ADDITIONAL INFORMATION 1. Responsibility
The Directors, whose names are set out in section 1 of Part II of this document, Christopher Bell and the Company, accept responsibility for the information contained in this document. To the best of the knowledge of the Directors, Christopher Bell and the Company who have taken all reasonable care to ensure that such is the case, the information contained in this document is in accordance with the facts and does not omit anything likely to affect the import of such information.
2. Incorporation and registered office
The Company was incorporated and registered in England and Wales on 8 June 2011 with registered number 07662835 as a public company limited by shares with the name Spirit Pub Company plc. As at the date of this document, the Company had not commenced operations. The principal legislation under which the Company operates, and pursuant to which the Spirit Ordinary Shares that are to be issued pursuant to the Demerger will be created, is the Companies Act and regulations made thereunder.
The Company is domiciled in England and Wales and its registered and head office is at Sunrise House, Ninth Avenue, Burton-upon-Trent, Staffordshire DE14 3JZ. The telephone number of the Company’s registered office is +44(0)1283 498 400.
KPMG Audit PLC, a member firm of, and regulated by, the Institute of Chartered Accountants in England and Wales, whose address is One Snowhill, Snow Hill Queensway, Birmingham B4 6GH plc have been the only auditors of the Company since its incorporation.
The first financial year of the Company began on 8 June 2011, its date of incorporation and will end on 20 August 2011.
3. Share Capital
3.1 Share capital history
On incorporation, 2 ordinary shares of a penny each in the capital of Spirit Pub Company plc were issued and were fully paid up in cash. Subsequently, 50,000 redeemable shares of £1 each (the ‘‘Redeemable Shares’’) were issued and were fully paid up in cash. The Redeemable Shares were redeemed by the Company on 4 July 2011. The Redeemable Shares were not entitled to receive a dividend nor have any other right of participation in the profits of the Company.
Authorities
Prior to the Demerger, various resolutions will be passed so that:
(A) the Directors be generally and unconditionally authorised pursuant to and in accordance with section 551 of the Companies Act to exercise all the powers of the Company to allot shares or grant rights to subscribe for or to convert any security into shares:
(i) for the purposes of issuing ordinary shares in the Company pursuant to the Demerger, up to an aggregate nominal amount of £6,650,000;
(ii) otherwise and in addition to the authority provided in relation to the Demerger, up to a nominal amount of £2,216,666.67; and
(iii) otherwise and in addition to the authorities provided above, comprising equity securities (as defined in section 560(1) of the Companies Act) up to a further nominal amount of £4,433,333.33, in connection with an offer by way of a rights issue,
such authorities to apply in substitution for all previous authorities pursuant to section 551 of the Companies Act and to expire at the end of the next annual general meeting of the Company or on 1 October 2012, whichever is the earlier; but, in each case, so that the Company may make offers and enter into agreements during this period which would, or might, require shares to be allotted or rights to subscribe for or to convert any security into shares to be granted after the authority ends;
(B) the Directors, pursuant to the authority given by the resolution referred to in 3.1(A) above, be empowered to allot equity securities (as defined in section 560(1) of the Companies Act) and/ or sell treasury shares wholly for cash:
(i) in connection with the Demerger; (ii) in connection with a pre-emptive offer;
(iii) otherwise than in connection with the Demerger or a pre-emptive offer, up to an aggregate nominal amount of £332,500; and
(iv) pursuant to the authority given by paragraph (iii) of the resolution at 3.1 (A) above in connection with a rights issue,
as if section 561(1) of the Companies Act did not apply to any such allotment, such power to expire at the end of the next annual general meeting of the Company or on 1 October 2012, whichever is the earlier, but so that the Company may make offers and enter into agreements during this period which would, or might, require equity securities to be allotted after the power ends;
(C) the Company be authorised for the purpose of section 701 of the Companies Act, to make market purchases (as defined in section 693 of the Companies Act) of Spirit Ordinary Shares of a penny each in the capital of the Company provided that:
(i) the maximum number of shares which may be purchased under this authority is 66,500,000;
(ii) the maximum price which may be paid for each share is an amount equal to the higher of (i) 105 per cent. of the average of the closing price of the Spirit Ordinary Shares as derived from the Daily Official List for the five Business Days immediately preceding the day on which the shares are contracted to be purchased or (ii) the higher of the price of the last independent trade and the highest current bid on the London Stock Exchange, at the time the purchase is carried out, in each case, exclusive of expenses;
(iii) the minimum price which may be paid for each share is a penny per share exclusive of expenses,
this authority shall expire at the end of the next annual general meeting of the Company or on 1 October 2012, whichever is the earlier (except in relation to the purchase of shares the contract for which was concluded before the expiry of such authority and which might be executed wholly or partly after such expiry), unless such authority is renewed prior to such time; and
(D) a meeting of the Company, other than an annual general meeting, may be called on not less than 14 clear days’ notice.
As at 6 July 2011 (being the latest practicable date prior to the publication of this document) and save as disclosed in this document, there has been no issue of share or loan capital by Spirit since its incorporation and, save as disclosed in section 7.4 of this Part VII, no share or loan capital of Spirit is under option or agreed, conditionally or unconditionally, to be put under option. As at 6 July 2011 (being the latest practicable date prior to the publication of this document), Spirit does not hold any Spirit Ordinary Shares in treasury.
The Company has no convertible securities, exchangeable securities or securities with warrants in issue.
No Spirit Ordinary Shares have been marketed to, nor are any Spirit Ordinary Shares available for purchase by, the public in the United Kingdom or elsewhere in connection with the Demerger or the introduction of the Spirit Ordinary Shares to the Official List.
Accordingly, as at the date of this document, the issued and fully paid share capital of Spirit is as follows:
Issued
Class of shares Number
Amount (£)
3.2 Effect of Demerger on Share Capital
Following the implementation of the Demerger, the issued and fully paid share capital of Spirit is expected to be (ignoring the issue of any shares in Punch between the date of this document and the Demerger Record Time which may be issued pursuant to the Punch Taverns plc Long-Term Incentive Plan 2008 and the Punch Taverns plc Share Bonus Plan):
Issued
Class of shares Number
Amount (£)
Ordinary 643,208,722 6,432,087.22
3.3 Admission and settlement of the Spirit Ordinary Shares
The ISIN for the Spirit Ordinary Shares is GB00B5NVFV695.
The Spirit Ordinary Shares will be in registered form and will be eligible for electronic settlement. The Spirit Ordinary Shares can be held in certificated form. In addition, the Spirit Ordinary Shares can be held within CREST so that, should they wish to, investors will be able to hold their Spirit Ordinary Shares in uncertificated form. No temporary documents of title have been or will be issued in respect of the Spirit Ordinary Shares. The rights attaching to the Spirit Ordinary Shares will be equivalent to the rights attaching to the ordinary shares in Punch in all material respects, including their dividend, voting and other rights.
Further information on the rights attaching to the Spirit Ordinary Shares is set out in section 4 of this Part VII.
Application will be made to the UK Listing Authority and the London Stock Exchange for up to 665,000,000 Spirit Ordinary Shares to be admitted to the Official List and to trading on the London Stock Exchange’s main market for listed securities, respectively. As at the date of this document, no Spirit Ordinary Shares are admitted to trading on a regulated market. If the Demerger proceeds as currently envisaged, it is expected that Admission will become effective, and that dealings in the Spirit Ordinary Shares will commence on the London Stock Exchange, at 8.00 a.m. (London time) on 1 August 2011. No application has been or is currently intended to be made for the Spirit Ordinary Shares to be admitted to listing or dealt in on any other exchange.
4. Articles of Association
The following is a summary of Spirit’s Articles of Association which are available for inspection as set out in section 23 of this Part VII.
The Articles of Association which were adopted pursuant to a special resolution passed on 1 July 2011 contain (among others) provisions to the following effect.
Unrestricted objects
The objects of the Company are unrestricted.
Limited Liability
The liability of the Company’s members is limited to the amount, if any, unpaid on the shares in the Company held by them.
Change of Name
The Articles of Association allow the Company to change its name by resolution of the Board. This is in addition to the Company’s statutory ability to change its name by special resolution under the Companies Act.
Share Rights
Subject to any rights attached to existing shares, shares may be issued with such rights and restrictions as the Company may by ordinary resolution decide, or (if there is no such resolution or so far as it does not make specific provision) as the Board may decide. Such rights and restrictions shall apply as if they were set out in the Articles of Association. Redeemable shares may be issued, subject to any rights attached to existing shares. The Board may determine the terms and conditions and the manner of redemption of any redeemable share so issued. Such terms and conditions shall apply to the relevant shares as if they were set out in the Articles of
Association. Subject to the Articles of Association, any resolution passed by the shareholders and other shareholders’ rights, the Board may decide how to deal with any shares in the Company.
Voting Rights
Members will be entitled to vote at a general meeting or class meeting, whether on a show of hands or a poll, as provided in the applicable statutes. The Companies Act provides that:
(A) on a show of hands every member present in person has one vote and every proxy present who has been duly appointed by one or more members will have one vote, except that a proxy has one vote for and one vote against if the proxy has been duly appointed by more than one member and the proxy has been instructed by one or more members to vote for and by one or more other members to vote against. For this purpose the Articles of Association provide that, where a proxy is given discretion as to how to vote on a show of hands, this will be treated as an instruction by the relevant member to vote in the way that the proxy decides to exercise that discretion; and
(B) on a poll every member has one vote per share held by him and he may vote in person or by one or more proxies. Where he appoints more than one proxy, the proxies appointed by him taken together shall not have more extensive voting rights than he could exercise in person.
This is subject to any special terms as to voting which are given to any shares or on which shares are held.
In the case of joint holders of a share the vote of the senior who tenders a vote, whether in person or by proxy, shall be accepted to the exclusion of the votes of the other joint holders and, for this purpose, seniority shall be determined by the order in which the names stand in the register in respect of the joint holding.
Restrictions
No member shall be entitled to vote at any general meeting or class meeting in respect of any share held by him if any call or other sum then payable by him in respect of that share remains unpaid or if a member has been served with a restriction notice (as defined in the Articles of Association) after failure to provide the Company with information concerning interests in those shares required to be provided under the Companies Act.
Dividends and Other Distributions
The Company may by ordinary resolution from time to time declare dividends not exceeding the amount recommended by the Board. Subject to the Companies Act, the Board may pay interim dividends, and any fixed-rate dividend, whenever the financial position of the Company, in the opinion of the Board, justifies its payment. If the Board acts in good faith, it is not liable to holders of shares with preferred or pari passu rights for losses arising from the payment of interim or fixed dividends on other shares.
The Board may withhold payment of all or any part of any dividends or other moneys payable in respect of the Company’s shares from a person with a 0.25 per cent. or greater holding, in number or nominal value, of the shares of the Company or of any class of such shares (in each case, calculated exclusive of any shares held as treasury shares) (in this section, a ‘‘0.25 per cent. interest’’) if such a person has been served with a restriction notice (as defined in the Articles of Association) after failure to provide the Company with information concerning interests in those shares required to be provided under the Companies Act.
Except in so far as the rights attaching to, or the terms of issue of, any share otherwise provide, all dividends shall be apportioned and paid pro rata according to the amounts paid up on the share during any portion of the period in respect of which the dividend is paid. Except as set out above, dividends may be declared or paid in any currency.
The Board may if authorised by an ordinary resolution of the Company offer ordinary shareholders (excluding any member holding shares as treasury shares) in respect of any dividend the right to elect to receive ordinary shares by way of scrip dividend instead of cash.
Any dividend unclaimed after a period of 12 years from the date when it was declared or became due for payment shall be forfeited and revert to the Company.
The Company may stop sending cheques, warrants or similar financial instruments in payment of dividends by post in respect of any shares or may cease to employ any other means of payment,
including payment by means of a relevant system, for dividends if either (i) at least two consecutive payments have remained uncashed or are returned undelivered or that means of payment has failed, or (ii) one payment remains uncashed or is returned undelivered or that means of payment has failed and reasonable enquiries have failed to establish any new postal address or account of the holder. The Company may resume sending dividend cheques, warrants or similar financial instruments or employing that means of payment if the holder requests such resumption in writing.
Variation of Rights
Subject to the Companies Act, rights attached to any class of shares may be varied with the written consent of the holders of not less than three-fourths in nominal value of the issued shares of that class (calculated excluding any shares held as treasury shares), or with the sanction of a special resolution passed at a separate general meeting of the holders of those shares. At every such separate general meeting (except an adjourned meeting) the quorum shall be two persons holding or representing by proxy not less than one-third in nominal value of the issued shares of the class (calculated excluding any shares held as treasury shares).
The rights conferred upon the holders of any shares shall not, unless otherwise expressly provided in the rights attaching to those shares, be deemed to be varied by the creation or issue of further shares ranking pari passu with them.
Transfer of Shares
The shares are in registered form. Any shares in the Company may be held in uncertificated form and, subject to the Articles of Association, title to uncertificated shares may be transferred by means of a relevant system. Provisions of the Articles of Association do not apply to any uncertificated shares to the extent that such provisions are inconsistent with the holding of shares in uncertificated form or with the transfer of shares by means of a relevant system.
Subject to the Articles of Association, any member may transfer all or any of his certificated shares by an instrument of transfer in any usual form or in any other form which the Board may approve. The instrument of transfer must be signed by or on behalf of the transferor and (in the case of a partly paid share) the transferee.
The transferor of a share is deemed to remain the holder until the transferee’s name is entered in the register.
The Board can decline to register any transfer of any share which is not a fully paid share. The Board may also decline to register a transfer of a certificated share unless the instrument of transfer:
(A) is duly stamped or certified or otherwise shown to the satisfaction of the Board to be exempt from stamp duty and is accompanied by the relevant share certificate and such other evidence of the right to transfer as the Board may reasonably require;
(B) is in respect of only one class of share; and
(C) if to joint transferees, is in favour of not more than four such transferees.
Registration of a transfer of an uncertificated share may be refused in the circumstances set out in the uncertificated securities rules (as defined in the Articles of Association) and where, in the case of a transfer to joint holders, the number of joint holders to whom the uncertificated share is to be transferred exceeds four.
The Board may decline to register a transfer of any of the Company’s certificated shares by a person with a 0.25 per cent. interest if such a person has been served with a restriction notice (as defined in the Articles of Association) after failure to provide the Company with information