9th Sep 2009 17:46
THIS ANNOUNCEMENT IS NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED STATES OR ANY OTHER JURISDICTION IN WHICH OFFERS OR SALES WOULD BE PROHIBITED BY APPLICABLE LAW
9 September 2009
STATEMENT RE ARCANDOR AG'S STAKE IN THOMAS COOK GROUP PLC AND PROPOSED PLACING
On 30 July 2009, Bayern LB, Commerzbank and The Royal Bank of Scotland, the key lenders in Arcandor AG's lending syndicates, announced that they were considering their options in respect of the 43.9% stake in Thomas Cook Group plc ("the Stake") currently (directly or indirectly) held by Arcandor AG which was granted as security to Bayern LB as security agent for and on behalf of the lending syndicates in respect of lending commitments under certain facilities agreements and against which the security agent, acting on behalf of the lenders, can take enforcement action following default by Arcandor AG under such facilities agreements.
Further to that announcement, Bayern LB today announces, as security agent, on behalf of the lending syndicate, that it will be procuring the sale of the Stake.
Bayern LB, as security agent, has appointed Commerzbank Aktiengesellschaft ("Commerzbank"), RBS Hoare Govett Limited ("RBS Hoare Govett") and UBS Investment Bank, (together the "Bookrunners") as joint Bookrunners on an accelerated bookbuild of the Stake subject to demand, price and market conditions (the "Placing").
The total number of ordinary shares to be sold in the Placing and the placing price will be decided at the close of the accelerated bookbuilding, and a further announcement will be made at that time.
The books for the Placing will open with immediate effect. Pricing and allocations are expected to be announced as soon as practicable following the closing of the books. The timing of closing of the books will be at the absolute discretion of the Bookrunners
Enquiries:
Commerzbank, Tel: +44 (0)20 7475 6789
Aline Burgmann
RBS Hoare Govett, Tel: +44 (0)20 678 8000
Nicholas Haag
Alex Reynolds
UBS Investment Bank, Tel: +44 (0)20 7567 8000
Christopher Smith
Nick Bishop
General
This announcement has been issued by and is the sole responsibility of BLB.
This announcement and the information contained herein is for information purposes only and does not constitute or form part of any offer or solicitation to acquire, subscribe for or dispose of any securities in the capital of the Company in the United States, Australia, Canada or Japan or in any other jurisdiction in which such an offer or invitation is unlawful. Neither this announcement nor any copy of it may be taken, transmitted or distributed, directly or indirectly, in or into the United States, Australia, Canada, or Japan or in any jurisdiction in which such publication or distribution is unlawful. Any failure to comply with this restriction may constitute a violation of United States, Australian, Canadian, Japanese or other applicable securities laws.
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, sold or transferred in the United States absent registration under or pursuant to an exemption from, or in a transaction not subject to the registration requirements of, the Securities Act and the securities laws of any State or other jurisdiction of the United States. There will be no public offering of securities in the United States or elsewhere.
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 Ordinary Share for the current or future financial years would necessarily match or exceed the historical published earnings per Ordinary Share.
Any investment decision to buy securities in the Placing must be made solely on the basis of publicly available information which has not been independently verified by the Company, BLB or any of the Banks. No representation or warranty, express or implied, is or will be made as to, or in relation to, and no responsibility or liability is or will be accepted by any of the Company, BLB or the Banks or by any of their respective affiliates or agents as to or in relation to, the accuracy or completeness of this announcement or any other written or oral information made available to or publicly available to any interested party or its advisers, and any liability therefore is expressly disclaimed.
This announcement is not intended to provide the basis of any credit or other evaluation and should not be considered as a recommendation by any of the Company, BLB or any of the Banks or any of their respective affiliates or agents that any recipient of this announcement should purchase the Placing Shares. Each potential purchaser of the Placing Shares should determine for itself the relevance of the information contained in this document and its purchase of the Placing Shares should be based upon such investigation as it deems necessary.
The contents of this document are not to be construed as legal, business, investment or tax advice. Each prospective investor should consult its own legal, financial, investment or tax adviser for legal, financial, investment or tax advice.
The price of shares and the income from them may go down as well as up and investors may not get back the full amount invested on disposal of the Placing Shares.
The distribution of this announcement and the offering or sale of the Placing Shares in certain jurisdictions may be restricted by law. No action has been taken by the Company, BLB, the Banks or any of their respective affiliates that would, or which is intended to, permit (i) a public offer of the Placing Shares in any jurisdiction or (ii) 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 Company, BLB and the Banks to inform themselves about and to observe any such restrictions.
RBS Hoare Govett Limited, which is authorised and regulated in the United Kingdom by the FSA, is acting exclusively for BLB and no one else in connection with the Placing, and will not be responsible to anyone other than BLB for providing the protections offered to customers of RBS Hoare Govett Limited nor for providing advice in relation to the Placing or any other matter referred to herein.
UBS Limited, which is authorised and regulated in the United Kingdom by the FSA, is acting exclusively for BLB and no one else in connection with the Placing, and will not be responsible to anyone other than BLB for providing the protections offered to customers of UBS Limited nor for providing advice in relation to the Placing or any other matter referred to herein.
Commerzbank AG, London Branch is authorised by Bundesanstalt für Finanzdienstleistungsaufsicht (BaFin) and subject to limited regulation by the Financial Services Authority. Details on the extent of our regulation by the Financial Services Authority are available from us on request. Commerzbank AG is acting exclusively for BLB and no one else in connection with the Placing, and will not be responsible to anyone other than BLB for providing the protections offered to customers of Commerzbank nor for providing advice in relation to the Placing or any other matter referred to herein.
APPENDIX: TERMS AND CONDITIONS OF THE PLACING
Important Information for Placees only regarding the Placing
PLACING FOR INVITED PLACEES ONLY
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING. THIS APPENDIX 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 ARE (1) QUALIFIED INVESTORS AS DEFINED IN SECTION 86(7) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000 ("FSMA"), BEING PERSONS FALLING WITHIN THE MEANING OF ARTICLE 2.1(e)(i), (ii) OR (iii) OF DIRECTIVE 2003/71/EC (THE "PROSPECTUS DIRECTIVE") ("QUALIFIED INVESTORS") AND (2) IN THE UNITED KINGDOM, 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 (ALL SUCH PERSONS TOGETHER BEING REFERRED TO AS "RELEVANT PERSONS").
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 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 APPENDIX DOES NOT ITSELF CONSTITUTE AN OFFER FOR SALE OR SUBSCRIPTION OF ANY SECURITIES IN THE COMPANY.
This announcement and any offer if made subsequently is only addressed to and directed at persons in member states of the European Economic Area ("EEA") who are Qualified Investors.
By participating in the Bookbuilding and the Placing, Placees will be deemed to have read and understood this announcement in its entirety, including the Appendix, to be participating, making an offer and acquiring Placing Shares subject to and based on the terms and conditions contained herein and to be providing the representations, warranties, acknowledgements and undertakings contained herein.
In particular, each such Placee represents, warrants and acknowledges to BLB and the Banks that:
1. 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;
2. 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, (i) 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 Banks has been given to the offer or resale; or (ii) 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;
3. it is acquiring the Placing Shares for its own account or is acquiring the Placing Shares for an other account with respect to which it exercises sole investment discretion and has the authority to make and does make the acknowledgements, representations and agreements contained in this appendix and that it (and any such account) is outside the United States or it is a dealer or other professional fiduciary in the United States acting on a discretionary basis for non-US beneficial owners (other than an estate or trust), in reliance upon Regulation S under the US Securities Act of 1933, as amended (the "Securities Act"); and
4. it is entitled to purchase the Placing Shares under the laws of all relevant jurisdictions which apply to it and that the purchase of the Placing Shares will be in compliance with applicable laws and regulations in the jurisdiction of its residence, the residence of the Company or otherwise with regard to any resale of any Placing Shares.
This announcement (including this Appendix) does not constitute or form part of any offer to issue or sell, or the solicitation of an offer to subscribe for or acquire, Placing Shares in any jurisdiction including, without limitation, Australia, Canada, Japan or the United States. This announcement and the information contained herein is not for publication or distribution, in whole or in part, directly or indirectly, to persons in Australia, Canada, Japan, or the United States or in any jurisdiction in which such publication or distribution is unlawful. No action has been or will be taken by any of BLB, the Banks or any person acting on behalf of any of BLB or the Banks that would, or is intended to, permit a public offer of the Placing Shares in any country or jurisdiction where any such action for that purpose is required.
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, sold or transferred 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 the securities laws of any State or other jurisdiction of the United States. There will be no public offering of securities in the United States or elsewhere. The Placing Shares are being offered and sold outside the United States in accordance with Regulation S under the Securities Act.
The distribution of this announcement and the offering or sale of the Shares in certain jurisdictions may be restricted by law. No action has been taken by BLB, the Banks or any of their respective affiliates that would, or which is intended to, permit (i) a public offer of the Placing Shares in any jurisdiction or (ii) 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 BLB and the Banks to inform themselves about and to observe any such restrictions.
No prospectus
No prospectus or other offering document has been or will be submitted to be approved by the FSA in relation to the Placing and the Placees' commitments will be made solely on the basis of the information contained in this announcement and any information publicly announced to a Regulatory Information Service by or on behalf of the Company prior to the date of this announcement (the "Publicly Available Information"), for which none of BLB or the Banks accept any responsibility. Each Placee, by participating in the Placing, 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 Banks, BLB or the Company and none of the Banks, BLB nor any person acting on such person's behalf nor any of their Affiliates has or shall have any liability for any Placee's decision to accept this invitation to participate in the Placing based on any other information, representation, warranty or statement. Each Placee acknowledges and agrees that it has relied on its own investigation of the business, financial, trading or other position of the Company in accepting a participation in the Placing. Nothing in this paragraph shall exclude the liability of any person for fraudulent misrepresentation.
Details of the Placing Agreement and the Placing Shares
The Banks have entered into a placing agreement (the "Placing Agreement") with BLB under which the Banks have undertaken, on the terms and subject to the conditions set out in the Placing Agreement, as an agent for and on behalf of BLB, to use their reasonable endeavours to seek to procure Placees for the Placing Shares.
Bookbuilding
The Banks will today commence the Bookbuilding to determine demand for participation in the Placing by Placees.
The Banks and BLB shall be entitled to effect the Placing by such alternative method to the Bookbuilding as they may, in their sole discretion, determine.
Principal terms of the Bookbuilding and Placing
1. Participation in the Placing will only be available to persons who may lawfully be, and are, invited to participate by the Banks. Each of the Banks is entitled to enter bids in the Bookbuilding.
2. The Bookbuilding will establish a single price (the "Placing Price") payable to the Banks by all Placees whose bids are successful. The Placing Price will be agreed between the Banks and BLB following completion of the Bookbuilding. The Placing Price will be announced (the "Pricing Announcement") on a Regulatory Information Service following the completion of the Bookbuilding.
3. To bid in the Bookbuilding, Placees should communicate their bid by telephone to their usual sales contact at Commerzbank, RBS Hoare Govett or UBS. Each bid should state the number of Placing Shares which a prospective Placee wishes to acquire at either the Placing Price which is ultimately established by BLB and the Banks or at prices up to a price limit specified in its bid. Bids may be scaled down by the Banks on the basis referred to in paragraph 8 below. Each of the Banks is arranging the Placing severally, and not jointly or jointly and severally, as agent for and on behalf of BLB.
4. The timing of the closing of the Bookbuilding is at the discretion of the Banks and BLB. The Banks may, in agreement with BLB, accept bids that are received after the Bookbuilding has closed.
5. If you choose to participate in the Placing by making an oral and legally binding offer to acquire Placing Shares you 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.
6. Allocations will be confirmed orally by the Banks as soon as practicable following the close of the Bookbuilding. The relevant Bank's oral confirmation of an allocation will give rise to a legally binding commitment by the Placee concerned, in favour of the relevant Bank and BLB, under which it agrees to acquire the number of Placing Shares allocated to it on the terms and subject to the conditions set out in this Appendix.
7. BLB will make the Pricing Announcement following the close of the Bookbuilding detailing the number of Placing Shares to be sold and the price at which such Placing Shares have been placed.
8. Subject to paragraphs 6 and 7 above, the Banks may choose to accept bids, either in whole or in part, on the basis of allocations determined at their discretion and may scale down any bids for this purpose on such basis as they may determine. They may also, notwithstanding paragraphs 6 and 7 above (a) allocate Placing Shares after the time of any initial allocation to any person submitting a bid after that time and (b) allocate Placing Shares after the Bookbuilding has closed to any person submitting a bid after that time.
9. Allocations will be confirmed in writing by the Banks by no later than 11.59 p.m. (London time) on 11 September 2009.
10. A bid in the Bookbuilding will be made on the terms and subject to the conditions in this Appendix and will be legally binding on the Placee on behalf of which it is made and, except with the relevant Bank's consent, will not be capable of variation or revocation after the time at which it is submitted. Each Placee will have an immediate, separate, irrevocable and binding obligation, owed to the relevant Bank and BLB, to pay to it (or as it may direct) in sterling in cleared funds an amount equal to the product of the Placing Price and the amount of Placing Shares such Placee has agreed to acquire. Each Placee's obligations will be owed to BLB and to the relevant Bank.
11. Irrespective of the time at which a Placee's allocation(s) pursuant to the Placing is/are confirmed, settlement for all Placing Shares to be acquired pursuant to the Placing will be required to be made at the same time, on the basis explained below under "Settlement".
12. All obligations under the Bookbuilding and the Placing will be subject to fulfilment of, amongst others, the conditions referred to below under "Conditions of the Placing" and to the Placing not being terminated on the basis referred to below under "Termination of the Placing".
13. By participating in the Bookbuilding each Placee will agree that its rights and obligations in respect of the Placing will terminate only in the circumstances described below and will not be capable of rescission or termination by the Placee.
14. To the fullest extent permissible by law, none of the Banks nor any of its Affiliates shall have any liability to Placees (or to any other person whether acting on behalf of a Placee or otherwise). In particular, none of the Banks nor any of their Affiliates shall have any liability (including, to the extent permissible by law, any fiduciary duties) in respect of the Banks' conduct of the Bookbuilding or of such alternative method of effecting the Placing as the Banks and BLB may agree.
Settlement
RBS Hoare Govett and UBS are acting as settlement agents to the Placing. BLB has undertaken that it will, prior to 9.00 a.m. (London time) on the Settlement Date, procure the transfer of the Placing Shares to the CREST accounts of RBS Hoare Govett and UBS (in proportions required to fulfil allocation requirements) (on behalf of themselves and each of the other Banks) as nominees for the relevant members of the Arcandor AG group pending payment being made in respect of the Placing Shares.
If Placees are allocated any Placing Shares in the Placing, they will be sent a contract note or electronic confirmation which will confirm the number of Placing Shares allocated to them, the Placing Price and the aggregate amount owed by them to the relevant Bank. 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 Bank.
Settlement of transactions in the Placing Shares following the Settlement Date will take place within the CREST system. Settlement through CREST will be on a T + 3 basis unless otherwise notified by the Banks and is expected to occur on 15 September 2009. Settlement will be on a delivery versus payment basis. However, in the event of any difficulties or delays in the use of CREST in relation to the Placing, BLB and the Banks may agree that the Placing Shares should be transferred in certificated form. The Banks reserve the right to require settlement for the Placing Shares, and to deliver the Placing Shares to Placees, by such other means as they deem necessary if delivery or settlement to Placees is not practicable within the CREST system or would not be consistent with regulatory requirements in a Placee's jurisdiction.
Stamp duty or stamp duty reserve tax will be payable in relation to the sale of the Placing Shares, for which each Placee will be responsible. 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 United Kingdom 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.
Interest is chargeable daily on payments not received on the due date in accordance with the arrangements set out above, in respect of either CREST or certificated deliveries, at the rate of 2 percentage points above prevailing LIBOR.
If Placees do not comply with their obligations, the relevant Bank may sell their Placing Shares on their behalf and retain from the proceeds, for its own account and benefit, an amount equal to the Placing Price of each Placing Share sold plus any interest due. Placees will, however, remain liable for any shortfall below the Placing Price and for any stamp duty or stamp duty reserve tax (together with any interest or penalties) which may have arisen when the relevant Placee purchased their Placing Shares.
If Placing Shares are to be delivered to a custodian or settlement agent, Placees must ensure that, upon receipt, the conditional contract note is copied and delivered immediately to the relevant person within that organisation.
In the event that a Placee defaults on its payment obligations and fails to make payment of the aggregate amount owed by them to the relevant Bank in respect of the number of Placing Shares allocated to them, the Banks will not purchase such Placing Shares in place of that Placee.
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 Placing is conditional on, among other things, prior to the Settlement Date, there having been no material adverse change in the management, business, financial conditions or results of operations of the Company or of the Group as a whole.
If the conditions in the Placing Agreement are not satisfied or waived in accordance with the Placing Agreement within the stated time periods (or such later time and/or date as BLB and the Banks may agree), or the Placing Agreement is terminated in accordance with its terms, the Placing will lapse and the Placee's rights and obligations 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, each Placee agrees that its rights and obligations cease and terminate only in the circumstances described above and under "Termination of the Placing" below and will not be capable of rescission or termination by it.
The Banks may waive compliance by BLB, or extend the time and/or date for fulfilment by BLB, with the whole or any part of any of BLB's obligations in relation to the conditions in the Placing Agreement. Any such extension or waiver will not affect Placees' commitments as set out in this Appendix.
None of the Banks nor any of their Affiliates nor BLB 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 any of them 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 any of them may make as to the satisfaction of any condition or in respect of the Placing generally.
Termination of the Placing
Notwithstanding anything contained in this Announcement, the Banks may by notice to BLB given at any time on or prior to the Settlement Date, terminate the Placing Agreement if any of the conditions have not been satisfied, extended or waived by the Banks.
If the Placing Agreement is terminated in accordance with its terms, the parties shall be released and discharged (except for any liability arising before or in relation to such termination) from their respective obligations under or pursuant to the Placing Agreement.
Representations and further terms
By submitting a bid in the Bookbuilding, each prospective Placee (and any person acting on such Placee's behalf) represents, warrants, acknowledges and agrees that:
1. it has read this announcement (including this Appendix) in its entirety and that its purchase of the Placing Shares is subject to and based upon all the terms, conditions, representations, warranties, acknowledgements, agreements and undertakings and other information contained herein;
2. it has not received a prospectus or other offering document in connection with the Placing and acknowledges that no disclosure, prospectus or other offering document has been prepared in connection with the Placing;
3. it acknowledges (i) that the Ordinary Shares of the Company are listed on the London Stock Exchange, (ii) that the Company is therefore required to publish certain business and financial information in accordance with the rules and practices of the London Stock Exchange (the "Exchange Information") which includes a description of the Company's business and the Company's financial information, including the most recent balance sheets and income statements and similar statements for preceding financial years, and (iii) that it is able to obtain or access the Exchange Information, which constitutes Publicly Available Information;
4. (i) it has made its own assessment of the Company, the Placing Shares and the terms of the Placing based on Publicly Available Information and will make its own investment decision to acquire the Placing Shares, (ii) none of the Banks, BLB, their respective Affiliates or the Company has made any representation to it, express or implied, with respect to the Company, the Placing or the Placing Shares or the accuracy, completeness or adequacy of the Publicly Available Information, (iii) it may not rely, and has not relied, on any investigation that any of the Banks, BLB or any person acting on its or their behalf may have conducted with respect to the Placing Shares or the Company, (iv) it has made its own investigation of the business, results, prospects, creditworthiness, status, financial and other position of the Company and the terms of the Placing, satisfied itself that the information is still current and relied on that investigation for the purposes of its decision to participate in the Placing, (v) it has made its own assessment and have satisfied itself concerning the relevant tax, legal, currency and other economic consideration relevant to its investment in the Placing Shares, and (vi) it has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of its prospective investment in the Placing Shares.
5. it understands that the next reporting event in which the Company will provide Exchange information will be its pre close trading update in respect of the year ended 30 September 2009 and the Banks have not, and will not, provide any assurances that there will not be an adverse material reaction to such Exchange information disclosure;
6. it acknowledges and agrees that it will not hold the Banks or any of their Affiliates of their respective directors, officers, employees, agents, partners or professional advisers responsible for any direct, indirect or inconsequential loss or damage suffered by any person as a result of relying on any statement in, or any misstatement in or omission from, any Publicly Available Information, including the Exchange Information, concerning the Company.
7. the content of this announcement is exclusively the responsibility of BLB and that neither of the Banks nor any person acting on their behalf is responsible for or has or shall have any liability for any information or representation relating to the Company or BLB contained in this announcement or the Publicly Available Information nor will be liable for any Placee's decision to participate in the Placing based on any information, representation, warranty or statement contained in this announcement, the Publicly Available Information or otherwise. Nothing in this Appendix shall exclude any liability of any person for fraudulent misrepresentation;
8. each of it and the beneficial owner of the Placing Shares is, and at the time the Placing Shares are acquired will be, (i) not in the United States or (ii) acquiring the Placing Shares in an 'offshore transaction' in accordance with Rule 903 or Rule 904 of Regulation S under the Securities Act, and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Placing Shares, has adequate means of providing for its current and contingent needs, is able to bear the economic risk of an investment in the Placing Shares, is able to sustain a complete loss of the investment in the Placing Shares and has no need for liquidity with respect to its investment in the Placing Shares and represents and, in the case of (ii) above, warrants that it is acquiring the Placing Shares for its own account or for one or more accounts as to each of which it exercises sole investment discretion and for investment purposes and not with a view to any distribution (within the meaning of the United States securities laws) or for resale in connection with, the distribution thereof in whole or in part, in the United States;
9. the Placing Shares have not been registered or otherwise qualified, and will not be registered or otherwise qualified, for offer and sale nor will a prospectus be cleared in respect of any of the Placing Shares under the securities laws of Australia, Canada, Japan or the United States and, subject to certain exceptions, may not be offered, sold, taken up, renounced or delivered or transferred, directly or indirectly, within Australia, Canada, Japan or the United States;
10. it and/or each person on whose behalf it is participating:
(i) is entitled to acquire Placing Shares pursuant to the Placing under the laws of all relevant jurisdictions;
(ii) has fully observed such laws;
(iii) has capacity and authority and is entitled to enter into and perform its obligations as an acquirer of Placing Shares and will honour such obligations; and
(iv) has obtained all necessary consents and authorities (including, without limitation, in the case of a person acting on behalf of a Placee, all necessary consents and authorities to agree to the terms set out or referred to in this Appendix) under those laws or otherwise and complied with all necessary formalities;
11 the Placing Shares have not and will not be registered under the Securities Act, or under the securities laws of any state of the United States, and are being offered and sold to it on behalf of BLB in an offshore transaction that is not subject to the registration requirements of the Securities Act in reliance on Regulation S under the Securities Act;
12. it will not reoffer, sell, pledge or otherwise transfer the Placing Shares except (i) in an offshore transaction in accordance with Regulation S under the Securities Act; or (ii) in the United States pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act;
13. it acknowledges that where it is acquiring the Placing Shares for one or more managed accounts, it represents and warrants that it is authorised in writing by each managed account to acquire the Placing Shares for each managed account;
14. the Banks are acting exclusively for BLB and no one else in connection with the Placing, and will not be responsible to anyone other than BLB for providing the protections offered to their respective clients nor for providing advice in relation to the Placing.
15. it will make payment to the Banks in accordance with the terms and conditions of this announcement on the due times and dates set out in this announcement, failing which the relevant Placing Shares may be placed with others (or the Banks) on such terms as the Banks determine;
16. 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. The Banks and BLB will not be responsible for any liability to stamp duty or stamp duty reserve tax resulting from a failure to observe this requirement. It agrees to acquire Placing Shares pursuant to the Placing on the basis that the Placing Shares will be allotted to a CREST stock account of the relevant Bank who will hold them as nominee on behalf of the Placee until settlement in accordance with its standing settlement instructions with it;
17. the allocation and delivery to it, or the person specified by it for registration as holder, of Placing Shares will not give rise to a stamp duty or stamp duty reserve tax liability under (or at a rate determined under) any of sections 67, 70, 93 or 96 of the Finance Act 1986 (depository receipts and clearance services) and that it is not participating in the Placing as nominee or agent for any person or persons to whom the allocation or delivery of Placing Shares would give rise to such a liability;
18. it and any person acting on its behalf falls 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 and (if applicable) dispose of any Placing Shares that are allocated to it for the purposes of its business only;
19. it has not offered or sold and will not offer or sell any Placing Shares to persons in the United Kingdom prior to the Settlement Date 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;
20. it is a qualified investor as defined in section 86(7) of FSMA, being a person falling within Article 2.1(e)(i), (ii) or (iii) of the Prospectus Directive;
21. it has only communicated or caused to be communicated and it 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 Placing Shares in circumstances in which section 21(1) of the FSMA does not require approval of the communication by an authorised person;
22. it has complied and it will comply with all applicable provisions of the FSMA with respect to anything done by it or on its behalf in relation to the Placing Shares in, from or otherwise involving the United Kingdom;
23. it has not offered or sold and will not offer or sell any Placing Shares to persons in the EEA prior to the Settlement Date 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);
24. it has complied with its obligations in connection with money laundering and terrorist financing under the Proceeds of Crime Act 2002, the Terrorism Act 2000, 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;
25. BLB, the Banks and their respective Affiliates and others will rely upon the truth and accuracy of the foregoing representations, warranties, acknowledgements and agreements; it agrees that if any of the representations, warranties, agreements or acknowledgements made herein are no longer accurate, it shall promptly notify the Banks;
26. the Placing Shares will be transferred subject to the terms and conditions of this Appendix; and
27. this Appendix and all documents into which this Appendix is incorporated by reference or otherwise validly forms a part will be governed by and construed in accordance with English law. All agreements to acquire Placing Shares pursuant to the Bookbuilding and/or the Placing will be governed by English law and the English courts shall have exclusive jurisdiction in relation thereto except that proceedings may be taken by BLB or the Banks 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.
By participating in the Placing, each Placee (and any person acting on such Placee's behalf) agrees to indemnify and hold BLB and the Banks harmless from and against 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, agreements and undertakings in this Appendix and further agrees that the provisions of this Appendix shall survive after completion of the Bookbuilding and / or the Placing.
The representations, warranties, acknowledgements and undertakings contained in this Appendix are given to each of the Banks for themselves and on behalf of BLB and are irrevocable.
The Banks are acting exclusively for BLB and no-one else in relation to the Bookbuilding and the Placing and will not be responsible to any person (including Placees) other than BLB for providing the protections afforded to their respective clients or for providing advice in relation to the Bookbuilding or the Placing or in relation to the contents of this announcement or any other transaction, arrangement or matter referred to herein.
Each Placee and any person acting on behalf of the Placee acknowledges that none of the Banks owes any fiduciary or other duties to any Placee in respect of any representations, warranties or undertakings in the Placing Agreement.
Each Placee and any person acting on behalf of the Placee acknowledges and agrees that each of the Banks may (at its absolute discretion) satisfy its obligations to procure Placees by itself agreeing 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.
When a Placee or any person acting on behalf of the Placee is dealing with any of the Banks, any money held in an account with either Bank 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 relevant rules and regulations of the FSA which therefore will not require the Banks to segregate such money, as that money will be held by it under a banking relationship and not as trustee.
Past performance is no guide to future performance and persons needing advice should consult an independent financial adviser.
All times and dates in this announcement may be subject to amendment. The relevant Bank will notify Placees and any persons acting on behalf of the Placees of any changes.
Definitions
In this Appendix:
Affiliate means, as defined in rule 501(b) of Regulation D or Rule 405 under the Securities Act, a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified;
Banks means Commerzbank, RBS Hoare Govett and UBS;
BLB means Bayerische Landesbank;
Bookbuilding means the bookbuilding procedure to be carried out by the Banks in connection with the Placing;
Commerzbank means Commerzbank Aktiegesellschaft;
Company means Thomas Cook Group plc;
FSA means the Financial Services Authority;
FSMA means the Financial Services and Markets Act 2000, as amended;
Group means the Company and its subsidiary undertakings and associates;
LIBOR means The London Interbank Offered Rate;
London Stock Exchange means London Stock Exchange plc;
Ordinary Shares means ordinary shares of € 0.10 each in the capital of the Company;
Placees means persons (including individuals, funds, corporations or others) on whose behalf a commitment to acquire Placing Shares has been given and Placee means any one of them;
Placing means the placing of the Placing Shares by the Banks with institutional and other investors on behalf of BLB;
Placing Agreement means the agreement dated 9 September 2009 between BLB and the Banks in connection with the Placing;
Placing Price means the price per Ordinary Share at which each of the Banks will agree to procure Placees for the Placing Shares pursuant to the Placing Agreement;
Placing Shares means the Ordinary Shares which are to be sold pursuant to the Placing;
RBS Hoare Govett means RBS Hoare Govett Limited;
Regulatory Information Service means any of the regulatory information services included within the list maintained on the London Stock Exchange's website;
Securities Act means the US Securities Act of 1933, as amended;
Settlement Date means the day on which the placing of the Placing Shares is settled being 15 September 2009 or such other date as the Banks and BLB may agree;
UBS or UBS Investment Bank means UBS Limited;
United Kingdom means the United Kingdom of Great Britain and Northern Ireland; and
United States or US means the United States of America, its territories and possessions, any State of the United States and the District of Columbia.
Related Shares:
Thomas Cook