its capacity as Guarantor continue to be legal, valid, binding and enforceable and in full force and effect (subject to the Legal Reservations) and the amount guaranteed by it as a Guarantor is not decreased (and the Company has confirmed this is the case); and
|
(iv)
|
the Company has confirmed that it shall ensure that any relevant Disposal Proceeds will be applied in accordance with clause 11.2 (Disposal and Insurance).
|
(c)
|
Upon notification by the Agent to the Company of its acceptance of the resignation of a Borrower, that Party shall cease to be a Borrower and shall have no further rights or obligations under the Finance Documents as a Borrower.
|
(d)
|
The Agent may, at the cost and expense of the Company, require a legal opinion from counsel to the Agent confirming the matters set out in clause 30.3(b)(ii) and the Agent shall be under no obligation to accept a Resignation Letter until it has obtained such opinion in form and substance satisfactory to it.
|
(a)
|
Subject to compliance with the provisions of clause 24.8 ("Know your customer" checks), the Company shall ensure that any other member of the Group which is a Material Company (other than the French Subsidiary and the Czech Subsidiary) shall within ten Business Days after becoming a Material Company, shall become an Additional Guarantor.
|
(b)
|
A member of the Group shall become an Additional Guarantor if the Agent has received all of the documents and other evidence listed in Part 3 - (Conditions precedent required to be delivered by an Additional Obligor) of Schedule 2 (Conditions precedent) in relation to that Additional Guarantor, each in form and substance satisfactory to the Agent.
|
(c)
|
The Agent shall notify the Company and the other Finance Parties promptly upon being satisfied that it has received (in form and substance satisfactory to it) all the documents and other evidence listed in Part 3 - (Conditions precedent required to be delivered by an Additional Obligor) of Schedule 2 (Conditions precedent).
|
(a)
|
The Company may request that a Guarantor (other than the Company) ceases to be a Guarantor by delivering to the Agent a Resignation Letter if:
|
(i)
|
that Guarantor is being disposed of by way of a Third Party Disposal and the Company has confirmed this is the case; or
|
(ii)
|
all the Lenders have consented to the resignation of that Guarantor.
|
(i)
|
the Company has confirmed that no Default is continuing or would result from the acceptance of the Resignation Letter;
|
(ii)
|
no payment is due from the Guarantor under clause 22.1 (Guarantee and indemnity);
|
(iii)
|
where the Guarantor is also a Borrower, it is under no actual or contingent obligations as a Borrower and has resigned and ceased to be a Borrower under clause 30.3; and
|
(iv)
|
the Company has confirmed that it shall ensure that the relevant Disposal Proceeds will be applied, in accordance with clause 11.2 (Disposal and Insurance).
|
(c)
|
The resignation of that Guarantor shall not be effective until the date of the relevant Third Party Disposal at which time that company shall cease to be a Guarantor and shall have no further rights or obligations under the Finance Documents as a Guarantor.
|
(a)
|
Each of the Arranger and the Lenders appoints the Agent to act as its agent under and in connection with the Finance Documents.
|
(b)
|
Each of the Arranger and the Lenders authorises the Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions.
|
(i)
|
unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Agent in accordance with any instructions given to it by:
|
(A)
|
all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and
|
(B)
|
in all other cases, the Majority Lenders; and
|
(ii)
|
not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with clause 31.2(a)(i).
|
(b)
|
The Agent shall be entitled to request instructions, or clarification of any instruction, from the Majority Lenders (or, if the relevant Finance Document stipulates the matter is a decision for any other Lender or group of Lenders, from that Lender or group of Lenders) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion. The Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested.
|
(c)
|
Save in the case of decisions stipulated to be a matter for any other Lender or group of Lenders under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Agent by the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties.
|
(d)
|
The Agent may refrain from acting in accordance with any instructions of any Lender or group of Lenders until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability which it may incur in complying with those instructions.
|
(e)
|
In the absence of instructions, the Agent may act (or refrain from acting) as it considers to be in the best interest of the Lenders.
|
(f)
|
The Agent is not authorised to act on behalf of a Lender (without first obtaining that Lender's consent) in any legal or arbitration proceedings relating to any Finance Document.
|
(a)
|
The Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
|
(b)
|
Subject to clause 31.3(c) below, the Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Agent for that Party by any other Party.
|
(c)
|
Without prejudice to clause 28.7 (Copy of Transfer Certificate, Assignment Agreement, Increase Confirmation or Uncommitted Accordion Facility Commitment Notice to Company), clause 31.3(b) shall not apply to any Transfer Certificate, any Assignment Agreement, any Increase Confirmation or Uncommitted Accordion Facility Commitment Notice.
|
(d)
|
Except where a Finance Document specifically provides otherwise, the Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
(e)
|
If the Agent receives notice from a Party referring to this Agreement, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties.
|
(f)
|
If the Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Agent or the Arrangers) under this Agreement, it shall promptly notify the other Finance Parties.
|
(g)
|
The Agent shall maintain a register for recordation of the names, addresses (including the department or officer) if any, to whom communications are to be made or documents are to be delivered), fax numbers, electronic mail address and/or any other information required to enable the sending and receipt of information by electronic mail or other electronic means and the Commitments of each Lender, and agrees to provide to the Company within 5 Business Days of a request by the Company (but no more frequently than once per calendar month) or as soon as reasonably practicable upon the Agent becoming an Impaired Agent a copy of such register as at the date of that request. The entries in the register shall be conclusive absent manifest error, and the Obligors and the Lenders may treat each Person whose name is recorded in the register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement.
|
(h)
|
The Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied).
|
(a)
|
Nothing in any Finance Document constitutes the Agent or the Arrangers as a trustee or fiduciary of any other person.
|
(b)
|
None of the Agent, the Arrangers or any Ancillary Lender shall be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account.
|
(i)
|
rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised;
|
(A)
|
any instructions received by it from the Majority Lenders, any Lenders or any group of Lenders are duly given in accordance with the terms of the Finance Documents; and
|
(B)
|
unless it has received notice of revocation, that those instructions have not been revoked; and
|
(A)
|
as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or
|
(B)
|
to the effect that such person approves of any particular dealing, transaction, step, action or thing,
|
(b)
|
The Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lenders) that:
|
(i)
|
no Default has occurred (unless it has actual knowledge of a Default arising under clause 27.1 (Non-payment);
|
(ii)
|
any right, power, authority or discretion vested in any Party or any group of Lenders has not been exercised; and
|
(iii)
|
any notice or request made by the Company (other than a Utilisation Request or Selection Notice) is made on behalf of and with the consent and knowledge of all the Obligors.
|
(c)
|
The Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts.
|
(d)
|
Without prejudice to the generality of clause 31.7(c) or clause 31.7(e), the Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Agent (and so separate from any lawyers instructed by the Lenders) if the Agent in its reasonable opinion deems this to be necessary.
|
(e)
|
The Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the Agent or by any other Party) and shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying.
|
(f)
|
The Agent may act in relation to the Finance Documents through its officers, employees and agents and the Agent shall not:
|
(i)
|
be liable for any error of judgment made by any such person; or
|
(ii)
|
be bound to supervise, or be in any way responsible for any loss incurred by reason of misconduct, omission or default on the part, of any such person,
|
(g)
|
Unless a Finance Document expressly provides otherwise, the Agent may disclose to any other Party any information it reasonably believes it has received as agent under this Agreement.
|
(ii)
|
on the written request of the Company or the Majority Lenders shall, as soon as reasonably practicable, disclose,
|
(i)
|
Notwithstanding any other provision of any Finance Document to the contrary, none of the Agent nor the Arrangers is obliged to do or omit to do anything if it would, or might in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.
|
(j)
|
Notwithstanding any provision of any Finance Document to the contrary, the Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it.
|
(a)
|
the adequacy, accuracy and/or completeness of any information (whether oral or written) supplied by the Agent, any Arranger, an Ancillary Lender, an Obligor or any other person given in or in connection with any Finance Document or the transactions contemplated in the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;
|
(b)
|
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; or
|
(c)
|
any determination as to whether any information provided or to be provided to any Finance Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise.
|
(a)
|
whether or not any Default has occurred;
|
(b)
|
as to the performance, default or any breach by any Party of its obligations under any Finance Document; or
|
(a)
|
Without limiting clause 31.10(b) (and without prejudice to any other provision of any Finance Document excluding or limiting the liability of the Agent or any Ancillary Lender), none of the Agent nor any Ancillary Lender will be liable (including, without limitation, for negligence or any other category of liability whatsoever) for:
|
(i)
|
any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Finance Document unless directly caused by its gross negligence or wilful misconduct;
|
(ii)
|
exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection with, any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Finance Document; or
|
(iii)
|
without prejudice to the generality of clause 31.10(a)(i) and clause 31.10(a)(ii), any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of:
|
(A)
|
any act, event or circumstance not reasonably within its control; or
|
(B)
|
the general risks of investment in, or the holding of assets in, any jurisdiction,
|
(b)
|
No Party (other than the Agent or an Ancillary Lender (as applicable)) may take any proceedings against any officer, employee or agent of the Agent or any Ancillary Lender, in respect of any claim it might have against the Agent or an Ancillary Lender or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document or any Transaction Document and any officer, employee or agent of the Agent or any Ancillary Lender may rely on this clause subject to clause 1.3 (Third party rights) and the provisions of the Third Parties Act.
|
(i)
|
any "know your customer" or other checks in relation to any person; or
|
(ii)
|
any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Lender or for any Affiliate of any Lender,
|
(a)
|
Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Agent, within 3 Business Days of demand, against any cost, loss or liability (including, without limitation, for negligence or any other category of liability whatsoever) incurred by the Agent (otherwise than by reason of the Agent's gross negligence or wilful misconduct) (or, in the case of any cost, loss or liability pursuant to clause 34.11 (Disruption to payment systems etc.) notwithstanding the Agent's negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Agent) in acting as Agent under the Finance Documents (unless the Agent has been reimbursed by an Obligor pursuant to a Finance Document).
|
(b)
|
Subject to clause 31.11(c), the Company shall immediately on demand reimburse any Lender for any payment that Lender makes to the Agent pursuant to clause 31.11(a).
|
(c)
|
Clause 31.11(b) shall not apply to the extent that the indemnity payment in respect of which the Lender claims reimbursement relates to a liability of the Agent to an Obligor.
|
(b)
|
Alternatively the Agent may resign by giving 30 days' notice to the Lenders and the Company, in which case the Majority Lenders (after consultation with the Company) may appoint a successor Agent.
|
(c)
|
If the Majority Lenders have not appointed a successor Agent in accordance with clause 31.12(b) within 30 days after notice of resignation was given, the retiring Agent (after consultation with the Company) may appoint a successor Agent (acting through an office in the United Kingdom).
|
(d)
|
If the Agent wishes to resign because (acting reasonably) it has concluded that it is no longer appropriate for it to remain as agent and the Agent is entitled to appoint a successor Agent under clause 31.12(c), the Agent may (if it concludes (acting reasonably) that it is necessary to do so in order to persuade the proposed successor Agent to become a party to this Agreement as Agent) agree with the proposed successor Agent amendments to this clause 31.12 and any other term of this Agreement dealing with the rights or obligations of the Agent consistent with then current market practice for the appointment and protection of corporate trustees together with any reasonable amendments to the agency fee payable under this Agreement which are consistent with the successor Agent's normal fee rates and those amendments will bind the Parties.
|
(e)
|
The retiring Agent shall, at its own cost, make available to the successor Agent such documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent under the Finance Documents.
|
(f)
|
The Agent's resignation notice shall only take effect upon the appointment of a successor.
|
(g)
|
Upon the appointment of a successor, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under clause 31.12(e)) but shall remain entitled to the benefit of clause 19.3 (indemnity to the Agent) and this clause 31 (and any agency fees for the account of the retiring Agent shall cease to accrue from (and shall be payable on) that date). Any successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.
|
(h)
|
After consultation with the Company, the Majority Lenders may, by notice to the Agent, require it to resign in accordance with clause 31.12(b). In this event, the Agent shall resign in accordance with clause 31.12(b).
|
(i)
|
The Agent shall resign in accordance with clause 31.12(b) (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Agent pursuant to clause 31.12(c)) if on or after the date which is 3 months before the earliest FATCA Application Date relating to any payment to the Agent under the Finance Documents, either:
|
(i)
|
the Agent fails to respond to a request under clause 17.12 (FATCA Information) and a Lender reasonably believes that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
|
(ii)
|
the information supplied by the Agent pursuant to clause 17.12 (FATCA Information) indicates that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or
|
(iii)
|
the Agent notifies the Company and the Lenders that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
|
(a)
|
After consultation with the Company, the Majority Lenders may, by giving 30 days' notice to the Agent (or, at any time the Agent is an Impaired Agent, by giving any shorter notice determined by the Majority Lenders) replace the Agent by appointing a successor Agent (acting through an office in the United Kingdom).
|
(b)
|
The retiring Agent shall (at its own cost if it is an Impaired Agent and otherwise at the expense of the Lenders) make available to the successor Agent such documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent under the Finance Documents.
|
(c)
|
The appointment of the successor Agent shall take effect on the date specified in the notice from the Majority Lenders to the retiring Agent. As from this date, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under clause 31.13(b)) but shall remain entitled to the benefit of clause 19.3 (Indemnity to Agent) and this clause 31 (and any agency fees for the account of the retiring Agent shall cease to accrue from (and shall be payable on) that date).
|
(d)
|
Any successor Agent and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.
|
(a)
|
In acting as agent for the Finance Parties, the Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments.
|
(b)
|
If information is received by another division or department of the Agent, it may be treated as confidential to that division or department and the Agent shall not be deemed to have notice of it.
|
(i)
|
entitled to or liable for any payment due under any Finance Document on that day; and
|
(ii)
|
entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day,
|
(a)
|
the financial condition, status and nature of each member of the Group;
|
(b)
|
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance;
|
(c)
|
whether that Lender or Ancillary Lender has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and
|
(d)
|
the adequacy, accuracy and/or completeness of any information provided by the Agent, any Party or by any other person under or in connection with any Finance Document, the transactions contemplated by any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document.
|
(a)
|
No Base Reference Bank is under any obligation to provide a quotation or any other information to the Agent.
|
(b)
|
No Party (other than the relevant Base Reference Bank) may take any proceedings against any officer, employee or agent of any Base Reference Bank in respect of any claim it might have against that Base Reference Bank or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document and any officer, employee or agent of each Base Reference Bank may rely on this clause 31.20 subject to clause 1.3 (Third party rights) and the provisions of the Third Parties Act.
|
32
|
Conduct of business by the Finance Parties
No provision of this Agreement will: |
(a)
|
interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;
|
(b)
|
oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or
|
(c)
|
oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.
|
(a)
|
the Recovering Finance Party shall, within 3 Business Days, notify details of the receipt recovery, or discharge, to the Agent;
|
(b)
|
the Agent shall determine whether the receipt recovery or discharge is in excess of the amount the Recovering Finance Party would have been paid had the receipt recovery or discharge been received or made by the Agent and distributed in accordance with clause 34 (Payment mechanics), without taking account of any Tax which would be imposed on the Agent in relation to the receipt, recovery or distribution; and
|
(c)
|
the Recovering Finance Party shall, within 3 Business Days of demand by the Agent, pay to the Agent an amount (
Sharing Payment
) equal to such receipt or recovery less any amount which the Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with clause 34.6 (Partial payments).
|
(a)
|
each Sharing Finance Party shall, upon request of the Agent, pay to the Agent for that account of that Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay) (the
Redistributed Amount
); and
|
(b)
|
as between the relevant Obligor and each relevant Sharing Finance Party, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by that Obligor.
|
(a)
|
This clause 33 shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this clause, have a valid and enforceable claim against the relevant Obligor.
|
(b)
|
A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of taking legal or arbitration proceedings, if:
|
(i)
|
it notified the other Finance Party of the legal or arbitration proceedings; and
|
(ii)
|
the other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings.
|
(a)
|
This clause 33 shall not apply to any receipt or recovery by a Lender in its capacity as an Ancillary Lender at any time prior to service of notice under clause 27.19 (Acceleration).
|
(b)
|
Following service of notice under clause 27.19 (Acceleration), this clause 33 shall apply to all receipts or recoveries by Ancillary Lenders except to the extent that the receipt or recovery represents a reduction from the Gross Outstandings of a Multi-account Overdraft to or towards an amount equal to its Net Outstandings.
|
(a)
|
On each date on which an Obligor or a Lender is required to make a payment under a Finance Document (excluding a payment under the terms of an Ancillary Document) that Obligor or Lender shall make the same available to the Agent (unless a contrary indication appears in a Finance Document) for value on the due date at the time and in such funds specified by the Agent as being customary at the time for settlement of transactions in the relevant currency in the place of payment.
|
(b)
|
Payment shall be made to such account in the principal financial centre of the country of that currency (or, in relation to euro, in a principal financial centre in a Participating Member State or London) with such bank as the Agent specifies.
|
(a)
|
Where a sum is to be paid to the Agent under the Finance Documents for another Party, the Agent is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum.
|
(b)
|
If the Agent pays an amount to another Party and it proves to be the case that the Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the Agent shall on demand refund the same to the Agent together with interest on that amount from the date of
|
(a)
|
If the Agent receives a payment for application against amounts due in respect of any Finance Documents that is insufficient to discharge all the amounts then due and payable by an Obligor under those Finance Documents to the Agent, the Arrangers and the Lenders, the Agent shall apply that payment towards the obligations of that Obligor under those Finance Documents to such parties in the following order:
|
(i)
|
first, in or towards payment pro rata of any unpaid fees, costs and expenses of the Agent and the Arrangers under those Finance Documents;
|
(ii)
|
secondly, in or towards payment pro rata of any accrued interest, fee or commission due but unpaid under those Finance Documents to such parties;
|
(iii)
|
thirdly, in or towards payment pro rata of any principal due but unpaid under those Finance Documents to such parties; and
|
(iv)
|
fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents to such parties.
|
(b)
|
The Agent shall, if so directed by the Majority Lenders, vary the order set out in clause 34.6(a)(ii) to 34.6(a)(iv).
|
(a)
|
Subject to clause 34.8(b), any payment which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).
|
(b)
|
If a payment under the Finance Documents is due to be paid on a relevant Termination Date but that day is not a Business Day, that payment shall be made on the preceding Business Day.
|
(c)
|
During any extension of the due date for payment of any principal or Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the date on which, but for this clause 34.8, such principal or Unpaid Sum would otherwise have been due.
|
(a)
|
Subject to clauses 34.9(b) to 34.9(e), the Base Currency is the currency of account and payment for any sum due from an Obligor under any Finance Document.
|
(b)
|
A repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid Sum shall be made in the currency in which that Loan or Unpaid Sum is denominated on its due date.
|
(c)
|
Each payment of interest shall be made in the currency in which the sum in respect of which the interest is payable was denominated when that interest accrued.
|
(d)
|
Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.
|
(e)
|
Any amount expressed to be payable in a currency other than the Base Currency shall be paid in that other currency.
|
(a)
|
Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then:
|
(i)
|
any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall be translated into, or paid in, the currency or currency unit of that country designated by the Agent (after consultation with the Company); and
|
(ii)
|
any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Agent (acting reasonably).
|
(b)
|
If a change in any currency of a country occurs, this Agreement will, to the extent the Agent (acting reasonably and after consultation with the Company) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the Relevant Interbank Market and otherwise to reflect the change in currency.
|
(a)
|
the Agent may, and shall if requested to do so by the Company, consult with the Company with a view to agreeing with the Company such changes to the operation or administration of the Facilities as the Agent may deem necessary in the circumstances;
|
(b)
|
the Agent shall not be obliged to consult with the Company in relation to any changes mentioned in clause 34.11(a) if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes;
|
(c)
|
the Agent may consult with the other Finance Parties in relation to any changes mentioned in clause 34.11(a) but shall not be obliged to do so if, in its opinion, it is not practicable to do so in the circumstances;
|
(d)
|
any such changes agreed upon by the Agent and the Company shall (whether or not it is finally determined that a Disruption Event has occurred) be binding upon the Parties as an amendment to (or, as the case may be, waiver of) the terms of the Finance Documents notwithstanding the provisions of clause 40 (Amendments and waivers);
|
(e)
|
the Agent shall not be liable for any damages, costs or losses whatsoever (including, without limitation for negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this clause 34.11; and
|
(f)
|
the Agent shall notify the other Finance Parties of all changes agreed pursuant to clause 34.11(d) above.
|
(a)
|
A Finance Party may set off any matured obligation due from an Obligor under the Finance Documents (to the extent beneficially owned by that Finance Party) against any matured obligation owed by that Finance Party to that Obligor, regardless of the place of payment, booking branch or currency of either obligation. If the obligations are in different currencies, the Finance Party may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off.
|
(b)
|
Any credit balances taken into account by an Ancillary Lender when operating a net limit in respect of any overdraft under an Ancillary Facility shall on enforcement of the Finance Documents be applied first in reduction of the overdraft provided under that Ancillary Facility in accordance with its terms.
|
(a)
|
in the case of the Company, that identified with its name below;
|
(b)
|
in the case of the Agent, the Arrangers, each Original Lender and the Original Ancillary Lender, that identified with its name below; and
|
(c)
|
in the case of each other Lender, each other Ancillary Lender or any other Obligor, that notified in writing to the Agent on or prior to the date on which it becomes a Party,
|
(a)
|
Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be effective:
|
(i)
|
if by way of fax, when received in legible form; or
|
(ii)
|
if by way of letter, when it has been left at the relevant address or 3 Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address,
|
(b)
|
Any communication or document to be made or delivered to the Agent will be effective only when actually received by the Agent and then only if it is expressly marked for the attention of the department or officer identified with the Agent's signature below (or any substitute department or officer as the Agent shall specify for this purpose).
|
(c)
|
All notices from or to an Obligor shall be sent through the Agent.
|
(d)
|
Any communication or document made or delivered to the Company in accordance with this clause 36.3 will be deemed to have been made or delivered to each of the Obligors.
|
(a)
|
Any communication to be made between the Agent and a Lender under or in connection with the Finance Documents may be made by electronic mail or other electronic means, if the Agent and the relevant Lender:
|
(i)
|
agree that, unless and until notified to the contrary, this is to be an accepted form of communication;
|
(ii)
|
notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and
|
(iii)
|
notify each other of any change to their address or any other such information supplied by them.
|
(b)
|
Any electronic communication made between the Agent and a Lender will be effective only when actually received in intelligible form and in the case of any electronic communication made by a Lender to the Agent only if it is addressed in such a manner as the Agent shall specify for this purpose.
|
(a)
|
Any notice given under or in connection with any Finance Document must be in English.
|
(b)
|
All other documents provided under or in connection with any Finance Document must be:
|
(i)
|
in English; or
|
(ii)
|
if not in English, and if so required by the Agent, accompanied by a certified English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.
|
(a)
|
Subject to clause 40.2 any term of the Finance Documents may be amended or waived only with the prior written consent of the Majority Lenders and the Company and any such amendment or waiver will be binding on all Parties.
|
(b)
|
The Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this clause 40.
|
(c)
|
Each Obligor agrees to any such amendment or waiver permitted by this clause 40 which is agreed to by the Company. This includes any amendment or waiver which would, but for this clause 40.1(c), require the consent of all of the Guarantors.
|
(i)
|
the definition of Majority Lenders in clause 1 (Definitions and interpretation);
|
(ii)
|
an extension to the date of payment of any amount under the Finance Documents;
|
(iii)
|
a reduction in the Margin (other than by means of the operation of the Margin ratchet) or a reduction in the amount of any payment of principal, interest, fees or other amount payable to a Lender under the Finance Documents (other than in relation to clause 11 (Mandatory prepayment));
|
(iv)
|
a change in currency of payment of any amount under the Finance Documents;
|
(v)
|
an increase in any Commitment or the Total Commitments, an extension of any Availability Period or any requirement that a cancellation of Commitments reduces the Commitments of the Lenders rateably under the relevant Facility;
|
(vi)
|
a change to the Borrowers or Guarantors other than in accordance with clause 30 (Changes to the Obligors);
|
(vii)
|
any provision which expressly requires the consent of all the Lenders;
|
(viii)
|
clause 1.3 (Third party rights), clause 2.3 (Uncommitted Accordion Facility Commitments), clause 2.4 (Finance Parties' rights and obligations), clause 11 (Mandatory prepayment), clause 15.1 (Margin adjustment), clause 23.28 (Sanctions), clause 28 (Changes to the Lenders), clause 33 (Sharing among the Finance Parties), this clause 40, clause 44 (Governing law) or clause 45 (Enforcement);
|
(ix)
|
(other than as expressly permitted by the provisions of any Finance Document) the nature or scope of the guarantee and indemnity granted under clause 22 (Guarantee and indemnity); or
|
(x)
|
the release of any guarantee and indemnity granted under clause 22 (Guarantee and indemnity) unless permitted under this Agreement or any other Finance Document or relating to a sale or disposal of an asset which is expressly permitted under this Agreement,
|
(b)
|
An amendment or waiver which relates to the rights or obligations of the Agent, the Arrangers or any Ancillary Lender (each in their capacity as such) may not be effected without the prior written consent of the Agent, the Arrangers or, as the case may be, that Ancillary Lender.
|
(a)
|
For so long as a Defaulting Lender has any Available Commitment, in ascertaining the Majority Lenders or whether any given percentage (including, for the avoidance of doubt, unanimity) of the Total Commitments has been obtained to approve any request for a consent, waiver, amendment or other vote under the Finance Documents, that Defaulting Lender's Commitments will be reduced by the amount of its Available Commitments.
|
(b)
|
For the purposes of this clause 40.4 the Agent may assume that the following Lenders are Defaulting Lenders:
|
(i)
|
any Lender which has notified the Agent that it has become a Defaulting Lender;
|
(ii)
|
any Lender in relation to which it is aware that any of the events of circumstances referred to in paragraphs (a), (b) or (c) of the definition of
Defaulting Lender
has occurred and, in the case of the events or circumstances referred to in paragraph (a), none of the exceptions to that paragraph apply,
|
(a)
|
The Company may, at any time a Lender has become and continues to be a Defaulting Lender, by giving 10 Business Days' prior written notice to the Agent and such Lender:
|
(i)
|
replace such Lender by requiring such Lender to (and such Lender shall) transfer pursuant to clause 28 (Changes to the Lenders) all (and not part only) of its rights and obligations under this Agreement;
|
(ii)
|
require such Lender to (and such Lender shall) transfer pursuant to clause 28 (Changes to the Lenders) all (and not part only) of the undrawn Commitment of the Lender; or
|
(iii)
|
require such Lender to (and such Lender shall) transfer pursuant to clause 28 (Changes to the Lenders) all (and not part only) of its rights and obligations in respect of the Facilities,
|
(i)
|
the Company shall have no right to replace the Agent;
|
(ii)
|
neither the Agent nor the Defaulting Lender shall have any obligation to the Company to find a Replacement Lender;
|
(iii)
|
the transfer must take place no later than 20 Business Days after the notice referred to in clause 40.5(a) above; and
|
(iv)
|
in no event shall the Defaulting Lender be required to pay or surrender to the Replacement Lender any of the fees received by the Defaulting Lender pursuant to the Finance Documents.
|
(i)
|
any Lender becomes a Non-Consenting Lender (as defined in clause 40.6(d));
|
(ii)
|
an Obligor becomes obliged to repay any amount in accordance with clause 10.1 (Illegality) or to pay additional amounts pursuant to clause 15.4 (
Market disruption
) or clause 18.1 (Increased costs), clause 17.2 (Tax gross-up) or clause 17.3 (Tax indemnity) to any Lender; or
|
(iii)
|
any Lender becomes a Competitor,
|
(i)
|
the Company shall have no right to replace the Agent;
|
(ii)
|
neither the Agent nor the Lender shall have any obligation to the Company to find a Replacement Lender;
|
(iii)
|
the transfer to such Replacement Lender shall be deemed to occur 3 Business Days' following delivery of the relevant Transfer Certificate to the Agent, payment of the purchase price by the Lender to the Replacement Lender as required pursuant to clause 40.6(a) and subject to satisfaction with clause 40.6(b)(v);
|
(iv)
|
in no event shall the Lender replaced under this clause 40.6 be required to pay or surrender to such Replacement Lender any of the fees received by such Lender pursuant to the Finance Documents; and
|
(v)
|
the Lender shall only be obliged to transfer its rights and obligations pursuant to clause 40.6(a) once it is satisfied that it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to that transfer.
|
(c)
|
A Lender shall perform the checks described in clause 40.6(b)(v) as soon as reasonably practicable following delivery of a notice referred to in clause 40.6(a) and shall notify the Agent and the Company when it is satisfied that it has complied with those checks.
|
(d)
|
In the event that:
|
(i)
|
the Company or the Agent (at the request of the Company) has requested the Lenders to give a consent in relation to, or to agree to a waiver or amendment of, any provisions of the Finance Documents;
|
(ii)
|
the consent, waiver or amendment in question requires the approval of all the Lenders; and
|
(iii)
|
Lenders whose Commitments aggregate at least 80% of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated at least 80% of the Total Commitments prior to that reduction) have consented or agreed to such waiver or amendment,
|
41.2
|
Disclosure of Confidential Information
|
(a)
|
to any of its Affiliates and Related Funds and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives such Confidential Information as that Finance Party shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this clause 41.2(a) is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information:
|
(b)
|
to any person:
|
(i)
|
to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or more Finance Documents
|
(ii)
|
with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to, one or more Finance Documents and/or one or more Obligors and to any of that person's Affiliates, Related Funds, Representatives and professional advisers;
|
(iii)
|
appointed by any Finance Party or by a person to whom clause 41.2(b)(i) or (ii) applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf (including, without limitation, any person appointed under clause 31.15 (Relationship with the Lenders));
|
(iv)
|
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in clause 41.2(b)(i) or 41.2(b)(ii);
|
(v)
|
to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation;
|
(vi)
|
to whom or for whose benefit that Finance Party charges, assigns or otherwise creates Security (or may do so) pursuant to clause 28.8 (Security over Lenders' rights));
|
(vii)
|
to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes;
|
(viii)
|
who is a Party; or
|
(ix)
|
with the consent of the Company;
|
(A)
|
in relation to clauses 41.2(b)(i), 41.2(b)(ii) and 41.2(b)(iii), the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information;
|
(B)
|
in relation to clause 41.2(b)(iv), the person to whom the Confidential Information is to be given has entered into a Confidential Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information;
|
(C)
|
in relation to clauses 41.2(b)(v) and 41.2(b)(vii), the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of that Finance Party, it is not practicable so to do in the circumstances;
|
(c)
|
to any person appointed by that Finance Party or by a person to whom clauses 41.2(b)(i) or 41.2(b)(ii) applies to provide administration or settlement services in respect of one or more of the Finance Documents including without limitation, in relation to the trading of participations in respect of the Finance Documents, such Confidential Information as may be required to be disclosed to enable such service provider to provide any of the services referred to in this clause 41.2(c) if the party to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information;
|
(d)
|
to any rating agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable such rating agency to carry out its normal rating activities in relation to the Finance Documents and/or the Obligors if the rating agency to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information.
|
(a)
|
Any Finance Party may disclose to any national or international numbering service provider appointed by that Finance Party to provide identification numbering services in respect of this Agreement, the Facilities and/or one or more Obligors the following information:
|
(vii)
|
date of each amendment and restatement of this Agreement;
|
(viii)
|
amounts of, and names of, the Facilities (and any tranches);
|
(ix)
|
amount of Total Commitments;
|
(x)
|
currencies of the Facilities;
|
(xi)
|
type of Facilities;
|
(xii)
|
ranking of the Facilities;
|
(xiii)
|
Termination Date for Facilities;
|
(xiv)
|
changes to any of the information previously supplied pursuant to clauses 41.3(a)(i) to 41.3(a)(xiii) above; and
|
(xv)
|
such other information agreed between such Finance Party and the Company.
|
(b)
|
The Parties acknowledge and agree that each identification number assigned to this Agreement, the Facilities and/or one or more Obligors by a number service provider and the information associated with each such number may be disclosed to users of its
|
(c)
|
Each Obligor represents that none of the information set out in clauses paragraphs 41.3(a)(i) to 41.3(a)(xv) above is, nor will at any time be, unpublished price-sensitive information.
|
(d)
|
The Agent shall notify the Company and the other Finance Parties of:
|
(i)
|
the name of any numbering service provider appointed by the Agent in respect of this Agreement, the Facilities and/or one or more Obligors; and
|
(ii)
|
the number or, as the case may be, numbers assigned to this Agreement, the Facilities and/or one or more Obligors by such numbering service provider.
|
(a)
|
of the circumstances of any disclosure of Confidential Information made pursuant to clause 41.2(b)(v) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and
|
(b)
|
upon becoming aware that Confidential Information has been disclosed in breach of this clause 41.
|
(a)
|
the date on which all amounts payable by the Obligors under or in connection with the Finance Documents have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and
|
(b)
|
the date on which such Finance Party otherwise ceases to be a Finance Party.
|
(a)
|
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute relating to the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement) (a
Dispute
).
|
(b)
|
The Parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary.
|
(c)
|
This clause 45 is for the benefit of the Finance Parties. As a result, no Finance Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Finance Parties may take concurrent proceedings in any number of jurisdictions.
|
(a)
|
Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in England and Wales):
|
(i)
|
irrevocably appoints Luxfer Holdings PLC as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document (and Luxfer Holdings PLC by its execution of this Agreement, accepts that appointment); and
|
(ii)
|
agrees that failure by an agent for service of process to notify the relevant Obligor of the process will not invalidate the proceedings concerned.
|
(b)
|
If any person appointed as an agent for service of process is unable for any reason to act as agent for service of process, Luxfer Holdings PLC (on behalf of all the Obligors) must immediately (and in any event within 5 days of such event taking place) appoint another agent on terms acceptable to the Agent. Failing this, the Agent may appoint another agent for this purpose.
|
(c)
|
Luxfer Holdings PLC expressly agrees and consents to the provisions of this clause 45 and clause 44 (Governing law).
|
Company Name
|
Company Number
|
Relevant Jurisdiction
|
Luxfer Holdings PLC
|
3690830
|
England & Wales
|
BA Holdings, Inc.
|
|
Delaware
|
Luxfer Group Limited
|
3944037
|
England & Wales
|
Luxfer Group 2000 Limited
|
4027006
|
England & Wales
|
MEL Chemicals Inc.
|
|
New Jersey
|
Magnesium Elektron North America Inc.
|
|
Delaware
|
Luxfer Gas Cylinders Limited
|
3376625
|
England & Wales
|
Company Name
|
Company Number
|
Relevant Jurisdiction
|
Luxfer Holdings PLC
|
3690830
|
England & Wales
|
BA Holdings, Inc.
|
|
Delaware
|
Luxfer Group Limited
|
3944037
|
England & Wales
|
Luxfer Group 2000 Limited
|
4027006
|
England & Wales
|
MEL Chemicals Inc.
|
|
New Jersey
|
Magnesium Elektron North America, Inc.
|
|
Delaware
|
Luxfer Gas Cylinders Limited
|
3376625
|
England & Wales
|
Luxfer Group Services Limited
|
3981395
|
England & Wales
|
Magnesium Elektron Limited
|
3141950
|
England & Wales
|
Luxfer Overseas Holdings Limited
|
3081726
|
England & Wales
|
Luxfer Gas Cylinders China Holdings Limited
|
5165622
|
England & Wales
|
Luxfer Inc.
|
|
Delaware
|
Hart Metals, Inc.
|
|
Delaware
|
Reade Manufacturing Company
|
|
Delaware
|
Luxfer Magtech Inc.
|
|
Delaware
|
Luxfer Canada Limited
|
2017012705
|
Alberta, Canada
|
|
Total Commitment as at the
Fourth Restatement Date |
Bilateral Limit as at the
Fourth Restatement Date |
Lloyds Bank plc
|
$30,000,000
|
£17,000,000
|
Clydesdale Bank PLC (trading as Yorkshire Bank)
|
$30,000,000
|
£3,000,000
|
National Westminster Bank plc
|
$30,000,000
|
$5,000,000
|
HSBC Bank plc
|
$30,000,000
|
$25,000,000
|
Citibank, N.A. (London Branch)
|
$30,000,000
|
$10,000,000
|
Total
|
$150,000,000
|
|
3
|
A copy of a resolution of the board or, if applicable, a committee of the board of directors of the Additional Obligor:
|
(a)
|
approving the terms of, and the transactions contemplated by, the Accession Deed and the Finance Documents and resolving that it execute, deliver and perform the Accession Deed and any other Finance Document to which it is party;
|
(b)
|
authorising a specified person or persons to execute the Accession Deed and other Finance Documents on its behalf;
|
(c)
|
authorising a specified person or persons, on its behalf, to sign and/or despatch all other documents and notices (including, in relation to an Additional Borrower, any Utilisation Request) to be signed and/or despatched by it under or in connection with the Finance Documents to which it is a party; and
|
(d)
|
authorising the Company to act as its agent in connection with the Finance Documents.
|
4
|
If applicable, a copy of a resolution of the board of directors of the Additional Obligor, establishing the committee referred to in paragraph 3.
|
5
|
A specimen of the signature of each person authorised by the resolution referred to in paragraph 3.
|
6
|
A copy of a resolution signed by all the holders of the issued shares of the Additional Guarantor, approving the terms of, and the transactions contemplated by, the Finance Documents to which the Additional Guarantor is a party.
|
7
|
A copy of a resolution of the board of directors of each corporate shareholder of each Additional Guarantor approving the terms of the resolution referred to in paragraph 6.
|
8
|
A certificate from a director of the Additional Obligor confirming that borrowing or guaranteeing or securing, as appropriate, the Total Commitments would not cause any borrowing, guarantee, Security or similar limit binding on it to be exceeded.
|
9
|
A certificate from a director of the Additional Obligor certifying that each copy document listed in this Part 3 - (Conditions precedent required to be delivered by an Additional Obligor) of Schedule 2 (Conditions precedent) is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the date of the Accession Deed.
|
10
|
A copy of any other authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration or other document, opinion or assurance which the Agent considers to be necessary or desirable in connection with the entry into and performance of the transactions contemplated by the Accession Deed or for the validity and enforceability of any Finance Document.
|
(a)
|
A legal opinion of Addleshaw Goddard, the legal advisers to the Agent and the Arrangers as to English law in the form provided to the Agent and the Arrangers and/or distributed to the Lenders prior to signing the Accession Deed.
|
(b)
|
If the Additional Obligor is incorporated in or has its centre of main interest or establishment (as referred to in clause 23.24 (Centre of main interests and establishments)) in a jurisdiction other than England and Wales or is executing a Finance Document which is governed by a law other than English law, a legal opinion of the legal advisers to the Agent and the Arrangers in the jurisdiction of its incorporation, centre of main interest or establishment (as applicable) or, as the case may be, the jurisdiction of the governing law of that Finance Document (
Applicable Jurisdiction
) as to the law of the Applicable Jurisdiction and in the form provided to the Agent and the Arrangers and/or distributed to the Lenders prior to signing the Accession Deed.
|
13
|
If the proposed Additional Obligor is incorporated in a jurisdiction other than England and Wales, evidence that the process agent specified in clause 45.2 (Service of process) if not an Obligor, has accepted its appointment in relation to the proposed Additional Obligor.
|
14
|
Any notices duly executed or documents required to be given or executed under the terms of those security documents.
|
15
|
An accession memorandum to the Company Intra-Group Loan Agreement or similar loan agreement with the Company.
|
1
|
We refer to the Facilities Agreement. This is a Utilisation Request. Terms defined in the Facilities Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation Request.
|
(a)
|
Borrower:
•
|
(b)
|
Proposed Utilisation Date:
•
(or, if that is not a Business Day, the next Business
Day) |
(c)
|
Facility to be utilised: [Uncommitted Accordion Term Facility/Uncommitted
Accordion Revolving Facility/Revolving Facility] |
(d)
|
Currency of Loan:
•
|
(e)
|
Amount:
•
or, if less, the Available Facility
|
(f)
|
Interest Period:
•
|
3
|
We confirm that each condition specified in clause 4.2 (Further conditions precedent) is satisfied on the date of this Utilisation Request.
|
4
|
[We irrevocably instruct you to deduct from the amount of the Loan the legal fees, VAT and disbursements of Addleshaw Goddard in the amount of £
•
and to pay such amount to Addleshaw Goddard on the Utilisation Date.]
|
1
|
We refer to the Facilities Agreement. This is a Selection Notice. Terms defined in the Facilities Agreement have the same meaning in this Selection Notice unless given a different meaning in this Selection Notice.
|
2
|
[We refer to the following Uncommitted Accordion Term Facility Loan[s] with an Interest Period ending on ●]:
|
3
|
We request that the next Interest Period for the Uncommitted Accordion Term Facility Loan[s] is ●.
|
1
|
We refer to the Facilities Agreement. This is a Withdrawal Request. Terms defined in the Facilities Agreement have the same meaning in this Withdrawal Request unless given a different meaning in this Withdrawal Request.
|
(a)
|
Proposed withdrawal date:
•
(or, if that is not a Business Day, the next Business Day)
|
(b)
|
Amount:
•
|
4
|
We confirm that each condition in clause 10.7 (Right of cancellation in relation to a Defaulting Lender) is satisfied.
|
5
|
[The proceeds of the withdrawal should be credited to the following accounts:
•
|
1
|
We refer to the Facilities Agreement). This agreement (
Agreement
) shall take effect as a Transfer Certificate for the purpose of the Facilities Agreement . Terms defined in the Facilities Agreement have the same meaning in this Agreement unless given a different meaning in this Agreement.
|
(a)
|
The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by novation all or part of the Existing Lender's Commitment, rights and obligations referred to in the schedule in accordance with clause 28.5 (Procedure for transfer).
|
(b)
|
The proposed Transfer Date is
•
.
|
(c)
|
The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of clause 36.2 (Addresses) are set out in the schedule.
|
3
|
The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in clause 28.4(c) (Limitation of responsibility of Existing Lenders).
|
4
|
The New Lender confirms, for the benefit of the Agent and without liability to any Obligor, that it is:
|
(a)
|
[a Qualifying Lender falling within paragraph (i)(A) [or paragraph (ii)] of the definition of Qualifying Lender);]
|
(b)
|
[a Treaty Lender;]
|
(c)
|
[not a Qualifying Lender].
|
5
|
[The New Lender confirms that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document is either:
|
(a)
|
a company resident in the United Kingdom for United Kingdom tax purposes;
|
(b)
|
a partnership each member of which is:
|
(i)
|
a company so resident in the United Kingdom; or
|
(ii)
|
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or
|
(b)
|
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.]
|
6
|
[The New Lender confirms (for the benefit of the Agent and without liability to any Obligor) that it is a Treaty Lender that holds a passport under the HMRC DT Treaty Passport scheme (reference number
•
) and is tax resident in
•
v, so that interest payable to it by borrowers is generally subject to full exemption from UK withholding tax and notifies the Company that:
|
(a)
|
each Borrower which is a Party as a Borrower as at the Transfer Date must, to the extent that the New Lender becomes a Lender under a Facility which is made available to that Borrower pursuant to clause 2.1 (The Facilities) of the Facilities Agreement, make an application to HM Revenue & Customs under form DTTP2 within 30 days of the Transfer Date; and
|
(b)
|
each Additional Borrower which becomes an Additional Borrower after the Transfer Date must, to the extent that the New Lender is a Lender under a Facility which is made available to that Additional Borrower pursuant to clause 2.1 (The Facilities) of the Facilities Agreement, make an application to HM Revenue & Customs under form DTTP2 within 30 days of becoming an Additional Borrower
vi
.]
|
7
|
This Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Agreement.
|
8
|
This Agreement and any non-contractual obligations arising out of or in connection with governed by English law.
|
vi
|
This confirmation must be included if the New Lender holds a passport under the HMRC DT Treaty Passport scheme and wishes that scheme to apply to the Facilities Agreement.
|
1
|
We refer to the Facilities Agreement. This is an Assignment Agreement. This agreement (
Agreement
) shall take effect as an Assignment Agreement for the purpose of the Facilities Agreement. Terms defined in the Facilities Agreement have the same meaning in this Agreement unless given a different meaning in this Agreement.
|
(a)
|
The Existing Lender assigns absolutely to the New Lender all the rights of the Existing Lender under the Facilities Agreement, the other Finance Documents which correspond to that portion of the Existing Lender's Commitments under the Facilities Agreement as specified in the schedule.
|
(b)
|
The Existing Lender is released from all the obligations of the Existing Lender which correspond to that portion of the Existing Lender's Commitments under the Facilities Agreement specified in the schedule.
|
(c)
|
The New Lender becomes a Party as a Lender and is bound by obligations equivalent to those from which the Existing Lender is released under paragraph 2(b) above.
|
4
|
On the Transfer Date the New Lender becomes Party to the relevant Finance Documents as a Lender.
|
5
|
The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of clause 36.2 (Addresses) are set out in the schedule.
|
6
|
The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in clause 28.4(c) (Limitation of responsibility of Existing Lenders).
|
7
|
The New Lender confirms, for the benefit of the Agent and without liability to any Obligor, that it is:
|
(a)
|
[a Qualifying Lender falling within paragraph (i)(A) [or paragraph (ii)] of the definition of Qualifying Lender;]
|
(a)
|
[a Treaty Lender;]
|
(b)
|
[not a Qualifying Lender].
|
8
|
[The New Lender confirms that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document is either:
|
(i)
|
a company so resident in the United Kingdom; or
|
(ii)
|
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or
|
(c)
|
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.]
|
9
|
[The New Lender confirms (for the benefit of the Agent and without liability to any Obligor) that it is a Treaty Lender that holds a passport under the HMRC DT Treaty Passport scheme (reference number
•
) and is tax resident in
•
i, so that interest payable to it by borrowers is generally subject to full exemption from UK withholding tax and notifies the Company that:
|
(a)
|
each Borrower which is a Party as a Borrower as at the Transfer Date must, to the extent that the New Lender becomes a Lender under a Facility which is made available to that Borrower pursuant to clause 2.1 (The Facilities) of the Facilities Agreement, make an application to HM Revenue & Customs under form DTTP2 within 30 days of the Transfer Date; and
|
(a)
|
each Additional Borrower which becomes an Additional Borrower after the Transfer Date must, to the extent that the New Lender is a Lender under a Facility which is made available to that Additional Borrower pursuant to clause 2.1 (The Facilities) of the Facilities Agreement, make an application to HM Revenue & Customs under form DTTP2 within 30 days of becoming an Additional Borrower
ii
.]
|
10
|
This Agreement acts as notice to the Agent (on behalf of each Finance Party) and, upon delivery in accordance with clause 28.7 (Copy of Transfer Certificate, Assignment Agreement, Increase
|
11
|
This Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Agreement.
|
12
|
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
ii
|
This confirmation must be included if the New Lender holds a passport under the HRMC DT Treaty Passport scheme and wishes that scheme to apply to the Facilities.
|
1
|
We refer to the Facilities Agreement. This deed (
Accession Deed
) shall take effect as an Accession Deed for the purposes of the Facilities Agreement. Terms defined in the Facilities Agreement have the same meaning in paragraphs 1 to 3 of this Accession Deed unless given a different meaning in this Accession Deed.
|
2
|
[Subsidiary] agrees to become an Additional [Borrower]/[Guarantor] and to be bound by the terms of the Facilities Agreement and the other Finance Documents as an Additional [Borrower]/[Guarantor] pursuant to clause 30.2 (Additional Borrowers)/[clause 30.4 (Additional Guarantors) of the Facilities Agreement. [Subsidiary] is a company duly incorporated under the laws of [name of relevant jurisdiction] and is a limited liability company and registered number
•
.
|
3
|
[Subsidiary's] administrative details for the purposes of the Facilities Agreement are as follows:
|
4
|
This Accession Deed [and any non-contractual obligations arising out of or in connection with it] [is/are] governed by English law.
|
1
|
We refer to the Facilities Agreement. This is a Resignation Letter. Terms defined in the Facilities Agreement have the same meaning in this Resignation Letter unless given a different meaning in this Resignation Letter.
|
2
|
Pursuant to [clause 30.3 (Resignation of a Borrower)] [clause 30.5 (Resignation of a Guarantor)], we request that [resigning Obligor] be released from its obligations as a [Borrower] [Guarantor] under the Facilities Agreement and the Finance Documents.
|
(a)
|
no Default is continuing or would result from the acceptance of this request;
|
(b)
|
[this request is given in relation to a Third Party Disposal of [
resigning Obligor
];
|
(c)
|
[the Disposal Proceeds have been or will be applied in accordance with clause 11.2 (Disposal and Insurance); and
|
(d)
|
[];
|
4
|
This Resignation Letter (and any non-contractual obligations arising out of or in connection with it [is/are]) is governed by English law.
|
1
|
We refer to the Facilities Agreement. This is a Compliance Certificate. Terms defined in the Facilities Agreement have the same meaning when used in this Compliance Certificate unless given a different meaning in this Compliance Certificate.
|
2
|
With reference to the [Annual Financial Statements] [Quarterly Financial Statements] for the [Financial Year ended
•
] [Financial Quarter ended
•
], we confirm that:
|
3
|
[We confirm that a Permitted Temporary Leverage Increase has been agreed by the Lenders and Leverage shall not exceed
•
:
•
for the Relevant Period ending
•
to the Relevant Period ending
•
.]
|
4
|
We confirm that Leverage is
•
:1 and that, therefore, the Margin for the Revolving Facility should be
•
% [and the Margin for the Uncommitted Accordion Revolving Facility] [the Margin for the Uncommitted Accordion Term Facility Margin] should be ●%]
|
6
|
[We confirm that the following companies constitute Material Companies for the purposes of the Facilities Agreement:
|
ii
|
Only applicable if the Compliance Certificate accompanies the Audited Financial Statements and is to be signed by the Auditors. To be agreed with the Company's Auditors prior to signing of the Agreement.
|
Schedule 9
Timetables
|
|
||
|
Loans in euro
and US$
|
Loans in sterling
|
Loans in other currencies
|
Agent notifies the Company if a currency is approved as an Optional Currency in accordance with clause 4.3 (Conditions relating to Optional Currencies))
|
-
|
-
|
U-4
|
Delivery of a duly completed Utilisation
|
U-3
|
U-1
|
U-3
|
Request (clause 5.1 (Delivery of a Utilisation
|
|
|
|
Request) or a Selection Notice (clause 14.1
|
1.00pm
|
9.30am
|
9.30am
|
(Selection of Interest Periods and terms))
|
|
|
|
Agent determines (in relation to a Loan) the
|
U-3
|
U-1
|
U-3
|
Base Currency Amount of the Loan, if required under clause 5.4 (Lenders' participation) and notifies the Lenders of the
|
5.00pm
|
Noon
|
Noon
|
Loan in accordance with clause 5.4 (Lenders' participation)
|
|
|
|
Agent receives a notification from a Lender under clause 6.2 (Unavailability of a currency)
|
Quotation Day 9.30am
|
-
|
Quotation Day 9.30am
|
Agent gives notice in accordance with clause
|
Quotation Day
|
U
|
Quotation Day
|
6.2 (Unavailability of a currency)
|
|
|
|
|
5.30pm
|
9.30am
|
5.30pm
|
LIBOR or EURIBOR is fixed
|
Quotation Day as
|
Quotation Day as of
|
Quotation Day
|
|
of 11:00 a.m. in
respect of LIBOR
|
11:00 a.m.
|
as of 11:00 a.m.
|
1
|
We refer to the Facilities Agreement . This agreement (
Agreement
) shall take effect as an Increase Confirmation for the purpose of the Facilities Agreement. Terms defined in the Facilities Agreement have the same meaning in this Agreement unless given a different meaning in this Agreement.
|
3
|
The Increase Lender agrees to assume and will assume all of the obligations corresponding to the Commitment specified in the schedule (Relevant Commitment) as if it was an Original Lender under the Facilities Agreement.
|
4
|
The proposed date on which the increase in relation to the Increase Lender and the Relevant Commitment is to take effect (Increase Date) is
•
.
|
6
|
The Facility Office and address, fax number and attention details for notices to the Increase Lender for the purposes of clause 36.2 (Addresses) are set out in the schedule.
|
7
|
The Increase Lender expressly acknowledges the limitations on the Lenders' obligations referred to in clause 2.2(f) (Increase).
|
8
|
The Increase Lender confirms, for the benefit of the Agent and without liability to any Obligor, that it is:
|
9
|
[The Increase Lender confirms that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document is either:
|
(i)
|
a company so resident in the United Kingdom; or
|
(ii)
|
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or
|
(b)
|
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.]
|
10
|
[The Increase Lender confirms (for the benefit of the Agent and without liability to any Obligor) that it is a Treaty Lender that holds a passport under the HMRC DT Treaty Passport scheme (reference number
•
) and is tax resident in
•
i, so that interest payable to it by borrowers is generally subject to full exemption from UK withholding tax and notifies the Company that:
|
(a)
|
each Borrower which is a Party as a Borrower as at the Transfer Date must, to the extent that the New Lender becomes a Lender under a Facility which is made available to that Borrower pursuant to clause 2.1 (The Facilities) of the Facilities Agreement, make an application to HM Revenue & Customs under form DTTP2 within 30 days of the Transfer Date; and
|
(a)
|
each Additional Borrower which becomes an Additional Borrower after the Transfer Date must, to the extent that the New Lender is a Lender under a Facility which is made available to that Additional Borrower pursuant to clause 2.1 (The Facilities) of the Facilities Agreement, make an application to HM Revenue & Customs under form DTTP2 within 30 days of becoming an Additional Borrower
ii
.]
|
11
|
This Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Agreement.
|
12
|
This Agreement [and any non-contractual obligations arising out of or in connection with it] [is/are] governed by English law.
|
ii
|
This confirmation must be included if the Increase Lender holds a passport under the HRMC DT Treaty Passport scheme and wishes that scheme to apply to the Facilities Agreement.
|
1
|
We refer to the Facilities Agreement and in particular Clause 2.3 (Uncommitted Accordion Facility Commitments) thereof. Terms defined in the Facilities Agreement have the same meaning when used in this Uncommitted Accordion Facility Commitment Notice.
|
2
|
We have agreed with the following institutions (the
"Lenders"
) in respect of the Uncommitted Accordion Facility Commitments detailed in this Uncommitted Accordion Facility Commitment Notice) that they commit Uncommitted Accordion Facility Commitments as follows:
|
Name of Institution
|
Existing Lenders (yes/no)
|
Uncommitted Accordion
[Revolving/Term] Facility Commitment |
3
|
The date on which the Uncommitted Accordion [Revolving/Term] Facility Commitments referred to above are to become effective is [DATE].
|
5
|
The currencies in which the Uncommitted Accordion [Revolving/Term] Facility Commitments may be utilised are:
|
7
|
The applicable Margin shall be as follows (at the date of this Notice): [●] % p.a. [insert ratchet provisions if applicable]
|
12
|
[The Borrower of the Uncommitted Accordion Term Facility shall repay the aggregate Uncommitted Accordion Term Facility Loan(s) on the dates and in the amounts set out in the table below:]
|
Repayment Date
= |
Repayment Instalment
= |
13
|
[insert any other relevant matters referred to in clause 2.3 (Uncommitted Accordion Facility Commitments)]
|
14
|
The aggregate of the Uncommitted Accordion [Revolving/Term] Facility Commitments (including pursuant to this notice) is: [
•
]
|
15
|
[If a Third Party Lender, the maximum aggregate amount of the Ancillary Commitments under the Uncommitted Accordion Revolving Facility for [insert Third Party Lender details] is: [
•
]]
|
16
|
This Uncommitted Accordion Facility Commitment Notice and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
(a)
|
[a Qualifying Lender falling within paragraph (i)(A) [or paragraph (ii)] of the definition of Qualifying Lender);]
|
(b)
|
[a Treaty Lender;]
|
(c)
|
[not a Qualifying Lender].
|
(i)
|
a company so resident in the United Kingdom; or
|
(ii)
|
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or
|
(c)
|
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.]
|
(a)
|
each Borrower which is a Party as a Borrower as at the Transfer Date must, to the extent that the New Lender becomes a Lender under a Facility which is made available to that Borrower pursuant to clause 2.1 (The Facilities) of the Facilities Agreement, make an application to HM Revenue & Customs under form DTTP2 within 30 days of the Transfer Date; and
|
(b)
|
each Additional Borrower which becomes an Additional Borrower after the Transfer Date must, to the extent that the New Lender is a Lender under a Facility which is made available to that
|
iii
|
This confirmation must be included if the New Lender holds a passport under the HMRC DT Treaty Passport scheme and wishes that scheme to apply to the Facilities Agreement.
|
Address:
|
c/o Head of Citi Commercial Bank, United Kingdom Citigroup Centre, 25 Canada Square, Canary Wharf, London, E14 5LB, United Kingdom
|
Attention:
|
Citi Commercial Bank, United Kingdom
Relationship Manager – Vineet Vetts |
Address:
|
c/o Head of Citi Commercial Bank, United Kingdom Citigroup Centre, 25 Canada Square, Canary Wharf, London, E14 5LB, United Kingdom
|
Attention:
|
Citi Commercial Bank, United Kingdom
Relationship Manager – Vineet Vetts |
Address:
|
c/o Head of Citi Commercial Bank, United Kingdom Citigroup Centre, 25 Canada Square, Canary Wharf, London, E14 5LB, United Kingdom
|
Attention:
|
Citi Commercial Bank, United Kingdom
Relationship Manager – Vineet Vetts |
1.
|
Purpose of the Plan
|
2.
|
Definitions
|
3.
|
Term; Stock Subject to the Plan; Limitations on Individual Awards
|
4.
|
Administration of the Plan
|
5.
|
Eligibility; Award Agreements; Non-Transferability
|
6.
|
Options and Stock Appreciation Rights
|
7.
|
Restricted Stock
|
8.
|
Restricted Stock Units
|
9.
|
Cash Incentive Awards
|
10.
|
Other Stock Based Awards
|
11.
|
Performance-Based Awards
|
12.
|
Adjustment upon Certain Changes
|
13.
|
Rights under the Plan
|
14.
|
No Special Employment Rights; No Right to Award
|
15.
|
Securities Matters
|
16.
|
Withholding Taxes
|
17.
|
Amendment or Termination of the Plan
|
18.
|
Transfers upon Death
|
19.
|
Change in Control
|
20.
|
Fractional Shares
|
21.
|
Nominal Value
|
22.
|
Data Protection
|
23.
|
Service of Documents
|
24.
|
Third Party Rights
|
25.
|
Governing Law
|
1.
|
I have reviewed this annual report on Form 20-F of Luxfer Holdings PLC;
|
2.
|
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
|
3.
|
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report;
|
4.
|
The company’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f) and 15d-15(f)) for the company and have:
|
a)
|
designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
|
b)
|
designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
c)
|
evaluated the effectiveness of the company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
|
d)
|
disclosed in this report any change in the company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the company’s internal control over financial reporting; and
|
5.
|
The company’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the company’s auditors and the audit committee of the company’s board of directors (or persons performing the equivalent functions):
|
a)
|
all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company’s ability to record, process, summarize and report financial information; and
|
b)
|
any fraud, whether or not material, that involves management or other employees who have a significant role in the company’s internal control over financial reporting.
|
Date: March 19, 2018
|
__/s/__________________________
|
|
Alok Maskara
Chief Executive Officer
|
1.
|
I have reviewed this annual report on Form 20-F of Luxfer Holdings PLC;
|
2.
|
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
|
3.
|
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report;
|
4.
|
The company’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f) and 15d-15(f)) for the company and have:
|
a)
|
designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
|
b)
|
designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
c)
|
evaluated the effectiveness of the company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
|
d)
|
disclosed in this report any change in the company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the company’s internal control over financial reporting; and
|
5.
|
The company’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the company’s auditors and the audit committee of the company’s board of directors (or persons performing the equivalent functions):
|
a)
|
all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company’s ability to record, process, summarize and report financial information; and
|
b)
|
any fraud, whether or not material, that involves management or other employees who have a significant role in the company’s internal control over financial reporting.
|
Date: March 19, 2018
|
__/s/__________________________
|
|
Heather Harding
Chief Finance Officer
|
Date: March 19, 2018
|
__/s/__________________________
Alok Maskara
Chief Executive Officer
|
|
|
|
|
Date: March 19, 2018
|
__/s/__________________
Heather Harding
Chief Finance Officer
|