14th Jan 2009 17:03
14 January 2009
HMV GROUP PLC (THE "COMPANY")
THIS ANNOUNCEMENT, INCLUDING THE APPENDIX, IS NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED STATES, CANADA, AUSTRALIA, SOUTH AFRICA OR JAPAN
HMV ANNOUNCES A PROPOSED PLACING OF UP TO 5% OF ITS ISSUED SHARE CAPITAL
The Company announces its intention to conduct a non-pre-emptive placing of up to approximately 20m new ordinary shares of one pence each ("Placing Shares"), representing up to five per cent. of the Company's existing issued share capital (the "Placing").
The Company's major shareholders have already indicated significant support for the offering.
The Placing, for which Citigroup Global Markets U.K. Equity Limited and Nomura International plc are acting as joint brokers and joint placing agents (the "Joint Brokers"), will be the subject of an accelerated bookbuild which will be launched immediately following this Announcement.
Proceeds of the Placing will be used to fund HMV's entry into the fast growing live music market and the acquisition of 14 Zavvi stores from the administrators (the "Transactions") as set out in an announcement made today by the Company and, together with its recently agreed £220m bank facility to 2011, will provide for the maintenance of a strong and prudent balance sheet.
Placing Details
The books will open with immediate effect. The books are expected to close no later than 10 a.m. tomorrow, 15 January 2009, and pricing and allocations are expected to be announced shortly thereafter. The timing of the closing of the books, pricing and allocations may be accelerated or delayed at the sole discretion of the Joint Brokers (but shall not extend beyond 21 January 2009). A single placing price in respect of the Placing Shares (the "Placing Price") will be determined by the Company and the Joint Brokers at the close of the bookbuilding process.
The Joint Brokers have, on and subject to the terms and conditions set out in the Placing Agreement (as defined in the Appendix), agreed as agent for and on behalf of the Company, to use their reasonable endeavours to procure Placees for the Placing Shares at the Placing Price. The Joint Brokers will not be acting as underwriters and will not be underwriting the Placing. The obligations of the Joint Brokers under the Placing Agreement are conditional upon, inter alia:
(a) the Company having complied with all its obligations under the Placing Agreement to the extent that the same fall to be performed prior to Admission;
(b) admission taking place not later than the day which is 5 business days after the date of this agreement or such later date as is agreed between the Company and the Joint Brokers; and
(c) none of the warranties contained in the Placing Agreement being untrue or inaccurate or misleading at the date of this Announcement or becoming untrue or inaccurate or misleading at any time between the date of this Announcement and Admission by reference to the facts and circumstances from time to time subsisting.
The Placing Shares will rank pari passu in all respects with the existing ordinary shares of the Company, including the right to receive all future dividends and other distributions declared, made or paid after the date of issue of the Placing Shares except that holders of the Placing Shares shall not be entitled to the interim dividend of 1.8 pence that is to be paid, to holders of the existing ordinary shares of the Company, on 2 February 2009.
Application will be made for the Placing Shares to be admitted to the Official List of the Financial Services Authority and to be admitted to trading by the London Stock Exchange plc on its market for listed securities ("Admission"). Admission is expected to take place on 20 January 2009.
Attention is drawn to the detailed terms and conditions of the Placing described in the Appendix to this Announcement.
Enquiries
HMV Group plc
Simon Fox Group Chief Executive 020 7404 5959
Neil Bright Group Finance Director 020 7404 5959
Paul Barker Director of Corporate Communication 020 7404 5959
Citigroup Global Markets U.K. Equity Limited
Andrew Seaton 020 7986 4000
Patrick Evans
Nomura International Plc
Adrian Clegg 020 7102 1000
Ed Matthews
This Announcement is for information purposes only and does not constitute an offer or invitation to acquire or dispose of any securities or investment advice in any jurisdiction.
The Joint Brokers, each of whom is authorised and regulated by the Financial Services Authority, are acting exclusively for the Company and for no one else solely in connection with the Placing and will not be responsible to anyone other than the Company for providing the protections afforded to the customers of each of the Joint Brokers or for providing advice in relation to the Placing.
Past performance is no guide to future performance and persons needing advice should consult an independent financial adviser.
This Announcement (including the Appendix) does not constitute an offer to sell or issue or the solicitation of an offer to buy or subscribe for Placing Shares in the United States, Canada, Japan, South Africa or Australia or in any other jurisdiction in which such offer or solicitation is or may be unlawful and the information contained herein is not for publication or distribution to persons in the United States, Canada, Japan, South Africa or Australia or any jurisdiction in which such publication or distribution is unlawful. Any failure to comply with these restrictions may constitute a violation of US, Canadian, Japanese, South African or Australian securities laws. Persons receiving this Announcement (including, without limitation, custodians, nominees and trustees) must not distribute, mail or send it in, into or from the United States, or use the United States mails, directly or indirectly, in connection with the Placing, and by so doing may invalidate any related purported application for Placing Shares. The Placing Shares have not been and will not be registered under the US Securities Act of 1933, as amended (the "Securities Act") or under the securities laws of any state or other jurisdiction of the United States, and may not be offered or sold, resold or delivered, directly or indirectly in or into the United States. No public offering of the Placing Shares is being made in the United States. The Placing Shares are being offered and sold outside the United States only in reliance on Regulation S under the Securities Act. No money, securities or other consideration from any person inside the United States is being solicited and, if sent in response to the information contained in this Announcement, will not be accepted. The Placing Shares have not been and will not be registered with any regulatory authority of any state within the United States.
Until the expiration of 40 days after the closing of the Placing, an offer or sale of the Placing Shares within the United States by a dealer whether or not participating in the Placing may violate the registration requirements of the Securities Act if such offer or sale is made otherwise than in accordance with an exemption from the registration requirements of the Securities Act.
APPENDIX, TERMS AND CONDITIONS OF THE PLACING
THIS ANNOUNCEMENT, INCLUDING THIS APPENDIX (TOGETHER, "THIS ANNOUNCEMENT"), IS NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED STATES, CANADA, AUSTRALIA, SOUTH AFRICA OR JAPAN
IMPORTANT INFORMATION ON THE PLACING FOR PLACEES ONLY
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING. THIS ANNOUNCEMENT AND THE TERMS AND CONDITIONS SET OUT HEREIN 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 WHO FALL WITHIN ARTICLE 19(5) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER 2005, AS AMENDED (THE "ORDER") OR ARE PERSONS WHO FALL WITHIN ARTICLE 49(2)(A) TO (D) ("HIGH NET WORTH COMPANIES, UNINCORPORATED ASSOCIATIONS, ETC") OF THE ORDER OR TO WHOM IT MAY OTHERWISE LAWFULLY BE COMMUNICATED (ALL SUCH PERSONS TOGETHER BEING REFERRED TO AS "RELEVANT PERSONS"). THIS ANNOUNCEMENT AND THE TERMS AND CONDITIONS SET OUT HEREIN MUST NOT BE ACTED ON OR RELIED ON BY PERSONS WHO ARE NOT RELEVANT PERSONS. PERSONS DISTRIBUTING THIS ANNOUNCEMENT MUST SATISFY THEMSELVES THAT IT IS LAWFUL TO DO SO. ANY INVESTMENT OR INVESTMENT ACTIVITY TO WHICH THIS 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 DOES NOT ITSELF CONSTITUTE AN OFFER FOR SALE OR SUBSCRIPTION OF ANY SECURITIES IN HMV GROUP PLC (THE "COMPANY"). THE NEW ORDINARY SHARES THAT ARE THE SUBJECT OF THE PLACING (THE "PLACING SHARES") ARE NOT BEING OFFERED OR SOLD TO ANY PERSON IN THE UNITED KINGDOM, OTHER THAN TO QUALIFIED INVESTORS ("QUALIFIED INVESTORS") AS DEFINED IN SECTION 86(7) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000 ("FSMA"), BEING PERSONS FALLING WITHIN ARTICLE 2.1(E)(i), (ii) OR (iii) OF DIRECTIVE 2003/71/EC (THE "PROSPECTUS DIRECTIVE"). THE PLACING SHARES REFERRED TO HEREIN HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE US SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR UNDER ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD IN THE UNITED STATES EXCEPT PURSUANT TO AN EXEMPTION FROM, OR AS A PART OF A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND THE SECURITIES LAWS OF ANY APPLICABLE STATE ABSENT REGISTRATION. THE PLACING SHARES ARE BEING OFFERED AND SOLD OUTSIDE THE UNITED STATES ONLY IN RELIANCE ON REGULATION S UNDER THE SECURITIES ACT.
Persons who are invited to and who choose to participate in the Placing by making an oral offer to acquire Placing Shares, will be deemed to have read and understood this Announcement in its entirety and to be making such offer on the terms and conditions, and to be providing the representations, warranties, acknowledgements and undertakings, contained in this Appendix. In particular, each such Placee represents, warrants and acknowledges that:
(a) it is a Relevant Person and undertakes that it will acquire, hold, manage or dispose of any Placing Shares that are allocated to it for the purposes of its business;
(b) it is acquiring the Placing Shares for its own account or is acquiring the Placing Shares for an account with respect to which it exercises sole investment discretion and in either case not with a view to, or for resale in connection with, the distribution thereof, in whole or in part, in the United States and that it (and any such account) is outside the United States and is not a resident of the United States and is acquiring the Placing Shares in an "offshore transaction", within the meaning of Regulation S under the Securities Act;
(c) it will not engage in any "directed selling efforts" (as defined in Regulation S under the Securities Act) with respect to the Placing Shares; and
(d) in the case of a Relevant Person in a member state of the EEA which has implemented the Prospectus Directive (each a "Relevant Member State") who acquires any Placing Shares pursuant to the Placing:
(i) it is a Qualified Investor; and
(ii) in the case of any Placing Shares acquired by it as a financial intermediary, as that term is used in Article 3(2) of the Prospectus Directive:
(A) the Placing Shares acquired by it in the Placing have not been acquired on behalf of, nor have they been acquired with a view to their offer or resale to, persons in any Relevant Member State other than Qualified Investors or in circumstances in which the prior consent of the Joint Brokers has been given to the offer or resale; or
(B) where Placing Shares have been acquired by it on behalf of persons in any member state of the EEA other than Qualified Investors, the offer of those Placing Shares to it is not treated under the Prospectus Directive as having been made to such persons.
This written Announcement is not an offer of securities for sale or a solicitation of any offer to purchase securities in the United States. Placing Shares may not be offered or sold in the United States absent registration under the Securities Act or an exemption therefrom. The Company has not and does not intend to register any securities under the Securities Act and does not intend to offer any securities to the public in the United States. No money, securities or other consideration from any person inside the United States is being solicited and, if sent in response to the information contained in this Announcement, will not be accepted.
This Announcement does not constitute an offer to sell or issue or the solicitation of an offer to buy or subscribe for Placing Shares in the United States, Canada, Japan, South Africa or Australia or in any other jurisdiction in which such offer or solicitation is or may be unlawful and the information contained herein is not for publication or distribution to persons in the United States, Canada, Japan, South Africa or Australia or any jurisdiction in which such publication or distribution is unlawful. Any failure to comply with these restrictions may constitute a violation of US, Canadian, Japanese, South African or Australian securities laws. Persons receiving this Announcement (including, without limitation, custodians, nominees and trustees) must not distribute, mail or send it in, into or from the United States, or use the United States mails, directly or indirectly, in connection with the Placing, and by so doing may invalidate any related purported application for Placing Shares. The Placing Shares have not been and will not be registered under the Securities Act or under the securities laws of any state or other jurisdiction of the United States, and may not be offered or sold, resold or delivered, directly or indirectly in or into the United States. No public offering of the Placing Shares is being made in the United States. The Placing Shares are being offered and sold outside the United States only in reliance on Regulation S under the Securities Act. No money, securities or other consideration from any person inside the United States is being solicited and, if sent in response to the information contained in this Announcement, will not be accepted. The Placing Shares have not been and will not be registered with any regulatory authority of any state within the United States. Until the expiration of 40 days after the closing of the Placing, an offer or sale of the Placing Shares within the United States by a dealer whether or not participating in the Placing may violate the registration requirements of the Securities Act if such offer or sale is made otherwise than in accordance with an exemption from the registration requirements of the Securities Act.
The distribution of this Announcement and the Placing and/or issue of the Placing Shares in certain jurisdictions may be restricted by law. No action has been taken by HMV Group plc (the "Company") or Citigroup Global Markets U.K. Equity Limited and Nomura International Plc (the "Joint Brokers") that would permit an offer of Placing Shares or possession or distribution of this Announcement or any other offering or publicity material relating to such Placing Shares in any jurisdiction where action for that purpose is required. Persons to whose attention this Announcement is drawn are required by the Company and the Joint Brokers to inform themselves about and to observe any such restrictions.
Details of the Placing Agreement and the Placing Shares
The Joint Brokers have today entered into a placing agreement (the "Placing Agreement") with the Company. Pursuant to the Placing Agreement, the Joint Brokers have, on and subject to the terms and conditions set out therein, agreed as agents for and on behalf of the Company, to use their reasonable endeavours to procure Placees for the Placing Shares.
The Placing Shares will, when issued, be credited as fully paid and will rank pari passu in all respects with the existing issued ordinary shares of one pence per share in the capital of the Company (the "Ordinary Shares"), including the right to receive all dividends and other distributions declared, made or paid on or in respect of the Ordinary Shares after the date of issue of the Placing Shares except that holders of the Placing Shares shall not be entitled to the interim dividend of 1.8 pence that is to be paid to holders of Ordinary Shares on 2 February 2009.
The allotment and issue of the Placing Shares will be made by the Company to Placees procured by the Joint Brokers (acting as agent for the Company).
In this Appendix, unless the context otherwise requires, "Placee" means a person (including individuals, funds or others) on whose behalf a commitment to acquire Placing Shares has been given.
Application for Listing and Admission to Trading
Application will be made to the Financial Services Authority (the "FSA") for admission of the Placing Shares to the Official List of the FSA (the "Official List") and to London Stock Exchange plc (the "London Stock Exchange") for admission to trading of the Placing Shares on the London Stock Exchange's market for listed securities (together "Admission"). It is expected that Admission will become effective at 8 a.m. on 20 January 2009 and that dealings in the Placing Shares will commence at that time.
Bookbuild
Commencing today the Joint Brokers are conducting an accelerated bookbuilding process (the "Bookbuilding Process") to determine demand for participation in the Placing. This Appendix gives details of the terms and conditions of, and the mechanics of participation in, the Placing. No commissions will be paid to Placees or by Placees in respect of any Placing Shares.
The Joint Brokers will be entitled to effect the Placing by such alternative method to the Bookbuilding Process as they may in their sole discretion determine. To the fullest extent permissible by law, neither the Joint Brokers nor any holding company thereof, nor any subsidiary, branch or affiliate of the Joint Brokers or any such holding company (each an "Affiliate") shall have any liability to Placees (or to any other person whether acting on behalf of a Placee or otherwise) in connection with the Placing or the Bookbuilding Process or such alternative method to effect the Placing. In particular, neither the Joint Brokers nor any Affiliate thereof shall have any liability in respect of its conduct of the Bookbuilding Process or of such alternative method of effecting the Placing as the Joint Brokers may determine.
Participation in, and Principal Terms of, the Bookbuilding Process
By participating in the Bookbuilding Process and the Placing, Placees will be deemed to have read and understood this Announcement in its entirety and to be participating and making an offer for Placing Shares on the terms and conditions, and to be providing the representations, warranties, acknowledgements and undertakings, contained in this Appendix. A further announcement will be made following the close of the Bookbuilding Process detailing the number of Placing Shares and the Placing Price (as defined below) at which the Placing Shares are being placed (the "Pricing Announcement").
The Joint Brokers (whether through themselves or their Affiliates) are arranging the Placing 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 Joint Brokers. The Joint Brokers and their Affiliates are entitled to participate as principal in the Bookbuilding Process.
The Bookbuilding Process will establish the number of placing shares and a single price (the "Placing Price") payable to the Joint Brokers by all Placees. 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 VI of the FSMA.
The Bookbuilding Process is expected to close no later than tomorrow, 15 January 2009, at 10 a.m. but at the sole discretion of the Joint Brokers the timing of the closing of the books, pricing and allocations may be accelerated or delayed (but shall not extend beyond 21 January 2009).
A bid in the Bookbuilding Process will be made on the terms and conditions in this Appendix and will not be capable of variation or revocation after the close of the Bookbuilding Process.
Any person who wishes to participate in the Bookbuilding Process should communicate their bid by telephone to their usual sales contact at the relevant Joint Broker. If successful, an allocation will be confirmed orally to such person following the close of the Bookbuilding Process, and a conditional contract note will be despatched as soon as possible thereafter. The relevant Joint Broker's oral confirmation will constitute an irrevocable legally binding commitment upon such person (who will at that point become a Placee) to acquire the number of Placing Shares allocated to that Placee at the Placing Price set out in the Pricing Announcement and otherwise on the terms and conditions set out in this Appendix and in accordance with the Company's Memorandum and Articles of Association.
The Company will make the Pricing Announcement following the close of the Bookbuilding Process detailing the number of Placing Shares to be issued and the price at which such Placing Shares have been placed.
If a Placee chooses to participate in the Placing by making an oral and legally binding offer to acquire Placing Shares such Placee will be deemed to have read and understood this Announcement in its entirety (including this Appendix) and to be making such offer on the terms and conditions contained herein and to be providing the representations and acknowledgements contained in this Appendix.
Each Placee's obligations will be owed to the Company and to the Joint Brokers. Each Placee will also have an immediate, separate, irrevocable and binding obligation, owed to the relevant Joint Broker, to pay to it (or as it may direct) in cleared funds an amount equal to the product of the Placing Price and the number of Placing Shares that such Placee has agreed to acquire.
All obligations under the Placing will be subject to fulfilment of the conditions referred to below under "Conditions of the Placing".
To the fullest extent permissible by law, neither of the Joint Brokers nor any of their Affiliates shall have any liability to Placees (or to any other person whether acting on behalf of a Placee or otherwise). In particular, neither of the Joint Brokers nor any of their Affiliates shall have any liability (including, to the extent permissible by law, any fiduciary duties) in respect of the Joint Brokers' conduct of the Bookbuilding Process or of such alternative method of effecting the Placing as the Joint Brokers may determine.
Conditions of the Placing
The Placing is conditional upon the Placing Agreement becoming unconditional and not having been terminated in accordance with its terms.
The obligations of the Joint Brokers under the Placing Agreement are conditional upon, inter alia:
(a) the Company having complied with all its obligations under the Placing Agreement to the extent that the same fall to be performed prior to Admission;
(b) Admission taking place not later than 8.00 a.m. on the day which is 5 business days after the date of this agreement or such later date as is agreed between the Company and the Joint Brokers; and
(c) none of the warranties contained in the Placing Agreement being untrue or inaccurate or misleading at the date of this Announcement or becoming untrue or inaccurate or misleading at any time between the date of this Announcement and Admission by reference to the facts and circumstances from time to time subsisting.
If (a) any of the conditions contained in the Placing Agreement is not fulfilled or waived in writing by both of the Joint Brokers by the respective time or date specified (or such later time or date not being later than 8.00 a.m. on the date which is 5 business days after the date of the Placing Agreement as the Joint Brokers may both agree), (b) any such condition becomes incapable of being fulfilled and either of the Joint Brokers informs the Company that it will not waive such condition or (c) the Placing Agreement is terminated in the circumstances specified below, the Placing will lapse and the Placees' rights and obligations hereunder shall cease and terminate at such time and each Placee agrees that no claim can be made by or on behalf of the Placee (or any person on whose behalf the Placee is acting) in respect thereof.
By participating in the Bookbuilding Process, each Placee agrees that its rights and obligations cease and terminate only in the circumstances described above and under "Right to terminate the Placing Agreement" below and will not be capable of rescission or termination by it.
The Joint Brokers may, at their discretion and upon such terms as they think fit, waive compliance by the Company with, or extend the time and/or date for fulfilment by the Company of, the whole or any part of any of the Company's obligations in relation to the conditions in the Placing Agreement, save that, inter alia, condition (b) above will not be waived. Any such extension or waiver will not affect Placees' commitments pursuant to this Announcement.
Neither the Company nor the Joint Brokers 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 it may make as to whether or not to waive or to extend the time and/or date for the satisfaction of any condition to the Placing nor for any decision it may make as to the satisfaction of any condition or in respect of the Placing generally.
Right to Terminate the Placing Agreement
Either of the Joint Brokers may, at any time before Admission, terminate the Placing Agreement in accordance with the terms of the Placing Agreement in certain circumstances, including the occurrence of certain force majeure events or material adverse changes in the financial markets or financial condition of the Company, as more particularly described in the Placing Agreement.
If the obligations of either of the Joint Brokers under the Placing Agreement are terminated in accordance with its terms, the rights and obligations of each Placee in respect of the Placing as described in this Announcement shall cease and terminate at such time and no claim can be made by any Placee in respect thereof.
By participating in the Placing each Placee agrees with the Joint Brokers that the exercise by either of the Joint Brokers of any right of termination or other discretion under the Placing Agreement shall be within the absolute discretion of the Joint Brokers and that each of the Joint Brokers need not make any reference to any such Placee and that the neither of the Joint Brokers shall have any liability whatsoever to any such Placee (or to any other person whether acting on behalf of a Placee or otherwise) in connection with the exercise of such rights.
No Prospectus
No prospectus has been or will be submitted to be approved by the FSA in relation to the Placing and Placees' commitments will be made solely on the basis of the information contained in this Announcement and the Exchange Information (as defined below). Each Placee, by participating in the Placing, agrees that the content of this Announcement, the Pricing Announcement and the announcement in connection with the Transactions released earlier today is exclusively the responsibility of the Company and confirms that it has neither received nor relied on any other information (other than the Exchange Information), representation, warranty, or statement made by or on behalf of the Joint Brokers or the Company and neither of the Joint Brokers nor the Company will be liable for any Placee's decision to participate in the Placing based on any other information, representation, warranty or statement which the Placees may have obtained or received. Each Placee acknowledges and agrees that it has relied on its own investigation of the business, financial or other position of the Company in participating in the Placing and with respect to the Placing Shares. Nothing in this paragraph shall exclude the liability of any person for fraudulent misrepresentation.
Registration and Settlement
Settlement of transactions in the Placing Shares (ISIN: GB0031575722) following Admission will take place within the CREST system, subject to certain exceptions. The Joint Brokers 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 or practicable within the CREST system within the timetable set out in this Announcement or would not be consistent with the regulatory requirements in any Placee's jurisdiction.
Each Placee allocated Placing Shares in the Placing will be sent a trade confirmation stating the number of Placing Shares allocated to it, the Placing Price, the aggregate amount owed by such Placee to the relevant Joint Broker and settlement instructions. Citigroup Global Markets U.K. Equity Limited is acting as agent and nominee for the Placees and Placees should settle against CREST ID: 636. It is expected that such trade confirmation will be despatched no later than tomorrow, 15 January 2009 and that this will also be the trade date. Each Placee agrees that it will do all things necessary to ensure that delivery and payment is completed in accordance with either the standing CREST or certificated settlement instructions which it has in place with the Joint Brokers.
It is expected that settlement will be on 20 January 2009 in accordance with the instructions set out in the trade confirmation.
Interest is chargeable daily on payments not received from Placees on the due date in accordance with the arrangements set out above at the rate of two percentage points above prevailing LIBOR as determined by the relevant Joint Broker.
Each Placee is deemed to agree that if it does not comply with these obligations, the relevant Joint Broker may sell any or all of the Placing Shares allocated to that Placee on such Placee's behalf and retain from the proceeds, for the relevant Joint Broker's account and benefit, an amount equal to the aggregate amount owed by the Placee plus any interest due. The relevant Placee will, however, remain liable for any shortfall between the net proceeds of such sale and the placing proceeds of such Placing Shares and may be required to bear any stamp duty or stamp duty reserve tax (together with any interest or penalties due pursuant to the terms set out or referred to in this Announcement) which may arise upon the sale of such Placee's Placing Shares on its behalf.
If Placing Shares are to be delivered to a custodian or settlement agent, Placees should ensure that the trade confirmation is copied and delivered immediately to the relevant person within that organisation.
Insofar as Placing Shares are registered in a Placee's name or that of its nominee or in the name of any person for whom a Placee is contracting as agent or that of a nominee for such person, such Placing Shares should, subject as provided below, be so registered free from any liability to UK stamp duty or stamp duty reserve tax. No Placee (or any nominee or other agent acting on behalf of a Placee) will be entitled to receive any fee or commission in connection with the Placing.
Representations and Warranties
By participating in the Bookbuilding Process, each Placee (and any person acting on such Placee's behalf):
1 represents and warrants that it has read this Announcement in its entirety and acknowledges that participation in the Placing will be governed by the terms of this Announcement;
2 represents and warrants that it has received this Announcement solely for its use and has not redistributed or duplicated it;
3 represents and warrants that it has not received a prospectus or other offering document in connection with the Placing and acknowledges that no prospectus or other offering document has been prepared in connection with the Placing;
4 acknowledges that the Ordinary Shares are listed on the Official List, and the Company is therefore required to publish certain business and financial information in accordance with the rules and practices of the FSA (collectively, the "Exchange Information"), which includes a description of the nature of the Company's business and the Company's most recent balance sheet and profit and loss account, and similar statements for preceding financial years;
5 acknowledges that neither of the Joint Brokers nor any of their Affiliates nor any person acting on behalf of the Joint Brokers or their Affiliates has provided, and will not provide it, with any material regarding the Placing Shares or the Company other than this Announcement; nor has it requested the Joint Brokers, any of their Affiliates or any person acting on behalf of the Joint Brokers or any of their Affiliates to provide it with any such information;
6 acknowledges that the content of this Announcement is exclusively the responsibility of the Company and that neither the Joint Brokers, nor any of their Affiliates nor any person acting on behalf of the Joint Brokers or their Affiliates have or shall have any liability for any information, representation or statement contained in this Announcement or any information previously published by or on behalf of the Company (including, but not limited to, the announcement made earlier today by the Company in connection with the Transactions) and will not be liable for any Placee's decision to participate in the Placing based on any information, representation or statement contained in this Announcement or otherwise. Each Placee represents, warrants and agrees that the only information on which it is entitled to rely and on which such Placee has relied in committing to acquire the Placing Shares is contained in this Announcement and any Exchange Information, such information being all that it deems necessary to make an investment decision in respect of the Placing Shares and that it has relied on its own investigation with respect to the Placing Shares and the Company in connection with its decision to acquire the Placing Shares and acknowledges that it is not relying on any investigation that the Joint Brokers, any of their Affiliates or any person acting on behalf of the Joint Brokers or their Affiliates may have conducted with respect to the Placing Shares or the Company and none of such persons has made any representations to it, express or implied, with respect thereto;
7 acknowledges that it has not relied on any information relating to the Company contained in any documents prepared by the Joint Brokers, any of their Affiliates or any person acting on behalf of the Joint Brokers or their Affiliates and understands that neither the Joint Brokers, nor any of their Affiliates nor any person acting on behalf of the Joint Brokers or their Affiliates: (i) has or shall have any liability for public information or any representation; (ii) has or shall have any liability for any additional information that has otherwise been made available to such Placee, whether at the date of publication, the date of the announcement or otherwise; or (iii) makes any representation or warranty, express or implied, as to the truth, accuracy or completeness of such information, whether at the date of publication, the date of the announcement or otherwise;
8 represents and warrants that it, or the beneficial owner, as applicable, is entitled to acquire Placing Shares under the laws of all relevant jurisdictions which apply to it, or the beneficial owner, as applicable, and that it has fully observed such laws and obtained all such governmental and other guarantees and other consents in either case which may be required thereunder and complied with all necessary formalities;
9 represents and warrants that it has the power and authority to carry on the activities in which it is engaged, to acquire the Placing Shares and to execute and deliver all documents necessary for such acquisition;
10 represents and warrants that either it will be the beneficial owner of such Placing Shares or that the beneficial owner of such Placing Shares will not at the time the Placing Shares are acquired be a resident of Australia, Canada, South Africa or Japan;
11 acknowledges that the Placing Shares have not been and will not be registered under the Securities Act or under the securities laws of any of the States of the United States, or under the securities legislation of Australia, Canada, South Africa or Japan and may not be offered, sold, taken up, renounced or delivered or transferred, directly or indirectly, within those jurisdictions;
12 represents and warrants that it is acquiring the Placing Shares for its own account or is acquiring the Placing Shares for an account with respect to which it exercises sole investment discretion and in either case not with a view to, or for resale in connection with, the distribution thereof, in whole or in part, in the United States and that it (and any such account) is outside the United States and is not a resident of the United States and is acquiring the Placing Shares in an "offshore transaction", within the meaning of Regulation S under the Securities Act;
13 represents and warrants that if it is a pension fund or investment company, its purchase of Placing Shares is in full compliance with applicable laws and regulations;
14 represents and warrants that the allocation, allotment, issue and delivery to it, or the person specified by it for registration as holder, of Placing Shares will not give rise to a liability under any of sections 67, 70, 93 or 96 of the Finance Act 1986 (depositary receipts and clearance services) and that the Placing Shares are not being acquired by it in connection with arrangements to issue depositary receipts or to transfer Placing Shares into a clearance system;
15 represents and warrants that it has complied with its obligations in connection with money laundering and terrorist financing under the Proceeds of Crime Act 2002, the Terrorism Act 2003 and the Money Laundering Regulations 2003 (the "Regulations") and, if making payment on behalf of a third party, that satisfactory evidence has been obtained and recorded by it to verify the identity of the third party as required by the Regulations;
16 represents and warrants that it and any person acting on its behalf is a person falling within Article 19(5) and/or 49(2) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005, as amended, and undertakes that it will acquire, hold, manage or dispose of any Placing Shares that are allocated to it for the purposes of its business;
17 represents and warrants that 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;
18 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 the FSMA) relating to the Placing Shares in circumstances in which section 21(1) of the FSMA does not require approval of the communication by an authorised person;
19 represents and warrants that it has not offered or sold and will not offer or sell any Placing Shares to persons in the European Economic Area 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 any member state of the European Economic Area within the meaning of the Prospectus Directive (which means Directive 2003/71/EC and includes any relevant implementing measure in any member state);
20 represents and warrants that it is a qualified investor as defined in section 86(7) of the FSMA, being a person falling within Article 2.1(e)(i), (ii) or (iii) of the Prospectus Directive;
21 represents and warrants that it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Placing Shares in, from or otherwise involving the United Kingdom;
22 represents and warrants that it and any person acting on its behalf is entitled to acquire the Placing Shares under the laws of all relevant jurisdictions and that it has all necessary capacity and has obtained all necessary consents and authorities to enable it to commit to participating in the Placing and to perform its obligations in relation thereto (including, without limitation, in the case of any person on whose behalf it is acting, all necessary consent and authorities to agree to the terms set out or referred to in this Announcement) and will honour such obligations;
23 undertakes that it (and any person acting on its behalf) will make payment for the Placing Shares allocated to it in accordance with this Announcement on the due time and date set out herein, failing which the relevant Placing Shares may be placed with other acquirers or sold as the Joint Brokers may in their sole discretion determine and it will remain liable for any shortfall below the net proceeds of such sale and the placing proceeds of such Placing Shares and may be required to bear any stamp duty or stamp duty reserve tax (together with any interest or penalties due pursuant to the terms set out or referred to in this Announcement) which may arise upon the sale of such Placee's Placing Shares on its behalf;
24 acknowledges that neither of the Joint Brokers, nor any of their Affiliates nor any person acting on behalf of the Joint Brokers or their Affiliates is making any recommendations to it, advising it regarding the suitability of any transactions it may enter into in connection with the Placing nor providing advice in relation to the Placing nor in respect of any representations, warranties, undertakings or indemnities contained in the Placing Agreement nor the exercise or performance of any of the Joint Brokers' rights and obligations thereunder including any rights to waive or vary any conditions or exercise any termination right;
25 undertakes that the person who it specifies for registration as holder of the Placing Shares will be (i) itself or (ii) its nominee, as the case may be. Neither the Joint Brokers nor the Company will be responsible for any liability to stamp duty or stamp duty reserve tax resulting from a failure to observe this requirement. Each Placee and any person acting on behalf of such Placee agrees to participate in the Placing and it agrees to indemnify the Company and the Joint Brokers in respect of the same on the basis that the Placing Shares will be credited to the CREST stock account of Citigroup Global Markets U.K. Equity Limited (CREST ID: 636) who will hold them as nominee for the Placees of such shares until settlement in accordance with its standing settlement instructions;
26 acknowledges that any agreements entered into by it pursuant to these terms and conditions shall be governed by and construed in all respects in accordance with English law and it submits (on behalf of itself and on behalf of any person on whose behalf it is acting) to the exclusive jurisdiction of the courts of England 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 Company or the Joint Brokers 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;
27 acknowledges that each of the Joint Brokers may (at its absolute discretion) itself agree to become a Placee in respect of some or all of the Placing Shares or by nominating any connected or associated person to do so;
28 agrees that the Company, the Joint Brokers and others will rely upon the truth and accuracy of the foregoing representations, warranties, acknowledgements and undertakings which are given to the Joint Brokers on their own behalf and on behalf of the Company and are irrevocable; and
29 agrees to indemnify and hold the Company and the Joint Brokers harmless from any and all costs, claims, liabilities and expenses (including legal fees and expenses) arising out of or in connection with any breach of the representations, warranties, acknowledgements and undertakings in this Appendix and further agrees that the provisions of this Appendix shall survive after completion of the Placing.
No UK stamp duty or stamp duty reserve tax should be payable to the extent that the Placing Shares are issued into CREST to, or to the nominee of, a Placee who holds those shares beneficially (and not as agent or nominee for any other person) within the CREST system and registered in the name of such Placee or such Placee's nominee provided that the Placing Shares are not issued to a person whose business is or includes issuing depositary receipts or the provision of clearance services or to an agent or nominee for any such person.
Any arrangements to issue or transfer the Placing Shares into a depositary receipts system or a clearance service or to hold the Placing Shares as agent or nominee of a person to whom a depositary receipt may be issued or who will hold the Placing Shares in a clearance service, or any arrangements subsequently to transfer the Placing Shares, may give rise to UK stamp duty and/or stamp duty reserve tax, for which neither the Company nor the Joint Brokers will be responsible and the Placee to whom (or on behalf of whom, or in respect of the person for whom it is participating in the Placing as an agent or nominee) the allocation, allotment, issue or delivery of Placing Shares has given rise to such UK stamp duty or stamp duty reserve tax undertakes to pay such UK stamp duty or stamp duty reserve tax forthwith and to indemnify on an after-tax basis and to hold harmless the Company and the Joint Brokers in the event that any of the Company and/or either of the Joint Brokers has incurred any such liability to UK stamp duty or stamp duty reserve tax.
In addition, Placees should note that they will be liable to pay 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 for any Placing Shares or the agreement by them to acquire any Placing Shares.
All times and dates in this Announcement may be subject to amendment. The Joint Brokers shall notify the Placees and any person acting on behalf of the Placees of any changes.
This Announcement has been issued by the Company and is the sole responsibility of the Company.
When a Placee or person acting on behalf of the Placee is dealing with the Joint Brokers, any money held in an account with either of the Joint Brokers on behalf of the Placee and/or any person acting on behalf of the Placee will not be treated as client money within the meaning of the rules and regulations of the Financial Services Authority made under the FSMA. The Placee acknowledges that the money will not be subject to the protections conferred by the client money rules; as a consequence, this money will not be segregated from the relevant Joint Broker's money in accordance with the client money rules and will be used by the relevant Joint Broker in the course of its own business; and the Placee will rank only as a general creditor of the relevant Joint Broker.
The Joint Brokers both of whom are authorised and regulated by the Financial Services Authority, are acting exclusively for the Company and for no one else in connection with the Placing and will not be responsible to anyone other than the Company for providing the protections afforded to the customers of the Joint Brokers or for providing advice in relation the Placing.
Past performance is no guide to future performance and persons needing advice should consult an independent financial adviser.
Related Shares:
Hmv Group