TIDMDEB
RNS Number : 3457T
Debenhams plc
04 June 2009
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NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, DIRECTLY OR INDIRECTLY IN OR INTO
THE UNITED STATES, AUSTRALIA, CANADA, JAPAN OR SOUTH AFRICA
THIS ANNOUNCEMENT IS AN ADVERTISEMENT. IT IS NOT A PROSPECTUS AND INVESTORS
SHOULD NOT SUBSCRIBE FOR OR PURCHASE ANY SHARES REFERRED TO IN THIS ANNOUNCEMENT
EXCEPT ON THE BASIS OF INFORMATION IN THE PROSPECTUS TO BE PUBLISHED BY
DEBENHAMS PLC IN CONNECTION WITH THE PROPOSED OFFERING. COPIES OF THE PROSPECTUS
WILL, FOLLOWING PUBLICATION, BE AVAILABLE FROM THE COMPANY'S REGISTERED OFFICE
AND ON ITS WEBSITE AT WWW.DEBENHAMSPLC.COM
ALL TERMS ARE DEFINED AT THE BACK OF THIS ANNOUNCEMENT, UNLESS OTHERWISE DEFINED
HEREIN
04 June 2009
Debenhams plc ("Debenhams" or the "Company")
Firm Placing and Placing and Open Offer to raise approximately GBP323 million
gross proceeds
The Board of Debenhams today announces its intention to raise gross proceeds of
approximately GBP323 million by means of a Firm Placing and a Placing and Open
Offer of New Ordinary Shares (the "Capital Raising"). The New Ordinary Shares
will be issued at the Issue Price determined by a market book build process
which commences immediately and is expected to close no later than 4.30 p.m.
today, however, the Joint Bookrunners reserve the right to close earlier if
appropriate.
In conjunction with this, the Board also today announces proposed amendments to
the terms of the Company's bank facilities (the "Covenant Amendments") and
updates on current trading.
Transaction overview
The gross proceeds of approximately GBP323 million from the issue of New
Ordinary Shares will comprise:
* Approximately 40% firm offer of New Ordinary Shares to Placees (the "Firm
Placing"); and
* Approximately 60% offer, subject to clawback by existing shareholders, of New
Ordinary Shares to Placees, each at the Issue Price (the "Placing and Open
Offer").
The TPG Shareholder Group and the CVC Shareholder Group have confirmed their
intention to vote in favour of the Capital Raising and have agreed to enter
into customary lock up arrangements on their shareholdings for the duration of
the open offer period. Their respective Board representatives have tendered
their resignations from the Board with immediate effect.
Use of proceeds
The proceeds of the capital raise will be used in four ways to:
* Reduce Debenhams' absolute level of net debt and enhance the Company's ability
to refinance in the future;
* Provide the opportunity to amend the existing debt covenant package providing
greater covenant headroom and operational and financial flexibility;
* Increase Debenhams' flexibility to opportunistically buy back existing debt at
below par; and
* Improve Debenhams' ability to pursue opportunistic acquisitions of retail assets
which may become available if the economic downturn persists.
In addition, Debenhams has agreed to apply GBP50.0 million of the net proceeds
of the Capital Raising to fund a partial pre-payment of the GBP150.0 million
term loan amortisation payment which is due under the terms of the existing debt
facilities in May 2010, leaving GBP100.0 million payable in May 2010.
Covenant amendments
The Directors have successfully negotiated amendments to the Company's financial
covenants and certain other terms within the existing debt facilities, subject
to the Capital Raising (together, the "Transaction"). Full details of the
Covenant Amendments can be found below, but the main terms of the existing debt
facilities following these amendments will be:
* the GBP700 million final payment of the outstanding term loan facility has not
changed and its final maturity remains April 2011;
* the maturity of the GBP250 million multicurrency revolving credit facility also
remains April 2011;
* the key financial covenants for both these facilities have been amended to
provide greater headroom until the end of the existing term;
* minimum fixed charge cover ratio (calculated as consolidated EBITDAR divided by
the sum of net rent and net interest payable) of 1.60 times;
* maximum leverage ratio (calculated as consolidated total net debt divided by
EBITDA) of 3.75 times;
* the margin over LIBOR/EURIBOR in respect of each facility has been increased;
and
* the Company's swap portfolio will be restructured following closing of the
Transaction, reducing the effective net margin.
Trading update
Debenhams today released its Interim Management Statement for the 12 weeks to 23
May 2009.
The full announcement is available at Debenhams' website at www.debenhamsplc.com
Rob Templeman, Chief Executive of Debenhams, said:
"I believe that our trading for the year to date is a robust performance given
the challenging nature of the market.The proposed capital raising together with
the cash generation of this business will substantially reduce the Group's net
debt position and it gives us operational and financial flexibility for the
future.We believe that the proposed transaction is the right thing for the
Company and its shareholders."
This summary should be read in conjunction with the full text of this
announcement.
For further information, please contact:
Debenhams plcTel: + 44 (0) 207 408 4444
Rob Templeman, Chief Executive Officer
Chris Woodhouse, Finance Director
Lisa Williams, Head of Investor Relations
Citi
(Joint Global Co-ordinator, Joint Sponsor and
Joint
Bookrunner)Tel: + 44 (0) 207 986 4000
Michael Lavelle
Andrew Seaton
Jan Skarbek
Merrill Lynch
(Joint Global Co-ordinator, Joint Sponsor and
Joint
Bookrunner) Tel: + 44 (0) 207 628 1000
Rupert Hume-Kendall
Simon Fraser
Simon Mackenzie-Smith
Lazard
(Financial Adviser and Joint Sponsor)Tel: + 44 (0) 207 187 2000
William Rucker
Paul Gismondi
Michael Grayer
A copy of the Prospectus, if and when published, will be available from the
registered office of Debenhams plc at 1 Welbeck Street, London W1G 0AA and on
the Debenhams website at www.debenhamsplc.com. The Prospectus (if published)
will also be available for inspection during normal business hours on any
weekday (Saturdays, Sundays and public holidays excepted) at the offices of
Freshfields Bruckhaus Deringer LLP at 65 Fleet Street, London EC4Y 1HS up to and
including the date of Admission.
This Announcement is not a prospectus but an advertisement and Qualifying
Shareholders should not acquire any Firm Placed Shares and the Open Offer Shares
referred to in this Announcement except on the basis of the information
contained in the Prospectus and the Circular.
Neither the content of Debenhams' website nor any website accessible by
hyperlinks to Debenhams' website is incorporated in, or forms part of, this
Announcement. The distribution of this Announcement, the Prospectus and any
other documentation associated with the Firm Placing and Open Offer and/or the
transfer of the Firm Placed Shares and the Open Offer Shares into jurisdictions
other than the United Kingdom may be restricted by law. Persons into whose
possession these documents come should inform themselves about and observe any
such restrictions. Any failure to comply with these restrictions may constitute
a violation of the securities laws of any such jurisdiction. In particular, such
documents should not be distributed, forwarded to or transmitted, directly or
indirectly, in whole or in part, in or into Australia, Canada, Japan, South
Africa or the United States. No action has been taken by Debenhams that would
permit an offer of the Firm Placed Shares or the Open Offer Shares or possession
or distribution of this Announcement, the Prospectus or any other Capital
Raising or publicity material or the Application Forms in any jurisdiction where
action for that purpose is required, other than in the United Kingdom.
The Firm Placed Shares and the Open Offer Shares have not been, and will not be,
registered under the United States Securities Act of 1933, as amended (the
"Securities Act") or with any securities regulatory authority of any state or
other jurisdiction of the United States, and may not be offered, sold, taken up,
exercised, resold, renounced, transferred or delivered, directly or indirectly,
in the United States except pursuant to an exemption from, or in a transaction
not subject to, the registration requirements of the Securities Act and in
compliance with the securities laws of any state or other jurisdiction of the
United States. No public Capital Raising of any of the Firm Placed Shares or the
Open Offer Shares will be made in the United States. The Firm Placed Shares and
the Open Offer Shares are being offered and sold outside the United States in
reliance on Regulation S under the Securities Act and in the United States
pursuant to an exemption from registration under the Securities Act in a
transaction not involving any public Capital Raising. No public Capital Raising
of the Firm Placed Shares or the Open Offer Shares will be made in the United
States. The Firm Placed Shares and the Open Offer Shares have not been approved
or disapproved by the US Securities and Exchange Commission, any state
securities commission in the United States or any other regulatory authority in
the United States, nor have any of the foregoing authorities passed upon or
endorsed the merits of the Capital Raising or the accuracy or adequacy of this
Announcement. Any representation to the contrary is a criminal offence. This
Announcement may not be released, published or distributed, directly or
indirectly, in whole or in part, in or into the United States.
The Firm Placed Shares and the Open Offer Shares also have not been and will not
be registered under the securities laws of any Restricted Jurisdiction or any
state, province or territory thereof and may not be offered, sold, taken up,
exercised, resold, renounced, transferred or delivered, directly or indirectly,
within such jurisdictions except pursuant to an applicable exemption from and in
compliance with any applicable securities laws. There will be no public offer in
any of the Restricted Jurisdictions.
This Announcement is for information purposes only and does not constitute or
form part of any offer to issue or sell, or the solicitation of an offer to
acquire, purchase or subscribe for, any securities in any jurisdiction and
should not be relied upon in connection with any decision to subscribe for or
acquire any of the Firm Placed Shares or the Open Offer Shares. In particular,
this Announcement does not constitute or form part of any offer to issue or
sell, or the solicitation of an offer to acquire, purchase or subscribe for, any
securities in the United States, Australia, Canada or Japan or South Africa,.
The Banks, which are authorised and regulated in the UK by the Financial
Services Authority, are acting for Debenhams and no one else in connection with
the Capital Raising and will not regard any other person (whether or not a
recipient of this Announcement) as a client in relation to the Capital Raising
and will not be responsible to anyone other than Debenhams for providing the
protections afforded to their respective clients or for providing advice in
relation to the Capital Raising or any matters referred to in this Announcement.
Apart from the responsibilities and liabilities, if any, which may be imposed on
the Banks by the Financial Services and Markets Act 2000, none of the Banks
accepts any responsibility whatsoever for the contents of this Announcement, and
makes no representation or warranty, express or implied, for the contents of
this Announcement, including its accuracy, completeness or verification, or for
any other statement made or purported to be made by it, or on its behalf, in
connection with Debenhams or the Firm Placed Shares or the Open Offer Shares or
the Capital Raising, and nothing in this Announcement is or shall be relied upon
as, a promise or representation in this respect whether as to the past or
future. Each of the Banks accordingly disclaims to the fullest extent permitted
by law all and any liability whether arising in tort, contract or otherwise
(save as referred to above) which it might otherwise have in respect of this
Announcement or any such statement.
No statement in this Announcement is intended to be a profit forecast and no
statement in this Announcement should be interpreted to mean that earnings per
share of Debenhams for the current or future financial years would necessarily
match or exceed the historical published earnings per share of Debenhams.
This Announcement includes statements that are, or may be deemed to be, "forward
looking statements". These forward looking statements can be identified by the
use of forward looking terminology, including the terms "believes", "projects",
"estimates", "anticipates", "expects", "intends", "plans", "goal", "target",
"aim", "may", "will", "would", "could", "should" or "continue" or, in each case,
their negative or other variations or comparable terminology. These forward
looking statements include all matters that are not historical facts. They
appear in a number of places throughout this Announcement and include statements
regarding the intentions, beliefs or current expectations of the Directors, the
Company or the Group concerning, among other things, the results of operations,
prospects, growth, strategies and dividend policy of the Group and the industry
in which it operates.
By their nature, forward looking statements involve risks and uncertainties
because they relate to events and depend on circumstances that may or may not
occur in the future and may be beyond the Company's ability to control or
predict. Forward looking statements are not guarantees of future performance.
The Company's or the Group's actual results of operations, dividend policy and
the development of the industry in which it operates may differ materially from
the impression created by the forward looking statements contained in this
Announcement. In addition, even if the results of operations and dividend policy
of the Company or the Group (as the case may be), and the development of the
industry in which it operates, are consistent with the forward looking
statements contained in this Announcement, those results or developments may not
be indicative of results or developments in subsequent periods. Important
factors that could cause these differences include, but are not limited to: the
effect of the Capital Raising on the Group; the Group's ability to generate
growth or profitable growth; the Group's ability to generate sufficient cash
over the longer term to service its debt; the Group's ability to control its
capital expenditure and other costs; changes in the competitive framework in
which the Group operates and its ability to retain market share; industry
trends; general local and global economic, political, business and market
conditions; significant changes in exchange rates, interest rates and tax rates;
significant technological and market changes; future business combinations or
dispositions; changes in government and other regulation, including in relation
to the environment, health and safety and taxation; labour relations and work
stoppages; changes in business strategy or development plans.
The forward looking statements contained in this document speak only as of the
date of this Announcement. Other than in accordance with their legal or
regulatory obligations (including under the Listing Rules and/or the Prospectus
Rules and/or the Disclosure and Transparency Rules) and as required by the FSA,
the London Stock Exchange or the City Code, neither of the Company or the Banks
undertakes any obligation to update or revise publicly any forward looking
statement, whether as a result of new information, future events or otherwise.
All subsequent written and oral forward looking statements attributable to the
Group or individuals acting on behalf of the Group are expressly qualified in
their entirety by this paragraph. Prospective investors should specifically
consider the factors identified in this document which could cause actual
results to differ before making an investment decision.
Appendix I contains the Terms and Conditions of the Offer
Appendix II contains an expected timetable of principal events.
Appendix III contains the definitions of certain terms used in this
announcement.
Capital Raising
Introduction
The Board of Debenhams announces today its intention to raise gross proceeds of
approximately GBP323 million by means of a Firm Placing and a Placing and Open
Offer of New Ordinary Shares (the "Capital Raising"). The New Ordinary Shares
will be issued at an Issue Price determined by a market book build process which
commences immediately and will close no later than 4.30 p.m. today.
The TPG Shareholder Group and the CVC Shareholder Group have confirmed their
intention to vote any shares held by them in favour of the Capital Raising at
the General Meeting to be held at 11.00 a.m. on 23 June 2009 and have agreed to
enter into customary lock up arrangements on their shareholdings for the
duration of the open offer period.
As a result of the Capital Raising, the TPG Shareholder Group and the CVC
Shareholder Group will both have a shareholding below the level at which they
have a right to a Board representative.Accordingly, Jonathan Feuer and Philippe
Costeletos, the Board representatives of the CVC Shareholder Group and the TPG
Shareholder Group respectively, have tendered their resignations from the Board
with immediate effect.
The Capital Raising is conditional upon, among other things, the approval of
Shareholders at the General Meeting and upon the Placing Agreement becoming
unconditional in all respects.
Background to and reasons for the Capital Raising
Debenhams is the second largest department store chain in the UK with 154 stores
in the UK and Republic of Ireland. It has a strong and well-recognised brand and
significant market share across all key categories, including womenswear,
menswear, homeware, health and beauty, accessories, lingerie and childrenswear.
In addition, Debenhams has 50 international franchise stores in 17 countries and
a growing online business through Debenhams Direct. The Directors believe that
Debenhams is clearly differentiated from its competitors through its mix of
exclusive own brands, especially its "Designers at Debenhams" offering, with a
focus on quality and design, and third-party brands. The Directors believe that
Debenhams benefits from a proven business model which has delivered a long-term
track record of sales growth and market share gains.
The Directors have been pleased with Debenhams' performance over the past 18
months. The Group has continued to grow its sales and to take market share even
though market conditions have been challenging as the global financial crisis
has developed and the UK and Republic of Ireland have moved into recession.The
Group reported strong half year results for the 26 week period ended 28 February
2009 in terms of gross transaction value and profitability. This creditable
financial performance was driven by new store openings, which continue to
deliver high returns on investment; an increasing gross margin, through greater
own bought sales contribution and tighter stock control; disciplined management
of resources which has resulted in a successful cost saving programme, lower
capital expenditure, more efficient working capital usage and short-term changes
to the Company's dividend policy; and an increase in Debenhams' total market
share as consumers respond to improvements made to Debenhams' offering in terms
of product quality and value. The Directors believe that, while the current
trading environment remains challenging, consumer spending should recover over
the medium to long term and there are strong drivers for the continued growth of
Debenhams, including further developments in its own bought product ranges,
planned new store openings and increasing multi-channel sales through Debenhams
Direct and its international franchise stores.
Notwithstanding the Directors' confidence about the growth prospects for
Debenhams over the medium to long term, they also believe that the business will
benefit from the Capital Raising in four ways.
(i) Reduces absolute level of debt and enhances ability to refinance the
facilities that mature in April 2011
Even though progress is being made in improving profits and cash flow generated
by the business, the Directors recognise that the level of indebtedness
continues to have an ongoing negative impact on investor sentiment towards
Debenhams, which has in turn impacted on the equity value of the Group. Further,
the challenging economic environment and tightening of global credit
markets have led the Directors to consider Debenhams' options in relation to its
current capital structure and any future refinancing of its existing debt
facilities. Given the limited visibility on the outlook for the global credit
markets, and taking the Group's encouraging recent operational performance into
account, the Directors believe that now is an appropriate time to reduce net
debt in order to strengthen the Group's capital structure and provide increased
financial and operational flexibility. In particular, the net proceeds of the
Capital Raising will reduce significantly Debenhams' net indebtedness and the
Directors believe that this will substantially improve the Company's ability
to refinance its existing debt facilities, which mature in April 2011, and
provide access to potentially more attractive terms upon refinancing than would
otherwise be available. On 29 May 2009, Debenhams made the scheduled GBP100.0
million amortisation payment on its term loan, due under the terms of its
existing debt facilities.
(ii) Provides opportunity to amend existing debt covenant package providing
greater operational and financial flexibility
In light of the economic environment, the Directors have created additional
financial covenant headroom within the Company's existing facilities by
successfully negotiating amendments to the Company's financial covenants and
certain other terms within the existing debt facilities.
The main terms of the existing debt facilities following these amendments will
be:
* the GBP700 million final payment of the outstanding term loan facility has not
changed and its final maturity remains April 2011;
* the maturity of the GBP250 million multicurrency revolving credit facility also
remains April 2011;
* the key financial covenants for both these facilities have been amended to
provide greater headroom until the end of the existing term and now comprise (i)
a minimum fixed charge cover ratio (calculated as consolidated EBITDAR divided
by the sum of net rent and net interest payable) of 1.60 times and (ii) a
maximum leverage ratio (calculated as consolidated total net debt divided by
EBITDA) of 3.75 times. All financial covenants are tested every quarter on a
last twelve months rolling basis and are calculated in accordance with UK GAAP
as adjusted for covenant purposes;
* the initial margin over LIBOR/EURIBOR in respect of each facility has been
increased to 3.00% per annum until September 2009 and thereafter will be in a
range of 2.50% to 3.25% per annum, depending on the leverage ratio. The
Directors expect this margin to fall to 2.75% at the first testing date,
effective on or before October 2009 and, once the Group's swap portfolio is
restructured following closing of the Transaction, the effective net margin is
expected to fall as a consequence; and
* as part of the amendment, Debenhams has agreed to pay up-front fees equivalent
to 58 basis points on the debt facilities.
The restructuring of the existing swap portfolio to accommodate the reduction in
net debt will result in a fall in the underlying cost of funds to partially
offset the rise in margin and provide protection against future interest rate
movements. The revised portfolio will have the effect of reducing the margin
payable on the drawn debt.
The amendments to the terms and conditions of the debt facilities are
conditional on at least GBP200 million being raised in the Capital Raising and
on payment of all applicable fees by the Company to the lenders.
(iii)Increases Debenhams' flexibility to opportunistically buy back existing
debt at below par
Debenhams' debt has traded below par consistently over the past three years
despite the Company's strong operational performance. If the Company is able to
take advantage of current credit market conditions to buy back debt
opportunistically in the market at below par value, the Directors believe this
would be to the benefit of the Company and the shareholders and would result in
a reduction in the net indebtedness and interest expense of the Group. In the
past month, debt with par value of GBP2.8 million has been bought back in the
market at 83% of par.
(iv) Improves Debenhams' ability to pursue opportunistic acquisitions of retail
assets which may become available if the downturn persists
In the current economic climate, the Directors believe that distressed retail
assets may become available for purchase. These assets could include packages of
stock, such as that acquired from the administrators of Principles in March
2009, or entire businesses. The Directors believe that if assets or businesses
become available for acquisition in these circumstances they may
provide opportunities to create value for Debenhams and to improve Debenhams'
credit ratios. Debenhams has a highly experienced management team with a proven
track record of value-creating acquisitions both within the retail sector and
for Debenhams, the latter including the acquisition of stores from Allders in
the UK and Roches Stores in the Republic of Ireland.
Use of Proceeds
The Directors intend to use the net proceeds of the Capital Raising in
accordance with (i) through (iv) above. Until utilised, approximately GBP250.0
million of the amount received will remain in cash on Debenhams' balance sheet.
In addition, Debenhams has agreed to apply GBP50.0 million of the net proceeds
of the Capital Raising to fund a partial pre-payment of the GBP150.0 million
term loan amortisation payment which is due under the terms of the existing debt
facilities in May 2010, leaving GBP100.0 million payable in May 2010.
Financial effects of the Capital Raising
The Directors expect the increased number of Ordinary Shares in issue following
the Capital Raising to have a negative effect on Debenhams' reported earnings
per share for the financial year ended 29 August 2009. This statement does not
constitute a profit forecast and should not be interpreted to mean that
the earnings per share in any financial period will necessarily match or be
lesser or greater than those for the relevant preceding period.
The Capital Raising, together with the amendments to the Company's financial
covenants, will provide increased flexibility and headroom to fund
value-enhancing acquisitions.
In setting the Issue Price, the Directors will consider the price at which the
New Ordinary Shares should be offered to investors to ensure a successful
Capital Raising and also raise sufficient proceeds.
Dividend Policy
The Directors have recently reviewed Debenhams' near term dividend policy. While
the Directors did not propose an interim dividend for 2009, there is an
intention to return to paying a dividend when they believe it is financially
prudent to do so.
Pensions
Debenhams and its pension trustees have recently completed a triennial valuation
of the Company's two defined benefit pension schemes. The Debenhams Executive
Pension Plan was closed to new entrants in September 2002 and the Debenhams
Retirement Scheme was closed to new entrants in October 2006. Both schemes have
been closed to future accruals since October 2006. The result of the
triennial valuation is that the rate of employer contributions payable under the
agreed schedule of contributions will remain at the same level as agreed for the
last three years until the effective date of the next valuation, 31 March 2011.
The trustees have also confirmed that the schemes will have no call on
funds raised from the Capital Raising, subject to any intervention by the
Pensions Regulator, and to review only if there were to be a material decline in
investment values or a significant change to Debenhams' covenant. The Directors
have no reason to believe that the trigger points for any of these events
are likely to occur.
Current trading and prospects
The Company announced its interim results for the 26 week period ended 28
February 2009 on 23 April 2009.
The Company today releases an interim management statement for the 12 weeks to
23 May 2009 on 4 June 2009. For this 12 week period, gross transaction value was
3.0% higher than the same period last year. Like-for-like sales were 0.8% lower
than last year (excluding VAT). Debenhams has continued to gain total fashion
market share* as customers find favour with its ongoing strategy of increasing
the quality and value of its products (*source: TNS Worldpanel Fashion 26 weeks
market share data to 26 April 2009 versus 2008).
The Directors' focus in running the business has continued to be on the levers
which drive cash margin. The improvements made over the past 18 months to the
design, quality and value of own bought product ranges - particularly "Designers
at Debenhams" - have led to continued good performance in these areas, resulting
in a 90 basis point gross margin gain for the 12 weeks compared with the same
period last year. This, alongside the ongoing disciplined management of costs,
stocks and the balance sheet, has contributed to profit before tax and EBITDA
for the 12 weeks to 23 May 2009 both being ahead of the prior year. Although the
outlook for consumer confidence for the remainder of the 2009 financial year is
uncertain, given the performance of the business so far this year the Directors
remain confident in the Company's trading strategy and the outturn for the full
year.
Capitalisation and indebtedness
As at 28 February 2009, the Company's total capitalisation was GBP162.6 million.
As at 25 April 2009, net financial indebtedness was GBP971.1 million.
Principal terms of the Capital Raising
Debenhams is proposing to raise gross proceeds of approximately GBP323 million
by way of the Capital Raising. 40% of New Ordinary Shares will be issued through
the Firm Placing and 60% of New Ordinary Shares will be issued through the
Placing and Open Offer.
Principal terms of the Placing and Open Offer
Qualifying Shareholders, on and subject to the terms and conditions of the Open
Offer, will be given the opportunity to apply for the Open Offer Shares at the
Issue Price, pro rata to their holdings of Existing Ordinary Shares on the
Record Date, on a basis to be determined after the market book build process.
Qualifying CREST Shareholders should note that, although the Open Offer
Entitlements will be admitted to CREST and be enabled for settlement,
applications in respect of entitlements under the Open Offer may only be made by
the Qualifying Shareholder originally entitled or by a person entitled by virtue
of a bona fide market claim raised by Euroclear's Claims Processing Unit.
Qualifying Non-CREST Shareholders should note that their Application Form is not
a negotiable document and cannot be traded.
Further information on the Open Offer and terms and conditions on which it is
made, including the procedure for application and payment, will be set out in
the Prospectus.
If Admission does not take place on or before 26 June 2009 (or such later time
and/or date as the Company, Citi UK and Merrill Lynch may determine, not being
later than 24 July 2009), the Open Offer will lapse, any Open Offer Entitlements
admitted to CREST will thereafter be disabled and application monies under the
Open Offer will be refunded to the applicants, by cheque (at the applicant's
risk) in the case of Qualifying Non-CREST Shareholders and by way of a CREST
payment in the case of Qualifying CREST Shareholders, without interest as soon
as practicable thereafter. In these circumstances, the Placing to the Placees
will not proceed.
The Placing and Open Offer is conditional, among other things, upon:
* the passing, without amendment, of the Resolutions at the General Meeting (and
not, except with the prior written agreement of the Joint Sponsors, at any
adjournment of such meeting not on the same day);
* Admission taking place by no later than 8.00 a.m. on 26 June 2009 (or such later
time and date as the Company, Citi UK and Merrill Lynch may agree); and
* the Placing Agreement otherwise having become unconditional in all respects
(save for the condition relating to Admission) and not having been terminated in
accordance with its terms prior to Admission.
Any Qualifying Shareholder who has sold or transferred all or part of his or her
registered holding(s) of Ordinary Shares prior to the close of business on 2
June 2009 is advised to consult his or her stockbroker, bank or other agent
through or to whom the sale or transfer was effected as soon as possible since
the invitation to apply for Open Offer Shares under the Open Offer may be a
benefit which may be claimed from him/her by the purchasers under the rules of
the London Stock Exchange.
The Open Offer Shares, when issued and fully paid, will be identical to and rank
in full for all dividends or other distributions declared, made or paid after
Admission and in all respects will rank pari passu with the Existing Ordinary
Shares. No temporary documents of title will be issued.
The commitments of the Placees will be subject to clawback in respect of valid
applications for Open Offer Shares by Qualifying Shareholders pursuant to the
Open Offer.
Principal terms of the Firm Placing
The Firm Placed Shares will not be subject to clawback and do not form part of
the Open Offer. The Firm Placing will be subject to the same conditions and
termination rights that apply to the Placing and Open Offer.
Application will be made to the UK Listing Authority for the Firm Placed Shares
to be admitted to the Official List and to the London Stock Exchange for the
Firm Placed Shares to be admitted to trading on the London Stock Exchange's main
market for listed securities. It is expected that Admission will become
effective on 26 June 2009 and that dealings for normal settlement in the Open
Offer Shares will commence at 8.00 a.m. on the same day.
The Firm Placed Shares, when issued and fully paid, will be identical to, and
rank in full with, the Ordinary Shares for all dividends or other distributions
declared, made or paid after Admission and will rank pari passu in all respects
with the Existing Ordinary Shares as at the date of issue.
Structure of the Capital Raising
The Capital Raising is being structured in a way that is expected to have the
effect of realising distributable reserves approximately equal to the net
proceeds of the Capital Raising less the par value of the New Ordinary Shares
issued by the Company. The Company and Citi UK have agreed to subscribe for
ordinary shares in Kylie (Jersey) Limited. Citi UK will pay monies that they
receive from Qualifying Shareholders or Placees taking up New Ordinary Shares
under the Capital Raising, after deducting commissions, to an account with
Equiniti Limited, which proceeds will be used to acquire redeemable preference
shares in Kylie (Jersey) Limited.
The Company will allot and issue the New Ordinary Shares to those persons
entitled thereto in consideration of Citi UK transferring its holdings of
ordinary shares and redeemable preference shares in Kylie (Jersey) Limited to
the Company. Accordingly, instead of receiving cash as consideration for the
issue of the New Ordinary Shares, at the conclusion of the Capital Raising the
Company will own the entire issued share capital of Kylie (Jersey) Limited whose
only asset will be its cash reserves, which will represent an amount equivalent
to the net proceeds of the Capital Raising. The Company will be able to utilise
this amount by redeeming the redeemable preference shares it holds in Kylie
(Jersey) Limited and, during any interim period prior to redemption, by
procuring that Kylie (Jersey) Limited lends the amount to the Company.
The realisation of distributable reserves will facilitate any potential return
of cash to Shareholders.
The Firm Placing and the Placing and Open Offer are interconditional and
conditional, among other things, on Shareholder approval, which will be sought
at a General Meeting convened for 23 June 2009.
Effect of the Capital Raising
In structuring the Capital Raising, the Directors have given consideration to
how to structure the proposed equity fundraising, having regard to the current
market conditions, the composition of the Company's shareholder register, the
level of the Company's share price and the importance of pre-emption rights to
Shareholders. After considering these factors, the Directors have concluded that
the Capital Raising is the most suitable option available to the Company and its
Shareholders. The Open Offer will provide an opportunity for all Qualifying
Shareholders to participate in the fundraising by acquiring Open Offer Shares
pro rata to their current holding of Shares.
Shareholders should note that the Open Offer is not a rights issue. Qualifying
Shareholders should be aware that in the Open Offer, unlike in a rights issue,
any Open Offer Shares not applied for will not be sold in the market on behalf
of, or placed for the benefit of, Qualifying Shareholders who do not apply under
the Open Offer but will be issued to the Placees for the benefit of the Company.
Directors' intentions
The Directors currently beneficially own, in aggregate, 37,735,581 Existing
Ordinary Shares, representing 4.20% of the issued share capital of the Company.
Subject to the sentence that follows, each of the Directors intends to acquire
in the Capital Raising a number of New Ordinary Shares equal to his full
entitlement in the Open Offer and such New Ordinary Shares will be issued to
each Director or members of his family. Certain directors will only acquire New
Ordinary Shares if they can sell sufficient of their Existing Ordinary Shares in
the market at a net price per share that covers the cost of acquiring New
Ordinary Shares in the Capital Raising at the Issue Price.
APPENDIX 1
TERMS AND CONDITIONS
IMPORTANT INFORMATION ON THE PLACINGS FOR INVITED PLACEES ONLY
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACINGS. THIS
ANNOUNCEMENT, THIS APPENDIX AND THE TERMS AND CONDITIONS SET OUT HEREIN ARE FOR
INFORMATION PURPOSES ONLY AND ARE DIRECTED ONLY AT PERSONS WHOSE ORDINARY
ACTIVITIES INVOLVE THEM IN ACQUIRING, HOLDING, MANAGING AND DISPOSING OF
INVESTMENTS (AS PRINCIPAL OR AGENT) FOR THE PURPOSES OF THEIR BUSINESS AND WHO
HAVE PROFESSIONAL EXPERIENCE IN MATTERS RELATING TO INVESTMENTS AND ARE PERSONS
WHO: (A) FALL WITHIN ARTICLE 19(5) OF THE FINANCIAL SERVICES AND MARKETS ACT
2000 (FINANCIAL PROMOTION) ORDER 2005, AS AMENDED ("THE ORDER") OR ARE PERSONS
FALLING WITHIN ARTICLE 49(2)(a) TO (d) ("HIGH NET WORTH COMPANIES,
UNINCORPORATED ASSOCIATIONS, ETC") OF THE ORDER; AND (B) ARE QUALIFIED INVESTORS
WITHIN THE MEANING OF SECTION 86(7) OF THE FINANCIAL SERVICES AND MARKETS ACT
2000, AS AMENDED ("FSMA"); AND (C) HAVE BEEN INVITED TO PARTICIPATE IN THE
PLACINGS BY THE PLACING AGENTS (ALL SUCH PERSONS TOGETHER BEING REFERRED TO AS
"RELEVANT PERSONS").
THIS ANNOUNCEMENT AND THIS APPENDIX AND THE TERMS AND CONDITIONS SET OUT HEREIN
MUST NOT BE ACTED ON OR RELIED ON BY PERSONS WHO ARE NOT RELEVANT PERSONS. ANY
PERSON DISTRIBUTING THIS ANNOUNCEMENT AND THIS APPENDIX MUST SATISFY THEMSELVES
THAT IT IS LAWFUL TO DO SO. ANY INVESTMENT OR INVESTMENT ACTIVITY TO WHICH THIS
APPENDIX AND THE TERMS AND CONDITIONS SET OUT HEREIN RELATES IS AVAILABLE ONLY
TO RELEVANT PERSONS AND WILL BE ENGAGED IN ONLY WITH RELEVANT PERSONS. THIS
ANNOUNCEMENT AND THIS APPENDIX DO NOT THEMSELVES CONSTITUTE AN OFFER FOR SALE OR
SUBSCRIPTION OF ANY SECURITIES IN THE COMPANY. THE SECURITIES HAVE NOT BEEN AND
WILL NOT BE REGISTERED UNDER THE US SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT") OR UNDER THE LAWS OF ANY STATE OR OTHER JURISDICTION OF THE
UNITED STATES, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED OR DELIVERED, DIRECTLY
OR INDIRECTLY, WITHIN THE UNITED STATES EXCEPT PURSUANT TO AN EXEMPTION FROM OR
IN A TRANSACTION NOT SUBJECT TO THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND IN COMPLIANCE WITH THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION OF THE UNITED STATES. NO MONEY, SECURITIES OR OTHER CONSIDERATION
FROM ANY PERSON INSIDE THE UNITED STATES IS BEING SOLICITED BY THIS ANNOUNCEMENT
AND THIS APPENDIX AND IF SENT IN RESPONSE TO INFORMATION CONTAINED IN THIS
ANNOUNCEMENT OR THIS APPENDIX, WILL NOT BE ACCEPTED.
THIS ANNOUNCEMENT AND THIS APPENDIX IS ONLY ADDRESSED TO AND DIRECTED AT PERSONS
IN MEMBER STATES OF THE EUROPEAN ECONOMIC AREA WHO ARE 'QUALIFIED INVESTORS'
WITHIN THE MEANING OF ARTICLE 2(1)(E) OF THE PROSPECTUS DIRECTIVE.
If a Placee indicates to the Placing Agents that it wishes to participate in the
Placings by making an oral offer to acquire Placing Shares it will be deemed to
have read and understood this Appendix and the announcement of which it forms
part in their entirety and to be making such offer on the terms and conditions,
and to be providing the representations, warranties, indemnities, agreements and
acknowledgements, contained in this Announcement. In particular each such Placee
represents, warrants and acknowledges that it is a Relevant Person and
undertakes that it will acquire, hold, manage and dispose of any of the Placing
Shares that are allocated to it for the purposes of its business only. Further,
each such Placee represents, warrants and agrees that (a) if it is a financial
intermediary, as that term is used in Article 3(2) of the Prospectus Directive,
that the Firm Placed Shares and Open Offer Placed Shares acquired by and/or
purchased by it in the Capital Raising will not be acquired on a
non-discretionary basis on behalf of, nor will they be acquired with a view to
their offer or resale to, persons in circumstances which may give rise to an
offer of securities to the public other than an offer or resale in a member
state of the EEA which has implemented the Prospectus Directive to Qualified
Investors, or in circumstances in which the prior consent of the Placing Agents
has been given to each such proposed offer or resale; and (b) it is either (i)
outside the United States and is acquiring for the Firm Placed Shares and/or the
Open Offer Placed Shares in an offshore transaction pursuant to Regulation S
under the Securities Act for its own account or is purchasing the Firm Placed
Shares and/or the Open Offer Placed Shares for an account with respect to which
it exercises sole investment discretion and who will sign and return the
Regulation S Form of Acceptance in the Placing Letter which will be provided to
each Placee by the Placing Agents which the Placee is obliged to complete and
sign; or (ii) a "qualified institutional buyer" (as defined in Rule 144A under
the Securities Act) or purchasing Placing Shares on behalf of a QIB, and who
will sign and return the QIB Form of Acceptance in the Placing Letter. This
Announcement does not constitute an offer to sell or issue or the invitation or
solicitation of an offer to buy or acquire Placing Shares in any jurisdiction
including, without limitation, the United States, Australia, Canada, Japan or
South Africa. This Announcement and the information contained herein are not for
release, publication or distribution, directly or indirectly, in whole or in
part, to persons in the United States, Australia, Canada, Japan or South Africa
or any jurisdiction in which the same is unlawful.
In particular, the Placing Shares referred to in this Announcement have not been
and will not be registered under the Securities Act and may not be offered, sold
or transferred within the United States except pursuant to an exemption from, or
in a transaction not subject to, the registration requirements of the Securities
Act. Subject to certain limited exceptions, no offering of the Placing Shares
will be made in the United States. The Placing Shares have not been approved or
disapproved by the US Securities and Exchange Commission, any state securities
commission in the United States or any other regulatory authority in the United
States, nor have any of the foregoing authorities passed upon or endorsed the
merits of the Placings or the accuracy or adequacy of this Announcement. Any
representation to the contrary is a criminal offence in the United States.
The distribution of this Announcement and the offer and/or placing of Placing
Shares in certain other jurisdictions may be restricted by law. No action has
been taken by the Placing Agents or the Company that would permit an offer of
the Placing Shares or possession or distribution of this Announcement or any
other offering or publicity material relating to the Placing Shares in any
jurisdiction where action for that purpose is required. Persons into whose
possession this Announcement comes are required by the Placing Agents and the
Company to inform themselves about and to observe any such restrictions.
Each Placee's commitments will be made solely on the basis of the information
set out in the Placing Letter and the information publicly announced to a
Regulatory Information Service by or on behalf of the Company on the date of
this Announcement. Each Placee, by participating in the Placings, agrees that it
has neither received nor relied on any other information, representation,
warranty or statement made by or on behalf of any of the Placing Agents or the
Company and none of the Placing Agents, the Company or any person acting on such
person's behalf nor any of their affiliates has or shall have liability for any
Placee's decision to accept this invitation to participate in the Placings based
on any other information, representation, warranty or statement. Each Placee
acknowledges and agrees that it has relied on its own investigation on the
business, financial or other position of the Company in accepting a
participation in the Placings. Nothing in this paragraph shall exclude the
liability of any person for fraudulent misrepresentation.
No representation or warranty, express or implied, is or will be made as to, or
in relation to, and no responsibility or liability will be accepted by any of
the Placing Agents or any of their respective employees, affiliates, advisers or
agents or any other person as to or in relation to, the accuracy or completeness
of any of the Prospectus, the Circular or this Announcement or any other written
or oral information made available to or publicly available to any Placee, any
person acting on such Placee's behalf or any of their respective advisers, and
any liability therefor is expressly disclaimed.
Proposed Firm Placing of New Ordinary Shares and Placing of Open Offer Placed
Shares subject to clawback in respect of valid applications by Qualifying
Shareholders
Placees are referred to this Announcement and the Prospectus, which the Company
intends to publish once finalised, containing details of, inter alia, the
Capital Raising. This Announcement and the Prospectus, have been prepared and
issued, or will be issued, by the Company, and each of these documents is and
will be the sole responsibility of the Company.
Subject to, amongst other conditions contained in the Placing Agreement, the
Banks and the Company executing a Pricing Supplement following the institutional
Bookbuild in connection with the Placings, Qualifying Shareholders on the
Register at close of business on 2 June 2009 (or, in each case, such later date
as may be agreed between the Company and the Placing Agents) will be offered the
right to acquire at the Issue Price, payable in full on acceptance, for their
pro rata entitlement of the Open Offer Shares. Entitlements to fractions of Open
Offer Shares will not be allotted and each Qualifying Shareholder's entitlement
will be rounded down to the nearest whole number. The fractional entitlements
will be aggregated and sold to the Placees in the Placing for the ultimate
benefit of the Company.
Application for listing and admission to trading
Application will be made to (i) the UK Listing Authority for the New Ordinary
Shares to be admitted to the Official List and (ii) the London Stock Exchange
for the New Ordinary Shares to be admitted to trading on its main market for
listed securities. Application will also be made to Euroclear UK & Ireland
Limited for the entitlements to the Open Offer Shares to be admitted as separate
participating securities within CREST.
Subject to satisfaction of the conditions referred to herein and to be set out
in the Prospectus, it is expected that the Application Form will be despatched
on 5 June 2009 to Shareholders who hold their Ordinary Shares in certificated
form (other than, subject to certain exceptions, shareholders in the United
States and the Restricted Jurisdictions). It is expected that Open Offer
Entitlements will be credited to stock accounts in CREST around 8.00 a.m. on 8
June 2009 to Qualifying Shareholders who hold their Ordinary Shares in
uncertificated form (other than, subject to certain exceptions, shareholders in
the United States and other Restricted Jurisdictions) and dealings in the New
Ordinary Shares will commence at 8.00 a.m. on the day which is three Business
Days following the General Meeting. The latest time and date for acceptance and
payment in full in respect of the New Ordinary Shares is expected to be 11.00
a.m. on 22 June 2009. The Company and the Banks have agreed that if a
Supplementary Prospectus is issued by the Company two Business Days or fewer
prior to the date specified in the expected timetable for the Capital Raising as
the latest date for acceptance and payment in full, such date shall be extended
to the date which is three Business Days after the date of issue of the
Supplementary Prospectus.
The New Ordinary Shares will be issued subject to the memorandum and articles of
association of the Company and will, when issued and fully paid, rank pari passu
in all respects with the existing issued Ordinary Shares, (including the right
to receive all dividends or other distributions declared after the date of the
issue of the New Ordinary Shares).
Bookbuild
Commencing today, the Placing Agents will be conducting the Bookbuild to
determine demand for participation in the Placings. The Placing Agents will seek
to procure Placees as part of this Bookbuild. This Announcement gives details of
the terms and conditions of, and the mechanics of participation in, the
Bookbuild and Placings. A commission of 1.75% of the value of the Open Offer
Placed Shares initially allocated to each Placee by the Placing Agents will be
paid to such Placee on the date of Admission subject to payment in full by such
Placee for the Placing Shares allocated to such Placee in accordance with this
Announcement and such Placee's Placing Letter (as defined below).
Principal terms of the Bookbuild
* By participating in the Bookbuild and the Placings, Placees will be deemed to
have read and understood this Announcement in its entirety and to be
participating and making an offer for any Placing Shares on the terms and
conditions, and to be providing the representations, warranties, indemnities,
acknowledgements and undertakings, contained in this Announcement and pursuant
to the Placing Letter.
* The Placing Agents are arranging the Placings as agents of the Company.
* Participation in the Placing will only be available to persons who may lawfully
be and are invited to participate by the Placing Agents. The Banks and their
respective affiliates are entitled to enter bids as principal in the Bookbuild.
* Any bid should state the total number of Placing Shares which the person wishes
to acquire or the total monetary amount which it is offering to acquire Placing
Shares at the Issue Price which is ultimately established by the Company and the
Placing Agents, or at a price up to a price limit specified in its bid.
* The Placing Agents reserve the right not to accept bids or to accept bids in
part rather than in whole. The acceptance of bids shall be at the Placing
Agents' absolute discretion.
* The Bookbuild will establish a single price for the Firm Placed Shares, the Open
Offer Placed Shares and the Open Offer Shares. The Issue Price will be jointly
agreed between the Placing Agents and the Company following completion of the
Bookbuild and will be payable to the Placing Agents by the Placees in respect of
the Placing Shares allocated to them. Any discount to the market price of the
Ordinary Shares will be determined in accordance with the Listing Rules as
published by the FSA pursuant to Part IV of FSMA, and approved by the Company at
the General Meeting.
* The Bookbuild is expected to close no later than 4.30 p.m. on 4 June 2009. The
timing of the closing of the books, pricing and allocations is at the discretion
of the Placing Agents and the Company. The Placing Agents may, at their sole
discretion, accept bids that are received after the Bookbuild has closed.
* If successful, each Placee's allocation will be confirmed to it by the Placing
Agents following the close of the Bookbuild, and a Placing Letter will be
dispatched as soon as possible thereafter. Oral or written confirmation (at the
Placing Agents' discretion) from the Placing Agents to such Placee, following
completion of the Bookbuild, will constitute a legally binding commitment upon
such Placee, in favour of the Placing Agents and the Company to acquire the
number of Placing Shares allocated to it on the terms and conditions set out in
this Announcement, the Placing Letter and in accordance with the Company's
Memorandum and Articles of Association. Each Placee will confirm such legally
binding commitment by completing, signing and returning a Placing Letter in
accordance with the instructions therein, and should a Placee fail to do so the
Placing Agents will retain the right to cancel their allocation or terminate
such legally binding commitment. Each Placee will have an immediate, separate,
irrevocable and binding obligation, owed to the Placing Agents to pay to the
Placing Agents (or as the Placing Agents may direct) in cleared funds an amount
equal to the product of the Issue Price and the sum of the number of Firm Placed
Shares and once apportioned (in accordance with the procedure described in the
paragraph entitled 'Placing Procedure' below), the Open Offer Placed Shares,
which such Placee has agreed to acquire.
* The Company will make a further announcement following the close of the
Bookbuild detailing the Issue Price and the number of New Ordinary Shares to be
issued (the "Pricing Announcement"). It is expected that such Announcement will
be made as soon as practicable after the close of the Bookbuild.
* A bid in the Bookbuild will be made on the terms and conditions in this
Announcement and will be legally binding on the Placee by which, or on behalf of
which, it is made and will not be capable of variation or revocation after the
close of the Bookbuild.
* Subject to paragraphs (g) and (i) above, the Placing Agents may choose to accept
bids, either in whole or in part, on the basis of allocations determined at its
discretion and may scale down any bids for this purpose on such basis as they
may determine.
* Irrespective of the time at which a Placee's allocation(s) pursuant to the
Placings is/are confirmed, settlement for all Placing Shares to be acquired
pursuant to the Placings will be required to be made at the same time, on the
basis explained below under the paragraph "Registration and Settlement".
All obligations under the Placings will be subject to the fulfilment of the
conditions referred to below under the paragraph "Conditions of the Placings and
Termination of the Placing Agreement".
Conditions of the Placings and Termination of the Placing Agreement
Placees will only be called on to acquire Placing Shares if the obligations of
the Placing Agents under the Placing Agreement have become unconditional in all
respects and the Placing Agents have not terminated the Placing Agreement prior
to Admission.
The Banks' obligations under the Placing Agreement are conditional upon, inter
alia:
* the Company having performed all its obligations under the Placing Agreement
which are to be performed on or prior to Admission;
* the representations, warranties, undertakings or covenants of the Company
contained in the Placing Agreement shall as at the time of Admission being true,
accurate and not misleading by reference to the facts and circumstances then
existing and no matter having arisen prior to the time of Admission which might
reasonably be expected to give rise to a claim under the indemnity in the
Placing Agreement;
* Admission having occurred by not later than 8.00 a.m. on the third Business Day
after the date of the General Meeting or such later time and/or date as the
Company and the Placing Agents may agree;
* the Resolutions having been passed without amendment on the date of the General
Meeting (and not, except with the prior written agreement of the Placing Agents,
at any adjournment of such meeting);
* the Issue Price being determined and the Pricing Supplement being executed by
the Company no later than 5.00 p.m. on 4 June 2009 (or such later date and/or
time as the Company and the Placing Agents may agree),
(all such conditions included in the Placing Agreement being together the
"Conditions").
The Placing Agents may terminate the Placing Agreement at any time before
Admission or on the occurrence of certain events, including, (i) in the opinion
of the Placing Agents there has been a material adverse change, (ii) the Placing
Agents become aware that any of the warranties or representations given by the
Company under the Placing Agreement are or would be untrue, incorrect or
misleading or a matter has arisen which might reasonably be expected to give
rise to a claim under the indemnity in the Placing Agreement, (iii) the Placing
Agents become aware that any offer document (or any amendment or supplement
thereto) is or has become untrue, inaccurate or misleading in any material
respect, (iv) a force majeure event as specified in the Placing Agreement has
occurred, or (v) the application of the Company for Admission is withdrawn or is
refused by the FSA or the London Stock Exchange for any reason.
If any Condition has not been satisfied, has not been waived by the Placing
Agents or has become incapable of being satisfied (and is not waived by the
Placing Agents as described below) or if the Placing Agreement is terminated,
all obligations under these terms and conditions and/or any Placing Letters will
automatically terminate. By participating in the Bookbuild and the Placings,
each Placee agrees that its rights and obligations hereunder are conditional
upon the Placing Agreement becoming unconditional in all respects and that its
rights and obligations will terminate only in the circumstances described above
and will not be capable of rescission or termination by it after oral or written
confirmation by the Placing Agents (at the Placing Agents' discretion) following
the close of the Bookbuild.
The Placing Agents may, following consultation with Lazard, (for themselves and
on behalf of the other Banks) in their absolute discretion and upon such terms
as they think fit waive fulfilment of any of the conditions (in whole or part)
in the Placing Agreement or extend the time provided for fulfilment of any such
conditions. Any such extension or waiver will not affect Placees' commitments as
set out in this Announcement. None of the Placing Agents nor the Company shall
have any liability to any Placee (or to any other person whether acting on
behalf of a Placee or otherwise) in respect of any decision made as to whether
or not to waive or to extend the time and/or date for the fulfilment of any
condition in the Placing Agreement.
By participating in the Placings each Placee agrees that the exercise by the
Company or the Placing Agents of any right or other discretion under the Placing
Agreement shall be within the absolute discretion of the Company and the Placing
Agents (as the case may be) and that neither the Company nor the Placing Agents
need make any reference to such Placee and that neither the Company nor the
Placing Agents shall have any liability to such Placee (or to any other person
whether acting on behalf of a Placee or otherwise) whatsoever in connection with
any such exercise.
Withdrawal Rights
Placees acknowledge that their acceptance of any of the Placing Shares is not by
way of acceptance of the public offer to be made in the Prospectus and
Application Forms but is by way of a collateral contract and as such section 87Q
of the FSMA does not entitle Placees to withdraw in the event that the Company
publishes a supplementary prospectus in connection with the Capital Raising. If,
however, a Placee is entitled to withdraw, by accepting the offer of a placing
participation, the Placee agrees to confirm their acceptance of the offer on the
terms contained in the Placing Letter on the same terms immediately after such
right of withdrawal arises.
Placing Procedure
Any Open Offer Shares offered pursuant to the Capital Raising and not subject to
valid applications from Qualifying Shareholders received by 11.00 a.m. on 22
June 2009 (or such other time and/or date as the Company and the Placing Agents
may agree), or if not otherwise deemed to be valid in accordance with the
Prospectus, will be deemed to have been declined and the entitlement to such
shares will lapse.
Placees shall acquire the Firm Placed Shares and Open Offer Placed Shares and
any allocation of the Firm Placed Shares and Open Offer Placed Shares will be
notified to them by 4.30 p.m. on 4 June 2009 (or such other time and/or date as
the Company and the Placing Agents may agree).
Placees will be called upon to acquire, and shall acquire, the Open Offer Placed
Shares only if valid applications from Qualifying Shareholders for such shares
have not been received by 11.00 a.m. on 22 June 2009 (or such other time and/or
date as the Company and the Placing Agents may agree), or if applications have
otherwise not been deemed to be valid in accordance with the Prospectus, and any
allocation of the Open Offer Placed Shares to Placees will be notified to them
by no later than 4.30 p.m. on the date of the General Meeting (or such other
time and/or date as the Company and the Placing Agents may agree). Any allotment
of Open Offer Placed Shares to Placees will be in proportion to their allocation
of Firm Placed Shares relative to the aggregate of the Firm Placed Shares.
Payment in full for any Firm Placed Shares and Open Offer Placed Shares so
allocated at the Issue Price must be made by no later than midday (or such other
time as shall be notified to each Placee by the relevant Placing Agent) on the
Closing Date (or such other time and/or date as the Company and the Placing
Agents may agree). The Placing Agents will notify Placees if any of the dates in
this Announcement should change, including as a result of delay in the posting
of the Circular, the Prospectus, the Application Forms or the crediting of the
Open Offer Entitlements in CREST or the production of a supplementary prospectus
or otherwise.
Registration and Settlement
Settlement of transactions in the Placing Shares following Admission will take
place within the CREST system, subject to certain exceptions. The Placing Agents
and the Company reserve the right to require settlement for and delivery of the
Placing Shares to Placees by such other means that they deem necessary if
delivery or settlement is not possible within the CREST system within the
timetable set out in this Announcement or would not be consistent with the
regulatory requirements in the Placee's jurisdiction. Each Placee will be deemed
to agree that it will do all things necessary to ensure that delivery and
payment is completed in accordance with either the standing CREST or
certificated settlement instructions which they have in place with the relevant
Placing Agent.
Each Placee allocated any Firm Placed Shares and conditionally allocated any
Open Offer Placed Shares in the Placings will be sent a Placing Letter
confirming the contract concluded upon acceptance of such Placee's earlier oral
offer and also confirming the number of Firm Placed Shares and Open Offer Placed
Shares conditionally allocated to it, the Issue Price and the aggregate amount
owed by such Placee to the Placing Agents. Settlement will be on a T+3 and
delivery versus payment basis and settlement is expected to take place on 26
June 2009. Interest is chargeable daily on payments to the extent that value is
received after the due date from Placees at the rate of two percentage points
above prevailing LIBOR. Each Placee is deemed to agree that if it does not
comply with these obligations, the Placing Agents may sell any or all of the
Placing Shares allocated to it on its behalf and retain from the proceeds, for
its own account and benefit, an amount equal to the aggregate amount owed by the
Placee plus any interest due. By communicating a bid for Placing Shares, each
Placee confers on the Placing Agents all such authorities and powers necessary
to carry out any such sale and agrees to ratify and confirm all actions which
the Placing Agents lawfully take in pursuance of such sale.
The relevant Placee will, however, remain liable for any shortfall below the
aggregate amount owed by it and may be required to bear any stamp duty or stamp
duty reserve tax (together with any interest or penalties) which may arise upon
any transaction in the Placing Shares on such Placee's behalf.
If Placing Shares are to be delivered to a custodian or settlement agent,
Placees should ensure that the Placing Letter is copied and delivered
immediately to the relevant person within that organisation.
Acceptance
By participating in the Placings and/or completing (as applicable), signing and
returning the appropriate version of the Forms of Acceptance attached to the
Placing Letter, a Placee:
* undertakes to the Placing Agents in consideration of its allocation of a placing
participation to subscribe at the Issue Price for any Placing Shares comprised
in its allocation for which it is required to subscribe pursuant to these terms
and conditions and/or the Placing Letter, subject to clawback of the Open Offer
Shares by Qualifying Shareholders in the Open Offer;
* confirms that it has read this Announcement and has not relied on any
information given or any representations or statements made at any time by any
person in connection with Admission, the Placings, the Company, the New Ordinary
Shares, or otherwise, other than the information contained in this Announcement
or the Draft Prospectus and that in accepting the offer of its placing
participation it will be relying solely on the information contained in this
Announcement or the Draft Prospectus, receipt of which is hereby acknowledged
and undertakes not to redistribute such documents;
* represents and warrants that if it has received any confidential price sensitive
information about the Company in advance of the Placings, it has not (i) dealt
in the securities of the Company; (ii) encouraged or required another person to
deal in the securities of the Company; or (iii) disclosed such information to
any person, prior to the information being made generally available;
* confirms that it has taken or will take all appropriate action required under
the Proceeds of Crime Act 2002 and has complied with the Money Laundering
Regulations 2007 and any other applicable legislation concerning prevention of
money laundering (the "Regulations") and, if it is making payment on behalf of a
third party, it has obtained and recorded satisfactory evidence to verify the
identity of the third party as may be required by the Regulations;
* represents and warrants that it is (i) if in the UK, a person of a kind
described in articles 19(5) or 49(2) of the Financial Services and Markets Act
2000 (Financial Promotion) Order 2005 (as amended) and (ii) entitled to
subscribe for the New Ordinary Shares comprised in its allocation under the laws
of all relevant jurisdictions which apply to it and that it has fully observed
such laws and obtained all governmental and other consents which may be required
thereunder and complied with all necessary formalities;
* represents and warrants that it has only communicated or caused to be
communicated and will only communicate or cause to be communicated any
invitation or inducement to engage in investment activity (within the meaning of
section 21 of FSMA) relating to the Placing Shares in circumstances in which
section 21(1) of FSMA does not require approval of the communication by an
authorised person;
* represents and warrants that it is not acting in concert (within the meaning
given in the City Code on Takeovers and Mergers) with any other Placee or any
other person in relation to the Company;
* represents and warrants that it has complied and will comply with all applicable
provisions of FSMA with respect to anything done by it in relation to the
Placing Shares in, from or otherwise involving the United Kingdom;
* represents and warrants that it has all necessary capacity and has obtained all
necessary consents and authorities to enable it to commit to this participation
and to perform its obligations in relation thereto (including, without
limitation, in the case of any person on whose behalf it is acting, all
necessary consents and authorities to agree to the terms set out or referred to
in this Announcement);
* represents and warrants that it is not, and at the time the Placing Shares are
subscribed for and purchased will not be, subscribing on behalf of a resident of
Australia, Canada, Japan or South Africa;
* represents and warrants that it does not expect the Placing Agents to have any
duties or responsibilities towards it for providing protections afforded to
clients under the Rules of the FSA (the "Rules") or advising it with regard to
the Placing Shares and that it is not, and will not be, a client of any of the
Placing Agents as defined by the Rules. Likewise, any payment by it will not be
treated as client money governed by the Rules;
* represents and warrants that any exercise by the Placing Agents of any right to
terminate the Placing Agreement or of other rights or discretions under the
Placing Agreement or the Placings or the terms of the Placing Letter shall be
within the Placing Agents' absolute discretion and the Placing Agents shall not
have any liability to it whatsoever in relation to any decision to exercise or
not to exercise any such right or the timing thereof;
* represents and warrants that it is not, and it is not applying as nominee(s) or
agent(s) for, a person/person(s) who is (are) or may be a person mentioned in
sections 67, 70, 93 and 96 of the Finance Act 1986 (depositary receipts and
clearance services);
* if it is in the EEA, represents and warrants that it is a qualified investor as
defined in section 86(7) of the FSMA, as amended, being a person falling within
Articles 2.1(e)(i), (ii) or (iii) of Directive 2003/71/EC;
* confirms that the person who it specifies for registration as holder of the
Placing Shares will be (i) the Placee or (ii) a nominee of the Placee, as the
case may be, and acknowledges that the Placing Agents and the Company will not
be responsible for any liability to pay stamp duty or stamp duty reserve tax
resulting from a failure to observe this requirement; it agrees to acquire any
Placing Shares pursuant to the Placings on the basis that the Placing Shares
will be allotted to a CREST stock account of one of the Placing Agents who will
hold them as nominee on behalf of the Placee until settlement in accordance with
its standing settlement instructions with it;
* acknowledges that where it is acquiring Placing Shares for one or more managed
accounts, it represents and warrants that it is authorised in writing by each
managed account to acquire Placing Shares for that managed account;
* if it is a pension fund or investment company, acknowledges that its acquisition
of any Placing Shares is in full compliance with applicable laws and
regulations;
* it has not offered or sold and will not offer or sell any Placing Shares to
persons in the United Kingdom prior to Admission except to persons whose
ordinary activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their business or
otherwise in circumstances which have not resulted and which will not result in
an offer to the public in the United Kingdom within the meaning of section 85(1)
of the FSMA;
* it has not offered or sold and will not offer or sell any New Ordinary Shares to
persons in the EEA prior to Admission except to persons whose ordinary
activities involve them acquiring, holding, managing or disposing of investments
(as principal or agent) for the purpose of their business or otherwise in
circumstances which have not resulted and which will not result in an offer to
the public in any member state of the EEA within the meaning of the Prospectus
Directive (which means Directive 2003/71/EC and includes any relevant
implementing measure in any member state);
* acknowledges that participation in the Placings is on the basis that, for the
purposes of the Placings, it is not and will not be a client of either Merrill
Lynch or Citi UK and that none of Merrill Lynch or Citi UK have any duties or
responsibilities to it for providing the protections afforded to their clients
nor for providing advice in relation to the Placings nor in respect of any
representations, warranties, undertakings or indemnities contained in the
Placing Agreement or the contents of this Announcement;
* acknowledges that any agreements entered into by it pursuant to these terms and
conditions shall be governed by and construed in accordance with the laws of
England and Wales and it submits (on its behalf and on behalf of any Placee on
whose behalf it is acting) to the exclusive jurisdiction of the English courts
as regards any claim, dispute or matter arising out of any such contract, except
that enforcement proceedings in respect of the obligation to make payment for
the Placing Shares (together with any interest chargeable thereon) may be taken
by the Placing Agents in any jurisdiction in which the relevant Placee is
incorporated or in which any of its securities have a quotation on a recognised
stock exchange;
* agrees that the Placing Agents and the Company will rely upon the truth and
accuracy of the foregoing representations and warranties which are irrevocable;
* agrees to fully and effectively indemnify and hold harmless the Company and the
Banks and each of their respective Affiliates (as defined in Rule 501(b) under
the Securities Act) and each person, if any, who controls any Bank within the
meaning of Section 15 of the Securities Act or Section 20 of the US Securities
Exchange Act of 1934, as amended (the "Exchange Act") and any such person's
respective affiliates, subsidiaries, branches, associates and holding companies
and the subsidiaries of such subsidiaries, branches, affiliates, associates and
holding companies, and in each case their respective directors, employees,
officers and agents from and against any and all losses, claims, damages and
liabilities (i) arising from any breach by such Placee of any of the provisions
of this Announcement, the Placing Letter and (ii) incurred by the Banks and/or
the Company arising from the performance of the Placee's obligations as set out
in this Announcement; and
* agrees to indemnify and hold the Company and the Banks harmless from any and all
losses, claims, damages, liabilities and expenses (including legal fees and
expenses) arising out of or in connection with any breach of the
representations, warranties, acknowledgements, agreements and undertakings in
this Announcement and further agrees that the provisions of this Announcement
shall survive after completion of the Capital Raising.
Please also note that the agreement to allot and issue Placing Shares to Placees
(or the persons for whom Placees are contracting as agent) free of stamp duty
and stamp duty reserve tax in the UK relates only to their allotment and issue
to Placees, or such persons as they nominate as their agents, direct from the
Company for the Placing Shares in question. Such agreement assumes that such
Placing Shares are not being acquired in connection with arrangements to issue
depositary receipts or to transfer such Placing Shares into a clearance service.
If there were any such arrangements, or the settlement related to other dealing
in such Placing Shares, stamp duty or stamp duty reserve tax may be payable, for
which neither the Company nor the Placing Agents would be responsible. If this
is the case, it would be sensible for Placees to take their own advice and they
should notify the relevant Bank accordingly. In addition, Placees should note
that they will be liable for any capital duty, stamp duty and all other stamp,
issue, securities, transfer, registration, documentary or other duties or taxes
(including any interest, fines or penalties relating thereto) payable outside
the UK by them or any other person on the acquisition by them of any Placing
Shares or the agreement by them to acquire any Placing Shares.
Selling Restrictions
In taking up an allocation of a placing participation a Placee:
* represents and warrants that it is not a person who has a registered address in,
or is a resident, citizen or national of, a country or countries, in which it is
unlawful to make or accept an offer to subscribe for Placing Shares;
* represents and warrants that, if it is a person (including without limitation,
nominees and trustees of such a person) with a registered address outside the
United Kingdom or a citizen or resident of a country other than the United
Kingdom, it has fully observed and will fully observe the applicable laws of any
relevant territory, including complying with the selling restrictions set out
herein and obtaining any requisite governmental or other consents and it has
fully observed and will fully observe any other requisite formalities and pay
any issue, transfer or other taxes due in such territories;
* confirms that it is a person whose ordinary activities involve it (as principal
or agent) in acquiring, holding, managing or disposing of investments for the
purpose of its business and it undertakes that it will (as principal or agent)
acquire, hold, manage or dispose of any Placing Shares that are allocated to it
for the purposes of its business;
* confirms that it is either (i) outside the United States purchasing in an
offshore transaction pursuant to Regulation S of the Securities Act who will
sign and return the Regulation S Form of Acceptance in the Placing Letter or
(ii) a QIB or purchasing Placing Shares on behalf of a QIB, and who will sign
and return the QIB Form of Acceptance, and who understands (or, if it is acting
for the account of another person, such person has confirmed that such person
understands) that (a) any Placing Shares are "restricted securities" (within the
meaning of Rule 144(a)(3) of the Securities Act), and that, for so long as the
Placing Shares are restricted securities, it will segregate such Placing Shares
from any other shares that it holds that are not restricted securities, will not
deposit the Placing Shares into any unrestricted depositary facility established
or maintained by a depositary bank and will only transfer such Placing Shares in
accordance with Section (b) herein; (b) the Placing Shares may not be reoffered,
resold, pledged or otherwise transferred except (i) in an offshore transaction
in accordance with Rule 903 or 904 of Regulation S under the Securities (ii)
pursuant to Rule 144 under the Securities Act (if available), (iii) in the
United States to QIBs pursuant to Rule 144A under the Securities Act or (iv)
pursuant to an effective registration statement under the Securities Act, and
that in each case, such offer, sale, pledge or transfer must be made in
accordance with all applicable securities laws in the United States; (c) whether
or not it currently holds the Company's American Depositary Receipts ("ADRs"),
it will receive the Placing Shares in the form of ordinary shares and not in the
form of ADRs and (d) until one year after the latest date on which the Placing
Shares are delivered in the Placings (which is currently expected to be 26 June
2009), no depositary will accept deposits of the Placing Shares in the Company's
ADR facility or permit pre-releases of the Company's American Depositary Shares
from its ADR facility unless it (or a broker on its behalf) certifies, among
other things, that the shares to be deposited were not subscribed or purchased
pursuant to the Placings, and that it has not borrowed shares to be deposited
with the intention of replacing them with Placing Shares subscribed or purchased
pursuant to the Placings;
* (a) confirms that it is not registered and is not required to be registered as a
broker or a dealer under the Exchange Act 1934 and that it has not been granted,
nor shall it accept, any selling concession, discount or other allowance from a
participant in the Placings that is a member of the Financial Industry
Regulatory Authority, Inc; and (b) acknowledges that the Placing Agents may
utilize the services of one or more affiliates that are US-registered
broker-dealers to effect the transactions with you contemplated hereby, but any
such broker-dealer will be acting solely as agent and not as principal in
connection with such transactions and will have no responsibility or liability
to me/us or the Placing Agents arising from any failure by either of them to pay
or perform any obligation in connection with this letter or any such
transaction.
* acknowledges that none of the Placing Shares have been or will be registered
under the Securities Act;
* acknowledges that none of the Placing Shares may be offered, sold, taken up or
delivered directly or indirectly, in or into or within the United States except
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act;
* acknowledges and agrees that it is not acquiring any of the Placing Shares as a
result of any form of general solicitation or general advertising (within the
meaning of Rule 502(c) of Regulation D under the Securities Act) or directed
selling efforts (as defined in Regulation S under the Securities Act); and
* represents and warrants it has fully observed the laws of all relevant
jurisdictions which apply to it, obtained all governmental and other consents
which may be required and complied with all relevant formalities and that it has
not taken any action which will or may result in the Company or the Placing
Agents (or any of them) being in breach of a legal or regulatory requirement of
any territory in connection with the Placings and that it has obtained all other
necessary consents and authorities required to enable it to give its commitment
to subscribe for the relevant Placing Shares and to perform its obligations
under the terms contained in this Announcement and in the Placing Letter.
Miscellaneous
If a Placee is entitled to participate in the Open Offer by virtue of being a
Qualifying Placee it will be able to apply to subscribe for Open Offer Shares
under the Open Offer. Any participation by a Qualifying Placee in the Open Offer
will not reduce its commitment in respect of the Firm Placed Shares and Open
Offer Placed Shares that make up that Placee's placing participation. The
Company reserves the right to treat as invalid any application or purported
application for Open Offer Shares that appears to the Company or its agents to
have been executed, effected or dispatched from the United States or an Excluded
Territory or in a manner that may involve a breach of the laws or regulations of
any jurisdiction or if the Company or its agents believe that the same may
violate applicable legal or regulatory requirements or if it provides an address
for delivery of the share certificates of Open Offer Shares or in the case of a
credit of Open Offer Entitlements to a stock account in CREST, to a CREST member
whose registered address would be in a Restricted Territory or the United
States, or any other jurisdiction outside the United Kingdom in which it would
be unlawful to deliver such share certificates of make such a credit.
A Placee shall, and shall procure that its affiliates shall, not enter into any
transaction involving the Company's ordinary shares or securities or derivatives
relating to the Company's ordinary shares (other than derivatives referencing a
sector or market index in which the Company's ordinary shares do not exceed 10
per cent. of the weighting of any such index) that has the economic effect of a
short sale of the Company's ordinary shares or of hedging or otherwise
mitigating the economic risk associated with its placing participation. Without
prejudice to the foregoing sentence, the foregoing restrictions do not apply to
(i) transactions to facilitate client orders from clients that are not
affiliates (other than any independently run asset management affiliates); (ii)
transactions constituting ordinary course market marking activity; (iii)
proprietary positions in the Company's securities or derivatives relating to the
Company's securities entered into by a Placee prior to the date of this
Agreement; and (iv) any transaction undertaken by an independently run asset
management affiliate of a Placee, and any such transactions shall be undertaken
in compliance with applicable securities laws and regulations.
Each Placee agrees to provide the Placing Agents with such relevant documents as
they may reasonably request to comply with requests or requirements from the
Placing Agents resulting from requests that the Company may receive from
relevant regulators in relation to the Placings, subject to its legal,
regulatory and compliance requirements and restrictions.
Times
Unless the context otherwise requires, all references to time are to London
time. All times and dates in this Announcement may be subject to amendment. The
Placing Agents will notify Placees and any persons acting on behalf of the
Placees of any changes.
APPENDIX 2
Expected Timetable
The following is the expected timetable of principal events in relation to the
Capital Raising:
2009
+-------------------------------------------------------+---------------------+
| Record Date for entitlements under the Open Offer | 5.00 p.m. on |
| | Tuesday 2 June |
+-------------------------------------------------------+---------------------+
| Announcement and commencement of the Capital Raising | Thursday 4 June |
+-------------------------------------------------------+---------------------+
| Ex-entitlement date for the Open Offer | 8.00 a.m. on Friday |
| | 5 June |
+-------------------------------------------------------+---------------------+
| Despatch of Prospectus and Circular and, to | Friday 5 June |
| Qualifying Non-CREST Shareholders only, the | |
| Application Forms | |
+-------------------------------------------------------+---------------------+
| Open Offer Entitlements credited to stock accounts of | 8:00 am on Monday 8 |
| Qualifying CREST Shareholders in CREST | June |
+-------------------------------------------------------+---------------------+
| Recommended last time and date for withdrawing Open | 4.30 p.m. on |
| Offer Entitlements from CREST | Tuesday 16 June |
+-------------------------------------------------------+---------------------+
| Latest time and date for depositing Open Offer | 3.00 p.m. on |
| Entitlements into CREST | Wednesday 17 June |
+-------------------------------------------------------+---------------------+
| Latest time and date for splitting Application Forms | 3.00 p.m. on |
| (to satisfy bona fide market claims only) | Thursday 18 June |
+-------------------------------------------------------+---------------------+
| Expected latest time and date for receipt of Forms of | 11.00 a.m. on |
| Proxy and receipt of electronic proxy appointments | Sunday 21 June |
| via the CREST system | |
+-------------------------------------------------------+---------------------+
| Latest time and date for receipt of completed | 11.00 a.m. on |
| Application Forms and payment in full under the Open | Monday 22 June |
| Offer and settlement of relevant CREST instructions | |
| (as appropriate) | |
+-------------------------------------------------------+---------------------+
| General Meeting of Shareholders | 11.00 a.m. on |
| | Tuesday 23 June |
+-------------------------------------------------------+---------------------+
| Expected date of announcement of results of the | 11.00 a.m. on |
| Capital Raising through a Regulatory Information | Tuesday 23 June |
| Service | |
+-------------------------------------------------------+---------------------+
| Expected date of Admission and commencement of | 8.00 a.m. on Friday |
| dealings in New Ordinary Shares on the London Stock | 26 June |
| Exchange and New Ordinary Shares credited to CREST | |
| stock accounts (uncertificated holders only) | |
+-------------------------------------------------------+---------------------+
| Expected date of despatch of definitive share | By Monday 29 June |
| certificates for New Ordinary Shares (to Qualifying | |
| non-CREST Shareholders only) | |
+-------------------------------------------------------+---------------------+
The times and dates set out in the expected timetable of principal events above
and mentioned throughout this document are indicative only and subject to
change. If any of the times and/or dates change, the revised times and/or dates
will be notified by announcement through a Regulatory Information Service.
Different deadlines and procedures may apply in certain cases. For example,
Shareholders that hold their Ordinary Shares through a CREST member or other
nominee may be set earlier deadlines by the CREST member or other nominee than
the times and dates noted above.
Pursuant to the Placing Agreement, the Company and the Banks have agreed that if
a supplementary prospectus is issued by the Company two or fewer Business Days
prior to the date specified in the expected timetable of principal events above
as the expected latest time and date for acceptance and payment in full under
the Open Offer (or such later date as may be agreed by the Company and the
Banks), such date shall be deemed to be the date which is three Business Days
after the date of issue of the supplementary prospectus (and the dates and times
of principal events due to take place following such date will be adjusted
accordingly).
If you have any queries on the procedure for acceptance and payment, you should
contact the Registrar at Equiniti Limited, telephone 0871 384 2766 (from inside
the Untied Kingdom, for which calls are charged at eight pence per minute from a
BT landline, and other telephone provider costs may vary), or +44 121 415 7047
(international calls). The helpline is available between the hours of 8.30 a.m.
and 5.30 p.m. (London time) on Monday to Friday excluding public holidays in the
UK.
APPENDIX 3
DEFINITIONS
In this Announcement the following expressions have the following meaning unless
the context otherwise requires:
+-------------------------+--------------------------------+
| "Admission" | the |
| | admission |
| | of the |
| | New |
| | Ordinary |
| | Shares to |
| | the |
| | Official |
| | List |
| | becoming |
| | effective |
| | in |
| | accordance |
| | with the |
| | Listing |
| | Rules (LR |
| | 3.2.7G) |
| | and of |
| | such |
| | shares to |
| | trading on |
| | the market |
| | for listed |
| | securities |
| | of the |
| | London |
| | Stock |
| | Exchange |
| | becoming |
| | effective |
| | in |
| | accordance |
| | with the |
| | requirements |
| | contained in |
| | paragraph |
| | 2.1 of the |
| | publication |
| | "Admission |
| | and |
| | Disclosure |
| | Standards" |
| | dated |
| | November |
| | 2007, |
| | published by |
| | the London |
| | Stock |
| | Exchange and |
| | as amended |
| | from time to |
| | time |
| | containing |
| | among other |
| | things the |
| | admission |
| | requirements |
| | to be |
| | observed by |
| | companies |
| | seeking |
| | admission to |
| | trading on |
| | the London |
| | Stock |
| | Exchange's |
| | market for |
| | listed |
| | securities. |
+-------------------------+--------------------------------+
| "Announcement" | this |
| | announcement |
| | and the |
| | Appendix. |
+-------------------------+--------------------------------+
| "Application | the |
| Form(s)" | personalised |
| | application |
| | form on |
| | which |
| | Qualifying |
| | Non-CREST |
| | Shareholders |
| | (other than |
| | Qualifying |
| | Non-CREST |
| | Shareholders |
| | with, |
| | subject to |
| | certain |
| | exceptions, |
| | a registered |
| | address in |
| | the United |
| | States or, |
| | the |
| | Restricted |
| | Jurisdictions) |
| | who are |
| | registered on |
| | the register |
| | of members of |
| | the Company |
| | may apply for |
| | Open Offer |
| | Shares under |
| | the Open |
| | Offer. |
+-------------------------+--------------------------------+
| "Articles" | the |
| | articles |
| | of |
| | association |
| | of |
| | Debenhams |
| | plc in |
| | force at |
| | the date of |
| | this |
| | document. |
+-------------------------+--------------------------------+
| "Banks" | Merrill |
| | Lynch, |
| | Citi, |
| | Citi |
| | UK, |
| | Lazard, |
| | Barclays |
| | Capital, |
| | LloydsTSB |
| | Corporate |
| | Markets |
| | and RBS |
| | Hoare |
| | Govett. |
+-------------------------+--------------------------------+
| "Bookbuild" | the |
| | process |
| | through |
| | which |
| | the |
| | Placing |
| | Agents |
| | determine |
| | the |
| | demand |
| | for the |
| | Placing |
| | Shares |
| | and the |
| | Issue |
| | Price. |
+-------------------------+--------------------------------+
| "Business | a |
| Day" | day |
| | (other |
| | than a |
| | Saturday |
| | or |
| | Sunday |
| | and |
| | public |
| | holidays) |
| | on which |
| | banks |
| | generally |
| | are open |
| | for |
| | normal |
| | banking |
| | business |
| | in the |
| | City of |
| | London. |
+-------------------------+--------------------------------+
| "Capital | the |
| Raising" | Firm |
| | Placing |
| | and the |
| | Placing |
| | and |
| | Open |
| | Offer. |
+-------------------------+--------------------------------+
| "Circular" | the |
| | circular |
| | to be |
| | issued |
| | by the |
| | Company |
| | in |
| | connection |
| | with the |
| | General |
| | Meeting |
| | dated 5 |
| | June 2009. |
+-------------------------+--------------------------------+
| "Citi" | Citigroup |
| | Global |
| | Markets |
| | Limited |
| | of |
| | Citigroup |
| | Centre, |
| | 33 Canada |
| | Square, |
| | Canary Wharf, |
| | London E14 |
| | 5LB |
+-------------------------+--------------------------------+
| "Citi | Citigroup |
| UK" | Global |
| | Markets |
| | U.K. |
| | Equity |
| | Limited |
| | of |
| | Citigroup |
| | Centre, |
| | 33 Canada |
| | Square, |
| | Canary Wharf, |
| | London E14 |
| | 5LB |
+-------------------------+--------------------------------+
| "Closing | 26 |
| Date" | June |
| | 2009, |
| | being |
| | the |
| | date |
| | for |
| | settlement |
| | of |
| | subscriptions, |
| | as the case |
| | may be, under |
| | the Capital |
| | Raising, or |
| | such other |
| | date as the |
| | Company and |
| | the Placing |
| | Agents may |
| | agree. |
+-------------------------+--------------------------------+
| "Company" | Debenhams |
| | plc, a |
| | public |
| | limited |
| | company |
| | incorporated |
| | in England |
| | and Wales |
| | with |
| | registered |
| | number |
| | 05448421, |
| | having its |
| | registered |
| | office at 1 |
| | Welbeck |
| | Street, |
| | London W1G |
| | 0AA. |
+-------------------------+--------------------------------+
| "CREST" | the |
| | relevant |
| | system |
| | (as |
| | defined |
| | in the |
| | CREST |
| | Regulations) |
| | for |
| | paperless |
| | settlement |
| | of sale and |
| | purchases of |
| | securities |
| | and the |
| | holding of |
| | shares in |
| | uncertificated |
| | form in |
| | respect of |
| | which |
| | Euroclear UK & |
| | Ireland |
| | Limited is the |
| | operator (as |
| | defined in the |
| | CREST |
| | Regulations). |
+-------------------------+--------------------------------+
| "CREST | the |
| Regulations" | Uncertificated |
| | Securities |
| | Regulations |
| | 2001 (SI 2001 |
| | No. 3755) as |
| | amended from |
| | time to time. |
+-------------------------+--------------------------------+
| "CVC" | CVC |
| | Capital |
| | Partners |
| | SICAV-FIS |
| | S.A. and |
| | its subsidiaries |
| | and affiliates. |
+-------------------------+--------------------------------+
| "Draft | the |
| Prospectus" | draft |
| | of |
| | the |
| | Prospectus |
| | expected |
| | to be |
| | provided |
| | to Placees |
| | on or |
| | around 4 |
| | June 2009. |
+-------------------------+--------------------------------+
| "EBITDA" | EBITDA |
| | is |
| | calculated |
| | as Group |
| | operating |
| | profit |
| | before |
| | deemed |
| | disposal |
| | of |
| | subsidiaries |
| | and before |
| | exceptional |
| | items plus |
| | depreciation |
| | of tangible |
| | fixed |
| | assets, |
| | amortisation |
| | of |
| | intangible |
| | assets plus |
| | profits or |
| | losses on |
| | the disposal |
| | of fixed |
| | assets where |
| | these are |
| | included in |
| | operating |
| | profit. |
+-------------------------+--------------------------------+
| "EBITDAR" | EBITDAR |
| | is |
| | calculated |
| | as Group |
| | operating |
| | profit |
| | before |
| | deemed |
| | disposal |
| | of |
| | subsidiaries |
| | and before |
| | exceptional |
| | items plus |
| | depreciation |
| | of tangible |
| | fixed |
| | assets, |
| | amortisation |
| | of |
| | intangible |
| | assets and |
| | profits or |
| | losses on |
| | the disposal |
| | of fixed |
| | assets where |
| | these are |
| | included in |
| | operating |
| | profit, plus |
| | property |
| | lease rental |
| | costs. |
+-------------------------+--------------------------------+
| "EEA" | the |
| | European |
| | Economic |
| | Area, |
| | being |
| | the |
| | European |
| | Union, |
| | Iceland, |
| | Norway |
| | and |
| | Liechtenstein. |
+-------------------------+--------------------------------+
| "EURIBOR" | the |
| | Euro |
| | Interbank |
| | Offered |
| | Rate. |
+-------------------------+--------------------------------+
| "Existing | the |
| Ordinary | Ordinary |
| Shares" | Shares |
| | in issue |
| | immediately |
| | prior to |
| | the Capital |
| | Raising. |
+-------------------------+--------------------------------+
| "Firm | the |
| Placed | New |
| Shares" | Ordinary |
| | Shares |
| | which |
| | the |
| | Placing |
| | Agents |
| | have |
| | made |
| | arrangements |
| | to place |
| | firm |
| | conditionally |
| | on a non- |
| | pre-emptive |
| | basis with |
| | the Placees, |
| | the number of |
| | which will be |
| | set out in |
| | the Pricing |
| | Supplement. |
+-------------------------+--------------------------------+
| "Firm | the |
| Placing" | conditional |
| | placing to |
| | the Firm |
| | Placees of |
| | the Firm |
| | Placed |
| | Shares. |
+-------------------------+--------------------------------+
| "Form | the |
| of | form |
| Acceptance" | attached |
| | to the |
| | Placing |
| | Letter |
| | by which |
| | Placees |
| | acknowledge |
| | their |
| | acceptance |
| | of the |
| | terms and |
| | conditions |
| | of the |
| | Placing. |
+-------------------------+--------------------------------+
| "Form | the |
| of | form |
| Proxy" | of |
| | proxy |
| | accompanying |
| | the Circular |
| | for use by |
| | the |
| | Shareholders |
| | in respect |
| | of the |
| | General |
| | Meeting. |
+-------------------------+--------------------------------+
| "FSA" | the |
| | Financial |
| | Services |
| | Authority |
| | of the |
| | United |
| | Kingdom. |
+-------------------------+--------------------------------+
| "FSMA" | the |
| | Financial |
| | Services |
| | and |
| | Markets |
| | Act 2000, |
| | as |
| | amended. |
+-------------------------+--------------------------------+
| "General | the |
| Meeting" | general |
| | meeting |
| | of the |
| | Company |
| | convened |
| | for 23 |
| | June 2009 |
| | (including |
| | any |
| | adjournment |
| | thereof), |
| | notice of |
| | which is |
| | set out in |
| | the |
| | Circular. |
+-------------------------+--------------------------------+
| "Issue | the |
| Price" | price |
| | determined |
| | by the |
| | Placing |
| | Agents and |
| | the |
| | Company |
| | for each |
| | Open Offer |
| | Share and |
| | for each |
| | Firm |
| | Placed |
| | Share. |
+-------------------------+--------------------------------+
| "Joint | Citi |
| Book | and |
| Runners" | Merrill |
| | Lynch |
+-------------------------+--------------------------------+
| "Joint | Citi, |
| Sponsors" | Lazard, |
| | Merrill |
| | Lynch |
+-------------------------+--------------------------------+
| "Lazard" | Lazard |
| | & Co., |
| | Limited. |
+-------------------------+--------------------------------+
| "LIBOR" | London |
| | Interbank |
| | Offered |
| | Rate. |
+-------------------------+--------------------------------+
| "Listing | the |
| Rules" | rules |
| | and |
| | regulations |
| | made by the |
| | Financial |
| | Services |
| | Authority |
| | in its |
| | capacity as |
| | the UK |
| | Listing |
| | Authority |
| | under the |
| | Financial |
| | Services |
| | Markets Act |
| | 2000, and |
| | contained |
| | in the UK |
| | Listing |
| | Authority's |
| | publication |
| | of the same |
| | name. |
+-------------------------+--------------------------------+
| "London | London |
| Stock | Stock |
| Exchange" | Exchange |
| | plc. |
+-------------------------+--------------------------------+
| "Memorandum" | the |
| | memorandum |
| | of |
| | association |
| | of |
| | Debenhams |
| | plc. |
+-------------------------+--------------------------------+
| "Merrill | Merrill |
| Lynch" | Lynch |
| | International |
| | of the |
| | Merrill Lynch |
| | Financial |
| | Centre, 2 |
| | King Edward |
| | Street, |
| | London EC1A |
| | 1HQ. |
+-------------------------+--------------------------------+
| "New | the |
| Ordinary | Firm |
| Shares" | Placed |
| | Shares, |
| | the |
| | Open |
| | Offer |
| | Placed |
| | Shares |
| | and/or |
| | the |
| | Open |
| | Offer |
| | Shares, |
| | as the |
| | context |
| | requires |
+-------------------------+--------------------------------+
| "Notice | the |
| of | notice |
| General | of the |
| Meeting" | General |
| | Meeting |
| | set out |
| | in the |
| | Circular. |
+-------------------------+--------------------------------+
| "Official | the |
| List" | Official |
| | List |
| | maintained |
| | by the UK |
| | Listing |
| | Authority |
| | of the FSA |
| | pursuant |
| | to Part VI |
| | of FSMA. |
+-------------------------+--------------------------------+
| "Open | the |
| Offer" | invitation |
| | by the |
| | Company to |
| | Qualifying |
| | Shareholders |
| | to apply for |
| | Open Offer |
| | Shares on |
| | the term and |
| | conditions |
| | set out in |
| | the |
| | Prospectus |
| | and in the |
| | case of |
| | Qualifying |
| | non-CREST |
| | shareholders, |
| | in the |
| | Application |
| | Form. |
+-------------------------+--------------------------------+
| "Open | the |
| Offer | entitlement |
| Entitlement" | of a |
| | Qualifying |
| | Shareholder |
| | to apply |
| | for an Open |
| | Offer Share |
| | for every |
| | specified |
| | number of |
| | Existing |
| | Ordinary |
| | Shares held |
| | by him on |
| | the Record |
| | Date. |
+-------------------------+--------------------------------+
| "Open | the |
| Offer | Open |
| Placed | Offer |
| Shares" | Shares |
| | to be |
| | offered |
| | to the |
| | Placees |
| | in the |
| | Placing |
| | and for |
| | which |
| | valid |
| | applications |
| | are not |
| | received in |
| | the Open |
| | Offer. |
+-------------------------+--------------------------------+
| "Open | the |
| Offer | New |
| Shares" | Ordinary |
| | Shares |
| | which |
| | will be |
| | offered |
| | to |
| | Qualifying |
| | Shareholders |
| | in pursuant |
| | to the Open |
| | Offer. |
+-------------------------+--------------------------------+
| "Ordinary | the |
| Shares or | ordinary |
| Shares" | shares |
| | of 0.01p |
| | each in |
| | the |
| | share |
| | capital |
| | of the |
| | Company. |
+-------------------------+--------------------------------+
| "Placee | investors |
| or | to which |
| Placees" | Firm |
| | Placed |
| | Shares |
| | are to be |
| | placed. |
+-------------------------+--------------------------------+
| "Placing" | the |
| | conditional |
| | placing of |
| | the Open |
| | Offer |
| | Shares to |
| | Placees at |
| | the Issue |
| | Price which |
| | will be |
| | subject to |
| | clawback in |
| | respect of |
| | valid |
| | applications |
| | by |
| | Qualifying |
| | Shareholders |
| | for such New |
| | Ordinary |
| | Shares. |
+-------------------------+--------------------------------+
| "Placing | Merrill |
| Agents" | Lynch |
| | and |
| | Citi |
| | UK. |
+-------------------------+--------------------------------+
| "Placing | the |
| Agreement | placing |
| " | agreement |
| | entered |
| | into |
| | between |
| | the |
| | Company |
| | and the |
| | Banks, in |
| | connection |
| | with the |
| | Capital |
| | Raising. |
+-------------------------+--------------------------------+
| "Placing | the |
| Letter" | letter |
| | which |
| | will |
| | be |
| | provided |
| | to each |
| | Placee |
| | by the |
| | Placing |
| | Agents |
| | by which |
| | Placees |
| | make |
| | required |
| | representations, |
| | warranties, |
| | indemnities, |
| | acknowledgements |
| | and |
| | undertakings, |
| | which the Placee |
| | is obliged to |
| | complete and |
| | sign as formal |
| | acceptance of |
| | its allocation |
| | in the Placings. |
+-------------------------+--------------------------------+
| "Placing | the |
| Shares" | Firm |
| | Placed |
| | Shares |
| | and |
| | the |
| | Open |
| | Offer |
| | Placed |
| | Shares. |
+-------------------------+--------------------------------+
| "Placings" | the |
| | Firm |
| | Placing |
| | and the |
| | Placing. |
+-------------------------+--------------------------------+
| "Pricing | the |
| Supplement" | pricing |
| | supplement |
| | proposed |
| | to be |
| | issued by |
| | the |
| | Company |
| | confirming |
| | the Issue |
| | Price and |
| | the number |
| | of New |
| | Ordinary |
| | Shares. |
+-------------------------+--------------------------------+
| "Prospectus" | the |
| | Prospectus |
| | proposed |
| | to be |
| | published |
| | on 5 June |
| | 2009 by |
| | the |
| | Company |
| | containing |
| | full |
| | details of |
| | the |
| | Capital |
| | Raising, |
| | which will |
| | be made |
| | available |
| | to |
| | Qualifying |
| | Shareholders |
| | eligible to |
| | participate |
| | in the Open |
| | Offer free |
| | of charge, |
| | at the |
| | Company's |
| | registered |
| | office and |
| | on the |
| | Company's |
| | website at |
| | www.debenhamsplc.com. |
+-------------------------+--------------------------------+
| "QIB" | a |
| | qualified |
| | institutional |
| | buyer as |
| | defined in |
| | Rule 144A |
| | under the |
| | Securities |
| | Act. |
+-------------------------+--------------------------------+
| "QIB | a |
| Form | form |
| of | which |
| Acceptance" | will |
| | be |
| | provided |
| | to |
| | Placees |
| | in the |
| | United |
| | States |
| | as an |
| | appendix |
| | to the |
| | Placing |
| | Letter, |
| | which |
| | the |
| | Placee |
| | is |
| | obliged |
| | to |
| | complete |
| | and sign |
| | to |
| | confirm |
| | formal |
| | acceptance |
| | of their |
| | allocation |
| | in the |
| | Placings. |
+-------------------------+--------------------------------+
| "Qualifying | Qualifying |
| CREST | Shareholders |
| Shareholders" | holding |
| | Ordinary |
| | Shares in |
| | uncertificated |
| | form. |
+-------------------------+--------------------------------+
| "Qualifying | Qualifying |
| Non-CREST | Shareholders |
| Shareholders" | holding |
| | Ordinary |
| | Shares in |
| | certificated |
| | form. |
+-------------------------+--------------------------------+
| "Qualifying | a |
| Placee" | Placee |
| | entitled |
| | to |
| | participate |
| | in the Open |
| | Offer by |
| | virtue of |
| | being a |
| | Qualifying |
| | Shareholder. |
+-------------------------+--------------------------------+
| "Qualifying | Shareholders |
| Shareholders" | on the |
| | register of |
| | members of |
| | the Company |
| | at 5.00 p.m. |
| | on the |
| | Record Date. |
+-------------------------+--------------------------------+
| "Record | 5.00 |
| Date" | p.m. |
| | (London |
| | time) |
| | on 2 |
| | June |
| | 2009. |
+-------------------------+--------------------------------+
| "Register" | the |
| | register |
| | of |
| | members |
| | of the |
| | Company. |
+-------------------------+--------------------------------+
| "Regulation | Regulation |
| S" | S under |
| | the |
| | Securities |
| | Act. |
+-------------------------+--------------------------------+
| "Regulation | form |
| S Form of | which |
| Acceptance" | will |
| | be |
| | provided |
| | to |
| | Placees |
| | outside |
| | the |
| | United |
| | States |
| | as an |
| | appendix |
| | to the |
| | Placing |
| | Letter, |
| | which |
| | the |
| | Placee |
| | is |
| | obliged |
| | to |
| | complete |
| | and sign |
| | to |
| | confirm |
| | formal |
| | acceptance |
| | of their |
| | allocation |
| | in the |
| | Placings |
+-------------------------+--------------------------------+
| "Regulatory | one |
| Information | of |
| Service" | the |
| | regulatory |
| | information |
| | services |
| | authorised |
| | by the |
| | Financial |
| | Services |
| | Authority |
| | to receive, |
| | process and |
| | disseminate |
| | regulatory |
| | information |
| | in respect |
| | of listed |
| | companies. |
+-------------------------+--------------------------------+
| "Resolutions" | the |
| | resolutions |
| | to be set |
| | out in the |
| | Notice of |
| | General |
| | Meeting. |
+-------------------------+--------------------------------+
| "Restricted | the |
| Jurisdictions" | Commonwealth |
| | of |
| | Australia, |
| | its |
| | territories |
| | and |
| | possessions, |
| | Japan, the |
| | Republic of |
| | South |
| | Africa, and |
| | Canada, and |
| | "Restricted |
| | Jurisdiction" |
| | means any one |
| | of them. |
+-------------------------+--------------------------------+
| "Securities | the |
| Act" | United |
| | States |
| | Securities |
| | Act of |
| | 1933, as |
| | amended. |
+-------------------------+--------------------------------+
| "Shareholder" | holder |
| | of |
| | Ordinary |
| | Shares. |
+-------------------------+--------------------------------+
| "Supplementary | any |
| Prospectus" | supplement |
| | to the |
| | Prospectus |
| | published |
| | by the |
| | Company |
| | pursuant |
| | to section |
| | 87G of |
| | FSMA. |
+-------------------------+--------------------------------+
| "TPG" | Texas |
| | Pacific |
| | Group. |
+-------------------------+--------------------------------+
| "UK | the |
| Listing | FSA |
| Authority" | acting |
| | in its |
| | capacity |
| | as the |
| | competent |
| | authority |
| | under |
| | Part VI |
| | of the |
| | Act. |
+-------------------------+--------------------------------+
| "United | the |
| Kingdom | United |
| or UK" | Kingdom |
| | of |
| | Great |
| | Britain |
| | and |
| | Northern |
| | Ireland, |
| | its |
| | territories |
| | and |
| | dependencies |
+-------------------------+--------------------------------+
| "United | the |
| States" | United |
| | States |
| | of |
| | America, |
| | its |
| | territories |
| | and |
| | possessions |
| | and any |
| | state of |
| | the United |
| | States and |
| | the |
| | District of |
| | Columbia. |
+-------------------------+--------------------------------+
| "VAT" | value |
| | added |
| | tax. |
+-------------------------+--------------------------------+
This information is provided by RNS
The company news service from the London Stock Exchange
END
MSCCKQKPPBKKKAK
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