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SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

Form 20-F

(Mark One)

¨ REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934

or

 

þ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the fiscal year ended December 31, 2014

or

 

¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

or

 

¨ SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

Commission file number: 1-10409

InterContinental Hotels Group PLC

(Exact name of registrant as specified in its charter)

England and Wales

(Jurisdiction of incorporation or organization)

Broadwater Park,

Denham, Buckinghamshire UB9 5HR

(Address of principal executive offices)

Securities registered or to be registered pursuant to Section 12(b) of the Act:

 

Title of each class

 

Name of each exchange on which registered

American Depositary Shares

  New York Stock Exchange

Ordinary Shares of 15  265 / 329 pence each

  New York Stock Exchange*

 

 

* Not for trading, but only in connection with the registration of American Depositary Shares, pursuant to the requirements of the Securities and Exchange Commission.

Securities registered or to be registered pursuant to Section 12(g) of the Act:

None

Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act:

None

Indicate the number of outstanding shares of each of the issuer’s classes of capital or common stock as of the close of the period covered by the annual report:

 

Ordinary Shares of 15  265 / 329 pence each   236,117,256

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act:    Yes   þ     No   ¨

If this report is an annual or transition report, indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934:    Yes   ¨     No   þ

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports) and (2) has been subject to such filing requirements for the past 90 days:    Yes   þ     No   ¨

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).    Yes   ¨     No   ¨

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer   þ   Accelerated filer   ¨    Non-accelerated filer   ¨   Smaller reporting company   ¨
     (Do not check if a smaller reporting company)  

Indicate by check mark which financial statement item the registrant has elected to follow:

Item 17  ¨       Item 18  þ

If this is an annual report, indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act):

Yes             ¨                      No             þ

Indicate by check mark which basis of accounting the registrant has used to prepare the financial statements included in this filing:

 

US GAAP   ¨

  

International Reporting Standards as issued by

the International Standards Accounting Board   þ

   Other   ¨

 

 

 


Table of Contents

 

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Table of Contents
 
    

Co n ten ts

 

Strategic Report
2 IHG at a glance
4 Our preferred brands
6 Chairman’s statement
8 Chief Executive Officer’s review
10 Industry overview
12 Our business model
14 Our strategy for high-quality growth
16 Winning Model
18 Targeted Portfolio
20 Our Winning Model and Targeted Portfolio in action
22 Disciplined Execution
24 Doing business responsibly
26 Risk management
30 Key performance indicators
34 Performance
Governance
54 Chairman’s overview
55 Corporate Governance
57

Who is on our Board of Directors

60

Who is on our Executive Committee

65

Audit Committee Report

68

Corporate Responsibility Committee Report

69

Nomination Committee Report

70

Statement of compliance with the UK Corporate Governance Code

72 Directors’ Report
76 Directors’ Remuneration Report
Group Financial Statements
94 Statement of Directors’ Responsibilities
99 Independent Auditor’s US Report
100 Group Financial Statements
107 Accounting policies
114 Notes to the Group Financial Statements
Additional Information
162 Group information
171 Shareholder information
179 Useful information
181 Exhibits
182 Form 20-F cross-reference guide
184 Glossary
186 Forward-looking statements

S t ra te gic Re po rt

 

The Strategic Report on pages 2 to 51 was approved by the Board on 16 February 2015

George Turner, Company Secretary

 

 

Dream

 

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‘Guest Journey’ – Step One

The Dream phase of the ‘Guest Journey’ is one of the most exciting parts of travel for many of our guests as they research, seek inspiration, and dream, about their future trip.

 

 

 

Front cover: EVEN Hotel, Rockville, Maryland, US


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IHG   Annual Report and Form 20-F 2014
I HG at a gl ance

 

 

Our strategy for high-quality growth

We focus on strengthening our portfolio of preferred and differentiated brands, building scale in key markets, creating a long-lasting relationship with our guests and delivering revenue to hotels through the lowest cost, direct channels. Our proposition to owners is highly competitive and drives superior returns.

We execute our asset-light strategy in the most attractive, high-growth markets and industry segments. We take a disciplined approach to capital allocation, investing for the future growth of our brands. This enables us to drive sustainable growth in our profitability and deliver superior shareholder returns over the long term.

 

 

Our strategy is detailed on pages 14 to 33.

 

 

 

Our business model

 

We predominantly franchise our brands to, and manage hotels on behalf of, third-party owners; our focus is therefore on building preferred brands and strong revenue delivery systems.

 

 

Franchised:

4,096 hotels (514,984 rooms)*

 

2013: 3,977 hotels (502,187 rooms)

 

 

Managed:

735 hotels (192,121 rooms) *

 

2013: 711 hotels (180,724 rooms)

 

 

Owned and leased:

9 hotels (3,190 rooms) *

 

2013: 9 hotels (3,962 rooms)

 

 

Our business model is detailed on pages 12 and 13.

Our portfolio of brands is detailed on pages 4 and 5.

Our revenue delivery systems are detailed on pages 17 and 22.

 

Hotels in the IHG System pay IHG:

 

• management and/or franchise fees; and

 

• assessments and contributions which are collected for specific use within the System Fund (this does not result in profit or loss for IHG).

 

 

Information on the System Fund is detailed on page 49.

 

Group highlights *

 

 

+6%: $23bn

Total gross revenue in IHG’s System (2013: $21.6bn )

Group Revenue down 2% to $1,858m (2013 : $1,903m § )

 

 

-3%: $651m

Total operating profit before exceptional items (2013: $668m § )

 

 

+10%: 77¢ (48.6p)

2014 Full-year dividend (2013: 70.0¢ (43.2p))

 

 

+6.1%

Revenue per available room ** (2013: +3.8% )

710,295 rooms (4,840 hotels) operating in the IHG System

 

 

+7%

Fee revenue (2013: + 4%). Driven by 6.1% (2013: 3.8%) of RevPAR growth and 3.4% (2013: 1.6%) net IHG System size growth

 

 

Our global and regional performance is set out on pages 34 to 51.

 

*    Unless otherwise stated, all facts and figures as at 31 December 2014.

 

   This comprises total rooms revenue from franchised hotels and total hotel revenue from managed, owned and leased hotels. It is not revenue attributed to IHG.

 

   Includes two liquidated damages receipts in 2014: $7m, both in The Americas.

 

§    Includes three liquidated damages receipts in 2013; $31m in The Americas, $9m in Europe and $6m in AMEA.

 

   Subject to shareholder approval of 2014 final dividend.

 

**    Total IHG System rooms revenue divided by the number of room nights available.

 

  Group revenue excluding owned and leased hotels, managed leases and significant liquidated damages. Growth stated at constant currency.

 

 

 

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Where we operate

We operate in nearly 100 countries globally.

 

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IHG   Annual Report and Form 20-F 2014
 

Our pr efer re d b ra nd s

Each of the brands in our portfolio are complementary and differentiated to meet the changing, multifaceted needs of our guests and be commercially compelling to third-party hotel owners.

 

 

 

Supported by the IHG brand and IHG Rewards Club (our loyalty programme), our portfolio of hotel brands is aimed at meeting evolving guests’ needs.

 

Driving brand preference for our guests

Each of our brand strategies revolves around guest research and insight, allowing us to develop each brand to deliver unique guest experiences against specific needs, occasions and price points.

 

To drive brand preference, our brands must deliver a truly holistic experience for our guests, from the moment travel plans are conceived, across the planning and booking experience, throughout the hotel stay and thereafter – we call this the ‘Guest Journey’ (see pages 17 and 22).

 

In January 2015, we acquired Kimpton Hotels & Restaurants, the world’s largest independent boutique hotel operator. This, alongside Hotel Indigo and EVEN Hotels, strengthens our brand portfolio and creates a leading boutique and lifestyle hotel business in one of the fastest growing industry segments (see page 21).

 

Delivering preferred brands by our people

We recognise that our people deliver the brand experience for our guests and we therefore invest heavily in our talented people (see page 23).

 

Having preferred brands for owners

Given our asset-light business model, strong owner relationships are vital to building scale (see pages 16 and 17). Integral to this, is a portfolio comprising strong, clearly defined brands enabling third-party hotel owners to choose the right IHG brand for their hotel.

 

    

 

 

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180

Hotels open

 

61,235

Rooms open

 

50

Hotels in the pipeline

 

15,664

Rooms in the pipeline

 

InterContinental ® Hotels & Resorts

Our international luxury brand is located in most of the world’s key cities and many resort destinations across more than 60 countries worldwide. The brand’s ethos is to provide insightful, meaningful experiences to our guests to make their world feel bigger.

 

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Hotels in the pipeline

 

7,551

Rooms in the pipeline

 

HUALUXE ® Hotels and Resorts

Launched in March 2012, it was the first luxury international hotel brand where every element has been designed specifically to suit the tastes and sensibilities of the Chinese guest. It focuses on the unique aspects of Chinese etiquette, the importance of rejuvenation, status recognition, local customs and heritage.

 

    

 

 

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406

Hotels open

 

113,562

Rooms open

 

92

Hotels in the pipeline

 

25,336

Rooms in the pipeline

 

Crowne Plaza ® Hotels & Resorts

With hotels in major business centres around the world, Crowne Plaza is our modern business hotel dedicated to business travel that is ever more flexible, more connected, and more mobile. We enable our guests to be their most productive by simply making business travel work.

 

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61

Hotels open

 

6,731

Rooms open

 

63

Hotels in the pipeline

 

9,096

Rooms in the pipeline

 

Hotel Indigo ®

Hotel Indigo artfully combines the unique design and authentic local experiences of a boutique hotel, with the ease and peace of mind of a recognised brand name. Each hotel reflects the local culture, character and history of the surrounding area.

 

 

 

 

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1,212 *

Hotels open

 

225,159 *

Rooms open

 

269 §

Hotels in the pipeline

 

52,713 §

Rooms in the pipeline

 

Holiday Inn ®

At Holiday Inn, we believe the joy of travel is for everyone. Warm and friendly, Holiday Inn has been opening its doors to guests since 1952, affordably blending the familiar with the new, and putting everyone at ease no matter the reason for their stay.

 

Holiday Inn Resort ® properties offer great value, warm and friendly service and the peace of mind of a trusted brand name. The Holiday Inn Resort brand champions the family holiday.

 

Holiday Inn Club Vacations ® is a vacation ownership club that opens the door to the joy of owning a vacation home. The portfolio is a collection of resorts in the US, offering spacious villa accommodation for families in great vacation destinations.

 

 

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2,365

Hotels open

 

229,110

Rooms open

 

522

Hotels in the pipeline

 

62,954

Rooms in the pipeline

 

Holiday Inn Express ®

Holiday Inn Express champions smart and simple travel for everyone. We support guests without hassle, without complication, without extravagance – but always with a warm smile. Our mantra is ‘everything you need, nothing you don’t’.

*   Includes 12 Holiday Inn Club Vacations properties (4,027 rooms) and 42 Holiday Inn Resort properties (9,904 rooms).

 

§    Includes 18 Holiday Inn Resort properties (4,412 rooms).

 

    

 

 

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322

Hotels open

 

30,708

Rooms open

 

89

Hotels in the pipeline

 

7,717

Rooms in the pipeline

 

Candlewood Suites ®

IHG’s extended-stay brand in North America aimed at providing guests with a relaxed, casual and home-like environment at a great value.

 

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205

Hotels open

 

22,409

Rooms open

 

99

Hotels in the pipeline

 

10,908

Rooms in the pipeline

 

Staybridge Suites ®

IHG’s extended-stay brand for business and leisure travellers who are spending an extended time away from home and prefer a warm, home-like and community environment.

 

    

 

 

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2

Hotels open

 

296

Rooms open

 

3

Hotels in the pipeline

 

584

Rooms in the pipeline

 

EVEN TM Hotels

Launched in February 2012, the brand was created to meet the large and growing demand for a hotel brand to help wellness-minded travellers maintain their balance on the road.

 

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62

Hotels open

 

11,300

Rooms open

 

16

Hotels in the pipeline

 

3,000

Rooms in the pipeline

 

Kimpton ® Hotels & Restaurants

Acquired by IHG in January 2015, this is a leading collection of boutique hotels and award-winning destination restaurants in the US. The brand is renowned for its distinctive design and personal approach to guest service, using thoughtful perks and amenities and a sense of fun to make them feel truly at home.

   As at 31 December 2014.

 

   These were part of the acquisition which completed on 16 January 2015.

 

IHG System size of 4,840 hotels (710,295 rooms) includes 87 hotels (21,085 rooms) that are unbranded.

 

 

 

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IHG   Annual Report and Form 20-F 2014
 

Ch air ma n’ s st atem ent

We have continued to execute our strategy to deliver high-quality growth. Our strong performance was underpinned by our successful Winning Model, which is our framework for delivering value for our shareholders and owners through our portfolio of preferred brands, talented people and leading revenue delivery systems.

 

 

 

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“We made excellent progress against our well-established strategy to deliver high-quality growth and returned over $1 billion to shareholders.”

 

 

Patrick Cescau

 

Chairman

Our highlights in 2014 included the opening of the first two hotels under the EVEN Hotels brand, and the progress made in both strengthening our digital offer and enhancing our loyalty programme, IHG Rewards Club, with the aim of building lifetime loyalty with our guests and enhancing their experience with our brands before, during, and after, their stay. We also continued our strong track record of delivering attractive returns for shareholders, with over $1 billion (including ordinary dividends) returned in the year.

 

We ended the year on a high, with the announcement that we had agreed to acquire Kimpton Hotels & Restaurants, making IHG the clear market leader in the boutique segment.

 

I have seen, first hand, this momentum in the business. I have visited many hotels in our established markets, as well as our growth markets, and I continue to be enormously impressed. Our continued success is testament to our strong relationship with our owners and the passion and commitment our 350,000 colleagues globally bring to the business on a daily basis.

 

   Views on the year as a

   whole

With hotels in nearly 100 countries around the world, our scale position has been a key driver of our consistently strong performance. It allowed us to allocate resources in a focused way to grow in our attractive markets (described on page 18), whilst ensuring we maintain a strong presence in growth markets of the future.

One of IHG’s greatest strengths is our ability to adapt and evolve in a changing global landscape. We are a dynamic business. In 2014, we saw some of the world’s biggest economies return to growth and others faced uncertainty in the shape of natural, economic and political upheaval. In this context, our expertise and discipline was critical to us delivering consistently good results.

 

   Shareholder returns

We remain committed to delivering long-term shareholder value, returning surplus funds to our shareholders and thereby maintaining an efficient balance sheet with an investment grade credit rating. In the 11 years since IHG became a standalone business, we have consistently delivered superior and sustainable returns for our shareholders. In May 2014, we announced a $750 million special dividend with share consolidation which we paid on 14 July 2014. During the year, we also successfully completed our $500 million share buyback programme. In total, we have now returned $10.4 billion (including ordinary dividends) to shareholders since our 2003 demerger.

 

I am pleased to announce that the Board is recommending a final dividend of 52 cents (33.8 pence) per ordinary share, an increase of 11 per cent on the final dividend for 2013, resulting in a full-year dividend of 77 cents (48.6 pence) per share, up 10 per cent on 2013.

 

Total Shareholder Return was 32 per cent in the year; the 10 th best performance in the FTSE 100.

 

 

 

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InterContinental Paris - Le Grand, France                                       Crowne Plaza Costa Mesa Orange County, California, US

 

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The Board and its areas of focus

IHG is an ambitious company with an impressive scale position and a proven strategy for high-quality growth. Ensuring we have the right balance of skills, style and expertise at both the Board level and across the business is an important factor in supporting our future growth (see pages 57 to 62).

In last year’s Annual Report, I said how impressed I was by the strength and diversity of the IHG Board. This continues to be the case. I also stressed the importance of evolving the composition of the Board to best support the business as it grows and develops.

In 2014, a key priority for me was to appoint a Non-Executive Director with a strong background in consumer-facing technology. On 1 September 2014, we were therefore delighted to welcome Jo Harlow to the Board and as a member of the Audit, Nomination and Remuneration Committees. Jo has a wealth of experience and knowledge, particularly on the role digital technology plays in driving consumer behaviour.

On 31 December 2014, Jonathan Linen retired from the Board and I would like to thank him for his tremendous contribution to IHG. In December 2014, we announced that Kirk Kinsell would step down from the Board and his role as President of our Americas business on 13 February 2015. Kirk was succeeded by Elie Maalouf as Chief Executive Officer, The Americas, who became a member of IHG’s Executive Committee. We are also pleased that, effective from 1 March 2015, Anne Busquet will be joining the Board as a Non-Executive Director and she will also sit on the Audit, Nomination and Corporate Responsibility Committees. Anne has an impressive breadth of experience in digital commerce, hospitality, finance and marketing.

During the year, the Board remained focused on IHG’s strategy and the execution of our Winning Model, as well as on maintaining our deep understanding of both the risks facing the business and the controls we have in place. These are further described on pages 14 to 33.

Governance

High standards of corporate governance are fundamental to the way IHG operates and reflect our values and commitment to being a truly responsible business. In last year’s Annual Report, we explained how we had commissioned a formal evaluation of the Board from an external independent consultant. This year we undertook an internal Board effectiveness evaluation and internal performance evaluations of each Director. The Board also considered the performance of each of its Committees. It was confirmed that the Board and its Committees were operating effectively, and that each Director continues to bring relevant knowledge, diversity of perspective, an ability and willingness to challenge and retains a strong commitment to the role. The progress against our 2013 evaluation, and details of our 2014 evaluation and action plan, can be found on pages 63 and 64.

Detailed information on our Board and governance processes, including the Directors’ Remuneration Report, can be found on pages 54 to 91.

In line with our commitment to responsible business practices (see pages 24 and 25), this year, we have decided to produce a broader Responsible Business Report in place of the Corporate Responsibility Report, which can be downloaded at www.ihgplc.com/responsiblebusiness.

Outlook

We continue to remain confident in the long-term growth prospects of the hotel industry. There are some major structural tailwinds and socio economic trends which mean that the hotel industry will experience significant growth into the future. Our proven strategy for high-quality growth means that we are well placed to continue to outperform.

 

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Patrick Cescau

Chairman

 

 

 

 

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IHG   Annual Report and Form 20-F 2014
 

Chi ef Ex ecut ive O fficer ’s re view

2014 was an excellent year for IHG. We made significant progress in delivering our winning strategy for high-quality growth, and reported strong financial and operational performance. We also made good progress with our
asset-light strategy.

 

 

 

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“IHG is in a position of strength, a position which has been enhanced by another year of delivery against our strategic priorities.”

 

 

Richard Solomons

Chief Executive Officer

IHG is in a position of strength, a position which has been enhanced by another year of excellent delivery against our strategic priorities. We remained focused on building our compelling scale position in what is a growing global marketplace, as we continued to build, develop, and shape our business and our brands for the future. We achieved strong RevPAR performance, opened the highest number of hotels since 2009 and reported growth in net System size.

We also made good progress with our asset-light strategy with the sale of InterContinental Mark Hopkins San Francisco and the disposal of 80 per cent of our interest in InterContinental New York Barclay, as well as the acceptance of a binding offer for InterContinental Paris – Le Grand.

Our Winning Model

The Winning Model is our framework for delivering value for our shareholders and owners through our portfolio of preferred brands, talented people and leading revenue delivery systems. We are focused on delivering against all components of this model, combining it with a targeted approach to building our portfolio and disciplined execution, all underpinned by our commitment to being a responsible business. On pages 16 and 17, we have set out why each element of the model is so critical to our business and have provided more detail on the excellent progress we made during the course of 2014. This includes our superior owner proposition. On our website, www.ihgplc.com/ihgowners, you will find a message from Buggsi Patel, 2014 Chairman of the IHG Owners Association, on his highlights from the year.

Our acquisition of Kimpton Hotels & Restaurants (see page 21), which completed in January 2015, is an example of how each element of the model came into play and will help support our ambitions for the brand in the medium term.

Our Winning Model in action

Kimpton Hotels & Restaurants is a well-established and highly successful business that has grown to become the world’s leading boutique hotel business with a portfolio of world-class hotels and destination restaurants. This distinctive and innovative brand fits perfectly into our brand family, alongside our highly successful Hotel Indigo and EVEN Hotels brands, creating the world’s largest boutique hotel business. We will use our scale, network of owner relationships and powerful digital platforms to accelerate its growth both within the US and globally
(see page 21).

Our scale

With a five per cent share of the global industry supply of rooms and 13 per cent of the active industry pipeline, IHG enjoys significant scale advantages in what is a competitive industry. During 2014, we continued to build our scale, focusing on our priority markets such as the United States and Greater China (see page 18). This resulted in us achieving a series of milestones in the year, including our highest ever number of hotel openings in Greater China
(see pages 19 and 46 to 48).

 

 

 

 

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Epic Miami, A Kimpton Hotel, Florida, US               EVEN Hotel Rockville, Maryland, US              HUALUXE Hotels and Resorts, People’s Republic of China

 

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Our brands

Our award-winning preferred brands continued to go from strength to strength. InterContinental Hotels & Resorts is twice the size of any other luxury hotel brand and the Holiday Inn brand family is the largest global mainstream brand. We also opened the 400 th Crowne Plaza hotel and 200 th Staybridge Suites hotel during the year.

The number of awards our brands receive externally is remarkable, reflecting the work we have been doing to build awareness, recognition and guest satisfaction. In 2014 alone, our brands won over 300 global, regional and hotel level awards.

For the sixth consecutive year, InterContinental Hotels & Resorts was named ‘World’s Leading Hotel Brand’ at the 2014 World Travel Awards; and for the tenth consecutive year, IHG Rewards Club has been recognised as ‘Best Hotel Rewards Programme in the World’ by Global Traveler magazine. IHG as a company also had a successful year – we were listed as one of FORTUNE Magazine’s ‘World’s Most Admired Companies’, named as the ‘Best British Business’ in China and came third in The Sunday Times ‘25 Best Big Companies to Work For’ list.

Innovating for the future

We have continued to build on our long history of innovation to help us both navigate and evolve our business for success in what is a changing world. This is supported by our focus on delivering preferred brands, building lifetime relationships with our guests and developing our strong direct channels.

In 2014, we opened the first two EVEN Hotels (see page 20) to critical acclaim, and in February 2015, we opened the first hotel for the HUALUXE Hotels and Resorts brand. Both of these new brands address previously unmet guests’ needs.

We have also taken an innovative approach to evolving our loyalty and digital offer around the ‘Guest Journey’ with the launch of initiatives such as Mobile Check-in and Check-out and further improvements to our number one rated mobile app. Continuing to evolve and enhance our digital capabilities will be a key area of focus for us over the coming years.

Trust

In the context of this changing landscape, the theme of ‘Trust’ was more important than ever and was the main theme of our 2015 Trends Report (see page 10 for more details). The report argues that ‘Trust Capital’ is now the ‘4 th C’ of organisational value – alongside Human, Financial and Intellectual Capital – and is a key factor for consumers in making brand choices. Our people play a critical role in building trust with our guests and owners. They are responsible for delivering a differentiated brand experience for our guests (see pages 16 and 23) and as such we work hard to build our ‘winning culture’ and our employer brand and maintain our high Employee Engagement survey scores
(see page 32).

Responsible Business

Operating as a Responsible Business underpins each of our strategic priorities and is a commitment everyone working at IHG is responsible for delivering (see page 24 and 25). We made excellent progress with each of our three corporate responsibility programmes during the course of the year. We announced the global roll-out of our environmental sustainability tool, IHG Green Engage, as a brand standard, which was a powerful demonstration of our commitment to protecting the environment. More recently, we announced the opening of our 600 th IHG Academy. Launched in 2006, the programme provides local people with bespoke skills-development and employment opportunities. Finally,

our disaster relief programme, IHG Shelter in a Storm, responded to 18 disasters in nine countries.

Finally, I would like to take this opportunity to thank those who work across IHG and its brands globally for the energy and enthusiasm they bring to the business. With their support, and together with our owners, we can look forward to another excellent year ahead.

 

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Richard Solomons

Chief Executive Officer

 

 

 

 

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IHG   Annual Report and Form 20-F 2014
 

In dus try ove rv ie w

 

 

Where the industry is now

 

The global hotel industry

The global hotel industry comprises approximately 15.5 million rooms and is broadly segmented into branded (multiple hotels under the same brand name) and independent (non-branded) hotels. Growth in demand is driven by economic growth and an increasing trend for domestic and global travel, resulting in part from favourable demographics and the globalisation of travel.

Over the long term, the lodging industry has grown broadly in line with Gross Domestic Product (GDP). In the US market (which is the largest market in terms of number of rooms), growth in consumer spend on lodging has exceeded GDP growth by two percentage points per annum over the last 50 years.

There are a number of industry metrics that are widely recognised and used to track performance and we actively monitor these. These include revenue per available room (RevPAR), average daily rate and rooms supply growth.

 

 

Global industry RevPAR growth (2014 v 2013)

 

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IHG’s Key performance indicators (KPIs) are set out on pages 30 to 33.

The branded hotel market

The branded hotel market is estimated to account for 53 per cent of the total hotel market. We benchmark our performance against the largest branded players that we consider to be our peer group, with a similar system size and pipeline to ours and who operate in similar market segments to us (as explained on page 18).

Five of the leading branded hotel companies (IHG, Accor, Hilton, Marriott and Starwood) account for approximately 30 per cent of the total branded hotel market in terms of open rooms, and 65 per cent of the development pipeline (hotels in planning and under construction but not yet open).

In the US, around 70 per cent of the industry supply is branded. In fast developing markets, such as China and India, penetration of international brands is, however, lower, at around 45 to 55 per cent. This level of international brand penetration is expected to increase significantly over the coming decades, as large global branded hotels gain traction due to the advantages of reliability, guest safety and security, consistency of standards and the ability to invest in customer experience and technology. IHG has measures in place for all of these – see Our Strategy and Managing Risks on pages 14 to 29.

 

 

Source: Smith Travel Research for all of the above industry facts.

 

The different business models within the hotel industry

The global hotel industry operates under a number of different business models, depending on whether a hotel is branded or independent. The four models typically seen are owned, leased, managed and franchised:

 

  owned hotels are owned and operated by an owner who bears all the costs associated with the hotel but also benefits from all of the income;

 

  a leased model is similar, except that the owner-operator of a hotel does not have outright ownership of the hotel but pays rental fees to the ultimate owner of the property;

 

  under a managed model, the owner of a hotel uses a third-party manager to operate the hotel on its behalf and pays the manager management fees and, if the hotel is operated under a third-party brand name, brand licensing fees; and

 

  a franchised hotel is owned and operated by an owner under a third-party brand name, and the owner pays a brand licensing fee to the brand owner.

Other models, such as pay-for-performance or commission-based, are sometimes used by independent hotels to benefit from a brand’s booking distribution system (for example, hotel collections).

Whilst an owner-operated hotel enables the owner to have full control over the hotel operation, it requires high capital investment. In contrast, for hotel brand owners, a managed or franchised model enables quicker rooms growth due to the lower capital investment, but this requires strong relationships with third-party hotel owners. As a franchisor and manager, we therefore recognise that our owner proposition is a key part of our strategy.

 

 

IHG’s business model, which is a predominantly managed and franchised model, is set out on pages 12 and 13.

 

 

IHG’s 2015 Trends Report: Building Trust Capital: The new business imperative in the Kinship Economy – released in January 2015

 

LOGO   

The third in our series of Trends Reports focused on consumer insights impacting the hospitality industry and business in general.

 

Our 2015 Report identifies

the importance for companies to build brand and organisational trust. It demonstrates how to build Trust Capital with different demographics and across different geographies, unveiling a blueprint of seven principles for making it the core driver of an organisation.

 

Further details about all three Trends Reports can be found at www.ihgplc.com/trends_report

 

 

 

 

 

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Where the industry is heading

 

Short-term drivers and global trends

Short-term industry trends are shaped by differing economic, political or physical factors impacting local geographical markets. Since the economic crisis of 2008/09, GDP growth has returned to key economies, leading to an increase in disposable income and an increase in demand for hotel rooms. Typically, the industry would meet this demand through an increase in the supply of rooms.

In developed markets, recent industry revenue growth has been driven largely by an increase in the room rate as occupancy levels have returned to previous peak levels, but the growth in supply of rooms has been below the long-term average. In emerging markets, growth has been a result of both an increase in room rate and the supply of rooms. The industry is also impacted in the short term by local market economic or political factors.

 

 

 

 

Long-term drivers and global trends

In the long term, growth in the hotel industry is driven by a number of trends:

Economic

The travel and hotel industries have benefited substantially from long-term macroeconomic trends. Global GDP growth in the last 10 years of approximately 3.6 per cent per annum has contributed to increasing disposable income and a greater number of middle-class households, particularly in emerging markets such as Greater China, with a greater propensity to travel.

Improvements in physical infrastructure, particularly in emerging markets, have allowed hotels to meet the needs of guests more effectively and to open up new destinations for travel.

 

 

Our growth strategy focuses on 10 priority markets comprising both developed and emerging ones.

Demographic

Traveller demographics are continuously evolving. Many travellers travel for a variety of reasons and no longer for a singular purpose, such as only business or leisure. Across the globe, the types of traveller can range from single people to multi-generation families. The younger workforce is driving more diverse and informal working patterns, with an expectation that hotels can cater for flexible working arrangements. A growing ageing population with the desire, and means, to travel is also expected to significantly increase travel flows and lead to an overall increase in demand for travel services.

 

 

Having a portfolio of distinct and complementary brands enables IHG to meet a range of guests’ needs and occasions at differing price points.

Social

Other trends also provide new opportunities for increased travel. Growing competition and capacity amongst airlines, lower air fares and more relaxed travel restrictions in many regions have made international travel a viable option for an increasing number of people. Worldwide, international tourist travel is expected to increase by 3.3 per cent a year from 2010 to 2030 reaching 1.8 billion by 2030, according to the UNWTO.

Increasingly, travellers are concerned about the sustainability of hotels and their impact on the environment and local communities.

 

 

We are committed to responsible business practices from environmental sustainability to supporting our local communities.

Technology

Technology is playing an increasingly important role in both shaping the travel industry and in guests’ appreciation of their entire travel experience. The internet, increasingly accessed through mobile devices, has established itself as the preferred method to research, plan and book travel. In emerging markets, consumers are bypassing desktop PCs and going straight to mobile – there are twice as many smartphone users in China than internet users in the US.

The development of social networking has changed the way in which people think about travel, with the sharing of experiences, reviews and recommendations influencing research and decision-making. Travellers can make more informed decisions, and book their travel options with greater control and immediacy, leading to an increase in travel to a variety of destinations.

The ‘Internet of Things’ is an emerging trend that offers enormous potential. 75 billion devices are forecast to be internet-enabled by 2020 offering the potential to transform the in-hotel guest experience.

 

 

We focus on delivering across the entirety of the ‘Guest Journey’ and invest in developing strong technology platforms.

Competitors

These long-term drivers and global trends are changing the competitive landscape within the travel industry. Competitors are no longer simply branded or independent hotels, but also include companies offering alternative lodging solutions and search options, providing inspiration for travel ideas and aggregating a range of travel solutions. The consumer peer-to-peer rental market, which is largely unbranded, has also opened up a large supply of travel accommodation. However, many of these businesses are not subject to regulations such as fire and life safety, food safety and local industry regulations, which apply to traditional hotel operators.

For booking and distribution, hotel companies also compete with the increasingly sizeable travel intermediaries.

 

 

Our channel management strategic priority considers both direct and indirect booking and distribution channels.

 

 What is IHG doing in light of these trends?

 

 See Our Strategy on pages 14 to 33

 

 

 

 

 

 

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IHG   Annual Report and Form 20-F 2014
 

Ou r b usi nes s m od el

We predominantly franchise our brands to, and manage hotels on behalf of, third-party owners. Our asset-light strategy enables us to grow our business whilst generating high returns on invested capital.

 

 

We franchise and/or manage hotels depending largely on market maturity, owner preference and, in certain cases, on the particular brand. For example, in the US, a mature market, we operate a largely franchised business, working together with our owners to deliver preferred brands. By contrast, in Greater China, an emerging market, we operate a predominantly managed business where we are responsible for operating the hotel on behalf of our owners. We adapt this business model by market as necessary, for example, we also have managed leases (properties structured for legal reasons as operating leases but with the same characteristics as management contracts), partnerships and joint ventures.

The key differences in our three main models are summarised below:

 

     Number   % of our   Hotel   IHG capital   Employees *   Brand ownership,
     of hotels   portfolio   ownership   intensity        marketing and distribution
Franchised   4,096   84.6%   Third party   Low   Third party  
Managed   735   15.2%   Third party   Low   IHG and third party     IHG
Owned and leased     9   Less than 1%   IHG   High   IHG    

 

*   For information on who are our employees and how we invest in our talent, see page 23.
  We are committed to delivering a compelling and preferred offer to our hotels owners through our owner proposition – see page 17.

In 2014, over 90 per cent of our operating profit was generated from our asset-light management and franchise contracts. In addition, approximately 85 per cent of our fee-based income was derived from hotel revenues, and 15 per cent was principally from management fees linked to hotel profits.

The asset-light approach, and franchised and managed business model:

 

  is highly cash-generative, with a high return on capital employed; and

 

  means IHG benefits from the reduced volatility of fee-based income streams and allows us to focus on growing our fee revenues and fee margins with limited requirements for IHG’s capital.

 

 

IHG Revenue and the System Fund

Third-party hotel owners pay: (i) fees to IHG in relation to licensing of our brands and/or our hotel management services; and (ii) assessments and contributions which are collected by IHG for specific use within the System Fund.

 

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Disciplined approach to allocation of capital

Our focus on an asset-light business model is supported by a disciplined, long-term approach to allocating capital and reducing the asset intensity of the business. We seek to maintain an efficient balance sheet with an investment grade credit rating.

Our business is highly cash-generative, and we have three primary uses of the cash we generate:

 

  Invest in the business to drive growth: This includes acquisitions of businesses and our day-to-day capital expenditures (see below).

 

  Maintain sustainable growth in the ordinary dividend: Our 2014 full-year dividend will be 77 cents (48.6 pence) per share (subject to shareholder approval of the 2014 final dividend) – up 10 per cent on 2013 (see page 50).

 

  Return surplus funds to shareholders: During 2014, we announced a $750 million return to shareholders via special dividend with share consolidation, and completed our $500 million share buyback (see page 50).

 

In support of our asset-light strategy, during 2014 we:

Disposals

 

    completed the disposal of 80 per cent of our interest in InterContinental New York Barclay for $274 million;

 

    sold InterContinental Mark Hopkins San Francisco for $120 million; and

 

    announced a binding offer in respect of InterContinental Paris – Le Grand for 330 million ($406 million).

Acquisitions

 

    announced the acquisition of Kimpton Hotels & Restaurants for $430 million – a fully asset-light business. This acquisition completed in January 2015.

IHG’s philosophy to capital expenditure

Capital expenditure incurred by IHG can be summarised as follows:

 

Capital expenditure    Examples
 

Maintenance capital expenditure and key money to access strategic growth, particularly into high-quality and sought-after opportunities

 

  

•  Maintenance of our owned and leased hotels, which will reduce as we become increasingly asset-light.

•  Corporate infrastructure maintenance, for example, in respect of our offices and systems.

•  Deployment of key money, which is used to access strategic opportunities, particularly in high-quality and sought-after locations when returns are financially and/or strategically attractive.

 

Recyclable investments to drive the growth of our brands and our expansion in priority markets

 

  

 

•  Through the acquisition of real estate, investment through joint ventures or via an equity stake.

•  We aim to seek to recycle this capital by selling these assets when the time is right and to reinvest elsewhere in the business and across our portfolio – we are currently doing this for our EVEN Hotels brand, just as we previously did for the Staybridge Suites and Hotel Indigo brands.

 

System funded capital investments for strategic investment to drive growth at hotel level

 

  

 

•  The development of tools and systems that hotels use to drive performance.

 

 

 

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For definitions, please refer to the Glossary on pages 184 and 185.

 

 

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IHG   Annual Report and Form 20-F 2014
 

Our strate gy for high- quali ty gr owth

We focus on strengthening our portfolio of preferred and differentiated brands, building scale in key markets, creating a long-lasting relationship with our guests and delivering revenue to hotels through the lowest cost, direct channels. Our proposition to owners is highly competitive and drives superior returns.

We execute our asset-light strategy in the most attractive, high-growth markets and industry segments. We take a disciplined approach to capital allocation, investing for the future growth of our brands. This enables us to drive sustainable growth in our profitability and deliver superior shareholder returns over the long term.

 

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IHG   Annual Report and Form 20-F 2014
 

Wi nni ng M od e l

Our Winning Model is our framework for delivering value for our shareholders and owners through our portfolio of preferred brands, talented people and leading revenue delivery systems.

 

 

 

Key performance indicators (KPIs) and What we have done in 2014

 

See pages 30 to 33

 

How we manage principal risks

See pages 28 to 29

 

    

Our portfolio of preferred brands

 

See pages 4 and 5

 

Where we operate and detailed global and regional Performance

 

See pages 34 to 51

 

 

LOGO    Preferred brands delivered through our people

 

Why we think this is important

Having a strong portfolio of preferred brands is fundamental to our success. In a highly competitive industry, powerful well-defined, consistent and well-known brands assist both guests and owners in choosing an IHG brand over a competitor’s, as well as deciding which IHG brand meets their specific needs. Our people are critical in providing the guest experience, and our ‘winning culture’ encourages and empowers them to bring each of our differentiated brand experiences to life and provide high standards of guest service.

The value of building strong preferred brands results in increased RevPAR, as occupancy will be higher and guests will pay a higher rate to stay at their preferred brand, which, in turn, delivers better returns for our owners through an increase in total gross revenue.

What we are doing

We build brand preference by defining each of our brands so that they can provide a differentiated experience to meet both the targeted guest need and occasion and be consistent in the experience they deliver.

We have sharpened each of our brand strategies looking at a number of areas, from the brand ambition and position to the brand platform and strategic brand pillars, to ensure our portfolio meets the needs of the evolving guest and owner. We are also refreshing the brand standards for each of our brands to ensure they are up to date and relevant to drive consistency.

We invest in our talented people who are the face of our brands and help us build brand preference (see page 23).

 

How we measure it

 

KPIs – Guest HeartBeat, RevPAR, Employee engagement, Total gross revenue

 

LOGO    Build and leverage scale

 

Why we think this is important

Scale provides significant advantages in the hotel industry at the global, national and city level. The size of the IHG System, and our concentration on priority markets and key gateway cities, allows us to benefit from economies of scale, which lead to higher margins and operating leverage. With scale, we can invest in our brands and the technology required to support their continued growth, and deliver efficient sales and marketing and procurement practices, thereby increasing the advantages an IHG brand brings to owners. Scale also enables us to invest in, and grow, new brands and take them global, for example Hotel Indigo.

What we are doing

IHG already benefits from substantial scale advantages. With over 710,000 rooms open at the end of 2014, we delivered our strongest net IHG System size growth since 2009 of 3.4 per cent, opening over 41,000 rooms. Our brand portfolio also reached some significant milestones in 2014 – opening the 400 th Crowne Plaza hotel, the 200 th Staybridge Suites hotel and the 60 th Hotel Indigo hotel in its 10 th anniversary year. Our scale has also enabled us to commit $150 million of investment behind the EVEN Hotels brand, opening the first two properties in 2014. We focus on developing our scale in 10 priority markets, where we currently have 85 per cent of our open rooms (see page 18). Benefiting from the strong growth in these markets, Group fee margins were up 1.5 percentage points to 44.7 per cent in 2014 and total gross revenue was up 6 per cent to $23 billion.

 

 

For details on how we maximise the scale and efficiency of our operations, see page 22.

 

How we measure it

 

KPIs – Net rooms supply, Fee revenues, Total gross revenue, Fee margin

 

 

 

 

 

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LOGO    Strong brand portfolio and loyalty programme
LOGO    Effective channel management
LOGO    Superior owner proposition
 

Why we think this is important

A portfolio of strong, complementary brands allows us to offer solutions for each guest need, which increases cross-selling across different brands. Combined with a strong loyalty programme, it also increases awareness and recognition of the IHG brand, and of each of the individual hotel brands, helping us to drive business. Guests who have an increased loyalty to IHG and its portfolio have also proven to have a higher spend per stay. Both of these result in higher RevPAR premiums, thereby increasing total gross revenue and strengthening our owner proposition.

What we are doing

Our brands are complementary across the segments in which they operate (midscale, upscale and luxury), catering to different guest needs and occasions. One of our newest brands, EVEN Hotels, caters to an identified guest need for maintaining wellness while travelling and the acquisition of the Kimpton brand has a strong strategic fit with our Hotel Indigo and EVEN Hotels brands (see pages 20 and 21). Recognising the importance of a strong loyalty programme, we encourage guests to stay across the portfolio and build lifetime relationships through the IHG Rewards Club programme, which has 84 million members. We continue to evolve our loyalty programme to ensure that it is not just the largest in the market, but also the most preferred – refreshing and reviewing the rewards and benefits available to increase its attractiveness to our guests. We recognise our loyal guests and aim to personalise their experiences.

 

How we measure it

 

KPIs – Total gross revenue, RevPAR, System contribution to revenue, Guest HeartBeat

 

 

Why we think this is important

As a franchisor and manager of hotels, we aim to drive demand to our hotel brands and reduce distribution costs for our owners through strong brand awareness and effective yield-management practices, delivering better returns for our owners. Our direct channels (digital and voice) are less costly to owners than third-party intermediaries. Our strong brands are a significant driver of bookings through indirect channels (online travel intermediaries (OTIs) and business and leisure travel agents). We therefore aim to drive demand for our hotels through our direct channels and manage revenue per booking, thereby delivering the highest quality revenues to IHG hotels at the lowest possible cost, increasing RevPAR and owner returns.

What we are doing

Our direct and indirect channels delivered 71 per cent of total rooms revenue to our hotels in 2014. Our digital business has significant scale and is growing fast, accounting for $4 billion in revenue in 2014. We continue to invest in features that enhance the digital experience, with branded and personalised offerings to encourage guests to book via our direct channels.

We recognise the impact of OTIs as an indirect booking channel, mainly used by comparison-site shopping leisure travellers searching for a competitive deal. We have therefore leveraged our global footprint to secure better terms with the OTIs on behalf of our owners, whilst leveraging OTIs as a complementary distribution channel.

 

 

For details on our investment in developing strong technology platforms, see page 22.

 

How we measure it

 

KPIs – System contribution to revenue, RevPAR

 

 

Why we think this is important

We recognise that hotel owners have a choice of brand, if any, to choose for their property. A strong owner proposition, preferred brands and effective operational support, play a vital part in making us the brand choice for owners. Relationships with new and existing owners therefore have a significant impact on our ability to build scale. A strong owner proposition and relationships with our owners also enable us to deliver the brand promise for our guests and continue building preferred brands.

What we are doing

We are committed to delivering a compelling and preferred owner offer. We continually review and enhance our owner proposition in many ways, including:

 

  ensuring a profitable return on investment for our owners, assisting them along the lifecycle of their investment, from identifying the right site to operating a profitable business;

 

  providing a range of revenue-driving tools and services, including booking and distribution channels;

 

  seeking to price our fees to reflect our services, tools and brand value;

 

  having strong owner relationship management and working with the IHG Owners Association (which represents the interests of our hotel owners globally) to deliver joint initiatives – www.ihgplc.com/ihgowners;

 

  recognising the importance of responsible business practices to all stakeholders, and developing tools which support both our commitment to doing business responsibly and delivering superior returns to our owners (see pages 24 and 25).

 

How we measure it

 

KPIs – All KPIs measure the strength of our owner proposition

 

 

 

 

 

 

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IHG   Annual Report and Form 20-F 2014
 

Ta rge te d P ort fol io

Our Targeted Portfolio means we operate in the most attractive markets for IHG and in the highest opportunity segments based on guests’ occasion needs, with an asset-light business model – franchising and managing hotels rather than owning them.

 

 

 

 

Key performance indicators (KPIs) and What we have done in 2014

See pages 30 to 33

 

How we manage principal risks

See pages 28 and 29

 

 

Where we operate and detailed global and regional Performance

See pages 34 to 51

 

Managed and franchised model (our asset-light business model)

See pages 12 and 13

* Source: Smith Travel Research.

Attractive markets

Why we think this is important

Achieving scale and driving growth requires us to focus on those markets that are most attractive and where there is the best fit with our strategy and business model. These markets have large inbound and domestic demand for branded hotels or show great potential to have this in the future.

What we are doing

Whilst we operate in nearly 100 countries and territories and continue to expand our presence globally, we primarily focus our efforts on 10 priority markets in which we either have a strong existing competitive position or have a compelling opportunity to build one. These include a number of key emerging and more developed markets – US, Middle East, Germany, UK, Canada, Greater China, India, Russia and the Commonwealth of Independent States, Mexico and Indonesia. These currently represent 85 per cent of the IHG System and 89 per cent of the pipeline. We focus our brand building efforts and prioritise the investment in infrastructure in these markets, for instance, by adapting our websites to the local language and deploying dedicated sales teams. Depending on the market, we will adapt our model and proposition to owners to take into account local market characteristics.

The Performance section provides details of how we have performed in each of our regions and priority markets.

 

 

How we measure it

 

KPIs – Net rooms supply, Total gross revenue

 

Highest opportunity segments

Why we think this is important

Typically, the traditional hotel industry is segmented according to price point, and IHG is focused on the three segments that generate over 66 per cent * of branded hotels revenue – namely, midscale, upscale and luxury. We believe these segments have the highest growth opportunity and strongest resilience to the industry/economic cycle. However, we also recognise that guests choose a hotel based on their needs and the occasion, resulting in the possibility of the same guest staying across multiple hotel segments.

What we are doing

Our portfolio of brands is targeted around differing occasion segments. We tailor each of our brands to meet guests’ needs, looking at the differing occasion they are travelling for and their need for travelling.

We used this segmentation analysis to develop the brand proposition for both the HUALUXE Hotels and Resorts and EVEN Hotels brands (see page 20). It was also a consideration in the acquisition of Kimpton Hotels & Restaurants (see page 21).

 

 

How we measure it

 

KPIs – Guest HeartBeat, RevPAR

 

 

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Holiday Inn Manhattan – Financial District, New York, US

 

 

 

 

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              HUALUXE Hotels and Resorts, People’s Republic of China

 

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              Crowne Plaza Beijing Lido, People’s Republic of China

 

Our Targeted Portfolio in action:

Greater China – a priority market

In 2014, IHG celebrated our 30 th anniversary of operating in Greater China, one of our priority markets. We were the first international hotel company to enter the country in 1984, and we have developed a leading business in the region with 78,194 rooms open (241 hotels) and a further 54,338 rooms (189 hotels) in our development pipeline. In 2014, Greater China contributed 11 per cent of our Group operating profit before central overheads and exceptional items.

We originally developed our business in China’s tier 1 cities and along the eastern seaboard, and have more rooms today in tier 1 cities than our major international competitors. However, our more recent growth has focused on tier 2 and 3 cities, which are expected to generate significant long-term demand growth and, by 2022, nearly 80 per cent of the fast growing Chinese middle-class are expected to live in these cities. We achieved several key milestones for our Greater China business in 2014, for example, we:

 

    opened Crowne Plaza Beijing Lido with the same owner as our first hotel in the region (Holiday Inn Beijing Lido), demonstrating our established track record and the strength of our owner relationships in the region;  

 

    opened 10,648 rooms (34 hotels), our highest number of room openings since we started our business in the region, growing the IHG System size by 14 per cent;  

 

    signed 15,754 rooms (64 hotels), our best year for hotel signings since 2007; and  

 

    opened our 50 th Holiday Inn Express hotel and signed our 50 th pipeline hotel, making Holiday Inn Express the largest international limited-service brand in China.  

In February 2015, we opened our first hotel for the HUALUXE Hotels and Resorts brand in Yangjiang, slightly later than expected. As at 31 December 2014, we had 24 hotels (7,551 rooms) in the pipeline for the brand, which we will continue to build.

In addition to driving growth in Greater China, we are focused on establishing hotels that cater for Chinese guests in other locations outside China. Our China-Ready programme ensures we will be able to cater for the growing number of Chinese guests around the world through cultural and food and beverage training for hotel teams. We currently have 84 hotels in AMEA, The Americas and Europe that have signed up for the programme.

 

 

 

 

 

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IHG   Annual Report and Form 20-F 2014
 

Our Winnin g Mo del and

Targe ted P ortfo lio in ac ti on

 

EVEN TM Hotels

 

LOGO

“The EVEN Hotels brand allows owners to diversify their portfolio in a unique guest occasion segment.”

 

 

 

We announced the launch of a new hotel brand, EVEN Hotels, in February 2012. In June 2014, we opened our first hotels under the brand in Norwalk, Connecticut and in Rockville, Maryland.

Winning Model

 

LOGO Preferred brands delivered through our people

As part of having a portfolio of preferred brands, we continually review our portfolio of brands in light of the evolving needs and preferences of our guests. As part of this, EVEN Hotels was launched in 2012 as the first wellness lifestyle hotel brand. We developed the brand based on a large and growing traveller need for maintaining wellness routines while travelling. More than two years of research into consumer insights showed that there are 17 million wellness-minded travellers in the US alone who struggle to maintain healthy eating and exercise habits, get proper sleep and be productive when they are travelling away from home. Therefore, the brand was developed to meet a guest’s holistic wellness needs in the areas of exercise, food, work and rest. For example, an EVEN branded hotel offers nutritious menus and amenities, such as guest rooms designed for in-room workouts.

 

LOGO

Build and

leverage scale

IHG has committed up to $150 million of its own capital to the development of the EVEN brand over the next few years. In the future, we will look to recycle this capital, just as we did for both the Staybridge Suites and Hotel Indigo brands. As part of matching the brand to the right location, we are looking at core urban areas, dense office parks and suburban markets as well as considering the expansion of the brand beyond the US. As at 31 December 2014, we had three hotels (584 rooms) signed into our development pipeline and two hotels (296 rooms) open.

LOGO

Strong brand portfolio

and loyalty programme

We have been using our loyalty programme, IHG Rewards Club, to introduce our members to the EVEN Hotels brand, specifically targeting our communications at those guests who travel to, or have expressed an interest in, the locations of our first hotels, wellness or the brand itself.

 

LOGO

Effective channel

management

As with our other brands, we have leveraged our existing booking platforms to create a brand-specific webpage targeted via the app. We have specifically customised it to be brand specific to EVEN Hotels, focusing on wellness needs with relevant content and healthy lifestyle features such as fitness videos, ambient sounds, a diary of wellness-focused events organised by the hotel, and ‘wellness travel tips’.

 

LOGO

Superior owner

proposition

The EVEN Hotels brand allows owners to diversify their portfolio with a new IHG brand in a unique guest occasion segment. IHG, through its own capital investment, currently owns and manages the first two open EVEN hotels. Three additional hotels are currently in development. Owning and operating our first hotels enables us to showcase the brand to other potential owners.

Targeted Portfolio

Attractive markets

The US is one of our priority markets, and we opened the first EVEN hotels in cities where we have existing brand presence.

Highest opportunity segments

The EVEN Hotels brand has a strategic fit in our brand portfolio alongside Hotel Indigo, and now Kimpton, in the boutique and lifestyle segment. The brand is targeted at the unique segment of wellness and lifestyle.

Managed and franchised

We have used our own capital to develop the brand and will look to recycle this in the future. We will seek to accelerate growth for the brand through our managed and franchising model.

 

LOGO

EVEN Hotel Rockville, Maryland, US

 

 

 

 

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Acquisition of Kimpton ® Hotels & Restaurants

 

LOGO

“We believe the Kimpton brand has enormous potential for growth.”

 

 

 

Our acquisition of Kimpton Hotels & Restaurants, the world’s largest independent boutique hotel operator, completed in January 2015. Kimpton is a highly successful business with a US-based portfolio comprising 62 managed hotels (11,300 rooms) and a further 16 hotels (3,000 rooms) in the pipeline (as at 16 January 2015). A sophisticated food and beverage operator, Kimpton also runs 71 hotel-based destination restaurants and bars.

Winning Model

 

LOGO Preferred brands delivered through our people

The Kimpton brand is renowned for having distinctive and innovative hotels located in attractive urban and resort locations. Each hotel aims to deliver a deeply personal, genuine and authentic service for guests and, whilst each hotel is unique, the brand has a number of common design and service principles and hallmarks. The Kimpton brand caters for a broad and varied range of guest needs.

 

LOGO

The Lumen, A Kimpton Hotel, Dallas, Texas, US

LOGO

Build and

leverage scale

The boutique segment, in which Kimpton operates, is the fastest growing in our industry over the last five years, and there is significant opportunity for future growth based on high levels of demand growth. We also believe the brand has enormous potential for growth outside the US and plan to capitalise on our scale, powerful distribution systems and owner networks to support its growth globally. We did this previously for our Hotel Indigo brand which started with a well-established base in the US and has now been expanded globally to 21 countries (including hotels in the pipeline).

 

LOGO

Strong brand portfolio

and loyalty programme

The Kimpton brand has a strong strategic fit within our existing brand portfolio at the upper upscale price point. It is also highly complementary with our Hotel Indigo and EVEN Hotels brands, creating a leading boutique and lifestyle hotel business, with over 200 open and pipeline hotels across 21 countries.

We plan to leverage Kimpton’s market-leading insight and strong track record in operational excellence, food and beverage, and design, to add value across our brand portfolio. Kimpton’s loyalty programme (Kimpton Karma) members account for 25 per cent of its room bookings.

 

LOGO

Effective channel

management

A large proportion of Kimpton’s business already comes through direct channels, driven by its most loyal guests. Each hotel has a dedicated website with engaging content, reflecting the boutique nature of the brand. We will leverage our digital platforms to accelerate Kimpton’s growth, whilst maintaining the uniqueness of Kimpton’s existing channels.

LOGO

Superior owner

proposition

The addition of Kimpton to IHG’s brand portfolio offers owners another attractive option in the boutique segment and access to a brand with a strong track record at the upper upscale price point. Its presence in the most attractive markets in the US has delivered excellent financial performance for both the business and its hotel owners. It also enables IHG to raise awareness of other IHG brands among owners of Kimpton branded hotels. Kimpton’s strong brand, combined with our scale and booking and distribution channels, will drive superior returns for owners.

Targeted Portfolio

Attractive markets

The US is one of our priority markets and Kimpton hotels currently have presence in the most attractive urban and resort locations, as well as the highest RevPAR markets such as San Francisco and New York.

Highest opportunity segments

The boutique hotel segment has been the fastest growing in our industry over the last five years, with demand, supply and RevPAR growth in boutique hotels in the US each significantly outperforming the overall industry.

Managed and franchised

Kimpton is a fully asset-light brand, operating hotels under management contracts.

 

 

More information on the acquisition of Kimpton Hotels & Restaurants can be found at www.ihgplc.com/kimpton

 

 

 

 

 

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IHG   Annual Report and Form 20-F 2014
 

Dis cip lin ed Exe cut ion

We recognise that successful delivery of our strategy for high-quality growth requires Disciplined Execution. We prioritise investment in our technology platforms and our people as well as delivering operational efficiencies.

 

 

 

Scale and efficiency

of operations

Investment in developing strong technology platforms

 

Why we think it is important

Driving efficient operational processes and managing our costs allows us to contribute to hotel performance through efficient practices, tools and systems. It also helps us strengthen our revenue delivery systems which means an increase in system contribution to hotel revenue, supporting our owner proposition and maximising our investment in building preferred brands. Careful cost management, leveraging our scale and focusing on productivity improvements also allows us to drive continued improvement in our margin.

What we are doing

To maximise the scale and efficiency of our operations, we:

 

  focus on spending in a way which enables further investment in our strategic priorities. Our procurement team has tools and processes which allow us to monitor and control spend and use our scale to deliver buying advantage. Our focus on cost efficiency and continuous improvement ensures we deploy our resources effectively, concentrating on the key priorities and activities that drive our business;

 

  introduced a new human resources system to streamline and improve the automation of our human resources processes in 2014 – see page 32; and

 

  continue to benefit from off-shoring our Business Service Centre in Gurgaon, India. This provides centralised accounting services for IHG corporate offices, and owned and managed hotels.

 

 

How we measure it

 

KPI – Fee margins

 

See page 32 for the KPI and
What we have done in 2014

 

Why we think it is important

As identified on page 11, technology, as used by travellers, is playing an increasingly important role in shaping the travel industry. The internet, which is now more than ever accessed through mobile devices, is used extensively to research, plan and book travel. In emerging markets, consumers are going straight to mobile devices, and there are now twice as many mobile internet users in China than internet users in the US. Guests are also seeking greater levels of personalisation, and are sharing their experiences instantly via social media.

We believe that keeping abreast of the evolving traveller trends and investing in technology systems will assist us in building brand preference, strengthen our loyalty programme and deliver compelling and engaging digital content across the ‘Guest Journey’ (which comprises five steps – Dream, Plan, Book, Stay and Share), thereby enabling us to build lifetime relationships with our guests.

What we are doing

To deliver the highest quality digital content for our guests, we are ensuring that we have the right technology foundations and infrastructure in place. In 2014, we:

 

  standardised on property hardware for all IHG hotels in the US, providing a consistent platform that allows us to develop solutions such as Mobile Check-in and Check-out (now available in over 500 hotels);

 

  piloted enhanced customer relationship management capability that allows us to utilise our IHG Rewards Club members’ profiles to drive personalisation and guest recognition in our hotels;

 

  implemented new digital marketing capabilities that allow us to target potential guests more effectively through the internet; and

 

  announced our strategic partnership with Amadeus, the leading provider of advanced technology solutions for the global travel industry, to explore technology solutions.

Improving our technology infrastructure gives us the foundation to transform the guest experience and make it more interactive through digital content. In 2014, we:

 

  increased mobile bookings by 50 per cent to $900 million and downloads of the IHG app grew by 80 per cent;

 

  made numerous improvements to our award-winning mobile app, including the launch of IHG translator, a learning tool which engages our guests and drives greater interaction; and

 

  created benefits for our IHG Rewards Club members, including multi-brand campaigns that include over one million automatically tailored offers generated using specific insights from each guest’s profile and stay history – $360 million in revenue was generated by the 2014 ‘Big Win’ IHG Rewards Club promotion.

 

 

How we measure it

 

KPI – System contribution to delivery

 

See page 30 for the KPI and
What we have done in 2014

 

 

 

 

 

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        InterContinental Sydney Double Bay, Australia

 

LOGO

 

 

 

Investment in developing great talent

 

Who are our employees?

 

 

Why we think it is important

Our people bring our brands to life on a daily basis, delivering on each individual brand promise to enhance the guest experience. They are, therefore, a critical part of our success. Accordingly, we recognise the importance of attracting, retaining and developing the very best talent in the industry to service our guests and bring our brands to life.

 

What we are doing

To achieve this, the four pillars of our people strategy have consistently been:

 

1. To develop a BrandHearted culture

Each of our brands delivers a differentiated guest experience dependent upon the brand’s strategy. This is delivered by our people who place brands at the centre of this helping to drive guest satisfaction and brand preference, which we measure through Guest HeartBeat – a KPI.

 

2. To make IHG a great place to work

Building a strong employer brand assists us in attracting the best possible talent to meet our strategic objectives:

 

  we ask our people to live our Winning Ways (set out above) and act in a responsible way – see pages 24 and 25 for how acting responsibly is part of our culture; and

 

  we offer our people our Room to be yourself commitment, which is brought to life by four promises:

 

–  Room to have a great start: This assists us in recruiting the right people for each brand and role. New recruits are offered a structured orientation programme to provide them with an understanding of IHG’s strategy and values.

 

–  Room to be involved: We communicate with employees on matters relating to the Group’s business and performance and share information on people, policies and news across IHG through various channels, including conferences, team meetings and our intranet site. We encourage employees to give regular feedback

to ensure IHG meets expectations and delivers on its commitments – this is formally done twice a year through the Employee Engagement survey, the results of which are a KPI.

 

–  Room to grow: Our people are given access to the required support, experience and training and provided with development opportunities.

 

–  Room for you: We recognise achievements and communicate these throughout our business.

 

3. To deliver world-class People Tools to our owners and hotels

Our People Tools are industry-leading best practices tailored specifically for our brands, and assist hotel management and human resources teams to hire, train, involve and recognise our colleagues. By working to increase employee retention and performance, guest satisfaction and drive efficiencies, they help increase revenue for our owners (helping us with our owner proposition).

 

4. Building a strong leadership and performance culture

We have established a ‘winning culture’ at IHG, this starts with building a strong leadership from the top – see pages 57 to 69 for our Board and Executive Committee leadership.

 

For alignment of our performance culture with our strategic priorities and KPIs in our corporate offices for our senior executives, – see the Directors’ Remuneration Report on pages 76 to 91.

 

Having a predominantly managed and franchised estate means that not all of those people who work at our hotels are our employees. When the Group’s entire estate is taken into account (including those working in our franchised and managed hotels), over 350,000 people worked globally across IHG’s brands as at 31 December 2014.

 

IHG employed the following as at 31 December 2014:

 

  7,797 people worldwide (including those in our corporate offices, central reservations offices and owned hotels (excluding those in a category below)), whose costs were borne by the Group;

 

  4,975 people who worked directly on behalf of the System Fund and whose costs were borne by the System Fund;

 

  602 General Managers who work in our managed hotels and whose costs were borne by those hotels; and

 

  11,848 other hotel workers who work in our managed hotels, who have contracts or letters of service with IHG and whose costs were borne by those hotels.

 

See pages 120 and 152 for more information.

 

 
    

 

How we measure it

 

KPIs – Employee engagement, Guest HeartBeat

 

See pages 31 and 32 for KPIs and What we have done in 2014

 

 
    

 

Diversity and inclusion

 

 

 

As a global organisation operating in nearly 100 countries around the world, we recognise the importance and benefit of ensuring our workforce fully represents the communities in which we operate and the guests who stay in our hotels. As at 31 December 2014:

 

  5 of the 13 Directors on the Board were female (38%);

 

  32 out of 127 of the senior managers employed by the Group (including directors of subsidiaries) were female (25%); and

 

  7,069 out of the 12,772 employed by the Group and whose costs were borne by the Group or the System Fund were female (55%).

 

See page 62 for further information on our approach to diversity (including our diversity policies) from the Board level and throughout the organisation.

 

 

 

 

 

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IHG   Annual Report and Form 20-F 2014
 

Doi ng b usine ss re spo nsi bly

A commitment to responsible business practices underpins our entire strategy and the way we work. We recognise the importance it has for all of our stakeholders in making IHG and its brands their preferred choice.

 

 

 

Why we think it is important

We believe that by ensuring our business is committed to responsible business practices we will enhance and protect the reputation of IHG and our brands. It provides us with the opportunity to protect the environment, create job opportunities, improve community resilience and make us more innovative. Doing the right thing in the right way enables us to make an even greater contribution to the locations where we operate. It also ensures we act in a manner that benefits all of our stakeholders, including employees, guests, corporate customers, owners and the local community, who are increasingly considering whether the businesses with which they interact share their values. This provides us with a competitive edge, assisting us to deliver profitable growth and create shared value for all stakeholders in the long term.

 

 

How we measure it and

What we have done in 2014

 

KPIs – Employee engagement and all those KPIs set out on page 33

 

Our commitment to responsible business underpins our whole strategy and contributes to our success across all areas.

 

See pages 32 and 33 for progress against our KPIs.

 

Five-year corporate responsibility targets

These were released in September 2013, and are centred on measuring our impact on the environment and community (at both global and local level) and demonstrating our commitment to doing business responsibly and creating shared value for IHG and its stakeholders:

 

  some of these are KPIs; and

 

  the progress against others can be found in our Responsible Business Report.

 

 

 

Further information, including our Responsible Business Report, can be found at www.ihgplc.com/responsiblebusiness

 

What we are doing

Our commitment to responsible business is part of our culture. Our responsible business practices include:

Governance and leadership

Our Chairman, the Board and its Committees provide a strong leadership and governance structure. They promote responsible business behaviour by maintaining high standards of corporate governance, internal controls and risk management and compliance with relevant laws and regulations.

 

 

For information on our Board and governance processes, see pages 54 to 91.

Commitment to responsible business practices

We have a reputation for delivering a consistent and superior guest experience, we provide a safe and secure environment and we actively engage with our communities. Our brands are valuable assets and doing business responsibly enhances their reputation and builds trust and brand preference.

Responsible procurement

Our Vendor Code of Conduct sets out standards to which we require our supply chain partners to operate. We are committed to promoting diversity across our responsible procurement agenda and have set targets to ensure corporate responsibility criteria are integrated into the selection and evaluation process for preferred suppliers.

Health, safety and security

A safe and secure environment for our guests, employees and those working at or visiting our hotels and corporate offices is important. IHG has therefore established a set of policies, procedures and measures, and complies with relevant legislation. We ensure the protection and well-being of those working for IHG through suitable work-based strategies, minimise the risk of injury from work activity, ensure that sufficient information is provided and systems are in place to address health and safety concerns, and involve employees in the continuous improvement, reporting and review of health and safety matters.

Risk management

We have in place an effective system of internal controls and risk management to identify, assess, prioritise and mitigate risks to our business, guests and employees, which enables us to achieve our shared objectives. This is an essential part of being a responsible business.

 

 

For information on our risk management practices and systems of internal controls, see pages 26 to 29.

People

Being a responsible business cannot be achieved without the support and active engagement of our people. They are fundamental to ensuring we operate an ethical business. Our Winning Ways (see page 23) are a set of behaviours that we internally promote to assist with how we interact with our guests and colleagues.

As part of acting responsibly and putting in place a responsible business ethos, we have policies and training in place to ensure our people are kept aware of and understand the key legal and regulatory areas affecting them in their roles, such as competition, anti-bribery and data privacy laws and procedures, crisis management and brand safety standards. We do this through a range of programmes, policies and training, which we regularly keep under review and which are communicated via e-learning and face-to-face training modules.

Our Code of Conduct consolidates and clarifies expected standards of behaviour and communicates the ethical values of the Group. It is applicable to all Directors, officers and employees and is available at www.ihgplc.com/investors under corporate governance.

We also have a confidential disclosure channel to provide employees with a means to report any ethical concerns they may have.

 

 

For information on our investment in developing our talent and who are our employees, see page 23.

 

 

 

 

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IHG Academy - Holiday Inn Express Stoke On Trent, UK

 

LOGO

 

 

 

Human rights

We focus on those areas of human rights most relevant to our business, ensuring the rights of the local people where we operate are protected. We are working to raise further awareness of our human rights approach in our hotels through embedding it as a brand standard, and will continue to develop our training materials. We are a signatory to the UN Global Compact, aligning our operations and strategies with the 10 universal principles that include commitments to human rights and labour standards. We are part of the Business in the Community cross industry working group on human rights as well as the International Tourism Partnership’s Human Trafficking Working Group. We are also working with our internal procurement team to embed further our human rights approach into our contracts.

 

Corporate responsibility

Our global scale provides us with an opportunity to make a positive impact on the environment and communities in which we operate. Our five-year corporate responsibility targets, released in September 2013, focus on measuring this impact.

Each one of our hotels is a central part of its community, from creating jobs and stimulating local economic opportunities, to managing their environmental impact in a responsible way and providing shelter in times of need. We work to develop new and better ways to assist owners to build and operate IHG branded hotels, creating sustainable value for our brands, business and stakeholders, as well as addressing social and environmental challenges. Our three bespoke corporate responsibility programmes are a key part of this and we

work very closely with our owners and colleagues to maximise the positive impact of these initiatives:

 

  IHG Green Engage TM system: Helps us minimise our impact on the environment by tracking and managing the use of energy, carbon and water and waste in our hotels. This assists us in delivering both more environmentally sustainable hotels and cost efficiencies for owners.

 

  IHG ® Academy: A collaboration between our hotels and local schools, colleges and community organisations to help people develop the skills they need to improve their employability and secure a job in the hotel industry.

 

  IHG ® Shelter in a Storm : Empowers our hotels to support guests, colleagues and local communities in times of disaster with financial support, vital supplies and accommodation.
 

 

 

IHG’s global greenhouse gas (GHG) emissions

 

By delivering more environmentally sustainable hotels, we can drive cost efficiencies for owners as well as meet the expectations of all our stakeholders. We recognise the importance of reducing our global greenhouse gas emissions for corporate offices and hotels – our target is to reduce our carbon footprint per occupied room by 12% across our entire estate by 2017 (against a 2012 baseline). See page 33 for progress.

 

    

 

Scope

We report Scope 1 and 2 emissions as defined by the GHG protocol as follows:

 

•  Scope 1 (Direct emissions): combustion of fuel and operation of facilities; and

 

•  Scope 2 (Indirect emissions): electricity, heat, steam and cooling purchased for own use.

 

Methodology

We have worked with external consultants to give us an up-to-date picture of IHG’s carbon footprint and assess the performance over the past few years. The external consultants use a sampling and extrapolation methodology to estimate our GHG emissions.

 

For 2014, in line with the methodology set out in the GHG Protocol Corporate Standard, the sample covered 1,402 of our 4,840 hotels. As IHG System size is continually changing and the hotels reporting data to the IHG Green Engage system increases annually, we are restating the impacts for all years from the baseline year 2012 annually to enable comparisons to be made.

 

 

Reporting boundary

Measure

 

2014 1    

 

 

2013 1    

 

 

Global – corporate offices and managed, franchised, owned and leased hotels 2 (a KPI and part of our five-year targets)

 

Scope 1 Direct emissions 1,365,883   1,280,973  
Scope 2 Indirect emissions 3,792,771   3,683,737  
Total GHG emissions (tCO 2 e) 5,158,654   4,964,710  

 

IHG’s chosen intensity measurement GHG emissions per occupied room (kgCO 2 e per occupied room)

32.3   33.4  

Global – corporate offices and managed, owned and leased hotels 2 (as required under the Companies Act 2006)

 

Scope 1 Direct emissions 496,316   486,086  
Scope 2 Indirect emissions 1,921,077   1,847,304  
Total GHG emissions (tCO 2 e) 2,417,393   2,333,390  

IHG’s chosen intensity measurement GHG emissions per occupied room (kgCO 2 e per occupied room)

 

59.2   62.2  

 

1    Reporting period commencing on 1 October and ending on 30 September – due to the delay in hotels receiving their energy bills it is not possible to report accurately GHG emissions from 1 January to 31 December.

2    Includes all of our branded hotels but does not include emissions from 88 hotels. We do not have sufficient data to estimate their emissions and believe them to be immaterial.

 
 
                       

 

 

 

 

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IHG   Annual Report and Form 20-F 2014
 

Ris k m an a ge me nt

IHG believes that an essential part of being a responsible business is having in place robust and effective risk management and internal controls. This supports our business to be resilient, successful and trusted.

 

 

 

IHG’s approach to risk management

The Board is ultimately accountable for risk management across the organisation. It is supported by the Audit Committee, the Executive Committee and other delegated committees who collectively set the tone and appetite for risk management at IHG.

This is cascaded down to the day-to-day activities of IHG corporate offices and hotels through well-established and continuously improving policies, processes, systems and controls which set out clear accountability, and are supported by tools, training and communication to ensure risks are effectively managed.

Risks are further identified, assessed, mitigated and monitored by functional specialists and, where deemed necessary, periodically reviewed by internal and external auditors. These activities are typically grouped into ‘Three Lines of Defence’ as shown on the right. IHG’s Global Risk Management team provide subject matter expertise, leadership and support across all these activities.

Embedded risk management processes

IHG has in place a Major Risk Review process to:

 

  enable the business to identify, assess, manage and monitor the principal risks and uncertainties affecting the Group (the Major Risks); and

 

  support the Executive Committee, Audit Committee and the Board to monitor, review and reflect upon the progress of risk management activities across the portfolio of Major Risks on a biannual basis.

The Major Risks align closely with our strategy and business priorities, and also identify those issues which are most likely to significantly affect other operational, commercial or reputational matters and, as such, are regularly discussed at senior leadership team and committee meetings.

Our Risk Working Group (RWG) ensures there is sufficient focus and effective management of the Major Risks, and seeks to improve cross-functional working and effective risk management of the highest priority and emerging risks affecting IHG. The RWG is chaired by the General Counsel and Company Secretary and comprises the heads of Global Risk Management, Global Strategy, Programme Office and Global Internal Audit.

Underpinning the Group’s Major Risk Review process, each of the regions and functions have their own risk profiles that are updated quarterly in line with the activities of the strategic planning cycle. During the interim periods, continuous dialogue takes place between risk owners and risk subject-matter experts to develop, execute and monitor detailed risk assessments, risk mitigation strategies, controls and key risk indicators.

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Holistic approach to risk assessment

IHG conducts risk assessments to identify, prioritise and inform decisions on risk mitigation. Risks are first assessed from an inherent or gross risk perspective (unmitigated risk). Then, internal controls and mitigation activities are identified and developed resulting in a residual or net risk assessment (mitigated risk, net of controls). This is informed by the performance monitoring of internal key risk indicators, which provide objective evidence as to how effectively the risk is being managed. IHG and its Board think broadly and holistically about potential risks to the business, across the following categories:

 

  Risk What are these?

 

Who manages them?

 

 
  Strategic

Risks arising from IHG’s relationship with the external environment that can impact on IHG’s ambition and strategy over the long term.

 

Include major market and environmental changes or events that could impact our reputation across key stakeholder groups.

•  Leadership is provided by the Board, the Executive Committee, the Regional Operating Committees and functional leadership teams.

 

•  Expertise, co-ordination and oversight is provided by Global Strategy in conjunction with Global Risk Management to drive IHG’s leadership to make decisions around its portfolio of brands, key markets, business model and approach to ethics and other reputational matters.

 

 
  Tactical

Risks that could impact the delivery of IHG’s one to three-year commitments.

 

Include, but are not limited to, factors influencing IHG’s ability to sign and open new hotels, the performance of existing hotels and the delivery of projects that align with strategic planning processes.

•  Performance and delivery risks are managed by senior leaders and reported to the Regional Operating Committees and functional leadership teams.

 

•  Project risks are managed by project management teams with oversight provided by our internal Programme Office and supported by Global Risk Management.

 

 
  Operational

Risks which include a wide spectrum of day-to-day risks that frontline hotel colleagues and corporate teams face when dealing with guests or ensuring corporate systems and processes are running smoothly.

 

Include, but are not limited to, those managing the safety and security of our people and assets, the continuity of the business, third-party service providers and the wider supply chain.

•  Operational risks are managed by frontline hotel colleagues.

 

•  Oversight is provided, in the context of the managed and franchised business models, by specialist functional teams, with leadership provided by the Regional Operating Committees.

 

•  Due to the nature of operational risks, IHG typically mitigates these through policies, operational and business processes and other internal controls supported by systems, tools and training. Subject-matter expertise, leadership and co-ordination is provided by Global Risk Management and functional specialists.

 

 

 

 

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IHG   Annual Report and Form 20-F 2014
 

Ris k m an a ge me nt continued

 

 

Managing risks in a changing environment

We continue to experience an increasingly risk aware and dynamic external risk environment with changes in political, economic, social, technological, legal and environmental risks. However, the Group’s asset-light business model, diversity of brand portfolio and wide geographical spread contribute to IHG’s resilience to events that could affect specific hotels or local areas.

The table below sets out the principal risks and uncertainties (the Major Risks) in the context of delivering against our strategy for high-quality growth (as described on pages 14 to 25). Whilst the external risk environment is increasingly volatile, uncertain and competitive, this is offset by our decision-making and strengthening risk culture, and efforts to continuously improve controls and mitigation actions (some of which is summarised below). These Major Risks align to our strategic priorities and are therefore proactively managed and monitored by senior management. They complement the wider comprehensive risk factors set out on pages 162 to 165.

 

   

 

Risk description

 

 

 

Controls and mitigations

 
   

Preferred brands

 

Having a portfolio of brands with a clear, distinct brand proposition aimed at meeting increasingly personalised guest needs and the occasions they are travelling for, and delivering a consistent experience, is crucial to creating brand preference, loyalty and advocacy.

 

Failure to achieve this could impact on IHG’s competitive position and our reputation with guests, owners and investors.

 

LOGO   LOGO

 

•  Each of the brands in our portfolio of brands is designed to meet specific guest needs and occasions through distinct and complementary brand propositions (see pages 4, 5 and 18). Our recent acquisition of Kimpton Hotels & Restaurants adds to the strength of our portfolio and, together with EVEN and Hotel Indigo, enhances our boutique and lifestyle business (see pages 20 and 21).

 

•  We will continue to deliver on the growth of the Kimpton brand, running it as a standalone business to preserve its uniqueness.

 

•  We continually review ways to increase awareness and loyalty towards our brands through our loyalty programme, IHG Rewards Club, as well as a blend of global and local marketing promotions, sponsorships and brand initiatives to create synergies across the brand portfolio.

 

•  We manage brand consistency through the entire hotel life cycle supported by clear contractual terms, new hotel opening processes, brand standard requirements and compliance processes. This is supported by tools, training and guidance to assist those working at our hotels and owners to enable them to deliver brand consistency.

 

 
   

Leadership and talent

 

IHG must recruit and retain the right people and give them the tools, guidance and support to be successful in order to deliver a preferred brand promise. Recruiting and retaining people to work in its hotels, especially in rapidly growing emerging markets, is a particular challenge and ensuring we have the right leadership is crucial.

 

Failure to manage these could impact on IHG’s service delivery and IHG’s brands, result in increased cost of recruitment and have a broader impact on performance and delivery.

 

LOGO   LOGO   LOGO

 

•  We have in place a comprehensive global people strategy (see page 23) to ensure we are able to recruit, retain and develop talent at our hotels, corporate offices and central reservations offices. This includes our Room to be yourself commitment underpinned by a set of globally consistent policies, guidance, systems and tools, with localisation where appropriate.

 

•  Supplementing the global strategy, we have developed local people strategies for some of our priority markets to ensure we are best placed to be the employer of choice in these markets. These strategies make necessary adjustments to meet local languages, laws, customs and cultural nuances and to effectively leverage local recruitment channels.

 

•  IHG Academy assists us to fill our talent pipeline whilst supporting the local communities (see page 25).

 

•  Our leadership framework, support tools, and training and development programmes help our people grow their careers, thereby managing internal talent. We proactively manage and monitor succession planning at all levels. We consider the diversity (more broadly than gender) of our people and leadership, reviewing it in light of our guests and the local communities in which we operate (see page 62).

 

   
 

How each Major Risk links to our strategic priorities (described on pages 16 to 25)

 

LOGO Winning Model

 

LOGO Targeted Portfolio

 

LOGO Disciplined Execution

 

LOGO Responsible Business

 

 

 

 

 

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Risk description

 

Controls and mitigations
 
 

Channel management and technology platforms

 

Booking and distribution channels and technological systems are a key part of delivering across the ‘Guest Journey’ and an important value driver for our owners. This is also an area where there is rapid change in terms of technology, guest expectations and relationships, with online travel intermediaries and travel agents impacting guests booking direct.

 

Threats to information security, from payment card information and other information held in IT systems, paper format and other formats, is a growing concern which could impact our operations, result in fines and other incremental costs, and undermine stakeholder trust in our business.

 

Failure to effectively manage and keep under review our channels and information technology infrastructure to optimise performance and resilience could impact on IHG’s revenue delivery systems, guest experience, return for our owners and investors, and IHG’s future performance.

 

LOGO   LOGO   LOGO

 

•  We recognise that technological advances and changing guest expectations mean that we must continually invest in, and improve, our technological systems (see page 22) to deliver across the ‘Guest Journey’ to build lifetime relationships with our guests. Our focus is on encouraging guests to use direct booking channels. However, recognising that some travellers use online travel agencies and intermediaries, IHG seeks to secure better terms with them on behalf of our owners.

 

•  Our Global Technology function works collaboratively with specialist third-party technology partners to continuously monitor, manage and optimise our systems and channels, including their resilience through backup systems and business continuity practices, to enhance all aspects of the ‘Guest Journey’.

 

•  Operating in nearly 100 countries and territories, IHG takes information security very seriously and has applied risk-based methods to build capability and resilience into our systems and processes. We manage data security to contain the risk and reduce the Group’s exposure, tightly controlling sensitive data through limited and monitored access.

 

•  We continue to aim to be fully compliant with Payment Card Industry – Data Security Standards (PCI-DSS) using tools and services from a leading specialist third-party provider with respect to payment-card processing.

 

 

Owner proposition

 

As a result of IHG’s predominantly franchised and managed business model and the increasingly competitive market for deals, maintaining strong relationships with owners, having a compelling value proposition, and demonstrating attractive returns on investment for our existing, new and potential owners is critical to sustaining IHG’s growth.

 

Failure to manage the owner proposition may result in the poor retention of hotels, and impact on IHG’s System size and development pipeline.

 

LOGO   LOGO   LOGO   LOGO

 

 

•  IHG’s regional teams build relationships with owners through a variety of methods, including formal and informal communications and owner conferences. We continually review and update our central support tools and systems, to offer a compelling owner proposition (see page 17).

 

•  IHG works closely with the IHG Owners Association, to ensure we have an understanding and insight into owners’ perspectives, particularly with respect to new programmes and initiatives (see www.ihgplc.com/ihgowners for a message from the 2014 Chairman of the IHG Owners Association).

 

•  The System Fund (described on page 49) is managed by IHG for the benefit of all our hotels with the objective of driving revenue for them, and its use is reviewed annually in collaboration with the IHG Owners Association.

 

•  Long-term franchise and management contracts, owner due diligence, new hotel opening teams and processes, Hotel Solutions (our internal online portal which provides tools and guidance to hotels across a number of operational areas) and the wider corporate infrastructure are put in place to leverage scale, support our hotels and maintain relationships with owners throughout the life cycle of the hotel.

 

 

Reputation and brand protection

 

IHG recognises the importance of its brands and reputation as important assets for the business. Societal and legal changes are increasingly holding organisations accountable for activities associated with their extended enterprise. With digital technology, news and the media, including social media, heighten the need for IHG, all those working in our hotels and corporate offices, owners and business partners to behave responsibly. Reputation is a complex matter that involves all areas of business.

 

Failure to safeguard the reputation of IHG and our brands could have a severe impact on the Group’s future performance.

 

LOGO   LOGO

 

 

•  Our commitment to responsible business underpins our strategy and is embedded in our culture throughout the organisation (see pages 24 and 25).

 

•  We have in place a comprehensive set of internal policies, processes and other internal controls supported by tools, training, monitoring and reporting.

 

•  Leadership in this area is provided by IHG’s Business Reputation and Responsibility function comprising lawyers, brand standard compliance managers, chartered secretaries, corporate responsibility specialists, risk managers and internal auditors who work together with the rest of the business to champion and protect the trusted reputation of IHG and our brands.

 

•  Our proactive risk-based approach to safety and security, intellectual property, regulatory compliance, litigation, crisis management and human rights are examples of the activities in place to manage reputational risk.

 

 

 

LOGO

 

 

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IHG   Annual Report and Form 20-F 2014
 

Key perf orma nce indi cator s (KPIs)

We measure our performance through a set of carefully selected KPIs which monitor our success in achieving our strategy and the progress of our Group to deliver high-quality growth. The KPIs are organised around the framework of our strategy – our Winning Model and Targeted Portfolio, underpinned by Disciplined Execution and Doing Business Responsibly.

 

 

 

Winning Model and Targeted Portfolio

 

KPIs    2014 progress       2015 priorities

 

Net rooms supply 1,2

 

LOGO

 

Net total number of IHG

rooms in the IHG System.

 

 

Growth in fee revenues 1,2

 

LOGO

 

At constant currency

 

Group revenue excluding revenue from owned and leased hotels, managed leases and significant liquidated damages.

 

  

 

In line with our 2014 priorities, in relation to:

 

•   growth, particularly in priority markets (as at 31 December 2014):

 

-   IHG System size – 710,295 rooms (4,840 hotels), reflecting 3.4% net IHG System size growth in 2014, the strongest since 2009;

 

-   610,274 rooms (4,351 hotels) of the IHG System are in our priority markets – 85%;

 

-   IHG’s pipeline – 193,772 rooms (1,221 hotels), with 2014 having the highest signings in six years; and

 

-   173,252 rooms (1,117 hotels) of our pipeline are in our priority markets – 89%.

 

•   supporting the growth of the HUALUXE Hotels and Resorts and EVEN Hotels brands, we:

 

-   opened our first 2 EVEN hotels in 2014 (see page 20) and, in February 2015, the first HUALUXE hotel (see page 19); and

 

-   had 3 EVEN hotels (one of which is owned) and 24 HUALUXE hotels in the pipeline (as at 31 December 2014).

     

 

¿ Continue to accelerate growth strategies in priority markets, and key locations in agreed scale markets, and continue to leverage scale.

 

¿ Continue to support the growth of the EVEN and HUALUXE brands.

 

LOGO Drive growth of the Kimpton brand in the US and create the foundation to establish the brand globally.

 

 

Total gross revenue from hotels in IHG’s System

 

LOGO

 

Actual $bn

 

Total rooms revenue from franchised hotels and total hotel revenue from managed, owned and leased hotels. It is not revenue attributable to IHG, as it is derived from hotels owned by third parties. It is an indicator of the scale and reach of IHG’s brands.

 

 

System contribution to revenue 1,2

 

LOGO

 

The per cent of room revenue delivered through IHG’s direct and indirect systems and channels.

 

  

 

In line with our 2014 priorities, in relation to:

 

•   continuing to drive loyalty to our portfolio of brands and driving awareness of IHG Rewards Club, we:

 

-   enrolled 7m new IHG Rewards Club members (up 9% on 2013), taking the total to 84m members;

 

-   continued to win awards including the ‘Best Hotel Rewards Programme in the World’ by Global Traveler magazine (see www.ihgplc.com/ourbrands);

 

-   extended free internet access for all IHG Rewards Club members across our hotels globally;

 

-   launched the first global promotion by IHG Rewards Club, ‘Big Win’, aimed at encouraging members to stay at more hotels within IHG’s portfolio; and

 

-   enhanced our ancillary programmes such as Business Rewards, Dining Rewards and co-branded credit cards to extend our relationship with guests.

 

•   continuing with investment in technology systems and platforms:

 

-   we launched Mobile Check-in and Check-out at more than 500 hotels; and

 

-   see page 22 for further initiatives undertaken in 2014.

 

•   continuing to strengthen our revenue delivery, we delivered 71% system contribution to revenue, including $4bn of digital revenues with 50% growth in mobile bookings to over $900m.

 

•   continuing to drive the adoption and impact of our performance tools, systems and processes amongst our owners – there was an increase of over 20% in the adoption of Revenue Management for Hire.

 

     

 

¿ Continue to drive adoption and impact of our performance tools, systems and processes amongst our owners.

 

LOGO Continue to enhance the functionality and performance of our direct channels to make these the preferred way to book.

 

LOGO Drive preference for IHG Rewards Club and leverage this to build deeper, lifetime relationships with our guests.

 

LOGO Continue with investment in technology systems and platforms and embed leading-edge digital technology and enhanced capabilities.

 

 

 

 

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Link between KPIs and Directors’ remuneration

KPIs which could have an impact on the performance measures for remuneration plans:

1 Annual incentive plan (Annual Performance Plan)

2 Long-term incentive plan (Long Term Incentive Plan)

 

 

For more information see Directors’ Remuneration Report pages 76 to 91.

Explanation as to how 2015 priorities have evolved from 2014 priorities:

¿  Same priority as 2014

LOGO  Specific progress made in 2014 against 2014 priority, the priority has accordingly been updated for 2015

LOGO  New priority for 2015 in line with changes to our business

 

 

 

 

KPIs 2014 progress   2015 priorities

 

Global RevPAR growth 1,2

 

LOGO

 

Comparable hotels, at constant currency

 

Revenue per available room: Rooms revenue divided by the number of room nights that are available (can be mathematically derived from occupancy rate multiplied by average daily rate).

 

 

Guest HeartBeat 1

 

LOGO

 

IHG’s guest satisfaction measurement tool to measure brand preference and guest satisfaction.

 

 

In line with our 2014 priorities, in relation to:

 

•   strengthening the quality and consistency of the brand experience, delivering guest journeys that are differentiated by brands, we:

 

-   clarified each of the brand propositions (see pages 4, 5 and 16);

 

-   recorded improvements in guest satisfaction scores in every region for our brands, leading to a global Guest HeartBeat score of 83.83%; and

 

-   received external recognition for our brands and hotels through winning over 300 global, regional and hotel level awards – see www.ihgplc.com/ourbrands.

 

•   continuing to progress with our standards refresh across the brands, we launched the Holiday Inn Express, Holiday Inn, EVEN, Crowne Plaza and InterContinental standards manuals online.

 

•   supporting the openings of the first EVEN and HUALUXE hotels (see pages 19 and 20).

 

•   continuing to invest in building long-term brand preference across our brands in line with segmentation by guest needs and occasions:

 

-   for the Crowne Plaza Hotels & Resorts brand, we introduced a new, innovatively designed guest room focused on meeting the changing needs of today’s modern business traveller;

 

-   for the InterContinental Hotel & Resorts brand, we rolled out the new signature InterContinental Planet Trekkers menu, created exclusively for children, across our properties;

 

-   to deliver the Holiday Inn brand experience, we continued to roll out the ‘Open Lobby’ concept across the brand, having opened five in the UK;

 

-   we further delivered on meeting guests’ changing needs by introducing a new Holiday Inn Express prototype design, which was co-created with hotel owners and through guest insights; and

 

-   we acquired Kimpton Hotels & Restaurants in January 2015 (see page 21).

 

•   empowering our frontline teams with the tools and training to consistently deliver great guest experiences that build brand preference:

 

-   2,000 hotel General Managers globally have participated in our Journey to Brand Manager programme; and

 

-   we embedded the IHG General Manager Programme for new hotel General Managers, with nearly 1,200 hotel General Managers having participated.

 

 

 

¿ Strengthen frontline training and capabilities to consistently deliver great guest experiences that build brand preference.

 

LOGO Continue to strengthen the quality and consistency of the brand experience, delivering guest journeys that are differentiated by brand and building long-term brand preference across our brands.

 

LOGO Embed refreshed brand standards across our brands.

 

LOGO Continue to operate the Kimpton brand successfully as part of the IHG portfolio.

 

 

 

 

Our regional priorities and progress in each of the regions are set out on pages 37, 40, 43 and 46.

 

 

LOGO

 

 

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IHG   Annual Report and Form 20-F 2014
 

Key perf orma nce indi cator s (KPIs) continued

 

 

Disciplined Execution

 

KPIs    2014 progress       2015 priorities

Fee margins 1

 

LOGO

 

*    Restated for IAS19R ‘Employee Benefits’

 

Operating profit as a percentage of revenue, excluding revenue and operating profit from owned and leased hotels, managed leases and significant liquidated damages.

 

  

•   In line with our 2014 priority to continue to focus on sustainable fee margin progression over the medium term, we delivered Group fee margins of 44.7%, up 1.5 percentage points on 2013, benefiting from slightly higher than usual strong growth in our scale markets.

 

•   Through leveraging our scale and focusing on productivity improvements, we intend to continue growing fee margins over the medium term. However, we will balance this with investing behind critical business capabilities to maximise top-line growth as well.

 

     

LOGO  Continue to focus on sustainable fee margin progression over the medium term.

 

 

Employee Engagement survey scores 1

 

LOGO

 

Average of a twice-yearly employee engagement survey, completed by employees and those who work in our managed hotels (excluding our joint ventures).

 

  

 

In line with our 2014 priorities, in relation to:

 

•   delivering our people strategy (see page 23), we increased our Employee Engagement survey score by 3 percentage points on 2013 and we continue to be recognised externally as an employer of choice – see page 9 and www.ihgplc.com/aboutus under our awards.

 

•   strengthening our approach to developing leaders and investing in tools and training that build leadership capabilities we:

 

-   launched new global leadership development programmes;

 

-   increased leadership succession through new appointments and internal promotions at senior levels and internal organisational changes in line with business priorities; and

 

-   improved our human resources systems and services through the introduction of a single system creating a streamlined, globally consistent approach to how we manage our people globally.

 

•   continuing to build a ‘winning culture’ (a high performing culture) through strong leadership and performance management, we:

 

-   introduced a new approach to performance management driving closer alignment of our global objectives, with stronger team collaboration and a simpler connection between achievement and reward;

 

-   rolled out a global metrics approach which requires each area of the business to align to their highest priorities; and

 

-   built a ‘winning culture’ champions network from our senior leadership population, to shape and deliver this approach globally.

 

•   improving the leadership capability of our frontline managers and supervisors, we launched a new frontline manager and a supervisor programme aimed at building critical skills to drive performance within our hotels.

 

Responsible business activities continue to drive high levels of pride in our employees with 92% of respondents of our Employee Engagement survey saying overall they felt more positive about IHG as a result of its responsible business initiatives and/or programmes.

 

     

 

LOGO  Continue to focus on developing our ‘winning culture’ through our leaders, in particular on how we build a higher level of feedback and coaching to drive performance.

 

LOGO  Review our learning practices across our corporate and hotel operations to shape the way we leverage learning over the next five years in line with business priorities.

 

LOGO  Review how we develop and retain talent and use our new human resources system to deliver better talent analytics and insight.

 

 

 

 

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Doing business responsibly

 

KPIs   2014 progress   2015 priorities

Number of people

participating in IHG

Academy programmes

 

LOGO

 

In line with our 2014 priorities to expand the IHG Academy:

 

•   6,666 people benefited from our global IHG Academy programmes in 2014, taking the total to 13,057 people since 2013; and

 

•   we expanded our IHG Academy to 626 programmes (as at 31 December 2014), which includes participation by 409 hotels in 58 countries – an increase of 325 programmes from 2013.

 

¿ Provide skills and improved employability to a total of 20,000 people via the IHG Academy over a five-year period (2013-2017).

 

¿ Continue to expand the IHG Academy throughout our hotel estate and work to ensure the programmes deliver positive results for participants, IHG and our hotels.

 

Value of monetary

donations and in-kind

support to communities,

including through IHG

Shelter in a Storm

 

LOGO

 

In line with our 2014 priorities to contribute to communities, we:

 

•   contributed a total of $6.18m in 2014, taking the total to $8.10m since 2013, to communities through monetary donations and in-kind support, including through IHG Shelter in a Storm;

 

•   have raised $840,000 for the IHG Shelter Fund during 2014; and

 

•   responded to 18 disasters in 9 countries in 2014, including Mexico, China, Egypt and the UK, allocating funds to help with financial support, vital supplies and accommodation.

 

¿ Contribute a total of $10m over a five-year period (2013-2017) to communities through monetary donations and in-kind support, including through IHG Shelter in a Storm.

 

¿ Further increase awareness of, and engagement with, IHG Shelter in a Storm, ensuring our hotels are prepared for disaster and able to respond quickly and effectively to help colleagues, guests and local communities when needed.

 

Carbon footprint per

occupied room

 

LOGO

 

*  Restated

 

See page 25 for further information on scope and methodology.

 

In line with our 2014 priorities to reduce our carbon footprint and drive the IHG Green Engage TM system, we:

 

•   reduced carbon footprint per occupied room to 32.3 kg CO 2 e (reduction of 3% on 2012 baseline) across our entire estate. Year-on-year, our carbon footprint increased by 0.6% per occupied room from 2012 to 2013 but reduced by 3.5% per occupied room from 2013 to 2014;

 

•   reported a Carbon Disclosure Project disclosure rating of 92B (this represents a significant increase on our score from the previous year (85B)); and

 

•   introduced a brand standard for all IHG hotels to be enrolled in the IHG Green Engage system.

 

¿ Reduce carbon footprint per occupied room by 12% across our entire estate (over a five-year period (2013-2017) using 2012 baseline).

 

¿ Continue to drive quality of use of the IHG Green Engage system to reduce impact on the environment, enable cost savings and drive revenue.

 

¿ Support all our hotels to meet the IHG Green Engage standard.

 

Water use per occupied

room in water-stressed

areas

 

LOGO

 

* Restated

 

In line with our 2014 priorities to reduce water use per occupied room in water-stressed areas, we:

 

•   reduced water use per occupied room by 0.03m 3 (reduction of 4.2% on 2012 baseline) in water-stressed areas. Year-on-year, water use in water-stressed areas increased by 0.5% per occupied room from 2012 to 2013 and decreased by 4.2% per occupied room from 2013 to 2014; and

 

•   launched a water stewardship programme to understand our risks and impacts allowing us to develop strategies to assist hotels at a local level.

 

¿ Reduce water use per occupied room by 12% in water-stressed areas across our estate (over a five-year period (2013-2017) using 2012 baseline).

 

¿ Launch phase two of the water stewardship programme.

 

¿ Improve a hotel’s understanding of water stress and pollution, and their relationship with local communities.

 

 

Our regional priorities and progress in each of the regions are set out on pages 37, 40, 43 and 46.

 

 

 

LOGO

 

 

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IHG   Annual Report and Form 20-F 2014
 
Pe r f or man ce

 

 

 

Group

 

Group results

            12 months ended 31 December  
     2014
$m
    2013
$m
   

2014 vs
2013 %

change

   

2012 1

$m

   

2013 vs
2012 %

change

 
Revenue                                        

Americas

    871        916        (4.9     837        9.4   

Europe

    374        400        (6.5     436        (8.3

AMEA

    242        230        5.2        218        5.5   

Greater China

    242        236        2.5        230        2.6   

Central

    129        121        6.6        114        6.1   
Total     1,858        1,903        (2.4     1,835        3.7   
Operating profit                                        

Americas

    544        550        (1.1     486        13.2   

Europe

    89        105        (15.2     112        (6.3

AMEA

    84        86        (2.3     88        (2.3

Greater China

    89        82        8.5        81        1.2   

Central

    (155     (155            (162     4.3   
Operating profit before exceptional items     651        668        (2.5     605        10.4   
Exceptional operating items     29        5        480.0        (4     225.0   
      680        673        1.0        601        12.0   
Net financial expenses     (80     (73     (9.6     (54     (35.2
Profit before tax     600        600               547        9.7   
Earnings per ordinary share                                        
Basic     158.3¢        140.9¢        12.3        187.1¢        (24.7
Adjusted     158.3¢        158.3¢               139.0¢        13.9   
Average US dollar to sterling exchange rate    

 

$1:

£0.61

  

  

   

 

$1:

£0.64

  

  

    (4.7    

 

$1:

£0.63

  

  

    1.6   

 

1   With effect from 1 January 2013 the Group adopted IASI9 (Revised) ‘Employee Benefits’ resulting in an additional charge to operating profit before exceptional items of $9m for the year ended 31 December 2012.

 

Accounting principles

The Group results are prepared under International Financial Reporting Standards (IFRS). The application of IFRS requires management to make judgements, estimates and assumptions and those considered critical to the preparation of the Group results are set out on pages 112 and 113 of the Group Financial Statements.

The Group discloses certain financial information both including and excluding exceptional items. For comparability of the periods presented, some of the performance indicators in this Performance review are calculated after eliminating these exceptional items. Such indicators are prefixed with ‘adjusted’. An analysis of exceptional items is included in note 5 on page 121 of the Group Financial Statements.

Highlights for the year ended 31 December 2014

Revenue decreased by $45m (2.4%) to $1,858m and operating profit before exceptional items decreased by $17m (2.5%) to $651m during the year ended 31 December 2014, due in part to the disposal of owned hotels in line with the Group’s asset-light strategy.

On 27 March 2014, IHG completed the disposal of its freehold interest in InterContinental Mark Hopkins San Francisco for gross proceeds of $120m and a long-term contract to manage the hotel. On 31 March 2014, IHG completed the disposal of 80% of its interest in InterContinental New York Barclay for gross proceeds of $274m and a 30-year management contract with two 10-year extension rights, retaining the remaining 20% in a joint venture set up to own and refurbish the hotel (see page 49).

On 7 August 2014, the Group received a binding offer to acquire InterContinental Paris – Le Grand for gross proceeds of 330m and a 30-year management contract with three 10-year extension rights. The offer was subsequently accepted on 8 December 2014, with the transaction expected to complete by the end of the first half of 2015, subject to the satisfaction of certain standard conditions.

On an underlying 1 basis, revenue and operating profit increased by $94m (6.0%) and $57m (9.6%) respectively. The underlying results exclude InterContinental Mark Hopkins San Francisco and InterContinental New York Barclay whilst under IHG ownership, the results of managed lease hotels, and the benefit of $7m liquidated damages receipts in 2014 and $46m liquidated damages receipts in 2013.

Comparable Group RevPAR (see Glossary on pages 184 and 185) increased by 6.1% (including an increase in average daily rate of 2.7%), led by particularly strong growth of 7.4% in The Americas. Group System size increased by 3.4% to 710,295 rooms whilst Group fee revenue 2 increased by 6.7%.

At constant currency, net central overheads decreased by $3m (1.9%) to $152m compared to 2013 (but at actual currency remained flat at $155m), helped by continued cost control, as well as additional technology fee income.

Group fee margin was 44.7%, up 1.5 percentage points on 2013, after adjusting for owned and leased hotels, managed leases and significant liquidated damages. Group fee margin benefited from strong growth in IHG’s scale markets.

Profit before tax of $600m was unchanged on 2013. Basic earnings per ordinary share increased by 12.3% to 158.3¢, whilst adjusted earnings per ordinary share remained flat at 158.3¢.

 

 

 

 

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Highlights for the year ended 31 December 2013

Group revenue increased by $68m (3.7%) to $1,903m and operating profit before exceptional items increased by $63m (10.4%) to $668m.

On 1 May 2013, IHG completed the disposal of its leasehold interest in InterContinental London Park Lane for gross proceeds of $469m and a 30-year management contract with three 10-year extension rights.

On an underlying 1 basis, defined as reported results, excluding those from the InterContinental London Park Lane whilst under IHG ownership, results from managed lease hotels, together with the benefit of $46m liquidated damages receipts in 2013 and a $3m liquidated damages receipt in 2012, revenue and operating profit increased by $68m (4.2%) and $44m (7.8%) respectively when translated at constant currency and applying 2012 exchange rates.

Fee revenue 2 increased by 4.3%, with comparable Group RevPAR growth of 3.8% over the period (including an increase in average daily rate of 1.8%) and IHG System size growth of 1.6% to 686,873 rooms.

At constant currency, net central overheads decreased from $162m to $157m in 2013 ($155m at actual currency), helped by continued tight cost control, as well as additional technology fee income.

Group fee margin was 43.2%, up 1.3 percentage points on 2012, after adjusting for owned and leased hotels, managed leases and significant liquidated damages.

Profit before tax increased by $53m to $600m. Adjusted earnings per ordinary share increased by 13.9% to 158.3¢.

 

Global total gross revenue

      12 months ended 31 December  
      2014
$bn
     2013
$bn
     % change  

InterContinental

     4.7         4.5         4.4   

Crowne Plaza

     4.2         4.0         5.0   

Hotel Indigo

     0.3         0.2         50.0   

Holiday Inn

     6.4         6.2         3.2   

Holiday Inn Express

     5.7         5.2         9.6   

Staybridge Suites

     0.7         0.6         16.7   

Candlewood Suites

     0.6         0.6           

Other

     0.2         0.3         (33.3
Total      22.8         21.6         5.6   

One measure of IHG System performance is the growth in total gross revenue, defined as total room revenue at franchised hotels and total hotel revenue at managed, owned and leased hotels. Total gross revenue is not revenue attributable to IHG, as it represents revenue generated mainly at hotels owned by third parties.

Total gross revenue increased by 5.6% (7.4% increase at constant currency) to $22.8bn, primarily driven by strong comparable RevPAR growth across the Group of 6.1% compared to 2013, coupled with an increase in System size of 3.4%.

 

 

1   Underlying excludes the impact of owned asset disposals, managed leases, significant liquidated damages and exceptional items translated at constant currency by applying prior year exchange rates.

 

2   Fee revenue is defined as Group revenue excluding revenue from owned and leased hotels, managed leases and significant liquidated damages.
 

 

 

 

LOGO

 

 

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IHG   Annual Report and Form 20-F 2014
 
Pe rf o rm a n ce continued

 

 

 

Global hotel and room count

              Hotels             Rooms  
At 31 December    2014      Change
over 2013
    2014      Change
over 2013
 
Analysed by brand                                   

InterContinental

     180         2        61,235         1,132   

Crowne Plaza

     406         15        113,562         4,671   

Hotel Indigo

     61         6        6,731         532   

EVEN Hotels

     2         2        296         296   

Holiday Inn 1

     1,212         (4     225,159         582   

Holiday Inn Express

     2,365         107        229,110         14,513   

Staybridge Suites

     205         9        22,409         891   

Candlewood Suites

     322         10        30,708         930   

Other

     87         (4     21,085         (125
Total      4,840         143        710,295         23,422   
Analysed by ownership type                                   

Franchised

     4,096         119        514,984         12,797   

Managed

     735         24        192,121         11,397   

Owned and leased

     9                3,190         (772
Total      4,840         143        710,295         23,422   

 

1   Includes 42 Holiday Inn Resort properties (9,904 rooms) and 12 Holiday Inn Club Vacations (4,027 rooms) (2013: 38 Holiday Inn Resort properties (8,818 rooms) and 10 Holiday Inn Club Vacations (3,701 rooms)).

During 2014, the global IHG System (the number of hotels and rooms which are franchised, managed, owned or leased by the Group) increased by 143 hotels (23,422 rooms) to 4,840 hotels (710,295 rooms).

The Group continued to expand its global footprint, opening hotels in nearly 30 different countries and territories and delivering its highest net System size growth since 2009. 40% of 2014 openings were in developing markets, as classified by The World Bank, with 22% of the closing rooms balance located in these markets representing an increase of one percentage point from 31 December 2013. 123 hotels (17,630 rooms) were removed in 2014, a decrease from the previous year (142 hotels, 24,576 rooms).

Openings of 266 hotels (41,052 rooms) were 15.7% higher than in 2013. This included 140 hotel openings (15,190 rooms) in the Holiday Inn brand family in The Americas and four hotels (834 rooms) as part of the US government’s Privatisation of Army Lodgings (PAL) initiative, as well as the first two hotels (296 rooms) for the wellness-focused EVEN Hotels brand. 34 hotels (10,648 rooms) were opened in Greater China in 2014, up 38.8% from last year and the region’s highest on record, with the Europe and AMEA regions contributing openings of 35 hotels (5,353 rooms) and 19 hotels (4,228 rooms) respectively.

Global pipeline

              Hotels             Rooms  
At 31 December    2014      Change
over 2013
    2014      Change
over 2013
 
Analysed by brand                                   

InterContinental

     50         (1     15,664         (1,196

HUALUXE

     24         3        7,551         747   

Crowne Plaza

     92         (2     25,336         (3,033

Hotel Indigo

     63         12        9,096         2,289   

EVEN Hotels

     3         (2     584         (296

Holiday Inn 1

     269         5        52,713         2,472   

Holiday Inn Express

     522         49        62,954         8,210   

Staybridge Suites

     99         19        10,908         2,180   

Candlewood Suites

     89         9        7,717         803   

Other

     10         9        1,249         1,135   
Total      1,221         101        193,772         13,311   
Analysed by ownership type                                   

Franchised

     843         65        94,730         7,945   

Managed

     377         38        98,838         5,662   

Owned and leased

     1         (2     204         (296
Total      1,221         101        193,772         13,311   
Global pipeline signings      463         19        69,696         4,235   

 

1   Includes 18 Holiday Inn Resort properties (4,412 rooms) and nil Holiday Inn Club Vacations (2013: Includes 14 Holiday Inn Resort properties (3,163 rooms) and one Holiday Inn Club Vacations (120 rooms)).

At the end of 2014, the global pipeline totalled 1,221 hotels (193,772 rooms), an increase of 101 hotels (13,311 rooms) on 31 December 2013. The IHG pipeline represents hotels where a contract has been signed and the appropriate fees paid. 89% of the closing pipeline at 31 December 2014 was in IHG’s 10 priority markets.

The continued global demand for IHG brands is demonstrated by the Group signing hotels in 35 different countries and territories in 2014, 35% of which were in developing markets. 48% of the closing pipeline at 31 December 2014 was in developing markets, down by three percentage points compared to the previous year. 28% of the closing pipeline at 31 December 2014 was in Greater China.

Group signings increased from 444 hotels (65,461 rooms) in 2013 to 463 hotels (69,696 rooms) in 2014, the strongest level in six years. This included 307 hotels (45,522 rooms) signed for the Holiday Inn brand family, up by 15.1% compared to 2013, nearly a quarter of which were contributed by Greater China (45 hotels, 10,860 rooms). The Greater China region signed a further 19 hotels (4,894 rooms) across other IHG brands. The pipeline for HUALUXE Hotels and Resorts increased by three hotels (747 rooms) to 24 hotels (7,551 rooms).

Active management of the pipeline to remove deals that have become dormant or no longer viable reduced the pipeline by 96 hotels (15,333 rooms), compared to 140 hotels (18,563 rooms) in 2013.

 

 

 

 

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The Americas

Maximise the performance and growth of our portfolio of preferred brands, focusing on our core upper midscale and upscale segments, mostly through franchise agreements, over the next three years.

 

LOGO

 

 

Industry performance in 2014

In 2014, industry RevPAR in The Americas grew by 8.4% driven by a 4.2% increase in demand and a 5.0% increase in average daily rate. On the supply side, the number of rooms increased by 1.0%, the fourth year with growth of 1.0% or less. All segments experienced strong growth, with the upper midscale segment, where the Holiday Inn and Holiday Inn Express brands operate, having a 7.5% growth in RevPAR.

The US lodging industry also saw strong growth as the economy continued to recover with GDP up 2.4%. In December, demand reached record highs for the 46 th consecutive month, while supply growth of 0.9% remained well below the 1.9% per annum historic average. Average daily rate growth of 4.6% combined with strong demand drove US RevPAR up 8.3%. RevPAR in the US upper midscale segment was up 8.2%, with the US upscale segment up by 8.4%.

 

 

 

IHG’s regional performance in 2014

IHG’s comparable RevPAR increased 7.4% with 3.7% rate growth. The region is predominantly represented by the US, where comparable RevPAR increased 7.5%. Our upper midscale brands in the US performed broadly in line with the segment, with RevPAR for the Holiday Inn brand increasing 8.1% whilst that for the Holiday Inn Express brand was at 7.2% due to higher absolute occupancies than the industry. Our US upscale brands (Crowne Plaza and Hotel Indigo) were also in line with the upscale segment with both brands increasing RevPAR by 8.3%. We strengthened our 20-year relationship with Grupo Presidente to expand the footprint and diversity of our brands in key cities and resort destinations.

We continued to demonstrate our commitment to quality with 12,230 rooms leaving the IHG System. Strong demand for IHG branded hotels continued with 38,108 rooms signed, with the pipeline increasing by 10,177 rooms over 2013.

 

Americas comparable RevPAR

movement on previous year

                  

12 months ended

31 December 2014

 

Franchised

             

Managed

        

Crowne Plaza

     6.9%        

InterContinental

     6.9%   

Holiday Inn

     7.9%        

Crowne Plaza

     12.7%   

Holiday Inn Express

     7.0%        

Holiday Inn

     9.0%   

All brands

     7.2%        

Staybridge Suites

     9.7%   
       

Candlewood Suites

     11.7%   
       

All brands

     8.9%   
       

Owned and leased

        
       

All brands

     11.2%   
 

 

 

Progress against 2014 regional priorities

In line with our 2014 regional priorities, we:

 

  continued to strengthen our preferred brands and provide best-in-class revenue delivery to hotels – the Holiday Inn brand rolled out revenue-driving food and beverage options to address guest needs, whilst the Holiday Inn Express brand introduced an innovative, cost effective design solution that resonated well with owners;

 

  strengthened our Holiday Inn brand family with the opening of 140 new hotels;

 

  continued to execute our multi-year programme to strengthen the Crowne Plaza brand by focusing on brand differentiation, performance initiatives and signing 10 hotels into the pipeline; and

 

  opened our first two hotels for the EVEN Hotels brand, which have consistently received excellent guest feedback.

IHG’s 2015 regional priorities

1. Continue to increase IHG System size growth through working with owners to accelerate openings, assisting low-performing hotels to improve, and continuing to support our high-performing hotels.

 

2. Continue to deliver against our multi-year plan for the Crowne Plaza Hotels & Resorts brand by enhancing the guest experience and driving brand differentiation through innovations.

 

3. Continue to strengthen the Holiday Inn brand family position through the delivery of innovations and consistency across our hotels.

Source: Smith Travel Research for all of the above industry facts.

 

 

 

 

LOGO

 

 

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IHG   Annual Report and Form 20-F 2014
 
Pe rf o rm a n ce continued

 

 

 

Americas results

      12 months ended 31 December  
      2014
$m
    2013
$m
    2014 vs
2013 %
change
    2012
$m
    2013 vs
2012 %
change
 
Revenue                                         

Franchised

     630        576        9.4        541        6.5   

Managed

     103        128        (19.5     97        32.0   

Owned and leased

     138        212        (34.9     199        6.5   
Total      871        916        (4.9     837        9.4   
Percentage of Group Revenue      46.9        48.1        (1.2     45.6        2.5   
Operating profit before exceptional items                                         

Franchised

     544        499        9.0        466        7.1   

Managed

     47        74        (36.5     48        54.2   

Owned and leased

     18        30        (40.0     24        25.0   
       609        603        1.0        538        12.1   
Regional overheads      (65     (53     (22.6     (52     (1.9
Total      544        550        (1.1     486        13.2   
Percentage of Group Operating profit before central overheads and exceptional items      67.5        66.8        0.7        63.4        3.4   

Highlights for the year ended 31 December 2014

With 3,699 hotels (460,017 rooms), The Americas represented 65% of the Group’s room count and 68% of the Group’s operating profit before central overheads and exceptional operating items for the year ended 31 December 2014. The key profit producing region is the US, although the Group is also represented in Latin America, Canada, Mexico and the Caribbean. 91% of rooms in the region are operated under the franchise business model, primarily in the upper midscale segment (Holiday Inn brand family). In the upscale segment Crowne Plaza is predominantly franchised whereas in the luxury segment InterContinental branded hotels are operated under both franchise and management agreements. Eight of the Group’s nine hotel brands are represented in The Americas, including the wellness-focused EVEN Hotels brand, which made its global debut in the region during the year, with two owned hotels (296 rooms) open at 31 December 2014.

Revenue and operating profit before exceptional items decreased by $45m (4.9%) to $871m and by $6m (1.1%) to $544m respectively. On an underlying 1 basis, revenue increased by $71m (9.7%), while operating profit increased by $39m (7.8%) driven predominantly by strong RevPAR growth in the fee business and an increase in net rooms. Regional overheads increased by 22.6% to $65m following investment in IHG’s development and quality teams and unusually high healthcare costs. Revenue and operating profit were negatively impacted by the disposal of an 80% interest in InterContinental New York Barclay and the disposal of InterContinental Mark Hopkins San Francisco during the year, by a combined $95m and $21m respectively compared to 2013. Conversely, revenue and operating profit were positively impacted by the benefit of $7m liquidated damages receipts in 2014 in the franchised business relating to two exited hotels, compared to $31m in the managed business in 2013.

 

Franchised revenue increased by $54m (9.4%) to $630m including the benefit of the $7m liquidated damages receipts (8.2% excluding these liquidated damages). Royalties growth of 7.6% was driven by comparable RevPAR growth of 7.2% including 7.9% for Holiday Inn and 7.0% for Holiday Inn Express, together with 2.0% rooms growth. Operating profit increased by $45m (9.0%) to $544m.

Managed revenue decreased by $25m (19.5%) to $103m and operating profit decreased by $27m (36.5%) to $47m. Revenue and operating profit included $38m (2013 $34m) and $nil (2013 $nil) respectively from one managed lease property. Excluding results from this hotel, as well as the $31m liquidated damages in 2013 (2014 $nil), revenue increased by $3m (4.8%) and operating profit increased by $4m (9.3%) on a constant currency basis.

Owned and leased revenue decreased by $74m (34.9%) to $138m and operating profit decreased by $12m (40.0%) to $18m. The decrease in revenue and operating profit were driven by the disposal of an 80% interest in InterContinental New York Barclay, and the disposal of InterContinental Mark Hopkins San Francisco (combined negative impact of $95m and $21m respectively). Excluding these two hotels, owned and leased revenue and operating profit increased by $21m and $9m respectively reflecting strong trading at InterContinental Boston and post refurbishment performance at Holiday Inn Aruba.

Highlights for the year ended 31 December 2013

Revenue and operating profit before exceptional items increased by $79m (9.4%) to $916m and by $64m (13.2%) to $550m respectively. On an underlying 1 basis, revenue and operating profit increased by $52m (6.5%) and $36m (7.5%) respectively. Revenue and operating profit were adversely impacted by $8m lower fees on the exit of eight Holiday Inn hotels owned by FelCor Lodging Trust but were positively impacted by the benefit of a $31m liquidated damages receipt in 2013 in the managed business, compared to $3m in 2012.

The franchise business drove most of the growth in the region (excluding the liquidated damages in the managed estate). Franchised revenue increased by $35m (6.5%) to $576m. Royalties growth of 4.7% was driven by RevPAR growth of 3.2%, including 3.4% for Holiday Inn Express, together with a 0.7% increase in available rooms. Operating profit increased by $33m (7.1%) to $499m. Fees from initial franchising, relicensing and termination of hotels also increased by $6m compared to 2012.

Managed revenue increased by $31m (32.0%) to $128m and operating profit increased by $26m (54.2%) to $74m. Revenue and operating profit included $34m (2012 $34m) and $nil (2012 $nil) respectively from one managed lease property. Excluding results from this hotel, as well as the benefit of the $31m liquidated damages in 2013 and the $3m in 2012, revenue grew by $4m (6.7%) and operating profit decreased by $2m (4.4%) on a constant currency basis.

Owned and leased revenue increased by $13m (6.5%) to $212m and operating profit grew by $6m (25.0%) to $30m. The increase in revenue was driven by RevPAR growth of 6.0%.

 

 

 

 

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Americas hotel and room count

              Hotels             Rooms  
At 31 December    2014      Change
over 2013
    2014      Change
over 2013
 
Analysed by brand                                   

InterContinental

     50         (1     16,897         (556

Crowne Plaza

     181         5        48,366         1,309   

Hotel Indigo

     39         2        4,551         207   

EVEN Hotels

     2         2        296         296   

Holiday Inn 1

     770         (16     136,280         (2,550

Holiday Inn Express

     2,060         75        182,601         8,170   

Staybridge Suites

     197         9        21,200         891   

Candlewood Suites

     322         10        30,708         930   

Other

     78         (3     19,118         (104
Total      3,699         83        460,017         8,593   
Analysed by ownership type                                   

Franchised

     3,477         83        417,215         8,340   

Managed

     217                41,172         1,025   

Owned and leased

     5                1,630         (772
Total      3,699         83        460,017         8,593   
Percentage of Group hotel and room count      76.4         (0.6     64.8         (0.9

 

1   Includes 20 Holiday Inn Resort properties (4,864 rooms) and 12 Holiday Inn Club Vacations (4,027 rooms) (2013: 18 Holiday Inn Resort properties (4,438 rooms) and 10 Holiday Inn Club Vacations (3,701 rooms)).

The Americas System size increased by 83 hotels (8,593 rooms) to 3,699 hotels (460,017 rooms) during 2014. 178 hotels (20,823 rooms) opened in the year, compared to 173 hotels (19,775 rooms) in 2013 and included four hotels (834 rooms) as part of the US government’s PAL initiative (33 hotels with 4,061 rooms in 2013). Openings included 140 hotels (15,190 rooms) in the Holiday Inn brand family, representing more than 70% of the region’s openings. 23 hotels (2,130 rooms) opened as Staybridge Suites hotels and Candlewood Suites hotels, IHG’s extended-stay brands. The first two hotels (296 rooms) were opened under the wellness-focused EVEN Hotels brand.

95 hotels (12,230 rooms) were removed from The Americas System in 2014, demonstrating IHG’s continued commitment to quality, compared to 112 hotels (17,968 rooms) in 2013. 45% of 2014 room removals were Holiday Inn rooms in the US (34 hotels, 5,499 rooms) compared to 61% in 2013 (53 hotels, 10,933 rooms).

 

Americas pipeline

              Hotels             Rooms  
At 31 December    2014      Change
over 2013
    2014      Change
over 2013
 
Analysed by brand                                   

InterContinental

     7         1        2,337         900   

Crowne Plaza

     18         2        3,206         (22

Hotel Indigo

     31         8        4,259         1,141   

EVEN Hotels

     3         (2     584         (296

Holiday Inn 1

     139                20,155         811   

Holiday Inn Express

     389         31        37,125         3,637   

Staybridge Suites

     90         19        9,594         2,099   

Candlewood Suites

     89         9        7,717         803   

Other

     10         9        1,218         1,104   
Total      776         77        86,195         10,177   
Analysed by ownership type                                   

Franchised

     740         62        78,980         6,961   

Managed

     35         17        7,011         3,512   

Owned and leased

     1         (2     204         (296
Total      776         77        86,195         10,177   

1 Includes nine Holiday Inn Resort properties (1,916 rooms) and nil Holiday Inn Club Vacations (2013: five Holiday Inn Resort properties (694 rooms) and one Holiday Inn Club Vacations (120 rooms)).

At 31 December 2014, The Americas pipeline totalled 776 hotels (86,195 rooms), representing an increase of 77 hotels (10,177 rooms) over the prior year. Strong signings of 319 hotels (38,108 rooms) were ahead of last year by 14 hotels (4,224 rooms) and the highest for six years, demonstrating continued demand for IHG branded hotels. Signings included 14 hotels (2,012 rooms) signed as part of the US government’s PAL initiative. The majority of 2014 signings were within the Holiday Inn brand family (208 hotels, 24,037 rooms), up by 17.0% compared to 2013, and included the 777-room Holiday Inn Nickelodeon Suites Orlando. Staybridge Suites and Candlewood Suites together contributed signings of 73 hotels (7,091 rooms), up by 31.2% compared to 2013. Crowne Plaza Atlanta – Midtown, which was signed and opened in the year, is one of 10 signings for the brand. Other notable signings included the 900-room InterContinental Downtown Los Angeles, the largest for the brand in the US.

64 hotels (7,108 rooms) were removed from the pipeline in 2014, significantly down in terms of both hotels and rooms from 2013 (103 hotels, 10,664 rooms).

 

1   Underlying excludes the impact of owned asset disposals, managed leases, significant liquidated damages and exceptional items translated at constant currency by applying prior year exchange rates.
 

 

 

 

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Table of Contents
 
IHG   Annual Report and Form 20-F 2014
 
Pe rf o rm a n ce continued

 

 

 

Europe

Continue to grow in priority markets and across key cities, and improve underlying margin through operational excellence over the next three years.

LOGO

 

 

Industry performance in 2014

Europe is a diverse region and industry figures are driven by the larger markets, in particular the UK and Germany. RevPAR growth was 6.0%, average daily rate grew by 3.5% and demand grew by 3.5%.

RevPAR growth in the UK reached 7.9% due to a 10.5% increase in the UK provinces, which was driven by a 6.5% increase in average daily rate and 4.9% increase in demand. However, RevPAR growth in other European countries was more moderate, with RevPAR

increasing in Germany by 3.8%. In contrast, the RevPAR in Russia declined steeply by 14.8%, as growth was depressed by ongoing conflict between Russia and the Ukraine and the resulting geopolitical instability throughout this area. Although there was a 5.1% decline in demand, supply continued to grow by 8.9%.

 

 

 

IHG’s regional performance in 2014

IHG’s comparable RevPAR increased by 5.1% with the UK particularly strong at 8.9%. Germany was also strong at 4.1%. IHG’s hotels in Russia and the Commonwealth of Independent States (CIS) were, however, impacted by the geopolitical instability in the region but our hotels outperformed the industry with a RevPAR decline of 4.0%.

Europe comparable RevPAR

movement on previous year

      12 months ended
31 December 2014
 
Franchised         

All brands

     5.3%    
Managed         

All brands

     5.4%    
Owned and leased         

InterContinental

     (4.7)%   
 

 

 

 

Progress against 2014 regional priorities

In line with our 2014 regional priorities, we:

 

  grew in our priority markets and key gateway cities with the signing of 48 hotels of which 17 were in the UK, 12 in Germany, and seven in Russia and the CIS;

 

  continued to expand the Hotel Indigo brand across the region in key gateway cities, opening four new properties in Paris, Madrid, Rome and St Petersburg, and as at 31 December 2014, had 17 open hotels and a further 12 in the pipeline for the brand;

 

  launched the Holiday Inn Express brand in Russia and the CIS (having localised the brand) with the opening of Holiday Inn Express Voronezh - Kirova, a debut for the brand in Russia;

 

  continued to improve guest experience and increase satisfaction at our hotels in the region by creating a culture focused on quality, accelerating the rollout of innovation and building a suite of tools that enables hotels to deliver operational excellence (see progress against KPIs set out on pages 30 to 33); and

 

  embedded our revenue and sales tools at our hotels, driving our commercial delivery and people platforms (see progress against KPIs set out on pages 30 to 33), helping us to deliver RevPAR outperformance in our three priority markets.

IHG’s 2015 regional priorities

1. Continue to build IHG System size through driving growth in our priority markets of UK, Russia and the CIS, and Germany, localising our brands as necessary.

 

2. Continue to improve guest experience and increase satisfaction by focusing on quality and driving innovation to ensure our brands are preferred.

 

3. Drive operational excellence and hotel outperformance by delivering a focused and targeted hotel support model, and best-in-class operational tools and training.

 

Source: Smith Travel Research for all of the above industry facts.

 

 

 

 

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Europe results

     

12 months ended 31 December

 
      2014
$m
    2013
$m
    2014 vs
2013 %
change
    2012
$m
    2013 vs
2012 %
change
 
Revenue                                         

Franchised

     104        104               91        14.3   

Managed

     159        156        1.9        147        6.1   

Owned and leased

     111        140        (20.7     198        (29.3
Total      374        400        (6.5     436        (8.3
Percentage of Group Revenue      20.1        21.0        (0.9     23.8        (2.8
Operating profit before exceptional items                                         

Franchised

     78        79        (1.3     65        21.5   

Managed

     30        30               32        (6.3

Owned and leased

     14        30        (53.3     50        (40.0
       122        139        (12.2     147        (5.4
Regional overheads      (33     (34     2.9        (35     2.9   
Total      89        105        (15.2     112        (6.3
Percentage of Group Operating profit before central overheads and exceptional items      11.0        12.8        (1.8     14.6        (1.8

Highlights for the year ended 31 December 2014

Comprising 647 hotels (104,208 rooms) at the end of 2014, Europe represented 15% of the Group’s room count and 11% of the Group’s operating profit before central overheads and exceptional operating items for the year ended 31 December 2014. Revenues are primarily generated from hotels in the UK and continental European gateway cities. The largest proportion of rooms in Europe are operated under the franchise business model primarily in the upper midscale segment (Holiday Inn and Holiday Inn Express). Similarly, in the upscale segment, Crowne Plaza is predominantly franchised, whereas in the luxury segment the majority of InterContinental branded hotels are operated under management agreements.

Revenue and operating profit before exceptional items decreased by $26m (6.5%) to $374m and by $16m (15.2%) to $89m respectively. On an underlying 1 basis, revenue and operating profit increased by $4m (1.4%) and $3m (3.5%) respectively. Overall, comparable RevPAR in Europe increased by 5.1%. The UK achieved a particularly strong comparable RevPAR growth of 8.9%, with double-digit growth in the first and third quarters. Comparable RevPAR in Germany was also strong, increasing by 4.1%, driven by continued growth in domestic output and a rise in employment, whilst IHG hotels in the Commonwealth of Independent States (CIS) collectively experienced a comparable RevPAR decline of 4.0%, reflecting a challenging economic climate in the region during 2014.

Franchised revenue remained flat at $104m, whilst operating profit decreased by $1m (1.3%) to $78m. Excluding the benefit of a $9m liquidated damages receipt in 2013, revenue and operating profit increased by $8m (8.4%) and $8m (11.4%) respectively at constant currency. This underlying growth was mainly driven by an increase in royalties of 8.0%, reflecting comparable RevPAR growth of 5.3%, together with 5.7% rooms growth.

Managed revenue increased by $3m (1.9%) to $159m, whilst operating profit was flat with 2013 at $30m. Revenue and operating profit included $90m (2013 $89m) and $2m (2013 $2m) respectively from managed leases. Excluding properties operated under this arrangement and on a constant currency basis, revenue increased by $3m (4.5%), whilst operating profit was flat. At the end of 2014, IHG commenced a process to restructure the majority of its UK managed hotels to new franchised contracts.

In the owned and leased estate, revenue decreased by $29m (20.7%) to $111m and operating profit decreased by $16m (53.3%) to $14m. At constant currency and excluding the impact of the disposal of InterContinental London Park Lane (which contributed revenue and operating profit of $22m and $8m respectively in 2013), owned and leased revenue and operating profit both decreased by $7m. These declines were driven by InterContinental Paris – Le Grand due to the refurbishment of the Salon Opera ballroom in the first half of 2014. The hotel delivered revenue and operating profit of $111m and $15m respectively, a decrease of 5.9% and 34.8% compared to 2013, whilst RevPAR decreased by 4.7%.

Highlights for the year ended 31 December 2013

Revenue and operating profit before exceptional items decreased by $36m (8.3%) to $400m and by $7m (6.3%) to $105m respectively. On an underlying 1 basis, revenue and operating profit increased by $9m (3.4%) and $8m (10.4%) respectively. Overall, RevPAR in Europe increased by 1.7%. The UK achieved RevPAR growth of 3.0%, with particularly strong performance in the final quarter of 2013 with RevPAR increasing 7.3%. RevPAR in Germany increased by 0.8% despite a weaker year-on-year trade fair calendar, whilst IHG hotels in the CIS collectively achieved RevPAR growth of 2.7%.

Franchised revenue increased by $13m (14.3%) to $104m, whilst operating profit increased by $14m (21.5%) to $79m. Excluding the benefit of a $9m liquidated damages receipt in 2013, revenue and operating profit increased by $4m (4.4%) and $5m (7.7%) respectively. Growth was mainly driven by an increase in royalties of 7.0% (6.3% at constant currency) reflecting RevPAR growth of 1.5%, partly offset by a 0.2% decline in available rooms.

 

1   Underlying excludes the impact of owned asset disposals, managed leases, significant liquidated damages and exceptional items translated at constant currency by applying prior year exchange rates.
 

 

 

 

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IHG   Annual Report and Form 20-F 2014
 
Pe rf o rm a n ce continued

 

 

 

Managed revenue increased by $9m (6.1%) to $156m and operating profit decreased by $2m (6.3%) to $30m. Revenue and operating profit included $89m (2012 $80m) and $2m (2012 $2m) respectively from managed leases. Excluding properties operated under this arrangement and on a constant currency basis, revenue was flat and operating profit decreased by $1m (3.3%).

In the owned and leased estate, revenue decreased by $58m (29.3%) to $140m and operating profit decreased by $20m (40.0%) to $30m. At constant currency and excluding the impact of the disposal of InterContinental London Park Lane, the owned and leased estate delivered a revenue increase of $5m (4.6%) with RevPAR growth of 5.3%. Operating profit increased by $4m (23.5%), benefiting from a one-off $3m property tax recovery in the year.

Europe hotel and room count

              Hotels             Rooms  
At 31 December    2014      Change
over 2013
    2014      Change
over 2013
 
Analysed by brand                                   

InterContinental

     30         (1     9,372         (153

Crowne Plaza

     83                19,395         (127

Hotel Indigo

     17         4        1,568         325   

Holiday Inn 1

     284         2        45,722         101   

Holiday Inn Express

     226         11        27,138         1,767   

Staybridge Suites

     5                784           

Other

     2         2        229         229   
Total      647         18        104,208         2,142   
Analysed by ownership type                                   

Franchised

     565         37        84,016         4,499   

Managed

     81         (19     19,722         (2,357

Owned and leased

     1                470           
Total      647         18        104,208         2,142   
Percentage of Group hotel and room count      13.4                14.7         (0.2

 

1   2014 and 2013 include 2 Holiday Inn Resort properties (212 rooms).

During 2014, Europe System size increased by 18 hotels (2,142 rooms) to 647 hotels (104,208 rooms). The Group opened 35 hotels (5,353 rooms) in Europe in 2014, compared to 21 hotels (3,528 rooms) in 2013. 2014 openings included two landmark InterContinental hotels; the 197-room InterContinental Dublin and the 331-room InterContinental Lisbon. Four further Hotel Indigo properties (325 rooms) opened in 2014, in prime city locations of Paris, Madrid, Rome and St Petersburg. Additionally, the Group opened Holiday Inn Express Voronezh - Kirova during 2014, a debut for the brand in Russia.

17 hotels (3,211 rooms) left the Europe System in the period, compared to 20 hotels (3,489 rooms) in the previous year.

Europe pipeline

              Hotels             Rooms  
At 31 December    2014      Change
over
2013
    2014      Change
over
2013
 
Analysed by brand                                   

InterContinental

     3         1        845         192   

Crowne Plaza

     14         2        2,917         293   

Hotel Indigo

     12         (3     1,368         (208

Holiday Inn

     37         2        6,944         332   

Holiday Inn Express

     44         1        6,374         358   

Staybridge Suites

     4         1        414         116   

Other

                    31         31   
Total      114         4        18,893         1,114   
Analysed by ownership type                                   

Franchised

     95         (2     13,996         (123

Managed

     19         6        4,897         1,237   
Total      114         4        18,893         1,114   

The Europe pipeline totalled 114 hotels (18,893 rooms) at 31 December 2014, representing an increase of four hotels (1,114 rooms) over 31 December 2013. New signings of 48 hotels (7,804 rooms), compared to 50 hotels (7,542 rooms) in 2013, included 16 hotel signings in the UK (2,234 rooms). The Group also signed 12 hotels (2,323 rooms) in Germany and seven new hotels (867 rooms) in countries in the CIS. Notable signings in Europe included the 162-room InterContinental Baku, the first for the brand in Azerbaijan.

Nine hotels (1,337 rooms) were removed from the pipeline in 2014, compared to 10 hotels (1,419 rooms) in 2013.

 

 

 

 

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Asia, Middle East and Africa (AMEA)

Execute our strategic plans to strengthen our brands and increase our revenue share through operational excellence and outperformance over the next three years.

 

 

LOGO

 

 

Industry performance in 2014

AMEA is the largest region in geographic terms, and performance varies across the countries that comprise the region.

The strongest of the larger markets in AMEA, in which we operate, are Australia, Japan and the Middle East. Australia experienced RevPAR growth of 4.1% due to both occupancy, which increased by 2.1%, and daily rate growth, which increased by 2.0%. Despite its economic contraction in the third quarter of 2014, Japan’s RevPAR grew 9.4% as a result of an 8.2% increase in daily rate. Occupancy growth was 1.1%.

Performance in the smaller AMEA markets, in which we operate, was less consistent. RevPAR in Saudi Arabia experienced an overall increase of 6.0%. Indonesia saw RevPAR growth for the year of 4.3%, primarily driven by a 6.9% increase in daily rate, and RevPAR in India grew by 0.8%.

 

 

 

IHG’s regional performance in 2014

Across this large and diverse geographic region, IHG is widely represented both geographically and by brand, and as such comparisons across the industry are hard to make. Overall IHG RevPAR increased 3.8% driven predominantly through rate growth with performance led by the Middle East (5.6% RevPAR growth) and positive trading in our mature markets of Japan (6.7% RevPAR growth) and Australia (3.9% RevPAR growth). India and Southeast Asia exhibited steady growth, with the exception of Thailand, which was impacted by political instability in the first half of 2014. Indonesia saw RevPAR growth of 9.1%.

AMEA comparable RevPAR

movement on previous year

      12 months ended
31 December 2014
 
Franchised         

All brands

     1.7%   
Managed         

All brands

     4.4%   
 

 

 

Progress against 2014 regional priorities

In line with our 2014 regional priorities, we:

 

  strengthened our position in the region’s priority markets and key gateway cities, opening 19 hotels (9 in Indonesia and India), taking the region’s System size to a total of 253 hotels (as at 31 December 2014) with notable openings including InterContinental Sydney Double Bay, the second for the brand in Sydney;

 

  accelerated the growth of our core brands across the region with the signing of 32 new hotels into the pipeline – including 21 hotels for the Holiday Inn brand family (9 hotels for the Holiday Inn Express brand) and 19 in the region’s emerging markets;

 

  continued to deliver operational excellence to improve guest satisfaction and deliver high-quality revenues by embedding our revenue tools, system delivery platforms, responsible business practices and People Tools (see progress against KPIs set out on pages 30 to 33); and

 

  accelerated a ‘winning culture’ with further alignment between operations and corporate teams and increased leadership capability to embed the systems, processes and competencies to deliver high performance.

IHG’s 2015 regional priorities

1. Continue to accelerate IHG System size growth across the region, focusing on any brand gaps in key cities and driving secondary city growth in our priority markets of the Middle East, India and Indonesia.

 

2. Focus on strong RevPAR growth through building preferred brands that deliver guest satisfaction.

 

3. Following the launch of the Hotel Indigo brand in the region, support the growth of the brand in AMEA.

Source: Smith Travel Research for all of the above industry facts.

 

 

 

 

LOGO

 

 

43


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IHG   Annual Report and Form 20-F 2014
 
Pe rf o rm a n ce continued

 

 

 

AMEA results

      12 months ended 31 December  
      2014
$m
    2013
$m
    2014 vs
2013 %
change
    2012
$m
    2013 vs
2012 %
change
 
Revenue                                         

Franchised

     16        16               18        (11.1

Managed

     187        170        10.0        152        11.8   

Owned and leased

     39        44        (11.4     48        (8.3
Total      242        230        5.2        218        5.5   
Percentage of Group Revenue      13.0        12.1        0.9        11.9        0.2   
Operating profit before exceptional items                                         

Franchised

     12        12               12          

Managed

     88        92        (4.3     90        2.2   

Owned and leased

     3        4        (25.0     6        (33.3
       103        108        (4.6     108          
Regional overheads      (19     (22     13.6        (20     (10.0
Total      84        86        (2.3     88        (2.3
Percentage of Group Operating profit before central overheads and exceptional items      10.5        10.4        0.1        11.5        (1.1

Highlights for the year ended 31 December 2014

Comprising 253 hotels (67,876 rooms) at 31 December 2014, AMEA represented 9% of the Group’s room count and contributed 10% of the Group’s operating profit before central overheads and exceptional operating items during the year. 82% of rooms in AMEA are operated under the managed business model. The region’s hotels are in the luxury, upscale and upper midscale segments.

Revenue increased by $12m (5.2%) to $242m whilst operating profit before exceptional items decreased by $2m (2.3%) to $84m. On an underlying 1 basis, revenue increased by $5m (2.5%) and operating profit increased by $4m (5.1%). The results included a $6m benefit from liquidated damages received in 2013 (2014 $nil). AMEA is a geographically diverse region and performance was impacted by political and economic factors affecting different countries.

Comparable RevPAR increased 3.8% driven by 2.4% rate growth. Performance was led by the Middle East, up 5.6%, driven by a solid performance in Saudi Arabia and a recovery in Egypt. This was supported by positive trading in the mature markets of Japan, which grew by 6.7%, and Australia, which grew by 3.9%. Elsewhere, both India and South East Asia exhibited steady growth, with the exception of Thailand which suffered from political instability in the first half of the year.

Franchised revenue and operating profit remained flat at $16m and $12m respectively.

 

Managed revenue increased by $17m (10.0%) to $187m whilst operating profit decreased by $4m (4.3%) to $88m. Revenue and operating profit included $41m (2013 $21m) and $4m (2013 $1m) respectively from one managed lease property. Excluding results from this hotel, as well as the benefit of $6m liquidated damages in 2013 (2014 $nil), revenue increased by $7m (4.9%) whilst operating profit increased by $2m (2.4%) on a constant currency basis. Comparable RevPAR increased by 4.4%, with room count increasing by 5.9%.

In the owned and leased estate, revenue and operating profit decreased by $5m (11.4%) to $39m and by $1m (25.0%) to $3m respectively, due to a 6.3% decrease in RevPAR.

Highlights for the year ended 31 December 2013

Revenue increased by $12m (5.5%) to $230m and operating profit decreased by $2m (2.3%) to $86m. On an underlying 1 basis, revenue and operating profit decreased by $6m (2.8%) and $7m (8.0%) respectively. The results included a $6m benefit from liquidated damages in 2013 (2012 $nil). RevPAR increased by 6.1%, with 3.0% growth in average daily rate. AMEA is a geographically diverse region and performance is impacted by political and economic factors affecting different countries. The Middle East delivered RevPAR growth of 2.9%, driven by strength in the United Arab Emirates and Saudi Arabia, whilst continuing political uncertainty impacted some of our other markets in the region, particularly Egypt and Lebanon. Performance in Japan was strong, with RevPAR increasing by 9.6%, whilst Australia also achieved solid RevPAR growth of 2.8%. RevPAR growth in developing markets remained buoyant, led by 12.2% RevPAR growth in Indonesia. Revenue and operating profit growth were muted by a $6m negative year-on-year impact from the renewal of a small number of long-standing contracts onto current commercial terms. In addition, there was a $4m negative impact from similar contracts that were not renewed.

Franchised revenue decreased by $2m (11.1%) to $16m, whilst operating profit was flat at $12m.

Managed revenue and operating profit increased by $18m (11.8%) to $170m and by $2m (2.2%) to $92m respectively. During 2013, a new property opened under an operating lease structure, with the same characteristics as a management contract, contributing revenue of $21m and operating profit of $1m. Excluding this property together with the benefit of the $6m liquidated damages receipt in 2013, revenue and operating profit decreased by $4m (2.6%) and $4m (4.4%) respectively at constant currency. RevPAR increased by 5.6%, with AMEA System size up 2.6%.

In the owned and leased estate, revenue and operating profit decreased by $4m (8.3%) to $44m and by $2m (33.3%) to $4m respectively, driven by a 7.3% RevPAR decline.

 

 

 

 

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AMEA hotel and room count

              Hotels             Rooms  
At 31 December    2014      Change
over 2013
    2014      Change
over 2013
 
Analysed by brand                                   

InterContinental

     67                21,424         41   

Crowne Plaza

     69         2        19,688         610   

Holiday Inn 1

     85         4        19,750         1,286   

Holiday Inn Express

     24         8        5,295         1,795   

Staybridge Suites

     3                425           

Other

     5         (5     1,294         (694
Total      253         9        67,876         3,038   
Analysed by ownership type                                   

Franchised

     50         (1     11,569         (42

Managed

     201         10        55,720         3,080   

Owned and leased

     2                587           
Total      253         9        67,876         3,038   
Percentage of Group hotel and room count      5.2                9.5         0.2   

 

1   Includes 14 Holiday Inn Resort properties (3,003 rooms) (2013: 14 Holiday Inn Resort properties (2,965 rooms)).

The AMEA System size increased by nine hotels (3,038 rooms) to 253 hotels (67,876 rooms) as at 31 December 2014. The level of openings decreased marginally to 19 hotels (4,228 rooms) in 2014 from 20 hotels (4,495 rooms) in 2013. Openings in 2014 included two hotels (417 rooms) for the InterContinental brand, including the 140-room InterContinental Sydney Double Bay, the second for the brand in Sydney, and four hotels (1,039 rooms) in India.

10 hotels (1,190 rooms) were removed from the AMEA System in 2014, compared to eight hotels (2,394 rooms) in 2013.

AMEA pipeline

              Hotels             Rooms  
At 31 December    2014      Change
over 2013
    2014      Change
over 2013
 
Analysed by brand                                   

InterContinental

     22         1        5,804         426   

Crowne Plaza

     16         2        4,412         364   

Hotel Indigo

     10         2        1,823         431   

Holiday Inn 1

     50         1        13,230         889   

Holiday Inn Express

     39         0        8,177         197   

Staybridge Suites

     5         (1     900         (35
Total      142         5        34,346         2,272   
Analysed by ownership type                                   

Franchised

     8         5        1,754         1,107   

Managed

     134                32,592         1,165   
Total      142         5        34,346         2,272   

 

1   Includes seven Holiday Inn Resort properties (1,729 rooms) (2013: six Holiday Inn Resort properties (1,579rooms)).

At 31 December 2014, the AMEA pipeline totalled 142 hotels (34,346 rooms) compared to 137 hotels (32,074 rooms) as at 31 December 2013. Signings in AMEA of 32 hotels (8,030 rooms) were slightly below the level seen in 2013 (36 hotels, 8,687 rooms). Signings in 2014 included 21 hotels (5,507 rooms) in the Holiday Inn brand family, notably including the 1,000-room Holiday Inn Newport City in Manila. Four InterContinental hotels (999 rooms) were signed during 2014.

Eight hotels (1,530 rooms) were removed from the pipeline in 2014, compared to 11 hotels (2,475 rooms) in 2013.

 

 

1   Underlying excludes the impact of owned asset disposals, managed leases, significant liquidated damages and exceptional items translated at constant currency by applying prior year exchange rates.
 

 

 

 

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45


Table of Contents
 
IHG   Annual Report and Form 20-F 2014
 
Pe rf o rm a n ce continued

 

 

 

Greater China

Maximise scale and strength and establish multi-segment local operating expertise to drive margin and expand our strong portfolio of brands over the next three years.

LOGO

 

 

Industry performance in 2014

The Chinese economy achieved GDP growth of 7.4% in 2014, a slowdown against the average of 8.9% growth in the period from 2009 to 2013. This slowdown was attributable to several factors, including lessening domestic demand and manufacturing output, a correction in the real estate market and declining inflation. Growth is expected to reduce further in 2015 and 2016.

Hotel industry RevPAR in Greater China decreased by 0.9% in the year. Whilst overall occupancy increased by 1.9%, average daily

rates decreased by 2.8%. Much of this decrease in the region is due to changes in the industry structure due to growth in tier 2 and 3 cities as well as from growth of economy brands.

RevPAR in the People’s Republic of China (excluding Taiwan) decreased by 1.5%. Many major cities, such as Shanghai and Guangzhou, experienced an increase in RevPAR driven by strong occupancy gains. However, RevPAR in Beijing and surrounding North China, East China and South China saw a decrease in year-on-year RevPAR growth.

 

 

 

IHG’s regional performance in 2014

IHG’s comparable RevPAR increased 1.6% in 2014, significantly ahead of the overall industry. Trading was strongest in tier 1 cities, whilst tier 2 and 3 cities were softer, impacted by new supply as these markets develop. Our RevPAR growth was driven by occupancy which increased by 2.4%, whilst rate decreased by 2.3% – both ahead of the industry, reflecting our scale and management strength in the region.

 

Greater China comparable RevPAR

movement on previous year

      12 months ended
31 December 2014
 
Managed         

All brands

     1.3%    
Owned and leased         

InterContinental

     (1.0)%   
 

 

 

Progress against 2014 regional priorities

In line with our 2014 regional priorities, we:

 

  grew distribution of our brands in the region with 34 hotel openings and 64 hotels signed into our pipeline;

 

  opened 19 hotels during the year for the Holiday Inn brand family (Holiday Inn and Holiday Inn Express), including the opening of the 50 th Holiday Inn Express hotel, and signed a further 45 hotels into the pipeline for the Holiday Inn brand family;

 

  continued to make progress with the HUALUXE Hotels and Resorts brand, with 24 hotels in the pipeline as at 31 December 2014 – one of which we opened in February 2015 (see page 19);

 

  continued to grow our talent (see page 23); and

 

  continued to localise IHG brands, systems, tools, processes and responsible business practices to increase efficiency and margin performance (see progress against KPIs set out on pages 30 to 33).

IHG’s 2015 regional priorities

1. Further increase IHG System size, with deeper penetration in tier 2 and 3 cities and strengthen the distribution of the Holiday Inn and Holiday Inn Express brands to capture the growing midscale segment opportunity.

 

2. Build a strong pipeline for the HUALUXE Hotels and Resorts brand and support the subsequent hotel openings.

 

3. Continue to grow our talent and build a strong local talent pipeline, particularly in tier 2 and 3 cities.

Source: Smith Travel Research for all of the above industry facts.

 

 

 

 

 

 

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Greater China results

      12 months ended 31 December  
      2014
$m
    2013
$m
    2014 vs
2013 %
change
    2012
$m
    2013 vs
2012 %
change
 
Revenue                                         

Franchised

     4        3        33.3        3          

Managed

     99        92        7.6        89        3.4   

Owned and leased

     139        141        (1.4     138        2.2   
Total      242        236        2.5        230        2.6   
Percentage of Group Revenue      13.0        12.4        0.6        12.5        (0.1
Operating profit before exceptional items                                         

Franchised

     5        5               4        25.0   

Managed

     63        51        23.5        51          

Owned and leased

     42        47        (10.6     45        4.4   
       110        103        6.8        100        3.0   
Regional overheads      (21     (21            (19     (10.5
Total      89        82        8.5        81        1.2   
Percentage of Group Operating profit before central overheads and exceptional items      11.0        10.0        1.0        10.6        (0.6

Highlights for the year ended 31 December 2014

Comprising 241 hotels (78,194 rooms) at 31 December 2014, Greater China represented 11% of the Group’s room count and contributed 11% of the Group’s operating profit before central overheads and exceptional operating items for the year ended 31 December 2014. 97% of rooms in Greater China are operated under the managed business model. The region’s hotels are in the luxury, upscale and upper midscale segments.

Revenue and operating profit before exceptional items increased by $6m (2.5%) to $242m and by $7m (8.5%) to $89m respectively. Overall, the region achieved comparable RevPAR growth of 1.6%, slightly stronger than the 1.0% growth achieved in 2013. This performance was significantly ahead of the industry, reflecting IHG’s scale and management strength in the region, and was achieved in a challenging environment with slower macro-economic conditions, government austerity measures and protests in Hong Kong. Trading was strongest in tier 1 cities, especially Shanghai and Guangzhou, with good levels of transient and corporate business. Performance in tier 2 and 3 cities continues to be impacted by new supply as these markets develop. Total RevPAR in the region decreased by 3.4% as hotels opened in these lower RevPAR markets.

Franchised revenue increased by $1m (33.3%) to $4m whilst operating profit was flat at $5m. Operating profit was higher than revenue in both 2014 and 2013 due to joint venture dividend income received from a hotel in Hong Kong.

Managed revenue increased by $7m (7.6%) to $99m, whilst operating profit increased by $12m (23.5%) to $63m, reflecting improvements in operating margin, net rooms growth, and a small number of one-off items that contributed approximately $5m to the result. Comparable RevPAR increased by 1.3%, whilst the Greater China System size grew by 14.7%, driving a 8.5% increase in total gross revenue derived from rooms business. Total gross revenue derived from non-rooms business increased by 7.8%.

Owned and leased revenue decreased by $2m (1.4%) to $139m, driven by a RevPAR decrease of 1.0% at InterContinental Hong Kong. Operating profit decreased by $5m (10.6%) to $42m. The decrease in revenue and operating profit at the hotel was driven primarily by the ongoing development of the area adjacent to the hotel and protests in central Hong Kong.

Highlights for the year ended 31 December 2013

Revenue and operating profit before exceptional items increased by $6m (2.6%) to $236m and by $1m (1.2%) to $82m respectively. On an underlying basis, revenue and operating profit increased by $6m (2.6%) and $2m (2.5%) respectively.

Franchised revenue was flat at $3m and operating profit increased by $1m (25.0%) to $5m.

Managed revenue increased by $3m (3.4%) to $92m and operating profit was flat at $51m. RevPAR increased by 0.6%, whilst the Greater China System size grew by 11.8%, driving a 9.2% increase in total gross revenue derived from rooms business. Total gross revenue derived from non-rooms business increased by 3.0%. Operating profit was partly offset by increased investment to drive future growth.

Owned and leased revenue at InterContinental Hong Kong increased by $3m (2.2%) to $141m, driven by a 4.5% increase in total gross revenue derived from non-rooms business, although this was partly offset by a RevPAR decline of 0.1%. Operating profit increased by $2m (4.4%) to $47m.

 

 

 

 

LOGO

 

 

47


Table of Contents
 
IHG   Annual Report and Form 20-F 2014
 
Pe rf o rm a n ce continued

 

 

 

Greater China hotel and room count

              Hotels              Rooms  
At 31 December    2014      Change
over 2013
     2014      Change
over 2013
 
Analysed by brand                                    

InterContinental

     33         4         13,542         1,800   

Crowne Plaza

     73         8         26,113         2,879   

Hotel Indigo

     5                 612           

Holiday Inn 1

     73         6         23,407         1,745   

Holiday Inn Express

     55         13         14,076         2,781   

Other

     2         2         444         444   
Total      241         33         78,194         9,649   
Analysed by ownership type                                    

Franchised

     4                 2,184           

Managed

     236         33         75,507         9,649   

Owned and leased

     1                 503           
Total      241         33         78,194         9,649   
Percentage of Group hotel and room count      5.0         0.6         11.0         1.0   

 

1   Includes six Holiday Inn Resort properties (1,825 rooms) (2013: four Holiday Inn Resort properties (1,203 rooms)).

The Greater China System size increased by 33 hotels (9,649 rooms) in the year to 241 hotels (78,194 rooms). 34 hotels (10,648 rooms) opened during 2014, 11 hotels and 2,979 rooms higher than 2013 and a record year for the region. Recent growth in the region has focused on tier 2 and 3 cities, which now represent approximately two-thirds of IHG’s open rooms. The InterContinental brand System size increased by four hotels (1,800 rooms) to 33 hotels (13,542 rooms) during the year, including the addition of the 990-room InterContinental Chengdu Global Centre. 19 Holiday Inn brand family hotels (4,445 rooms) were also added in the year, including the 50 th Holiday Inn Express, nine hotels (1,078 rooms) higher than in 2013. Nine Crowne Plaza hotels (3,498 rooms) were also added during the year, including the 466-room Crowne Plaza Beijing Lido, increasing the Crowne Plaza System size to 73 hotels (26,113 rooms).

One hotel (999 rooms) was removed in 2014, compared to two hotels (725 rooms) in 2013.

Greater China pipeline

              Hotels             Rooms  
At 31 December    2014      Change
over 2013
    2014      Change
over 2013
 
Analysed by brand                                   

InterContinental

     18         (4     6,678         (2,714

HUALUXE

     24         3        7,551         747   

Crowne Plaza

     44         (8     14,801         (3,668

Hotel Indigo

     10         5        1,646         925   

Holiday Inn 1

     43         2        12,384         440   

Holiday Inn Express

     50         17        11,278         4,018   
Total      189         15        54,338         (252
Analysed by ownership type                                   

Managed

     189         15        54,338         (252
Total      189         15        54,338         (252

 

1   Includes two Holiday Inn Resort properties (767 rooms) (2013: three Holiday Inn Resort properties (890 rooms)).

At 31 December 2014, the Greater China pipeline totalled 189 hotels (54,338 rooms) compared to 174 hotels (54,590 rooms) at 31 December 2013. Signings of 64 hotels (15,754 rooms) increased from 53 hotels (15,348 rooms) in 2013. Three InterContinental hotels (930 rooms) were signed, together with five Crowne Plaza hotels (1,400 rooms), whilst the total pipeline for the HUALUXE Hotels and Resorts brand increased to 24 hotels (7,551 rooms). 45 hotels (10,860 rooms) were signed for the Holiday Inn brand family, with the Holiday Inn Express brand pipeline increasing to 50 hotels.

15 hotels (5,358 rooms) were removed from the pipeline in 2014, compared to 16 hotels (4,005 rooms) in 2013.

 

 

Central

 

Central results

      12 months ended 31 December  
      2014
$m
    2013
$m
    2014 vs
2013 %
change
    2012
$m
    2013 vs
2012 %
change
 
Revenue      129        121        6.6        114        6.1   
Gross central costs      (284     (276     (2.9     (276       
Net central costs      (155     (155            (162     4.3   

Highlights for the year ended 31 December 2014

Central revenue, which mainly comprises technology fee income, increased by $8m (6.6%) to $129m, driven by increases in both comparable RevPAR (6.1%) and IHG System size (3.4%) in 2014 compared to 2013. At constant currency, gross central costs increased by $4m (1.4%) compared to 2013 (an $8m or 2.9% increase at actual currency).

Highlights for the year ended 31 December 2013

Central revenue, mainly comprising technology fee income, increased by $7m (6.1%) to $121m, driven by increases to both RevPAR and IHG System size over 2012. Gross central costs were flat at $276m in 2013, reflecting continued tight cost control.

 

 

 

 

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System Fund

System Fund assessments

      12 months ended 31 December  
      2014
$m
     2013
$m
     2014 vs
2013 %
change
     2012
$m
     2013 vs
2012 %
change
 
Assessment fees and contributions received from hotels      1,271         1,154         10.1         1,106         4.3   
Proceeds from sale of IHG Rewards Club points      196         153         28.1         144         6.3   
Total      1,467         1,307         12.2         1,250         4.6   

In addition to management or franchise fees, hotels within the IHG System pay assessments and contributions which are collected by IHG for specific use within the System Fund. The System Fund also receives proceeds from the sale of IHG Rewards Club points. The System Fund is managed for the benefit of hotels in the IHG System with the objective of driving revenues for the hotels.

The System Fund is used to pay for marketing, the IHG Rewards Club loyalty programme and the global reservation system. The operation of the System Fund does not result in a profit or loss for the Group and consequently the revenues and expenses of the System Fund are not included in the Group Income Statement.

Highlights for the year ended 31 December 2014

In the year to 31 December 2014, System Fund income increased by 12.2% to $1,467m primarily as a result of a 10.1% increase in assessment fees and contributions from hotels resulting from increased hotel room revenues, reflecting increases in RevPAR and IHG System size. Continued strong performance in co-branded credit card schemes drove the 28.1% increase in proceeds from the sale of IHG Rewards Club points.

Highlights for the year ended 31 December 2013

In the year to 31 December 2013, System Fund income increased by 4.6% to $1,307m primarily as a result of growth in hotel room revenues due to increases in RevPAR and IHG System size. The increase in proceeds from the sale of IHG Rewards Club points mainly reflects the continued strong performance of co-brand credit card schemes.

Other financial information

Exceptional operating items

Exceptional operating items totalled a net gain of $29m. The exceptional gain of $130m related to the sale of InterContinental Mark Hopkins San Francisco and the disposal of an 80% interest in InterContinental New York Barclay. Exceptional charges included $14m foreign exchange losses resulting from recent changes to the Venezuelan exchange rate mechanisms and the adoption of the SICAD II exchange rate; $29m relating primarily to structural change programmes across the Global Human Resources and Global Technology functions; $6m arising from a partial cash-out of the UK unfunded pension arrangements; $45m relating to the cost of securing a restructuring of the UK hotel portfolio; and $7m Kimpton Hotels & Restaurants acquisition transaction costs. See note 5 to the Group Financial Statements for further detail.

Exceptional operating items are treated as exceptional by reason of their size or nature and are excluded from the calculation of adjusted earnings per ordinary share in order to provide a more meaningful comparison of performance.

Net financial expenses

Net financial expenses increased by $7m to $80m reflecting an increase in average net debt levels and the translation of interest on the two sterling bonds.

Financing costs included $2m (2013 $2m) of interest costs associated with IHG Rewards Club where interest is charged on the accumulated balance of cash received in advance of the redemption of points awarded. Financing costs in 2014 also included $19m (2013 $19m) in respect of the InterContinental Boston finance lease.

Taxation

The effective rate of tax on operating profit excluding the impact of exceptional items was 31% (2013 29%). Excluding the impact of prior year items the equivalent tax rate would be 35% (2013 32%). This rate is higher than the average UK statutory rate of 21.5% (2013 23.25%) due mainly to certain overseas profits (particularly in the US) being subject to statutory rates higher than the UK statutory rate, unrelieved foreign taxes and disallowable expenses.

Taxation within exceptional items totalled a charge of $29m (2013 $51m). In 2014 the charge comprised $56m relating to the disposal of an 80% interest in InterContinental New York Barclay offset by a credit of $27m relating to a restructuring of the UK hotel portfolio and other reorganisation costs. In 2013 the charge comprised $6m relating to the exceptional operating items and $64m consequent upon the disposal of InterContinental London Park Lane, offset by a credit of $19m relating to an internal restructuring.

Net tax paid in 2014 totalled $136m (2013 $97m) including $nil (2013 $5m) in respect of disposals. Tax paid represents an effective rate of 23% (2013 16%) on total profits and is lower than the effective income statement tax rate of 31% primarily due to the impact of deferred taxes (including the realisation of assets such as tax losses), the receipt of refunds in respect of prior years and provisions for tax for which no payment of tax has currently been made.

 

 

 

 

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Pe rf o rm a n ce continued

 

 

 

    

    

IHG pursues a tax strategy that is consistent with its business strategy and its overall business conduct principles. This strategy seeks to ensure full compliance with all tax filing, payment and reporting obligations on the basis of communicative and transparent relationships with tax authorities. Policies and procedures related to tax risk management are subject to regular review and update and are approved by the Board.

Tax liabilities or refunds may differ from those anticipated, in particular as a result of changes in tax law, changes in the interpretation of tax law, or clarification of uncertainties in the application of tax law. Procedures to minimise risk include the preparation of thorough tax risk assessments for all transactions carrying tax risk and, where appropriate, material tax uncertainties are discussed and resolved with tax authorities in advance.

IHG’s contribution to the jurisdictions in which it operates includes a significant contribution in the form of taxes borne and collected, including taxes on its revenues and profits and in respect of the employment its business generates.

IHG earns approximately 70% of its revenues in the form of franchise, management or similar fees, with 85% of IHG branded hotels being franchised. In jurisdictions in which IHG does franchise business, the prevailing tax law will generally provide for IHG to be taxed in the form of local withholding taxes based on a percentage of fees rather than based on profits. Costs to support the franchise business are normally incurred regionally or globally and therefore profits for an individual franchise jurisdiction cannot be separately determined.

Dividends

The Board has proposed a final dividend per ordinary share of 52¢ (33.8p). With the interim dividend per ordinary share of 25¢ (14.8p), the full-year dividend per ordinary share for 2014 will total 77¢ (48.6p), an increase of 10.0% over 2013.

On 2 May 2014, the Group announced a $750m return to shareholders by way of special dividend and share consolidation. The dividend was paid to shareholders on 14 July 2014.

Under the $500m share buyback programme announced on 7 August 2012, which commenced on 12 November 2012 and completed on 29 May 2014, a total of 17.3m shares have been repurchased for total consideration of $500m.

Earnings per ordinary share

Basic earnings per ordinary share increased by 12.3% to 158.3¢ from 140.9¢ in 2013. Adjusted earnings per ordinary share remained unchanged at 158.3¢.

Share price and market capitalisation

The IHG share price closed at £25.95 on 31 December 2014, up from £20.13 on 31 December 2013. The market capitalisation of the Group at the year end was £6.4bn.

Liquidity and capital resources

Sources of liquidity

The Group is financed by a $1.07bn syndicated bank facility which expires in November 2016 (the Syndicated Facility), £250m of public bonds which are repayable on 9 December 2016 and £400m of public bonds which are repayable on 28 November 2022. $361m was drawn under the $1.07bn Syndicated Facility at the year end. The bonds are issued under the Group’s £750m Medium Term Notes programme. Short-term borrowing requirements are met from drawings under bilateral bank facilities. Additional funding is provided by the 99-year finance lease (of which 91 years remain) on InterContinental Boston and other uncommitted bank facilities (see note 21 to the Group Financial Statements). In the Group’s opinion, the available facilities are sufficient for the Group’s present liquidity requirements.

The Syndicated Facility contains two financial covenants; interest cover and net debt divided by earnings before interest, tax, depreciation and amortisation. The Group is in compliance with all of the financial covenants in its loan documents, none of which is expected to present a material restriction on funding in the near future.

Net debt of $1,533m (2013 $1,153m) is analysed by currency as follows:

 

      2014
$m
    2013 1
$m
 
Borrowings                 

Sterling

     1,028        671   

US dollar

     557        709   

Euros

     103        11   

Other

     7        10   
Cash and cash equivalents                 

Sterling

     (21     (87

US dollar

     (54     (40

Euros

     (25     (15

Canadian dollar

     (14     (25

Chinese renminbi

     (8     (15

Other

     (40     (66
Net debt 2      1,533        1,153   
Average debt levels      1,322        985   

 

1   Restated for the adoption of ‘Offsetting Financial Assets and Financial Liabilities’ (Amendments to IAS 32), see page 107.
2   Including the impact of currency derivatives.

Borrowings included bank overdrafts of $107m (2013 $114m) which were matched by an equivalent amount of cash and cash equivalents under the Group’s cash pooling arrangements. Under these arrangements, each pool contains a number of bank accounts with the same financial institution and the Group pays interest on net overdraft balances within each pool. The cash pools are used for day-to-day cash management purposes and are managed daily as closely as possible to a zero balance on a net basis for each pool. Overseas subsidiaries are typically in a cash positive position, with the most significant balances in the US and Canada, and the matching overdrafts are held by the Group’s central treasury company in the UK.

 

 

 

 

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Cash and cash equivalents include $4m (2013 $12m) that is not available for use by the Group due to local exchange controls.

Information on the maturity profile and interest structure of borrowings is included in notes 20 and 21 to the Group Financial Statements.

The Group had net liabilities of $717m at 31 December 2014 reflecting that its brands are not recognised in the Group statement of financial position. At the end of 2014 the Group was trading significantly within its banking covenants and facilities.

Cash from operating activities

Net cash from operating activities totalled $543m for the year ended 31 December 2014 down $81m on the previous year largely due to increased cash flows relating to exceptional operating items.

Cash flow from operating activities is the principal source of cash used to fund the ongoing operating expenses, interest payments, maintenance capital expenditure and normal dividend payments of the Group. The Group believes that the requirements of its existing business and future investment can be met from cash generated internally, disposition of assets and external finance expected to be available to it.

Cash from investing activities

Net cash inflows due to investing activities totalled $123m, a decrease of $52m over 2013. Capital expenditure on property, plant and equipment decreased from $159m in 2013 to $84m as the prior year included significant investment in hotel properties that were in the process of being converted to the Group’s EVEN Hotels brand. $394m of disposal proceeds primarily related to the disposal of InterContinental Mark Hopkins San Francisco and the disposal of an 80% interest in InterContinental New York Barclay.

The Group had committed contractual capital expenditure of $117m at 31 December 2014 (2013 $83m).

Cash used in financing activities

Net cash used in financing activities totalled $736m, which was $121m lower than in 2013. Returns to shareholders of $1,052m, comprising ordinary dividends, special dividends and share buybacks, were $236m higher than in 2013. $68m (2013 $44m) was spent on share purchases in order to fulfil share incentive awards.

Overall net debt increased during the year by $380m to $1,533m at 31 December 2014.

Off-sheet balance sheet arrangements

At 31 December 2014, the Group had no off-balance sheet arrangements that have or are reasonably likely to have a current or future effect on the Group’s financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources that is material to investors.

Contractual obligations

The Group had the following contractual obligations outstanding as of 31 December 2014:

 

      Total
amounts
committed
     Less
than
1 year
     1-3
years
     3-5
years
     After 5
years
 
      $m  
Long-term debt obligations 1, 2      1,378         3         751                 624   
Interest payable 2      248         52         76         47         73   
Derivatives      2         2                           
Finance lease obligations 3      3,364         16         32         32         3,284   
Operating lease obligations      349         40         62         47         200   
Agreed pension scheme contributions 4      6         6                           
Capital contracts placed      117         117                           
Kimpton acquisition      430         430                           
Total      5,894         666         921         126         4,181   

 

1   Repayment period classified according to the related facility maturity date.
2   Excluding bank overdrafts.
3   Represents the minimum lease payments related to the 99-year lease (of which 91 years remain) on InterContinental Boston. Payments under the lease step up at regular intervals over the lease term.
4   Largely relates to US pension obligations.

As explained in note 33 to the Group Financial Statements, the Group completed the acquisition of Kimpton Hotel & Restaurant Group, LLC for $430m on 16 January 2015.

The acquisition was primarily financed by a $400m bilateral term loan with a term of six months plus two six-month extension periods. A variable rate of interest is payable on the loan which has identical covenants to the Syndicated Facility.

Contingent liabilities

Contingent liabilities include performance guarantees with possible cash outflows totalling $29m, guarantees over the debt of equity investments of $20m and outstanding letters of credit of $40m. See note 30 to the Group Financial Statements for further details.

 

 

 

 

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IHG   Annual Report and Form 20-F 2014

 

G ov ern ance

 

54 Chairman’s overview
55 Corporate Governance
55

Our Board and Committee governance structure

56

2014 Board meetings

57

Who is on our Board of Directors

60

Who is on our Executive Committee

61

Board composition and diversity

63

Director induction, training and development

63

Board effectiveness evaluation

64

Board engagement with shareholders

65

Audit Committee Report

68

Corporate Responsibility Committee Report

69

Nomination Committee Report

70

Statement of compliance with the UK Corporate Governance Code

72 Directors’ Report
76 Directors’ Remuneration Report
76

Remuneration Committee Chairman’s Statement

77

Governance

79

Strategic context

80

Summary of our Directors’ Remuneration Policy

82

Annual Report on Directors’ Remuneration

91

Implementation of Directors’ Remuneration Policy in 2015

 

 

 

Plan

 

LOGO

‘Guest Journey’ – Step two

  The Plan phase of the ‘Guest Journey’ is where our guests narrow down their travel options.

 

  They do this in different ways; by searching and learning more about our brands online and reading guest reviews; through IHG Rewards Club offerings; or via interaction with call centres, travel agents and corporate travel departments.
 

 

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IHG   Annual Report and Form 20-F 2014
 

Chai rm an’s o ve rvi ew

 

 

LOGO

Dear Shareholder

We are committed to maintaining the highest standards of corporate governance. Our governance framework, led by the Board, supports IHG’s culture, values and our commitment to conducting business responsibly, further explained on pages 24 and 25. We have in place strong and effective practices and conduct regular reviews to ensure we are compliant.

Governance and strategy

The Board is accountable for the long-term success of the Group, as well as for setting the strategic priorities and objectives of the Group and its risk appetite. We consider the interests of all of our stakeholders at all times. Shaping and implementing IHG’s strategy is the most critical role of the Board and therefore the Board dedicates ample time to discussing the Group’s strategy, not least as part of our annual strategy meeting. Further information on how the Board spent its time during 2014 can be found on page 56.

Board changes and succession planning

A high-level structure of IHG’s Board and its Committees, along with biographies of current Board and Executive Committee members, can be found on pages 55 and 57 to 61.

As announced in our 2013 Annual Report, David Kappler retired on 31 May 2014 after spending over nine years as a Non-Executive Director at IHG. He was succeeded by Dale Morrison as Senior Independent Non-Executive Director on 31 May 2014. Ian Dyson took over David’s duties as Chairman of the Audit Committee on 1 April 2014. We also said goodbye to Jonathan Linen, who retired from the Board on 31 December 2014 after spending nine years with the business.

In August 2014, we announced the appointment of Jo Harlow to the Board and Audit, Nomination and Remuneration Committees effective as of 1 September 2014. Jo’s appointment fulfils one of the objectives I highlighted last year, which was to enhance the Board’s capabilities and competencies by appointing a Non-Executive Director with specific consumer-facing technology experience given the significance of this area in our strategy.

Finally, in December 2014, we announced Kirk Kinsell would step down from the Board on 13 February 2015. Kirk was succeeded as Chief Executive Officer, The Americas by Elie Maalouf, who sits on IHG’s Executive Committee. I would like to thank Kirk for his long-standing contribution to IHG, most recently as a Board member and President of The Americas region.

We are also pleased to welcome Anne Busquet to the Board as a Non-Executive Director effective as of 1 March 2015. Anne will sit on the Audit, Corporate Responsibility and Nomination Committees. Anne has an impressive breadth of experience in digital commerce, hospitality, finance and marketing.

Our Board Committees

We continually review the Board’s composition to ensure we have the right balance of skills to support the business both today and in the future. This includes a regular review of the

size, experience, diversity and gender of our Board, which is conducted by our Nomination Committee (see page 69 for its report). We value the benefits that diversity brings, having had at least 25 per cent female representation on our Board since 2012. Further details on our approach to diversity from Board level and throughout the organisation, including our policies in this area, can be found on pages 61 and 62.

The Audit Committee plays a substantial role in ensuring appropriate governance and challenge around our risk and assurance processes. In line with our 2014 priorities, a major focus area has been the risks relating to information security and technology. More information can be found in the Audit Committee Report on pages 65 to 67.

In 2014, the Corporate Responsibility Committee continued to drive engagement of our three corporate responsibility programmes and deliver against our five-year corporate responsibility targets (see page 68 for its report).

At our 2014 AGM, our Directors’ Remuneration Policy was approved with a 90.94 per cent vote in favour. We are not making any changes to this Policy this year, however, we have provided a summary of it in our Directors’ Remuneration Report , which can be found on pages 76 to 91. This includes information about the Committee, the Annual Report on Directors’ Remuneration and Implementation of our Directors’ Remuneration Policy in 2015.

Board effectiveness

For 2014, we conducted an internal evaluation on Board effectiveness. During 2014, we progressed the actions that were highlighted from the 2013 external evaluation, which enabled us to further inform enhancements to our Board processes. Details of both the 2013 and 2014 evaluation, including the process and recommendations, can be found on pages 63 and 64.

Structure of the report

This year we have restructured our Corporate Governance Statement, setting out a review of our 2014 activities at the start, followed by each Board Committee’s report and finally details of how we have complied with the UK Corporate Governance Code published in September 2012 (the Code). We have aimed to provide greater transparency on compliance with the Code, making this easier to follow.

I am pleased to report that, during 2014, we complied fully with all principles and provisions of the Code, with the exception of the provision relating to audit tendering (see page 70), as we believe it would not be in the best interests of the Group to undertake an audit tender at this time (see pages 66 and 67).

Objectives for the year

My objectives for the Board this year are to ensure that the focus and composition of the Board continues to evolve to support the execution of our strategy and the opportunities and challenges we face. Our 2015 Board agenda will allow time for continued focus on our technology strategy and in-depth reviews of our brands and our priority markets. This year, our annual strategy meeting will be held in Greater China.

 

LOGO

Patrick Cescau

Non-Executive Chairman

16 February 2015

 

 

 

 

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Compliance and our dual listing

 

As a dual listed company with a premium listing on the London Stock Exchange and a secondary listing on the New York Stock Exchange, we are required to file both an Annual Report in the UK, which complies with the Code, and an Annual Report on Form 20-F in the US, which complies with the NYSE rules, US securities laws and the rules of the Securities and Exchange Commission (SEC).

For 2014, to ensure continued consistency of information provided to both UK and US investors, we have for the second time produced a combined Annual Report and Form 20-F.

As required by the SEC, a statement outlining the differences between the Group’s UK corporate governance practices and those followed by US companies can be found on pages 173 and 174.

 

 

 

Co rpo rate Gov er na nce

Our Board and Committee governance structure

The Board leads the strategic direction and long-term objectives and success of the Group through effective oversight and review, setting the Group’s strategic aims and monitoring the performance of the Group and its risk management controls.

A number of key decisions and matters are reserved for the Board’s approval and are not delegated to management, these include matters related to Group business and commercial strategy; significant investment proposals; maintaining an overview and control of the Group’s operating and financial performance; monitoring the Group’s overall system of internal controls and risk management and governance and compliance.

The Board delegates certain responsibilities to its Committees, namely the Audit Committee, Corporate Responsibility Committee, Nomination Committee and Remuneration Committee, to assist it in carrying out its functions.

 

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IHG   Annual Report and Form 20-F 2014
 

Co rpo rate Gov er na nce continued

2014 Board meetings

 

The Board held eight scheduled meetings during 2014 and attendance by each Director is set out in the table below. Attendance at Committee meetings is indicated in each Committee report. Unless otherwise indicated, all Directors held office throughout the year.

 

 

Board membership and attendance   
Director Attendance  
Patrick Cescau (Chairman)   8/8   
Richard Solomons (Chief Executive Officer)   8/8   
Executive Directors      
Paul Edgecliffe-Johnson 1   8/8   
Kirk Kinsell   8/8   
Tracy Robbins   7/8 2  
Non-Executive Directors      
Ian Dyson   8/8   
Jo Harlow (appointed 1 September 2014)   3/3   
David Kappler (retired 31 May 2014)   3/3   
Jennifer Laing   8/8   
Jonathan Linen (retired 31 December 2014)   7/8 2  
Luke Mayhew   8/8   
Jill McDonald   7/8 2  

Dale Morrison

(Senior Independent Non-Executive Director)

  8/8   
Ying Yeh   8/8   
Total meetings held   8   

1 Tom Singer resigned and Paul Edgecliffe-Johnson became Chief Financial Officer effective as of 1 January 2014.

2 Tracy Robbins missed one Board meeting due to health reasons and Jonathan Linen and Jill McDonald missed one Board meeting due to a prior commitment known to the Board in advance.

 

What did the Board consider at its 2014 meetings

Strategy

The Board spends a substantial amount of time considering Group strategy. In addition to its annual strategy meeting, time was spent in 2014 discussing strategic areas and business updates, including:

 

  IHG strategic updates and priorities;

 

  industry and consumer updates;

 

  brands, regional and functional updates;

 

  implementation of our commercial strategy, which includes focusing on our preferred brands, our loyalty programme and our channel management and distribution strategy;

 

  development of our technological platforms; and

 

  consideration and approval of the acquisition of Kimpton Hotels & Restaurants, in line with our strategy.

Annual strategy meeting

We held our 2014 annual two-day strategy meeting in Singapore. This included:

 

  a review of industry trends, competitors and consumer trends;

 

  an in-depth discussion of our Group strategy and progress on its implementation;

 

  an in-depth review of the performance, opportunities and challenges in our AMEA and Greater China regions;

 

  meeting with AMEA Regional Operating Committee members, which comprises senior management in this region;

 

  visiting our corporate office in Singapore; and

 

  attending an informal evening event with the Singapore office and 30 members of the IHG I-Grad Future Leaders Programme.

A third day was added to give the Board the opportunity to visit hotels across our brand portfolio in Singapore and interact with general managers of our hotels and their teams.

Governance

  Reviewed our internal controls and risk management processes including the Major Risk Review, a Risk Management Effectiveness Review and updates on our global insurance programme.

 

  Discussed the composition and succession planning of the Board and its Committees and approved Dale Morrison becoming Senior Independent Non-Executive Director, Ian Dyson becoming Chairman of the Audit Committee and the appointment of Jo Harlow as a new Non-Executive Director.

 

  Reviewed the externally conducted 2013 Board performance evaluation and agreed the action plan for 2014.

 

  Considered the performance of each of the Board Committees, concluding each remained effective and reviewed each of their terms of reference, updating these as required.

 

  Received updates on the deliberations of each of the Board Committees (see each of their reports on their key activities and priorities during 2014).

 

  Updated on upcoming legislative and regulatory changes affecting our business and the Board and its Committees across areas including corporate reporting, governance guidelines, and institutional investor reports.

Investor relations

  Reviewed and approved a $750 million return to shareholders.

 

  Discussed reports on investor perceptions and shareholder relations, and considered analysts reports and media updates.

Regular agenda items

As part of general monitoring of the Group and its compliance with the governance framework, certain matters are regularly included on Board meeting agendas. These include an update on the business from the Chief Executive Officer, finance updates from the Chief Financial Officer (which includes a financial review of the Group), and deep dives on each region and function presented by Executive Committee members and other senior management.

Meetings without Executive Directors

During 2014, at the end of each Board meeting, our Non-Executive Directors met with the Chairman without the Executive Directors present. They also regularly met with the Chief Executive Officer without the other Executive Directors present.

 

 

 

 

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Who is on our Board of Directors

 

LOGO

Patrick Cescau

Non-Executive Chairman  LOGO

Appointed to the Board: 1 January 2013

 

Skills and experience: From 2005 to 2008, Patrick was Group Chief Executive of Unilever Group, having previously been Chairman of Unilever PLC, Vice-Chairman of Unilever NV and Foods Director, following a progressive career with the Company, which began in France in 1973. Prior to being appointed to the Board of Unilever PLC and Unilever NV in 1999, as Finance Director, he was Chairman of a number of the company’s major operating companies and divisions, including in the US, Indonesia and Portugal. He was formerly a Senior Independent Director and Non-Executive Director of Pearson plc and a Director at INSEAD.

Board contribution: Patrick has held board of director positions for nearly 15 years in leading global businesses and brings extensive international experience in brands, consumer products, as well as finance. As Chairman, Patrick is responsible for leading the Board and ensuring it operates in an effective manner and promoting constructive relations with shareholders. He is also Chairman of the Nomination Committee.

Other appointments: Currently a Non-Executive Director of International Consolidated Airlines Group S.A. and the Senior Independent Director of Tesco PLC. Patrick is also a trustee of The Leverhulme Trust.

LOGO

Richard Solomons

Chief Executive Officer  LOGO

Appointed to the Board: 10 February 2003

 

Skills and experience: During his tenure as Chief Executive Officer, Richard has led the continued growth of IHG, including the launch of our two newest brands, HUALUXE Hotels and Resorts and EVEN Hotels and IHG’s acquisition of Kimpton Hotels & Restaurants. Before being appointed Chief Executive Officer, Richard served as Chief Financial Officer and Head of Commercial Development. Richard was integral in shaping and implementing IHG’s asset-light strategy, which has helped the business grow significantly since it was formed in 2003, as well as supporting the return of $10.4 billion to shareholders. In 2008, he served as Interim President of our Americas region. Richard is a member of the Executive Committee of the World Travel and Tourism Council, a member of the Industry Real Estate Financing Advisory Council and a Governor of the Aviation and Travel Industry Group of the World Economic Forum.

Board contribution: Richard is responsible for the executive management of the Group and ensuring the implementation of Board strategy and policy.

 

 

LOGO

Paul Edgecliffe-Johnson

Chief Financial Officer

Appointed to the Board: 1 January 2014

 

Skills and experience: Paul is a chartered accountant and a fellow of the Institute of Chartered Accountants. He was previously Chief Financial Officer of IHG’s Europe and Asia, Middle East and Africa regions, a position he held since September 2011. He joined IHG in August 2004 and has held a number of senior level finance positions, including Head of Investor Relations, Head of Global Corporate Finance and Financial Planning & Tax and Head of Hotel Development, Europe. Paul also acted as Interim Chief Executive Officer of the Europe, Middle East and Africa regions.

Board contribution: Paul is responsible, together with the Board, for overseeing the financial operations of the Group and setting its financial strategy.

LOGO

Tracy Robbins

Executive Vice President,

Human Resources and

Group Operations Support

Appointed to the Board: 9 August 2011

 

Skills and experience: Tracy has nearly 30 years’ experience in human resources roles in service industries. She joined the Group in December 2005 from Compass Group PLC, a world-leading food service company, where she was Group Human Resources Leadership & Development Director. Previously, she acted as Group HR Director for Forte Group plc, a hotel company. Tracy also spent seven years at Tesco PLC as a Retail Human Resources Manager where she implemented a culture change and restructuring strategy across 150 stores.

Board contribution: Tracy has many years of experience in human resources and is responsible for global talent management, leadership development, employee reward strategy and implementation, organisational capability and operations support.

 

 

 

Board Committee membership key

LOGO Audit Committee member
LOGO Corporate Responsibility Committee member
LOGO Nomination Committee member
LOGO Remuneration Committee member

LOGO

 

Denotes Chairman of a Board Committee

 

 

 

 

 

LOGO

 

 

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Co rpo rate Gov er na nce continued

Who is on our Board of Directors continued

 

LOGO

Dale Morrison

Senior Independent

Non-Executive Director  LOGO   LOGO   LOGO

Appointed to the Board: 1 June 2011

 

Skills and experience: Dale is a founding partner of TriPointe Capital Partners, a private equity firm. Dale was previously President and Chief Executive Officer of McCain Foods Limited and President and Chief Executive Officer of Campbell Soup Company.

Board contribution: Dale has over 10 years’ experience in sales and marketing positions, and over 25 years’ experience in general management, having held senior positions in the branded foods sector. He was appointed as the Board’s Senior Independent Non-Executive Director on 31 May 2014.

Other appointments: Currently a Non-Executive Director of International Flavors & Fragrances Inc., a producer of flavours and fragrances, and Non-Executive Chairman of Findus Group, a frozen food company.

LOGO

Ian Dyson

Independent

Non-Executive Director  LOGO   LOGO   LOGO

Appointed to the Board: 1 September 2013

 

Skills and experience: Ian has held a number of senior executive and finance roles including Group Finance & Operations Director for Marks and Spencer Group plc for five years from 2005 to 2010, where he oversaw significant changes in the business. In addition, Ian was Chief Executive Officer of Punch Taverns plc, a pub and bar operator, Finance Director for the Rank Group Plc, a leading European gaming business, and Group Financial Controller and Finance Director for the hotels division of Hilton Group Plc.

Board contribution: Ian has gained significant experience from working in various senior finance roles predominantly in the hospitality sector. Ian became Chairman of the Audit Committee on 1 April 2014 and as such is responsible for leading the Committee to ensure effective internal controls and risk management systems are in place.

Other appointments: Currently a Non-Executive Director of Punch Taverns plc, a Non-Executive Director and Chairman of the Audit Committee of SSP Group plc and Senior Independent Non-Executive Director and Chairman of the Audit Committee of ASOS Plc and Betfair Group plc.

 

 

LOGO

Jo Harlow

Independent

Non-Executive Director  LOGO   LOGO   LOGO

Appointed to the Board: 1 September 2014

 

Skills and experience: Jo has held the position of Corporate Vice President of the Phones Business Unit at Microsoft Corporation since May 2014. She was previously Executive Vice President of Smart Devices at Nokia Corporation since February 2011, following a number of senior management roles at Nokia since 2003. Prior to that, she held marketing, sales and management roles at Reebok International Limited from 1992 to 2003 and at Procter & Gamble Company from 1984 to 1992.

Board Contribution: Jo has over 25 years’ experience working in various senior roles predominantly in the branded and technology sectors.

Other appointments: None.

LOGO

Jennifer Laing

Independent

Non-Executive Director  LOGO   LOGO   LOGO

Appointed to the Board: 25 August 2005

 

Skills and experience: Jennifer was Associate Dean, External Relations at London Business School, until 2007. A fellow of the Marketing Society and of the Institute of Practitioners in Advertising, she has over 30 years’ experience in advertising including 16 years with Saatchi & Saatchi where she rose to Chairman of the London office and subsequently Chief Executive Officer and Chairman of Saatchi & Saatchi North America. Until May 2014, she was also a Non-Executive Director of Hudson Global, Inc.

Board contribution: Jennifer has over 30 years’ experience in marketing and advertising and is Chairman of the Corporate Responsibility Committee, responsible for the Corporate Responsibility objectives and strategy and approach to sustainable development.

Other appointments: Currently a Non-Executive Director of Premier Foods plc, a branded food producer.

 

 

 

 

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LOGO   

Luke Mayhew

Independent

Non-Executive Director  LOGO   LOGO   LOGO

Appointed to the Board: 1 July 2011

 

Skills and experience: Luke served for 12 years on the Board of John Lewis Partnership plc, including as Managing Director of the Department Store division. Luke also spent five years at British Airways Plc and seven years at Thomas Cook Group plc in senior positions. He was also a Non-Executive Director of WHSmith PLC and Chairman of Pets at Home Group Plc.

Board contribution: Luke has over 30 years’ experience in senior roles in the branded sector and was Remuneration Committee Chairman at Brambles Limited from 2006 to 2014. As Chairman of the IHG Remuneration Committee he is responsible for setting the remuneration policy.

Other appointments: Currently a Non-Executive Director of DFS Furniture Holdings plc, and a trustee of BBC Children in Need.

LOGO   

Jill McDonald

Independent

Non-Executive Director  LOGO   LOGO

Appointed to the Board: 1 June 2013

 

Skills and experience: Jill started her career at Colgate-Palmolive Company, spent 16 years with British Airways Plc and held a number of senior marketing positions in the UK and overseas.

Board contribution: Jill has nearly 30 years’ experience working with high-profile international consumer-facing brands at both marketing and operational level.

Other appointments: Currently Chief Executive Officer UK and President for the North West Europe Division for McDonald’s. Prior to that Jill was Chief Executive Officer UK and President for the Northern Division (2010 to 2013) and previously Senior Vice President, Chief Marketing Officer UK and Northern Division (2006 to 2010).

 

 

 

LOGO

 

Ying Yeh

Independent

Non-Executive Director LOGO   LOGO   LOGO

Appointed to the Board: 1 December 2007

 

Skills and experience: Ying was formerly Vice President and Chairman, Greater China Region, Nalco Company, and Chairman and President, North Asia Region, President, Business Development, Asia Pacific Region and Vice President, Eastman Kodak Company. She was previously a Non-Executive Director of AB Volvo, a transportation related products and services company, and for 15 years, a diplomat with the US Foreign Service in Hong Kong and Beijing until 1997.

Board contribution: Ying has over 20 years’ experience gained from working in senior positions in global organisations across a broad range of sectors.

Other appointments: Currently a Non-Executive Director of ABB Ltd, a global leader in power and automation technologies, and Samsonite International S.A.

 

 

LOGO

  

The Board is supported by the Company Secretary:

 

George Turner

Executive Vice President, General Counsel and Company Secretary

Appointed to the Executive Committee:

January 2009 (Joined the Group: 2008)

 

Skills and experience: George is a solicitor and qualified to private practice in 1995. Prior to joining the Group, George spent over 10 years with Imperial Chemical Industries where he held a number of key positions including Deputy Company Secretary. He was appointed Executive Vice President, General Counsel and Company Secretary in January 2009.

Key responsibilities: These include corporate governance, risk management, insurance, regulatory, internal audit, legal, corporate responsibility, public affairs and standards.

 

 

Changes to the Board

 

 

  Tom Singer

  

 

Tom resigned as Chief Financial Officer effective as of 1 January 2014.

 

 

 

  Paul Edgecliffe-Johnson

 

  

 

Paul joined the Board as Chief Financial Officer effective as of 1 January 2014.

 

 

  David Kappler

 

  

 

David retired as Senior Independent Non-Executive Director effective as of 31 May 2014.

 

 

  Jo Harlow

 

  

 

Jo joined the Board as a Non-Executive Director effective as of 1 September 2014.

 

 

  Jonathan Linen

 

  

 

Jonathan retired as a Non-Executive Director effective as of 31 December 2014.

 

 

  Kirk Kinsell

 

  

 

Kirk resigned as President, The Americas effective as of 13 February 2015.

 

 

  Anne Busquet

 

  

 

Anne will be joining as a Non-Executive Director effective as of 1 March 2015.

 

 

 

LOGO

 

 

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Co rpo rate Gov er na nce continued

Who is on our Executive Committee

In addition to the Executive Directors and the General Counsel and Company Secretary, the Executive Committee comprises:

 

LOGO

Keith Barr

Chief Commercial Officer

Appointed to the Executive Committee:

April 2011 (Joined the Group: 2000)

 

Skills and experience: Keith has over 20 years’ experience in the hospitality industry. He has held senior appointments at IHG including Vice President of Sales and Revenue Management, Vice President of Operations, Chief Operating Officer, Australia, New Zealand and South Pacific, and Managing Director, Greater China. He became an Executive Committee member in April 2011 and prior to becoming Chief Commercial Officer, was Chief Executive, Greater China until May 2013. Keith is currently a member of Leland C. and Mary M. Pillsbury Institute for Hospitality Entrepreneurship Advisory Board.

Key responsibilities: These include global sales, marketing and brand functions, to drive consistent brand strategies across all regions and leverage IHG’s scale and systems to deliver continued industry outperformance.

LOGO

Angela Brav

Chief Executive, Europe

Appointed to the Executive Committee:

August 2011 (Joined the Group: 1988)

 

Skills and experience: Angela has over 25 years’ experience in the hospitality industry, including hotel operations, franchise relations and technology solutions. She has held various senior roles in IHG’s North American and European regions prior to becoming Chief Operating Officer, North America. She was appointed Chief Executive, Europe in August 2011.

Key responsibilities: These include business development and performance of all the hotel brands and properties in Europe.

 

 

LOGO

Elie Maalouf

Chief Executive Officer,

The Americas

Appointed to the Executive Committee:

February 2015 (Joined the Group: 2015)

 

Skills and experience: Elie was appointed Chief Executive Officer, The Americas at IHG in February 2015, having had over 15 years’ experience working in a major global franchise business. He joined the Group having spent six years as President and Chief Executive Officer of HMSHost Corporation, a global travel and leisure company, where he was also a member of the Board of Directors. Elie brings broad experience to IHG spanning development, branding, finance, real estate and operations management, as well as highly relevant food and beverage expertise. He was most recently a Senior Advisor with McKinsey & Company.

Key responsibilities: These include business development and performance of all the hotel brands and properties in The Americas region.

LOGO

Kenneth Macpherson

Chief Executive, Greater China

Appointed to the Executive Committee:

April 2013 (Joined the Group: 2013)

 

Skills and experience: Kenneth joined IHG as Chief Executive, Greater China in April 2013. Prior to joining the Group, he worked for Diageo plc, for nearly 20 years and has held senior management positions, including serving as Executive Managing Director of Diageo Greater China. Kenneth has extensive management experience, with a background in sales, marketing strategy, business development and operations. Kenneth also brings substantial knowledge and expertise in Chinese and international business operations.

Key responsibilities: These include business development and performance of all the hotel brands and properties in the Greater China region.

 

 

 

 

There are no family relationships between any of the Board or Executive Committee members (set out on pages 57 to 61). There are no arrangements or understandings with major shareholders, customers, suppliers or others, pursuant to which any of the Board or Executive Committee were selected as a Director or member of the Executive Committee.

 

 

 

 

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LOGO

Eric Pearson

Executive Vice President

and Chief Information Officer

Appointed to the Executive Committee:

February 2012 (Joined the Group: 1997)

 

Skills and experience: Eric has a background in engineering and technology and started his career at IHG nearly 20 years ago. Since then he has held various senior positions in the field of emerging technologies and global e-commerce. Prior to being appointed Chief Information Officer, Eric most recently held the position of Chief Marketing Officer for The Americas region.

Key responsibilities: These include global technology, including IT systems and information management, throughout the Group.

LOGO

Jan Smits

Chief Executive,

Asia, Middle East and Africa

Appointed to the Executive Committee:

April 2011 (Joined the Group: 2002)

 

Skills and experience: Jan has 33 years’ experience in the hospitality industry. He held various senior positions in the Asia and Australasia region. He became Managing Director, Asia Australasia in June 2009. Following the amalgamation of our Middle East and Africa region with our Asia Australasia region, he became Chief Executive, Asia, Middle East and Africa in August 2011.

Key responsibilities: These include business development and performance of all the hotel brands and properties in Asia, Middle East and Africa.

 

 

 

 

Board composition and diversity

The Board believes that, in order to be most effective, objectively challenge management and encourage different perspectives for debate, it must have an appropriate mix of skills, experience, knowledge and diversity in line with our business. The Nomination Committee supports the Board in respect of reviewing Board composition and continuously monitors succession planning. See page 69 for the Nomination Committee Report.

 

Independence and tenure

The Board and Nomination Committee regularly review the independence of each Non-Executive Director. Jennifer Laing has served on the Board for over nine years and the Nomination Committee has specifically reviewed her independence and is satisfied that she continues to demonstrate independence in character and judgement and is independent as required under the Code. The Board has also considered this and reached the same conclusion. Excluding the Chairman, 70 per cent (as at 16 February 2015) and 67 per cent (as at 31 December 2014) of our Board comprise independent Non-Executive Directors.

 

As Ying Yeh has also been on the Board for over six years, both her and Jennifer’s continued appointments were the subject of particular review and scrutiny by the Nomination Committee and the Board. Our current Non-Executive Directors’ lengths of tenure as at 16 February 2015 are shown below:

 

LOGO

 

 

 

LOGO

 

 

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Co rp ora te G ove rna nce continued

Board composition and diversity continued

 

Board Diversity Policy (BDP) and Global Diversity and Inclusion Policy (GDIP)

With a presence in nearly 100 countries globally, we value the benefits of diversity, beyond gender, and strongly believe that our leadership should reflect the diversity of our employees, our guests and the local communities in which we operate. Therefore, the Board seeks diversity of skills, experience, geographical representation and gender both in its composition and throughout all levels of our business. In 2013, we introduced a Board Diversity Policy as well as a Global Diversity and Inclusion Policy to ensure that diversity in its broadest sense remains a key priority.

Progress against the objectives of each of these policies during 2014:

 

 

BDP objective: Whilst all appointments are made on merit, we seek to ensure that the Board maintains an appropriate balance through a diverse mix of experience, backgrounds, skills, knowledge and insight, to further strengthen the diversity of gender and experience already on the Board and improve it further

 

 

Our Board members bring multinational experience to IHG, having themselves worked across a number of countries. The diverse nationalities of our Board are reflected below:

 
LOGO
 
Collectively the Board also has a broad collection of industry skills and experience in line with IHG’s business and strategic focus, to enable it to discharge its duties and responsibilities effectively:
 

 

LOGO

 

 

 

BDP objective: We commit to having diverse and inclusive leadership which supports all colleagues in reaching their full potential, including the development of a pipeline of high-calibre candidates from within the business

 

GDIP objective: To strengthen female representation in our global senior leadership population, with a target of reaching 25% by the end of 2015

 

 
We have 52 people comprising our senior leadership population at our corporate offices and central reservations offices who are employed by the Group and are part of our senior leadership team, 14 of these people are females (27 per cent). This is in line with our 2015 target and is an increase from the 21 per cent in 2013. This reflects both external appointments and internal promotions of female talent during 2014. We have also worked with executive search firms to ensure we have better gender balance on shortlists for senior leadership appointments.
 

From 2015, each of our Executive Committee members will be mentoring our high-potential senior leaders.

 

 

BDP and GDIP objective: Maintain a level of at least 25% female directors on the Board over the short to medium term

 

 

We firmly believe in the importance of a diverse Board membership and fully support the Lord Davies Report on ‘Women on boards’. Jo Harlow joined our Board on 1 September 2014. Our Board currently comprises 11 Directors, five of whom are women. This continues our record since 2012 of having more than 25 per cent females on the Board:

 
LOGO
 

We remain committed to maintaining at least 25 per cent female representation on the Board over the short to medium term, but the Nomination Committee does recommend appointments based on merit, ensuring there is an appropriate mix on the Board (as set out above and in its report on page 69).

 

 

 

BDP objective: We will report annually against these objectives and other initiatives taking place in the Group which promote gender and other forms of diversity

 

GDIP objective: To sustain a healthy balance of gender in the whole employee organisation

 

 
We continue to take action to sustain a healthy gender balance and review diversity throughout our organisation. Out of the 12,772 people employed by the Group whose costs are borne by the Group or the System Fund (see pages 23, 120 and 152), 7,069 are female (55 per cent).
 

In 2014, initiatives promoting diversity (beyond gender) included:

•  establishing internal forums to increase support and mentoring for female colleagues and high-potential female employees;

 

•  actively participating in external diversity summits, conferences and events in all regions; and

 

•  continuing to review ways to increase local representation on the leadership and management teams in emerging markets. In Greater China, our Regional Operating Committee has three local leaders, thereby strengthening our local leadership talent.

 

 

 

 

 

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Director induction, training and development

 

New Director induction

New Directors receive a full and formal induction programme tailored to meet their individual needs and in accordance with best practice. This induction, led by the Chairman, includes the following key areas:

 

  familiarisation with the Group’s business, principal activities and strategy;

 

  an understanding of the Group’s governance, including the structure of the Board and its Committees and our approach to internal controls and risk management;

 

  meetings with senior executives and regional and central management from various functions across the Group, including Business Reputation and Responsibility, Human Resources, Corporate Affairs, Global Strategy, Global Internal Audit and Group Finance; and

 

  visits to our global corporate offices and hotels to provide a greater insight into our business.

Jo Harlow’s induction

Jo’s induction centred on providing her with an understanding of IHG and our business to enable her to contribute her knowledge, skills and experience effectively to the Board. The key areas included:

 

    information on the Group, including our history, brands, regional structure and operations; strategy and business model; KPIs; commercial strategy; the IHG Owners Association; and regulatory compliance;  

 

    information on the Board, its Committees and IHG’s governance processes with particular focus on the Audit, Nomination and Remuneration Committees in light of her appointment to these;  

 

    our approach to internal controls and risk management; and  

 

    meetings with members of the Board and the Executive Committee, senior management from functions across the Group and the external Auditor.  

Since her appointment, Jo has had the opportunity to visit our UK and US corporate headquarters, meet and address the Group’s senior leaders at our Senior Leaders Meeting held in Seattle, and tour hotels across our brands in Greater China, the US and the UK.

 

Ongoing Director training and development

The updating of Directors’ skills and knowledge, ongoing training and development, and understanding of the Group’s business and operations is a progressive exercise:

 

  Patrick Cescau regularly reviews and agrees training and development needs with each Director;

 

  the Board is made aware of training opportunities and additional information, as necessary, to enable them to keep up to date and enhance their knowledge of the business;

 

  Board and Committee meetings are used to formally keep Directors up to date on developments in the environment in which the business operates – for example, in 2014, in-depth presentations were given by senior management in the Group on key topical areas (see page 56);

 

  the Company Secretary regularly updates the Board on regulatory and legal matters as part of meetings; and

 

  Directors are encouraged to visit hotels across our brands both formally as part of meetings and informally. For example, in 2014, visits to our hotel were included as part of the annual Board strategy meeting (see page 56).

We also invite different Non-Executive Directors to attend our large annual conferences. In 2014, two Non-Executive Directors attended the IHG Americas Investors & Leadership Conference which took place in Las Vegas, US. This enables Directors to interact with current and potential owners and gain an insight first hand of the key areas of focus for the business.

 

 

Board effectiveness evaluation

IHG has always recognised the importance of evaluating the performance of the Board as a whole, its main Committees and its Directors, in line with the Code recommendations.

 

Progress against our 2013 evaluation

In 2013, we conducted an externally facilitated independent evaluation as detailed in our 2013 Annual Report.

Our progress in 2014 against the actions identified is set out below:

 

Observations   Action taken during 2014

 

Increase the Board’s oversight of new technology

 

 

The Board was regularly updated on new technology developments. Technology was an agenda item at Board meetings and the Board also received an evening presentation from external consultants entitled ‘Winning with Technology’. The Audit Committee also discussed the Group approach to information security – see page 66.

 

Enhance the Board’s use of time and gain a deeper understanding of priorities and risks

 

 

Board meeting agendas had an increased focus on industry and consumer trends, including information on our competitors, as well as regular updates on our progress on major projects.

 

Consider future Board composition and succession

 

 

Five Nomination Committee meetings were held in 2014 reflecting our focus on Board and Executive Committee succession planning and Board composition in light of IHG’s current and future focus (see page 69). We prioritised the search for a Non-Executive Director with experience in consumer-facing technology, which led to the appointment of Jo Harlow in September 2014.

 

 

 

LOGO

 

 

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Cor por ate Go ver na nce continued

 

Our 2014 evaluation process

Our 2014 evaluation was conducted internally. Each member of the Board completed an effectiveness questionnaire, which centred around the progress against actions identified in our 2013 Board effectiveness evaluation. Key areas included the regularity of meetings, appropriateness of location (especially in enabling us to gain a better understanding of our business), the decision-making process, executive management succession planning, impact of internal and external technology developments, and risk management and assurance oversight. It also invited Directors to make other general or specific observations. The results were analysed and the report was presented for discussion at the Board’s February 2015 meeting.

The Board considered the performance of its Committees and internal performance evaluations of Directors were undertaken as follows:

 

Director being appraised   Appraiser
Chairman   Non-Executive Directors excluding the Chairman and facilitated by the Senior Independent Non-Executive Director

 

Chief Executive Officer

 

 

Chairman and all Non-Executive Directors

 

Executive Directors

 

 

Chief Executive Officer

 

Non-Executive Directors

 

 

Chairman

2014 Board effectiveness evaluation observations and action plan:

 

Observations   Action to be taken
Increase the Board’s focus on brands   Deep dives into each brand strategy to be provided to the Board.
Enhance the Board’s understanding of competitors’ strategy and performance   Presentations on competitors’ strategies and offerings. Competitive analysis to be included in both financial results and strategic reviews.
Increase the Board’s exposure to the Group’s US business   Ensure opportunities are secured for meeting with the newly appointed Chief Executive Officer for The Americas region. Increase the Board’s understanding of the Kimpton brand. Deep dives into the strategy for core brands in the US. Firmer understanding of the EVEN Hotels brand’s growth strategy.

It was confirmed that the Board and its Committees were operating effectively, and that each Director continues to bring relevant knowledge, diversity of perspective, an ability and willingness to challenge and retains a strong commitment to the role.

 

 

 

 

Board engagement with shareholders

The Board takes its responsibility to represent and promote the interests of its shareholders seriously and believes it is very important to engage with them fully. A formal external review of investor perceptions is presented to the Board on an annual basis and both the Executive Committee and the Board receive regular updates on shareholder relations.

Engagement during the year

The Board engaged with shareholders in a number of ways during 2014, which included:

 

  meeting shareholders at the AGM;

 

  half-year and full-year formal reporting and telephone conferences after the release of the first and third quarter interim management statements;

 

  presentations by Richard Solomons and Paul Edgecliffe-Johnson to institutional investors, analysts and the media following results announcements;

 

  a programme of meetings with major institutional shareholders;

 

  an analyst presentation on Kimpton Hotels & Restaurants.

To enable as many shareholders as possible to access conferences and presentations, telephone dial-in facilities are made available in advance and live audio webcasts are made available after presentations, together with associated data and documentation. These can be found at www.ihgplc.com/investors under financial library.

Around 25 sell-side research analysts publish research on the Group; their details are available at www.ihgplc.com/investors under analysts’ details.

AGM

The AGM is an opportunity for shareholders to vote on certain aspects of Group business. The Board values this as it provides

a useful forum for one-to-one communication with private shareholders. At the AGM, shareholders receive presentations on the Company’s performance and may ask questions of the Board.

The 2015 AGM will be held at 11:00am on Friday, 8 May 2015. The notice convening this meeting has been sent to shareholders at the same time as publication of this Annual Report and Form 20-F, and is available at www.ihgplc.com/investors under financial library.

Meetings with major institutional shareholders

A programme of meetings throughout the year is arranged with major institutional shareholders. These meetings provide an opportunity to discuss, using publicly-available information, the progress of the business, its performance, plans and objectives. Patrick Cescau, Dale Morrison and other Non-Executive Directors are available to meet with major shareholders to understand their issues and concerns, and to discuss governance and strategy.

Facilitated, structured meetings are encouraged with shareholders, and any new Director is available for meetings with major shareholders as a matter of course.

Details of the Remuneration Committee’s engagement with shareholders is set out on page 76. During the year, Jennifer Laing also met with shareholders to discuss our corporate responsibility strategy.

Sharedealing programme

In 2014, we offered our small UK-resident retail shareholders a sharedealing service to buy or sell shares in IHG. As part of this, shareholders were given the option to donate the proceeds of any sale of their shares to IHG Shelter in a Storm (see page 179).

Re-engaging with ‘gone away’ shareholders

We continue to be supported by ProSearch to locate shareholders who haven’t kept their details up to date. To date, the programme has been very successful and many asset reunifications (both in terms of the shares themselves and unclaimed dividends) have been made. For further information, see page 179.

 

 

 

 

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Audit Committee Report

 

LOGO

“Our priority is ensuring that standards of good governance are maintained across all areas of the business.”

 

 

Dear Shareholder

The Audit Committee continues to focus on the integrity of internal financial controls and risk management systems. As the new Chairman of the Committee, I have also sought to ensure that the Committee (i) has oversight of the Group’s risk management and assurance processes, looking at the processes and structures in place across the Group as a whole and how key projects are being delivered; and (ii) probes the significant risks, particularly in the area of technology, through a balance of presentations, papers and discussion.

Roles and responsibilities

The Committee’s responsibilities fall into five areas: (i) internal controls and risk management; (ii) financial reporting; (iii) internal audit; (iv) fraud and whistleblowing; and (v) external audit and compliance. While the Board has overall responsibility for the management of business risks, the Committee assists the Board in a number of ways.

Our main role and responsibilities are set out in our terms of reference (ToR), which are reviewed annually and no changes were made for 2015. The ToR are available on the Company’s website at www.ihgplc.com/investors under corporate governance/ committees or from the Company Secretary’s office on request.

Governance

All members have the experience and expertise necessary to meet the Committee’s responsibilities and all members are independent Non-Executive Directors as required under the ToR. During the year, Jo Harlow joined the Committee, and I replaced David Kappler as the Chairman of the Committee on 1 April 2014.

The Board is satisfied that both David (during his time on the Committee) and I are independent. The Code requires the Committee has at least one member with recent and relevant financial experience and Sarbanes-Oxley Act 2002 (SOX) necessitates a designated financial expert. The Board is satisfied that both David and I meet these requirements – David is a qualified accountant and former Chief Financial Officer of Cadbury Schweppes plc and I am also a qualified accountant and was formerly Group Finance and Operations Director at Marks and Spencer Group plc.

As Chairman of the Committee, after each meeting, I report to the Board on any key matters arising.

Internal controls and risk management

The Committee supports the Board in reviewing the effectiveness of the Group’s internal control and risk management system, having oversight of the risk and control activities in operation across the Group. Processes have been established which test and monitor:

 

  strategic plan achievement, through a comprehensive series of Group and regional strategic reviews;

 

  financial performance, within a comprehensive financial planning and accounting framework;

 

  capital investment performance, with detailed appraisal and authorisation processes; and

 

  risk management processes relying upon a Major Risk Review and assurance mapping process (through reports from the Head of Global Risk Management, the Head of Global Internal Audit (GIA), and, as appropriate, from management) providing assurance that the significant risks faced by the Group are being identified, assessed, prioritised, evaluated and appropriately managed and mitigated, having regard to the balance of risk, cost and opportunity.

 

 

Our approach to risk management and key risk mitigating activities in respect of the Major Risks are set out on pages 26 to 29 and the wider set of risk factors are set out on pages 162 to 165.

Financial reporting

The key financial controls across our business have been identified and evaluated, in particular, to comply with our US obligations, arising from SOX. The Committee reviews the approach to SOX compliance each year, and, in 2014, it took into consideration changes in legislation, and the transition from the 1992 to the 2013 Internal Control – Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). The Committee regularly reviews reports on the progress of the SOX programme and this has enabled appropriate representations regarding the effectiveness of internal financial controls to be made, concluding that no material weaknesses had been found in the internal control environment.

Internal Audit

The Committee is responsible for reviewing and monitoring the activities of the GIA department. In December each year, the Committee discusses the GIA Plan and approves its nature and scope for the forthcoming year. GIA also undertakes an agreed schedule of audits during which the Group’s internal controls are assessed and reported back to the Committee.

Fraud and whistleblowing

Fraud and whistleblowing reports are collated from information provided by the Group’s independent external provider, who facilitates the Group’s confidential disclosure process for employees with whistleblowing and fraud concerns, and fraud data from Global Risk Management, and are presented to the Committee biannually.

The Committee is advised, as appropriate, of any significant matters to ensure a proportionate and independent investigation is performed.

 

 

 

LOGO

 

 

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Cor po rat e Go ver na nce continued

Audit Committee Report continued

 

Committee membership and attendance

 

Members 1    Attendance  
Ian Dyson (Chairman from 1 April 2014) 2      5/5   
David Kappler (Chairman to 1 April 2014) 2      1/2 3  
Jo Harlow 4      2/2   
Jennifer Laing      5/5   
Jill McDonald      4/5 3  
Dale Morrison      5/5   
Total meetings held      5   

 

  1   For full biographies of current members see pages 58 and 59.
  2   David Kappler retired from, and Ian Dyson was appointed to, the role of Chairman of the Committee effective as of 1 April 2014.
  3   David Kappler and Jill McDonald missed one meeting each due to a prior commitment known to the Committee in advance.
  4   Jo Harlow joined the Committee with effect from 1 September 2014.

At the invitation of the Committee, the Chairman of the Board, Chief Executive Officer, Chief Financial Officer, Head of Global Internal Audit (GIA), Group Financial Controller and external Auditor, EY, attend meetings. EY attended all meetings in 2014 and provided a report on progress of, and insights from, the annual audit. Other attendees are invited to meetings as appropriate, to provide a deeper insight into, and understanding of, key decisions.

At each meeting, GIA and EY meet without the presence of management.

What did the Committee consider in 2014

In addition to those areas referred to above and routine items of business, during 2014, the Committee:

Internal controls and risk management

  Discussed and assessed IHG’s approach to risk management and assurance, looking in particular at the governance structure in place and how our ‘Three Lines of Defence’ operate in practice and the Major Risks affecting the Group in 2014 (the 2014 Major Risk Review) (summarised above and on pages 26 to 29).

 

  Approved the Risk Working Group’s terms of reference and were provided with minutes from its previous meetings.

 

  Reviewed the Group’s hotel safety and security procedures and received regular risk management incident and threat reports.

 

  Received a presentation from the Group’s Chief Information Officer (Eric Pearson) on the structure of the Global Technology team and the major technology risks faced by the Group and assessed the steps being taken to mitigate these risks. At another meeting, Eric and the Head of Information Security discussed: (i) the approach to, and the activities planned to mitigate against, emerging information security risks; and (ii) information security trends in the hotel industry.

 

  Was updated on material litigation at each meeting.

 

  Considered and approved a revised Gifts and Entertainment Policy, Anti-Bribery Policy and Antitrust Policy. Provided with an overview of IHG’s regulatory compliance programme (covering Anti-Bribery, Antitrust/Competition Law, Data Privacy, Sanctions and Code of Conduct), including the key projects carried out during 2014 and the areas of focus for 2015.

 

  Considered the findings from the 2014 post-project review of major capital projects, and agreed with management the actions that would be applied to future projects.

 

  Received a presentation on the treasury control environment and the Group’s financing strategy from the Group Treasurer
 

and a presentation on the Group’s tax position from the Head of Group Tax.

Financial reporting, issues and decision making

  Reviewed the Group’s Preliminary Results, quarterly interim management statements and Half-Year Results (see below for the areas of significance which received increased attention).

 

  Considered the Group’s Annual Report and Form 20-F and ancillary documentation (see below).

 

  Received an update on items discussed by the Disclosure Committee at each meeting.

Internal audit

  Assessed the quarterly report from GIA to monitor progress against the GIA Plan and evaluate findings, and to ensure coverage of emerging risks.

 

  Considered the 2014 GIA Effectiveness Review (which contains input from auditees, senior management and Non-Executive Directors and assessed GIA against the Institute of Internal Auditors Standards) and concluded that the Group’s systems of internal controls and risk management, including internal audit activities, were operating effectively.

 

  Monitored progress against outstanding actions.

 

  Invited the Group’s external technology co-assurance provider to a number of meetings to discuss and review the approach to technology assurance.

Fraud and whistleblowing

  Received the biannual reports on significant incidents of fraud and whistleblowing, which in 2014 included an overview of the fraud management team and the process for escalation of reviewing serious fraud.

External audit and compliance

  Reviewed the independence and objectivity of the external Auditor and the effectiveness of the external audit process.

 

  Considered EY’s key findings of audit and accounting issues, analysing EY’s audit and non-audit fees at each meeting and noting that fees incurred to date were in accordance with IHG’s Audit and Non-Audit Services Pre-Approval Policy (see below).

 

  Reviewed and approved the 2014 Group Audit Plan.

 

  Evaluated and recommended the re-appointment of EY on the basis of performance and an assessment of EY’s independence and objectivity (see below).

External Auditor – Ernst & Young LLP (EY)

EY has been the Group’s Auditor since IHG listed in 2003. While an audit tender has not been carried out since EY’s initial appointment, the Committee considers the appointment of its Auditor annually, specifically assessing EY’s performance (including its independence and objectivity).

To ensure EY’s independence is safeguarded, lead audit partners rotate every five years. The current lead audit partner has been in place for four years.

The Committee reviews the independence and effectiveness of EY on an ongoing basis, including the effectiveness of the relationship between EY and the Group’s management, and receives reports from it on its independence annually. An evaluation of EY takes place annually where questionnaires on EY’s services are completed by more than 30 senior IHG employees that work with EY. As well as Group policies and procedures, which aim to

 

 

 

 

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safeguard EY’s independence and effectiveness, EY has its own protective policies and systems in place, which are explained in a Transparency Report issued by EY on an annual basis.

Following an in-depth review for the year ended 31 December 2014, the Committee was satisfied with the independence, objectivity and effectiveness of the relationship with EY as the external auditor, and with the external audit process as a whole.

Audit tender

During 2014, the Committee considered the requirements for audit tender in line with changes to legislation from the EU and the Competition and Markets Authority. Having reviewed legislative timescales and the effectiveness of the audit, we have concluded that no tender will be undertaken during 2015 but we will continue to monitor this.

Non-audit services

EY provide non-audit services to the Group, which are governed, so as to safeguard their objectivity and independence, by IHG’s Audit and Non-Audit Services Pre-Approval Policy:

 

  The policy is re-approved by the Audit Committee annually and, for the 2014 financial year, the policy was updated and approved at the December 2013 Audit Committee meeting.

 

  The policy requires that pre-approval is obtained from the Audit Committee for all services before any work can be commenced, in line with US SEC requirements. The Committee is prohibited from delegating non-audit services approval to management.

 

  Compliance with the policy is actively managed and an analysis of audit and non-audit services is reviewed by the Committee at each meeting.

The Committee is aware of, and sensitive to, investor body guidelines on non-audit fees. During 2014, 29 per cent of services provided to the Group were non-audit services; these included areas such as advisory work and corporate tax compliance.

 

 

For fees paid to EY for non-audit work during 2014, see page 120.

Significant matters in the 2014 Financial Statements

The Committee discussed with management the key judgements applied in the Financial Statements, the exceptional items arising in the year and the impact of any accounting developments or legislative changes. The main items discussed were:

 

  Accounting for the System Fund: the Committee reviewed the accounting approach adopted for the System Fund with management and EY, and concluded that the approach and the disclosures, including the key judgements noted on page 112, were appropriate.

 

  The IHG Rewards Club points liability: given the materiality of the IHG Rewards Club points liability, the Committee considered the approach to the valuation of the liability, including the results of the actuarial assessment of ‘breakage’ (see page 113) as at December 2014 and the expected cost of redemption of each point. Management was questioned on the consistency and robustness of the approach and the results of EY’s audit procedures were also considered before reaching the conclusion on the adequacy of the liability recorded.

 

  Impairment testing: the Committee reviewed a detailed management report supporting the conclusion that there were no impairment issues on hotel assets, goodwill or other
   

intangible assets. It challenged the key assumptions, including short and long-term growth rates, discount rates and underlying performance assumptions. The Committee also considered EY’s views on the work performed and concluded that the position taken was supportable.

 

  Litigation: given the judgement required in assessing the approach to be taken to material litigation, the Committee considered at each meeting an update report on major litigation matters and any provisioning for these matters. The factors taken into account by the Committee are set out on page 113.

 

  Deferred tax recognition: as noted on page 113, the recognition of deferred tax assets requires judgement and estimates primarily around the availability of future taxable profits. The Committee considered and approved the approach taken to the recognition of such profits, noting in particular EY’s reporting to the Committee in this area – deferred tax balances are analysed in note 7.

 

  Exceptional items: given the importance of showing a true underlying performance and being consistent in the definition of this year-on-year, the Committee challenged the appropriateness of the items disclosed as exceptional, in particular, the calculation of the profit on disposal of 80 per cent of our interest in InterContinental New York Barclay – focusing on the accounting for the remaining interest. The Committee also discussed the disclosures in note 5.

 

  Technology projects: as well as considering the process controls and overall governance of these projects, and based on discussions with management and EY’s audit findings and control observations on those matters, the Committee also assessed the appropriateness of the capitalisation of costs on the main projects and the need for any impairment on capitalised software assets.

Annual Report – Fair, balanced and understandable

At the request of the Board, a separate sub-committee meeting was held in February 2015 to consider whether the Annual Report and Form 20-F 2014 provided a fair, balanced and understandable view of the Group with the necessary information for shareholders to assess the Group’s performance, business model and strategy. Audit Committee members provided comments on the draft report that were then incorporated into the draft provided to the Audit Committee and Board for final comment and approval.

Effectiveness of the Committee

Effectiveness of the Committee is dependent on its overall efficiency as well as the efficacy of EY and GIA. The effectiveness of the Committee, EY and GIA is monitored and assessed annually through evaluation questionnaires and interviews.

Our priorities for 2015

During 2015, the Committee will specifically focus on: (i) the integrity of the internal financial controls and risk management systems; (ii) monitoring and continually assessing IHG’s information security arrangements; and (iii) overseeing the implementation of technology projects and the Global Finance function’s talent and succession plans.

Ian Dyson, Audit Committee Chairman

16 February 2015

 

 

 

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Cor po rat e Go ver na nce continued

Corporate Responsibility Committee Report

 

LOGO

“Ensuring meaningful progress against our five-year targets will remain a key focus of the Committee.”

 

 

Dear Shareholder

Roles and responsibilities

The Committee advises the Board on the Group’s corporate responsibility objectives and strategy, its approach to sustainable development, and ensures that IHG’s responsible business priorities deliver against our core purpose, Great Hotels Guests Love.

Our role and responsibilities are set out in our terms of reference (ToR), which are reviewed annually and no changes were made for 2015. The ToR are available on the Company’s website at www.ihgplc.com/investors under corporate governance/ committees or from the Company Secretary’s office on request.

Governance

All members have the experience and expertise necessary to meet the Committee’s responsibilities and a majority of the Committee members are Non-Executive Directors, as required under the ToR.

What did the Committee consider in 2014

During the year, the Committee’s key activities included:

Targets and core programmes

  Continually monitoring progress against our five-year targets (2013-2017) – see page 33 and www.ihgplc.com/ responsiblebusiness for details.

 

  Receiving progress updates on the key achievements in 2014 across the three core corporate responsibility programmes: IHG Green Engage, IHG Academy and IHG Shelter in a Storm, including an in-depth case study of an IHG Academy set up by a franchised hotel, Holiday Inn Stoke On Trent, and in-depth reports on IHG Shelter in a Storm.

 

  Inviting external speakers to the meetings to explore key topics, including a presentation from CARE on its strategic relationship with IHG, and an overview of the landscape of responsible business by the Chief Executive of Business in the Community.

 

  Discussing the Group’s performance against the 2014 delivery plan and setting 2015 priorities.

 

  Reviewing proposals for implementing and applying a brand standard in respect of IHG Green Engage for all hotels in the IHG System (see page 33).

Committee membership and attendance

 

Members 1    Attendance  
Jennifer Laing (Chairman)      3/3   
Luke Mayhew      3/3   
Dale Morrison      3/3   
Richard Solomons      3/3   
Ying Yeh      3/3   
Total meetings held      3   

 

  1   For full biographies see pages 57 to 59.

The Heads of Corporate Responsibility and the Chairman of the Board also attend the meetings.

Communication and awareness

  Evaluating the Responsible Business Communication Plan for 2014 and the results of the Employee Engagement survey, which had included questions in respect of the awareness and impact of our core corporate responsibility programmes. Responsible business activities continue to drive very high levels of pride in our employees, with 92 per cent of respondents saying they felt more positive about IHG as a result of corporate responsibility programmes.

 

  Considering methods to raise the levels of awareness and adoption of our corporate responsibility programmes in franchised hotels, such as our IHG Race Around the World event.

 

  Considering our corporate responsibility initiatives in the context of our broader responsible business practices and endorsing plans to have a broader IHG Responsible Business Report for 2014 (published in 2015).

 

LOGO

The Committee, along with our Corporate Responsibility team and the rest of the Board, also took part in an IHG Race Around the World event in Hyde Park in London, a fundraising event in support of, and building awareness for, IHG Shelter in a Storm.

Our priorities for 2015

During 2015, our priorities will be to: (i) continue to support IHG to ensure meaningful progress on our five-year corporate responsibility targets; (ii) further embed responsible business in the IHG brand and help to deliver external communications to support this; and (iii) further extend the success of IHG Shelter in a Storm by increasing IHG’s disaster preparedness capabilities and developing links with humanitarian agencies to grow IHG’s disaster relief capabilities.

Jennifer Laing, Corporate Responsibility Committee Chairman

16 February 2015

 

 

 

 

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Nomination Committee Report

 

LOGO

“The Committee keeps under continuous review the talent pool within the business.”

 

 

Dear Shareholder

Roles and responsibilities

The Committee considers the structure, size and composition of the Board, advising on succession planning and making appropriate recommendations to ensure the Board retains an appropriate mix of skills, experience, knowledge and diversity. It is also responsible for reviewing the Group’s leadership needs.

Our role and responsibilities are set out in our terms of reference (ToR), which are reviewed annually and no changes were made for 2015. The ToR are available on the Company’s website at www.ihgplc.com/investors under corporate governance/committees or from the Company Secretary’s office on request.

Governance

All members have the experience and expertise necessary to meet the Committee’s responsibilities and are independent Non-Executive Directors (excluding myself), as required under the ToR. During 2014, David Kappler retired from, and Jo Harlow joined, the Committee. When the Committee is considering matters relating to my position, Dale Morrison, Senior Independent Non-Executive Director, acts as chairman of the Committee.

What did the Committee consider in 2014

During the year, the Committee’s key activities included:

Board appointments

  Continually reviewing the tenure and qualifications of the Non-Executive Directors to ensure the Board has an appropriate and diverse mix of skills, experience, knowledge and diversity.

 

  Recommending appointments to the Board in line with our strategic objectives. As identified in our 2013 Annual Report, our priority for 2014 was to strengthen the Board’s existing capabilities by looking to appoint a Non-Executive Director with experience in consumer-facing technology. Lygon Group, who have no connection to IHG, was engaged as an external search agent. The search was undertaken against a detailed job specification setting out the particular skills, knowledge and experience required for the particular position. The Committee nominated Jo Harlow, having considered her wealth of experience and knowledge, particularly in connection with the role digital technology plays in driving consumer behaviour. The Board approved Jo’s appointment with effect from 1 September 2014.

Succession planning

  Focusing, on behalf of the Board, on Board succession planning:

 

    In advance of David Kappler’s plans to retire on 31 May 2014, we recommended the appointment of Ian Dyson as Chairman

Committee membership and attendance

 

Members 1    Attendance  
Patrick Cescau (Chairman)      5/5   
Ian Dyson      5/5   
Jo Harlow 2      0/0   
David Kappler 3      2/2   
Jennifer Laing      5/5   
Jonathan Linen 4      5/5   
Jill McDonald      5/5   
Luke Mayhew      5/5   
Dale Morrison      5/5   
Ying Yeh      5/5   

Total meetings held

     5   

 

  1   For full biographies of current members see pages 57 to 59.
  2   Jo Harlow joined the Committee effective as of 1 September 2014.
  3   David Kappler retired from the Committee effective as of 31 May 2014.
  4   Jonathan Linen retired from the Committee effective as of 31 December 2014.

The Chief Executive Officer also attends the meetings.

 

    of the Audit Committee from 1 April 2014, and Dale Morrison as Senior Independent Non-Executive Director from 31 May 2014. As both Dale and Ian were already members of the Board, this allowed for a smooth transition of duties upon David’s retirement.

 

    On 31 December 2014, Jonathan Linen retired from the Board after nine years’ service.

 

    We announced on 2 December 2014 that Kirk Kinsell would step down from the Board and his role as President of IHG’s Americas business on 13 February 2015. An independent executive search agency, Egon Zehnder, was engaged to conduct a review of prospective candidates. Accordingly, Kirk was succeeded by Elie Maalouf as Chief Executive Officer, The Americas, who joined IHG in January 2015 to allow for a handover period with Kirk. While Elie does not sit on the Board, he is a member of IHG’s Executive Committee.

 

  Keeping under continuous review the development, succession planning and talent pool for the Executive Committee and other senior executive roles to identify both talent strengths and talent gaps. New senior hires were made in both global and regional leadership positions, and a number of internal promotions to the senior leader level below Executive Committee took place, further strengthening our internal pipeline.

We have also considered Jennifer Laing and Ying Yeh’s continued appointments on the Board, as both have been on the Board for over six years, and specifically reviewed Jennifer’s independence having been on the Board for over nine years.

Board diversity

We recognise the value of diversity in its broadest sense and, whilst all appointments are made on merit, we seek to ensure the Board maintains an appropriate balance through a diverse mix of skills, experience, knowledge, gender and background – see page 62 for details of our Board Diversity Policy.

Our priorities in 2015

During 2015, we aim to continue to: (i) refresh the Board and Committees in line with our priorities; and (ii) ensure we have the right capabilities for the future.

Patrick Cescau, Nomination Committee Chairman

16 February 2015

 

 

 

 

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Statement of compliance with the UK Corporate Governance Code

Our statement of compliance presents a summary of how the Group has implemented the principles and provisions laid down in the UK Corporate Governance Code as published in September 2012 (the Code). This should be read in conjunction with the Corporate Governance Statement (pages 54 to 72) and the Directors’ Remuneration Report as a whole. The Code is available to view in full on the Financial Reporting Council website (www.frc.org.uk).

The Board considers that the Group has complied in all material respects with the Code for the year ended 31 December 2014 with the exception of Code provision C.3.7, which requires external audit contracts to be put to tender at least every 10 years. The Group has not re-tendered within that period, but the Audit Committee monitors this in line with legislation (further details are provided on pages 66 and 67).

 

A. Leadership

A.1 The role of the Board

The Board leads IHG’s strategic direction and the long-term objectives and success of the Group. It approves strategic plans and capital and revenue budgets, and reviews significant investment proposals, maintaining an overview and control of IHG’s operating and financial performance. It monitors the Group’s overall system of internal controls and risk management, governance and compliance, considering regulatory changes and developments (where appropriate), while ensuring that the necessary financial and human resources are in place for the Group to meet its objectives. Decisions and matters reserved for the Board and not delegated to management are available on our website at www.ihgplc.com/investors under corporate governance.

The Board meets formally eight times each year, with additional meetings scheduled as necessary. One of the meetings includes a two-day strategy meeting, in which the Board considers the Group’s strategy and related issues. Details of 2014 Board meetings are set out on page 56. The attendance by Committee members at Committee meetings can be found in each of their respective reports.

All Directors are covered by the Group’s Directors’ & Officers’ Liability Insurance policy (see page 72).

A.2 Division of responsibilities

The roles of the Chairman and Chief Executive Officer are clearly established.

Chief Executive Officer

As Chief Executive Officer, Richard Solomons leads the development of the Company’s strategic direction and implementation of the agreed strategy. He oversees IHG’s business operations and manages its risks as well as building and leading an effective Executive Committee.

A.3 The Chairman

As Chairman of the Board, Patrick Cescau leads the operation and governance of the Board and its Committees as well as building and maintaining an effective Board. This includes ensuring that Directors receive timely, accurate and clear information on the Group’s business and that all Directors are fully informed of relevant matters. The Chairman oversees corporate governance matters, ensuring they are addressed, and leads the performance and effectiveness evaluations of the Board, its Committees and the Directors.

The Chairman was independent on appointment.

A.4 Non-Executive Directors

As a strong source of advice and judgement for IHG, our Non-Executive Directors constructively challenge and help develop proposals on strategy. They provide significant external commercial experience and a broad range of skills for the Board to draw on.

Senior Independent Non-Executive Director

As Senior Independent Non-Executive Director, Dale Morrison is available to liaise with shareholders who have concerns that they feel have not been addressed through the normal channels of the Chairman, Chief Executive Officer and other Executive Directors. He also leads the annual performance review of the Chairman with the other Non-Executive Directors, and provides advice and judgement for the Chairman as necessary.

After each Board meeting, our Non-Executive Directors and the Chairman meet without Executive Directors being present.

During the year, if any Director has unresolved concerns about the running of IHG or a proposed action, these would be recorded in the minutes of the meeting.

Further information on each of these roles can be found on our website at www.ihgplc.com/investors under corporate governance.

B. Effectiveness

B.1 The composition of the Board

The size and composition of the Board is regularly reviewed for the appropriate balance of skills, experience, independence and knowledge to ensure it can carry out its duties and responsibilities effectively.

The Board’s current composition meets the requirement under the Code for at least half of the Board, excluding the Chairman, to be independent Non-Executive Directors (see page 61). Further details of the composition of the Board are available on pages 57 to 59.

Jennifer Laing has served on the Board for over nine years and the Nomination Committee has specifically reviewed her independence and is satisfied that she continues to demonstrate independence in character and judgement and is independent as required under the Code. The Board has also considered this and reached the same conclusion.

B.2 Appointments

The Board has delegated a number of responsibilities to the Nomination Committee. The Nomination Committee leads the appointment of new Directors to the Board and senior executives in accordance with its terms of reference (available on our website at www.ihgplc.com/investors under corporate governance/ committees or from the Company Secretary’s office on request) and supports the Board in succession planning. Further details of the role of the Nomination Committee and what it did in 2014, including details of the appointment process of Directors, are set out in the Nomination Committee Report on page 69. The overall process of appointment and removal of Directors is overseen by the Board as a whole.

As Ying Yeh and Jennifer Laing have been on the Board for over six years, their continued appointments were the subject of particular review and scrutiny by the Nomination Committee and the Board.

 

 

 

 

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B.3 Commitment

The terms of appointment of our Non-Executive Directors outlines the time commitment expected to fulfil their role. On appointment, Directors are advised of, and requested to make, the necessary time commitment required to discharge their responsibilities effectively. IHG’s Executive Directors are not permitted to take on more than one external non-executive directorship or chairmanship in addition to their role. Biographical details of all current Directors, including their external commitments, can be found on pages 57 to 59.

Details of Directors’ service contracts and appointment terms are set out on page 81.

The Chairman annually reviews the time each Non-Executive Director has dedicated to IHG as part of the internal performance evaluations of each Director (see page 64) and is satisfied that their other duties and time commitments do not conflict with those as Directors of the Company.

B.4 Development

A full, formal and tailored induction is developed for IHG’s new Directors (see page 63).

The Chairman and Company Secretary ensure that Directors continually update their skills and have the requisite knowledge and familiarity with the Group to fulfil their roles on the Board and its Committees (see page 63). All Directors are encouraged to request further information as they consider necessary to fulfil their role.

B.5 Information and support

The Chairman and the Company Secretary together ensure a good flow of information to the Board and its Committees and between the Executive Committee and the Non-Executive Directors. The Company Secretary also ensures that all Directors and Board Committees have access to independent advice when requested, at the expense of the Group, where it is necessary to discharge their responsibilities as Directors.

The role of the Company Secretary

George Turner, as Company Secretary, ensures a good flow of information to the Board and its Committees and between the Executive Committee and the Non-Executive Directors. He facilitates all new Director inductions. He advises the Board on corporate governance matters and keeps the Board up to date on all relevant legal, regulatory and other developments. The appointment and removal of the Company Secretary is a matter for the Board as a whole.

B.6 Evaluation

The Board undertakes either an internal or external annual Board effectiveness evaluation to inform further enhancements to our Board processes. In 2013, this was carried out externally and in 2014, it was carried out internally. Performance evaluations of all Directors, including the Chairman, are also carried out and the Board considers the effectiveness of each of its Committees. See pages 63 and 64 for further information.

B.7 Re-election

The Company’s amended Articles of Association (the Articles) approved by our shareholders on 28 May 2010 (see page 72) provide that each Director is subject to election at the first Annual General Meeting (AGM) following their appointment and re-election at least every three years if they wish to continue serving in office.

However, in accordance with the recommendations of the Code, all of IHG’s Directors retire and seek election or re-election at each AGM. All of IHG’s current Directors (biographies as set out on pages 57 to 59) will retire and seek election or re-election at the 2015 AGM (as set out in the Notice of Meeting for the AGM (see page 64)).

C. Accountability

C.1 Financial and business reporting

Our Statement of Directors’ Responsibilities (including the Board’s statement confirming that it considers that the Annual Report and Form 20-F, taken as a whole, is fair, balanced and understandable and provides the information necessary for shareholders to assess the Group’s performance, business model and strategy) is set out on page 94.

The status of IHG as a going concern is set out in the Directors’ Report on page 75. An explanation of the Group’s performance, business model, strategy and the risks and uncertainties relating to IHG’s prospects is set out in the Strategic Report on pages 2 to 51.

The statement from our Auditor, Ernst & Young LLP, about its reporting responsibilities is set out on pages 95 to 99.

C.2 Risk management and internal control

The Board has ultimate responsibility for determining the nature and extent of the significant risks it is willing to take in line with the strategy.

The Board and Audit Committee monitor the Group’s risk management and internal controls systems and conducts an annual review of the effectiveness of the Group’s system of internal controls and risk management, and reviews the Group’s risk appetite. This review covers all material controls, including financial, operational and compliance controls. Further details are set out in the Strategic Report on pages 26 to 29, and also in the Audit Committee Report on pages 65 to 67.

C.3 Audit Committee and Auditors

The Board has delegated a number of responsibilities to the Audit Committee. The Committee comprises entirely of independent Non-Executive Directors, with at least one member having recent and relevant financial experience. Further details, including its role, responsibilities and activities in 2014, are set out in the Audit Committee Report on pages 65 to 67. The Audit Committee’s terms of reference are available on our website at www.ihgplc.com/investors under corporate governance/ committees or from the Company Secretary’s office on request.

Ernst & Young LLP has expressed its willingness to continue in office as Auditor of the Company and its reappointment will be put to shareholders at the AGM. Further details can be found in the Audit Committee Report on pages 65 to 67.

 

 

 

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Statement of compliance with the UK Corporate Governance Code continued

 

D. Remuneration

D.1 The level and components of remuneration

The activities of the Remuneration Committee during 2014, a summary of our Directors’ Remuneration Policy approved at our 2014 AGM, and the Annual Report on Directors’ Remuneration and Implementation of the Directors’ Remuneration Policy are set out in the Directors’ Remuneration Report on pages 76 to 91.

D.2 Procedure

The Board has delegated a number of responsibilities to the Remuneration Committee including developing policy on executive remuneration and for fixing the remuneration packages of individual Directors. Further information can be found in the Director’s Remuneration Report.

The terms of reference of the Remuneration Committee can be found on our website at www.ihgplc.com/investors under corporate governance/committees, or from the Company Secretary’s office on request.

During 2014, no individual Director was present when their own remuneration was discussed.

E. Relations with shareholders

E.1 Dialogue with shareholders

The Board as a whole is responsible for ensuring satisfactory dialogue with all shareholders of the Company to promote mutual understanding of objectives. Further details of the Board’s approach to relations with our shareholders is set out on page 64.

E.2 Constructive use of the AGM

The next AGM of the Company will take place on Friday, 8 May 2015 and will provide an opportunity for shareholders to vote on certain aspects of Group business, as set out in the Notice of Meeting available at www.ihgplc.com/investors under financial library and which was sent out to shareholders at the same time as this Annual Report and Form 20-F.

The Board ensures where possible that all Board members, particularly the Chairmen of each of the Board Committees, attend the AGM and are available to answer questions from shareholders.

 

 

 

Di re ct or s’ R ep ort

 

Much of the information previously provided as part of the Directors’ Report is now required under Company Law to be presented as part of the Strategic Report. This Directors’ Report includes the information required to be given in line with the Companies Act or, where provided elsewhere, an appropriate cross reference is given. The Corporate Governance Statement approved by the Board is provided on pages 54 to 72 and incorporated by reference herein.

Subsidiaries, joint ventures and associated undertakings

The Group has over 300 subsidiaries, joint ventures and associated undertakings.

Directors

During 2014 the following individuals served as Directors:

Patrick Cescau, Ian Dyson, Paul Edgecliffe-Johnson, Jo Harlow, David Kappler, Kirk Kinsell, Jennifer Laing, Jonathan Linen, Luke Mayhew, Jill McDonald, Dale Morrison, Tracy Robbins, Tom Singer, Richard Solomons and Ying Yeh.

Tom Singer resigned effective as of 1 January 2014, David Kappler retired effective as of 31 May 2014, Jo Harlow joined effective as of 1 September 2014, Jonathan Linen retired effective as of 31 December 2014 and Kirk Kinsell resigned effective as of 13 February 2015.

 

 

For biographies of the current Directors see pages 57 to 59.

Directors’ & Officers’ (D&O) Liability Insurance

The Company maintains the Group’s D&O Liability Insurance policy, which covers Directors and officers of the Company against defending civil proceedings brought against them in their capacity as a Director or officer of the Company (including those who served as Directors or officers during the year). There were no indemnity provisions relating to the UK pension plan for the benefit of the Directors during 2014.

Articles

The Company’s Articles may only be amended by special resolution and are available on the Company’s website at www.ihgplc.com/ investors under corporate governance. A summary is provided on pages 167 to 168.

Shares

Share capital

The Company’s issued share capital at 31 December 2014 consisted of 247,655,712 ordinary shares of 15 265 / 329 pence each including 11,538,456 shares held in treasury, which constitutes 4.66 per cent of the total issued share capital (including treasury shares). There are no special control rights or restrictions on share transfers or limitations on the holding of any class of shares.

During 2014:

 

  the Company’s issued share capital was subject to a share consolidation effective as of 1 July 2014 (see page 73);

 

  60,370 new shares were issued under employee share plans; and

 

  the Company completed the share buyback programme (see page 73).

As far as is known to management, IHG is not directly or indirectly owned or controlled by another company or by any governments.

The Board focuses on shareholder value creation. When it decides to return capital to shareholders, it considers all the options, including share buybacks and special dividends.

 

 

 

 

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Share issues and buybacks

On 29 May 2014, we completed our $500m share buyback programme which was announced on 7 August 2012 and commenced on 12 November 2012. The current share buyback authority remains in force until the 2015 AGM, and a resolution to renew the authority will be put to shareholders at that AGM.

The table below illustrates the transactions that took place during 2014 that affected the Company’s issued share capital:

 

Event    Ordinary shares  
12 for 13 share consolidation 1 with a special dividend of 174.9p per share (293¢ per ADR)      n/a   
Share plan exercises      60,370   

Share buyback 2

695,885 shares were bought back and cancelled and 2,726,088 shares were bought back and held in treasury

     3,421,973   
Other cancelled shares 3      14   

 

1   The share consolidation, effective as of 1 July 2014, was on the basis of 12 ordinary shares of 15 265/ 329 pence each for 13 ordinary shares of 14 194/ 329 pence each.
2   Excludes 14 shares included in the ‘Other cancelled shares’ number below.
3   This comprises 8 shares bought-back and cancelled and 6 treasury shares cancelled as a result of the above-mentioned share consolidation.

Dividends

In 2014, the Company announced a $750m return of funds to shareholders via special dividend and share consolidation on the basis of 12 ordinary shares of 15 265/ 329 pence each for 13 ordinary shares of 14 194/ 329 pence each (effective as of 1 July 2014).

 

Dividend    Ordinary shares      ADR  

Special dividend

Paid on 14 July 2014

     174.9p         293¢   

Interim dividend

Paid 26 September 2014

     14.8p         25.0¢   

Final dividend

Subject to shareholder approval, payable on 15 May 2015 to shareholders on the Register of Members at the close of business on 7 April 2015

     33.8p         52.0¢   

 

 

For more information on IHG’s return of funds and dividends, see note 27 on page 149.

 

 

Major institutional shareholders

As at 16 February 2015, the Company had been notified of the following significant holdings in its ordinary shares under the UK Disclosure and Transparency Rules:

 

     As at 16 February 2015      As at 17 February 2014     As at 18 February 2013  
Shareholder    Ordinary
shares/ADSs
     %      Ordinary
shares/ADSs
    %     Ordinary
shares/ADSs
     %  
Cedar Rock Capital Limited      14,923,417         5.07         14,923,417        5.07        14,923,417         5.07   
BlackRock, Inc.      n/a         n/a         13,061,965 1       5.01 1       14,505,612         5.02   
The Capital Group Companies, Inc      8,557,888         3.30         8,557,888        3.30        n/a         n/a   
Boron Investments NV      7,500,000         3.18         n/a        n/a        n/a         n/a   

 

1   On 7 October 2013, BlackRock, Inc. notified the Company that its shareholding in the Company had increased to above 5% and this notification was announced by the Company on 8 October 2013. Subsequently, on 8 July 2014, BlackRock, Inc. notified the Company that its 7 October 2013 notification had been made in error and that, in fact, BlackRock, Inc. holds less than 5% in the Company. This error was announced by the Company on 8 July 2014.

The Company’s major shareholders have the same voting rights as other shareholders. The Company does not know of any arrangements, the operation of which may result in a change in its control.

 

For further details on shareholder profiles, see page 178.

2014 share awards and grants to employees

No awards or grants over shares were made during 2014 that would be dilutive of the Company’s ordinary share capital. Our current policy is to settle the majority of awards or grants under the Company’s share plans with shares purchased in the market, however, the Board continues to review its policy. Those options, which were previously granted up to 2005, have now all been exercised and therefore, as at 31 December 2014, no options were outstanding.

The Company has not utilised the authority given by shareholders at any of its AGMs to allot shares for cash without first offering such shares to existing shareholders.

Employee share ownership trust (ESOT)

IHG operates an ESOT for the benefit of employees and former employees. The ESOT purchases ordinary shares in the market and releases them to current and former employees in satisfaction of share awards. During the year, the ESOT released 163,130 shares and at 31 December 2014 it held 1,344,726 ordinary shares in the Company. The ESOT adopts a prudent approach to purchasing shares, using funds provided by the Group, based on expectations of future requirements.

 

 

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Di re ct ors’ Re po rt continued

 

Director and Executive Committee shareholdings

As at 16 February 2015, Directors and Executive Committee members had the same number of beneficial interests in shares as at 31 December 2014, as set out in the table below. These shareholdings include all Directors’ beneficial interests and those held by their spouses and other connected persons. As at 16 February 2015, no Director or Executive Committee member held more than 0.2% of the total issued share capital.

None of the Directors have a beneficial interest in the shares of any subsidiary. The shareholdings set out below do not include Executive Directors’ or Executive Committee members’ share awards under IHG’s share plans. These are set out separately in the Directors’ Remuneration Report on page 88 for the Executive Directors and on page 166 for Executive Committee members.

 

Directors    As at
31 December 2014
ordinary shares
    As at
31 December 2013
ordinary shares
 
Patrick Cescau (Chairman)               
Richard Solomons (Chief Executive Officer)      382,533        371,198   

 

Senior Independent Non-Executive Director

  

David Kappler 1      n/a        1,308   
Dale Morrison      3,907 2       4,233 2  

Executive Directors

  

Paul Edgecliffe-Johnson 3      10,583        n/a   
Kirk Kinsell 4      117,640 5       127,444 6  
Tracy Robbins      51,418        85,703   
Tom Singer 3      n/a        54,386   

 

Non-Executive Directors

  

Ian Dyson               
Jo Harlow 7             n/a   
Jennifer Laing      2,905        3,148   
Jonathan Linen 8      6,325 2       6,853 2  
Luke Mayhew      1,722        1,866   
Jill McDonald               
Ying Yeh               

 

Executive Committee

  

Keith Barr      22,522        24,399   
Angela Brav      32,724        19,286   
Elie Maalouf 9             n/a   
Kenneth Macpherson      7,472        1,797   
Eric Pearson      1,998        65,293   
Jan Smits      30,476        106,350   
George Turner             3,277   

 

1   David Kappler retired as a Non-Executive Director effective as of 31 May 2014.
2   Shares held in the form of American Depositary Receipts.
3   Paul Edgecliffe-Johnson was appointed as Chief Financial Officer effective as of 1 January 2014 following the resignation of Tom Singer effective as of the same date.
4   Kirk Kinsell resigned as Executive Director effective as of 13 February 2015.
5   117,092 ordinary shares and 548 American Depositary Receipts.
6   126,850 ordinary shares and 594 American Depositary Receipts.
7   Jo Harlow was appointed as a Non-Executive Director effective as of 1 September 2014.
8   Jonathan Linen retired as a Non-Executive Director effective as of 31 December 2014.
9   Elie Maalouf was appointed to the Executive Committee effective as of 13 February 2015.

Future business developments of the Group

Further details on these are set out in the Strategic Report on pages 2 to 51.

Employees and Code of Conduct

Details of the average number of people IHG employed as at 31 December 2014 and the number of people working across the whole estate are set out on page 23.

We continue to focus on providing an inclusive environment, in which employees are valued for who they are and what they bring to the Group, and in which talented individuals are retained through all levels of the organisation – see page 62 for our Global Diversity and Inclusion Policy.

We also look to appoint the most appropriate person for the job and are committed to providing equality of opportunity to all employees without discrimination. Every effort is made to ensure that applications for employment from disabled employees are fully and fairly considered and that disabled employees have equal opportunities in training, career development and promotion.

The Code of Conduct applies to all Directors, officers and employees and complies with the NYSE rules as set out in section 406 of the US Sarbanes-Oxley Act 2002. Further details can be found on page 174.

 

 

For more information on the Group’s employment policies, including equal opportunities, employee communications and development, see pages 23 to 25.

Greenhouse gas emissions

The disclosures concerning greenhouse gas emissions required by law are included in the Strategic Report on page 25.

Finance

Political donations

The Group made no political donations under the Companies Act during the year and proposes to maintain this policy.

Financial risk management

The Group’s financial risk management objectives and policies, including its use of financial instruments, are set out in note 20 to the Group Financial Statements on pages 135 to 137.

Significant agreements and change of control provisions

The Group is a party to the following arrangements which could be terminated upon a change of control of the Company and which are considered significant in terms of their potential impact on the business of the Group as a whole:

 

  the five-year $1.07bn syndicated loan facility agreement dated 7 November 2011, under which a change of control of the Company would entitle each lender to cancel its commitment and declare all amounts due to it payable;

 

  the seven-year £250m bond issued by the Company on 9 December 2009, under which, if the bond’s credit rating was downgraded in connection with a change of control, the bond holders would have the option to require the Company to redeem or, at the Company’s option, repurchase the outstanding notes together with interest accrued;
 

 

 

 

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  the 10-year £400m bond issued by the Company on 28 November 2012, under which, if the bond’s credit rating was downgraded in connection with a change of control, the bond holders would have the option to require the Company to redeem or, at the Company’s option, repurchase the outstanding notes together with interest accrued; and

 

  the six-month $400m term loan facility agreement dated 13 January 2015, under which a change of control of the Company would entitle the lender to declare all amounts due to it payable.

 

 

Further details on these are set out on pages 169 and 170.

Business relationships

During 2012, the Group entered into a five-year technology outsourcing agreement with International Business Machines Corporation (IBM), pursuant to which IBM operates and maintains the infrastructure of the Group’s reservations system. Otherwise, there are no specific individual contracts or arrangements considered to be essential to the business of the Group as a whole.

Existence of qualifying indemnity provisions

For details, see Directors’ and Officers’ Liability Insurance Policy on page 72.

Disclosure of information to the Auditor

For details, see page 94.

Events after the reporting period

On 13 January 2015, the Group raised a $400m bilateral term loan to help finance the acquisition of Kimpton Hotel & Restaurant Group, LLC; the term loan expires in July 2016.

On 16 January 2015, the Group completed the acquisition of Kimpton Hotel & Restaurant Group, LLC for $430m in cash (see page 153).

Listing Rules – compliance with LR 9.8.4C

 

Section    Applicable sub-paragraph
within LR 9.8.4C
   Location  
1    Interest capitalised     
 
Financial Statements,
note 6, page 122
  
  
2    Publication of unaudited financial information      n/a   
4    Details of long-term incentive schemes     
 
 
 
Directors’
Remuneration
Report, pages 79, 80
and 84 to 86
  
  
  
  
5    Waiver of emoluments by a Director      n/a   
6    Waiver of future emoluments by a Director     
 
 
Directors’
Remuneration
Report, page 91
  
  
  
7    Non pre-emptive issues of equity for cash      n/a   
8    Item (7) in relation to major subsidiary undertakings      n/a   
9    Parent participation in placing by a listed subsidiary      n/a   
10    Contracts of significance      n/a   
11    Provision of services by a controlling shareholder      n/a   
12    Shareholder waivers of dividends      n/a   
13    Shareholder waivers of future dividends      n/a   
14    Agreements with controlling shareholders      n/a   

Going concern

An overview of the business activities of IHG, including a review of the key business risks that the Group faces, is given in the Strategic Report on pages 2 to 51 and in the Group Information on pages 162 to 170. Information on the Group’s treasury management policies can be found in note 20 to the Group Financial Statements on pages 135 to 137. The Group refinanced its bank debt in November 2011 and put in place a five-year $1.07bn facility. In December 2009, the Group issued a seven-year £250m sterling bond and, in November 2012, a 10-year £400m sterling bond. Subsequent to the year end the Group raised a $400m term loan to help finance the acquisition of Kimpton Hotel & Restaurant Group, LLC; the term loan expires in July 2016.

At the end of 2014, the Group was trading significantly within its banking covenants and debt facilities.

The Group’s fee-based model and wide geographic spread means that it is well placed to manage through uncertain times and our forecasts and sensitivity projections, based on a range of reasonably possible changes in trading performance, show that the Group should be able to operate within the level of its current facilities.

After making enquiries, the Directors have a reasonable expectation that the Company and the Group have adequate resources to continue in operational existence for the foreseeable future and, accordingly, they continue to adopt the going concern basis in preparing the Financial Statements.

By order of the Board

George Turner, Company Secretary

InterContinental Hotels Group PLC

Registered in England and Wales, Company number 5134420

16 February 2015

 

 

 

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IHG   Annual Report and Form 20-F 2014
 

Dire ctors’ Remu nera tion Rep ort

Remuneration Committee Chairman’s Statement

 

LOGO

“Our Directors’ Remuneration Policy rewards the successful execution of the business strategy, as demonstrated by this year’s outcomes. So that it remains effective for the future, we will review it in 2015 and seek shareholders’ approval again in 2016.”

 

 

Dear Shareholder

2014 corporate performance and incentive outcomes

Executive Director remuneration has reflected another year of strong performance. Annual Performance Plan (APP) awards are comparable to last year, reflecting continued good growth of Earnings Before Interest and Tax (EBIT) as well as encouraging progress on guest satisfaction and Employee Engagement survey scores. Another three years of high Total Shareholder Return (TSR) was the main driver for the vesting under the 2012/14 Long Term Incentive Plan (LTIP) cycle, which is marginally below last year.

 

Corporate performance indicators    2014      2013     2012  
Operating profit before exceptional items     

 

-2.5%

$651m 1

  

  

    

 

+10.4%

$668m

  

2  

   

 

+10.4%

$605m

  

3,4  

Full-year dividend per share (excluding any special dividends and capital returns)     

 

77.0¢

48.6p

  

  

    

 

70.0¢

43.2p

  

  

   

 

64.0¢

41.2p

  

  

Three-year total TSR (annualised)      +31.7%         +18.4%        +28.2%   

 

  1   Includes two liquidated damages receipts in 2014: $7m, both in The Americas.
  2   Includes three liquidated damages receipts in 2013: $31m in The Americas, $9m in Europe and $6m in AMEA.
  3   Includes one significant liquidated damages receipt in 2012 of $3m in The Americas.
  4   With effect from 1 January 2013, the Group adopted IAS 19 (Revised) ‘Employee Benefits’ resulting in the following additional charges to operating profit: $5m for the six months ended 30 June 2012 and $9m for the 12 months ended 31 December 2012.

 

Directors’ Remuneration Policy

At the 2014 AGM, shareholders approved our Directors’ Remuneration Policy (DR Policy), as set out in our 2013 Annual Report, with 90.94 per cent support. I mentioned in the 2013 Directors’ Remuneration Report the issues we had discussed at some depth with shareholders prior to the vote at the AGM. The two we know prompted some shareholders to vote against the

DR Policy were the use of relative TSR as a measure in the LTIP, and the fact that the DR Policy did not require Executive Directors to hold shares beyond the three-year vesting date.

I explained then that the outcome of the 2011/13 LTIP cycle was in line with performance and reflected shareholder value creation. I also pointed out that our Executive Directors had very substantial shareholdings and formally requiring further holding periods seemed unnecessary. Shareholders voted 94.01 per cent in favour of the 2013 Directors’ Remuneration Report.

We are not making any changes to the DR Policy itself for 2015. There is, however, one substantive change to how we will implement the DR Policy. We have introduced a three-year clawback clause post-vesting or payment of awards, applying to awards made relating to 2015 and future financial years. This will apply in addition to the existing malus provision in the DR Policy, which allows for awards to be reduced prior to vesting. The details are set out on pages 81 and 91 of the Annual Report.

Remuneration and business strategy

We feel strongly that we should make changes to the DR Policy in a coherent way if it is to retain credibility with management and serve its purpose of motivating and rewarding outstanding performance. Reward arrangements for senior executives of a global business are inevitably quite complicated and need to be communicated as an intrinsic part of the business strategy. We are keen to avoid, if possible, the introduction of ad-hoc changes, especially where there is no link to the business strategy.

The current executive reward structure was introduced five years ago. It includes the key performance measures at the heart of the current business strategy; an annual plan to incentivise and reward the delivery of good financial results, as well as from 2013, improvements in guest satisfaction and employee engagement; and a long-term plan to reward the delivery of strong shareholder returns and better-than-market number of rooms and RevPAR growth. All these measures remain relevant to future business strategy. However, after five years, it is right to revisit whether other measures and remuneration approaches could even better support the strategic priorities for the coming five years, as well as consider further questions shareholders have raised. Therefore, during 2015, the Remuneration Committee will revisit all aspects of the APP and LTIP to ensure they remain fit for purpose. This will include consideration of the following:

 

  the mix of short and long-term incentives and what is appropriate for different levels of senior executives;

 

  the performance measures most aligned with business strategy and shareholder returns over the next five years;

 

  executive shareholding requirements and post-vesting holding periods;

 

  how best to communicate the overall policy to senior executives globally to ensure it helps drive performance; and

 

  how to further improve communication on remuneration to shareholders, in particular the level of disclosure of targets and outcomes.

We will consult major shareholders and shareholder organisations during 2015 and put the new DR Policy to all shareholders at our 2016 AGM for approval.

 

 

 

 

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Pension arrangements

For a number of years, we have been working to de-risk the potential liabilities of the Group’s legacy UK pension arrangements. The defined benefit pension closed to new members in 2002 and to future accrual in 2013, after which benefits were secured with an insurer.

One of the last elements of de-risking we announced was our intention to change the long-established enhanced early retirement arrangements. These terms were inappropriate in the current wider pensions context. The conditions were changed during the year and this will be phased out over the coming years, as explained on pages 85 and 87.

The main exceptional payment in this Directors’ Remuneration Report relates to the decision announced last year to seek to cash out the closed senior executive pension scheme – InterContinental Hotels Executive Top-Up Scheme (ICETUS). This was the final stage of the de-risking plan. I am pleased that we had a positive response from those members of the scheme with the most potential value. Richard Solomons was one of those who agreed to cash out this part of the pension. The value of the pension was substantial, reflecting his 22 years with the business. As a result, there is a one-off additional element in his overall remuneration for 2014 only. This is explained in the single remuneration figure section on page 82.

No other changes are proposed and the Board believes that any remaining UK pensions risk is not significant.

Board change

Kirk Kinsell left the Board and his role as President, The Americas on 13 February 2015, aged 60, after a total of 19 years’ service with the business.

Mr Kinsell was succeeded by Elie Maalouf who was appointed to the role of Chief Executive Officer, The Americas, effective as of 13 February 2015 and who also became a member of IHG’s Executive Committee.

The remuneration consequences of Mr Kinsell’s departure were determined in line with the DR Policy and the rules of the relevant incentive plans. Details of Mr Kinsell’s remuneration arrangements on departure are included in the Directors’ Remuneration Report and have been disclosed on the Company’s website at www.ihgplc.com/investors

About this report

This statement aims to set out the more significant parts of the report for those who want to know the headlines, main issues considered in 2014 and the priorities for 2015. The Annual Report on Directors’ Remuneration contains more detailed disclosures, many of which are prescribed by legislation or regulation, but we have tried to make it easier to follow by also taking into account current thinking on best practice in remuneration reporting. We have included a summary of our approved DR Policy (see pages 80 and 81) for ease of reference only, as it provides investors with an understanding of the detail of the remuneration outcomes that follow. The full DR Policy is available at www.ihgplc.com/investors. We have also looked to simplify the graphs and tables wherever possible and ensure that the link between our strategy and remuneration is clear.

The 2012 Directors’ Remuneration Report won the PwC ‘Building Public Trust Award’ for Executive Remuneration Reporting in the FTSE 100 and the 2013 Annual Report on Directors’ Remuneration received ‘Highly Commended’.

Conclusion

This Directors’ Remuneration Report was approved by the Board on 16 February 2015. The Board recommends this Directors’ Remuneration Report to shareholders.

The Annual Report on Directors’ Remuneration and the Chairman’s Statement are subject to an advisory vote at the 2015 AGM.

Luke Mayhew, Remuneration Committee Chairman

16 February 2015

 

 

 

Governance

 

Roles and responsibilities

The Remuneration Committee agrees, on behalf of the Board, all aspects of the remuneration of the Executive Directors and the Executive Committee, and agrees the strategy, direction and policy for the remuneration of other senior executives who have a significant influence over the Company’s ability to meet its strategic objectives.

The Committee’s role and responsibilities are set out in the Terms of Reference (ToR) which are available on the Company’s website at www.ihgplc.com/investors under corporate governance/ committees or from the Company Secretary’s office on request. The ToR are reviewed annually and there were no changes to them during 2014.

Governance

All members are independent Non-Executive Directors, as required under the ToR. During 2014, Jo Harlow joined the Committee and both David Kappler and Jonathan Linen retired. All members have the necessary experience and expertise to meet the Committee’s responsibilities.

 

 

 

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Dire ctors’ Remu nera tion Rep ort continued

Governance continued

 

Committee approach to managing risk

Our approach to remuneration is to directly link it to IHG’s strategy. Risk management is a key part of IHG’s responsible business practices and the Committee considers risk mitigation as central to the way that incentive arrangements are structured, for example:

 

  the APP and LTIP are structured so as to have a balance of measures that ensure senior executives are not incentivised to behave in a way that could adversely affect the sustainable growth of the Group and the long-term interests of its shareholders. For instance, in the 2014 and 2015 APP, the drive for short-term financial results is balanced by performance measures focused on guest satisfaction and employee engagement;

 

  the Committee reserves the discretion to determine that payouts in the LTIP be adjusted if they are not consistent with the Committee’s assessment of the Group’s earnings and the quality of the financial performance over the relevant performance period; and

 

  malus and post-vesting clawback provisions apply to certain awards made to Executive Directors under the APP and LTIP.

Remuneration Committee

 

Committee membership and attendance

 

Members 1    Attendance  
Luke Mayhew      5/5   
Ian Dyson      5/5   
Jo Harlow 2      2/2   
David Kappler 3      1/1   
Jonathan Linen 4      5/5   
Ying Yeh      5/5   
Total meetings held      5   

 

  1 For full biographies of current members see pages 57 to 59.
  2 Jo Harlow joined the Remuneration Committee as a Non-Executive Director on 1 September 2014.
  3 David Kappler retired as a Non-Executive Director on 31 May 2014.
  4 Jonathan Linen retired as a Non-Executive Director on 31 December 2014.

The Chairman of the Board, and Tracy Robbins (Executive Vice President, Human Resources and Group Operations Support) attended all meetings. The Chief Executive Officer attended four meetings.

Jean-Pierre Noël (Senior Vice President, Global Reward & HR Capability) provided advice to the Committee on remuneration issues as required.

What did the Committee consider in 2014

The Committee discussed the following key matters:

 

  setting of targets for the 2014 APP and the 2014/16 LTIP cycle;

 

  review of 2013 Executive Committee performance and 2014 remuneration review;

 

  setting key performance objectives for Executive Committee members for 2014;
  pensions review including Enhanced Early Retirement Facility (EERF) and ICETUS/Six Continents Executive Top Up Scheme (SCETUS) buy-out;

 

  review of external market developments;

 

  monitoring achievement against targets of the 2014 APP and ongoing LTIP cycles;

 

  evaluation of incentive arrangements for levels of management below Executive Committee level and discussion of proposals for change; and

 

  evaluation of achievement against targets for 2014 APP and the 2012/14 LTIP.

Remuneration advisers

The Committee continued to retain PricewaterhouseCoopers LLP (PwC) throughout 2014 as independent advisers. Fees of £60,300 were paid to PwC in respect of advice provided to the Committee on executive remuneration matters in 2014. This was in the form of an agreed fee for support in preparation of papers and attendance at meetings, with work on additional items charged at hourly rates. PwC also provided tax and other consulting services to the Group during the year.

The terms of engagement for PwC are available from the Company Secretary’s office on request.

PwC was appointed following a competitive tender process. The Committee is satisfied that the advice received from PwC was objective and independent as PwC is a member of the Remuneration Consultants Group. Members of this group adhere to a voluntary code of conduct that sets out the role of executive remuneration consultants in the UK and the professional standards they have committed to adhere to when advising remuneration committees.

Voting at IHG AGMs

At the 2014 AGM, under the new reporting regulations, the new binding vote in respect of the Directors’ Remuneration Policy was as follows:

 

AGM    Votes for      Votes against      Abstentions  
2014     

 

155,440,907

(90.94%)

  

  

    

 

15,483,775

(9.06%)

  

  

     906,025   
At IHG’s most recent AGMs, the annual advisory vote in respect of the Directors’ Remuneration Report was as follows:    
AGM    Votes for      Votes against      Abstentions  
2014     

 

158,131,479

(94.01%)

  

  

    

 

10,076,027

(5.99%)

  

  

     3,623,200   
2013     

 

160,795,577

(85.73%)

  

  

    

 

26,762,429

(14.27%)

  

  

     1,226,617   
2012     

 

203,110,989

(95.46%)

  

  

    

 

9,651,718

(4.54%)

  

  

     1,750,533   
 

 

 

 

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Strategic context

 

Key remuneration principles

IHG’s remuneration principles are designed to drive the delivery of its strategic objectives. To do this, we need to:

 

  align rewards for senior executives with the achievement of business performance targets and strategy and with returns for our hotel owners and shareholders;

 

  attract and retain high-quality executives in an environment where compensation for multinational employers is based on global market practice;

 

  support equitable treatment between members of the same executive team; and

 

  facilitate global mobility and relocations.

IHG’s remuneration structure for senior executives places a strong emphasis on performance-related reward. The Committee believes that it is important to reward senior management, including the Executive Directors, for targets achieved, provided those targets are stretching and drive results.

Link to strategy

Our strategy for delivering high-quality growth (detailed on pages 14 to 25) and the Key performance indicators (KPIs) (set out on pages 30 to 33) through which we monitor and measure our success are the key drivers for the performance-related elements of our reward structure, the APP and LTIP (see below):

 

 

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Dire ctors’ Remu nera tion Rep ort continued

Summary of our Directors’ Remuneration Policy (DR Policy)

 

 

How to use this report

 

   
The 2014 Directors’ Remuneration Report uses colour coding throughout to denote different elements of remuneration, as follows:

LOGO Salary

LOGO  Benefits

LOGO  APP cash    

LOGO  APP  deferred shares    

LOGO  LTIP

LOGO  Pension benefit

 

This is a brief summary of the DR Policy, which was approved at our 2014 AGM. The full DR Policy can be found at www.ihgplc.com/investors under corporate governance.

DR Policy table summary

 

Executive Directors

 

   Element Framework
Fixed LOGO Salary

Salaries increase generally in line with the range applying to the corporate UK and US employee population. They are reviewed annually and are fixed for 12 months from 1 April.

 

Newly appointed or recruited Executive Directors may, on occasion, have their salaries set below the benchmark policy level while they become established in role. In such cases, salary increases may be higher than the corporate UK and US employee population until the target positioning is achieved.

 

  LOGO Benefits

Benefits are restricted to the typical level in the relevant market for an Executive Director. They may include the cost of independent financial advice, car allowance/company car, private healthcare/medical assessments and relocation and expatriate or international assignment costs where appropriate.

 

Variable

LOGO LOGO APP

(50% cash and 50% IHG shares deferred for three years)

Maximum annual award is 200% of salary; target award is 115% of salary; threshold is 50% of target award for each measure.

 

This is reviewed annually with targets set in line with key strategic priorities:

 

•  70% EBIT

 

•  30% non-financial measures

 

They include regional or global measures or a combination of both.

 

The Committee may vary the relative weighting of EBIT and other metrics from year to year. Personal performance may also be taken into account in determining awards under the APP.

 

 

LOGO LTIP

(100% shares)

Maximum annual award is 205% of salary; 20% threshold vesting of net rooms and RevPAR if equal to average growth of comparator group; 20% threshold vesting of TSR if equal to global hotel index growth.

 

Measures and targets are reviewed and may be changed by the Committee annually to ensure alignment with strategic objectives:

 

•  25% relative net rooms growth

 

•  25% relative RevPAR growth

 

•  50% relative TSR

 

All targets are measured over a performance period of at least three years against an appropriate comparator group of companies, which the Committee determines annually.

 

Pension LOGO Pension benefit

Executive section of the UK Defined Contribution Plan, US 401(k) Plan and US Deferred Compensation Plan: employee contributions with matching Company contributions. A cash allowance in lieu of pension contributions is offered. Salary is the only part of remuneration that is pensionable.

 

 

 

 

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Non-Executive Directors

 

   Element Framework
Fixed Fees and benefits (cash)

Maximum increase in annual fee in line with median FTSE 100 increases. Set by the Chairman of the Board and Executive Directors. The Chairman’s fees are set by the Committee. They are fixed for 12 months from 1 January. Non-Executive Directors are not eligible to participate in any performance-related incentive plans. IHG pays the cost of providing benefits as required.

 

Notes on DR Policy table summary

 

Use of discretion

The Committee reserves certain discretions under the Company’s incentive plans. These operate in two main respects:

 

  enabling the Committee to ensure that outcomes under these plans are consistent with the underlying performance of the business and the interests of shareholders; and

 

  enabling the Committee to treat leavers in a way that is fair and equitable to individuals and shareholders under the incentive plans.

The Committee will also use its judgement as to what is appropriate within the terms of the DR Policy to make decisions that do not involve the exercise of discretion.

In all cases, the discretions are reserved as part of the DR Policy in order to allow the Committee flexibility to ensure that remuneration outcomes for Executive Directors are consistent with business performance, at the same time as providing a high degree of clarity for shareholders as to remuneration structure and potential quantum. Any exercises of discretion by the Committee will be fully disclosed and explained in the relevant year’s Implementation of Remuneration Policy Report.

In relation to the LTIP, the Committee will review the vesting outcomes under all of the LTIP measures at the end of each three- year cycle against an assessment of Group earnings and the quality of financial performance over the period, including sustainable growth and the efficient use of cash and capital. If the Committee determines that the vesting outcomes do not appropriately reflect the financial performance of the Group, it may reduce the number of shares that vest.

In relation to malus, for awards made from January 2012, the APP and LTIP rules allow the Committee discretion to reduce the level of unvested share awards if circumstances occur that, in the reasonable opinion of the Committee, justify a reduction in one or more awards granted to any one or more participants. The malus provisions relate to unvested awards only. The circumstances in which the Committee may consider it appropriate to exercise its discretion include the following:

 

  misconduct that causes significant damage or potential damage to IHG’s prospects, finances or brand reputation; and/or

 

  actions that lead to material misstatement or restatement of accounts.

This may include, where appropriate, negligence on the part of Executive Directors.

These features help ensure alignment between executive reward and shareholder returns.

Policy on payment for loss of office

All current Executive Directors have a rolling service contract with a notice period from the Company of 12 months. As an alternative, the Company may, at its discretion, pay in lieu of that notice. Neither notice nor a payment in lieu of notice will be given in the event of gross misconduct.

Payment in lieu of notice could potentially include up to 12 months’ salary and the cash equivalent of 12 months’ pension contributions, and other contractual benefits. Where possible, the Company will seek to ensure that, where a leaver mitigates their losses by, for example, finding new employment, there will accordingly be a corresponding reduction in compensation payable for loss of office.

Further details on the policy for determination of termination payments are included in the DR Policy.

Approach to recruitment remuneration

The remuneration of any new Executive Director will be determined in accordance with the DR Policy. In addition, the Committee may, at its discretion, compensate a newly recruited Executive Director for incentives from a previous employment foregone as a result of their resignation. The Committee would seek validation of the value of any potential incentives foregone. Awards made by way of compensation for incentives foregone would be made on a comparable basis, taking account of performance achieved, or likely to be achieved, the proportion of the performance period remaining and the form of the award. Compensation would, as far as possible, be in the form of IHG LTIP or deferred share awards, in order to immediately align a new Executive Director with IHG’s performance.

Details of letters of appointment and notice periods for Non-Executive Directors

Non-Executive Directors have letters of appointment, which are available upon request from the Company Secretary’s office.

Patrick Cescau, Non-Executive Chairman, is subject to 12 months’ notice. All other Non-Executive Directors are not subject to notice periods.

All Non-Executive Directors’ appointments and subsequent re-appointments are subject to election and annual re-election by shareholders at the 2015 AGM (see page 71).

 

 

 

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Directors’ Remuneration Report continued

Annual Report on Directors’ Remuneration

This Annual Report on Directors’ Remuneration explains how the Directors’ Remuneration Policy (DR Policy) was implemented in 2014 and the resulting payments each of the Directors received. The notes to the single figure table provide further detail, including measures and outcomes for 2014 where relevant, for each of the elements that make up the total single figure of remuneration in respect of each of the Executive Directors. This report is subject to an advisory vote by shareholders at the 2015 AGM.

 

Single total figure of remuneration – Executive Directors (audited information)

 

LOGO

 

      Fixed pay      Variable pay      Pension                 
     

 

LOGO  Salary

     LOGO  Benefits      LOGO   LOGO  APP      LOGO  LTIP      LOGO  Pension benefit      LOGO  Total  
Executive Directors    2014
£000
     2013
£000
     2014
£000
     2013
£000
     2014
£000
     2013
£000
     2012/14
cycle (value
of shares)
£000 1
     2011/13
cycle (value
of shares)
£000 2
     2014
£000
    2013
£000
     2014
£000
    2013
£000
 

 

Richard

Solomons 3

 

     759         735         30         34         1,128         1,098         1,425         1,018        
 

 

228
+2,958

3,186

  
3  

  

    246        
 

 

3,570
+2,958

6,528

  
3  

  

    3,131   

Paul Edgecliffe-

Johnson 4

     420         n/a         28         n/a         619         n/a         403         n/a         126        n/a         1,596        n/a   
Kirk Kinsell 5      479         492         27         85         365         532         941         850         111        114         1,923        2,073   
Tracy Robbins      434         421         20         21         644         631         814         644         130        126         2,042        1,843   
Tom Singer 6      2         548         0         29         n/a         409         712         918         n/a        164         714        2,068   

 

  1   Share price of 2,449p is the average over the final quarter of 2014.  
  2   Restated using the VWAP (Volume Weighted Average Price) of 1,977p on the date of actual vesting on 19 February 2014. The corresponding values shown in the 2013 report (prior to the actual vesting) were an estimate and calculated using a share price as at 31 December 2013 of 2,013p.  
  3   Richard Solomons received a one-off cash payment in 2014 in lieu of any future entitlement to ICETUS benefits. The amount shown (£2.958m) is the gross cash payment (£9.405m) less amounts previously disclosed (£6.447m). It is included here but is not shown in the illustrative bar chart above as it was a one-off payment and was in respect of benefits already accrued.  
  4   Paul Edgecliffe-Johnson was appointed to the Board as Chief Financial Officer effective as of 1 January 2014.  
  5   Kirk Kinsell was paid in US dollars and the sterling equivalents were calculated using an exchange rate of $1 = £0.61. In accordance with the APP rules, Mr Kinsell will receive only the 50% cash portion of his 2014 APP award, as shown here.  
  6   As a result of Tom Singer’s resignation from IHG with effect from 1 January 2014, he only received the 50% cash portion of the 2013 APP award and will not receive a 2014 APP award. Following Mr Singer’s resignation, the Remuneration Committee determined that the 2011/13 LTIP award would vest without pro-ration in line with the terms of the LTIP Plan rules, as the performance period for this award would be completed by his departure date. This award was released on the normal vesting date and only to the extent the performance conditions were met. Mr Singer’s salary for 2014 was in respect of one day, 1 January 2014, after which his resignation took effect.  

 

 

 

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Notes to single total figure of remuneration – Executive Directors (audited information)

Kirk Kinsell – remuneration arrangements on departure

Kirk Kinsell left the Board and his role as President, The Americas effective as of 13 February 2015. The Remuneration Committee determined that Mr Kinsell would be treated as a Good Leaver for the purposes of the LTIP awards, in line with the DR Policy on termination of employment. He therefore retained all outstanding LTIP awards which will vest on the normal vesting dates, subject to the satisfaction of performance conditions, with the awards pro-rated to his leaving date. Mr Kinsell also received the cash portion of his 2014 APP award and the deferred share portion of his 2011 APP on the normal vesting date. Outstanding deferred awards under the 2012 and 2013 APPs lapsed, and no APP award will be made in respect of 2015. The Remuneration Committee has reserved the right to determine that, prior to the vesting of shares under each outstanding LTIP cycle, Mr Kinsell’s entitlement to shares under the LTIP will be forfeited in full if Mr Kinsell commits a breach of his continuing post-termination contractual obligations. The relevant figures will be included in next year’s report.

Fixed pay

LOGO   Salary: salary paid for the year (for Kirk Kinsell, who was paid in US dollars, this shows actual salary paid converted into sterling).

LOGO   Benefits: this includes taxable benefits such as company car, healthcare, life cover and other taxable benefits. Provision during 2014 was in line with previous years and the approved DR Policy, and no exceptional benefits were paid.

Variable Pay

LOGO   LOGO  2014 APP

The weighting, measures and targets relating to the APP are determined by the Committee, on an annual basis, in line with our strategic objectives. A combination of global and regional targets were used in 2014. Executive Directors with only global roles were subject to global measures. Kirk Kinsell was subject to partly regional measures, reflecting his regional role as President, The Americas.

The measures for 2014 were determined in accordance with the DR Policy and were as follows:

 

  Guest satisfaction as measured by the Guest HeartBeat score: year-on-year improvement;

 

  Employee Engagement survey score: year-on-year improvement; and

 

  EBIT achievement against target (corporate and regional).

Why do we use these measures?

  Guest HeartBeat score Employee Engagement survey score EBIT vs target

•  Guest HeartBeat is part of the guest satisfaction survey.

 

•  It is an overall guest satisfaction score relating to hotel visits.

 

•  It is a robust measure of the strength of our brands.

 

•  Inclusion in the APP provides executive focus on this key performance metric at global and regional level.

•  We measure employee engagement because our brands are, effectively, a promise by our people, as engaged colleagues, to deliver a great guest experience.

 

•  Engaged employees are key to our business.

 

•  Our Employee Engagement survey is a long-established tool in our business.

 

•  EBIT is a key measure of business performance for our shareholders.

 

•  It is a function of other critical measures: net rooms growth, RevPAR, operating profit and fee revenues.

Award levels relate to achievement against target under each of the measures. The link between our strategy and the performance measures of the APP is explained in more detail on page 79.

Threshold, target and maximum opportunity are shown on the graph on page 84, along with actual achievement on a global basis and further detail.

The actual award level was determined on a straight-line basis between threshold and target, and target and maximum, and relates to achievement vs target under each measure:

 

  Threshold is the minimum level that must be achieved for there to be an award in relation to that measure; for achievement below this, no award is made.

 

  Target is the target level of achievement and results in a target award for that measure (115% of salary).

 

  Maximum is the level of achievement at which a maximum award for that measure is received (200% of salary).

Threshold award was subject to a global EBIT affordability gate such that:

 

  if global EBIT was below 85% of target, no award would be made; and

 

  if global EBIT was between 85% and 90% of target, half of any award relating to the Guest HeartBeat and/or Employee Engagement survey measures would be made.

 

 

 

 

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Directors’ Remuneration Report continued

Annual Report on Directors’ Remuneration continued

 

LOGO

 

1   The EBIT element of Kirk Kinsell’s award was based 50/50 on Group/The Americas results; the EBIT achievement for the Americas was 99.0% against target. The Guest HeartBeat element of Mr Kinsell’s award was based wholly on The Americas results; achievement was 29.4% of target. The total award as a % of salary for Mr Kinsell was 151.4% and in accordance with the APP Plan rules he will only receive the 50% cash portion.
2   Maximum achievement under all three measures would result in an award of 230% of total salary. However, under the DR Policy, awards are capped at 200% of salary.

 

 

Outcome for 2014 (audited information)

Based on performance, the following table shows the level of 2014 awards for which 50% will be paid in cash and 50% in deferred IHG shares. These will vest after three years in February 2018. The deferred share awards are made in the form of forfeitable shares that receive dividends during the three-year vesting period and include the right to vote at shareholder meetings.

 

Executive Director

 

        Award as
% of salary
    

Total value of award

£000 1

 
  Richard Solomons          147.4         1,128   
  Paul Edgecliffe-Johnson              147.4         619   
  Kirk Kinsell          75.7         365 2  
  Tracy Robbins          147.4         644   

 

1   As shown in the single figure of remuneration on page 82.
2   In accordance with the rules of the APP, Kirk Kinsell will receive only the 50% cash portion of his 2014 APP award, as shown here.

In relation to the APP 2014 measures, we have disclosed percentage achievement against target for each measure in the graph at the top of this page. We have also shown outcome vs opportunity. For the Guest HeartBeat and Employee Engagement survey measures, the 2014 outcome scores are detailed on pages 31 and 32 of the Annual Report. Detail on the financial targets set is not disclosed at this stage as it is, in the opinion of the Directors, commercially sensitive. Disclosure would risk providing IHG’s major competitors with an unfair commercial advantage as these companies are either unlisted or listed on a stock exchange other than the London Stock Exchange and, therefore, not subject to the same regulations. During 2015, we will consider what further transparency we can provide to shareholders without disadvantaging the business.

 

 

LOGO  2012/14 LTIP

The performance measures for each three-year LTIP cycle are set by the Committee. Awards are made annually and eligible executives will receive shares at the end of that cycle, subject to achievement of the performance measures. The performance measures for the 2012/14 cycle were as follows and in line with the DR Policy:

 

  relative growth in net rooms over three years;

 

  relative like-for-like RevPAR growth over three years; and

 

  IHG’s TSR relative to a global hotels index (see page 89 for further details).

Growth in net rooms and RevPAR is measured on a relative basis against the comparator group, comprising the following major, globally branded competitors: Accor, Choice Hotels, Hilton Worldwide, Hyatt, Marriott International Inc., Starwood Hotels and Wyndham Worldwide.

Why do we use these measures?

 

Net rooms growth    RevPAR growth    Relative TSR

 

This measures the net growth in the total number of IHG hotel rooms over the duration of the cycle relative to our major global competitors. Together with the RevPAR measure, it provides focus on ensuring a balance between the quality of IHG hotels and the speed at which IHG grows.

 

  

 

This measures success in growing our revenue per available room for the duration of the cycle relative to the RevPAR growth of our major global competitors.

  

 

This measures the return to shareholders by investing in IHG relative to our competitors in the appropriate comparator group of global hotels, as per data sourced from Thomson Datastream.

In order to generate higher returns for our shareholders, we need to increase revenue share, improve operating efficiency and grow margins through increasing the number of rooms we have available to sell, as well as increasing RevPAR for those rooms.

 

 

 

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By focusing on both net rooms growth and RevPAR growth, we are rewarding the balanced approach to growth that will support the long-term increase in shareholder value.

These performance measures are also used for the 2013/15 and 2014/16 LTIP cycles, granted in 2013 and 2014 respectively. Threshold, target and maximum opportunity for the 2012/14 cycle is shown in the graph below, along with actual achievement for 2014.

 

LOGO

Performance was below the average of the comparator group on the relative net rooms growth measure and therefore this element will not vest.

 

 

Outcome for 2012/14 cycle (audited information)

This cycle will vest on 18 February 2015, as follows:

 

Executive Director  

Maximum opportunity at grant

(number of shares)

   

% of maximum opportunity

vested

   

Outcome (number of shares

awarded at vest)

   

Total value of award 1

£000

 
  Richard Solomons     103,722        56.1        58,188        1,425   
  Paul Edgecliffe-Johnson         29,322        56.1        16,449        403   
  Kirk Kinsell 2     68,463        56.1        38,407        941   
  Tracy Robbins     59,270        56.1        33,250        814   
  Tom Singer 3     77,684        56.1        29,053        712   

 

1   As shown in the single figure of remuneration. Share price used of 2,449p is the average over the final quarter of 2014.
2   In line with the DR Policy, the Remuneration Committee determined that Kirk Kinsell would retain his 2012/14 LTIP award in accordance with and subject to the terms of the LTIP Plan rules, as the performance period for this award was completed when Kirk Kinsell resigned effective as of 13 February 2015.
3   The Remuneration Committee determined that the 2012/14 LTIP award would vest in line with the terms of the LTIP Plan rules on a pro-rated basis for the proportion of the performance period in which Tom Singer remained in employment. This award will be released on the normal vesting date and only to the extent the performance conditions were fulfilled.

Net rooms and RevPAR growth were measured by reference to the three years ending 30 September 2014; TSR was measured by reference to the three years ending 31 December 2014.

 

 

Pensions

LOGO  Pension benefit: the value of Company contributions to pension plans and any cash allowances paid in lieu of pension contributions.

As published in the 2013 Annual Report, the Group commenced the phasing out of potential enhanced early retirement terms related to those defined benefit pensions in 2014 (see page 87 for further details). In addition, the planned cash out offer was made to the participants of the unfunded, unregistered, defined benefit top-up arrangement, ICETUS, which had previously provided the balance of any benefit accrual that was restricted in the tax-registered plan due to the annual or lifetime allowances. Payments associated with the cash out were made in the financial year and are therefore disclosed appropriately in this year’s Annual Report.

For 2014, the pension benefits for Richard Solomons include the payment of a cash out value in respect of his accrued, unfunded ICETUS benefit. Richard Solomons received a one-off gross cash payment of £9,405,362 in lieu of any future entitlement to ICETUS benefits. An amount of £6,447,000 in respect of his ICETUS benefit was included as part of the disclosure of his total accrued benefits in the 2013 Directors’ Remuneration Report based on the HM Revenue & Customs methodology of valuing pensions at 20 times their annual amounts, hence only the balance in excess of this (i.e. £2.958m) is shown in the single figure table. The actual payment was greater than 20 times the annual pension because the ICETUS benefit was valued using a more accurate actuarial calculation method, in line with that used for valuing the total ICETUS liabilities for accounting purposes. Following the cash out, Richard Solomons has no future entitlement to any benefit from ICETUS.

 

 

 

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Dir ect ors’ Remu nerat ion R eport continued

Annual Report on Directors’ Remuneration continued

Scheme interests awarded during 2014 (audited information)

During 2014, awards relating to shares were granted under the 2014/16 LTIP. Awards were made to each Executive Director over shares with a value of 205% of salary using the closing mid-market share price on 7 April 2014. These are in the form of conditional awards over IHG shares and do not carry the right to dividends or dividend equivalents during the vesting period.

These awards will vest, and the shares will be transferred to the award holder, in February 2017 to the extent performance targets are met. See pages 84 and 85 for an explanation of the performance measures.

 

Executive Director    Award date      Maximum shares
awarded
    

Market price per
share at grant 1

£

     Face value of
award at grant
£000
     Number of shares
received if minimum
performance achieved 2
 

2014/16 cycle

                                            

  Richard Solomons

     8 April 2014         82,193         19.08         1,568         16,439   

  Paul Edgecliffe-Johnson

     8 April 2014         45,125         19.08         861         9,025   

  Kirk Kinsell 3

     8 April 2014         18,570         19.08         981         3,714   
  Tracy Robbins      8 April 2014         46,952         19.08         896         9,390   

 

1   Share price was the closing mid-market share price on 7 April 2014.
2   Minimum performance is equal to 20% of maximum award.
3   Following Kirk Kinsell’s resignation with effect from 13 February 2015, his award will vest in line with the LTIP Plan rules. His initial maximum shares awarded of 51,426 have been reduced accordingly on a pro-rated basis for the proportion of the performance period in which he remained in employment, as determined by the Committee. The pro-rated award is shown in the table above. Vesting will not be accelerated.

The vesting date for these awards is the day after the announcement of our Annual 2016 Preliminary Results in February 2017. Net rooms growth and RevPAR growth will be measured by reference to the three years ending 30 September 2016; TSR will be measured by reference to the three years ending 31 December 2016.

Other outstanding awards

During 2013, awards relating to shares were granted under the 2013/15 LTIP (shown below) on the same basis as the 2014/16 LTIP cycle (shown above). These awards will vest in February 2016 to the extent performance targets are met. See pages 84 and 85 for an explanation of the performance measures.

 

Executive Director    Award date      Maximum shares
awarded
    

Market price per
share at grant 1

£

     Face value of
award at grant
£000
     Number of shares
received if minimum
performance achieved 2
 
2013/15 cycle                                        

  Richard Solomons

     5 April 2013         76,319         19.85         1,515         15,263   

  Paul Edgecliffe-

  Johnson 3

     24 February 2014         9,454         19.25         182         1,891   

  Kirk Kinsell 4

     5 April 2013         36,839         19.85         1,053         7,367   

  Tracy Robbins

     5 April 2013         43,819         19.85         870         8,763   
  Tom Singer 5      5 April 2013         56,883         19.85         1,129         0   

 

1   Share price was the closing mid-market share price on 4 April 2013. For Paul Edgecliffe-Johnson, this was the closing mid-market share price on 21 February 2014.
2   Minimum performance is equal to 20% of maximum award.
3   Paul Edgecliffe-Johnson received an increased award, pro-rated from 1 January 2014, for the 2013/15 LTIP in accordance with the DR Policy as a result of his appointment to the Board. He was awarded 18,322 shares on 5 April 2013 with a market price per share at grant of £19.85 prior to his appointment to the Board.
4   Following Kirk Kinsell’s resignation with effect from 13 February 2015, his award will vest in line with the LTIP Plan rules. His initial maximum shares awarded of 53,049 have been reduced accordingly on a pro-rated basis for the proportion of the performance period in which he remained in employment, as determined by the Committee. The pro-rated award is shown in the table above. Vesting will not be accelerated.
5   Tom Singer’s award lapsed as a result of his resignation with effect from 1 January 2014.

The vesting date for these awards is the day after the announcement of our Annual 2015 Preliminary Results in February 2016. Net rooms growth and RevPAR growth will be measured by reference to the three years ending 30 September 2015; TSR will be measured by reference to the three years ending 31 December 2015.

Current position on outstanding awards

Details of the performance measures and potential vesting outcomes for outstanding awards as at 31 December 2014 are as follows:

 

Performance measure    Threshold
performance
     Maximum
performance
     Threshold/
maximum
vesting
     Weighting      Maximum
award
(% of salary)
     Potential vesting outcome  
                                              2014/16 cycle      2013/15 cycle  

Net rooms growth

    
 
Average of the
comparator group
  
  
    
 
1st in the
comparator group
  
  
     20%/100%         25%         51.25%        
 
Below
threshold
  
  
    
 
Below
threshold
  
  

RevPAR growth

    
 
Average of the
comparator group
  
  
    
 
1st in the
comparator group
  
  
     20%/100%         25%         51.25%        
 
Above
average
  
  
    
 
Above
average
  
  

Relative TSR

    
 
 
Growth equal to
the global hotels
index
  
  
  
    
 
 
Growth exceeds
the index by 8%
per year or more
  
  
  
     20%/100%         50%         102.5%        
 
Maximum
performance
  
  
    
 
Maximum
performance
  
  

 

 

 

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Total pension entitlements (audited information)

The InterContinental Hotels UK Pension Plan (IC Plan) is a funded final salary occupational pension scheme with an additional defined contribution section.

Richard Solomons’ defined benefit pension accrual in both ICETUS and the IC Plan ceased on 30 June 2013 and the Trustee of the IC Plan subsequently entered into an insurance contract in August 2013 under which all defined benefit liabilities of the plan, plus the provision of increases to pensions which were previously only provided at the discretion of the Company, were fully insured (known as a ‘buy-in’). During 2014, arrangements were made to fully transfer the responsibility for the provision of benefits from the Trustee of the IC Plan to the insurance company, Rothesay Life. This process (known as a ’buy-out’) was completed on 31 October 2014.

Following the buy-out, Richard Solomons has no future benefit entitlement from the IC Plan and it is not considered necessary to make these disclosures in the future. In last year’s Annual Report, we published the Board’s plans to phase out the Company’s Enhanced Early Retirement Facility (EERF). However, during the period over which it is phased out, Richard Solomons remains eligible to benefit from the EERF, albeit at a reduced level. Under the EERF, executive participants of the defined benefit section of the IC Plan had an option, with the Company’s agreement, to retire without reduction to their pension if they are within five years of their normal retirement date and to retire on improved early retirement terms before this. As set out in the Remuneration Committee Chairman’s 2013 Statement, the phasing out of this facility commenced on 1 March 2014. As a result of the phasing out of the EERF, Mr Solomons could retire, with no reduction in his pension, from approximately age 58 and no earlier. Prior to the phasing out, Richard Solomons was eligible to retire without reduction from age 55. The terms of the EERF require an executive to obtain Company consent and would also require the payment by the Group of an additional insurance premium to secure the benefit entitlement for that executive.

 

Richard Solomons’ IC Plan pension, which formed part of the buy-out, was as follows:

 

      £pa
Accrued annual pension at 1 January 2014, assuming retirement at normal pension age (9 October 2021)    71,950
Accrued annual pension at 31 December 2014, assuming retirement at normal age (9 October 2021)    73,680

The increase in accrued pension represents the standard inflation increase provided for deferred pensions in the IC Plan rules. It does not, therefore, constitute a pension input amount and there is no requirement to disclose the value of this increase in the single figure.

 

For 2014, Richard Solomons received a cash allowance in lieu of pension contributions. The breakdown of the pension element of the single figure for 2013 and 2014 for Mr Solomons is as follows:

 

      2014
£000
     2013
£000
 
Pension benefit under defined benefit section of IC Plan              135   
ICETUS cash-out      2,958 1           
Cash allowance in lieu of pension contribution      228         111   
Total      3,186         246   

 

  1 Richard Solomons received a one-off cash payment in 2014 in lieu of any future entitlement to ICETUS benefits. See page 85.
 

 

 

 

Paul Edgecliffe-Johnson participated in the defined contribution section of the IC Plan until March 2014, during which time he paid contributions of £7,875 and received Company contributions of £4,625 and a cash allowance in lieu of pension contributions of £26,875. For the period from April 2014, he did not participate in any IHG pension plan and instead received a cash allowance of £94,500.

Tracy Robbins did not participate in any IHG pension plan in 2014. Instead she received a cash allowance of £130,148.

Life assurance cover of four times pensionable salary was also provided for Tracy Robbins and Paul Edgecliffe-Johnson and, in accordance with the terms of the closure of the IC Plan to future defined benefit accrual, life assurance cover of six times salary was provided for Richard Solomons.

Kirk Kinsell participated in the US 401(k) Plan and the US Deferred Compensation Plan. The US 401(k) Plan is a tax qualified plan providing benefits on a defined contribution basis, with the member and relevant company both contributing. The US Deferred Compensation Plan is a non-tax qualified plan, providing benefits on a defined contribution basis, with the member and the relevant company both contributing.

Contributions made by, and in respect of, Kirk Kinsell in these plans for the year ended 31 December 2014 were:

 

      £ 1  
Director’s contributions to US Deferred   
Compensation Plan      136,199   
Director’s contributions to US 401(k) Plan      14,030   
Company contributions to US Deferred   
Compensation Plan      105,047   
Company contributions to US 401(k) Plan      6,280   
Age at 31 December 2014      59   

 

1   Sterling values have been calculated using an exchange rate of $1=£0.61.
 

 

 

 

 

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Dir ect ors’ Remu nerat ion R eport continued

Annual Report on Directors’ Remuneration continued

Statement of Directors’ shareholdings and share interests (audited information)

The Committee believes that share ownership by Executive Directors and senior executives strengthens the link between the individual’s personal interests and those of shareholders.

Guideline Executive Director shareholding requirement

Executive Directors are expected to hold all shares earned (net of any share sales required to meet personal tax liabilities), until the guideline shareholding requirement is achieved. As can be seen from the graph below, with the exception of Paul Edgecliffe-Johnson, the shareholdings for the other Executive Directors are substantial and the guideline requirement exceeded. Percentages are based on shareholding and a share price of 2,595p per share as at 31 December 2014.

 

  Shares and awards held by Executive Directors as at 31 December 2014: % of salary

 

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Shares held by Executive Directors as at 31 December 2014: number of shares (audited information)

 

Executive Director    Number of shares
held outright 1
   

APP deferred

share awards 2

     LTIP share awards
(unvested) 3
    

Total number of

shares and awards held

 
      2014     2013     2014      2013      2014      2013      2014      2013  
Richard Solomons      382,533        371,198        81,240         90,068         262,234         267,275         726,007         728,541   
Paul Edgecliffe-Johnson 4      10,583        n/a        12,860         n/a         102,223         n/a         125,666         n/a   
Kirk Kinsell      117,640 5       127,444 6       49,580         66,502         172,938         194,384         340,158         388,330   
Tracy Robbins      51,418        85,703        48,932         55,905         150,041         158,337         250,391         299,945   

 

1 These shareholdings include all Directors’ beneficial interests and those held by their spouses and other connected persons.
2 Awards not subject to performance conditions.
3 Awards still subject to performance conditions as set out on pages 84 and 85.
4 Paul Edgecliffe-Johnson was appointed to the Board on 1 January 2014.
5 Comprised 117,092 ordinary shares and 548 American Depositary Receipts.
6 Comprised 126,850 ordinary shares and 594 American Depositary Receipts.

 

 

Percentage change in remuneration of Chief Executive Officer

The table below shows the percentage change in the remuneration of the Chief Executive Officer compared with UK employees between 2013 and 2014:

 

      Chief Executive Officer      UK employees  
Salary      +3.5%         +3.0% 1  
Taxable benefits 2      -11.8%         +4.5%   
Annual incentive      +2.7%         +7.6%   

 

1   The percentage change for UK employees shown is the budget for the 2014 annual pay review and promotions/market adjustments during 2014.
2   Based on P11D taxable benefits for tax year ending 5 April in relevant year.

We believe that an appropriate comparator group for salary and taxable benefits comparison is UK-based employees because the structure and composition of remuneration for that group most closely reflects that of the UK-based Chief Executive Officer. Therefore, the same UK market dynamics will apply to salary movements providing a like-for-like comparison.

For the annual incentive, the comparator group used is the grade of executives at and immediately below Executive Committee level, who are subject to the same performance measures as the Chief Executive Officer, and with a “very good” individual performance rating.

 

 

 

 

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Relative performance graph and table

Throughout 2014, IHG was a member of the FTSE 100 share index and for LTIP purposes used a TSR comparator group of a global hotels index. This consists of the companies that made up the Dow Jones Global Hotels index (DJGH). It continues to comprise the same companies, following the cessation of the former Dow Jones Index in 2014, and is sourced directly from Thomson Datastream for IHG. Accordingly, the Committee has determined that these are the most appropriate market indices against which to test the Group’s performance. The graph below shows IHG’s TSR performance from 31 December 2008 to 31 December 2014, assuming dividends are reinvested, compared with the TSR performance achieved by the FTSE 100 and global hotels indices. All indices are shown in sterling.

TSR: InterContinental Hotels Group PLC vs FTSE 100 and global hotels index

 

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Chief Executive Officer’s remuneration

The table below shows the single figure of total remuneration for the incumbent Chief Executive Officer for the six years to 31 December 2014:

 

         Financial year ended 31 December  
     Chief Executive Officer    2009        2010        2011 1        2012        2013        2014  

Single figure

£000

  Richard Solomons      n/a           n/a           4,724           4,881           3,149           6,528 2  
  Andrew Cosslett      1,953           5,430           3,770           n/a           n/a           n/a   

Annual incentive received

(% of maximum)

  Richard Solomons      n/a           n/a           83.0           68.0           74.0           74.0   
  Andrew Cosslett      nil 3          100.0           43.0 4          n/a           n/a           n/a   

Shares received under the LTIP

(% of maximum)

  Richard Solomons      n/a           n/a           73.9           100.0           59.0           56.1   
  Andrew Cosslett      46.0           73.8           61.6           n/a           n/a           n/a   

 

1   Andrew Cosslett retired on 30 June 2011 and Richard Solomons was appointed Chief Executive Officer effective as of 1 July 2011, having previously held the position of Chief Financial Officer and Head of Commercial Development; the single figure value is the total remuneration received by each of them for that year.
2   Includes a one-off cash payment in lieu of any future entitlement to ICETUS benefits. The amount included in respect of this (£2.958m) is the gross cash payment (£9.405m) less amounts previously disclosed (£6.447m).
3   There was no annual incentive award paid in respect of financial year ended 31 December 2009.
4   No deferred shares were awarded in respect of the 2011 Annual Bonus Plan (ABP). Andrew Cosslett received his award as 100% cash pro-rated to 30 June 2011.

Relative importance of spend on pay

The table below sets out the actual expenditure of the Group in 2012, 2013 and 2014 on corporate employee remuneration and distributions to shareholders and shows the difference in spend between those years:

 

Item    2014
$m
       % change        2013
$m
       % change        2012
$m
 
Remuneration paid to all corporate employees      657           0.2           656           5.0           626 1  

Distributions:

                      
Final dividend (previous year)      122                115                113   
Ordinary (interim) dividend      57                63                61   
Special dividend      763 2               355 3               505 4  
Repurchase of own shares      110 5                     283 6                     107 7  
Total distributions      1,052           28.9           816           3.8           786   

 

1   Restated for the adoption of IAS 19R ‘Employee Benefits’.
2   A special dividend of $2.93 per share was paid to shareholders on 14 July 2014.
3   A special dividend of $1.33 per share was paid to shareholders on 4 October 2013.
4   A special dividend of $1.72 per share was paid to shareholders on 22 October 2012.
5   Under the authority granted by shareholders at the AGMs held on 24 May 2013 and 8 May 2014, 3,421,973 shares were purchased in the period 1 January 2014 to 29 May 2014 (the date on which the share buyback programme was completed) for a total consideration of $110m.
6   Under the authority granted by shareholders at the General Meeting held on 8 October 2012 and the AGM held on 24 May 2013, 9,773,912 shares were purchased in the period 1 January 2013 to 31 December 2013 for a total consideration of $283m.
7   Under the authority granted by shareholders at the General Meeting held on 8 October 2012, 4,143,960 shares were purchased in the period 12 November 2012 (the date on which the share buyback programme commenced) to 31 December 2012 for a total consideration of $107m.

 

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

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Dir ect ors’ Remu nerat ion R eport continued

Annual Report on Directors’ Remuneration continued

 

Dividends paid to Executive Directors

An interim dividend of 14.8p per ordinary share (25¢ per ADR) was paid on 26 September 2014 to shareholders on the Register of members at the close of business on 22 August 2014.

A special interim dividend of 174.9p per ordinary share (293¢ per ADR) was paid on 14 July 2014 to shareholders on the Register of members at the close of business on 30 June 2014.

The 2014 special dividend was accompanied by a share consolidation to maintain comparability (as far as possible) of the share price before and after the payment of the special dividend. Neither LTIP award holders nor IHG Executive Share Option Plan holders were entitled to receive the special dividend. Executive Directors holding forfeitable shares under previous years’ annual incentive awards received the special dividend, and their share awards were subject to the share consolidation.

Kirk Kinsell’s deferred shares are held in the form of conditional awards, which were not eligible to receive the special dividend, rather than forfeitable shares. To ensure equity of treatment with other Executive Committee members, a dividend equivalent was paid in respect of these awards to Mr Kinsell, and his awards were subject to the share consolidation.

Payments for loss of office (audited information)

Tom Singer stepped down from the Board and his role as Group Chief Financial Officer on 1 January 2014. In line with his contractual agreement and the Remuneration Committee’s policy on termination of employment, Mr Singer was not paid any salary or benefits (or compensation in lieu) in respect of the period after 1 January 2014, and did not receive any compensation for loss of office.

The footnotes to the single total figure table on page 82 set out the impact of Mr Singer’s resignation on his APP and LTIP awards.

Payments to past directors – benefits (audited information)

Sir Ian Prosser, who retired as a Director on 31 December 2003, had an ongoing healthcare benefit of £1,379 during the year.

Payments to past directors – ICETUS cash out (audited information)

In 2014, the Company looked to reduce the risks and volatility from the remaining unfunded ICETUS pension arrangement by offering members an opportunity to cash out the ICETUS element of their pension on a basis that is fair and reasonable, both to them and to shareholders. This is part of the process of redrawing IHG’s pension arrangements and minimising the future risks to the Company.

A number of past directors received one-off payments, following which they will have no future entitlement to any benefit from ICETUS:

 

Former Director    Value in 2014
£
 
Andrew Cosslett 1      No value to disclose   
Richard Hartman 2      74,968   
Richard North 3      3,386,296   
Sir Ian Prosser      8,597   

 

1   A gross cash payment of £5,114,920 was made in lieu of any future entitlement to ICETUS benefits, in respect of which £5,266,788 had been disclosed in the 2011 Annual Report on Directors’ Remuneration based on the Cash Equivalent Transfer Value methodology of valuing pensions applicable at the time.
2   A gross cash payment of £497,987 in lieu of any future entitlement to ICETUS benefits, in respect of which £423,019 had been disclosed in the 2007 Annual Report on Directors’ Remuneration based on the Cash Equivalent Transfer Value methodology of valuing pensions applicable at the time.
3   A gross cash payment of £6,444,041 was made in lieu of any future entitlement to ICETUS benefits, in respect of which £3,057,744 had been disclosed in the 2004 Annual Report on Directors’ Remuneration based on the Cash Equivalent Transfer Value methodology of valuing pensions applicable at the time.

Share options

In 2013, the gain before tax, made by Richard Solomons on the exercise of options was £4,663,884.

 

 

 

Single total figure of remuneration: Non-Executive Directors (audited information)

 

                 Fees (£000)        Taxable benefits 2
(£000)
       Total (£000)  
Non-Executive Director    Committee appointments 1    Date of original appointment      2014        2013        2014        2013        2014        2013  
Patrick Cescau    LOGO      1 January 2013         412           400           15           14           427           414   
Ian Dyson 3    LOGO   LOGO   LOGO      1 September 2013         88           23           2           1           90           24   
Jo Harlow 4    LOGO   LOGO   LOGO      1 September 2014         23           n/a           0           n/a           23           n/a   
David Kappler 5    LOGO   LOGO   LOGO      21 June 2004         47           109           1           2           48           111   
Jennifer Laing    LOGO   LOGO   LOGO      25 August 2005         83           80           3           2           86           82   
Jonathan Linen 6    LOGO   LOGO      1 December 2005         71           69           81           90           152           159   
Jill McDonald 7    LOGO   LOGO      1 June 2013         71           40           2           3           73           43   
Luke Mayhew    LOGO   LOGO   LOGO      1 July 2011         94           91           3           2           97           93   
Dale Morrison 8    LOGO   LOGO   LOGO      1 June 2011         84           69           22           22           106           91   
Ying Yeh    LOGO   LOGO   LOGO      1 December 2007         71           69           72           72           143           141   

 

1   See page 57 for Board Committee membership key.
2   Benefits include taxable travel and accommodation expenses to attend Board meetings away from home location; under concessionary HM Revenue & Customs rules, non-UK based Non-Executive Directors are not subject to tax on travel expenses for the first five years. This is reflected in the taxable benefits figures for Jonathan Linen, Dale Morrison and Ying Yeh.
3   Ian Dyson was appointed as a Non-Executive Director on 1 September 2013 and became Chairman of the Audit Committee on 1 April 2014. His fee increased accordingly from that date.
4   Jo Harlow was appointed as a Non-Executive Director on 1 September 2014. Her fee was pro-rated accordingly from her start date.
5   David Kappler retired as a Non-Executive Director on 31 May 2014.
6   Jonathan Linen retired as a Non-Executive Director on 31 December 2014.
7   Jill McDonald was appointed as a Non-Executive Director on 1 June 2013. Her fee was pro-rated accordingly from her start date.
8   Dale Morrison became Senior Independent Non-Executive Director with effect from 31 May 2014 and his fee increased accordingly from that date.

 

 

 

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Implementation of Directors’ Remuneration Policy in 2015

This section explains how the DR Policy will be applied in 2015. It is subject to an advisory vote by shareholders at the 2015 AGM.

 

Salary: Executive Directors

Directors’ salaries are agreed annually in line with the DR Policy. The following salaries will apply from 1 April 2015:

 

Executive Director %
increase
  2015
£
  2015
$
  2014
£
  2014
$
 
Richard Solomons   3.5      792,000            765,000         
Paul Edgecliffe-Johnson 1   9.5      460,000            420,000         
Kirk Kinsell 2   n/a            n/a            793,500   
Tracy Robbins   2.5      448,000            437,000         

 

1   Paul Edgecliffe-Johnson was appointed to the Board and the role of Group Chief Financial Officer effective as of 1 January 2014. In line with the DR Policy for newly appointed or promoted Executive Directors, he was appointed on a salary set below benchmark policy level and, following strong performance in his first year in role, an increase higher than that of the corporate UK and US employee population has been agreed by the Remuneration Committee for 2015.
2   Kirk Kinsell was paid in US dollars and his annual salary for 2014 is shown in US dollars above. The equivalent sterling value calculated using an exchange rate of $1=£0.61 is £484,035. Mr Kinsell left the Board and IHG on 13 February 2015.

The overall budget for salary increases for 2015 for UK and US corporate employees is 3.0% and 3.5% respectively.

APP and LTIP performance measures and targets

The performance measures and targets for the 2015 APP and the 2015/17 LTIP cycle are the same as for the 2014 APP and the 2014/16 LTIP cycle respectively.

The actual targets under the performance measures for the APP for 2015 are not disclosed at this stage, as they are, in the opinion of the Directors, commercially sensitive. Disclosure would risk providing IHG’s major competitors with an unfair advantage as these companies are either unlisted or listed on a stock exchange other than the London Stock Exchange and therefore not subject to the same obligation to disclose incentive plan targets. We will consider during 2015 what further transparency we can provide shareholders without disadvantaging the business.

A clawback provision will be introduced in respect of the 2015 APP cash awards and 2015/17 LTIP cycle awards made to Executive Directors. The clawback provision will apply for three years from the date of payment (for the APP cash award) and the date of vesting (for the LTIP award). Clawback may be operated in the event of gross misconduct on the part of the employee and/or material misstatement in Company or Group financial statements.

These new provisions apply in addition to the existing malus provisions on the LTIP and APP deferred awards that provide for unvested awards to be reduced at the discretion of the Remuneration Committee in circumstances including:

 

  discovery of a material misstatement or restatement in the Company’s or any Group Company’s audited financial accounts (other than as a result of a change in accounting practice) for a period that was wholly or partly before the end of the performance period by reference to which the APP cash award was determined; and/or

 

  action or conduct of a participant that, in the reasonable opinion of the Committee, amounts to fraud or gross misconduct that causes significant damage or potential damage to IHG’s prospects, finances or brand reputation.

Fees: Non-Executive Directors

Non-Executive Directors’ fees are reviewed and agreed annually in line with the DR Policy.

Patrick Cescau waived any fee increase for 2015. The following annual fee levels will apply from 1 January 2015:

 

Non-Executive
Director
Role 2015
£
  2014
£
 
Patrick Cescau Chairman of the Board   412,000      412,000   
Ian Dyson 1 Chairman of Audit Committee   96,550      93,750   
Jo Harlow 2 Non-Executive Director   72,600      68,500   
David Kappler 1 Senior Independent Non-Executive Director and Chairman of Audit Committee   n/a      111,750   
Jennifer Laing Chairman of Corporate Responsibility Committee   85,000      82,500   
Jonathan Linen 3 Non-Executive Director   n/a      70,500   
Jill McDonald Non-Executive Director   72,600      70,500   
Luke Mayhew Chairman of Remuneration Committee   96,550      93,750   
Dale Morrison 1 Senior Independent Non-Executive Director   96,550      93,750   
Ying Yeh Non-Executive Director   72,600      70,500   

 

1   David Kappler stepped down as Chairman of the Audit Committee on 1 April 2014, succeeded by Ian Dyson, and retired as Senior Independent Non-Executive Director on 31 May 2014, succeeded by Dale Morrisson.
2   Jo Harlow was appointed as Non-Executive Director effective as of 1 September 2014. Her % salary increase for 2015 brings her remuneration in line with the other Non-Executive Directors with similar roles.
3   Jonathan Linen retired as a Non-Executive Director on 31 December 2014.

Luke Mayhew, Remuneration Committee Chairman

16 February 2015

 

 

 

 

 

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Gro up Fin anc ial Sta tem ents

 

94 Statement of Directors’ Responsibilities
99 Independent Auditor’s US Report
100 Group Financial Statements
100

Group income statement

101

Group statement of comprehensive income

102

Group statement of changes in equity

105

Group statement of financial position

106

Group statement of cash flows

107 Accounting policies
114 Notes to the Group Financial Statements

 

 

Book

 

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‘Guest Journey’ – Step three

  The Book phase of the ‘Guest Journey’ involves guests actually making a reservation.

 

  They can do this using a variety of methods; both direct (through digital and voice) and indirect (through online travel intermediaries, and business and leisure travel agents).
 

 

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Stat eme nt of Dire ctors’ Respon sibilities

 

Financial Statements and accounting records

The Directors are required to prepare financial statements for the Company and the Group at the end of each financial year in accordance with all applicable laws and regulations. Under company law the Directors must not approve the Financial Statements unless they are satisfied that they give a true and fair view of the state of affairs of the Group and the profit or loss of the Group for that period. In preparing these Financial Statements, the Directors are required to:

 

  select suitable accounting policies and apply them consistently;

 

  make judgements and accounting estimates that are reasonable;

 

  state whether the Consolidated Financial Statements have been prepared in accordance with International Financial Reporting Standards (IFRS) as issued by the International Accounting Standards Board (IASB), for use in the EU and Article 4 of the EU IAS Regulation;

 

  state for the Company Financial Statements whether applicable UK accounting standards have been followed; and

 

  prepare the Financial Statements on the going concern basis unless it is inappropriate to presume that the Company and the Group will continue in business.

The Directors have responsibility for ensuring that the Group keeps proper accounting records which disclose with reasonable accuracy the financial position of the Group and the Company to enable them to ensure that the Financial Statements comply with the Companies Act 2006 and, as regards the Consolidated Financial Statements, Article 4 of the EU IAS Regulation. The Directors are also responsible for the system of internal control, for safeguarding the assets of the Company and the Group, and taking reasonable steps to prevent and detect fraud and other irregularities.

Disclosure and Transparency Rules

The Board confirms that to the best of its knowledge:

 

  the Financial Statements have been prepared in accordance with IFRS as issued by the IASB and IFRS as adopted by the EU, give a true and fair view of the assets, liabilities, financial position and profit and loss of the Group taken as a whole; and

 

  the Annual Report, including the Strategic Report, includes a fair review of the development and performance of the business and the position of the Group taken as a whole, together with a description of the principal risks and uncertainties that it faces.

UK Corporate Governance Code

Having taken advice from the Audit Committee, the Board considers that this Annual Report and Form 20-F, taken as a whole is fair, balanced and understandable and that it provides the information necessary for shareholders to assess the Company’s performance, business model and strategy.

Disclosure of information to Auditor

The Directors who held office as at the date of approval of this report confirm that they have taken steps to make themselves aware of relevant audit information (as defined by Section 418(3) of the Companies Act 2006). None of the Directors are aware of any relevant audit information which has not been disclosed to the Company’s Auditor.

Management’s report on internal control over financial reporting

Management is responsible for establishing and maintaining adequate internal control over financial reporting for the Group, as defined in Rule 13a-15(f) and 15d-15(f) under the Securities Exchange Act of 1934 as a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with IFRS. The Group’s internal control over financial reporting includes policies and procedures that:

 

  pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the Group’s transactions and dispositions of assets;

 

  are designed to provide reasonable assurance that transactions are recorded as necessary to permit the preparation of the Financial Statements in accordance with IFRS as issued by the IASB and the IFRS adopted by the EU, and that receipts and expenditure are being made only in accordance with authorisation of management and the Directors of the Company; and

 

  provide reasonable assurance regarding prevention or timely detection of unauthorised acquisition, use or disposition of the Group’s assets that could have a material effect on the Financial Statements.

Any internal control framework has inherent limitations and internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions or the degree of compliance with the policies or procedures may deteriorate.

Management has undertaken an assessment of the effectiveness of the Group’s internal control over financial reporting at 31 December 2014 based on criteria established in the Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 Framework) (the COSO criteria). Based on this assessment, management has concluded that as at 31 December 2014 the Group’s internal control over financial reporting was effective.

During the period covered by this document the Group transitioned from the 1992 to the 2013 Internal Control-Integrated Framework criteria issued by COSO. There were no other changes in the Group’s internal control over financial reporting that have materially affected or are reasonably likely to materially affect the effectiveness of the internal controls over financial reporting.

The Group’s internal control over financial reporting at 31 December 2014, together with the Group’s Consolidated Financial Statements, were audited by Ernst & Young LLP, an independent registered public accounting firm. Their report on internal control over financial reporting can be found on page 99.

For and on behalf of the Board

 

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Richard Solomons Paul Edgecliffe-Johnson
Chief Executive Officer Chief Financial Officer
16 February 2015 16 February 2015
 

 

 

 

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Inde pend ent Audi tor’s US R eport

 

Report of independent registered public accounting firm on internal control over financial reporting

To the Board of Directors and Shareholders of InterContinental Hotels Group PLC.

We have audited InterContinental Hotels Group PLC’s internal control over financial reporting as of 31 December 2014, based on criteria established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 Framework) (the COSO criteria). InterContinental Hotels Group PLC’s management is responsible for maintaining effective internal control over financial reporting, and for its assessment of the effectiveness of internal control over financial reporting included in the Annual Report and Form 20-F 2014. Our responsibility is to express an opinion on the Group’s internal control over financial reporting based on our audit.

We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing and evaluating the design and operating effectiveness of internal control based on the assessed risk, and performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.

A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorisations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorised acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.

Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

In our opinion, InterContinental Hotels Group PLC maintained, in all material respects, effective internal control over financial reporting as of 31 December 2014, based on the COSO criteria.

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the accompanying Group statement of financial position of InterContinental Hotels Group PLC as of 31 December 2014 and 2013, and the related Group income statement, Group statement of comprehensive income, Group statement of changes in equity and Group statement of cash flows for each of the three years in

the period ended 31 December 2014, and our report dated 16 February 2015 expressed an unqualified opinion thereon.

ERNST & YOUNG LLP

London, England

16 February 2015

Report of independent registered public accounting firm

To the Board of Directors and Shareholders of InterContinental Hotels Group PLC.

We have audited the accompanying Group statement of financial position of InterContinental Hotels Group PLC as of 31 December 2014 and 2013, and the related Group income statement, Group statement of comprehensive income, Group statement of changes in equity and Group statement of cash flows for each of the three years in the period ended 31 December 2014. These Financial Statements are the responsibility of the Group’s management. Our responsibility is to express an opinion on these Financial Statements based on our audits.

We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

In our opinion, the Financial Statements referred to above present fairly, in all material respects, the consolidated financial position of InterContinental Hotels Group PLC at 31 December 2014 and 2013, and the consolidated results of its operations and its cash flows for each of the three years in the period ended 31 December 2014, in conformity with International Financial Reporting Standards as issued by the International Accounting Standards Board.

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), InterContinental Hotels Group PLC’s internal control over financial reporting as of 31 December 2014, based on criteria established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 Framework), and our report dated 16 February 2015 expressed an unqualified opinion thereon.

ERNST & YOUNG LLP

London, England

16 February 2015

Notes:

 

1.   The maintenance and integrity of the InterContinental Hotels Group PLC website is the responsibility of the Directors; the work carried out by the auditors does not involve consideration of these matters and, accordingly, the auditors accept no responsibility for any changes that may have occurred to the Financial Statements since they were initially presented on the website.

 

2.   Legislation in the United Kingdom governing the preparation and dissemination of financial statements may differ from legislation in other jurisdictions.
 

 

 

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IHG   Annual Report and Form 20-F 2014
 

Gro up Fina nci al Sta tem ents

Group income statement

 

 

For the year ended 31 December 2014

        2014         2013         2012  
       

 

Before

    Exceptional               Before     Exceptional               Before     Exceptional        
        exceptional     items               exceptional     items               exceptional     items        
        items     (note 5)     Total         items     (note 5)     Total         items     (note 5)     Total  
  Note     $m     $m     $m          $m     $m     $m          $m     $m     $m  
Revenue     2        1,858               1,858            1,903               1,903            1,835               1,835   
Cost of sales             (741            (741         (784            (784         (772            (772
Administrative expenses             (382     (101     (483         (374     (167     (541         (372     (16     (388
Share of (losses)/profits of associates and joint ventures     2        (4            (4         2        6        8            3               3   
Other operating income and expenses             16        130        146            6        166        172            5        (11     (6
              747        29        776            753        5        758            699        (27     672   
Depreciation and amortisation     2        (96            (96         (85            (85         (94            (94
Impairment reversal     2                                                                 23        23   
Operating profit     2        651        29        680            668        5        673            605        (4     601   
Financial income     6        3               3            5               5            3               3   
Financial expenses     6        (83            (83         (78            (78         (57            (57
Profit before tax             571        29        600            595        5        600            551        (4     547   
Tax     7        (179     (29     (208         (175     (51     (226         (151     142        (9
Profit for the year from continuing operations             392               392            420        (46     374            400        138        538   
Attributable to:                                                                                        
Equity holders of the parent             391               391            418        (46     372            399        138        537   
Non-controlling interest             1               1            2               2            1               1   
              392               392            420        (46     374            400        138        538   
Earnings per ordinary share     9                                                                                   
Continuing and total operations:                                                                                        
Basic                             158.3¢                            140.9¢                            187.1¢   
Diluted                             156.4¢                            139.3¢                            183.9¢   

Notes on pages 107 to 153 form an integral part of these Financial Statements.

 

 

 

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Group statement of comprehensive income

 

 

                                      
For the year ended 31 December 2014    2014
$m
    2013
$m
    2012
$m
 
Profit for the year      392        374        538   
Other comprehensive income                         
Items that may be subsequently reclassified to profit or loss:                         

Gains on valuation of available-for-sale financial assets, net of related tax charge of $1m (2013 $nil, 2012 $nil)

     11        28        1   

Losses relating to cash flow hedges reclassified to financial expenses

                   1   

Exchange gains/(losses) on retranslation of foreign operations, net of related tax credit of $1m (2013 $2m, 2012 $3m)

     42        (35     24   

Exchange losses reclassified to profit on hotel disposal

            46          
       53        39        26   
Items that will not be reclassified to profit or loss:                         

Re-measurement (losses)/gains on defined benefit plans, net of related tax credit of $7m (2013 charge of $20m, 2012 credit of $5m)

     (18     20        (10

Tax related to pension contributions

     2               18   
       (16     20        8   
Total other comprehensive income for the year      37        59        34   
Total comprehensive income for the year      429        433        572   
Attributable to:                         
Equity holders of the parent      428        433        571   
Non-controlling interest      1               1   
       429        433        572   

Notes on pages 107 to 153 form an integral part of these Financial Statements.

 

 

 

 

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IHG   Annual Report and Form 20-F 2014
 

Gro up Fina nci al Sta tem ents continued

Group statement of changes in equity

 

 

      Equity
share
capital
$m
   

Capital
redemption
reserve

$m

    

Shares
held by
employee
share
trusts

$m

    Other
reserves
$m
    Unrealised
gains and
losses
reserve
$m
    

Currency

translation

reserve
$m

    

Retained
earnings

$m

   

IHG
share-

holders’

equity

$m

   

Non-

controlling

interest

$m

   

Total

equity

$m

 
At 1 January 2014      189        12         (38     (2,906     100         227         2,334        (82     8        (74
Profit for the year                                                   391        391        1        392   
Other comprehensive income:                                                                                    
Items that may be subsequently reclassified to profit or loss:                                                                                    

Gains on valuation of available-for-sale financial assets

                                  11                        11               11   

Exchange differences on retranslation of foreign operations

                                          42                42               42   
                                    11         42                53               53   
Items that will not be reclassified to profit or loss:                                                                                    

Re-measurement losses on defined benefit plans

                                                  (18     (18            (18

Tax related to pension contributions

                                                  2        2               2   
                                                    (16     (16            (16
Total other comprehensive income                                   11         42         (16     37               37   
Total comprehensive income for the year                                   11         42         375        428        1        429   
Repurchase of shares                                                   (110     (110            (110
Transaction costs relating to shareholder returns                                                   (1     (1            (1
Purchase of own shares by employee share trusts                     (58                                   (58            (58
Release of own shares by employee share trusts                     60                               (60                     
Equity-settled share-based cost                                                   28        28               28   
Tax related to share schemes                                                   12        12               12   
Equity dividends paid                                                   (942     (942     (1     (943
Exchange adjustments      (11             1        10                                               
At 31 December 2014      178        12         (35     (2,896     111         269         1,636        (725     8        (717

All items above are shown net of tax.

Notes on pages 107 to 153 form an integral part of these Financial Statements.

 

 

 

 

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Group statement of changes in equity continued

 

 

      Equity
share
capital
$m
    

Capital
redemption
reserve

$m

    

Shares
held by
employee
share
trusts

$m

    Other
reserves
$m
    Unrealised
gains and
losses
reserve
$m
    

Currency

translation

reserve
$m

   

Retained
earnings

$m

   

IHG share-

holders’

equity

$m

   

Non-

controlling

interest

$m

   

Total

equity

$m

 
At 1 January 2013      179         11         (48     (2,901     72         214        2,781        308        9        317   
Profit for the year                                                   372        372        2        374   
Other comprehensive income:                                                                                    
Items that may be subsequently reclassified to profit or loss:                                                                                    

Gains on valuation of available-for-sale financial assets

                                   28                       28               28   

Exchange differences on retranslation of foreign operations

                                           (33            (33     (2     (35

Exchange losses reclassified to profit on hotel disposal

                                           46               46               46   
                                     28         13               41        (2     39   
Items that will not be reclassified to profit or loss:                                                                                    

Re-measurement gains on defined benefit plans

                                                  20        20               20   
                                                    20        20               20   
Total other comprehensive income                                    28         13        20        61        (2     59   
Total comprehensive income for the year                                    28         13        392        433               433   
Issue of ordinary shares      5                                                     5               5   
Repurchase of shares                                                   (283     (283            (283
Purchase of own shares by employee share trusts                      (53                                  (53            (53
Release of own shares by employee share trusts                      64                              (61     3               3   
Equity-settled share-based cost                                                   27        27               27   
Tax related to share schemes                                                   11        11               11   
Equity dividends paid                                                   (533     (533     (1     (534
Exchange adjustments      5         1         (1     (5                                           
At 31 December 2013      189         12         (38     (2,906     100         227        2,334        (82     8        (74

All items above are shown net of tax.

Notes on pages 107 to 153 form an integral part of these Financial Statements.

 

 

 

 

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IHG   Annual Report and Form 20-F 2014
 

Gro up Fina nci al Sta tem ents continued

Group statement of changes in equity continued

 

 

      Equity
share
capital
$m
   

Capital
redemption
reserve

$m

    

Shares
held by
employee
share
trusts

$m

    Other
reserves
$m
    Unrealised
gains and
losses
reserve
$m
   

Currency

translation

reserve
$m

    

Retained
earnings

$m

   

IHG share-

holders’

equity

$m

   

Non-

controlling

interest

$m

    

Total

equity

$m

 
At 1 January 2012      162        10         (27     (2,893     71        189         3,035        547        8         555   
Profit for the year                                                  537        537        1         538   
Other comprehensive income:                                                                                    
Items that may be subsequently reclassified to profit or loss:                                                                                    

Gains on valuation of available-for-sale financial assets

                                  1                       1                1   

Losses reclassified to financial expenses on cash flow hedges

                                  1                       1                1   

Exchange differences on retranslation of foreign operations

                                  (1     25                24                24   
                                    1        25                26                26   
Items that will not be reclassified to profit or loss:                                                                                    

Re-measurement losses on defined benefit plans

                                                 (10     (10             (10

Tax related to pension contributions

                                                 18        18                18   
                                                   8        8                8   
Total other comprehensive income                                   1        25         8        34                34   
Total comprehensive income for the year                                   1        25         545        571        1         572   
Issue of ordinary shares      10                                                    10                10   
Repurchase of shares      (1                                          (106     (107             (107
Transfer to capital redemption reserve             1                                      (1                      
Transaction costs relating to shareholder returns                                                  (2     (2             (2
Purchase of own shares by employee share trusts                     (84                                  (84             (84
Release of own shares by employee share trusts                     63                              (63                      
Equity-settled share-based cost                                                  27        27                27   
Tax related to share schemes                                                  20        20                20   
Equity dividends paid                                                  (679     (679             (679
Share of reserve in equity accounted investment                                                  5        5                5   
Exchange adjustments      8                       (8                                            
At 31 December 2012      179        11         (48     (2,901     72        214         2,781        308        9         317   

All items above are shown net of tax.

Notes on pages 107 to 153 form an integral part of these Financial Statements.

 

 

 

 

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Group statement of financial position

 

 

31 December 2014    Note     

2014

$m

    2013
(restated 1 )
$m
    2012
(restated 1 )
$m
 
ASSETS                                  
Property, plant and equipment      10         741        1,169        1,056   
Goodwill      12         74        80        93   
Intangible assets      13         569        438        354   
Investment in associates and joint ventures      14         116        85        84   
Trade and other receivables      16         3                 
Retirement benefit assets      25         8        7        99   
Other financial assets      15         252        236        155   
Non-current tax receivable               34        16        24   
Deferred tax assets      7         87        108        204   
Total non-current assets               1,884        2,139        2,069   
Inventories               3        4        4   
Trade and other receivables      16         448        423        422   
Current tax receivable               4        12        31   
Derivative financial instruments      22         2        1        2   
Other financial assets      15         5        12        6   
Cash and cash equivalents      17         162        248        387   
Total current assets               624        700        852   
Assets classified as held for sale      11         310        228        534   
Total assets      2         2,818        3,067        3,455   
LIABILITIES                                  
Loans and other borrowings      21         (126     (130     (208
Trade and other payables      18         (769     (748     (709
Provisions      19         (1     (3     (1
Current tax payable               (47     (47     (54
Total current liabilities               (943     (928     (972
Loans and other borrowings      21         (1,569     (1,269     (1,242
Derivative financial instruments      22                (11     (19
Retirement benefit obligations      25         (146     (184     (187
Trade and other payables      18         (627     (574     (563
Provisions      19         (9            (1
Deferred tax liabilities      7         (147     (175     (93
Total non-current liabilities               (2,498     (2,213     (2,105
Liabilities classified as held for sale      11         (94            (61
Total liabilities      2         (3,535     (3,141     (3,138
Net (liabilities)/assets               (717     (74     317   
EQUITY                                  
Equity share capital      27         178        189        179   
Capital redemption reserve      27         12        12        11   
Shares held by employee share trusts      27         (35     (38     (48
Other reserves      27         (2,896     (2,906     (2,901
Unrealised gains and losses reserve      27         111        100        72   
Currency translation reserve      27         269        227        214   
Retained earnings               1,636        2,334        2,781   
IHG shareholders’ equity               (725     (82     308   
Non-controlling interest      27         8        8        9   
Total equity               (717     (74     317   

 

1 Restated for the adoption of ‘Offsetting Financial Assets and Financial Liabilities’ (Amendments to IAS 32), see page 107.

Signed on behalf of the Board

Paul Edgecliffe-Johnson

16 February 2015

Notes on pages 107 to 153 form an integral part of these Financial Statements.

 

 

 

 

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IHG   Annual Report and Form 20-F 2014
 

Gro up Fina nci al Sta tem ents continued

Group statement of cash flows

 

 

                                           
For the year ended 31 December 2014    Note      2014
$m
    2013
$m
    2012
$m
 
Profit for the year               392        374        538   
Adjustments for:                                  

Net financial expenses

              80        73        54   

Income tax charge

     7         208        226        9   

Depreciation and amortisation

              96        85        94   

Impairment reversal

     5                       (23

Other exceptional operating items

              (29     (5     27   

Equity-settled share-based cost

     26         21        22        22   

Dividends from associates and joint ventures

     14         2        5        1   

Other items

              4        2        (3
Operating cash flow before movements in working capital               774        782        719   
Increase in trade and other receivables               (18     (9     (50
Net change in loyalty programme liability and System Fund surplus      32         58        61        57   
Increase in other trade and other payables               61        8        26   
Utilisation of provisions      19         (2     (3     (12
Retirement benefit contributions, net of costs               (6     (18     (95
Cash flows relating to exceptional operating items               (114     (33     (6
Cash flow from operations               753        788        639   
Interest paid               (76     (74     (50
Interest received               2        2        2   
Tax paid on operating activities      7         (136     (92     (119
Net cash from operating activities               543        624        472   
Cash flow from investing activities                                  
Purchase of property, plant and equipment               (84     (159     (44
Purchase of intangible assets               (162     (86     (84
Investment in other financial assets               (5     (154     (2
Investment in associates and joint ventures               (15     (10     (3
Loan advances to associates and joint ventures               (3              
Capitalised interest paid               (2              
Disposal of hotel assets, net of costs      11         345        460        4   
Proceeds from other financial assets               49        109        4   
Distribution from associate on sale of hotel                      17          
Proceeds from other associates and joint ventures                      3          
Tax paid on disposals      7                (5     (3
Net cash from investing activities               123        175        (128
Cash flow from financing activities                                  
Proceeds from the issue of share capital                      5        10   
Purchase of own shares               (110     (283     (107
Purchase of own shares by employee share trusts               (68     (44     (84
Dividends paid to shareholders      8         (942     (533     (679
Dividend paid to non-controlling interests               (1     (1       
Transaction costs relating to shareholder returns               (1            (2
Issue of long-term bonds                             632   
Increase/(decrease) in other borrowings               382        (1     (99
Close-out of currency swaps               4                 
Net cash from financing activities               (736     (857     (329
Net movement in cash and cash equivalents in the year               (70     (58     15   
Cash and cash equivalents at beginning of the year      17         134        195        182   
Exchange rate effects               (9     (3     (2
Cash and cash equivalents at end of the year      17         55        134        195   

Notes on pages 107 to 153 form an integral part of these Financial Statements.

 

 

 

 

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General information

This document constitutes the Annual Report and Financial Statements in accordance with UK Listing Rules requirements and the Annual Report on Form 20-F in accordance with the US Securities Exchange Act of 1934. Prior to 2013 the Group issued separate documents.

The Consolidated Financial Statements of InterContinental Hotels Group PLC (the Group or IHG) for the year ended 31 December 2014 were authorised for issue in accordance with a resolution of the Directors on 16 February 2015. InterContinental Hotels Group PLC (the Company) is incorporated and domiciled in Great Britain and registered in England and Wales.

Changes in accounting policies

With effect from 1 January 2014, the Group has adopted ‘Offsetting Financial Assets and Financial Liabilities’ (Amendments to IAS 32). The amendments clarify that to offset financial assets and financial liabilities, the Group’s right of offset must be legally enforceable in the normal course of business, in the event of default, and in the event of insolvency or bankruptcy of the Group and all of the counterparties. Following a detailed review of the Group’s cash pooling arrangements which have previously been presented net within cash and cash equivalents (see note 17), management have determined that the right of offset is not enforceable in all of the above circumstances. As a result, the overdrafts within the cash pools are now presented as current loans and other borrowings. The amendments to IAS 32 are applicable retrospectively, requiring the restatement of prior year comparatives and the presentation of a third statement of financial position as at 31 December 2012 as required by IAS 1 ‘Presentation of Financial Statements’. The adoption of the amendments to IAS 32 increases cash and cash equivalents and current loans and other borrowings by $107m in 2014 (2013 $114m, 2012 $192m) but has no impact on the net financial position of the Group nor the reporting of net debt. Cash and cash equivalents presented in the Group statement of cash flows continue to be presented net of overdrafts as permitted by IAS 7 ‘Statement of Cash Flows’.

In addition, with effect from 1 January 2014, the Group has adopted Amendment to IAS 36 ‘Impairment of Assets – Recoverable Amount Disclosures for Non-Financial Assets’, Amendment to IAS 39 ‘Novation of Derivatives and Continuation of Hedge Accounting’ and IFRIC 21 ‘Levies’. The adoption of these amendments to standards and interpretations has had no material impact on the Group’s financial performance or position and there has been no requirement to restate prior year comparatives.

Summary of significant accounting policies

Basis of preparation

The Consolidated Financial Statements of IHG have been prepared on a going concern basis and under the historical cost convention, except for available-for-sale equity securities and derivatives which are measured at fair value. The Consolidated Financial Statements have been prepared in accordance with International Financial Reporting Standards (IFRSs) as issued by the IASB and in accordance with IFRS as adopted by the European Union (EU) and as applied in accordance with the provisions of the Companies Act 2006. IFRS as adopted by the EU differs in certain respects from IFRS as issued by the IASB. However, the differences have no impact on the Consolidated Financial Statements for the years presented.

Presentational currency

The Consolidated Financial Statements are presented in millions of US dollars following a management decision to change the reporting currency from sterling during 2008. The change was made to reflect the profile of the Group’s revenue and operating profit which are primarily generated in US dollars or US dollar-linked currencies.

The currency translation reserve was set to nil at 1 January 2004 on transition to IFRS and this reserve is presented on the basis that the Group has reported in US dollars since this date. Equity share capital, the capital redemption reserve and shares held by employee share trusts are translated into US dollars at the rates of exchange on the last day of the period; the resultant exchange differences are recorded in other reserves.

The functional currency of the parent company remains sterling since this is a non-trading holding company located in the United Kingdom that has sterling denominated share capital and whose primary activity is the payment and receipt of sterling dividends and of interest on sterling denominated external borrowings and inter-company balances.

Basis of consolidation

The Consolidated Financial Statements comprise the Financial Statements of the parent company and entities controlled by the Group. Control exists when the Group has:

 

  power over an investee (i.e. existing rights that give it the current ability to direct the relevant activities of the investee);

 

  exposure, or rights, to variable returns from its involvement with the investee; and

 

  the ability to use its power over the investee to affect its returns.

All intra-group balances and transactions are eliminated on consolidation.

The assets, liabilities and results of those businesses acquired or disposed of are consolidated for the period during which they were under the Group’s control.

The Group operates a deferred compensation plan in the US which allows certain employees to make additional provision for retirement, through the deferral of salary with matching company contributions. Employees can draw down on the plan in certain limited circumstances during employment. The assets of the plan are held in a company-owned trust which is not consolidated as the relevant activity of the trust, being the investment of the funds in the trust, is directed by the participating employees of the plan and the company has no exposure to the gains and losses resulting from those investment decisions. The assets of the trust are held solely for the benefit of the participating employees and to pay plan expenses, other than in the case of a company insolvency in which case they can be claimed by the general creditors of the company. At 31 December 2014, the trust had assets with a fair value of $148m (2013 $135m).

 

 

 

 

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Foreign currencies

Transactions in foreign currencies are translated to functional currency at the exchange rates ruling on the dates of the transactions. Monetary assets and liabilities denominated in foreign currencies are retranslated to the functional currency at the relevant rates of exchange ruling on the last day of the period. Foreign exchange differences arising on translation are recognised in the income statement except on foreign currency borrowings that provide a hedge against a net investment in a foreign operation. These are taken directly to the currency translation reserve until the disposal of the net investment, at which time they are recycled against the gain or loss on disposal.

The assets and liabilities of foreign operations, including goodwill, are translated into US dollars at the relevant rates of exchange ruling on the last day of the period. The revenues and expenses of foreign operations are translated into US dollars at average rates of exchange for the period. The exchange differences arising on the retranslation are taken directly to the currency translation reserve. On disposal of a foreign operation, the cumulative amount recognised in the currency translation reserve relating to that particular foreign operation is recycled against the gain or loss on disposal.

Property, plant and equipment

Property, plant and equipment are stated at cost less depreciation and any impairment.

Repairs and maintenance costs are expensed as incurred.

Land is not depreciated. All other property, plant and equipment are depreciated to a residual value over their estimated useful lives, namely:

 

  buildings – lesser of 50 years and unexpired term of lease; and

 

  fixtures, fittings and equipment – three to 25 years.

All depreciation is charged on a straight-line basis. Residual value is re-assessed annually.

Property, plant and equipment are tested for impairment when events or changes in circumstances indicate that the carrying value may not be recoverable. Assets that do not generate independent cash flows are combined into cash-generating units. If carrying values exceed their estimated recoverable amount, the assets or cash-generating units are written down to the recoverable amount. Recoverable amount is the greater of fair value less costs of disposal and value in use. Value in use is assessed based on estimated future cash flows discounted to their present value using a pre-tax discount rate that reflects current market assessments of the time value of money and the risks specific to the asset. Impairment losses, and any subsequent reversals, are recognised in the income statement.

On adoption of IFRS, the Group retained previous revaluations of property, plant and equipment which are included at deemed cost as permitted by IFRS 1 ‘First-time Adoption of International Financial Reporting Standards’.

Goodwill

Goodwill arises on consolidation and is recorded at cost, being the excess of the cost of acquisition over the fair value at the date of acquisition of the Group’s share of identifiable assets, liabilities and contingent liabilities. Transaction costs are expensed and are not included in the cost of acquisition. Following initial recognition, goodwill is measured at cost less any accumulated impairment losses.

Goodwill is tested for impairment at least annually by comparing carrying values of cash-generating units with their recoverable amounts. Impairment losses cannot be subsequently reversed.

Intangible assets

Software

Acquired and internally developed software are capitalised on the basis of the costs incurred to acquire and bring to use the specific software. Costs are amortised over estimated useful lives of three to five years on a straight-line basis.

Internally generated development costs are expensed unless forecast revenues exceed attributable forecast development costs, in which case they are capitalised and amortised over the estimated useful life of the asset.

Management contracts

When assets are sold and a purchaser enters into a franchise or management contract with the Group, the Group capitalises as part of the gain or loss on disposal an estimate of the fair value of the contract entered into. The value of management contracts is amortised on a straight-line basis over the life of the contract including any extension periods at IHG’s option up to a maximum of 50 years.

Other intangible assets

Amounts paid to hotel owners to secure management contracts and franchise agreements are capitalised and amortised on a straight-line basis over their estimated useful lives up to a maximum of 50 years. In prior years this has been determined to be the shorter of the contracted period and 10 years. Following a detailed review in early 2014 and based on the Group’s experience of the actual contractual periods secured by these payments, the estimate of useful life has been re-assessed to comprise the full contract term, which is also consistent with the stated policy of other companies in the hotel industry. This revision to the estimate of expected useful lives has been applied prospectively in accordance with IAS 38 and results in the following (decrease)/ increase in the original amortisation profile of assets capitalised at 1 January 2014: 2014 $(5)m, 2015 $(5)m, 2016 $(4)m, 2017 $(3)m, 2018 and after $17m in total.

Intangible assets are reviewed for impairment when events or changes in circumstances indicate that the carrying value may not be recoverable.

 

 

 

 

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Borrowing costs

Borrowing costs attributable to the acquisition or construction of property, plant and equipment or in respect of software projects that necessarily take a substantial period of time to prepare for their intended use, or sale, are capitalised as part of the asset cost. Borrowing costs consist of interest and other costs that an entity incurs in connection with the borrowing of funds. All borrowing costs relating to projects commencing before 1 January 2009 were expensed.

Associates and joint ventures

An associate is an entity over which the Group has significant influence. Significant influence is the power to participate in the financial and operating policy decisions of the entity, but is not control or joint control over those policies.

A joint venture exists when two or more parties have joint control over, and rights to the net assets of, the venture. Joint control is the contractually agreed sharing of control which only exists when decisions about the relevant activities require the unanimous consent of the parties sharing control.

Associates and joint ventures are accounted for using the equity method unless the associate or joint venture is classified as held for sale. Under the equity method, the Group’s investment is recorded at cost adjusted by the Group’s share of post-acquisition profits and losses and other movements in the investee’s reserves. When the Group’s share of losses exceeds its interest in an associate or joint venture, the Group’s carrying amount is reduced to $nil and recognition of further losses is discontinued except to the extent that the Group has incurred legal or constructive obligations or made payments on behalf of an associate or joint venture.

Financial assets

The Group classifies its financial assets into one of the two following categories: loans and receivables or available-for-sale financial assets. Management determines the classification of financial assets on initial recognition and they are subsequently held at amortised cost (loans and receivables) or fair value (available-for-sale financial assets). Interest on loans and receivables is calculated using the effective interest rate method and is recognised in the income statement as interest income. Changes in fair values of available-for-sale financial assets are recorded directly in equity within the unrealised gains and losses reserve. On disposal, the accumulated fair value adjustments recognised in equity are recycled to the income statement. Dividends from available-for-sale financial assets are recognised in the income statement as other operating income and expenses.

Financial assets are assessed for impairment at each period-end date. In the case of an equity investment classified as available-for-sale, a significant or prolonged decline in fair value below cost is evidence that the asset is impaired. If an available-for-sale financial asset is impaired, the difference between original cost and fair value is transferred from equity to the income statement to the extent of any cumulative loss recorded in equity, with any excess charged directly to the income statement. Subsequent impairment reversals relating to previously impaired equity instruments are recorded in equity.

Trade receivables

Trade receivables are recorded at their original amount less provision for impairment. It is the Group’s policy to provide for 100% of the previous month’s aged receivables balances which are more than 180 days past due. Adjustments to the policy may be made due to specific or exceptional circumstances. The carrying amount of the receivable is reduced through the use of a provision account and movements in the provision are recognised in the income statement within cost of sales. When a previously provided trade receivable is uncollectable, it is written off against the provision.

Cash and cash equivalents

Cash comprises cash in hand and demand deposits.

Cash equivalents are short-term highly liquid investments with an original maturity of three months or less that are readily convertible to known amounts of cash and subject to insignificant risk of changes in value.

In the statement of cash flows, cash and cash equivalents are shown net of short-term overdrafts which are repayable on demand and form an integral part of the Group’s cash management.

Assets held for sale

Assets and liabilities are classified as held for sale when their carrying amount will be recovered principally through a sale transaction rather than continuing use and a sale is highly probable and expected to complete within one year. For a sale to be highly probable, management need to be committed to a plan to sell the asset and the asset must be actively marketed for sale at a price that is reasonable in relation to its current fair value.

Assets designated as held for sale are held at the lower of carrying amount at designation and fair value less costs to sell.

Depreciation is not charged against property, plant and equipment classified as held for sale.

Financial liabilities

Financial liabilities are measured at amortised cost using the effective interest rate method. A financial liability is derecognised when the obligation under the liability expires, is discharged or is cancelled.

Offsetting of financial assets and financial liabilities

Financial assets and financial liabilities are offset and the net amount is reported in the Group statement of financial position if there is a currently enforceable legal right to offset the recognised amounts and there is an intention to settle on a net basis or to realise the assets and settle the liabilities simultaneously. To meet this criteria, the right of set-off must not be contingent on a future event and must be legally enforceable in all of the following circumstances: the normal course of business, the event of default and the event of insolvency or bankruptcy of the Group and all of the counterparties.

 

 

 

 

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Trade payables

Trade payables are non-interest-bearing and are stated at their nominal value.

Bank and other borrowings

Bank and other borrowings are initially recognised at the fair value of the consideration received less directly attributable transaction costs. They are subsequently measured at amortised cost. Finance charges, including the transaction costs and any discount or premium on issue, are recognised in the income statement using the effective interest rate method.

Borrowings are classified as non-current when the repayment date is more than 12 months from the period-end date or where they are drawn on a facility with more than 12 months to expiry.

Derivative financial instruments and hedging

Derivatives are initially recognised and subsequently re-measured at fair value. The method of recognising the re-measurement depends on whether the derivative is designated as a hedging instrument, and if so, the nature of the item being hedged.

Changes in the fair value of derivatives designated as cash flow hedges are recorded in other comprehensive income and the unrealised gains and losses reserve to the extent that the hedges are effective. When the hedged item is recognised, the cumulative gains and losses on the related hedging instrument are reclassified to the income statement.

Changes in the fair value of derivatives designated as net investment hedges are recorded in other comprehensive income and the currency translation reserve to the extent that the hedges are effective. The cumulative gains and losses remain in equity until a foreign operation is sold, at which point they are reclassified to the income statement.

Changes in the fair value of derivatives which have either not been designated as hedging instruments or relate to the ineffective portion of hedges are recognised immediately in the income statement.

Documentation outlining the measurement and effectiveness of any hedging arrangements is maintained throughout the life of the hedge relationship.

Interest arising from currency derivatives and interest rate swaps is recorded in either financial income or expenses over the term of the agreement, unless the accounting treatment for the hedging relationship requires the interest to be taken to reserves.

Self insurance

Liabilities in respect of self insured risks include projected settlements for known and incurred but not reported claims. Projected settlements are estimated based on historical trends and actuarial data.

Provisions

Provisions are recognised when the Group has a present obligation as a result of a past event, it is probable that a payment will be made and a reliable estimate of the amount payable can be made. If the effect of the time value of money is material, the provision is discounted using a current pre-tax discount rate that reflects the risks specific to the liability.

 

An onerous contract provision is recognised when the unavoidable costs of meeting the obligations under a contract exceed the economic benefits expected to be received under it.

In respect of litigation, provision is made when management consider it probable that payment may occur even though the defence of the related claim may still be ongoing through the court process.

Taxes

Current tax

Current income tax assets and liabilities for the current and prior periods are measured at the amount expected to be recovered from or paid to the tax authorities including interest. The tax rates and tax laws used to compute the amount are those that are enacted or substantively enacted at the end of the reporting period.

Deferred tax

Deferred tax assets and liabilities are recognised in respect of temporary differences between the tax base and carrying value of assets and liabilities including accelerated capital allowances, unrelieved tax losses, unremitted profits from subsidiaries, gains rolled over into replacement assets, gains on previously revalued properties and other short-term temporary differences.

Deferred tax assets are recognised to the extent that it is regarded as probable that the deductible temporary differences can be realised. The recoverability of all deferred tax assets is re-assessed at the end of each reporting period.

Deferred tax is calculated at the tax rates that are expected to apply in the periods in which the asset or liability will be settled, based on rates enacted or substantively enacted at the end of the reporting period.

Retirement benefits

Defined contribution plans

Payments to defined contribution schemes are charged to the income statement as they fall due.

Defined benefit plans

Plan assets, including qualifying insurance policies, are measured at fair value and plan liabilities are measured on an actuarial basis, using the projected unit credit method and discounting at an interest rate equivalent to the current rate of return on a high-quality corporate bond of equivalent currency and term to the plan liabilities. The difference between the value of plan assets and liabilities at the period-end date is the amount of surplus or deficit recorded in the statement of financial position as an asset or liability. An asset is recognised when the employer has an unconditional right to use the surplus at some point during the life of the plan or on its wind-up. If a refund would be subject to a tax other than income tax, as is the case in the UK, the asset is recorded at the amount net of the tax. A liability is also recorded for any such tax that would be payable in respect of funding commitments based on the accounting assumption that the related payments increase the asset.

 

 

 

 

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The service cost of providing pension benefits to employees, together with the net interest expense or income for the year, is charged to the income statement within ‘administration expenses’. Net interest is calculated by applying the discount rate to the net defined benefit asset or liability, after any asset restriction. Past service costs and gains, which are the change in the present value of the defined benefit obligation for employee service in prior periods resulting from plan amendments, are recognised immediately the plan amendment occurs. Settlement gains and losses, being the difference between the settlement cost and the present value of the defined benefit obligations being settled, are recognised when the settlement occurs.

Re-measurements comprise actuarial gains and losses, the return on plan assets (excluding amounts included in net interest) and changes in the amount of any asset restrictions. Actuarial gains and losses may result from: differences between the actuarial assumptions underlying the plan liabilities and actual experience during the year or changes in the actuarial assumptions used in the valuation of the plan liabilities. Re-measurement gains and losses, and taxation thereon, are recognised in other comprehensive income and are not reclassified to profit or loss in subsequent periods.

Actuarial valuations are normally carried out every three years and are updated for material transactions and other material changes in circumstances (including changes in market prices and interest rates) up to the end of the reporting period.

Revenue recognition

Revenue arises from the sale of goods and provision of services where these activities give rise to economic benefits received and receivable by the Group on its own account and result in increases in equity.

Revenue is derived from the following sources: franchise fees; management fees; owned and leased properties and other revenues which are ancillary to the Group’s operations, including technology fee income.

Revenue is recorded (excluding VAT and similar taxes) net of discounts. The following is a description of the composition of revenues of the Group:

Franchise fees – received in connection with the licence of the Group’s brand names, usually under long-term contracts with the hotel owner. The Group charges franchise royalty fees as a percentage of rooms revenue. Revenue is recognised when the fee is earned in accordance with the terms of the contract.

Management fees – earned from hotels managed by the Group, usually under long-term contracts with the hotel owner. Management fees include a base fee, generally a percentage of hotel revenue, which is recognised when earned in accordance with the terms of the contract and an incentive fee, generally based on the hotel’s profitability or cash flows and recognised when the related performance criteria are met under the terms of the contract.

Owned and leased – primarily derived from hotel operations, including the rental of rooms and food and beverage sales from owned and leased hotels operated under the Group’s brand names. Revenue is recognised when rooms are occupied and food and beverages are sold.

Franchise fees and management fees include liquidated damages received from the early termination of contracts.

Other revenues are recognised when earned in accordance with the terms of the contract.

Government grants

Government grants are recognised in the period to which they relate when there is reasonable assurance that the grant will be received and that the Group will comply with the attached conditions. Government grants are recognised within other operating income and expenses in the Group income statement.

Share-based payments

The cost of equity-settled transactions with employees is measured by reference to fair value at the date at which the right to the shares is granted. Fair value is determined by an external valuer using option pricing models.

The cost of equity-settled transactions is recognised, together with a corresponding increase in equity, over the period in which any performance or service conditions are fulfilled, ending on the date on which the relevant employees become fully entitled to the award (vesting date).

The income statement charge for a period represents the movement in cumulative expense recognised at the beginning and end of that period. No expense is recognised for awards that do not ultimately vest, except for awards where vesting is conditional upon a market or non-vesting condition, which are treated as vesting irrespective of whether or not the market or non-vesting condition is satisfied, provided that all other performance and/or service conditions are satisfied.

Leases

Operating lease rentals are charged to the income statement on a straight-line basis over the term of the lease.

Assets held under finance leases, which transfer to the Group substantially all the risks and benefits incidental to ownership of the leased item, are capitalised at the inception of the lease, with a corresponding liability being recognised for the fair value of the leased asset or, if lower, the present value of the minimum lease payments. Lease payments are apportioned between the reduction of the lease liability and finance charges in the income statement so as to achieve a constant rate of interest on the remaining balance of the liability. Assets held under finance leases are depreciated over the shorter of the estimated useful life of the asset and the lease term.

Disposal of non-current assets

The Group recognises sales proceeds and any related gain or loss on disposal on completion of the sales process. In determining whether the gain or loss should be recorded, the Group considers whether it:

 

  has a continuing managerial involvement to the degree associated with asset ownership;

 

  has transferred the significant risks and rewards associated with asset ownership; and

 

  can reliably measure and will actually receive the proceeds.
 

 

 

 

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Fair value measurement

The Group measures available-for-sale equity securities and derivatives at fair value on a recurring basis and other assets when impaired by reference to fair value less costs of disposal. Additionally, the fair value of other financial assets and liabilities require disclosure.

Fair value is the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants. Fair value is measured by reference to the principal market for the asset or liability assuming that market participants act in their economic best interests.

The fair value of a non-financial asset assumes the asset is used in its highest and best use, either through continuing ownership or by selling it.

The Group uses valuation techniques that maximise the use of relevant observable inputs using the following valuation hierarchy:

 

Level 1: quoted (unadjusted) prices in active markets for identical assets or liabilities.
Level 2: other techniques for which all inputs which have a significant effect on the recorded fair value are observable, either directly or indirectly.
Level 3: techniques which use inputs which have a significant effect on the recorded fair value that are not based on observable market data.

Further disclosures on the particular valuation techniques used by the Group are provided in note 23.

For impairment testing purposes and where significant assets (such as property) are valued by reference to fair value less costs of disposal, an external valuation will normally be obtained using professional valuers who have appropriate market knowledge, reputation and independence.

Exceptional items

The Group discloses certain financial information both including and excluding exceptional items. The presentation of information excluding exceptional items allows a better understanding of the underlying trading performance of the Group and provides consistency with the Group’s internal management reporting. Exceptional items are identified by virtue of either their size or nature so as to facilitate comparison with prior periods and to assess underlying trends in financial performance. Exceptional items can include, but are not restricted to, gains and losses on the disposal of assets, impairment charges and reversals, restructuring costs and the release of tax provisions.

Treasury shares

Own shares repurchased by the Company and not cancelled (treasury shares) are recognised at cost and deducted from retained earnings. If reissued, any excess of consideration over carrying amount is recognised in the share premium reserve.

Critical accounting policies and the use of judgements, estimates and assumptions

In determining and applying the Group’s accounting policies, management are required to make judgements, estimates and assumptions. An accounting policy is considered to be critical if its selection or application could materially affect the reported amounts of assets and liabilities, disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Management consider accounting for the System Fund to be a critical judgement and that critical estimates and assumptions are used in impairment testing and for measuring the loyalty programme liability, tax assets and liabilities, and litigation provisions, as discussed in further detail below. Estimates and assumptions are evaluated by management using historical experience and other factors believed to be reasonable based on current circumstances. Actual results could differ under different policies, judgements, estimates and assumptions or due to unforeseen circumstances.

System Fund – in addition to management or franchise fees, hotels within the IHG System pay cash assessments and contributions which are collected by IHG for specific use within the System Fund (the Fund). The Fund also receives proceeds from the sale of IHG Rewards Club points. IHG exerts significant influence over the operation of the Fund, however the Fund is managed for the benefit of hotels in the System with the objective of driving revenues for the hotels. The Fund is used to pay for marketing, the IHG Rewards Club loyalty programme and the global reservation system. The Fund is planned to operate at breakeven with any short-term timing surplus or deficit carried in the Group statement of financial position within working capital.

As all Fund income is designated for specific purposes and does not result in a profit or loss for the Group, the revenue recognition criteria as outlined in the accounting policy above are not met and therefore the income and expenses of the Fund are not included in the Group income statement.

The assets and liabilities relating to the Fund are included in the appropriate headings in the Group statement of financial position as the related legal, but not beneficial, rights and obligations rest with the Group. These assets and liabilities include the IHG Rewards Club liability, short-term timing surpluses and deficits and any receivables and payables related to the Fund.

The cash flows relating to the Fund are reported within ‘cash flow from operations’ in the Group statement of cash flows due to the close interrelationship between the Fund and the trading operations of the Group.

Further information on the Fund is included in note 32.

 

 

 

 

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Loyalty programme – the hotel loyalty programme, IHG Rewards Club, enables members to earn points, funded through hotel assessments, during each qualifying stay at an IHG branded hotel and redeem points at a later date for free accommodation or other benefits. The future redemption liability is calculated by multiplying the number of points expected to be redeemed by the redemption cost per point. On an annual basis the Group engages an external actuary who uses statistical formulas to assist in the estimate of the number of points that will never be redeemed (‘breakage’). Actuarial gains and losses on the future redemption liability are borne by the System Fund and any resulting changes in the liability would correspondingly adjust the amount of short-term timing surpluses and deficits held in the Group statement of financial position. The future redemption liability, which is included in trade and other payables, was $725m at 31 December 2014. Based on the conditions existing at the balance sheet date, a 1% decrease in the breakage estimate would increase this liability by approximately $7m.

Impairment testing – intangible assets, property, plant and equipment are tested for impairment when events or circumstances indicate that their carrying value may not be recoverable. Goodwill is subject to an impairment test on an annual basis or more frequently if there are indicators of impairment. Assets that do not generate independent cash flows are combined into cash-generating units.

The impairment testing of individual assets or cash-generating units requires an assessment of the recoverable amount of the asset or cash-generating unit. If the carrying value of the asset or cash-generating unit exceeds its estimated recoverable amount, the asset or cash-generating unit is written down to its recoverable amount. Recoverable amount is the greater of fair value less costs of disposal and value in use. Value in use is assessed based on estimated future cash flows discounted to their present value using a pre-tax discount rate that is based on the Group’s weighted average cost of capital adjusted to reflect the risks specific to the business model and territory of the cash-generating unit or asset being tested. The outcome of such an assessment is subjective, and the result sensitive to the assumed future cash flows to be generated by the cash-generating units or assets and discount rates applied in calculating the value in use.

At 31 December 2014, the Group had intangible assets of $569m and property, plant and equipment of $741m, none of which were subject to an impairment charge during the year. In respect of those assets requiring an impairment test and depending on how recoverable amount was assessed, a 10% reduction in fair value or estimated future cash flows would have resulted in an impairment loss of $7m.

Information on impairment testing of goodwill, which had a net book value of $74m at 31 December 2014, is included in note 12.

Income taxes – deferred tax assets are recognised to the extent that it is regarded as probable that deductible temporary differences can be realised. The Group estimates deferred tax assets and liabilities based on current tax laws and rates, and in certain cases, business plans, including management’s expectations regarding the manner and timing of recovery of the related assets. Changes in these estimates may affect the amount of deferred tax liabilities or the valuation of deferred tax assets and therefore the tax charge in the income statement.

Provisions for tax liabilities require judgements on the interpretation of tax legislation, developments in case law and the potential outcomes of tax audits and appeals which may be subject to significant uncertainty. Therefore the actual results may vary from expectations resulting in adjustments to provisions, the valuation of deferred tax assets, cash tax settlements, and therefore the tax charge in the income statement.

Exceptional tax charges and credits arose in 2013 and 2012 as explained in note 7.

Litigation – from time to time, the Group is subject to legal proceedings the ultimate outcome of each being always subject to many uncertainties inherent in litigation. A provision for litigation is made when it is considered probable that a payment will be made and the amount of the loss can be reasonably estimated. Significant judgement is made when evaluating, amongst other factors, the probability of unfavourable outcome and the ability to make a reasonable estimate of the amount of potential loss. Litigation provisions are reviewed at each accounting period and revisions made for changes in facts and circumstances.

New standards issued but not effective

The new and amended accounting standards discussed below are those which are expected to be relevant to the Group’s financial statements.

From 1 January 2015, the Group will apply the amendments to existing standards arising from the 2010-2012 and 2011-2013 annual improvements cycles.

From 1 January 2016, the Group will apply Amendments to IAS 16 and IAS 38 ‘Clarification of Acceptable Methods of Depreciation and Amortisation’ and Amendments to IFRS 11 ‘Accounting for Acquisition of Interests in Joint Operations’.

The above amendments are not expected to have a material impact on the Group’s reported performance or financial position.

IFRS 15 ‘Revenue from Contracts with Customers’ introduces a new five-step approach to measuring and recognising revenue and is effective from 1 January 2017.

IFRS 9 ‘Financial Instruments’ was issued as a final standard in July 2014 and is effective from 1 January 2018. The standard introduces new requirements for classification and measurement of financial assets and financial liabilities, impairment and hedge accounting.

The Group is currently assessing the impacts of IFRS 15 and IFRS 9 and plans to adopt both standards on the required effective dates.

 

 

 

 

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IHG   Annual Report and Form 20-F 2014

 

Note s to the Gro up Fin ancia l State ments

 

1. Exchange rates

 

The results of operations have been translated into US dollars at the average rates of exchange for the year. In the case of sterling, the translation rate is $1=£0.61 (2013 $1=£0.64, 2012 $1=£0.63). In the case of the euro, the translation rate is $1= 0.75 (2013 $1= 0.75, 2012 $1= 0.78).

Assets and liabilities have been translated into US dollars at the rates of exchange on the last day of the year. In the case of sterling, the translation rate is $1=£0.64 (2013 $1=£0.60, 2012 $1=£0.62). In the case of the euro, the translation rate is $1= 0.82 (2013 $1= 0.73, 2012 $1= 0.76).

 

 

2. Segmental information

 

The management of the Group’s operations, excluding Central functions, is organised within four geographical regions:

 

  Americas;

 

  Europe;

 

  Asia, Middle East and Africa (AMEA); and

 

  Greater China.

These, together with Central functions, comprise the Group’s five reportable segments. No operating segments have been aggregated to form these reportable segments.

Central functions include costs of global functions including technology, sales and marketing, finance, human resources and corporate services; central revenue arises principally from technology fee income. Central liabilities include the loyalty programme liability and the cumulative short-term System Fund surplus.

Each of the geographical regions derives its revenues from either franchising, managing or owning hotels and additional segmental disclosures are provided accordingly.

Management monitors the operating results of the geographical regions and Central functions separately for the purpose of making decisions about resource allocation and performance assessment. Segmental performance is evaluated based on operating profit or loss and is measured consistently with operating profit or loss in the Consolidated Financial Statements, excluding exceptional items. Group financing activities and income taxes are managed on a group basis and are not allocated to reportable segments.

 

 

Year ended 31 December 2014    Americas
$m
    Europe
$m
    AMEA
$m
    Greater
China
$m
    Central
$m
    Group
$m
 
Revenue                                                 
Franchised      630        104        16        4               754   
Managed      103        159        187        99               548   
Owned and leased      138        111        39        139               427   
Central                                  129        129   
       871        374        242        242        129        1,858   
      Americas
$m
    Europe
$m
    AMEA
$m
    Greater
China
$m
    Central
$m
    Group
$m
 
Segmental result                                                 
Franchised      544        78        12        5               639   
Managed      47        30        88        63               228   
Owned and leased      18        14        3        42               77   
Regional and central      (65     (33     (19     (21     (155     (293
Reportable segments’ operating profit      544        89        84        89        (155     651   
Exceptional operating items (note 5)      110        (56                   (25     29   
Operating profit      654        33        84        89        (180     680   
                                         Group
$m
 
Reportable segments’ operating profit                                              651   
Exceptional operating items (note 5)                                              29   
Operating profit                                              680   
Net finance costs                                              (80
Profit before tax                                              600   
Tax                                              (208
Profit for the year                                              392   

All items above relate to continuing operations.

 

 

 

 

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2. Segmental information continued
 
31 December 2014    Americas
$m
    Europe
$m
    AMEA
$m
    Greater
China
$m
    Central
$m
    Group
$m
 
Assets and liabilities                                                 
Segment assets      919        316        244        394        346        2,219   
Assets classified as held for sale             310                             310   
       919        626        244        394        346        2,529   
Unallocated assets:                                                 

Non-current tax receivable

                                             34   

Deferred tax assets

                                             87   

Current tax receivable

                                             4   

Derivative financial instruments

                                             2   

Cash and cash equivalents

                                             162   
Total assets                                              2,818   
Segment liabilities      (430     (199     (61     (66     (796     (1,552
Liabilities classified as held for sale             (94                          (94
       (430     (293     (61     (66     (796     (1,646
Unallocated liabilities:                                                 

Current tax payable

                                             (47

Deferred tax liabilities

                                             (147

Loans and other borrowings

                                             (1,695
Total liabilities                                              (3,535
Year ended 31 December 2014    Americas
$m
    Europe
$m
    AMEA
$m
    Greater
China
$m
    Central
$m
    Group
$m
 
Other segmental information                                                 
Capital expenditure (see below)      75        37        11        6        123        252   
Non-cash items:                                                 

Depreciation and amortisation 1

     22        18        8        15        33        96   

Share-based payments cost

                                 21        21   

Share of losses/(profits) of associates and joint ventures

     6               (2                   4   

 

1      Included in the $96m of depreciation and amortisation is $41m relating to administrative expenses and $55m relating to cost of sales.

         

      Americas
$m
    Europe
$m
    AMEA
$m
    Greater
China
$m
    Central
$m
    Group
$m
 
Reconciliation of capital expenditure                                                 
Capital expenditure per management reporting      75        37        11        6        123        252   
Management contracts acquired on disposal of hotels      50                                    50   
Capital contributions to associates      15                                    15   
Other financial assets relating to deferred consideration on disposals      27        25                             52   
Timing differences                           (1            (1
Additions per the Financial Statements      167        62        11        5        123        368   
Comprising additions to:                                                 

Property, plant and equipment

     45        12        2        5        15        79   

Assets classified as held for sale

     1        3                             4   

Intangible assets

     78        22        5               108        213   

Investment in associates and joint ventures

     15                                    15   

Other financial assets

     28        25        4                      57   
       167        62        11        5        123        368   

 

 

 

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IHG   Annual Report and Form 20-F 2014

 

Note s to the Gro up Fin ancia l State ments continued

 

2. Segmental information continued

 
Year ended 31 December 2013    Americas
$m
    Europe
$m
    AMEA
$m
    Greater
China
$m
    Central
$m
    Group
$m
 
Revenue                                                 
Franchised      576        104        16        3               699   
Managed      128        156        170        92               546   
Owned and leased      212        140        44        141               537   
Central                                  121        121   
       916        400        230        236        121        1,903   
      Americas
$m
    Europe
$m
    AMEA
$m
    Greater
China
$m
    Central
$m
    Group
$m
 
Segmental result                                                 
Franchised      499        79        12        5               595   
Managed      74        30        92        51               247   
Owned and leased      30        30        4        47               111   
Regional and central      (53     (34     (22     (21     (155     (285
Reportable segments’ operating profit      550        105        86        82        (155     668   
Exceptional operating items (note 5)      6        19               (10     (10     5   
Operating profit      556        124        86        72        (165     673   
                                         Group
$m
 
Reportable segments’ operating profit                                              668   
Exceptional operating items (note 5)                                              5   
Operating profit                                              673   
Net finance costs                                              (73
Profit before tax                                              600   
Tax                                              (226
Profit for the year                                              374   

All items above relate to continuing operations.

 

 

 

 

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2. Segmental information continued
 
31 December 2013    Americas
$m
    Europe
$m
    AMEA
$m
    Greater
China
$m
    Central
$m
    Group
(restated 1 )
$m
 
Assets and liabilities                                                 
Segment assets      851        654        253        392        304        2,454   
Assets classified as held for sale      228                                    228   
       1,079        654        253        392        304        2,682   
Unallocated assets:                                                 

Non-current tax receivable

                                             16   

Deferred tax assets

                                             108   

Current tax receivable

                                             12   

Derivative financial instruments

                                             1   

Cash and cash equivalents

                                             248   
Total assets                                              3,067   
Segment liabilities      (364     (286     (56     (62     (741     (1,509
Unallocated liabilities:                                                 

Current tax payable

                                             (47

Deferred tax liabilities

                                             (175

Loans and other borrowings

                                             (1,399

Derivative financial instruments

                                             (11
Total liabilities                                              (3,141

1      Restated for the adoption of ‘Offsetting Financial Assets and Financial Liabilities’ (Amendments to IAS 32), see page 107.

         

Year ended 31 December 2013    Americas
$m
    Europe
$m
    AMEA
$m
    Greater
China
$m
    Central
$m
   

Group

$m

 
Other segmental information                                                 
Capital expenditure (see below)      116        37        17        8        91        269   
Non-cash items:                                                 

Depreciation and amortisation 1

     19        18        10        15        23        85   

Share-based payments cost

                                 22        22   

Share of profits of associates and joint ventures

     5               3                      8   

 

1      Included in the $85m of depreciation and amortisation is $34m relating to administrative expenses and $51m relating to cost of sales.

         

      Americas
$m
    Europe
$m
    AMEA
$m
    Greater
China
$m
    Central
$m
   

Group

$m

 
Reconciliation of capital expenditure                                                 
Capital expenditure per management reporting      116        37        17        8        91        269   
Management contract acquired on disposal of hotel             40                             40   
Other financial assets relating to pensions             48                      92        140   
Timing differences      8                      (1     8        15   
Additions per the Financial Statements      124        125        17        7        191        464   
Comprising additions to:                                                 

Property, plant and equipment

     93        22        8        7        20        150   

Assets classified as held for sale

     5        3                             8   

Intangible assets

     6        45        5               79        135   

Investment in associates and joint ventures

     6               4                      10   

Other financial assets

     14        55                      92        161   
       124        125        17        7        191        464   

 

 

 

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IHG   Annual Report and Form 20-F 2014

 

Note s to the Gro up Fin ancia l State ments continued

 

2. Segmental information continued

 
Year ended 31 December 2012    Americas
$m
    Europe
$m
    AMEA
$m
    Greater
China
$m
    Central
$m
    Group
$m
 
Revenue                                                 
Franchised      541        91        18        3               653   
Managed      97        147        152        89               485   
Owned and leased      199        198        48        138               583   
Central                                  114        114   
       837        436        218        230        114        1,835   
      Americas
$m
    Europe
$m
    AMEA
$m
    Greater
China
$m
    Central
$m
    Group
$m
 
Segmental result                                                 
Franchised      466        65        12        4               547   
Managed      48        32        90        51               221   
Owned and leased      24        50        6        45               125   
Regional and central      (52     (35     (20     (19     (162     (288
Reportable segments’ operating profit      486        112        88        81        (162     605   
Exceptional operating items (note 5)      23        (4     (5            (18     (4
Operating profit      509        108        83        81        (180     601   
                                         Group
$m
 
Reportable segments’ operating profit                                              605   
Exceptional operating items (note 5)                                              (4
Operating profit                                              601   
Net finance costs                                              (54
Profit before tax                                              547   
Tax                                              (9
Profit for the year                                              538   
All items above relate to continuing operations.   
Year ended 31 December 2012    Americas
$m
    Europe
$m
    AMEA
$m
    Greater
China
$m
    Central
$m
    Group
$m
 
Other segmental information                                                 
Capital expenditure      25        19        6        7        76        133   
Non-cash items:                                                 

Depreciation and amortisation 1

     20        23        14        15        22        94   

Reversal of previously recorded impairment

     (23                                 (23

Write-off of software

                                 18        18   

Demerger liability released

                                 (9     (9

Share-based payments cost

                                 22        22   

Share of profits of associates and joint ventures

                   (3                   (3

 

1 Included in the $94m of depreciation and amortisation is $31m relating to administrative expenses and $63m relating to cost of sales.

 

 

 

 

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Table of Contents
 
2. Segmental information continued
 
Geographical information   

Year ended
31 December
2014

$m

    

Year ended
31 December
2013

$m

    

Year ended
31 December
2012

$m

 
Revenue                           
United Kingdom      75         90         152   
United States      786         843         769   
People’s Republic of China (including Hong Kong)      254         247         238   
Rest of World      743         723         676   
       1,858         1,903         1,835   

For the purposes of the above table, hotel revenue is determined according to the location of the hotel and other revenue is attributed to the country of origin. In addition to the United Kingdom, revenue relating to an individual country is separately disclosed when it represents 10% or more of total revenue.

 

     

31 December
2014

$m

    

31 December
2013

$m

 
Non-current assets                  
United Kingdom      136         131   
United States      811         705   
France              342   
People’s Republic of China (including Hong Kong)      318         326   
Rest of World      238         268   
       1,503         1,772   

For the purposes of the above table, non-current assets comprise property, plant and equipment, goodwill, intangible assets, investments in associates and joint ventures and trade and other receivables. In addition to the United Kingdom, non-current assets relating to an individual country are separately disclosed when they represent 10% or more of total non-current assets, as defined above.

 

 

 

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IHG   Annual Report and Form 20-F 2014

 

Note s to the Gro up Fin ancia l State ments continued

 

3. Staff costs and Directors’ emoluments

 

 

 

     

2014

$m

    

2013

$m

    

2012

$m

 

Staff

                          
Costs:                           

Wages and salaries

     577         580         547   

Social security costs

     42         41         44   

Pension and other post-retirement benefits:

                          

Defined benefit plans 1 (note 25)

     10         10         13   

Defined contribution plans

     28         25         22   
       657         656         626   

1   Before exceptional items.

 

        
      2014      2013      2012  
Average number of employees, including part-time employees:                           

Americas

     2,191         2,548         2,552   

Europe

     1,557         1,602         1,866   

Asia, Middle East and Africa

     1,451         1,545         1,195   

Greater China

     1,092         1,083         1,051   

Central

     1,506         1,401         1,317   
       7,797         8,179         7,981   

The costs of the above employees are borne by IHG. Of these, 92% were employed on a full-time basis and 8% were employed on a part-time basis.

In addition to the above, the Group has employees who work directly on behalf of the System Fund and whose costs are borne by the Fund as disclosed in note 32. In line with IHG’s business model, IHG also employs 602 (2013 578, 2012 587) General Managers who work in the managed hotels and whose total costs of $142m (2013 $135m, 2012 $132m) are borne by those hotels and, in the US predominantly, there are 11,848 (2013 10,834, 2012 11,053) other hotel workers in the managed hotels who have contracts or letters of service with IHG whose total costs of $449m (2013 $383m, 2012 $437m) are borne by those hotels.

 

     

2014

$m

    

2013

$m

    

2012

$m

 
Directors’ emoluments                           
Base salaries, fees, performance payments and benefits ¹      9.0              8.5         9.7   
Pension benefits under defined contribution plans           0.2         0.4              0.2   

¹ Excludes ICETUS cash-out payment of £9.4m (see Directors’ Remuneration Report, page 85).

More detailed information on the emoluments, pensions, option holdings and shareholdings for each Director is shown in the Directors’ Remuneration Report on pages 76 to 91.

4. Auditor’s remuneration paid to Ernst & Young LLP

 

 

 

     

2014

$m

    

2013

$m

    

2012

$m

 
Audit of the Financial Statements      2.4         2.0         2.8   
Audit of subsidiaries      2.0         1.4         1.5   
Audit-related assurance services      0.2         0.5         1.0   
Other assurance services      0.9         1.2         1.4   
Tax compliance      0.2         0.2              0.3   
Tax advisory      0.3              0.4         0.2   
Other non-audit services not covered by the above           0.1         0.1           
       6.1         5.8         7.2   

Audit fees in respect of the pension scheme were not material.

 

 

 

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5. Exceptional items

 

 

      Note     

2014

$m

    

2013

$m

    

2012

$m

 
Exceptional operating items                                    
Administrative expenses:                                    

Venezuelan currency loss

     a         (14                

Pension settlement cost

     b         (6      (147        

Reorganisation costs

     c         (29              (16

UK portfolio restructuring

     d         (45                

Kimpton acquisition costs

     e         (7                

Litigation

     f                 (10        

Loyalty programme rebranding costs

     g                 (10        
                (101      (167      (16
Share of profits of associates and joint ventures:                                    

Share of gain on disposal of a hotel (note 14)

                      6           
Other operating income and expenses:                                    

Gain/(loss) on disposal of hotels (note 11)

              130         166         (2

Write-off of software

     h                         (18

Demerger liability released

     i                         9   
                130         166         (11
Reversals of previously recorded impairment:                                    

Property, plant and equipment

     j                         23   
                                23   
                29         5         (4
Tax                                    
Tax on exceptional operating items      k         (29      (6      1   
Exceptional tax      l                 (45      141   
                (29      (51      142   

All items above relate to continuing operations.

The above items are treated as exceptional by reason of their size or nature, as further described on page 112.

 

a Relates to the introduction of the SICAD II exchange rate on 24 March 2014 and its adoption by the Group. Of the three exchange rate mechanisms that currently exist in Venezuela, SICAD II is the most accessible to the Group for converting its bolivar earnings into US dollars. The exceptional loss arises from the one-off re-measurement of the Group’s bolivar assets and liabilities from the ‘official’ exchange rate ($1=6.3 VEF) to the SICAD II exchange rate (approximately $1=50 VEF). The Group has used the SICAD II exchange rate for translating the results of its Venezuelan operations since 1 April 2014.
b In 2014, results from a partial cash-out of the UK unfunded pension arrangements and, in 2013, resulted from a buy-in (and subsequent buy-out in 2014) of the Group’s UK funded defined benefit obligations with the insurer, Rothesay Life. See note 25 for further details.
c In 2014, relates primarily to costs incurred in introducing a new HR operating model across the business to provide enhanced management information and more efficient processes, and to implement more efficient processes and procedures in the Group’s Global Technology infrastructure to help mitigate future cost increases. In 2012, arose from a reorganisation of the Group’s support functions together with a restructuring within the AMEA region.
d Relates to the costs of securing a restructuring of the UK hotel portfolio which will result in the transfer of 61 managed hotels to franchise contracts.
e Relates to acquisition transaction costs incurred in the period to 31 December 2014 on the acquisition of Kimpton, which completed on 16 January 2015 (see note 33).
f Related to an agreed settlement in respect of a lawsuit filed against the Group in the Greater China region.
g Related to costs incurred in support of the worldwide rebranding of IHG Rewards Club that was announced 1 July 2013.
h Software disposals in 2012 included an exceptional write-off of $18m resulting from a re-assessment of the ongoing value of elements of the technology infrastructure.
i Resulted from a release of a liability no longer required which arose on the demerger of the Group from Six Continents PLC.
j In 2012, a previously recorded impairment charge relating to a North American hotel was reversed in full following a re-assessment of its recoverable amount, based on the market value of the hotel as determined by an independent professional property valuer.
k In 2014, the charge comprises $56m relating to the disposal of an 80.1% interest in the InterContinental New York Barclay offset by a credit of $27m relating to a restructuring of the UK hotel portfolio and other reorganisation costs.
l In 2013, comprised a deferred tax charge of $63m consequent on the disposal of the InterContinental London Park Lane hotel, together with charges and credits of $38m and $19m respectively from associated restructurings (including intra-group dividends) and refinancings, offset by the recognition of $37m of previously unrecognised tax credits. In 2012, represented the recognition of $104m of deferred tax assets, principally relating to pre-existing overseas tax losses, whose value had become more certain as a result of a change in law and the resolution of prior period tax matters, together with the associated release of $37m of provisions.

 

 

 

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Note s to the Gro up Fin ancia l State ments continued

 

6. Finance costs

 

 

     

2014

$m

    

2013

$m

    

2012

$m

 
Financial income                           
Interest income on deposits      2         4         2   
Unwinding of discount on other financial assets      1         1         1   
       3         5         3   
Financial expenses                           
Interest expense on borrowings      66         59         37   
Interest rate swaps fair value transferred from equity                      1   
Finance charge payable under finance leases      19         19         19   
Capitalised interest      (2                
       83         78         57   

Interest income and expense relate to financial assets and liabilities held at amortised cost, calculated using the effective interest rate method.

Included within interest expense is $2m (2013 $2m, 2012 $2m) payable to the IHG Rewards Club loyalty programme relating to interest on the accumulated balance of cash received in advance of the redemption of points awarded.

The rate used for capitalisation of interest was 4.4%.

7. Tax

 

 

Tax on profit    Note     

2014

$m

    

2013

$m

    

2012

$m

 
Income tax                                    
UK corporation tax at 21.50% (2013 23.25%, 2012 24.50%):                                    

Current period

              5         62         21   

Benefit of tax reliefs on which no deferred tax previously recognised

     a                 (49        

Adjustments in respect of prior periods

     b         2                 (34
                7         13         (13
Foreign tax:      c                              

Current period

              156         184         170   

Benefit of tax reliefs on which no deferred tax previously recognised

              (2      (42      (31

Adjustments in respect of prior periods

     b         (26      (17      (27
                128         125         112   
Total current tax               135         138         99   
Deferred tax:                                    

Origination and reversal of temporary differences

              68         122         7   

Changes in tax rates

              2         (1      (2

Adjustments to estimated recoverable deferred tax assets

              1         (39      (105

Adjustments in respect of prior periods

              2         6         10   
Total deferred tax               73         88         (90
Total income tax charge for the year               208         226         9   
Further analysed as tax relating to:                                    

Profit before exceptional items

              179         175         151   

Exceptional items:

                                   

Exceptional operating items (note 5)

              29         6         (1

Exceptional tax (note 5)

                      45         (141
                208         226         9   

All items above relate to continuing operations.

 

a In 2013, included $45m in respect of the utilisation of unrecognised capital losses against the gain on disposal of the InterContinental London Park Lane hotel.
b In 2012, included $37m of exceptional credits included within exceptional tax (see note 5) together with other releases relating to tax matters which have been settled or in respect of which the relevant statutory limitation period has expired.
c Represents corporate income taxes on profit taxable in foreign jurisdictions, a significant proportion of which relates to the Group’s US subsidiaries.

 

 

 

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7. Tax continued
 
     Total 1      Before exceptional items 2  
      2014
%
    

2013

%

     2012
%
    

2014

%

    

2013

%

    

2012

%

 
Reconciliation of tax charge, including gain on disposal of assets                                                      
UK corporation tax at standard rate      21.5         23.3         24.5         21.5         23.3         24.5   
Non-deductible expenditure and non-taxable income      4.9         16.6         2.0         1.0         1.9         1.0   
Non-recoverable withholding taxes      0.4         1.2         2.0         0.4         1.2         2.0   
Net effect of different rates of tax in overseas businesses      11.5         11.6         7.7         12.8         11.9         7.8   
Effect of changes in tax rates      0.3         (0.1      (0.3      0.1         (0.1      (0.1
Benefit of tax reliefs on which no deferred tax previously recognised      (0.4      (15.0      (5.6      (0.3      (1.1      (5.6
Effect of adjustments to estimated recoverable deferred tax assets      0.2         (6.4      (19.4      (0.2      (4.9      (0.2
Adjustment to tax charge in respect of prior periods      (3.7      (2.2      (9.8      (3.9      (2.1      (2.5
Deferred tax provision on unremitted earnings              10.5                                   
Other              (1.8      0.4                 (0.6      0.5   
       34.7         37.7         1.5         31.4         29.5         27.4   

 

1   Calculated in relation to total profits including exceptional items.
2   Calculated in relation to profits excluding exceptional items.

Tax paid

Total net tax paid during the year of $136m (2013 $97m, 2012 $122m) comprises $136m (2013 $92m, 2012 $119m) paid in respect of operating activities and $nil (2013 $5m, 2012 $3m) paid in respect of investing activities.

Tax paid represents an effective rate of 23% (2013 16%, 2012 22%) on total profits and is lower than the effective income statement tax rate of 31% (2013 29%, 2012 27%) primarily due to the impact of deferred taxes (including the realisation of assets such as tax losses), the receipt of refunds in respect of prior years and provisions for tax for which no payment of tax has currently been made.

Corporation tax liabilities did not arise in 2014 in the UK and are not expected to arise for a number of years thereafter due to expenses and associated tax losses attributable principally to employment matters, in particular additional shortfall contributions made to the UK pension plan in the years 2007 to 2013.

Deferred tax

 

     

Property,

plant and

equipment

$m

   

Deferred

gains on

loan notes

$m

   

Deferred

gains on

investments

$m

    

Losses

$m

   

Employee

benefits

$m

   

Intangible

assets

$m

   

Undistributed

earnings of

subsidiaries

$m

   

Other

short-term

temporary

differences 1

$m

   

Total

$m

 
At 1 January 2013      236        114                (215     (63     33               (155     (50
Income statement      1        (8             20        2        2        63        8        88   
Statement of comprehensive income                                   24                             24   
Statement of changes in equity                                                        4        4   
Exchange and other adjustments      3        1                9               (1     3        (14     1   
At 31 December 2013      240        107                (186     (37     34        66        (157     67   
Income statement      (55            108         17        3        22        (19     (3     73   
Statement of comprehensive income                                   (8                   1        (7
Statement of changes in equity                                                        (3     (3
Exchange and other adjustments      (11     (2             15        1        (4     (3            (4
At 31 December 2014      174        105        108         (154     (41     52        44        (162     126   

1    Primarily relates to provisions, accruals, amortisation and share-based payments.

       

                                                       

2014

$m

   

2013

$m

 
Analysed as:                                                                          

Deferred tax assets

                                                              (87     (108

Deferred tax liabilities

                                                              147        175   

Liabilities held for sale

                                                              66          
                                                                126        67   

Deferred gains on loan notes includes $55m (2013 $55m) which is expected to fall due for payment in 2016.

The deferred tax asset recognised in respect of losses of $154m (2013 $186m) includes $50m (2013 $53m) in respect of capital losses available to be utilised against the realisation of capital gains which are recognised as a deferred tax liability and $104m (2013 $133m) in respect of revenue tax losses. Deferred tax assets of $20m (2013 $17m) are recognised in relation to legal entities which suffered a tax loss in the current or preceding period. These assets are recognised based upon future taxable profit forecasts for the entities concerned. Deferred gains on investments represent taxable gains which would crystallise upon a sale of a related joint venture, associate or other equity investment. The balance relates to the Barclay associate described in note 14.

 

 

 

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Note s to the Gro up Fin ancia l State ments continued

 

7. Tax continued

 

The Group has unrecognised deferred tax assets as follows:

 

      2014
$m
     2013
$m
 
Revenue losses      126         127   
Capital losses      130         85   
Total losses 1      256         212   
Employee benefits      5         16   
Other 2      58         55   
Total      319         283   

 

1   These may be carried forward indefinitely other than $11m which expires after two years, $1m which expires after six years, $8m which expires after seven years, $1m which expires after eight years and $2m which expires after nine years (2013 $12m which expires after three years and $1m which expires after seven years, $1m which expires after eight years and $9m which expires after nine years).
2   Primarily relates to provisions, accruals, amortisation and share-based payments.

These assets have not been recognised as the Group does not currently anticipate being able to offset these against future profits or gains in order to realise any economic benefit in the foreseeable future. However, future benefits may arise as a result of resolving tax uncertainties, or as a consequence of case law and legislative developments which make the value of the assets more certain.

The Group has provided deferred tax in relation to temporary differences associated with post-acquisition undistributed earnings of subsidiaries only to the extent that it is either probable that it will reverse in the foreseeable future or where the Group cannot control the timing of the reversal. The remaining unprovided liability that would arise on the reversal of these temporary differences is not expected to exceed $10m (2013 $10m).

Tax risks, policies and governance

Information concerning the Group’s tax governance can be found in the Taxation section of the Strategic Report on page 49.

8. Dividends and shareholder returns

 

 

      2014
cents per
share
     2013
cents per
share
     2012
cents per
share
     2014
$m
     2013
$m
     2012
$m
 
Paid during the year:                                                      

Final (declared for previous year)

     47.0         43.0         39.0         122         115         113   

Interim

     25.0         23.0         21.0         57         63         61   

Special (note 27)

     293.0         133.0         172.0         763         355         505   
       365.0         199.0         232.0         942         533         679   
Proposed (not recognised as a liability at 31 December):                                                      

Final

     52.0         47.0         43.0         122         121         115   

The final dividend of 33.8p (52.0¢ converted at the closing exchange rate on 13 February 2015) is proposed for approval at the Annual General Meeting (AGM) on 8 May 2015 and is payable on the shares in issue at 7 April 2015.

Under the $500m share repurchase programme announced 7 August 2012, in the year to 31 December 2014, 3.4m (2013 9.8m, 2012 4.1m) shares were repurchased for a consideration of $110m (2013 $283m, 2012 $107m), increasing the total amount repurchased to $500m. Of the 3.4m (2013 9.8m, 2012 4.1m) shares repurchased in 2014, 2.7m (2013 9.8m, 2012 nil) are held as treasury shares and 0.7m (2013 nil, 2012 4.1m) were cancelled. The cost of treasury shares has been deducted from retained earnings.

On 2 May 2014, the Company announced a $750m return to shareholders by way of a special dividend and share consolidation. On 30 June 2014, shareholders approved the share consolidation at a General Meeting of the Company on the basis of 12 new ordinary shares of 15  265 329 p per share for every 13 existing ordinary shares of 14  194 329 p each, which became effective on 1 July 2014. The special dividend of 293.0¢ per share was paid to shareholders on 14 July 2014.

 

 

 

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9. Earnings per ordinary share

 

Basic earnings per ordinary share is calculated by dividing the profit for the year available for IHG equity holders by the weighted average number of ordinary shares, excluding investment in own shares, in issue during the year.

Diluted earnings per ordinary share is calculated by adjusting basic earnings per ordinary share to reflect the notional exercise of the weighted average number of dilutive ordinary share awards outstanding during the year.

Adjusted earnings per ordinary share is disclosed in order to show performance undistorted by exceptional items, to give a more meaningful comparison of the Group’s performance.

 

Continuing and total operations    2014      2013      2012  
Basic earnings per ordinary share                           
Profit available for equity holders ($m)      391         372         537   
Basic weighted average number of ordinary shares (millions)      247         264         287   
Basic earnings per ordinary share (cents)      158.3         140.9         187.1   
Diluted earnings per ordinary share                           
Profit available for equity holders ($m)      391         372         537   
Diluted weighted average number of ordinary shares (millions)      250         267         292   
Diluted earnings per ordinary share (cents)      156.4         139.3         183.9   
Adjusted earnings per ordinary share                           
Profit available for equity holders ($m)      391         372         537   
Adjusting items (note 5):                           

Exceptional operating items ($m)

     (29      (5      4   

Tax on exceptional operating items ($m)

     29         6         (1

Exceptional tax ($m)

             45         (141
Adjusted earnings ($m)      391         418         399   
Basic weighted average number of ordinary shares (millions)      247         264         287   
Adjusted earnings per ordinary share (cents)      158.3         158.3         139.0   
Adjusted diluted earnings per ordinary share                           
Adjusted earnings ($m)      391         418         399   
Diluted weighted average number of ordinary shares (millions)      250         267         292   
Adjusted diluted earnings per ordinary share (cents)      156.4         156.6         136.6   
     

2014

millions

    

2013

millions

    

2012

millions

 
Diluted weighted average number of ordinary shares is calculated as:                           

Basic weighted average number of ordinary shares

     247         264         287   

Dilutive potential ordinary shares

     3         3         5   
       250         267         292   

 

 

 

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IHG   Annual Report and Form 20-F 2014

 

Note s to the Gro up Fin ancia l State ments continued

 

10. Property, plant and equipment

 

 

      Land and
buildings
$m
    Fixtures,
fittings and
equipment
$m
    Total
$m
 
Cost                         
At 1 January 2013      995        824        1,819   
Additions      96        54        150   
Disposals      (2     (8     (10
Exchange and other adjustments      12        1        13   
At 31 December 2013      1,101        871        1,972   
Additions      27        52        79   
Transfers to non-current assets classified as held for sale      (276     (171     (447
Disposals      (144     (61     (205
Exchange and other adjustments      (8     (20     (28
At 31 December 2014      700        671        1,371   
Depreciation and impairment                         
At 1 January 2013      (146     (617     (763
Provided      (11     (35     (46
System Fund expense             (4     (4
Disposals      2        8        10   
Exchange and other adjustments      (1     1          
At 31 December 2013      (156     (647     (803
Provided      (11     (32     (43
System Fund expense             (4     (4
Transfers to non-current assets classified as held for sale      8        107        115   
Disposals      37        58        95   
Exchange and other adjustments             10        10   
At 31 December 2014      (122     (508     (630
Net book value                         
At 31 December 2014      578        163        741   
At 31 December 2013      945        224        1,169   
At 1 January 2013      849        207        1,056   

The Group’s property, plant and equipment mainly comprises hotels, but also offices, throughout the world. In addition to the hotels included above, there was one hotel (2013 one hotel) classified as held for sale at 31 December 2014 (see note 11). Including the hotels classified as held for sale, 75% (2013 81%) of the net book value relates to the three (2013 four) largest owned and leased hotels (in terms of net book value) of a total of 10 hotels (2013 12 hotels), nine of which are open (2013 nine open). At 31 December 2014, there was one hotel (2013 three hotels) with a net book value of $36m (2013 $70m) which is under construction, not yet in use and therefore not being depreciated.

The carrying value of property, plant and equipment held under finance leases at 31 December 2014 was $186m (2013 $187m).

Including assets classified as held for sale, 40% (2013 55%) of hotel properties by net book value were directly owned, with 22% (2013 39%) held under leases having a term of 50 years or longer.

All impairment charges and reversals are included within impairment on the face of the Group income statement.

There are no charges over the Group’s property, plant and equipment.

The table below analyses the net book value of the Group’s property, plant and equipment by operating segment at 31 December 2014:

 

      Americas
$m
     Europe
$m
     AMEA
$m
     Greater
China
$m
     Central
$m
     Total
$m
 
Land and buildings      302                 7         254         15         578   
Fixtures, fittings and equipment      40                 11         44         68         163   
       342                 18         298         83         741   

 

 

 

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11. Assets sold and held for sale
 

Assets sold

Principal disposals during the year ended 31 December 2014 were the sale of the InterContinental Mark Hopkins San Francisco on 27 March 2014 and the disposal of an 80.1% interest in the InterContinental New York Barclay on 31 March 2014. The Group’s 19.9% retained interest is accounted for as an associate as described in note 14. Both transactions took place in the Americas region.

During the year ended 31 December 2013, the Group sold one hotel in the Europe region, the InterContinental London Park Lane.

During the year ended 31 December 2012, the Group sold an interest in a hotel in the Europe region.

 

      2014
$m
     2013
$m
     2012
$m
 
Consideration                           
Current year disposals:                           

Cash consideration, net of costs paid

     345         460         4   

Other financial assets¹

     52                   

Intangible assets – management contracts

     50         40           

Investment in associate

     22                   
       469         500         4   
Net assets disposed:                           

Property, plant and equipment

     (110              (6

Non-current assets held for sale

     (228      (294        

Other financial asset

     (5                

Net current liabilities

     4         6           
       (339      (288      (6
Exchange losses recycled from currency translation reserve              (46        
Gain/(loss) on disposal of hotels from continuing operations      130         166         (2
Net cash inflow                           
Current year disposals:                           

Cash consideration, net of costs paid

     345         460         4   

Distribution from associate on sale of hotel

             17           

Tax

             (5        
Prior year disposals:                           

Tax

                     (3
       345         472         1   

 

1   Includes $27m deferred consideration subsequently received and included within Proceeds from other financial assets in the Group statement of cash flows.

Assets held for sale

One hotel, the InterContinental Paris – Le Grand, met the held for sale criteria of IFRS 5 at 31 December 2014. More information can be found in the performance section of the Strategic Report on page 34. One hotel, the InterContinental New York Barclay, was held for sale at 31 December 2013.

 

      2014
$m
     2013
$m
 
Assets and liabilities held for sale                  
Assets classified as held for sale:                  

Property, plant and equipment

     306         228   

Other assets

     4           
       310         228   
Liabilities classified as held for sale:                  

Deferred tax (note 7)

     (66        

Other liabilities

     (28        
       (94        

 

 

 

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IHG   Annual Report and Form 20-F 2014

Note s to the Gro up Fin ancia l State ments continued

 

12. Goodwill

 

 

      2014
$m
     2013
$m
 
Cost                  
At 1 January      221         234   
Exchange adjustments      (6      (13
At 31 December      215         221   
Impairment                  
At 1 January and 31 December      (141      (141
Net book value                  
At 31 December      74         80   
At 1 January      80         93   

Goodwill arising on business combinations that occurred before 1 January 2005 was not restated on adoption of IFRS as permitted by IFRS 1.

All cumulative impairment losses relate to the Americas managed cash-generating unit (CGU).

Goodwill has been allocated to CGUs for impairment testing as follows:

 

             Cost                  Net book value  
      2014
$m
     2013
$m
     2014
$m
     2013
$m
 
AMEA franchised and managed operations      74         80                 74         80   
Americas managed operations      141         141                   
       215         221         74         80   

Asia, Middle East and Africa (AMEA) goodwill

The Group tests goodwill for impairment annually, or more frequently if there are any indications that an impairment may have arisen. The recoverable amounts of the CGUs are determined from value in use calculations. These calculations use pre-tax cash flow forecasts derived from the most recent financial budgets and strategic plans approved by management covering a five-year period using growth rates based on management’s past experience and industry growth forecasts.

At 31 December 2014, the recoverable amount of the CGU has been assessed based on the approved budget for 2015 and strategic plans covering a five-year period, a perpetual growth rate of 3.5% (2013 3.5%) and a discount rate of 13.7% (2013 15.5%). The perpetual growth rates do not exceed the average long-term growth rates for the relevant markets. Pre-tax discount rates are used to discount the cash flows based on the Group’s weighted average cost of capital adjusted to reflect the risks specific to the business model and territory of the CGU being tested.

Impairment was not required at either 31 December 2014 or 31 December 2013 and management have determined that the carrying value of the CGU would only exceed its recoverable amount in the event of highly unlikely changes in the key assumptions.

 

 

 

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13. Intangible assets
 
      Software
$m
    Management
contracts $m
    Other
intangibles
$m
    Total
$m
 
Cost                                 
At 1 January 2013      325        235        151        711   
Additions      79        40        16        135   
Disposals      (8            (7     (15
Exchange and other adjustments      (1     2        (1       
At 31 December 2013      395        277        159        831   
Additions      108        50        55        213   
Disposals      (31            (5     (36
Exchange and other adjustments      (1     (17     (2     (20
At 31 December 2014      471        310        207        988   
Amortisation and impairment                                 
At 1 January 2013      (163     (126     (68     (357
Provided      (21     (7     (11     (39
System Fund expense      (12                   (12
Disposals      8               7        15   
Exchange and other adjustments      (1     2        (1       
At 31 December 2013      (189     (131     (73     (393
Provided      (33     (9     (11     (53
System Fund expense      (15                   (15
Disposals      31               4        35   
Exchange and other adjustments      (1     6        2        7   
At 31 December 2014      (207     (134     (78     (419
Net book value                                 
At 31 December 2014      264        176        129        569   
At 31 December 2013      206        146        86        438   
At 1 January 2013      162        109        83        354   

Substantially all software additions are internally developed.

Additions to management contracts relate to contract values recognised as part of the proceeds for hotels sold (see note 11).

The weighted average remaining amortisation period for management contracts is 30 years (2013 24 years).

 

 

 

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Note s to the Gro up Fin ancia l State ments continued

 

14. Investment in associates and joint ventures

 

 

      Associates
$m
    Joint
ventures
$m
          Total
$m
 
Cost                         
At 1 January 2013      59        28        87   
Additions      8        2        10   
Capital returns             (3     (3
Share of profits      2               2   
Dividends      (5            (5
Exchange and other adjustments      (3            (3
At 31 December 2013      61        27        88   
Initial retained interest in Barclay associate (note 11)      22               22   
Additions      15               15   
Share of (losses)/profits      (4            (4
Dividends      (2            (2
At 31 December 2014      92        27        119   
Impairment                         
At 1 January 2013, 31 December 2013 and 31 December 2014      (3            (3
Net book value                         
At 31 December 2014      89        27        116   
At 31 December 2013      58        27        85   
At 1 January 2013      56        28        84   

Barclay associate

The Group held one material associate investment at 31 December 2014, a 19.9% interest in 111 East 48th Street Holdings, LLC (‘the Barclay associate’) which owns the InterContinental New York Barclay, a hotel managed by the Group. The investment is classified as an associate and equity accounted as the Group has the ability to exercise significant influence through its involvement in the redevelopment of the hotel and certain decision rights.

Summarised financial information in respect of the Barclay associate is set out below:

 

     

31 December

2014

$m

 
Non-current assets      339   
Net current assets      2   
Non-current liabilities      (182
Equity      159   
Group carrying amount (19.9%)      32   
     

9 months to

31 December

2014

$m

 
Revenue      24   
Loss for the period      (26
Group’s share of loss for the period (19.9%)      (5

The Barclay associate classification was effective 31 March 2014.

Other associates and joint ventures

The summarised aggregated financial information for individually immaterial associates and joint ventures is set out below. These are mainly investments in entities that own hotels which the Group manages.

 

     Associates      Joint ventures      Total  
              2014
$m
     2013
$m
    

2012

$m

             2014
$m
     2013
$m
     2012
$m
             2014
$m
     2013
$m
     2012
$m
 
Share of profit/(loss)                                                                                 
Operating profit/(loss) before exceptional items      1         2         3                                 1         2         3   
Exceptional items              6                                                 6           
       1         8         3                                 1         8         3   

The exceptional profit in 2013 arose on the sale of a hotel owned by an associate investment that was classified as held for sale at 31 December 2012. Following completion of the sale, the Group received a $17m cash distribution from the associate, being the Group’s share of the net disposal proceeds.

 

 

 

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15. Other financial assets
 
      2014
$m
       2013
$m
 
Equity securities available-for-sale:                  

Quoted equity shares

     16         9   

Unquoted equity shares

     128         127   
       144         136   
Loans and receivables:                  

Trade deposits and loans

     43         20   

Restricted funds

     21         40   

Bank accounts pledged as security

     49         52   
       113         112   
Total other financial assets      257         248   
Analysed as:                  

Current

     5         12   

Non-current

     252         236   
       257         248   

Equity securities available-for-sale are measured at fair value (see note 23) and loans and receivables are held at amortised cost.

Equity securities available-for-sale were denominated in the following currencies: US dollars $94m (2013 $84m), Hong Kong dollars $34m (2013 $27m) and other currencies $16m (2013 $25m). Unlisted equity shares are mainly investments in entities that own hotels which the Group manages. Dividend income from available-for-sale equity securities of $10m (2013 $6m) is reported as other operating income and expenses in the Group income statement.

Trade deposits and loans include a deposit of $37m made in 2011 to a hotel owner in connection with the renegotiation of a management contract. The deposit is non-interest-bearing and repayable at the end of the management contract, and is therefore held at its discounted value of $13m (2013 $12m); the discount unwinds to the income statement within financial income over the period to repayment.

Restricted funds include cash held in bank accounts which is pledged as collateral to insurance companies for risks retained by the Group and other amounts held in escrow.

The bank accounts pledged as security (£31m) are subject to a charge in favour of the members of the UK unfunded pension arrangement (see note 25).

The movement in the provision for impairment of other financial assets during the year is as follows:

 

      2014
$m
       2013
$m
 
At 1 January      (25      (26
Amounts written off              1   
Exchange and other adjustments      (3        
At 31 December      (28      (25

The provision is used to record impairment losses unless the Group is satisfied that no recovery of the amount is possible; at that point the amount considered irrecoverable is either written off directly to the income statement or, if previously provided, against the financial asset with no impact on the income statement.

 

 

 

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16. Trade and other receivables

 

 

                     
     

2014

$m

    

2013

$m

 
Current                  
Trade receivables      327         336   
Other receivables      47         20   
Prepayments      63         65   
Receivables from associates      11         2   
       448         423   
Non-current                  
Loans to associates      3           

Trade and other receivables are designated as loans and receivables and are held at amortised cost.

Trade receivables are non-interest-bearing and are generally on payment terms of up to 30 days. The fair value of trade and other receivables approximates their carrying value.

The maximum exposure to credit risk for trade and other receivables, excluding prepayments, at the end of the reporting period by geographic region is:

 

      2014
$m
        2013
$m
 
Americas      221         193   
Europe      76         78   
Asia, Middle East and Africa      53         53   
Greater China      38         34   
       388         358   

The ageing of trade and other receivables, excluding prepayments, at the end of the reporting period is:

 

     2014     

 

   2013  
      Gross
$m
     Provision
$m
       Net
$m
           Gross
$m
     Provision
$m
       Net
$m
 
Not past due      275                   275              236                   236   
Past due 1 to 30 days      57         (3        54              66         (4        62   
Past due 31 to 180 days      57         (3        54              57         (3        54   
Past due more than 180 days      46         (41        5              42         (36        6   
       435         (47        388              401         (43        358   

The credit risk relating to balances not past due is not deemed to be significant.

The movement in the provision for impairment of trade and other receivables during the year is as follows:

 

                                
      2014
$m
    2013
$m
    2012
$m
 
At 1 January      (43     (47     (46
Provided      (22     (18     (18
Amounts written back      9        14        10   
Amounts written off      9        8        7   
At 31 December      (47     (43     (47

 

 

 

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17. Cash and cash equivalents

 

 

     

2014

$m

    

2013

(restated 1 )

$m

     2012
(restated 1 )
$m
 
Cash at bank and in hand      157         177         249   
Short-term deposits      5         71         138   
       162         248         387   

 

1   Restated for the adoption of ‘Offsetting Financial Assets and Financial Liabilities’ (Amendments to IAS 32), see page 107.

Cash at bank and in hand includes bank balances of $108m (2013 $114m, 2012 $194m) which are matched by bank overdrafts of $107m (2013 $114m, 2012 $192m) under the Group’s cash pooling arrangements. Under these arrangements, each pool contains a number of bank accounts with the same financial institution and the Group pays interest on net overdraft balances within each pool. The cash pools are used for day-to-day cash management purposes and are managed as closely as possible to a zero balance on a net basis for each pool. Overseas subsidiaries are typically in a cash positive position with the matching overdrafts held by the Group’s central treasury company in the UK.

For the purposes of the Group statement of cash flows, cash and cash equivalents comprise the following:

 

      2014
$m
    2013
(restated 1 )
$m
    2012
(restated 1 )
$m
 
Cash at bank and in hand      157        177        249   
Short-term deposits      5        71        138   
       162        248        387   
Bank overdrafts (note 21)      (107     (114     (192
       55        134        195   

 

1   Restated for the adoption of ‘Offsetting Financial Assets and Financial Liabilities’ (Amendments to IAS 32), see page 107.

Short-term deposits are highly liquid investments with an original maturity of three months or less.

Cash and cash equivalents includes $4m (2013 $12m, 2012 $7m) that is not available for use by the Group due to local exchange controls in Venezuela and Argentina.

 

 

 

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18. Trade and other payables

 

 

                         
      2014
$m
     2013
$m
 
Current                  
Trade payables      88         97   
Other tax and social security payable      49         32   
Other payables      317         335   
Accruals      315         284   
       769         748   
                   
Non-current                  
Other payables      627         574   

Trade payables are non-interest-bearing and are normally settled within an average of 45 days.

Other payables include $725m (2013 $649m) relating to the future redemption liability of the Group’s loyalty programme, of which $132m (2013 $120m) is classified as current and $593m (2013 $529m) as non-current.

19. Provisions

 

 

     

Onerous
management
contracts

$m

   

Litigation

$m

   

Total

$m

 
At 1 January 2013      2               2   
Provided             4        4   
Utilised      (1     (2     (3
At 31 December 2013      1        2        3   
Provided             9        9   
Utilised      (1     (1     (2
At 31 December 2014             10        10   
            

2014

$m

   

2013

$m

 
Analysed as:                         

Current

             1        3   

Non-current

             9          
               10        3   

The onerous management contracts provision relates to the unavoidable net cash outflows that are expected to be incurred under performance guarantees associated with certain management contracts.

Litigation during 2014 relates to actions brought against the Group in the Americas region relating to System Fund activity and, during 2013, largely relates to the Greater China region.

 

 

 

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20. Financial risk management
 

Overview

The Group’s treasury policy is to manage financial risks that arise in relation to underlying business needs. The activities of the treasury function are carried out in accordance with Board approved policies and are subject to regular audit. The treasury function does not operate as a profit centre.

The treasury function seeks to reduce the financial risks faced by the Group and manages liquidity to meet all foreseeable cash needs. Treasury activities may include money market investments, spot and forward foreign exchange instruments, currency swaps, interest rate swaps and forward rate agreements. One of the primary objectives of the Group’s treasury risk management policy is to mitigate the adverse impact of movements in interest rates and foreign exchange rates.

Market risk exposure

The US dollar is the predominant currency of the Group’s revenue and cash flows. Movements in foreign exchange rates can affect the Group’s reported profit, net assets and interest cover. To hedge translation exposure, wherever possible, the Group matches the currency of its debt (either directly or via derivatives) to the currency of its net assets, whilst maximising the amount of US dollars borrowed to reflect the predominant trading currency.

From time to time, foreign exchange transaction exposure is managed by the forward purchase or sale of foreign currencies. Most significant exposures of the Group are in currencies that are freely convertible.

A general strengthening of the US dollar (specifically a five cent fall in the sterling: US dollar rate) would increase the Group’s profit before tax by an estimated $4.5m (2013 $4.1m, 2012 $2.8m) and increase net assets by an estimated $29.1m (2013 $16.0m, 2012 $1.8m). Similarly, a five cent fall in the euro:US dollar rate would reduce the Group’s profit before tax by an estimated $2.2m (2013 $2.6m, 2012 $2.3m) and decrease net assets by an estimated $10.9m (2013 $14.8m, 2012 $16.1m).

Interest rate exposure is managed, using interest rate swaps if appropriate, within set parameters depending on the term of the debt, with a minimum fixed proportion of 25% of borrowings for each major currency. No interest rate swaps were used during 2013 or 2014. Based on the year-end net debt position plus the $400m bilateral term loan drawn in 2015 to finance the Kimpton acquisition (see note 21), a one percentage point rise in US dollar interest rates would increase the annual net interest charge by $6.7m. A similar rise in euro interest rates would increase the annual net interest charge by approximately $0.9m, and a similar rise in sterling interest rates would reduce the annual net interest charge by approximately $0.7m. 100% of borrowings in major currencies were fixed rate debt at 31 December 2013.

Liquidity risk exposure

The treasury function ensures that the Group has access to sufficient funds to allow the implementation of the strategy set by the Board. Medium and long-term borrowing requirements are met through the $1.07bn Syndicated Facility which expires in November 2016, through the £250m 6% bonds that are repayable on 9 December 2016 and through the £400m 3.875% bonds repayable on 28 November 2022. The bonds were issued under the Group’s £750m Medium Term Notes programme. Short-term borrowing requirements are met from drawings under bilateral bank facilities.

The Syndicated Facility contains two financial covenants: interest cover and net debt divided by earnings before interest, tax, depreciation and amortisation (EBITDA). The Group has been in compliance with all of the financial covenants in its loan documents throughout the year, none of which is expected to present a material restriction on funding in the near future.

At the year end, the Group had cash of $162m which is predominantly held in short-term deposits and cash funds which allow daily withdrawals of cash. The Group also had overdrafts of $107m as part of cash pooling arrangements (see note 17). Most of the Group’s funds are held in the UK or US, although $4m (2013 $12m) is held in countries where repatriation is restricted as a result of foreign exchange regulations.

The Group had net liabilities of $717m at 31 December 2014 reflecting that its brands, in accordance with accounting standards, are not recorded on the balance sheet.

 

 

 

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20. Financial risk management continued

 

Credit risk exposure

Credit risk on treasury transactions is minimised by operating a policy on the investment of surplus cash that generally restricts counterparties to those with an A credit rating or better or those providing adequate security. In order to manage the Group’s credit risk exposure, the treasury function sets counterparty exposure limits using metrics including credit ratings, the relative placing of credit default swap pricings, Tier 1 capital and share price volatility of the relevant counterparty.

The Group trades only with recognised, creditworthy third parties. It is the Group’s policy that all customers who wish to trade on credit terms are subject to credit verification procedures.

In respect of credit risk arising from financial assets, the Group’s exposure to credit risk arises from default of the counterparty, with a maximum exposure equal to the carrying amount of these instruments.

Capital risk management

The Group manages its capital to ensure that it will be able to continue as a going concern. The capital structure consists of net debt, issued share capital and reserves totalling $808m at 31 December 2014 (2013 $1,071m). The structure is managed to maintain an investment grade credit rating, to provide ongoing returns to shareholders and to service debt obligations, whilst maintaining maximum operational flexibility. A key characteristic of IHG’s managed and franchised business model is that it is highly cash generative, with a high return on capital employed. Surplus cash is either reinvested in the business, used to repay debt or returned to shareholders. The Group’s debt is monitored on the basis of a cash flow leverage ratio, being net debt divided by EBITDA, with the objective of maintaining an investment grade credit rating.

Hedging

Interest rate risk

The Group hedges its interest rate risk by ensuring that interest flows are fixed on at least 25% of its borrowings in major currencies. If required, the Group uses interest rate swaps to manage the exposure although none were held during 2013 or 2014. The Group designates interest rate swaps as cash flow hedges.

Foreign currency risk

The Group is exposed to foreign currency risk on income streams denominated in foreign currencies. From time to time, the Group hedges a portion of forecast foreign currency income by taking out forward exchange contracts. The designated risk is the spot foreign exchange risk. There were no such contracts in place at either 31 December 2014 or 31 December 2013.

Hedge of net investment in foreign operations

The Group designates its foreign currency bank borrowings and currency derivatives as net investment hedges of foreign operations. The designated risk is the spot foreign exchange risk for loans and short dated derivatives. The interest on these financial instruments is taken through financial income or expense.

At 31 December 2014, the Group held no currency swaps (2013 $415m) and short dated foreign exchange swaps with principals of 220m (2013 75m) and $31m (2013 $100m) (see note 22 for further details). The maximum amount of foreign exchange derivatives held during the year as net investment hedges and measured at calendar quarter ends were currency swaps with a principal of $415m (2013 $415m) and short dated foreign exchange swaps with principals of 220m (2013 75m) and $165m (2013 $310m).

Hedge effectiveness is measured at calendar quarter ends. No ineffectiveness arose in respect of either the Group’s cash flow or net investment hedges during the current or prior year.

 

 

 

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20. Financial risk management continued
 

Liquidity risk

The following are the undiscounted contractual cash flows of financial liabilities, including interest payments:

 

    

Less than
1 year

$m

   

Between 1 and
2 years

$m

   

Between 2 and
5 years

$m

   

More than
5 years

$m

    

Total

$m

 

31 December 2014

                                        
Non-derivative financial liabilities:                                         

Bank overdrafts

    107                              107   

Unsecured bank loans

    361                              361   

Secured bank loans

    3                              3   

£250m 6% bonds 2016

    23        414                       437   

£400m 3.875% bonds 2022

    24        24        73        697         818   

Finance lease obligations

    16        16        48        3,284         3,364   

Trade and other payables

    769        174        194        345         1,482   

Provisions

    1        9                       10   
Derivative financial liabilities:                                         

Forward foreign exchange contracts

    (2                           (2
    

Less than
1 year

$m

   

Between 1 and
2 years

$m

   

Between 2 and
5 years

$m

   

More than
5 years

$m

    

Total

$m

 
31 December 2013 (restated 1 )                                         
Non-derivative financial liabilities:                                         

Bank overdrafts

    114                              114   

Secured bank loans

           4                       4   

£250m 6% bonds 2016

    25        25        438                488   

£400m 3.875% bonds 2022

    26        26        77        764         893   

Finance lease obligations

    16        16        48        3,300         3,380   

Trade and other payables

    748        162        193        289         1,392   

Provisions

    3                              3   
Derivative financial liabilities:                                         

Forward foreign exchange contracts

    (1                           (1

Currency swaps – outflows

    26        26        441                493   

                           – inflows

    (25     (25     (438             (488

1    Restated for the adoption of ‘Offsetting Financial Assets and Financial Liabilities’ (Amendments to IAS 32), see page 107.

Trade and other payables includes the cash flows relating to the future redemption liability of the Group’s loyalty programme. The repayment profile has been determined by actuaries based on expected redemption profiles and could in reality be different from expectations.

Credit risk

The carrying amount of financial assets represents the maximum exposure to credit risk.

 

                         
     

2014

$m

    

2013

(restated 1 )

$m

 
Cash and cash equivalents      162         248   
Equity securities available-for-sale      144         136   
Derivative financial instruments      2         1   
Loans and receivables:                  

Other financial assets

     113         112   

Trade and other receivables, excluding prepayments

     388         358   
       809         855   

1   Restated for the adoption of ‘Offsetting Financial Assets and Financial Liabilities’ (Amendments to IAS 32), see page 107.

 

 

 

 

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Note s to the Gro up Fin ancia l State ments continued

 

21. Loans and other borrowings

 

 

    

2014

         

2013

(restated 1 )

 
     

Current

$m

    

Non-current

$m

    

Total

$m

          

Current

$m

    

Non-current

$m

    

Total

$m

 
Bank overdrafts      107                 107              114                 114   
Unsecured bank loans              359         359                                
Secured bank loan      3                 3                      4         4   
Finance lease obligations      16         202         218              16         199         215   
£250m 6% bonds 2016              390         390                      412         412   
£400m 3.875% bonds 2022              618         618                      654         654   
Total borrowings      126         1,569         1,695              130         1,269         1,399   
                                                            
Denominated in the following currencies:                                                           
Sterling      20         1,008         1,028              17         1,066         1,083   
US dollars      87         470         557              96         199         295   
Euros      12         91         103              11                 11   
Other      7                 7              6         4         10   
       126         1,569         1,695              130         1,269         1,399   

1    Restated for the adoption of ‘Offsetting Financial Assets and Financial Liabilities’ (Amendments to IAS 32), see page 107.

Bank overdrafts

Bank overdrafts are matched by equivalent amounts of cash and cash equivalents under the Group’s cash pooling arrangements (see note 17 for further details).

Unsecured bank loans

Unsecured bank loans are borrowings under the Group’s Syndicated Facility. Amounts are classified as non-current when the facilities have more than 12 months to expiry. A variable rate of interest is payable on amounts drawn under the facility, which was 1.2% at 31 December 2014.

Secured bank loan

The secured bank loan relates to a New Zealand dollar mortgage which is secured on the related hotel property. $3m is repayable by instalments (2013 $4m).

Finance lease obligations

Finance lease obligations, which relate to the 99-year lease (of which 91 years remain) on the InterContinental Boston, are payable as follows:

 

     2014           2013  
     

Minimum

lease

payments

$m

   

Present

value of

payments

$m

          

Minimum

lease

payments

$m

   

Present

value of

payments

$m

 
Less than one year      16        16              16        16   
Between one and five years      64        48              64        48   
More than five years      3,284        154              3,300        151   
       3,364        218              3,380        215   
Less: amount representing finance charges      (3,146                  (3,165       
       218        218              215        215   

The Group has the option to extend the term of the lease for two additional 20-year terms. Payments under the lease step up at regular intervals over the lease term. Interest is payable on the obligation at a fixed rate of 9.7%.

£250m 6% bonds 2016

The 6% fixed interest sterling bonds were issued on 9 December 2009 and are repayable in full on 9 December 2016. Interest is payable annually on 9 December in each year commencing 9 December 2010 to the maturity date. The bonds were initially priced at 99.465% of face value and are unsecured. Currency swaps were transacted at the same time the bonds were issued in order to swap the proceeds and interest flows into US dollars and were subsequently closed out during 2014 (see note 22 for further details).

£400m 3.875% bonds 2022

The 3.875% fixed interest sterling bonds were issued on 28 November 2012 and are repayable on 28 November 2022. Interest is payable annually on 28 November in each year commencing 28 November 2013 to the maturity date. The bonds were initially priced at 98.787% of face value and are unsecured.

 

 

 

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21. Loans and other borrowings continued
 

Facilities provided by banks

 

     2014           2013  
     

Utilised

$m

    

Unutilised

$m

    

Total

$m

          

Utilised

$m

    

Unutilised

$m

    

Total

$m

 
Committed      364         709         1,073              4         1,070         1,074   
Uncommitted      4         62         66                      80         80   
       368         771         1,139              4         1,150         1,154   
                                           

2014

$m

    

2013

$m

 
Unutilised facilities expire:                                                           

Within one year

                                              62         80   

After two but before five years

                                              709         1,070   
                                                771         1,150   

Utilised facilities are calculated based on actual drawings and may not agree to the carrying value of loans held at amortised cost.

Kimpton acquisition

Subsequent to the year end, a $400m bilateral term loan was drawn down to finance the acquisition of Kimpton (see note 33). The loan has a term of six months plus two six-month extension periods. A variable rate of interest is payable on the loan which has identical covenants to the Syndicated Facility.

22. Derivative financial instruments

 

 

                     
     

2014

$m

   

2013

$m

 
Currency swaps             11   
Forward foreign exchange contracts      (2     (1
       (2     10   
Analysed as:                 

Current assets

     (2     (1

Non-current liabilities

            11   
       (2     10   

Derivatives are recorded at their fair values as set out in note 23.

Currency swaps

At 31 December 2014, the Group held no currency swaps. The currency swaps held at 31 December 2013 (with a principal of $415m) were transacted at the same time as the £250m 6% bonds were issued in December 2009 in order to swap the bonds’ proceeds and interest flows into US dollars. Under the terms of the swaps, $415m was borrowed and £250m deposited for seven years at a fixed exchange rate of £1=$1.66. The currency swaps were closed out in full during 2014 due to a reduction in the value of assets available for net investment hedging with $4m received as consideration on close of out the swaps. The interest expense and principal on the £250m 6% bonds are now subject to currency fluctuations. At 31 December 2013, the fair value of the currency swap comprised two components: $2m relating to the repayment of the underlying principal and $9m relating to interest payments. The element relating to the underlying principal was disclosed as a component of net debt in 2013 (see note 24). The currency swaps were designated as net investment hedges.

Forward foreign exchange contracts

At 31 December 2014, the Group held short dated foreign exchange swaps with total principal values of 220m (2013 75m) and $31m (2013 $100m). The swaps are used to manage sterling surplus cash and reduce euro and US dollar borrowings whilst maintaining operational flexibility. The foreign exchange swaps have been designated as net investment hedges.

 

 

 

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IHG   Annual Report and Form 20-F 2014

 

Note s to the Gro up Fin ancia l State ments continued

 

23. Fair value measurement

 

Fair values

The following table compares carrying amounts and fair values of the Group’s financial assets and liabilities:

 

            2014         

2013

(restated ¹ )

 
      Note     

Carrying
value

$m

   

Fair
value

$m

         

Carrying
value

$m

   

Fair
value

$m

 
Financial assets                                               
Cash and cash equivalents      17         162        162             248        248   
Equity securities available-for-sale 2      15         144        144             136        136   
Loans and receivables:                                               

Other financial assets

     15         113        113             112        112   

Trade and other financial receivables, excluding prepayments

     16         388        388             358        358   
Derivatives 2      22         2        2             1        1   
                809        809             855        855   
Financial liabilities                                               
£250m 6% bonds 2016      21         (390     (423          (412     (461
£400m 3.875% bonds 2022      21         (618     (659          (654     (650
Finance lease obligations      21         (218     (277          (215     (233
Unsecured bank loans      21         (359     (359                   
Secured bank loan      21         (3     (3          (4     (4
Bank overdrafts      21         (107     (107          (114     (114
Trade and other payables      18         (1,396     (1,396          (1,322     (1,322
Derivatives 2      22                            (11     (11
Provisions      19         (10     (10          (3     (3
                (3,101     (3,234          (2,735     (2,798

1    Restated for the adoption of ‘Offsetting Financial Assets and Financial Liabilities’ (Amendments to IAS 32), see page 107.

2    Financial assets and liabilities which are measured at fair value.

There are no other assets or liabilities measured at fair value on a recurring or non-recurring basis, or for which fair value is disclosed.

The fair value of cash and cash equivalents and bank overdrafts approximates book value due to the short maturity of the investments and deposits, and the fair value of other financial assets approximates book value based on prevailing market rates. The fair value of the secured and unsecured bank loans approximates book value as interest rates reset to market rates on a frequent basis. The fair value of trade and other receivables, trade and other payables and current provisions approximates to their carrying value, including the future redemption liability of the Group’s loyalty programme.

Fair value hierarchy

The following table provides the fair value measurement hierarchy of the above assets and liabilities, other than those with carrying amounts which are reasonable approximations of their fair values:

 

Level 1: quoted (unadjusted) prices in active markets for identical assets or liabilities.

 

Level 2: other techniques for which all inputs which have a significant effect on fair value are observable, either directly or indirectly.

 

Level 3: techniques which use inputs which have a significant effect on the recorded fair value that are not based on observable market data.

 

       2014            2013  
       

Level 1

$m

    

Level 2

$m

    

Level 3

$m

      

Total

$m

           

Level 1

$m

    

Level 2

$m

    

Level 3

$m

      

Total

$m

 
Assets                                                                                    
Equity securities available-for-sale:                                                                                    

Quoted equity shares

       16                           16               9                           9   

Unquoted equity shares

                       128           128                               127           127   
Derivatives                2                   2                       1                   1   
Liabilities                                                                                    
£250m 6% bonds 2016        (423                        (423            (461                        (461
£400m 3.875% bonds 2022        (659                        (659            (650                        (650
Finance lease obligations                (277                (277                    (233                (233
Derivatives                                                        (11                (11

There were no transfers between Level 1 and Level 2 fair value measurements during the year and no transfers into and out of Level 3.

 

 

 

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23. Fair value measurement continued
 

The fair value of quoted equity shares and the bonds is based on their quoted market price.

Derivatives are fair valued using discounted future cash flows, taking into consideration exchange rates prevailing on the last day of the reporting period and interest rates from observable swap curves. As the Group’s derivatives are not cash collaterised, a valuation adjustment is made for credit risk, being counterparty risks in respect of derivative assets and own credit risks in respect of derivative liabilities. At 31 December 2013, the interest rates used to fair value the currency swaps ranged from 1.4% to 2.5%, depending on the currency and the term of the derivative contract.

Finance lease obligations relate to the lease of the InterContinental Boston and are fair valued by discounting the future cash flows payable under the loan, which are fixed, at a risk adjusted long-term interest rate. The interest rate used to discount the cash flows at 31 December 2014 was 7.4% (2013 8.4%).

Unquoted equity shares are fair valued using the International Private Equity and Venture Capital Valuation Guidelines either by applying an average price-earnings (P/E) ratio for a competitor group to the earnings generated by the investment or by reference to share of net assets if the investment is currently loss-making or a recent property valuation is available. The average P/E ratio for the year was 24.0 and a non-marketability factor of 30% is applied. A 10% increase in the average P/E ratio would result in a $3m increase (2013 $5m) in the fair value of the investments and a 10% decrease in the average P/E ratio would result in a $3m decrease (2013 $5m) in the fair value of the investments. A 10% increase in net assets would result in a $7m increase (2013 $5m) in the fair value of the investments and a 10% decrease in net assets would result in a $7m decrease (2013 $5m) in the fair value of the investments.

The following table reconciles the movements in the fair values of investments classified as Level 3 during the year:

 

     

2014

$m

   

2013

$m

 
At 1 January      127        94   
Additions      5        8   
Repaid      (8       
Valuation gains recognised in other comprehensive income      7        25   
Exchange and other adjustments      (3       
At 31 December      128        127   
24. Net debt                 
     

2014

$m

   

2013

(restated 1 )

$m

 
Cash and cash equivalents      162        248   
Loans and other borrowings – current      (126     (130

                                          – non-current

     (1,569     (1,269
Derivatives hedging debt values (note 22)             (2
Net debt      (1,533     (1,153
Movement in net debt                 
Net decrease in cash and cash equivalents, net of overdrafts      (70     (58
Add back cash flows in respect of other components of net debt:                 

(Increase)/decrease in other borrowings

     (382     1   

Close-out of currency swaps

     (4       
Increase in net debt arising from cash flows      (456     (57
Non-cash movements:                 

Finance lease obligations

     (3     (3

Exchange and other adjustments

     79        (19
Increase in net debt      (380     (79
Net debt at beginning of the year      (1,153     (1,074
Net debt at end of the year      (1,533     (1,153

1    Restated for the adoption of ‘Offsetting Financial Assets and Financial Liabilities’ (Amendments to IAS 32), see page 107.

In 2013, net debt included the exchange element of the fair value of currency swaps that fixed the value of the Group’s £250m 6% bonds at $415m. An equal and opposite exchange adjustment on the retranslation of the £250m 6% bonds was included in non-current loans and other borrowings. The currency swaps were closed out in 2014 (see note 22).

 

 

 

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IHG   Annual Report and Form 20-F 2014

 

Note s to the Gro up Fin ancia l State ments continued

 

25. Retirement benefits

 

UK

Historically UK retirement and death in service benefits have been provided for eligible employees in the UK principally by the InterContinental Hotels UK Pension Plan, which has both defined benefit and defined contribution sections. The defined benefit section was subject to a buy-in transaction on 15 August 2013 whereby the assets of the plan were invested in a bulk purchase annuity policy with the insurer Rothesay Life under which the benefits payable to defined benefit members became fully insured. On 31 October 2014, the plan completed the move to a full buy-out of the defined benefit section, following which Rothesay Life has become fully and directly responsible for the pension obligations. On completion of the buy-out, the defined benefit assets (comprising the Rothesay Life insurance policy) and matching defined benefit liabilities were derecognised from the Group statement of financial position. The buy-out transaction also triggered the return to the Company of the £3m that remained in the IHG Funding Trust.

On 6 August 2014, members of the defined contribution section of the plan were transferred to a new mirror plan, the IHG UK Defined Contribution Pension Plan. Existing and new employees who are eligible for pension benefits in the UK, including those who have been auto-enrolled since 1 September 2013, are provided with defined contribution arrangements under this plan; benefits are based on each individual member’s personal account.

Both plans are HM Revenue & Customs registered and governed by a Trustee Board which comprises a combination of independent and company nominated trustees, assisted by professional advisers as and when required. The overall operation of the plans is subject to the oversight of The Pensions Regulator. The Trustee Board is currently in the process of winding-up the InterContinental Hotels UK Pension Plan.

In addition to the above, additional benefits are provided to members of an unfunded pension arrangement who were affected by lifetime or annual allowances under the former defined benefit arrangements. Accrual under this arrangement ceased with effect from 1 July 2013. In March 2014, the Company made an offer to each member to cash-out their pension entitlement by means of a one-off lump sum cash payment. Members had until 30 June 2014 to accept the offer with the Company reserving the right to revoke any acceptances up to the date of payment. In the event, cash payments totalling £27m were made to the accepting members on 28 July 2014 (with an additional £7m deferred for payment until 2015), thereby extinguishing approximately 70% of the unfunded pension obligations. A charge over certain ring-fenced bank accounts totalling £31m at 31 December 2014 (see note 15) is currently held as security on behalf of the remaining members of the unfunded arrangement.

US and other

The Group also maintains the following US-based defined benefit plans; the funded Inter-Continental Hotels Pension Plan, unfunded Inter-Continental Hotels Non-qualified Pension Plans and unfunded Inter-Continental Hotels Corporation Postretirement Medical, Dental, Vision and Death Benefit Plan. All plans are closed to new members. In respect of the funded plan, an Investment Committee has responsibility for the oversight and management of the plan’s assets, which are held in a separate trust. The Committee comprises senior company employees and is assisted by professional advisers as and when required. The company currently makes contributions that equal or exceed the minimum funding amounts required by the Employee Retirement Income and Security Act of 1974 (‘ERISA’). The investment objective is to achieve full funding over time by following a specified ‘glide path approach’ which results in a progressive switching from return seeking assets to liability-matching assets as the funded status of the plan increases. During the year, the funded status reached 85% which triggered a further de-risking of the investment portfolio.

The Group also operates a number of smaller pension schemes outside the UK, the most significant of which is a defined contribution scheme in the US; there is no material difference between the pension costs of, and contributions to, these schemes.

In respect of the defined benefit plans, the amounts recognised in the Group income statement, in administrative expenses, are:

 

     Pension plans                                                      
     UK           US and other          

Post-employment

benefits

          Total  
      2014
$m
     2013
$m
     2012
$m
           2014
$m
     2013
$m
     2012
$m
           2014
$m
     2013
$m
     2012
$m
           2014
$m
     2013
$m
     2012
$m
 
Current service cost              2         5              1         1         1                                           1         3         6   
Past service cost                                           1                                                           1           
Net interest expense      2                 1              3         3         3              1         1         1              6         4         5   
Administration costs      3         1         1                      1         1                                           3         2         2   
Operating profit before exceptional items      5         3         7              4         6         5              1         1         1              10         10         13   
Exceptional items:                                                                                                                           

Settlement cost

     6         147                                                                                6         147           
       11         150         7              4         6         5              1         1         1              16         157         13   

 

 

 

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25. Retirement benefits continued
 

The settlement cost in 2014 results from the partial cash-out of the UK unfunded pension arrangements and comprises transaction and related social security costs of $9m, offset by the $3m difference between the accounting value of the liabilities extinguished and the amount of the committed cash-out payments. In 2014, related cash payments of $53m are included in cash flows relating to exceptional operating items in the Group statement of cash flows.

The settlement cost in 2013 resulted from the buy-in transaction described on the previous page and comprised a past service cost of $5m relating to additional benefits secured by the transaction, the $137m difference between the cost of the insurance policy and the accounting value of the liabilities secured and transaction costs of $5m. As the policy was structured to enable the plan to move to a buy-out and the intention was to proceed on that basis, the buy-in transaction was accounted for as a settlement with the loss arising recorded in the income statement. The full buy-out was completed on 31 October 2014.

Re-measurement gains and losses recognised in the Group statement of comprehensive income are:

 

     2014     2013     2012  
      Plan
    assets
$m
    Plan
obligations
$m
    Total
$m
    Plan
    assets
$m
    Plan
obligations
$m
    Total
$m
    Plan
assets
$m
    Plan
obligations
$m
    Total
$m
 
Return on plan assets (excluding amounts included in interest)      88               88        2               2        22               22   
Actuarial gains and losses arising from changes in:                                                                         

Demographic assumptions

            (3     (3            12        12               (6     (6

Financial assumptions

            (113     (113            (57     (57            (25     (25

Experience adjustments

            4        4               (6     (6            17        17   
Change in asset restriction (excluding amounts included in interest)      (1            (1     89               89        (23            (23
Other comprehensive income      87        (112     (25     91        (51     40        (1     (14     (15
The assets and liabilities of the schemes and the amounts recognised in the Group statement of financial position are:   
           Pension plans                          
           UK     US and other     Post-employment
benefits
    Total  
            

2014

$m

          2013
$m
          2014
$m
   

2013

$m

   

      2014

$m

    2013
$m
   

2014

$m

          2013
$m
 
Retirement benefit assets                                                                         
Fair value of plan assets              8        582        16        17                      24        599   
Present value of benefit obligations                     (577     (13     (13                   (13     (590
Surplus in schemes              8        5        3        4                      11        9   
Asset restriction              (3     (2                                 (3     (2
Total retirement benefit assets              5        3        3        4                      8        7   
Retirement benefit obligations                                                                         
Fair value of plan assets                            151        142                      151        142   
Present value of benefit obligations              (31     (82     (242     (220     (24     (24     (297     (326
Total retirement benefit obligations              (31     (82     (91     (78     (24     (24     (146     (184
                                                                          
Total fair value of plan assets              8        582        167        159                      175        741   
Total present value of benefit obligations              (31     (659     (255     (233     (24     (24     (310     (916

The ‘US and other’ surplus of $3m (2013 $4m) relates to a defined benefit pension scheme in Hong Kong. Included within the ‘US and other’ deficit is $1m (2013 $2m) relating to a defined benefit pension plan in the Netherlands.

 

 

 

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Note s to the Gro up Fin ancia l State ments continued

 

25. Retirement benefits continued

 

Assumptions

The principal financial assumptions used by the actuaries to determine the benefit obligations are:

 

     Pension plans                       
     UK      US     

Post-employment

benefits

 
     

      2014

%

    

2013

%

    

2012

%

    

      2014

%

    

2013

%

    

2012

%

    

    2014

%

    

2013

%

    

2012

%

 
Wages and salaries increases                      4.5                                                 4.0   
Pensions increases      3.3         3.6         3.0                                                   
Discount rate      3.7         4.6         4.5         3.6         4.5         3.5         3.7         4.6         3.5   
Inflation rate      3.3         3.6         3.0                                                   
Healthcare cost trend rate assumed for next year:                                                                                 

Pre 65 (ultimate rate reached in 2021)

                                                           8.0         8.5         9.0   

Post 65 (ultimate rate reached in 2024)

                                                           12.5         17.5         11.8   
Ultimate rate that the cost trend rate trends to                                                            5.0         5.2         5.0   

Mortality is the most significant demographic assumption. The current assumptions for the UK are based on the S1NA tables with long cohort projections and a 1.25% per annum underpin to future mortality improvements with age rated down by three years for pensioners and non-pensioners. In the US, the current assumptions are based on the RP-2014 Employee/Healthy Annuitant Generationally Projected with Scale MP-2014 mortality tables.

In both territories, the assumptions have been revised during the year to reflect increased life expectancy at retirement age as follows:

 

          Pension plans  
          UK      US  
            2014
      Years
     2013
Years
     2012
Years
     2014
    Years
     2013
Years
     2012
Years
 
Current pensioners at 65 1    – male      26         24         24         22         21         19   
     – female      29         27         27         24         23         21   
Future pensioners at 65 2    – male      28         27         27         23         22         21   
     – female      31         30         30         25         25         22   

 

1   Relates to assumptions based on longevity (in years) following retirement at the end of the reporting period.
2   Relates to assumptions based on longevity (in years) relating to an employee retiring in 2034.

The assumptions allow for expected increases in longevity.

Sensitivities

Changes in assumptions used for determining retirement benefit costs and obligations may have a material impact on the income statement and the statement of financial position. The key assumptions are the pension increases, discount rate, the rate of inflation and the assumed mortality rate. The sensitivity analysis below is based on extrapolating reasonable changes in these assumptions, using year-end conditions and assuming no interdependency between the assumptions.

 

          UK     US  
           

Higher/

(lower)

    pension cost

$m

    

Increase/

(decrease)

in liabilities

$m

   

Higher/

(lower)

pension cost

$m

    

Increase/

(decrease)

in liabilities

$m

 
Pension increases    – 0.25% decrease              (1.1               
     – 0.25% increase              1.2                  
Discount rate    – 0.25% decrease              1.6                7.4   
     – 0.25% increase              (1.6             (7.0
Inflation rate    – 0.25% increase              1.2                  
     – 0.25% decrease              (1.1               
Mortality rate    – one year increase              0.6        0.3         9.4   

A one percentage point increase in assumed healthcare costs trend rate would increase the accumulated post-employment benefit obligations as at 31 December 2014 by $2.4m (2013 $2.8m, 2012 $2.6m) and a one percentage point decrease would decrease the obligations by $2.2m (2013 $2.3m, 2012 $2.3m).

 

 

 

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25. Retirement benefits continued
 
     Pension plans                              
     UK      US and other      Post-employment
benefits
     Total  
Movement in benefit obligation    2014
$m
     2013
$m
    

    2014

$m

     2013
$m
    

    2014

$m

    

2013

$m

     2014
$m
     2013
$m
 
Benefit obligation at 1 January      659         569         233         247         24         25         916         841   
Current service cost              2         1         1                         1         3   
Past service cost              5                 1                                 6   
Interest expense      24         26         10         7         1         1         35         34   
Settlement gain before costs      (3                                              (3        
Benefits paid      (18      (22      (14      (13      (1      (1      (33      (36
Committed cash-out payments      (57                                              (57        
Re-measurement losses/(gains)      86         62         26         (10              (1      112         51   
Derecognised on buy-out      (640                                              (640        
Exchange adjustments      (20      17         (1                              (21      17   
Benefit obligation at 31 December      31         659         255         233         24         24         310         916   
                                                                         
Comprising:                                                                        

Funded plans

             577         199         182                         199         759   

Unfunded plans

     31         82         56         51         24         24         111         157   
       31         659         255         233         24         24         310         916   
     Pension plans                              
     UK      US and other      Post-employment
benefits
     Total  
Movement in plan assets          2014
$m
     2013
$m
     2014
$m
     2013
$m
     2014
$m
     2013
$m
     2014
$m
     2013
$m
 
Fair value of plan assets at 1 January      582         695         159         149                         741         844   
Company contributions      3         20         11         10         1         1         15         31   
Benefits paid      (18      (22      (14      (13      (1      (1      (33      (36
Interest income      22         29         7         4                         29         33   
Settlement loss              (137                                              (137
Re-measurement gains/(losses)      83         (7      5         9                         88         2   
Administration costs      (3      (1              (1                      (3      (2
Derecognised on buy-out      (640                                              (640        
Exchange adjustments      (21      5         (1      1                         (22      6   
Fair value of plan assets at 31 December      8         582         167         159                         175         741   

Company contributions are expected to be $6m in 2015.

The plan assets are measured at fair value and comprise the following:

 

     UK      US and other  
            2014
$m
     2013
$m
     2014
$m
     2013
$m
 
Investments quoted in active markets                                    
Investment funds:                                    

Global equities

                     21         33   

Corporate bonds

                     131         107   

Property

                     2         4   
Unquoted investments                                    
Qualifying insurance policy              577         11         10   
Cash and other      8         5         2         5   
       8         582         167         159   

In accordance with accounting standards, the fair value of a qualifying insurance policy is deemed to be the present value of the pension obligations secured by that policy.

 

 

 

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Note s to the Gro up Fin ancia l State ments continued

 

25. Retirement benefits continued

 
     Pension plans                             
     UK     US and other         Post-employment
benefits
     Total  
Movement in asset restriction          2014
$m
     2013
$m
              2014
$m
     2013
$m
    2014
$m
     2013
$m
           2014
$m
     2013
$m
 
Balance at 1 January      2         91                                       2         91   
Interest expense              3                                               3   
Re-measurement gains/(losses)      1         (89                                    1         (89
Exchange adjustments              (3                                            (3
Balance at 31 December      3         2                                       3         2   
The asset restriction relates to tax that would be deducted at source in respect of a refund of a surplus taking into account amounts payable under funding commitments. As a result of the buy-in transaction, substantially all of the asset restriction was released through other comprehensive income during 2013.     
     Pension plans                             
     UK     US and other     Post-employment
benefits
     Total  
Estimated future benefit payments          2014
$m
     2013
$m
   

2014

$m

     2013
$m
    2014
$m
     2013
$m
     2014
$m
     2013
$m
 
Within one year              19        15         14        1         1         16         34   
Between one and five years      2         84        58         57        5         5         65         146   
After five years      11         123        78         76        7         7         96         206   
       13         226        151         147        13         13         177         386   
Average duration of obligation (years)      22.0         21.6        11.9         11.8        11.9         11.3                     

26. Share-based payments

 

Annual Performance Plan

Under the IHG Annual Performance Plan (APP), formerly the Annual Bonus Plan (ABP), eligible employees (including Executive Directors) can receive all or part of their bonus in the form of deferred shares. The deferred shares are released on the third anniversary of the award date. Under the terms of awards that are referred to in this note, a fixed percentage of the award is made in the form of shares with no voluntary deferral and no matching shares. Awards under the APP are conditional on the participants remaining in the employment of a participating company or leaving for a qualifying reason as per the plan rules. The award of deferred shares under the APP is at the discretion of the Remuneration Committee.

The number of shares is calculated by dividing a specific percentage of the participant’s annual performance-related award by the middle market quoted prices on the three consecutive dealing days immediately preceding the date of grant. A number of executives participated in the APP during the year and conditional rights over 305,345 (2013 318,911, 2012 340,924) shares were awarded to participants. New plan rules for the APP were approved by shareholders at the Annual General Meeting on 2 May 2014, and will apply to awards made in respect of the 2015 subsequent and financial years. The new plan rules contain substantially the same terms as the existing plan rules.

Long Term Incentive Plan

The Long Term Incentive Plan (LTIP) allows Executive Directors and eligible employees to receive share awards, subject to the achievement of performance conditions, set by the Remuneration Committee, which are normally measured over a three-year period. More detailed information on performance measures is shown in the Directors’ Remuneration Report on pages 76 to 91. Awards are normally made annually and, except in exceptional circumstances, will not exceed three times salary for Executive Directors and four times salary in the case of other eligible employees. During the year, conditional rights over 2,171,390 (2013 2,227,293, 2012 2,698,714) shares were awarded to employees under the plan. The plan provides for the grant of ‘nil cost options’ to participants as an alternative to conditional share awards. New plan rules for the LTIP were approved by shareholders at the Annual General Meeting on 2 May 2014, and will apply to awards made in respect of the 2015-17 and subsequent LTIP cycles. The new plan rules contain substantially the same terms as the existing rules; one minor change is to limit the maximum award to three times salary for all employees.

Executive Share Option Plan

The plan was not operated during 2014 and no options were granted in the year under the plan, neither will any further options be granted under the plan. All options have now been exercised.

 

 

 

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26. Share-based payments continued
 

The Group recognised a cost of $21m (2013 $22m, 2012 $22m) in operating profit related to equity-settled share-based payment transactions during the year, net of amounts borne by the System Fund.

The aggregate consideration in respect of ordinary shares issued under option schemes during the year was $nil (2013 $5m, 2012 $10m).

The following table sets forth awards and options granted during 2014:

 

      APP      LTIP  
Number of shares awarded in 2014      305,345         2,171,390   
The Group uses separate option pricing models and assumptions depending on the plan. The following tables set out information about awards granted in 2014, 2013 and 2012:    
      APP      LTIP  
2014                  
Valuation model    Binomial      Monte Carlo
Simulation and
Binomial
 
                   
Weighted average share price      1,925.0p         1,916.0p   
Expected dividend yield      n/a         2.55%   
Risk-free interest rate               1.29%   
Volatility 1               28%   
Term (years)      3.0         3.0   
      APP      LTIP  
2013                  
Valuation model    Binomial      Monte Carlo
Simulation and
Binomial
 
                   
Weighted average share price      1,928.0p         1,913.0p   
Expected dividend yield      2.63%         2.59%   
Risk-free interest rate               0.27%   
Volatility 1               28%   
Term (years)      3.0         3.0   
      ABP      LTIP  
2012                  
Valuation model    Binomial      Monte Carlo
Simulation and
Binomial
 
                   
Weighted average share price      1,440.0p         1,440.0p   
Expected dividend yield      2.95%         2.99%   
Risk-free interest rate               0.59%   
Volatility 1               31%   
Term (years)      3.0         3.0   

 

1   The expected volatility was determined by calculating the historical volatility of the Company’s share price corresponding to the expected life of the share award.

 

 

 

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Note s to the Gro up Fin ancia l State ments continued

 

26. Share-based payments continued

 

Movements in the awards and options outstanding under the schemes are as follows:

 

      APP
Number of
shares
thousands
           LTIP
Number of
shares
thousands
 
Outstanding at 1 January 2012      950                9,030   
Granted      341                2,699   
Vested      (643             (2,621
Share capital consolidation      (18               
Lapsed or cancelled      (8             (1,948
Outstanding at 31 December 2012      622                7,160   
Granted      319                2,227   
Vested      (72             (2,206
Lapsed or cancelled      (29             (406
Outstanding at 31 December 2013      840                6,775   
Granted      305                2,171   
Vested      (310             (1,447
Share capital consolidation      (38               
Lapsed or cancelled      (29             (1,379
Outstanding at 31 December 2014      768                6,120   

Fair value of awards granted during the year

      
2014      3,134.6¢                1,202.1¢   
2013      2,873.4¢                1,127.9¢   
2012      2,199.8¢                792.5¢   

Weighted average remaining contract life (years)

      
At 31 December 2014      1.1                1.1   
At 31 December 2013      1.1                1.1   
At 31 December 2012      1.6                1.2   

The above awards do not vest until the performance and service conditions have been met.

  

      Number of
shares
thousands
    Range of
option prices
pence
    Weighted
average
option price
pence
 
Executive Share Option Plan                         
Outstanding at 1 January 2012      2,170        308.5–619.8        497.0   
Exercised      (1,365     308.5–619.8        492.8   
Lapsed or cancelled      (107     434.2        434.2   
Outstanding at 31 December 2012      698        438.0–619.8        514.8   
Exercised      (638     438.0–619.8        512.3   
Outstanding at 31 December 2013      60        494.2–619.8        541.3   
Exercised      (60     494.2–619.8        541.3   
Outstanding at 31 December 2014             n/a          

Options exercisable

      
At 31 December 2014             n/a        n/a   
At 31 December 2013      60        494.2–619.8        541.3   
At 31 December 2012      698        438.0–619.8        514.8   

The weighted average share price at the date of exercise for share options vested during the year was 1,966.5p. The closing share price on 31 December 2014 was 2,595.0p and the range during the year was 1,866.0p to 2,710.0p per share.

 

 

 

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27. Equity

 

 

Equity share capital    Number of
shares
millions
    Nominal
value
$m
    Share
premium
$m
    Equity
share
capital
$m
 
Allotted, called up and fully paid                                 
At 1 January 2012 (ordinary shares of 13  29 47 p each)      290        61        101        162   
Share capital consolidation      (19                     
Issued on exercise of share options      1        1        9        10   
Repurchased and cancelled under repurchase programme      (4     (1            (1
Exchange adjustments             2        6        8   
At 31 December 2012 (ordinary shares of 14  194 329 p each)      268        63        116        179   
Issued on exercise of share options      1               5        5   
Exchange adjustments             2        3        5   
At 31 December 2013 (ordinary shares of 14  194 329 p each)      269        65        124        189   
Share capital consolidation      (20                     
Repurchased and cancelled under repurchase programme      (1                     
Exchange adjustments             (4     (7     (11
At 31 December 2014 (ordinary shares of 15  265 329 p each)      248        61        117        178   

The Company was incorporated and registered in England and Wales with registered number 5134420 on 21 May 2004 as a limited company under the Companies Act 1985 with the name Hackremco (No. 2154) Limited. On 24 March 2005 Hackremco (No. 2154) Limited changed its name to New InterContinental Hotels Group Limited. On 27 April 2005 New InterContinental Hotels Group Limited re-registered as a public limited company and changed its name to New InterContinental Hotels Group PLC. On 27 June 2005 New InterContinental Hotels Group PLC changed its name to InterContinental Hotels Group PLC.

On 7 August 2012, the Company announced a $1bn return of funds to shareholders comprising a $500m special dividend with share consolidation and a $500m share repurchase programme. The share consolidation was approved on 8 October 2012 at a General Meeting (GM) of the Company and became effective on 9 October 2012 on the basis of 14 new ordinary shares of 14  194 329 p each for every 15 existing ordinary shares of 13  29 47 p each. The special dividend of 172.0¢ per share was paid to shareholders on 22 October 2012 at a total cost of $505m. Under the authority granted by shareholders at the GM on 8 October 2012, the share repurchase programme commenced. In the year to 31 December 2014, 3.4m (2013 9.8m, 2012 4.1m) shares were repurchased for a consideration of $110m (2013 $283m, 2012 $107m), increasing the total amount repurchased to $500m and completing the programme. Of the 3.4m (2013 9.8m, 2012 4.1m) shares repurchased in 2014, 2.7m (2013 9.8m, 2012 nil) are held as treasury shares and 0.7m (2013 nil, 2012 4.1m) were cancelled. The cost of treasury shares has been deducted from retained earnings.

The authority given to the Company at the GM held on 30 June 2014 to purchase its own shares was still valid at 31 December 2014. A resolution to renew the authority will be put to shareholders at the Annual General Meeting on 8 May 2015.

On 6 August 2013, the Company announced a special dividend of 133.0¢ per share amounting to $355m which was paid to shareholders on 4 October 2013.

On 2 May 2014, the Company announced a $750m return to shareholders by way of a special dividend and share consolidation. On 30 June 2014, shareholders approved the share consolidation at a GM of the Company on the basis of 12 new ordinary shares of 15  265 329 p per share for every 13 existing ordinary shares of 14  194 329 p each, which became effective on 1 July 2014. The special dividend of 293.0¢ per share was paid to shareholders on 14 July 2014, at a total cost of $763m.

As a result of the 2014 share consolidation, the number of shares held in treasury reduced from 12.5m to 11.5m.

The balance classified as equity share capital includes the total net proceeds (both nominal value and share premium) on issue of the Company’s equity share capital, comprising 15  265 329 p shares. The share premium reserve represents the amount of proceeds received for shares in excess of their nominal value.

The Company no longer has an authorised share capital.

 

 

 

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Note s to the Gro up Fin ancia l State ments continued

 

27. Equity continued

 

The nature and purpose of the other reserves shown in the Group statement of changes in equity on pages 102 to 104 of the Financial Statements is as follows:

Capital redemption reserve

This reserve maintains the nominal value of the equity share capital of the Company when shares are repurchased or cancelled.

Shares held by employee share trusts

Comprises $34.5m (2013 $37.6m, 2012 $48.0m) in respect of 0.9m (2013 1.2m, 2012 1.8m) InterContinental Hotels Group PLC ordinary shares held by employee share trusts, with a market value at 31 December 2014 of $38.2m (2013 $39.8m, 2012 $50.1m).

Other reserves

Comprises the merger and revaluation reserves previously recognised under UK GAAP, together with the reserve arising as a consequence of the Group’s capital reorganisation in June 2005. Following the change in presentational currency to the US dollar in 2008 (see page 107), this reserve also includes exchange differences arising on the retranslation to period-end exchange rates of equity share capital, the capital redemption reserve and shares held by employee share trusts.

Unrealised gains and losses reserve

This reserve records movements in the fair value of available-for-sale financial assets and the effective portion of the cumulative net change in the fair value of the cash flow hedging instruments related to hedged transactions that have not yet occurred.

Currency translation reserve

This reserve records the movement in exchange differences arising from the translation of foreign operations and exchange differences on foreign currency borrowings and derivative instruments that provide a hedge against net investments in foreign operations. On adoption of IFRS, cumulative exchange differences were deemed to be $nil as permitted by IFRS 1.

The fair value of derivative instruments designated as hedges of net investments in foreign operations outstanding at 31 December 2014 was a $2m net asset (2013 $10m net liability, 2012 $17m net liability).

The currency translation reserve includes a cumulative loss of $3m relating to assets classified as held for sale.

Treasury shares

At 31 December 2014, 11.5m shares (2013 9.8m, 2012 nil) with a nominal value of $2.8m (2013 $2.4m, 2012 $nil) were held as treasury shares at cost and deducted from retained earnings.

Non-controlling interest

A non-controlling interest is equity in a subsidiary of the Group not attributable, directly or indirectly, to the Group. Non-controlling interests are not material to the Group.

 

 

 

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28. Operating leases

 

During the year ended 31 December 2014, $72m (2013 $67m, 2012 $64m) was recognised as an expense in the Group income statement in respect of operating leases, net of amounts borne directly by the System Fund. The expense includes contingent rents of $27m (2013 $24m, 2012 $19m). $4m (2013 $4m, 2012 $4m) was recognised as income from sub-leases.

Future minimum lease payments under non-cancellable operating leases are as follows:

 

      2014
$m
     2013
$m
 
Due within one year      40         42   
One to two years      34         33   
Two to three years      28         29   
Three to four years      27         23   
Four to five years      20         23   
More than five years      200         202   
       349         352   

In addition, in certain circumstances the Group is committed to making additional lease payments that are contingent on the performance of the hotels that are being leased.

The average remaining term of these leases, which generally contain renewal options, is approximately 17 years (2013 18 years). No material restrictions or guarantees exist in the Group’s lease obligations.

Total future minimum rentals expected to be received under non-cancellable sub-leases are $8m (2013 $10m).

29. Capital and other commitments

 

 

      2014
$m
     2013
$m
 
Contracts placed for expenditure not provided for in the Group Financial Statements:                  

Property, plant and equipment

     70         70   

Intangible assets

     47         13   
       117         83   

The Group has also committed to invest in a number of its associates, with an estimated outstanding commitment of $89m at 31 December 2014 (2013 $20m) based on current forecasts.

30. Contingencies and guarantees

 

At 31 December 2014, the Group had no contingent liabilities (2013 $nil).

In limited cases, the Group may provide performance guarantees to third-party hotel owners to secure management contracts. At 31 December 2014, the amount provided in the Financial Statements was $2m (2013 $6m) and the maximum unprovided exposure under such guarantees was $29m (2013 $48m).

At 31 December 2014, the Group had outstanding letters of credit of $40m (2013 $41m) mainly relating to self insurance programmes.

The Group may guarantee loans made to facilitate third-party ownership of hotels in which the Group has an equity interest. At 31 December 2014, there were guarantees of $20m in place (2013 $20m).

From time to time, the Group is subject to legal proceedings the ultimate outcome of each being always subject to many uncertainties inherent in litigation. In particular, the Group is currently subject to a claim by Pan American Life Insurance Company, a Competition and Markets Authority enquiry in the UK and a class action lawsuit in the US (see ‘Legal proceedings’ on page 170). The Group has also given warranties in respect of the disposal of certain of its former subsidiaries. It is the view of the Directors that, other than to the extent that liabilities have been provided for in these Financial Statements, it is not possible to quantify any loss to which these proceedings or claims under these warranties may give rise, however, as at the date of reporting, the Group does not believe that the outcome of these matters will have a material effect on the Group’s financial position.

 

 

 

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Note s to the Gro up Fin ancia l State ments continued

 

31. Related party disclosures

 

 

      2014
$m
     2013
$m
     2012
$m
 
Total compensation of key management personnel ¹                           
Short-term employment benefits      21.5         20.7         20.0   
Post-employment benefits      0.7         0.8         0.8   
Termination benefits                      0.6   
Equity compensation benefits      7.9         8.1         8.6   
       30.1         29.6         30.0   

 

1   Excludes ICETUS cash-out payment of £9.4m (see Directors’ Remuneration Report, page 85).

There were no other transactions with key management personnel during the years ended 31 December 2014, 2013 or 2012.

Key management personnel comprises the Board and Executive Committee.

Related party disclosures for associates and joint ventures are as follows:

 

     Associates          Joint ventures          Total  
      2014
$m
     2013
$m
     2012
$m
          2014
$m
     2013
$m
     2012
$m
          2014
$m
     2013
$m
     2012
$m
 
Revenue from associates and joint ventures      4         4         5                                         4         4         5   
Loans to associates      3                                                         3                   
Other amounts owed by associates and joint ventures      11         2         2                                         11         2         2   

In addition, loans both to and from the Barclay associate of $237m are offset in accordance with the provisions of IAS 32 and presented net in the Group statement of financial position. Interest payable and receivable under the loans is equivalent (average interest rate of 1.8% in 2014) and presented net in the Group income statement.

32. System Fund

 

The Group operates a System Fund (the Fund) to collect and administer assessments and contributions from hotel owners for specific use in marketing, the IHG Rewards Club loyalty programme and the global reservation system. The Fund and loyalty programme are accounted for in accordance with the accounting policies set out on page 112 of the Financial Statements.

The following information is relevant to the operation of the Fund:

 

      2014
$m
     2013
$m
     2012
$m
 
Income 1 :                           

Assessment fees and contributions received from hotels

     1,271         1,154         1,106   

Proceeds from sale of IHG Rewards Club points

     196         153         144   
Key elements of expenditure 1 :                           

Marketing

     267         245         250   

IHG Rewards Club

     296         219         250   

Payroll costs

     267         239         221   
Net (deficit)/surplus for the year 1      (18      35         12   
Interest payable to the Fund      2         2         2   

 

1   Not included in the Group income statement in accordance with the Group’s accounting policies.

The payroll costs above relate to 4,975 (2013 4,615, 2012 4,431) employees whose costs are borne by the Fund.

The following liabilities relating to the Fund are included in the Group statement of financial position:

 

      2014
$m
     2013
$m
      2012
$m
 
Cumulative short-term net surplus      68         86         51   
Loyalty programme liability      725         649         623   
       793         735         674   

The net change in the loyalty programme liability and Fund surplus contributed an inflow of $58m (2013 $61m, 2012 $57m) to the Group’s cash flow from operations.

 

 

 

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33. Events after the reporting period

 

On 16 January 2015, the Group completed the acquisition of Kimpton Hotel & Restaurant Group, LLC (‘Kimpton’), an unlisted company based in the US, for $430m paid in cash. Kimpton is the world’s largest independent boutique hotel operator which, together with IHG’s Hotel Indigo and EVEN brands, creates a leading boutique and lifestyle hotel business.

The assets and liabilities acquired largely comprise intangible assets, being the Kimpton brand and management contracts, deferred tax assets and goodwill. Due to the close proximity of the acquisition date to the date of these financial statements, the initial accounting for the business combination is incomplete and the Group is unable to provide a quantification of the fair values of these assets. The fair value exercise is ongoing and it is expected that the Group will include an acquisition balance sheet with its interim results for 2015.

Acquisition transaction costs of $7m were incurred in the year to 31 December 2014 (see note 5).

If the acquisition had taken place on 1 January 2014, it is estimated that Group revenue and Group EBITDA for the year ended 31 December 2014 would have been $37m and $20m higher respectively.

34. Principal operating subsidiary undertakings

 

InterContinental Hotels Group PLC was the beneficial owner of all of the equity share capital, indirectly through subsidiary undertakings, of the following companies during the year:

Six Continents Limited 1

IHG Hotels Limited 1

Six Continents Hotels, Inc. 2

Inter-Continental Hotels Corporation 2

InterContinental Hotels Group Resources, Inc. 2

InterContinental Hong Kong Limited 3

Société Nouvelle du Grand Hotel SA 4

The companies listed above include those which principally affect the amount of profit and assets of the Group.

1   Incorporated in Great Britain and registered in England and Wales.
2   Incorporated in the US.
3   Incorporated in Hong Kong.
4   Incorporated in France.

 

 

 

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Parent Company Fin ancia l State ments

 

 

 

 

Stay

 

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‘Guest Journey’ – Step four

•  The Stay phase of the ‘Guest Journey’ is where we welcome guests to our hotels and deliver our brand promise through our talented people.

 

•  This step includes the arrival and departure of our guests, as well as the stay in the hotel room itself; its public areas; food and beverage; and guest services.

Page 154: Crowne Plaza London – The City, UK

Page 155: Hotel Indigo Paris – Opera, France

 

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Ad diti ona l Info rm ati on

 

 

162 Group information
162

History and developments

162

Risk factors

166

Executive Committee members’ shareholdings

166

Description of securities other than equity securities

167

Articles of Association

169

Working Time Regulations 1998

169

Material contracts

170

Legal proceedings

171 Shareholder information
171

Exchange controls and restrictions on payment of dividends

171

Taxation

173

Disclosure controls and procedures

173

Summary of significant corporate governance differences from NYSE listing standards

174

Selected five-year consolidated financial information

176

Return of funds

176

Purchases of equity securities by the Company and affiliated purchasers

177

Share price information

177

Dividend history

178

Shareholder profiles

179 Useful information
179

Investor information

180

Financial calendar

180

Contacts

181 Exhibits
182 Form 20-F cross-reference guide
184 Glossary
186 Forward-looking statements

 

Share

 

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‘Guest Journey’ – Step five

The Share phase of the ‘Guest Journey’ is when our guests share feedback about their experience, for example via social networks and directly with IHG and our hotels.

 

Page 160: Cypress, A Kimpton Hotel, Cupertino, California, US

Page 161: Hotel Indigo New Orleans Garden District, Louisiana, US

 

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Gr ou p i nfor ma ti on

History and developments

 

The Company was incorporated and registered in England and Wales with registered number 5134420 on 21 May 2004 as a limited company under the Companies Act 1985 with the name Hackremco (No. 2154) Limited. In 2004/05, as part of a scheme of arrangement to facilitate the return of capital to shareholders, the following structural changes were made to the Group: (i) on 24 March 2005, Hackremco (No. 2154) Limited changed its name to New InterContinental Hotels Group Limited; (ii) on 27 April 2005, New InterContinental Hotels Group Limited re-registered as a public limited company and changed its name to New InterContinental Hotels Group PLC; and (iii) on 27 June 2005, New InterContinental Hotels Group PLC changed its name to InterContinental Hotels Group PLC and became the holding company of the Group.

The Group, formerly known as Bass and, more recently, Six Continents, was historically a conglomerate operating as, among other things, a brewer, soft drinks manufacturer, hotelier, leisure operator, and restaurant, pub and bar owner. In the last several years, the Group has undergone a major transformation in its operations and organisation, as a result of the separation (as discussed below) and a number of significant disposals during this period, which has narrowed the scope of its business.

On 15 April 2003, following shareholder and regulatory approval, Six Continents PLC (as it then was) separated into two new listed groups, InterContinental Hotels Group PLC (as it then was), comprising the hotels and soft drinks businesses, and Mitchells & Butlers plc, comprising the retail and standard commercial property developments business.

The Group disposed of its interests in the soft drinks business by way of an initial public offering of Britvic (Britannia Soft Drinks Limited for the period up to 18 November 2005, and thereafter, Britannia SD Holdings Limited (renamed Britvic plc on 21 November 2005), which became the holding company of the Britvic Group on 18 November 2005), a manufacturer and distributor of soft drinks in the UK, in December 2005.

Following separation, the Group has undertaken an asset-disposal programme, realising, by the end of 2014, proceeds of $6.0 billion. This programme has significantly reduced the capital requirements of the Group whilst largely retaining the hotels in the IHG System.

A small number of hotels have been sold since the end of 2013, the most significant of which are set out below.

Recent acquisitions and divestitures

  The Group disposed of InterContinental Mark Hopkins San Francisco on 27 March 2014 for $120 million;

 

  the Group completed its disposal of 80 per cent of its interest in InterContinental New York Barclay on 31 March 2014 for $274 million (the Group continues to hold the remaining 20 per cent interest by way of a joint venture);

 

  the Group agreed to sell its 100 per cent interest in InterContinental Paris – Le Grand on 7 December 2014 for 330 million;

 

  the Group agreed to acquire Kimpton Hotels & Restaurants for $430 million on 15 December 2014, and the transaction was completed on 16 January 2015; and

 

  the Group also divested a number of investments for total proceeds of $16 million in 2014.

Capital expenditure

  Capital expenditure in 2014 totalled $271 million compared with $269 million in 2013 and $133 million in 2012;

 

  at 31 December 2014, capital committed, being contracts placed for expenditure on property, plant and equipment, and intangible assets not provided for in the Group Financial Statements, totalled $117 million; and

 

  the Group has also committed to invest in a number of its associates, with an estimated outstanding commitment of $89 million, based on current forecasts.
 

 

 

Risk factors

 

The Group is subject to a variety of inherent risks that may have an adverse impact on its business operations, financial condition, turnover, profits, brands and reputation. This section describes the main risks that could materially affect the Group’s business. The risks below are not the only ones that the Group faces. Some risks are not yet known to the Group and some that the Group does not currently believe to be material could later turn out to be material.

 

The risk factors below are listed in accordance with the strategic, tactical and operational risk framework explained on page 27. Although the Group has classified each risk under a single aspect of the framework, some risks relate to multiple aspects and accordingly should be read in the context of the whole framework. The risk factors should also be considered in connection with any financial and forward-looking information in this Annual Report and Form 20-F and the cautionary statements regarding forward-looking statements on page 186.

 

 

 

Strategic risks

 

The Group is exposed to the risks of political and economic developments

The Group is exposed to political, economic and financial market developments such as recession, inflation and availability of credit and currency fluctuations that could lower revenues and reduce income. The outlook for 2015 may worsen due to uncertainty in the Eurozone, impact of declining commodity prices on economies dependent on such exports and continued unrest in Russia, Ukraine, and parts of the Middle East and Africa. The interconnected nature of economies suggests any of these or other events could trigger a recession that reduces leisure and business travel to and from affected countries and adversely affects room rates and/or occupancy levels and other income-generating activities. This may result in deterioration of results of operations and potentially reduce the value of properties in affected economies. The owners or potential owners of hotels franchised or managed by the Group face similar risks that could adversely impact their solvency and the Group’s ability

 

 

 

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to retain and secure franchise or management agreements. Specifically, the Group is most exposed to the US market and, increasingly, to Greater China.

 

Accordingly, the Group is particularly susceptible to adverse changes in these economies as well as changes in their currencies. In addition to trading conditions, the economic outlook also affects the availability of capital to current and potential owners, which could impact existing operations and health of the pipeline.

 

The Group is exposed to the risk of events that adversely impact domestic or international travel

The room rates and occupancy levels of the Group could be adversely impacted by events that reduce domestic or international travel, such as actual or threatened acts of terrorism or war, political or civil unrest, epidemics or threats thereof, travel-related accidents, travel-related industrial action, increased transportation and fuel costs, and natural disasters, resulting in reduced worldwide travel or other local factors impacting specific countries, cities or individual hotels. A decrease in the demand for hotel rooms as a result of such events may have an adverse impact on the Group’s operations and financial results. In addition, inadequate planning, preparation, response or recovery in relation to a major incident or crisis may cause loss of life, prevent operational continuity, or result in financial loss and consequently impact the value of the brands and/or the reputation of the Group.

 

The Group is exposed to the risks of the hotel industry supply and demand cycle

The future operating results of the Group could be adversely affected by industry overcapacity (by number of rooms) and weak demand due, in part, to the cyclical nature of the hotel industry, or other differences between planning assumptions and actual operating conditions. These conditions could result in reductions in room rates and occupancy levels, which would adversely impact the financial performance of the Group.

 

The Group is subject to a competitive and changing industry

The Group operates in a competitive industry and must compete effectively against traditional competitors such as other global hotel chains, local hotel companies and independent hotels to win the loyalty of guests, employees and owners. The competitive landscape also includes other types of businesses, such as web-based booking channels (which include online travel agents and intermediaries), and alternative sources of accommodation such as short-term lets of private property. In order to grow and maintain its competitiveness, the Group may consider undertaking strategic transactions, including acquisitions. Failure to compete effectively in traditional and emerging areas of the business could impact the Group’s market share, System size, profitability and relationships with owners and guests.

 

The Group is exposed to risks related to executing and realising benefits from strategic transactions, including acquisitions

The Group announced the acquisition of Kimpton Hotels & Restaurants in December 2014 and may seek to make other strategic transactions, including acquisitions, in the future. The Group may not be able to identify opportunities or complete transactions on commercially reasonable terms or at all and may not realise the anticipated benefits from such transactions.

 

 

 

Strategic transactions come with inherent valuation, financial and commercial risks, and regulatory and insider information risks during the execution of the transactions. In addition, the Group may face unforeseen costs and liabilities, divergence of management attention, as well as longer-term integration and operational risks, which could result in failure to realise benefits, financial losses, fall in employee morale and loss of talent.

 

The Group is dependent upon a wide range of external stakeholders and business partners

The Group is dependent upon the performance, behaviours and reputation of a wide range of business partners and external stakeholders, including, but not limited to, owners, contractors, lenders, suppliers, vendors, joint venture partners, online travel agents, third-party intermediaries and other business partners which may have different ethical values, interests and priorities. Further, the number and complexity of interdependencies with stakeholders is evolving. Breakdowns in relationships, contractual disputes, poor vendor performance, insolvency, stakeholder behaviours or adverse reputations, which may be outside of the Group’s control, could adversely impact on the Group’s performance and competitiveness, delivery of projects, guest experiences or the reputation of the Group or its brands.

 

The Group is exposed to increasing competition from online travel agents and intermediaries

A proportion of the Group’s bookings originate from large multinational, regional and local online travel agents and intermediaries with which the Group has contractual arrangements and to which it pays commissions. These websites offer a wide breadth of products, often across multiple brands, have growing booking and review capabilities, and may create the perception that they offer the lowest prices. Some of these online travel agents and intermediaries have strong marketing budgets and aim to create brand awareness and brand loyalty among consumers and may seek to commoditise hotel brands through price and attribute comparison. Further, if these companies continue to gain market share, they will impact the Group’s profitability, undermine the Group’s own booking channels and value to its hotel owners and may be able to increase commission rates and negotiate other favourable contract terms.

 

Tactical risks

 

The Group is exposed to a variety of risks related to identifying, securing and retaining franchise and management agreements

The Group’s growth strategy depends on its success in identifying, securing and retaining franchise and management agreements. This is an inherent risk for the hotel industry and franchise business model. Competition with other hotel companies may generally reduce the number of suitable franchise, management and investment opportunities offered to the Group and increase the bargaining position of property owners seeking to become a franchisee or engage a manager. The terms of new franchise or management agreements may not be as favourable as current arrangements; the Group may not be able to renew existing arrangements on similarly favourable terms or at all.

     

 

 

 

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There can also be no assurance that the Group will be able to identify, retain or add franchisees to the IHG System or to secure management contracts. For example, the availability of suitable sites, market saturation, planning and other local regulations or the availability and affordability of finance may all restrict the supply of suitable hotel development opportunities under franchise or management agreements. In connection with entering into franchise or management agreements, the Group may be required to make investments in, or guarantee the obligations of, third parties or guarantee minimum income to third parties. There are also risks that significant franchisees or groups of franchisees may have interests that conflict, or are not aligned, with those of the Group including, for example, the unwillingness of franchisees to support brand improvement initiatives. This could result in franchisees prematurely terminating contracts which would adversely impact the overall IHG System size and the Group’s financial performance.

 

The Group is exposed to inherent risks in relation to changing technology and systems

As the use of internet and mobile technology grows and customer needs evolve at pace, the Group may find that its evolving technology capability is not sufficient and may have to make substantial additional investments in new technologies or systems to remain competitive. Failure to keep pace with developments in technologies or systems may put the Group at a competitive disadvantage. In addition, the technologies or systems that the Group chooses to deploy may not be commercially successful or the technology or system strategy may not be sufficiently aligned with the needs of the business. As a result, this could adversely affect guest experiences, and the Group may lose customers, fail to attract new customers, incur substantial costs or face other losses. This could further impact the Group’s reputation in regards to innovation.

 

The Group is exposed to a variety of risks associated with its financial stability and ability to borrow and satisfy debt covenants

While the strategy of the Group is to extend the hotel network through activities that do not involve significant amounts of its own capital, the Group does require capital to fund some development opportunities, strategic acquisitions and to maintain and improve owned hotels. The Group is reliant upon having financial strength and access to borrowing facilities to meet these expected capital requirements. The majority of the Group’s borrowing facilities are only available if the financial covenants in the facilities are complied with. Non-compliance with covenants could result in the Group’s lenders demanding repayment of the funds advanced. If the Group’s financial performance does not meet market expectations, it may not be able to refinance existing facilities on terms considered favourable.

 

The Group is exposed to the risk of litigation

Certain companies in the Group are the subject of various claims and proceedings. The ultimate outcome of these matters is subject to many uncertainties, including future events and uncertainties inherent in litigation. In addition, the Group could be at risk of litigation claims made by many parties, including but not limited to: guests, customers, joint-venture partners, suppliers, employees, regulatory authorities, franchisees and/or the owners of the hotels it manages. Claims filed in the US may include requests for punitive damages as well as compensatory damages. Unfavourable outcomes of claims

 

 

 

or proceedings could have a material adverse impact on the Group’s results of operations, cash flow and/or financial position. Exposure to significant litigation or fines may also affect the reputation of the Group and its brands.

 

Operational risks

 

The Group is reliant on the reputation of its brands and exposed to inherent reputation risks, including those associated with intellectual property

Any event that materially damages the reputation of one or more of the Group’s existing or new brands and/or fails to sustain the appeal of the Group’s existing or new brands to its customers and owners may have an adverse impact on the value of that brand and subsequent revenues from that brand or business. In particular, if the Group is unable to create consistent, valued, and quality products and guest experiences across the owned, managed and franchised estates, or if the Group, its franchisees or business partners fail to act responsibly, this could result in an adverse impact on its brand reputation. In addition, the value of the Group’s brands could be influenced by a number of external factors outside the Group’s control, such as, but not limited to, changes in sentiments against global brands, changes in applicable regulations related to the hotel industry or to franchising, successful commoditisation of hotel brands by online travel agents and intermediaries, or changes in owners’ perceptions of the value of the Group. Furthermore, given the importance of brand recognition to the Group’s business, the protection of its intellectual property poses a risk due to the variability and changes in controls, laws and effectiveness of enforcement globally. Any widespread infringement, misappropriation or weakening of the control environment could materially harm the value of the Group’s brands and its ability to develop the business.

 

The Group is reliant upon the resilience of its reservations system and other key technology platforms and is exposed to risks that could cause the failure of these systems

The value of the Group is partly derived from the ability to drive reservations through its reservations system and technology platforms which are highly integrated with internal processes and linked to multiple sales channels, including the Group’s own websites, call centres, hotels, third-party intermediaries and travel agents.

 

Lack of resilience and operational availability of these systems provided by the Group or third-party technology providers could lead to prolonged service disruption and might result in significant business interruption, impact the guest booking experience and subsequently adversely impact Group revenues.

 

The Group is exposed to the risks related to information security and data privacy

The Group is increasingly dependent upon the availability, integrity and confidentiality of information, including, but not limited to, guest and employee credit card, financial and personal data; and business performance, financial reporting and commercial development. The information is sometimes held in different formats such as digital, paper, voice recordings and video and could be stored in many places, including facilities managed by third-party service providers. The threats towards the Group’s information are dynamic, and include

 

 

 

 

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cyber attacks, fraudulent use, loss or misuse by employees and breaches of our vendors’ security arrangements amongst others. The legal and regulatory environment around data privacy and requirements set out by the payment card industry surrounding information security across the many jurisdictions in which the Group operates are constantly evolving. If the Group fails to appropriately protect information and ensure relevant controls are in place to enable the appropriate use and release of information through the appropriate channels in a timely and accurate manner, IHG System performance, guest experience and the reputation of the Group may be adversely affected. This can lead to revenue losses, fines, penalties, legal fees and other additional costs.

 

The Group is exposed to a variety of risks associated with safety, security and crisis management

There is a constant need to protect the safety and security of our guests, employees and assets against natural and man-made threats. These include, but are not limited to, exceptional events such as extreme weather, civil or political unrest, violence and terrorism, serious and organised crime, fraud, employee dishonesty, cyber crime, pandemics, fire and day-to-day accidents, incidents and petty crime which impact the guest or employee experience, could cause loss of life, sickness or injury and result in compensation claims, fines from regulatory bodies, litigation and impact reputation. Serious incidents or a combination of events could escalate into a crisis which, if managed poorly, could further expose the Group and its brands to significant reputational damage.

 

The Group requires the right people, skills and capability to manage growth and change

In order to remain competitive, the Group must employ the right people. This includes hiring and retaining highly skilled employees with particular expertise or leadership capability. The implementation of the Group’s strategic business plans could be undermined by failure to build a resilient corporate culture, failure to recruit or retain key personnel, unexpected loss of key senior employees, failures in the Group’s succession planning and incentive plans, or a failure to invest in the development of key skills.

 

Some of the markets in which the Group operates are experiencing economic growth, and the Group must compete against other companies inside and outside the hospitality industry for suitably qualified or experienced employees. Some emerging markets may not have the required local expertise to operate a hotel and may not be able to attract the right talent. Failure to attract and retain employees may threaten the success of the Group’s operations in these markets. Additionally, unless skills are supported by a sufficient infrastructure to enable knowledge and skills to be passed on, the Group risks losing accumulated knowledge if key employees leave the Group.

 

The Group is required to comply with existing and changing regulations across numerous countries, territories and jurisdictions

Government regulations affect countless aspects of the Group’s business ranging from corporate governance, health and safety, the environment, bribery and corruption, employment law and diversity, disability access, data privacy and information protection, financial, accounting and tax. Regulatory changes may require significant changes in the way the business operates and may inhibit the Group’s strategy, including the markets the

 

 

 

Group operates in, brand protection, and use or transmittal of customer data. If the Group fails to comply with existing or changing regulations, the Group may be subject to fines, prosecution, loss of licence to operate or reputational damage.

 

The Group is exposed to risks related to ethics and responsible business practices

The reputation of the Group and the value of its brands are influenced by a wide variety of factors, including the perception of stakeholder groups such as guests, owners, suppliers and communities in which the Group operates. The social and environmental impacts of its business are under increasing scrutiny, and the Group is exposed to the risk of damage to its reputation if it fails to (or fails to influence its business partners to) undertake responsible practices and engage in ethical behaviour, or fails to comply with relevant regulatory requirements.

 

The Group may face difficulties insuring its business

Historically, the Group has maintained insurance at levels determined to be appropriate in light of the cost of cover and the risk profile of the business. However, forces beyond the Group’s control, including market forces, may limit the scope of coverage the Group can obtain and the Group’s ability to obtain coverage at reasonable rates. Other forces beyond the Group’s control, such as terrorist attacks or natural disasters, may be uninsurable or simply too expensive to insure. Inadequate or insufficient insurance could expose the Group to large claims or could result in the loss of capital invested in properties, as well as the anticipated future revenue from properties, and could leave the Group responsible for guarantees, debt or other financial obligations related to such properties.

 

 

 

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Executive Committee members’ shareholdings

Shares held by Executive Committee members (excluding the Executive Directors) as at 31 December

 

Executive                                                        

Committee

member

   Number of shares held outright      APP deferred share awards      LTIP share awards (unvested)      Total number of shares held  
      2014      2013      2014      2013      2014      2013      2014      2013  
Keith Barr      22,522         24,399         29,829         27,695         106,630         111,079         158,981         163,173   
Angela Brav      32,724         19,286         24,473         22,501         97,462         99,650         154,659         141,437   

Kenneth

Macpherson

     7,472         1,797         8,330         8,421         64,713         41,654         80,515         51,872   
Eric Pearson      1,998         65,293         25,021         22,356         102,940         103,553         129,959         191,202   
Jan Smits      30,476         106,350         32,037         28,738         104,445         116,234         166,958         251,322   
George Turner      0         3,277         30,896         35,893         95,399         106,100         126,295         145,270   

Details of the shares held by the Executive Directors can be found on page 74. These shareholdings include all beneficial interests and those held by Executive Committee members’ spouses and other connected persons.

For further details on the APP deferred share award and for the LTIP share award, see pages 80 and 82 to 85.

 

 

Description of securities other than equity securities

Fees and charges payable to a depositary

 

Category (as defined by SEC)

 

  

Depositary actions

 

  

Associated fee

 

(a) Depositing or substituting the underlying shares

  

Each person to whom ADRs are issued against deposits of shares, including deposits and issuances in respect of:

 

•   share distributions, stock split, rights, merger; and

 

•   exchange of securities or any other transactions or event or other distribution affecting the ADSs or the deposited securities

   $5 for each 100 ADSs (or portion thereof)

 

(b) Receiving or distributing dividends

  

 

Distribution of stock dividends

 

Distribution of cash

  

 

$5 for each 100 ADSs (or portion thereof)

 

$0.02 or less per ADS (or portion thereof)

 

(c)  Selling or exercising rights

  

 

Distribution or sale of securities, the fee being in an amount equal to the fee for the execution and delivery of ADSs which would have been charged as a result of the deposit of such securities

  

$5 for each 100 ADSs (or portion thereof)

 

 

(d) Withdrawing an underlying security

  

 

Acceptance of ADRs surrendered for withdrawal of deposited securities

  

 

$5 for each 100 ADSs (or portion thereof)

 

(e) Transferring, splitting or grouping receipts

  

 

Transfers, combining or grouping of depositary receipts

  

 

$1.50 per ADS

 

(f)   General depositary services, particularly those charged on an annual basis

  

 

Other services performed by the depositary in administering the ADRs

  

 

$0.02 per ADS (or portion thereof) 1 not more than once each calendar year and payable at the sole discretion of the ADR Depositary by billing ADR holders or by deducting such charge from one or more cash dividends or other cash distributions

 

(g) Expenses of the depositary

  

 

Expenses incurred on behalf of ADR holders in connection with:

 

•   compliance with foreign exchange control regulations or any law or regulation relating to foreign investment;

 

•   the ADR Depositary’s or its custodian’s compliance with applicable law, rule or regulation;

 

•   stock transfer or other taxes and other governmental charges;

 

•   cable, telex, facsimile transmission/delivery;

 

•   transfer or registration fees in connection with the deposit and withdrawal of deposited securities;

 

•   expenses of the ADR Depositary in connection with the conversion of foreign currency into US dollars (which are paid out of such foreign currency); and

 

•   any other charge payable by the ADR Depositary or its agents

  

 

Expenses payable at the sole discretion of the Depositary by billing ADR holders or by deducting charges from one or more cash dividends or other cash distributions are $20 per transaction

1 These fees are not currently being charged by the ADR Depositary.

 

 

 

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Fees and charges payable by a depositary

Direct payments

JPMorgan Chase Bank N.A. (JPMorgan or the ADR Depositary) is the depositary for IHG’s ADR Programme. The ADR Depositary’s principal executive office is at: J.P. Morgan Depositary Receipts, 4 New York Plaza, 12th Floor, New York, NY 10004 United States of America. The ADR Depositary has agreed to reimburse certain reasonable Company expenses related to the Company’s ADR Programme and incurred by the Company in connection with the ADR Programme. During the year ended 31 December 2014, the Company received $490,478.87 from the ADR Depositary in respect of legal, accounting and other fees incurred in connection with preparation of the Annual Report and Form 20-F, ongoing SEC compliance and listing requirements, investor relations programmes, and advertising and public relations expenditure.

Indirect payments

As part of its service to the Company, the ADR Depositary has agreed to waive fees for the standard costs associated with the administration of the ADR Programme, associated operating expenses and investor relations advice. In the year ended 31 December 2014, the ADR Depositary agreed to waive fees and expenses amounting to $20,000.

Articles of Association

The Company’s articles of association (the Articles) were adopted at the AGM held on 28 May 2010 and are available on the Company’s website at www.ihgplc.com/investors under corporate governance. The following summarises material rights of holders of the Company’s ordinary shares under the material provisions of the Articles and English law. This summary is qualified in its entirety by reference to the Companies Act and the Articles.

The Company’s shares may be held in certificated or uncertificated form. No holder of the Company’s shares will be required to make additional contributions of capital in respect of the Company’s shares in the future.

In the following description, a ‘shareholder’ is the person registered in the Company’s register of members as the holder of the relevant share.

Principal objects

The Company is incorporated under the name InterContinental Hotels Group PLC and is registered in England and Wales with registered number 5134420. The Articles do not restrict its objects or purposes.

Directors

Under the Articles, a Director may have an interest in certain matters (Permitted Interest) without the prior approval of the Board provided he has declared the nature and extent of such Permitted Interest at a meeting of the Directors or in the manner set out in Section 184 or Section 185 of the Companies Act.

Any matter which does not comprise a Permitted Interest must be authorised by the Board in accordance with the procedure and requirements contained in the Articles, including the requirement that a Director may not vote on a resolution to authorise a matter in which he is interested, nor may he count in the quorum of the meeting at which such business is transacted.

 

Further, a Director may not vote in respect of any proposal in which he, or any person connected with him, has any material interest other than by virtue of his interests in securities of, or otherwise in or through, the Company, nor may he count in the quorum of the meeting at which such business is transacted. This is subject to certain exceptions, including in relation to proposals: (a) indemnifying him in respect of obligations incurred on behalf of the Company; (b) indemnifying a third party in respect of obligations of the Company for which the Director has assumed responsibility under an indemnity or guarantee; (c) relating to an offer of securities in which he will be interested as an underwriter; (d) concerning another body corporate in which the Director is beneficially interested in less than one per cent of the issued shares of any class of shares of such a body corporate; (e) relating to an employee benefit in which the Director will share equally with other employees; and (f) relating to liability insurance that the Company is empowered to purchase for the benefit of Directors of the Company in respect of actions undertaken as Directors (or officers) of the Company.

The Directors have authority under the Articles to set their own remuneration (provided certain criteria is met). While an agreement to award remuneration to a Director is an arrangement with the Company that comprises a Permitted Interest (and therefore does not require authorisation by the Board in that respect), it is nevertheless a matter that would be expected to give rise to a conflict of interest between the Director concerned and the Company, and such conflict must be authorised by a resolution of the Board. The Director that is interested in such matter may neither vote on the resolution to authorise such conflict, nor count in the quorum of the meeting at which it was passed. Furthermore, as noted above, the interested Director is not permitted to vote in respect of any proposal in which he has any material interest (except in respect of the limited exceptions outlined above) nor may he count in the quorum of the meeting at which such business is transacted.

As such, a Director has no power, in the absence of an independent quorum, to vote on compensation to himself, but may vote on a resolution (and may count in the quorum of the meeting at which it was passed) to award compensation to Directors provided those arrangements do not confer a benefit on him.

The Directors are empowered to exercise all the powers of the Company to borrow money, subject to the limitation that the aggregate amount of all monies borrowed by the Company and its subsidiaries shall not exceed an amount equal to three times the Company’s share capital and consolidated reserves, unless sanctioned by an ordinary resolution of the Company.

Under the Articles, there are no age-limit requirements relating to a person’s qualification to hold office as a Director of the Company.

Directors are not required to hold any shares of the Company by way of qualification.

Rights attaching to shares

Dividend rights and rights to share in the Company’s profits

Under English law, dividends are payable on the Company’s ordinary shares only out of profits available for distribution, as determined in accordance with accounting principles generally accepted in the UK and by the Companies Act. No dividend will bear interest as against the Company.

 

 

 

 

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Holders of the Company’s ordinary shares are entitled to receive such dividends as may be declared by the shareholders in general meeting, rateably according to the amounts paid up on such shares, provided that the dividend cannot exceed the amount recommended by the Directors.

The Company’s Board of Directors may declare and pay to shareholders such interim dividends as appear to them to be justified by the Company’s financial position. If authorised by an ordinary resolution of the shareholders, the Board of Directors may also direct payment of a dividend in whole or in part by the distribution of specific assets (and in particular of paid-up shares or debentures of any other company).

Any dividend unclaimed by a member (or by a person entitled by virtue of transmission on death or bankruptcy or otherwise by operation of law) after six years from the date the dividend was declared, or became due for payment, will be forfeited and will revert to the Company.

Voting rights

The holders of ordinary shares are entitled, in respect of their holdings of such shares, to receive notice of general meetings and to attend, speak and vote at such meetings in accordance with the Articles.

Voting at any general meeting of shareholders is by a show of hands unless a poll, which is a written vote, is duly demanded. On a show of hands, every shareholder who is present in person or by proxy at a general meeting has one vote regardless of the number of shares held. On a poll, every shareholder who is present in person or by proxy has one vote for every share held by that shareholder. A poll may be demanded by any of the following:

 

  the chairman of the meeting;

 

  at least five shareholders present in person or by proxy and entitled to vote at the meeting;

 

  any shareholder or shareholders present in person or by proxy representing in the aggregate not less than one-tenth of the total voting rights of all shareholders entitled to vote at the meeting; or

 

  any shareholder or shareholders present in person or by proxy holding shares conferring a right to vote at the meeting and on which there have been paid up sums in the aggregate at least equal to one-tenth of the total sum paid up on all the shares conferring that right.

A proxy form will be treated as giving the proxy the authority to demand a poll, or to join others in demanding one.

The necessary quorum for a general meeting is three persons carrying a right to vote upon the business to be transacted, whether present in person or by proxy.

Matters are transacted at general meetings of the Company by the proposing and passing of resolutions, of which there are two kinds:

 

  an ordinary resolution, which includes resolutions for the election of Directors, the approval of financial statements, the cumulative annual payment of dividends, the appointment of the auditor, the increase of authorised share capital or the grant of authority to allot shares; and

 

  a special resolution, which includes resolutions amending the Articles, disapplying statutory pre-emption rights, modifying the rights of any class of the Company’s shares at a meeting of the holders of such class or relating to certain matters concerning the Company’s winding up or changing the Company’s name.

An ordinary resolution requires the affirmative vote of a majority of the votes of those persons present and entitled to vote at a meeting at which there is a quorum.

Special resolutions require the affirmative vote of not less than three quarters of the persons present and entitled to vote at a meeting at which there is a quorum.

AGMs must be convened upon advance written notice of 21 days. Subject to law, other meetings must be convened upon advance written notice of 14 days. The days of delivery or receipt of the notice are not included. The notice must specify the nature of the business to be transacted. The Board of Directors may, if they choose, make arrangements for shareholders who are unable to attend the place of the meeting to participate at other places.

The Articles specify that each Director shall retire every three years at the AGM and, unless otherwise decided by the Directors, shall be eligible for re-election. However, the Code recommends that all directors of FTSE 350 companies submit themselves for election or re-election (as appropriate) by shareholders every year. Therefore, all Directors will retire and offer themselves for election or re-election at the 2015 AGM.

Variation of rights

If, at any time, the Company’s share capital is divided into different classes of shares, the rights attached to any class may be varied, subject to the provisions of the Companies Act, with the consent in writing of holders of three-quarters in nominal value of the issued shares of that class or upon the adoption of a special resolution passed at a separate meeting of the holders of the shares of that class. At every such separate meeting, all of the provisions of the Articles relating to proceedings at a general meeting apply, except that the quorum is to be the number of persons (which must be two or more) who hold or represent by proxy not less than one-third in nominal value of the issued shares of that class.

Rights in a winding-up

Except as the Company’s shareholders have agreed or may otherwise agree, upon the Company’s winding up, the balance of assets available for distribution:

 

  after the payment of all creditors including certain preferential creditors, whether statutorily preferred creditors or normal creditors; and

 

  subject to any special rights attaching to any class of shares, is to be distributed among the holders of ordinary shares according to the amounts paid up on the shares held by them. This distribution is generally to be made in cash. A liquidator may, however, upon the adoption of a special resolution of the shareholders, divide among the shareholders the whole or any part of the Company’s assets in kind.

Limitations on voting and shareholding

There are no limitations imposed by English law or the Articles on the right of non-residents or foreign persons to hold or vote the Company’s ordinary shares or ADSs, other than the limitations that would generally apply to all of the Company’s shareholders.

 

 

 

 

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Working Time Regulations 1998

Under EU law, many employees of Group companies are now covered by the Working Time Regulations which came into force in the UK on 1 October 1998. These regulations implemented the European Working Time Directive and parts of the Young Workers Directive, and lay down rights and protections for employees in areas such as maximum working hours, minimum rest time, minimum days off and paid leave.

In the UK, there is in place a national minimum wage under the National Minimum Wage Act. At 31 December 2014, the minimum wage for individuals between 18 and under the age of 21 was £5.13 per hour and £6.50 per hour for individuals age 21 and above (in each case, excluding apprentices aged under 19 years or, otherwise, in the first year of their apprenticeships). This particularly impacts businesses in the hospitality and retailing sectors. Compliance with the National Minimum Wage Act is being monitored by the Low Pay Commission, an independent statutory body established by the UK government.

Less than five per cent of the Group’s UK employees are covered by collective bargaining agreements with trade unions.

Continual attention is paid to the external market in order to ensure that terms of employment are appropriate. The Group believes the Group companies will be able to conduct their relationships with trade unions and employees in a satisfactory manner.

Material contracts

The following contracts have been entered into otherwise than in the course of ordinary business by members of the Group: (i) in the two years immediately preceding the date of this document in the case of contracts which are or may be material; or (ii) that contain provisions under which any Group member has any obligation or entitlement that is material to the Group as at the date of this document. To the extent that these agreements include representations, warranties and indemnities, such provisions are considered standard in an agreement of that nature, save to the extent identified below.

Disposal of 80 per cent interest in InterContinental New York Barclay

On 19 December 2013, Constellation Barclay Holding US, LLC, which is an affiliate of Constellation Hotels Holding Limited, agreed to acquire, pursuant to a contribution agreement, an 80 per cent interest in a joint venture with IHG’s affiliates to own and refurbish the InterContinental New York Barclay hotel. The 80 per cent interest was acquired for gross cash proceeds of $274 million. IHG’s affiliates hold the remaining 20 per cent interest. The disposal was completed on 31 March 2014.

IHG’s management affiliate has also secured a 30-year management contract on the hotel, which commenced in 2014, with two 10-year extension rights at IHG’s discretion, giving an expected contract length of 50 years.

Constellation Barclay Holding US, LLC and IHG’s affiliates have agreed to invest through the joint venture in a significant refurbishment, repositioning and extension of the hotel. This commenced in 2014 and will take place over a period of approximately 18 months.

Under the contribution agreement, IHG’s affiliates gave certain customary warranties and indemnities to Constellation Barclay Holding US, LLC.

 

Disposal of interest in InterContinental Paris – Le Grand

On 7 December 2014, a share sale and purchase agreement was entered into between BHR Holdings BV (part of IHG) and Constellation Hotels France Grand SA. Under the agreement, BHR Holdings BV agreed to sell its 100 per cent interest in Société Des Hotels InterContinental France, the owner of InterContinental Paris – Le Grand, to Constellation Hotels France Grand SA. The gross sale proceeds agreed are 330 million in cash.

In connection with the sale, IHG secured a 30-year management contract on the hotel, with three 10-year extension rights at IHG’s discretion, giving an expected contract length of 60 years.

Under the agreement, BHR Holdings BV gave certain customary warranties and indemnities to Constellation Hotels France Grand SA.

Acquisition of the Kimpton Hotels & Restaurants business

On 15 December 2014, a share sale and purchase agreement was entered into between Kimpton Group Holding LLC and Dunwoody Operations, Inc., an affiliate of IHG. Under the agreement, Dunwoody Operations, Inc. agreed to buy a 100 per cent interest in Kimpton Hotel & Restaurant Group, LLC, the principal trading company of the Kimpton group, from Kimpton Group Holding LLC. The purchase completed on 16 January 2015.

Under the agreement, Dunwoody Operations, Inc. gave certain customary warranties and indemnities to the seller.

The purchase price payable by Dunwoody Operations, Inc. in respect of the acquisition was $430 million paid in cash.

£750 Million Euro Medium Term Note Programme

In 2012, the Group updated its Euro Medium Term Note programme (Programme) and issued a tranche of £400 million 3.875% notes due 28 November 2022.

On 9 November 2012, an amended and restated trust deed (Trust Deed) was executed by InterContinental Hotels Group PLC as issuer (Issuer), Six Continents Limited and InterContinental Hotels Limited as guarantors (Guarantors) and HSBC Corporate Trustee Company (UK) Limited as trustee (Trustee), pursuant to which the trust deed dated 29 November 2009, as supplemented by the first supplemental trust deed dated 7 July 2011 between the same parties relating to the Programme, was amended and restated. Under the Trust Deed, the Issuer may issue notes (Notes) unconditionally and irrevocably guaranteed by the Guarantors, up to a maximum nominal amount from time to time outstanding of £750 million (or its equivalent in other currencies). Notes are to be issued in series (each a Series) in bearer form. Each Series may comprise one or more tranches (each a Tranche) issued on different issue dates. Each Tranche of Notes will be issued on the terms and conditions set out in the updated base prospectus dated 9 November 2012 (Base Prospectus) as amended and/or supplemented by a document setting out the final terms (Final Terms) of such Tranche or in a separate prospectus specific to such Tranche.

Under the Trust Deed, each of the Issuer and the Guarantors has given certain customary covenants in favour of the Trustee.

Final Terms were issued (pursuant to the previous base prospectus dated 27 November 2009) on 9 December 2009 in respect of the issue of a Tranche of £250 million 6% Notes due 9 December 2016 (2009 Issuance). Final Terms were issued pursuant to the Base Prospectus on 26 November 2012 in respect of the issue of a

 

 

 

 

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Tranche of £400 million 3.875% Notes due 28 November 2022 (2012 Issuance).

The Final Terms issued under each of the 2009 Issuance and the 2012 Issuance provide that the holders of the Notes have the right to repayment if the Notes: (a) become non-investment grade within the period commencing on the date of announcement of a change of control and ending 90 days after the change of control (Change of Control Period) and are not subsequently, within the Change of Control Period, reinstated to investment grade; (b) are downgraded from a non-investment grade and are not reinstated to its earlier credit rating or better within the Change of Control Period; or (c) are not credit rated and do not become investment-grade credit rated by the end of the Change of Control Period.

Further details of the Programme and the Notes are set out in the Base Prospectus, a copy of which is available (as is a copy of each of the Final Terms dated 7 December 2009 relating to the 2009 Issuance and the Final Terms dated 26 November 2012 relating to the 2012 Issuance) on the Company’s website at www.ihgplc.com/ investors under financial library for 2009. The Notes issued pursuant to the 2009 Issuance and the Notes issued pursuant to the 2012 Issuance are referred to as ‘£250 million 6% bonds’ and the ‘£400 million 3.875% bonds’ respectively in the Group Financial Statements.

On 27 November 2009, the Issuer and the Guarantors entered into an agency agreement (Agency Agreement) with HSBC Bank plc as principal paying agent and the Trustee, pursuant to which the Issuer and the Guarantors appointed paying agents and calculation agents in connection with the Programme and the Notes.

Under the Agency Agreement, each of the Issuer and the Guarantors has given a customary indemnity in favour of the paying agents and the calculation agents. There was no change to the Agency Agreement in 2011 or 2012.

On 9 November 2012, the Issuer and the Guarantors entered into a dealer agreement (Dealer Agreement) with HSBC Bank plc as arranger and Citigroup Global Markets Limited, HSBC Bank plc, Lloyds TSB Bank plc, Merrill Lynch International, Mitsubishi UFJ Securities International plc and The Royal Bank of Scotland plc as dealers (Dealers), pursuant to which the Dealers were appointed in connection with the Programme and the Notes.

Under the Dealer Agreement, each of the Issuer and the Guarantors has given customary warranties and indemnities in favour of the Dealers.

Syndicated Facility

On 7 November 2011, the Company signed a five-year $1.07 billion bank facility agreement with The Royal Bank of Scotland plc, NB International Finance B.V., Citigroup Global Markets Limited, HSBC Bank plc, Lloyds TSB Bank plc and The Bank of Tokyo-Mitsubishi UFJ, Ltd., all acting as mandated lead arrangers and Banc of America Securities Limited as facility agent (Syndicated Facility).

The interest margin payable on borrowings under the Syndicated Facility is linked to IHG’s consolidated net debt to consolidated EBITDA ratio. The margin can vary between LIBOR + 0.90% and LIBOR + 1.70% depending on the level of the ratio. At 31 December 2014, tranches in the sums of US$270m and 75m had been drawn down under the Syndicated Facility.

 

$400 Million Term Loan Facility

On 13 January 2015, the Company signed a six-month $400 million term loan facility agreement with Bank of America Merrill Lynch International Limited as arranger, facility agent and lender. The Company may elect to extend the repayment date by up to two further periods of six months.

The interest margin payable on borrowings is LIBOR + 0.6%, increasing to LIBOR + 0.8% and LIBOR +1.0% for the first and second six-month extension periods respectively. The facility was fully drawn at 16 February 2015.

Legal proceedings

Group companies have extensive operations in the UK, as well as internationally, and are involved in a number of legal claims and proceedings incidental to those operations. It is the Company’s view that such proceedings, either individually or in the aggregate, have not in the recent past and are not likely to have a significant effect on the Group’s financial position or profitability. Notwithstanding the above, the Company notes the matters set out below. Litigation is inherently unpredictable and, as at 16 February 2015, the outcome of these matters cannot be reasonably determined.

A claim was filed on 9 July 2013 by Pan-American Life Insurance Company against Louisiana Acquisitions Corp. and InterContinental Hotels Corporation (IHC). The claimant identified eight causes of action: breach of contract; breach of partnership, fiduciary duties and good faith obligations; fraud; civil conspiracy; conversion; unfair trade practices; unjust enrichment; and alter ego. As at 16 February 2015, the likelihood of a favourable or unfavourable result cannot be reasonably determined and it is not possible to determine whether any loss is probable or to estimate the amount of any loss.

On 31 July 2012, the UK’s Office of Fair Trading (OFT) issued a Statement of Objections alleging that the Company (together with Booking.com B.V. and Expedia, Inc.) had infringed competition law in relation to the online supply of room-only hotel accommodation by online travel agents.

The Company has co-operated fully with the investigation. On 31 January 2014, the OFT announced its decision to accept a series of commitments and to conclude its investigation without any finding of infringement or wrongdoing, or the imposition of any fine. On 26 September 2014, the Competition Appeal Tribunal allowed an appeal brought by Skyscanner Limited and quashed the decision to accept the commitments. The Competition and Markets Authority (the OFT’s successor) has decided not to appeal the judgment of the Competition Appeal Tribunal. As at 16 February 2015, the likelihood of a favourable or unfavourable result cannot be reasonably determined and it is not possible to determine whether any loss is probable or to estimate the amount of any loss.

A class-action claim was filed on 3 July 2012 by two claimants alleging that InterContinental Hotels of San Francisco, Inc. and InterContinental Hotels Group Resources, Inc. violated California Penal Code 632.7, based upon the alleged improper recording of cellular phone calls originating from California to IHG customer care and reservations centres. The claimants subsequently amended the claim to include Six Continents Hotels, Inc. We are currently involved in settlement discussions with respect to this claim.

 

 

 

 

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Exchange controls and restrictions on payment of dividends

There are no restrictions on dividend payments to US citizens.

Although there are currently no UK foreign exchange control restrictions on the export or import of the capital or the payment of dividends on the ordinary shares or the ADSs, economic sanctions which may be in force in the UK from time to time impose restrictions on the payment of dividends to persons resident (or treated as so resident) in or governments of (or persons exercising public functions in) certain countries.

Other than economic sanctions which may be in force in the UK from time to time, there are no restrictions under the Articles or under English law that limit the right of non-resident or foreign owners to hold or vote the ordinary shares or the ADSs. In addition, the Articles contain certain limitations on the voting and other rights of any holder of ordinary shares whose holding may, in the opinion of the Directors, result in the loss or failure to secure the reinstatement of any licence or franchise from any US governmental agency held by Six Continents Hotels, Inc. or any subsidiary thereof.

Taxation

This section provides a summary of material US federal income tax and UK tax consequences to the US holders, described below, of owning and disposing of ordinary shares or ADSs of the Company. This section addresses only the tax position of a US holder who holds ordinary shares or ADSs as capital assets. This section does not, however, discuss all of the tax considerations that may be relevant to any particular US holder, such as the provisions of the Internal Revenue Code of 1986, as amended (IR Code) known as the Medicare Contribution tax or tax consequences to US holders subject to special rules, such as:

 

  certain financial institutions;

 

  insurance companies;

 

  dealers and traders in securities who use a mark-to-market method of tax accounting;

 

  persons holding ordinary shares or ADSs as part of a straddle, conversion transaction, integrated transaction or wash sale, or persons entering into a constructive sale with respect to the ordinary shares or ADSs;

 

  persons whose functional currency for US federal income tax purposes is not the US dollar;

 

  partnerships or other entities classified as partnerships for US federal income tax purposes;

 

  persons liable for the alternative minimum tax;

 

  tax-exempt organisations;

 

  persons who acquired the Company’s ADSs or ordinary shares pursuant to the exercise of any employee stock option or otherwise in connection with employment; or

 

  persons who, directly or indirectly, own 10 per cent or more of the Company’s voting stock.

This section does not generally deal with the position of a US holder who is resident in the UK for UK tax purposes or who is subject to UK taxation on capital gains or income by virtue of carrying on a trade, profession or vocation in the UK through a branch, agency or permanent establishment to which such ADSs or ordinary shares are attributable (‘trading in the UK’).

As used herein, a ‘US holder’ is a person who, for US federal income tax purposes, is a beneficial owner of ordinary shares or ADSs and is: (i) a citizen or individual resident of the US; (ii) a corporation, or other entity taxable as a corporation, created or organised in or under the laws of the US or any political subdivision thereof; (iii) an estate whose income is subject to US federal income tax regardless of its source; or (iv) a trust, if a US court can exercise primary supervision over the trust’s administration and one or more US persons are authorised to control all substantial decisions of the trust.

This section is based on the IR Code, its legislative history, existing and proposed regulations, published rulings and court decisions, and on UK tax laws and the published practice of HM Revenue and Customs (HMRC), all as of the date hereof. These laws, and that practice, are subject to change, possibly on a retroactive basis.

This section is further based in part upon the representations of the ADR Depositary and assumes that each obligation in the deposit agreement and any related agreement will be performed in accordance with its terms. For US federal income tax purposes, an owner of ADRs evidencing ADSs will generally be treated as the owner of the underlying shares represented by those ADSs. For UK tax purposes, in practice, HMRC will also regard holders of ADSs as the beneficial owners of the ordinary shares represented by those ADSs (although case law has cast some doubt on this). The discussion below assumes that HMRC’s position is followed.

Generally, exchanges of ordinary shares for ADSs, and ADSs for ordinary shares, will not be subject to US federal income tax or UK taxation on capital gains, although UK stamp duty reserve tax (SDRT) may arise as described below.

The US Treasury has expressed concerns that parties to whom ADRs are pre-released may be taking actions that are inconsistent with the claiming of foreign tax credits by US holders of ADSs. Such actions would also be inconsistent with the claiming of the preferential rates of tax, described below, for qualified dividend income. Accordingly, the availability of the preferential rates of tax for qualified dividend income described below could be affected by actions taken by parties to whom the ADRs are pre-released.

The following discussion assumes that the Company is not, and will not become, a passive foreign investment company (PFIC), as described below.

Investors should consult their own tax advisors regarding the US federal, state and local, the UK and other tax consequences of owning and disposing of ordinary shares or ADSs in their particular circumstances.

Taxation of dividends

UK taxation

Under current UK tax law, the Company will not be required to withhold tax at source from dividend payments it makes.

A US holder who is not resident for UK tax purposes in the UK and who is not trading in the UK will generally not be liable for UK taxation on dividends received in respect of the ADSs or ordinary shares.

US federal income taxation

A US holder is subject to US federal income taxation on the gross amount of any dividend paid by the Company out of its current or accumulated earnings and profits (as determined for US federal income tax purposes). Distributions in excess of the Company’s current and accumulated earnings and profits, as determined for US federal income tax purposes, will be treated as a return of

 

 

 

 

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capital to the extent of the US holder’s basis in the shares or ADSs and thereafter as capital gain. Because the Company has not historically maintained, and does not currently maintain, books in accordance with US tax principles, the Company does not expect to be in a position to determine whether any distribution will be in excess of the Company’s current and accumulated earnings and profits as computed for US federal income tax purposes. As a result, it is expected that amounts distributed will be reported to the Internal Revenue Service (IRS) as dividends.

Subject to applicable limitations and the discussion above regarding concerns expressed by the US Treasury, dividends paid to certain non-corporate US holders will be taxable at the preferential rates applicable to long-term capital gain if the dividends constitute “qualified dividend income”. The Company expects that dividends paid by the Company with respect to the ADSs will constitute qualified dividend income. US holders should consult their own tax advisors to determine whether they are subject to any special rules that limit their ability to be taxed at these preferential rates.

Dividends must be included in income when the US holder, in the case of shares, or the ADR Depositary, in the case of ADSs, actually or constructively receives the dividend, and will not be eligible for the dividends-received deduction generally allowed to US corporations in respect of dividends received from other US corporations. For foreign tax credit limitation purposes, dividends will generally be income from sources outside the US.

The amount of any dividend paid in pounds sterling will be the US dollar value of the sterling payments made, determined at the spot sterling/US dollar rate on the date the dividend distribution is includible in income, regardless of whether the payment is in fact converted into US dollars. If the dividend is converted into US dollars on that date, a US holder should not be required to recognise foreign currency gain or loss in respect of the dividend income. Generally, any gain or loss resulting from currency exchange fluctuations during the period from the date the dividend payment is includible in income to the date the payment is converted into US dollars will be treated as ordinary income or loss, from sources within the US.

Taxation of capital gains

UK taxation

A US holder who is not resident for UK tax purposes in the UK and who is not trading in the UK will not generally be liable for UK taxation on capital gains, or eligible for relief for allowable losses, realised or accrued on the sale or other disposal of ADSs or ordinary shares. A US holder of ADSs or ordinary shares who is an individual and who, broadly, has temporarily ceased to be resident in the UK or has become temporarily treated as non-resident for UK tax purposes for a period of not more than five years (or, for departures before 6 April 2013, ceases to be resident or ordinarily resident or becomes treated as non-resident for less than five years of assessment) and who disposes of ordinary shares or ADSs during that period may, for the year of assessment when that individual becomes resident again in the UK, be liable to UK tax on capital gains (subject to any available exemption or relief), notwithstanding the fact that such US holder was not treated as resident in the UK at the time of the sale or other disposal.

US federal income taxation

A US holder who sells or otherwise disposes of ordinary shares or ADSs will recognise a capital gain or loss for US federal income tax purposes equal to the difference between the amount realised and its tax basis in the ordinary shares or ADSs, each determined in US dollars. Such capital gain or loss will be long-term capital gain or loss where the US holder has a holding period greater than one year. Losses may also be treated as long-term capital losses to the extent of certain “extraordinary dividends” that qualified for the preferential tax rates on qualified dividend income described above. The capital gain or loss will generally be income or loss from sources within the US for foreign tax credit limitation purposes. The deductibility of capital losses is subject to limitations.

PFIC rules

The Company believes that it was not a PFIC for US federal income tax purposes for its 2014 taxable year. However, this conclusion is an annual factual determination and thus may be subject to change. If the Company were to be treated as a PFIC, gain realised on the sale or other disposition of ordinary shares or ADSs would, in general, not be treated as capital gain. Instead, gain would be treated as if the US holder had realised such gain rateably over the holding period for the ordinary shares or ADSs and, to the extent allocated to the taxable year of the sale or other exchange and to any year before the Company became a PFIC, would be taxed as ordinary income. The amount allocated to each other taxable year would be taxed at the highest tax rate in effect for each such year to which the gain was allocated, together with an interest charge in respect of the tax attributable to each such year. In addition, similar rules would apply to any “excess distribution” received on the ordinary shares or ADSs (generally, the excess of any distribution received on the ordinary shares or ADSs during the taxable year over 125 per cent of the average amount of distributions received during a specified prior period), and the preferential rates for qualified dividend income received by certain non-corporate US holders would not apply.

Certain elections may be available (including a market-to-market election) to US holders that would result in alternative treatments of the ordinary shares or ADSs. If the Company were to be treated as a PFIC in any taxable year in which a US holder held ordinary shares or ADSs, a US holder will generally be required to file IRS Form 8621 with their annual US federal income tax returns, subject to certain exceptions.

Additional tax considerations

UK inheritance tax

An individual who is neither domiciled nor deemed domiciled in the UK (under certain UK rules relating to previous domicile or long residence) is only chargeable to UK inheritance tax to the extent the individual owns assets situated in the UK. As a matter of UK law, it is not clear whether the situs of an ADS for UK inheritance tax purposes is determined by the place where the depositary is established and records the entitlements of the deposit holders, or by the situs of the underlying share which the ADS represents, but the UK tax authorities may take the view that the ADSs, as well as the ordinary shares, are or represent UK situs assets.

 

 

 

 

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However, an individual who is domiciled in the US (for the purposes of the Estate and Gift Tax Convention (Convention), and is not a UK national as defined in the Convention will not be subject to UK inheritance tax (to the extent UK inheritance tax applies) in respect of the ordinary shares or ADSs on the individual’s death or on a transfer of the ordinary shares or ADSs during their lifetime, provided that any applicable US federal gift or estate tax is paid, unless the ordinary shares or ADSs are part of the business property of a UK permanent establishment or pertain to a UK fixed base of an individual used for the performance of independent personal services. Where the ordinary shares or ADSs have been placed in trust by a settlor, they may be subject to UK inheritance tax unless, when the trust was created, the settlor was domiciled in the US and was not a UK national. If no relief is given under the Convention, inheritance tax may be charged on death and also on the amount by which the value of an individual’s estate is reduced as a result of any transfer made by way of gift or other undervalue transfer, broadly within seven years of death, and in certain other circumstances. Where the ordinary shares or ADSs are subject to both UK inheritance tax and to US federal gift or estate tax, the Convention generally provides for either a credit against US federal tax liabilities for UK inheritance tax paid or for a credit against UK inheritance tax liabilities for US federal tax paid, as the case may be.

UK stamp duty and SDRT

Neither stamp duty nor SDRT will generally be payable in the UK on the purchase or transfer of an ADS, provided that the ADS and any separate instrument or written agreement of transfer are executed and remain at all times outside the UK. UK legislation does however provide for stamp duty (in the case of transfers) or SDRT to be payable at the rate of 1.5 per cent on the amount or value of the consideration (or, in some cases, the value of the ordinary shares) where ordinary shares are issued or transferred to a person (or a nominee or agent of a person) whose business is or includes issuing depositary receipts or the provision of clearance services. In accordance with the terms of the deposit agreement, any tax or duty payable on deposits of ordinary shares by the depositary or by the custodian of the depositary will typically be charged to the party to whom ADSs are delivered against such deposits.

Following litigation on the subject, HMRC has accepted that it will no longer seek to apply the 1.5 per cent SDRT charge when new shares are issued to a clearance service or depositary receipt system on the basis that the charge is not compatible with EU law. In HMRC’s view, the 1.5 per cent SDRT or stamp duty charge will continue to apply to transfers of shares into a clearance service or depositary receipt system unless they are an integral part of an issue of share capital. This view is currently being challenged in further litigation. Accordingly, specific professional advice should be sought before paying the 1.5 per cent SDRT or stamp duty charge in any circumstances.

A transfer of the underlying ordinary shares will generally be subject to stamp duty or SDRT, normally at the rate of 0.5 per cent of the amount of value of the consideration (rounded up to the next multiple of £5 in the case of stamp duty). A transfer of ordinary shares from a nominee to its beneficial owner, including the transfer of underlying ordinary shares from the depositary to an ADS holder, under which no beneficial interest passes, will not be subject to stamp duty or SDRT.

 

US backup withholding and information reporting

Payments of dividends and other proceeds with respect to ADSs and ordinary shares may be reported to the IRS and to the US holder. Backup withholding may apply to these reportable payments if the US holder fails to provide an accurate taxpayer identification number or certification of exempt status or fails to report all interest and dividends required to be shown on its US federal income tax returns. Certain US holders (including, among others, corporations) are not subject to information reporting and backup withholding. The amount of any backup withholding from a payment to a US holder will be allowed as a credit against the holder’s US federal income tax liability and may entitle the holder to a refund, provided that the required information is timely furnished to the IRS. US holders should consult their tax advisors as to their qualification for exemption from backup withholding and the procedure for obtaining an exemption.

Disclosure controls and procedures

As of the end of the period covered by this report, the Group carried out an evaluation under the supervision and with the participation of the Group’s management, including the Chief Executive Officer and Chief Financial Officer, of the effectiveness of the design and operation of the Group’s disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) of the Securities Exchange Act 1934). These are defined as those controls and procedures designed to ensure that information required to be disclosed in reports filed under the Securities Exchange Act 1934 is recorded, processed, summarised and reported within the specified periods. Based on that evaluation, the Chief Executive Officer and Chief Financial Officer concluded that the Group’s disclosure controls and procedures were effective.

Summary of significant corporate governance differences from NYSE listing standards

The Group’s statement of compliance with the principles and provisions specified in the UK Corporate Governance Code issued by the Financial Reporting Council in the UK in 2012 (the Code) is set out on pages 70 to 72.

IHG has also adopted the corporate governance requirements of the US Sarbanes-Oxley Act and related rules and of the NYSE, to the extent that they are applicable to it as a foreign private issuer. As a foreign private issuer, IHG is required to disclose any significant ways in which its corporate governance practices differ from those followed by US companies. These are as follows:

Basis of regulation

The Code contains a series of principles and provisions. It is not, however, mandatory for companies to follow these principles. Instead, companies must disclose how they have applied them and disclose, if applicable, any areas of non-compliance along with an explanation for the non-compliance. In contrast, US companies listed on the NYSE are required to adopt and disclose corporate governance guidelines adopted by the NYSE.

 

 

 

 

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Independent Directors

The Code’s principles recommend that at least half the Board, excluding the Chairman, should consist of independent Non-Executive Directors. As at 16 February 2015, the Board consisted of the Chairman, independent at the time of his appointment, three Executive Directors and seven independent Non-Executive Directors. NYSE listing rules applicable to US companies state that companies must have a majority of independent directors. The NYSE set out five bright line tests for director independence. The Board’s judgement is that all of its Non-Executive Directors are independent. However, it did not explicitly take into consideration the NYSE’s tests in reaching this determination.

Chairman and Chief Executive Officer

The Code recommends that the Chairman and Chief Executive Officer should not be the same individual to ensure that there is a clear division of responsibility for the running of the Company’s business. There is no corresponding requirement for US companies. The roles of Chairman and Chief Executive Officer were, as at 16 February 2015 and throughout 2014, fulfilled by separate individuals.

Committees

The Company has a number of Board Committees which are similar in purpose and constitution to those required for domestic companies under NYSE rules. The NYSE requires US companies to have both remuneration and nominating/corporate governance committees composed entirely of independent directors, as defined under the NYSE rules. The Company’s Nomination Committee consists only of Non-Executive Directors and the Company’s Audit and Remuneration Committees consists entirely of Non-Executive Directors who are independent under the standards of the Code, which may not necessarily be the same as the NYSE independence standards. The nominating/governance committee is responsible for identifying individuals qualified to become Board members and to recommend to the Board a set of corporate governance principles. As the Company is subject to the Code, the Company’s Nomination Committee is only responsible for nominating, for approval of the Board, candidates for appointment to the Board, though it also assists in developing the role of the Senior Independent Director. The Company’s Nomination Committee consists of the Chairman of the Company and all the independent Non-Executive Directors.

The Chairman of the Company is not a member of either of the Remuneration or the Audit Committees. As set out on page 65, the Audit Committee is chaired by an independent Non-Executive Director who, in the Board’s view, has the experience and qualifications to satisfy the criteria under US rules for an “audit committee financial expert”.

Non-Executive Director meetings

Non-management directors of US companies must meet on a regular basis without management present, and independent directors must meet separately at least once per year. The Code requires: (i) the Board Chairman to hold meetings with the Non-Executive Directors without the Executive Directors present; and (ii) the Non-Executive Directors to meet at least annually without the Chairman present to appraise the Chairman’s performance. The Company’s Non-Executive Directors have met without Executive Directors being present, and intend to continue this practice, after every Board meeting if possible.

Shareholder approval of equity compensation plans

The NYSE rules require that shareholders must be given the opportunity to vote on all equity compensation plans and material revisions to those plans. The Company complies with UK requirements which are similar to the NYSE rules. The Board does not, however, explicitly take into consideration the NYSE’s detailed definition of “material revisions”.

Code of Conduct

The NYSE requires companies to adopt a code of business conduct and ethics, applicable to directors, officers and employees. Any waivers granted to directors or officers under such a code must be promptly disclosed. As set out on page 74, IHG’s Code of Conduct is applicable to all Directors, officers and employees, and further information on the Code of Conduct is available on the Company’s website at www.ihgplc.com/investors under corporate governance. No waivers have been granted under the Code of Conduct.

Compliance certification

Each Chief Executive of a US company must certify to the NYSE each year that he or she is not aware of any violation by the Company of any NYSE corporate governance listing standard. As the Company is a foreign private issuer, the Company’s Chief Executive Officer is not required to make this certification. However, he is required to notify the NYSE promptly in writing after any of the Company’s executive officers become aware of any non-compliance with those NYSE corporate governance rules applicable to the Company.

 

 

 

Selected five-year consolidated financial information

The selected consolidated financial data set forth in the table on the next page for the years ended 31 December 2010, 2011, 2012, 2013 and 2014 has been prepared in accordance with IFRS as issued by the IASB and in accordance with IFRS as adopted by the EU, and is derived from the Group Financial Statements, which have been audited by its independent registered public accounting firm, Ernst & Young LLP.

IFRS as adopted by the EU differs in certain respects from IFRS as issued by the IASB. However, the differences have no impact on the Group Financial Statements for the years presented. The selected consolidated financial data set forth on the next page should be read in conjunction with, and is qualified in its entirety by reference to, the Group Financial Statements and Notes thereto included elsewhere in this Annual Report and Form 20-F.

 

 

 

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Group income statement data
 
For the year ended 31 December    2014      2013      2012      2011      2010  
     

 

($m, except earnings per ordinary share)

 
Revenue 1      1,858         1,903         1,835         1,768             1,628   
Total operating profit before exceptional operating items      651         668         605         548         438   
Exceptional operating items 1      29         5         (4      57         (7
Total operating profit 1      680         673         601         605         431   
Financial income      3         5         3         2         2   
Financial expenses      (83      (78      (57      (64      (64
Profit before tax      600         600         547         543         369   
Tax:                                             
On profit before exceptional items      (179      (175      (151      (117      (96
On exceptional operating items      (29      (6      1         (4      1   
Exceptional tax              (45      141         43           
       (208      (226      (9      (78      (95
Profit after tax:      392         374         538         465         274   
Gain on disposal of discontinued operations, net of tax                                      2   
Profit for the year      392         374         538         465         276   
                                              
Attributable to:                                             

Equity holders of the parent

     391         372         537         465         276   

Non-controlling interest

     1         2         1                   
Profit for the year      392         374         538         465         276   
Earnings per ordinary share:                                             
Continuing operations:                                             

Basic

     158.3¢             140.9¢             187.1¢             160.9¢         95.1¢   

Diluted

     156.4¢         139.3¢         183.9¢         157.1¢         92.6¢   
Total operations:                                             

Basic

     158.3¢         140.9¢         187.1¢         160.9¢         95.8¢   

Diluted

     156.4¢         139.3¢         183.9¢         157.1¢         93.2¢   

 

1 Relates to continuing operations.

 

Group statement of financial position data

 

  

  

31 December    2014      2013
(restated 1 )
     2012
(restated 1 )
     2011
(restated 1 )
     2010
(restated 1 )
 
     

 

($m, except number of shares)

 
Goodwill and intangible assets      643         518         447         400         358   
Property, plant and equipment      741         1,169         1,056         1,362         1,690   
Investments and other financial assets      368         321         239         243         178   
Non-current trade and other receivables      3                                   
Retirement benefit assets      8         7         99         21         5   
Non-current tax receivable      34         16         24         41           
Deferred tax assets      87         108         204         106         88   
Current assets      624         700         852         784         659   
Assets classified as held for sale      310         228         534         217           
Total assets      2,818         3,067         3,455         3,174         2,978   
Current liabilities      943         928         972         1,066         1,136   
Long-term debt      1,569         1,269         1,242         670         776   
Net (liabilities) / assets      (717      (74      317         555         278   
Equity share capital      178         189         179         162         155   
IHG shareholders’ equity      (725      (82      308         547         271   
Number of shares in issue at end of the year (millions)      248         269         268         290         289   

1 Restated for the adoption of ‘Offsetting Financial Assets and Financial Liabilities’ (Amendments to IAS 32), see page 107.

 

 

 

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Return of funds

Since March 2004, the Group has returned over £4.8bn of funds to shareholders by way of special dividends, capital returns and share repurchase programmes.

On 2 May 2014, the Company announced a $750m return of funds to shareholders via special dividend with share consolidation. The special dividend was paid on 14 July 2014.

 

Return of funds programme    Timing    Total return    Returned to date
£501m special dividend 1    Paid in December 2004    £501m    £501m
£250m share buyback    Completed in 2004    £250m    £250m
£996m capital return 1    Paid in July 2005    £996m    £996m
£250m share buyback    Completed in 2006    £250m    £250m
£497m special dividend 1    Paid in June 2006    £497m    £497m
£250m share buyback    Completed in 2007    £250m    £250m
£709m special dividend 1    Paid in June 2007    £709m    £709m
£150m share buyback    n/a 2    £150m    £120m
$500m special dividend 1,3    Paid in October 2012    £315m 4 ($500m)    £315m ($505m) 5
$500m share buyback    Completed in 2014    £315m 4 ($500m)    £315m ($500m) 6
$350m special dividend    Paid in October 2013    £229m 7 ($350m)    £228m ($355m) 8
$750m special dividend 1    Paid in July 2014    £447m 9 ($750m)    £446m ($763m) 10
Total         £4,909m    £4,877m

 

1   Accompanied by a share consolidation.
2   This programme was superseded by the share buyback programme announced on 7 August 2012.
3   IHG changed the reporting currency of its Consolidated Financial Statements from sterling to US dollars effective from the Half-Year Results as at 30 June 2008.
4   The dividend was first determined in US dollars and converted to sterling immediately before announcement at the rate of $1=£0.63, as set out in the circular detailing the special dividend and share buyback programme published on 14 September 2012.
5   Sterling dividend translated at $1=£0.624.
6   Translated into US dollars at the average rates of exchange for the relevant years (2014 $1=£0.61; 2013 $1=£0.64; 2012 $1 = £0.63).
7   The dividend was first determined in US dollars and converted to sterling immediately before announcement at the rate of $1=£0.65, as announced in the Half-Year Results to 30 June 2013.
8   Sterling dividend translated at $1=£0.644.
9   The dividend was first determined in US dollars and converted to sterling immediately before announcement at the rate translated at $1=£0.597.
10   Sterling dividend translated at $1=£0.5845.

 

 

Purchases of equity securities by the Company and affiliated purchasers

The Group’s $500m share repurchase programme was announced on 7 August 2012 and completed on 29 May 2014. As at 31 December 2014, 17,339,845 shares had been repurchased at an average price of 1,811.7674 pence per share (approximately £314m).

 

Period of financial year   (a) Total number of shares
(or units) purchased
    (b) Average price paid
per share (or unit)
    (c) Total number of shares
(or units) purchased as
part of publicly
announced plans or
programmes
    (d) Maximum number
(or approximate dollar value)
of shares (or units) that may yet
be purchased under the plans
or programmes
 
Month 1     350,249        2,007.8500        nil        18,855,008 1   
Month 2     1,617,551        1,950.2062        770,412        18,084,596 1   
Month 3     2,354,577        1,914.9212        2,354,577        15,730,019 1   
Month 4 (no purchases this month)     nil        nil        nil        15,730,019 1   
Month 5     296,984        2,259.9608        296,984        25,620,046 2   
Month 6     8        2,311.0000        nil        23,611,725 3   
Month 7 (no purchases this month)     nil        nil        nil        23,611,725 3   
Month 8 (no purchases this month)     nil        nil        nil        23,611,725 3   
Month 9 (no purchases this month)     nil        nil        nil        23,611,725 3   
Month 10 (no purchases this month)     nil        nil        nil        23,611,725 3   
Month 11 (no purchases this month)     nil        nil        nil        23,611,725 3   
Month 12     461,815        2,580.3724        nil        23,611,725 3   

 

1   Reflects the resolution passed at the Company’s AGM held on 24 May 2013.
2   Reflects the resolution passed at the Company’s AGM held on 2 May 2014.
3   Reflects the resolution passed at the Company’s General Meeting held on 30 June 2014.

During the financial year ended 31 December 2014, 1,659,203 ordinary shares were purchased by the Company’s Employee Share Ownership Trust, at prices ranging from 1,928 pence to 2,633 pence per share, for the purpose of satisfying future share awards to employees.

 

 

 

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Share price information
 

The principal trading market for the Company’s ordinary shares is the London Stock Exchange (LSE). The ordinary shares are also listed on the NYSE trading in the form of ADSs evidenced by ADRs. Each ADS represents one ordinary share. The Company has a sponsored ADR facility with JPMorgan as ADR Depositary. The following table shows, for the financial periods indicated, the reported high and low middle market quotations (which represent an average of closing bid and ask prices) for the ordinary shares on the LSE, as derived from the Official List of the UK Listing Authority, and the highest and lowest sales prices of the ADSs as reported on the NYSE composite tape.

 

                                                                   
      £ per ordinary share      $ per ADS 1  
Year ended 31 December    high      low      high      low  
2010      12.66         8.87         20.04         13.84   
2011      14.35         9.55         23.28         15.27   
2012      17.25         11.57         27.82         17.99   
2013      20.39         17.07         33.54         26.90   
2014      27.10         18.66         42.51         30.88   
Quarters in the year ended 31 December                                    
2013                                    
First quarter      20.22         17.07         30.64         27.82   
Second quarter      20.39         17.37         30.61         26.90   
Third quarter      20.30         17.88         31.08         27.77   
Fourth quarter      20.25         17.63         33.54         28.27   
2014                                    
First quarter      20.47         18.66         34.08         30.88   
Second quarter      24.21         19.04         41.51         31.60   
Third quarter      24.75         21.99         42.51         36.84   
Fourth quarter      27.10         21.20         42.38         34.03   
2015                                    
First quarter (to 16 February 2015)      27.56         25.33         41.57         38.32   
Month ended                                    
August 2014      23.75         21.99         40.02         37.15   
September 2014      24.45         22.85         39.85         36.84   
October 2014      23.69         21.20         38.01         34.03   
November 2014      27.10         24.03         42.38         38.25   
December 2014      26.39         24.17         41.30         37.63   
January 2015      27.56         25.33         41.57         38.32   
February 2015 (to 16 February 2015)      26.76         25.88         41.37         39.24   

 

1   Fluctuations in the exchange rates between sterling and the US dollar will affect the dollar equivalent of the sterling price of the ordinary shares on the LSE and, as a result, are likely to affect the market price of ADSs.

 

 

Dividend history

The table below sets forth the amounts of ordinary dividends on each ordinary share and special dividends, in respect of each financial year indicated.

 

                                                                                                                                                                       
      Interim dividend      Final dividend      Total dividend      Special dividend  
      pence      cents      pence      cents      pence      cents      pence     cents  
2014      14.8         25.0         33.8         52.0         48.6         77.0         174.9 1       293.0 1  
2013      15.1         23.0         28.1         47.0         43.2         70.0         87.1        133.0   
2012      13.5         21.0         27.7         43.0         41.2         64.0         108.4 1       172.0 1  
2011      9.8         16.0         24.7         39.0         34.5         55.0                  
2010      8.0         12.8         22.0         35.2         30.0         48.0                  
2009      7.3         12.2         18.7         29.2         26.0         41.4                  
2008 2      6.4         12.2         20.2         29.2         26.6         41.4                  
2007      5.7         11.5         14.9         29.2         20.6         40.7         200 1         
2006      5.1         9.6         13.3         25.9         18.4         35.5         118 1         
2005      4.6         8.1         10.7         18.7         15.3         26.8                  
2004      4.3         7.7         10.0         19.1         14.3         26.8         72.0 1         
2003      4.05         6.8         9.45         17.4         13.5         24.2                  

 

1   Accompanied by a share consolidation.
2   IHG changed the reporting currency of its Consolidated Financial Statements from sterling to US dollars effective from the Half-Year Results as at 30 June 2008. Starting with the interim dividend for 2008, all dividends have first been determined in US dollars and converted into sterling immediately before announcement.

 

 

 

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Sha reho lde r in for mat ion continued

Shareholder profiles

Shareholder profile by type as at 31 December 2014

 

Category of

shareholdings

   Number of
shareholders
        Percentage total of
shareholders
        Number of ordinary
shares
              Percentage
of issued
share capital
See chart  g
 
¢ Private individuals      41,572        92.77        13,885,472        5.88   
¢ Nominee companies      1,428        3.18        194,775,369        82.49   
¢ Limited and public limited
    companies
     1,647        3.68        12,813,041        5.43   
¢ Other corporate bodies      159        0.35        14,004,127        5.93   

¢ Pension funds, insurance

    companies and banks

     7        0.02        639,247        0.27   
Total      44,813        100        236,117,256        100   

Shareholder profile by size as at 31 December 2014

 

  

 

Range of

shareholdings

   Number of
shareholders
    Percentage total of
shareholders
    Number of ordinary
shares
    Percentage
of issued
share capital
See chart  g
 
¢ 1 – 199      28,412        63.40        1,801,918        0.76   
¢ 200 – 499      8,696        19.41        2,774,193        1.17   
¢ 500 – 999      4,029        8.99        2,820,987        1.19   
¢ 1,000 – 4,999      2,808        6.27        5,309,076        2.25   
¢ 5,000 – 9,999      237        0.53        1,666,106        0.71   
¢ 10,000 – 49,999      306        0.68        7,239,768        3.07   
¢ 50,000 – 99,999      95        0.21        6,746,779        2.86   
¢ 100,000 – 499,999      146        0.33        31,810,194        13.47   
¢ 500,000 – 999,999      42        0.09        30,898,339        13.09   
¢ 1,000,000 and above      42        0.09        145,049,896        61.43   
Total      44,813        100        236,117,256        100   

Shareholder profile by geographical location as at 31 December 2014

 

  

 

Country/

Jurisdiction

                        Percentage 
of issued 
share capital 1
See chart  g  
 
¢ UK                              50.3   
¢ Rest of Europe                              12.1   
¢ US (including ADRs)                              33.6   
¢ Rest of World                              4.0   
Total                              100   

 

1   The geographical profile presented is based on an analysis of shareholders (by manager) of 40,000 shares or above where geographical ownership is known. This analysis only captures 88.8% of total issued share capital. Therefore, the known percentage distributions have been multiplied by 100/88.8 (1.126) to achieve the figures shown in the table above.

As of 13 February 2015, 15,835,637 ADSs equivalent to 15,835,637 ordinary shares, or approximately 6.7 per cent of the total issued share capital, were outstanding and were held by 685 holders. Since certain ordinary shares are registered in the names of nominees, the number of shareholders on record may not be representative of the number of beneficial owners.

As of 13 February 2015, there were a total of 44,627 record holders of ordinary shares, of whom 249 had registered addresses in the US and held a total of 670,170 ordinary shares (0.27 per cent of the total issued share capital).

 

 

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Use ful inf or ma ti on

Investor information

 

Website and electronic communication

As part of IHG’s commitment to reduce the cost and environmental impact of producing and distributing printed documents in large quantities, this Annual Report and Form 20-F 2014 has been made available to shareholders through our website at www.ihgplc.com/investors under financial library.

Shareholders may electronically appoint a proxy to vote on their behalf at the 2015 AGM. Shareholders who hold their shares through CREST may appoint proxies through the CREST electronic proxy appointment service, by using the procedures described in the CREST Manual.

Shareholder hotel discount

IHG offers discounted hotel stays (subject to availability) for registered shareholders only, through a controlled access website. This is not available to shareholders who hold shares through nominee companies, ISAs or ADRs. For further details please contact the Company Secretariat department (see page 180).

Responsible Business Report

In line with our commitment to responsible business practices, this year we have decided to produce a broader Responsible Business Report showcasing our approach to responsible business and progress against our corporate responsibility targets. This can be viewed at www.ihgplc.com/responsiblebusiness

IHG ® Shelter in a Storm

IHG Shelter in a Storm enables IHG to support our hotels and local communities, employees and guests when a disaster occurs, by providing immediate and vital assistance.

To make a donation to the programme, visit the secure payment page at www.ihgshelterinastorm.com

Registrar

For information on a range of shareholder services, including enquiries concerning individual shareholdings, notification of a shareholder’s change of address and amalgamation of shareholder accounts (in order to avoid duplicate mailing of shareholder communications), shareholders should contact the Company’s Registrar, Equiniti, on 0871 384 2132 1,2 (calls from within the UK) or +44 (0) 121 415 7034 (calls from outside the UK).

Dividend services

Dividend Reinvestment Plan (DRIP)

The Company offers a DRIP for shareholders to purchase additional IHG shares with their cash dividends. For further information about the DRIP, please contact our Registrar helpline on 0871 384 2268 1,2 . A DRIP application form and information booklet are available at www.shareview.co.uk/products/pages/applyforadrip.aspx

Bank mandate

We encourage shareholders to have their dividends paid directly into their UK bank or building society account, to ensure efficient payment and clearance of funds on the payment date. For further information, please contact our Registrar (see page 180).

Overseas payment service

It is also possible for shareholders to have their dividends paid direct to their bank account in a local currency. Charges are payable for this service. Further information is available at www.shareview.co.uk/shareholders/pages/

overseaspayments.aspx

Out-of-date/unclaimed dividends

If you think that you have out-of-date dividend cheques or unclaimed dividend payments, please contact our Registrar (see page 180).

Individual Savings Account (ISA)

Equiniti offers a Stocks and Shares ISA that can invest in IHG shares. For further information, please contact Equiniti on 0871 384 2244 1,2 .

Share dealing services

Equiniti offers the following share dealing facilities:

Postal dealing

For more information, call 0871 384 2248 1,2

Telephone dealing

For more information, call 0845 603 7037 1,3

Internet dealing

For more information, visit www.shareview.co.uk

Changes to the base cost of IHG shares

Details of all the changes to the base cost of IHG shares held from April 2003 to December 2014, for UK Capital Gains Tax purposes, may be found on our website at www.ihgplc.com/investors under shareholder centre/tax information.

‘Gone away’ shareholders

Working with ProSearch (an asset reunification company), we continue to look for shareholders who have not kept their contact details up to date. We have funds waiting to be claimed and are committed to doing what we can to pay these to their rightful owners. For further details, please contact ProSearch on 01732 741 411 or email info@prosearchassets.com

Shareholder security

Many companies have become aware that their shareholders have received unsolicited telephone calls or correspondence concerning investment matters. These are typically from ‘brokers’ who target UK shareholders, offering to sell them what often turn out to be worthless or high-risk shares in US or UK investments. These operations are commonly known as ‘boiler rooms’. More detailed information on this or similar activity can be found on the Financial Conduct Authority website at www.fca.org.uk/consumers/scams. Details of any share dealing facilities that the Company endorses will be included in Company mailings.

American Depositary Receipts (ADRs)

The Company’s shares are listed on the NYSE in the form of American Depositary Shares, evidenced by ADRs and traded under the symbol ‘IHG’. Each ADR represents one ordinary share. All enquiries regarding ADR holder accounts and payment of dividends should be directed to JPMorgan Chase Bank, N.A., our ADR Depositary bank (contact details shown on page 180).

Documents on display

Documents referred to in this Annual Report and Form 20-F that are filed with the SEC can be found at the SEC’s public reference room located at 100 F Street, NE Washington, D.C. 20549, for further information and copy charges please call the SEC at 1-800-SEC-0330. The Company’s SEC filings since 22 May 2002 are also publicly available through the SEC’s website at www.sec.gov. Copies of the Company’s Articles can be obtained via the website at www.ihgplc.com/investors under corporate governance or from the Company’s registered office on request.

 

1   Calls cost 8p per minute plus network extras.
2   Lines are open from 8.30am to 5.30pm Monday to Friday, excluding UK public holidays.
3   Lines are open from 8.00am to 4.30pm Monday to Friday, excluding UK public holidays.
 

 

 

 

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Us ef ul in for mat ion continued

Financial calendar

 

          2014 
Special dividend of 174.9p per share (293¢ per ADR):   Payment date   14 July 
Interim dividend of 14.8p per share (25.0¢ per ADR):   Payment date   26 September 
Financial year end       31 December 
          2015 
Announcement of Preliminary Results for 2014       17 February 
2014 Final dividend of 33.8p per share (52.0¢ per ADR):   Ex-dividend date   2 April 
    Record date   7 April 
Announcement of 2015 First Quarter Interim Management Statement       8 May 
Annual General Meeting       8 May 
2014 Final dividend of 33.8p per share (52.0¢ per ADR):   Payment date   15 May 
Announcement of Half-Year Results for 2015       30 July 
2015 Interim dividend:   Payment date   October 
Announcement of 2015 Third Quarter Interim Management Statement       20 October 
Financial year end       31 December 
          2016 
Announcement of Preliminary Results for 2015       February 

Contacts

 

 

Registered office

Broadwater Park, Denham,

Buckinghamshire, UB9 5HR, UK

 

Telephone:

+44 (0) 1895 512 000

 

Fax :

+44 (0) 1895 512 101

 

www.ihgplc.com

 

For general information about the Group’s business, please contact the Corporate Affairs department at the above address. For all other enquiries, please contact the Company Secretariat department at the above address.

 

Registrar

Equiniti, Aspect House, Spencer Road,

Lancing, West Sussex, BN99 6DA, UK

 

Telephone:

0871 384 2132 1,2 (UK calls)

 

+44 (0) 121 415 7034 (non-UK calls)

 

www.shareview.co.uk

     

 

ADR Depositary

JPMorgan Chase Bank N.A.

PO Box 64504, St. Paul

MN 55120-0854, USA

 

Telephone:

+1 800 990 1135 (US calls) (toll-free)

+1 651 453 2128 (non-US calls)

 

Email: jpmorgan.adr@wellsfargo.com

 

www.adr.com

 

Auditor

Ernst & Young LLP

 

Investment bankers

Bank of America Merrill Lynch

Goldman Sachs

 

Solicitors

Freshfields Bruckhaus Deringer LLP

 

Stockbrokers

Bank of America Merrill Lynch

Goldman Sachs

     

 

IHG ® Rewards Club

If you wish to enquire about,

or join IHG Rewards Club, visit

www.ihg.com/rewardsclub or telephone:

 

0871 226 1111 3 (Europe)

 

+1 888 211 9874 4 (US and Canada)

 

+1 800 272 9273 4 (Mexico)

 

+1 801 975 3063 5 (English) (Central and South America)

 

+1 801 975 3013 5 (Spanish) (Central and South America)

 

+971 4 429 0530 5 (Middle East and Africa)

 

+02 9935 8362 5 (Australia)

 

+86 21 2033 4848 5 (Mandarin and Cantonese) (China and Hong Kong)

 

+81 3 5767 9325 5 (Japan)

 

+63 2 857 8778 5 (Korea)

 

+63 2 857 8788 5 (all other countries in Asia Pacific)

 

 

1   For those with hearing difficulties a text phone is available on 0871 384 2255 2 for UK callers with compatible equipment.
2   Calls cost 8p per minute plus network extras. Lines are open from 8.30am to 5.30pm Monday to Friday, excluding UK public holidays.
3   Telephone calls to this number are charged at 10p per minute. Standard network rates apply. Calls from mobiles will be higher.
4   Toll free.
5   Toll charges apply.

 

 

 

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E x h ib i t s   

The following exhibits are filed as part of this Annual Report on Form 20-F with the SEC:

 

Exhibit 1 1    Articles of Association of the Company (incorporated by reference to Exhibit 1 of the InterContinental Hotels Group PLC Annual Report on Form 20-F (File No. 1-10409) dated 11 April 2011)
Exhibit 4(a)(i)    $400 million bank facility agreement dated 13 January 2015, among InterContinental Hotels Group PLC and certain of its subsidiaries, and Bank of America Merrill Lynch International Limited
Exhibit 4(a)(ii)    Share sale and purchase agreement between Kimpton Group Holding LLC and Dunwoody Operations, Inc. dated 15 December 2014
Exhibit 4(a)(iii)    Share sale and purchase agreement relating to InterContinental Paris – Le Grand, between BHR Holdings BV and Constellation Hotels France Grand SA dated 7 December 2014
Exhibit 4(a)(iv) 1    Contribution agreement relating to InterContinental New York Barclay, between Barclay Operating Corp., InterContinental Hotels Group Resources, Inc., Constellation Barclay Holding US, LLC, and 111 East 48th Street Holdings, LLC dated 19 December 2013 (incorporated by reference to Exhibit 4(a)(i) of the InterContinental Hotels Group PLC Annual Report on Form 20-F (File No. 1-10409) dated 26 February 2014)
Exhibit 4(a)(v) 1    Asset sale and purchase agreement relating to Intercontinental Hotel, Park Lane, London, between Hotel Inter-Continental London Limited, Constellation Hotel (Opco) UK S.A., and Six Continents Limited dated 27 March 2013 (incorporated by reference to Exhibit 4(a)(ii) of the InterContinental Hotels Group PLC Annual Report on Form 20-F (File No. 1-10409) dated 26 February 2014)
Exhibit 4(a)(vi) 1    Five-year $1,070 million bank facility agreement dated 7 November 2011, among The Royal Bank of Scotland plc, NB International Finance B.V., Citigroup Global Markets Limited, HSBC Bank plc, Lloyds TSB Bank plc and The Bank of Tokyo-Mitsubishi UFJ, Ltd. (incorporated by reference to Exhibit 4(a)(i) of the InterContinental Hotels Group PLC Annual Report on Form 20-F (File No. 1-10409) dated 29 March 2012)
Exhibit 4(a)(vii) 1    First supplemental trust deed dated 7 July 2011 modifying and restating the Euro Medium Term Note programme governed by a trust deed dated 29 November 2009 (incorporated by reference to Exhibit 4(a)(ii) of the InterContinental Hotels Group PLC Annual Report on Form 20-F (File No. 1-10409) dated 29 March 2012)
Exhibit 4(a)(viii) 1    Amended and restated trust deed dated 9 November 2012 relating to a £750 million Euro Medium Term Note Programme, among InterContinental Hotels Group PLC, Six Continents Limited, InterContinental Hotels Limited and HSBC Corporate Trustee Company (UK) Limited (incorporated by reference to Exhibit 4(a)(iii) of the InterContinental Hotels Group PLC Annual Report on Form 20-F (File No. 1-10409) dated 26 March 2013)
Exhibit 4(c)(i) 1    Paul Edgecliffe-Johnson’s service contract dated 6 December 2013, commencing on 1 January 2014 (incorporated by reference to Exhibit 4(c)(i) of the InterContinental Hotels Group PLC Annual Report on Form 20-F (File No. 1-10409) dated 26 February 2014)
Exhibit 4(c)(ii) 1    Tracy Robbins’ service contract dated 9 August 2011 (incorporated by reference to Exhibit 4(c)(i) of the InterContinental Hotels Group PLC Annual Report on Form 20-F (File No. 1-10409) dated 29 March 2012)
Exhibit 4(c)(iii) 1    Tom Singer’s service contract dated 26 July 2011 (incorporated by reference to Exhibit 4(c)(ii) of the InterContinental Hotels Group PLC Annual Report on Form 20-F (File No. 1-10409) dated 29 March 2012)
Exhibit 4(c)(iv) 1    Kirk Kinsell’s service contract commencing on 1 August 2010, as amended by a letter dated 5 July 2010 (incorporated by reference to Exhibit 4(c)(ii) of the InterContinental Hotels Group PLC Annual Report on Form 20-F (File No. 1-10409) dated 11 April 2011)
Exhibit 4(c)(v) 1    Richard Solomons’ service contract dated 16 March 2011, commencing on 1 July 2011 (incorporated by reference to Exhibit 4(c)(iii) of the InterContinental Hotels Group PLC Annual Report on Form 20-F (File No. 1-10409) dated 11 April 2011)
Exhibit 4(c)(vi) 1    Rules of the InterContinental Hotels Group Long Term Incentive Plan as amended on 26 September 2012 (incorporated by reference to Exhibit 4(c)(v) of the InterContinental Hotels Group PLC Annual Report on Form 20-F (File No. 1-10409) dated 26 March 2013)
Exhibit 4(c)(vii) 1    Rules of the InterContinental Hotels Group Annual Bonus Plan as amended on 26 September 2012 (incorporated by reference to Exhibit 4(c)(vi) of the InterContinental Hotels Group PLC Annual Report on Form 20-F (File No. 1-10409) dated 26 March 2013)
Exhibit 4(c)(ix)    Rules of the InterContinental Hotels Group Long Term Incentive Plan as amended on 2 May 2014
Exhibit 4(c)(x)    Rules of the InterContinental Hotels Group Annual Performance Plan as amended on 2 May 2014
Exhibit 8    List of subsidiaries as at 31 December 2014
Exhibit 12(a)    Certification of Richard Solomons filed pursuant to 17 CFR 240.13a-14(a)
Exhibit 12(b)    Certification of Paul Edgecliffe-Johnson filed pursuant to 17 CFR 240.13a-14(a)
Exhibit 13(a)    Certification of Richard Solomons and Paul Edgecliffe-Johnson furnished pursuant to 17 CFR 240.13a-14(b) and 18 U.S.C.1350
Exhibit 15(a)    Consent of independent registered public accounting firm, Ernst & Young LLP

 

1   Incorporated by reference.

 

 

 

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For m 2 0-F c ross- refer ence guide

 

Item    Form 20-F caption    Location in this document    Page
1    Identity of directors, senior management and advisers    Not applicable   
2    Offer statistics and expected timetable    Not applicable   
3    Key information:          
   3A – Selected financial data    Shareholder information: Selected five-year consolidated financial information    174-175
          Shareholder information: Dividend history    177
     3B – Capitalisation and indebtedness    Not applicable   
     3C – Reason for the offer and use of proceeds    Not applicable   
     3D – Risk factors    Group information: Risk factors    162-165
4    Information on the Company          
   4A – History and development of the Company    Group information: History and developments    162
      Shareholder information: Return of funds    176
          Useful information: Contact details    180
   4B – Business overview    Strategic Report    2-51
          Group information: Working Time Regulations 1998    169
     4C – Organisational structure    Group Financial Statements: Note 34 – Principal operating subsidiary undertakings    153
   4D – Property, plants and equipment    Strategic Report: Doing business responsibly – IHG’s global greenhouse gas (GHG) emissions    25
          Group Financial Statements: Note 10 – Property, plant and equipment    126
4A    Unresolved staff comments    None   
5    Operating and financial review and prospects          
   5A – Operating results    Strategic Report: Performance    34-51
          Group Financial Statements: Accounting policies    107-113
   5B – Liquidity and capital resources    Strategic Report: Performance – Liquidity and capital resources    50-51
      Group Financial Statements: Note 17 – Cash and cash equivalents    133
      Group Financial Statements: Note 20 – Financial risk management    135-137
      Group Financial Statements: Note 21 – Loans and other borrowings    138-139
      Group Financial Statements: Note 22 – Derivative financial instruments    139
          Group Financial Statements: Note 23 – Fair value measurement    140-141
    

5C – Research and development; intellectual

         property

   Not applicable   
     5D – Trend information    Strategic Report: Performance    34-51
     5E – Off-balance sheet arrangements    Strategic Report: Performance – Liquidity and capital resources    50-51
     5F – Tabular disclosure of contractual obligations    Strategic Report: Performance – Liquidity and capital resources    50-51
     5G – Safe harbour    Additional Information: Forward-looking statements    186
6    Directors, senior management and employees          
     6A – Directors and senior management    Corporate Governance: Who is on our Board of Directors and Who is on our Executive Committee    57-61
   6B – Compensation    Directors’ Remuneration Report    76-91
      Group Financial Statements: Note 25 – Retirement benefits    142-146
          Group Financial Statements: Note 26 – Share-based payments    146-148
     6C – Board practices    Corporate Governance    54-72
   6D – Employees    Strategic Report: Disciplined Execution – Investment in developing great talent    23
      Group Financial Statements: Note 3 – Staff costs and Directors’ emoluments    120
          Group information: Working Time Regulations 1998    169
   6E – Share ownership    Directors’ Report: Director and Executive Committee shareholdings    74
      Directors’ Remuneration Report: Annual Report on Directors’ Remuneration – Scheme interests awarded during 2014    86
      Directors’ Remuneration Report: Annual Report on Directors’ Remuneration – Statement of Directors’ shareholdings and share interests    88
      Group Financial Statements: Note 26 – Share-based payments    146-148
          Group information: Executive Committee members’ shareholdings    166
7    Major shareholders and related party transactions          
   7A – Major shareholders    Directors’ Report: Major institutional shareholders    73
          Shareholder information: Shareholder profiles    178
   7B – Related party transactions    Group Financial Statements: Note 14 – Investment in associates and joint ventures    130
          Group Financial Statements: Note 31 – Related party disclosures    152
     7C – Interests of experts and counsel    Not applicable   
8    Financial Information          
   8A – Consolidated statements and other    Directors’ Report: Dividends    73
            financial information    Group Financial Statements    92-153
          Group information: Rights attaching to shares    167-168
     8B – Significant changes    None   

 

 

 

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Item    Form 20-F caption    Location in this document    Page
9    The offer and listing          
     9A – Offer and listing details    Shareholder information: Share price information    177
     9B – Plan of distribution    Not applicable   
     9C – Markets    Shareholder information: Share price information    177
     9D – Selling shareholders    Not applicable   
     9E – Dilution    Not applicable   
     9F – Expenses of the issue    Not applicable   
10    Additional information          
     10A – Share capital    Not applicable   
     10B – Memorandum and articles of association    Group information: Articles of Association    167-168
     10C – Material contracts    Group information: Material contracts    169-170
     10D – Exchange controls    Shareholder information: Exchange controls and restrictions on payment of dividends    171
     10E – Taxation    Shareholder information: Taxation    171-173
     10F – Dividends and paying agents    Not applicable   
     10G – Statement by experts    Not applicable   
     10H– Documents on display    Useful information: Investor information – Documents on display    179
     10I – Subsidiary information    Not applicable   
11    Quantitative and qualitative disclosures about market risk    Group Financial Statements: Note 20 – Financial risk management    135-137
12    Description of securities other than equity securities          
     12A – Debt securities    Not applicable   
     12B – Warrants and rights    Not applicable   
     12C – Other securities    Not applicable   
     12D – American depositary shares    Group information: Description of securities other than equity securities    166-167
13    Defaults, dividend arrearages and delinquencies    Not applicable   
14    Material modifications to the rights of security holders and use of proceeds    Not applicable   
15    Controls and Procedures          
     15A – Controls and Procedures    Shareholder information: Disclosure controls and procedures    173
    

15B – Management’s annual report on internal control over financial reporting

   Group Financial Statements: Statement of Directors’ Responsibilities – Management’s report on internal control over financial reporting    94
    

15C – Attestation report

   Group Financial Statements: Independent Auditor’s US Report    99
    

15D – Changes in internal controls over financial reporting

   Group Financial Statements: Statement of Directors’ Responsibilities: Management’s report on internal control over financial reporting    94
16    16A – Audit committee financial expert   

Corporate Governance: Audit Committee Report

Shareholder information: Summary of significant corporate governance differences from NYSE listing standards – Committees

  

65

174

     16B – Code of ethics    Strategic Report: Doing business responsibly    24-25, 74
   16C – Principal accountant fees and services    Corporate Governance: Audit Committee Report – External Auditor    66-67
      Corporate Governance: Audit Committee Report – Non-audit services    67
          Group Financial Statements: Note 4 – Auditor’s remuneration paid to Ernst & Young LLP    120
    

16D – Exemptions from the listing standards for audit committees

   Not applicable   
    

16E – Purchase of equity securities by the issuer and affiliated purchasers

   Shareholder information: Purchases of equity securities by the Company and affiliated purchasers    176
    

16F – Change in registrant’s certifying accountant

   Not applicable   
     16G – Corporate governance    Shareholder information: Summary of significant corporate governance differences from NYSE listing standards    173-174
     16H – Mine safety disclosure    Not applicable   
17    Financial statements    Not applicable   
18    Financial statements    Group Financial Statements    92-153
19    Exhibits    Additional information: Exhibits    181

 

 

 

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G l o s s a ry

 

adjusted

excluding the effect of exceptional items and any relevant tax.

 

ADR

an American Depositary Receipt, being a receipt evidencing title to an ADS.

 

ADR Depositary (JPMorgan)

JPMorgan Chase Bank N.A.

 

ADS

an American Depositary Share as evidenced by an ADR, being a registered negotiable security, listed on the New York Stock Exchange, representing one ordinary share of 15  265 329 pence each of the Company.

 

AGM

Annual General Meeting.

 

AMEA

Asia, Middle East and Africa.

 

Annual Report

The Annual Report and Form 20-F in relation to the years ending 31 December 2013 or 2014, as relevant.

 

APP

Annual Performance Plan.

 

Articles

the Articles of Association of the Company for the time being in force.

 

average daily rate or average room rate

rooms revenue divided by the number of room nights sold.

 

basic earnings per ordinary share

profit available for IHG equity holders divided by the weighted average number of ordinary shares in issue during the year.

 

capital expenditure

purchases of property, plant and equipment, intangible assets, associate and joint venture investments, and other financial assets.

 

cash-generating units (CGUs)

the smallest identifiable groups of assets that generate cash inflows that are largely independent of the cash inflows from other assets or groups of assets.

 

Code

UK Corporate Governance Code issued in September 2012 by the Financial Reporting Council in the UK.

 

Companies Act

the Companies Act 2006, as amended from time to time.

 

Company

InterContinental Hotels Group PLC.

comparable RevPAR

a comparison for a grouping of hotels that have traded in all months in both financial years being compared. Principally excludes new hotels, hotels closed for major refurbishment and hotels sold in either of the two years.

 

constant currency

a current year value translated using the previous year’s exchange rates.

 

contingencies

liabilities that are contingent upon the occurrence of one or more uncertain future events.

 

continuing operations

operations not classified as discontinued.

 

currency swap

an exchange of a deposit and a borrowing, each denominated in a different currency, for an agreed period of time.

 

derivatives

a financial instrument used to reduce risk, the price of which is derived from an underlying asset, index or rate.

 

direct channels

digital and voice.

 

discontinued operations

hotels or operations sold or those classified as held for sale when the results relate to a separate line of business, geographical area of operations, or where there is a co-ordinated plan to dispose of a separate line of business or geographical area of operations.

 

Employee Engagement survey

twice a year, we ask our employees and those who work in our managed hotels (excluding our joint venture hotels) to participate in an Employee Engagement survey, to measure employee engagement.

 

EU

the European Union.

 

euro or

the currency of the European Economic and Monetary Union.

 

exceptional items

items that are disclosed separately because of their size or nature.

extended-stay

hotels designed for guests staying for periods of time longer than a few nights and tending to have a higher proportion of suites than normal hotels (Staybridge Suites and Candlewood Suites).

 

fee margin

operating profit as a percentage of revenue, excluding revenue and operating profit from owned and leased hotels, managed leases and significant liquidated damages.

 

fee revenue

Group revenue excluding revenue from owned and leased hotels, managed leases and significant liquidated damages.

 

franchisee

an operator who uses a brand under licence from the brand owner, IHG.

 

franchisor

the brand owner, IHG, who licenses brands for use by operators.

 

goodwill

the difference between the consideration given for a business and the total of the fair values of the separable assets and liabilities comprising that business.

 

Group or IHG

the Company and its subsidiaries.

 

Guest Heartbeat

IHG’s guest satisfaction measurement tool to measure brand preference and guest satisfaction.

 

hedging

the reduction of risk, normally in relation to foreign currency or interest rate movements, by making offsetting commitments.

 

IASB

International Accounting Standards Board.

 

ICETUS

InterContinental Executive Top-Up Scheme.

 

IC Plan

InterContinental Hotels UK Pension Plan.

 

IFRS

International Financial Reporting Standards as adopted by the EU and issued by the IASB.

 

IHG System

Hotels operating under franchise and management agreements together with IHG owned and leased hotels.

 

 

 

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IHG System size

the number of hotels/rooms franchised, managed, owned and leased by IHG.

 

indirect channels

online travel intermediaries and business and leisure travel agents.

 

interest rate swap

an agreement to exchange fixed for floating interest rate streams (or vice versa) on a notional principal.

 

liquidated damages

payments received in respect of the

early termination of management and franchise contracts, where applicable.

 

LTIP

Long Term Incentive Plan.

 

managed leases

properties structured for legal reasons as operating leases but with the same characteristics as management contracts.

 

management contract

a contract to operate a hotel on behalf of the hotel owner.

 

market capitalisation

the value attributed to a listed company by multiplying its share price by the number of shares in issue.

 

net debt

borrowings less cash and cash equivalents, including the exchange element of the fair value of currency swaps hedging the borrowings.

 

net rooms supply

net total number of IHG hotel rooms.

 

NYSE

New York Stock Exchange.

 

occupancy rate

rooms occupied by hotel guests, expressed as a percentage of rooms that are available.

 

ordinary share

from 9 October 2012 until 30 June 2014, the ordinary shares of 14  194 329 pence each in the Company; and from 1 July 2014, the ordinary shares of 15  265 329 pence each in the Company.

 

owner

the ultimate owner of a hotel property.

 

pipeline

hotels/rooms that will enter the IHG System at a future date. A new hotel only enters the pipeline once a contract has been signed and the appropriate fees paid. In rare circumstances, a hotel will not open for reasons such as the financing being withdrawn.

RevPAR or revenue per available room

rooms revenue divided by the number of room nights that are available (can be mathematically derived from occupancy rate multiplied by average daily rate).

 

room count

number of rooms franchised, managed, owned or leased by IHG.

 

rooms revenue

revenue generated from the sale of room nights.

 

royalty revenues

rooms revenue that a franchisee pays to the brand owner for use of the brand name.

 

SCETUS

Six Continents Executive Top-Up Scheme.

 

SEC

US Securities and Exchange Commission.

 

Six Continents

Six Continents Limited; previously Six Continents PLC and re-registered as a private limited company on 6 June 2005.

 

sterling or pounds sterling, £, pence or p

the pound sterling, the currency of the United Kingdom.

 

subsidiary undertaking

a company over which the Group exercises control.

 

system contribution to revenue

per cent of rooms revenue delivered through IHG’s direct and indirect systems and channels.

 

System Fund or Fund

assessment fees and contributions collected from hotels within the IHG System for the specific use of marketing, the IHG Rewards Club loyalty programme and the global reservations system.

 

technology income

income received from hotels under franchise and management agreements for the use of IHG’s proprietary reservations system.

 

total gross revenue

total rooms revenue from franchised hotels and total hotel revenue from managed, owned and leased hotels. It is not revenue attributable to IHG, as it is derived from hotels owned by third parties.

 

TSR or Total Shareholder Return

the theoretical growth in value of a shareholding over a period, by reference to the beginning and ending share price, and assuming that dividends, including special dividends, are reinvested to purchase additional units of the equity.

UK

the United Kingdom.

 

UK DB Plan

the Defined Benefit section of the IC Plan.

 

UK DC Plan

the Defined Contribution section of the IC Plan.

 

UK GAAP

United Kingdom Generally Accepted Accounting Practice.

 

US

the United States of America.

 

US 401(k) Plan

the Defined Contribution 401(k) plan.

 

US Deferred Compensation Plan

the Defined Contribution Deferred Compensation Plan.

 

US dollars, US$, $ or ¢

the currency of the United States of America.

 

working capital

the sum of inventories, receivables and payables of a trading nature, excluding financing and taxation items.

 

 

 

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IHG   Annual Report and Form 20-F 2014

 

 

Forw ard- look ing s tate me nts

The Annual Report and Form 20-F 2014 contain certain forward-looking statements as defined under US legislation (section 21E of the Securities Exchange Act of 1934) with respect to the financial condition, results of operations and business of InterContinental Hotels Group and certain plans and objectives of the Board of Directors of InterContinental Hotels Group PLC with respect thereto. Such statements include, but are not limited to, statements made in the Chairman’s Statement and in the Chief Executive Officer’s Review. These forward-looking statements can be identified by the fact that they do not relate only to historical or current facts. Forward-looking statements often use words such as ‘anticipate’, ‘target’, ‘expect’, ‘estimate’, ‘intend’, ‘plan’, ‘goal’, ‘believe’, or other words of similar meaning. These statements are based on assumptions and assessments made by InterContinental Hotels Group’s management in light of their experience and their perception of historical trends, current conditions, expected future developments and other factors, they believe to be appropriate.

By their nature, forward-looking statements are inherently predictive, speculative and involve risk and uncertainty. There are a number of factors that could cause actual results and developments to differ materially from those expressed in, or implied by, such forward-looking statements, including, but not limited to: the risks of the effect of political and economic developments; the risk of events that adversely impact domestic or international travel; the risks of the hotel industry supply and demand cycle; the Group being subject to a competitive and changing industry; the Group’s exposure to risks related to executing and realising benefits from strategic transactions, including acquisitions; the Group’s dependence upon a wide range of external stakeholders and business partners; the Group’s exposure to increasing competition from online travel agents and intermediaries; the risks related to identifying, securing and retaining franchise and management agreements; the risks in relation to changing technology and systems; the risks associated with the Group’s financial stability and its ability to borrow and satisfy debt covenants; the risk of litigation; the Group’s reliance on the reputation of its brands and exposure to inherent reputation risks, including those associated with intellectual property; the risks involved in the Group’s reliance upon its reservations system and other key technology platforms, and the risks that could cause the failure of these systems; the risks related to information security and data privacy; the risks associated with safety, security and crisis management; the ability to acquire and retain the right people, skills and capability to manage growth and change; compliance with existing and changing regulations across numerous countries, territories and jurisdictions; the risks related to ethics and responsible business practices; and the risks associated with insuring its business.

The main factors that could affect the business and financial results are described in the Strategic Report of the Annual Report and Form 20-F 2014.

 

 

 

Designed and produced

by Addison Group

 

www.addison-group.net

 

Managed by RR Donnelley

 

This Report is printed on Satimatt Green
which is manufactured using 75%
post-consumer recycled fibre and 25%
FSC ® certified virgin fibre. Both the
manufacturing mills and printer are
ISO 14001 and FSC ® certified.

 

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InterContinental Hotels Group PLC

Broadwater Park, Denham,

Buckinghamshire UB9 5HR

United Kingdom

Tel +44 (0) 1895 512 000

Fax +44 (0) 1895 512 101

Web www.ihgplc.com

Make a booking at www.ihg.com


Table of Contents

SIGNATURES

The registrant hereby certifies that it meets all of the requirements for filing on Form 20-F and that it has duly caused and authorized the undersigned to sign this Annual Report on its behalf.

 

INTERCONTINENTAL HOTELS GROUP PLC

(Registrant)

By:  

/s/    Paul Edgecliffe-Johnson

  Name:    Paul Edgecliffe-Johnson
  Title:    Chief Financial Officer

Date: February 26, 2015

Exhibit 4(a)(i)

CLIFFORD CHANCE LLP

 

LOGO

EXECUTION VERSION

DATED 13 JANUARY 2015

INTERCONTINENTAL HOTELS GROUP PLC

AND CERTAIN OF ITS SUBSIDIARIES

AS BORROWERS AND/OR GUARANTORS

BANK OF AMERICA MERRILL LYNCH INTERNATIONAL LIMITED

AS ORIGINAL LENDER

BANK OF AMERICA MERRILL LYNCH INTERNATIONAL LIMITED

AS FACILITY AGENT

AND

BANK OF AMERICA MERRILL LYNCH INTERNATIONAL LIMITED

AS MANDATED LEAD ARRANGER

 

 

$400,000,000

FACILITY AGREEMENT

 

 

 


CONTENTS

 

Clause         Page  

1.

   Definitions and Interpretation      1   

2.

   The Facility      16   

3.

   Purpose      19   

4.

   Conditions of Utilisation      19   

5.

   Utilisation      19   

6.

   Repayment      20   

7.

   Prepayment and Cancellation      22   

8.

   Interest      26   

9.

   Interest Periods      27   

10.

   Changes to the Calculation of Interest      27   

11.

   Fees      29   

12.

   Tax Gross-Up and Indemnities      30   

13.

   Increased Costs      40   

14.

   Other Indemnities      41   

15.

   Mitigation by the Lenders      42   

16.

   Costs and Expenses      43   

17.

   Guarantee and Indemnity      43   

18.

   Representations      46   

19.

   Information Undertakings      49   

20.

   Financial Covenants      53   

21.

   General Undertakings      56   

22.

   Events of Default      62   

23.

   Changes to the Lenders      65   

24.

   Changes to the Obligors      70   

25.

   Role of the Facility Agent and the Arranger      72   

26.

   Conduct of Business by the Finance Parties      79   

27.

   Sharing among the Finance Parties      79   

28.

   Payment Mechanics      81   

29.

   Set-Off      84   

30.

   Notices      85   

31.

   Calculations and Certificates      87   

32.

   Partial Invalidity      87   

33.

   Remedies and Waivers      87   

34.

   Amendments and Waivers      88   


35.

   Confidentiality      89   

36.

   Counterparts      94   

37.

   Governing Law      94   

38.

   Enforcement      94   

Schedule 1 The Original Lenders

     96   

Part A The Original Lenders (other than UK Non Bank Lenders)

     96   

Part B The Original Lenders (UK Non Bank Lenders)

     97   

Schedule 2 Conditions Precedent

     98   

Part A Conditions Precedent to Initial Utilisation

     98   

Part B Conditions Precedent required to be delivered by an Additional Obligor

     100   

Schedule 3 Requests

     101   

Part A Utilisation Request

     101   

Schedule 4 Form of Transfer Certificate

     102   

Schedule 5 Form of Accession Letter

     105   

Schedule 6 Form of Resignation Letter

     106   

Schedule 7 Form of Compliance Certificate

     107   

Schedule 8 Security

     108   

Schedule 9 Timetables

     109   

Schedule 10 Form of Confidentiality Undertaking

     110   

Schedule 11 Form of Increase Confirmation

     116   


THIS AGREEMENT is dated 13 JANUARY 2015

BETWEEN:

 

(1) INTERCONTINENTAL HOTELS GROUP PLC incorporated in England and Wales with registration number 05134420 (the “ Company ”);

 

(2) SIX CONTINENTS LIMITED incorporated in England and Wales with registration number 913450 and INTERCONTINENTAL HOTELS LIMITED incorporated in England and Wales with registration number 4551528 (together with the Company, the “ Original Borrowers ”);

 

(3) SIX CONTINENTS LIMITED incorporated in England and Wales with registration number 913450 and INTERCONTINENTAL HOTELS LIMITED incorporated in England and Wales with registration number 4551528 (together with the Company, the “ Original Guarantors ”);

 

(4) BANK OF AMERICA MERRILL LYNCH INTERNATIONAL LIMITED as mandated lead arrangers (the “ Arranger ”);

 

(5) THE FINANCIAL INSTITUTIONS listed in Schedule 1 as lenders (the “ Original Lenders ”); and

 

(6) BANK OF AMERICA MERRILL LYNCH INTERNATIONAL LIMITED as agent of the other Finance Parties (the “ Facility Agent ”).

IT IS AGREED as follows:

 

1. DEFINITIONS AND INTERPRETATION

 

1.1 Definitions

In this Agreement:

Acceptable Bank ” means a bank or financial institution which has a rating for its long-term unsecured and non credit-enhanced debt obligations of A-1 or higher by Standard & Poor’s Rating Services Limited or Fitch Ratings Ltd or P-1 or higher by Moody’s or a comparable rating from an internationally recognised credit rating agency.

Accession Letter ” means a document substantially in the form set out in Schedule 5 ( Form of Accession Letter ).

Additional Borrower ” means a company which becomes an Additional Borrower in accordance with Clause 24 ( Changes to the Obligors ).

Additional Guarantor ” means a company which becomes an Additional Guarantor in accordance with Clause 24 ( Changes to the Obligors ).

Additional Obligor ” means an Additional Borrower or an Additional Guarantor.

 

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Affiliate ” means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company.

Applicable Accounting Principles ” means those accounting principles, standards and practices on which the preparation of the Original Financial Statements was based and those accounting policies which were used in the preparation of those financial statements.

Authorisation ” means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration.

Availability Period ” means the period from and including the date of this Agreement to and including the date falling seven days after the date of this Agreement.

Available Commitment ” means a Lender’s Commitment minus:

 

  (a) the Dollar Amount of its participation in any outstanding Loans; and

 

  (b) in relation to the Utilisation, the amount of its participation in any Loans that are due to be made on the proposed Utilisation Date.

Available Facility ” means the aggregate for the time being of each Lender’s Available Commitment.

Bank Levy ” means the United Kingdom bank levy as set out in the Finance Act 2011 (UK), the French taxe bancaire de risque systémique as set out in the Finance Bill 2011 (France) and the German Bank Levy as set out in the German Restructuring Fund Act, as all such legislation stands at the date of this Agreement.

Basel III ” means the agreements on capital requirements, a leverage ratio and liquidity standards contained in “Basel III: A global regulatory framework for more resilient banks and banking systems”, “Basel III: International framework for liquidity risk measurement, standards and monitoring” and “Guidance for national authorities operating the countercyclical capital buffer” published by the Basel Committee on Banking Supervision on 16 December 2010, each as amended, supplemented or restated.

Borrower ” means an Original Borrower or an Additional Borrower, unless it has ceased to be a Borrower in accordance with Clause 24 ( Changes to the Obligors ).

Borrowings ” has the meaning given to it in Clause 20 ( Financial covenants ).

Break Costs ” means the amount (if any) by which:

 

  (a) the interest (excluding the Margin) which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period; exceeds:

 

- 2 -


  (b) the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the Relevant Interbank Market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.

Business Day ” means a day (other than a Saturday or Sunday) on which banks are open for general business in London.

Cash ” has the meaning given to it in Clause 20 ( Financial covenants ).

Cash Equivalents ” has the meaning given to it in Clause 20 ( Financial covenants ).

Code ” means the US Internal Revenue Code of 1986.

Commitment ” means:

 

  (a) in relation to an Original Lender, the amount set opposite its name under the heading “ Commitment ” in Schedule 1 ( The Original Lenders ) and the amount of any other Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 ( Increase ); and

 

  (b) in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 ( Increase ),

to the extent not cancelled, reduced or transferred by it under this Agreement.

Compliance Certificate ” means a certificate substantially in the form set out in Schedule 7 ( Form of Compliance Certificate ).

Confidential Information ” means all information relating to the Company, any Obligor, the Group, the Finance Documents or the Facility of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or the Facility from either:

 

  (a) any member of the Group or any of its advisers; or

 

  (b) another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers,

in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes information that:

 

  (i) is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 35 ( Confidentiality ); or

 

- 3 -


  (ii) is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or

 

  (iii) is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality.

Confidentiality Undertaking ” means a confidentiality undertaking in the form set out in Schedule 10 ( Form of Confidentiality Undertaking ) or in any other form agreed between the Company and the Facility Agent.

Consolidated Gross Assets ” means the consolidated current assets plus consolidated non-current assets of the Group.

CTA 2009 ” means the Corporation Tax Act 2009.

CTA 2010 ” means the Corporation Tax Act 2010.

Default ” means an Event of Default or any event or circumstance specified in Clause 22 ( Events of Default ) which would (with the expiry of a grace period and/or the giving of notice) be an Event of Default.

Disruption Event ” means either or both of:

 

  (a) a material disruption to those payment or communication systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or

 

  (b) the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:

 

  (i) from performing its payment obligations under the Finance Documents; or

 

  (ii) from communicating with other Parties in accordance with the terms of the Finance Documents,

and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.

Dollar Amount ” means, in relation to a Loan, the amount specified in the Utilisation Request delivered by a Borrower for that Loan adjusted to reflect any repayment, prepayment, consolidation or division of the Loan.

 

- 4 -


EBITDA ” has the meaning given to it in Clause 20 ( Financial covenants ).

Event of Default ” means any event or circumstance specified as such in Clause 22 ( Events of Default ).

Existing Agreement ” means the $1,070,000,000 facility agreement dated 7 November 2011 made between, among others, the Borrower, the Guarantors and Bank of America Merrill Lynch International Limited (formerly Banc of America Securities Limited).

Existing Agreement Lender ” means a Lender (as such term is defined) under the Existing Agreement.

Facility ” means the term loan facility made available under this Agreement, as described in Clause 2.1 ( The Facility ).

Facility Office ” means the office or offices notified by a Lender to the Facility Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five Business Days’ written notice) as the office or offices through which it will perform its obligations under this Agreement.

FATCA ” means:

 

  (a) sections 1471 to 1474 of the Code or any associated regulations;

 

  (b) any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or

 

  (c) any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.

FATCA Application Date ” means:

 

  (a) in relation to a “withholdable payment” described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014;

 

  (b) in relation to a “withholdable payment” described in section 1473(1)(A)(ii) of the Code (which relates to “gross proceeds” from the disposition of property of a type that can produce interest from sources within the US), 1 January 2017; or

 

  (c) in relation to a “passthru payment” described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b) above, 1 January 2017,

or, in each case, such other date from which such payment may become subject to a deduction or withholding required by FATCA as a result of any change in FATCA after the date of this Agreement.

 

- 5 -


FATCA Deduction ” means a deduction or withholding from a payment under a Finance Document required by FATCA.

FATCA Exempt Party ” means a Party that is entitled to receive payments free from any FATCA Deduction.

Fee Letter ” means any letter or letters dated on or about the date of this Agreement between the Arranger and an Original Borrower (or the Facility Agent and an Original Borrower) setting out any of the fees referred to in Clause 11.1 ( Arrangement fee ).

Finance Document ” means this Agreement, the Mandate Letter any Fee Letter, any Accession Letter, any Resignation Letter and any other document designated as such by the Facility Agent and the Company.

Finance Party ” means the Facility Agent, the Arranger or a Lender.

Financial Indebtedness ” means any indebtedness (without double counting) for or in respect of:

 

  (a) moneys borrowed;

 

  (b) any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;

 

  (c) any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock, commercial paper or any similar instrument (entered into or issued primarily as a method of raising finance) provided that , for all purposes under this Agreement (other than for the purposes of Clause 22.5 ( Cross default )), any bonds from time to time issued and outstanding under the GBP 750m Bond Programme shall at the relevant time be valued as Financial Indebtedness having regard to the net effect of the marked-to-market value of any related interest and currency hedging arrangements in effect at that time;

 

  (d) the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with IFRS, be treated as a finance or capital lease;

 

  (e) receivables sold or discounted (other than any receivables to the extent they are sold or discounted on a non-recourse basis);

 

  (f) any amount raised under any other transaction (including any forward sale or purchase agreement) required by IFRS to be shown as a borrowing in the audited consolidated balance sheet of the Group;

 

  (g) for the purpose of Clause 22.5 ( Cross default ) only, any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value shall be taken into account);

 

  (h) shares which are expressed to be redeemable prior to the Termination Date;

 

- 6 -


  (i) any counter-indemnity obligation in respect of a guarantee, indemnity, bond, letter of credit or any other instrument issued by a bank or financial institution; and

 

  (j) the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (i) above,

but excluding indebtedness owing by a member of the Group to another member of the Group.

GBP ” or “ £ ” means the lawful currency for the time being of the United Kingdom of Great Britain and Northern Ireland.

GBP 750m Bond Programme ” means the Company’s £750,000,000 Euro Medium Term Note programme as outlined in the prospectus dated 7 July 2011 as amended or extended from time to time.

Group ” means the Company and its Subsidiaries for the time being.

Guarantor ” means an Original Guarantor or an Additional Guarantor, unless it has ceased to be a Guarantor in accordance with Clause 24 ( Changes to the Obligors ).

Historic Screen Rate ” means, in relation to any Loan, the most recent applicable Screen Rate for US Dollars and for a period equal in length to the Interest Period of that Loan and which is as of a day which is no more than 2 days before the Quotation Day.

Holding Company ” means, in relation to a company or corporation, any other company or corporation in respect of which it is a Subsidiary.

IFRS ” means international accounting standards within the meaning of IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements.

Impaired Agent ” means the Facility Agent at any time when:

 

  (a) it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for payment;

 

  (b) the Facility Agent otherwise rescinds or repudiates a Finance Document; or

 

  (c) an Insolvency Event has occurred and is continuing with respect to the Facility Agent,

unless, in the case of paragraph (a) above:

 

  (i) its failure to pay is caused by:

 

  (A) administrative or technical error; or

 

  (B) a Disruption Event; and

 

  payment is made within five Business Days of its due date; or

 

  (ii) the Facility Agent is disputing in good faith whether it is contractually obliged to make the payment in question.

 

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Increase Confirmation ” means a confirmation substantially in the form set out in Schedule 11 ( Form of Increase Confirmation ).

Increase Lender ” has the meaning given to that term in Clause 2.2 ( Increase ).

Insolvency Event ” in relation to a Finance Party means that the Finance Party:

 

  (a) is dissolved (other than pursuant to a consolidation, amalgamation or merger);

 

  (b) becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;

 

  (c) makes a general assignment, arrangement or composition with or for the benefit of its creditors;

 

  (d) institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official;

 

  (e) has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person or entity not prescribed in paragraph (d) above and:

 

  (i) results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or

 

  (ii) is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof;

 

  (f) has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);

 

  (g) seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets;

 

  (h) has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter; or

 

- 8 -


  (i) causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (h) above.

Interest Period ” means, in relation to a Loan, each period determined in accordance with Clause 9 ( Interest Periods ) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 8.3 ( Default interest ).

Interpolated Historic Screen Rate ” means, in relation to any Loan, the rate (rounded to the same number of decimal places as the two relevant Screen Rates) which results from interpolating on a linear basis between:

 

  (a) the most recent applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan; and

 

  (b) the most recent applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan,

each for US Dollars and each of which is as of a day which is no more than 2 days before the Quotation Day.

Interpolated Screen Rate ” means, in relation to any Loan, the rate (rounded to the same number of decimal places as the two relevant Screen Rates) which results from interpolating on a linear basis between:

 

  (a) the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan; and

 

  (b) the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan,

each as of the Specified Time for US Dollars.

ITA ” means the Income Tax Act 2007.

Lender ” means:

 

  (a) any Original Lender; and

 

  (b) any bank, financial institution, trust, fund or other entity which has become a Party in accordance with Clause 2.2 ( Increase ) or Clause 23 ( Changes to the Lenders ),

which in each case has not ceased to be a Party in accordance with the terms of this Agreement.

 

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LIBOR ” means, in relation to any Loan:

 

  (a) the applicable Screen Rate as of the Specified Time for US Dollars and for a period equal in length to the Interest Period of that Loan; or

 

  (b) as otherwise determined pursuant to Clause 10.1 ( Unavailability of Screen Rate ),

and if, in either case, that rate is less than zero, LIBOR shall be deemed to be zero.

LMA ” means the Loan Market Association.

Loan ” means a loan made or to be made under the Facility or the principal amount outstanding for the time being of that loan, as the context requires.

Majority Lenders ” means a Lender or Lenders whose Commitments aggregate more than 66 2 / 3  per cent. of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 66 2 / 3  per cent. of the Total Commitments immediately prior to the reduction).

Managed Assets ” means any assets (including, for the avoidance of doubt, any equity interest in any such asset) of a member of the Group which are sold and become, or remain, the subject of a management or franchise agreement in favour of the Group.

Mandate Letter ” means the mandate letter dated 17 November 2014 between the Company and Bank of America Merrill Lynch International Limited.

Margin ” means at any time the rate per annum determined by reference to the period from the Utilisation Date in accordance with the following table:

 

Period

   Margin (per cent. p.a.)

From and including the Utilisation Date to but excluding the date falling 6 Months after the Utilisation Date

   0.60

From and including the date falling 6 Months after the Utilisation Date to and excluding the date falling 12 Months after the Utilisation Date

   0.80

From and including the date falling 12 Months after the Utilisation Date to and excluding the date falling 18 Months after the Utilisation Date

   1.00

However if at any time an Event of Default is continuing, the Margin shall, until the date such Event of Default ceases to be continuing, be 1.00 per cent. per annum;

Material Adverse Effect ” means a material adverse effect on:

 

  (a) the ability of the Obligors (taken as a whole) to perform and comply with their payment obligations under any Finance Document; or

 

  (b) the ability of the Company to perform and comply with its obligations under Clause 20 ( Financial covenants ).

 

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Material Subsidiary ” means, at any time, any Subsidiary of the Company:

 

  (a) whose gross assets represent 5 per cent. or more of Consolidated Gross Assets or whose EBITDA represents 5 per cent. or more of consolidated EBITDA of the Group, in each case, as calculated by reference to the latest financial statements of such Subsidiary (which shall be audited if such statements are prepared by that Subsidiary) and the latest audited consolidated financial statements of the Group adjusted in such manner as the auditors of the Company may determine (which determination shall be conclusive in the absence of manifest error) (i) to reflect the gross assets and EBITDA of any person which has become or ceased to be a member of the Group since the end of the financial year to which the latest audited consolidated financial statements of the Group relate where such adjustment is requested by the Company and (ii) so that for the purposes of this definition, the gross assets of the relevant Subsidiary shall be calculated on the same basis as Consolidated Gross Assets are calculated and/or, as the case may be, EBITDA of the relevant Subsidiary shall be calculated on the same basis as consolidated EBITDA for the Group (but, in each case, relating only to the relevant Subsidiary) and making such adjustments and eliminations as are required to show the same as the contribution of the relevant Subsidiary to Consolidated Gross Assets and/or, as the case may be, consolidated EBITDA of the Group; or

 

  (b) to which is transferred all or substantially all of the business, undertaking or assets of a Subsidiary which immediately prior to such transfer is a Material Subsidiary, whereupon the transferor Subsidiary shall cease to be a Material Subsidiary and the transferee Subsidiary shall become a Material Subsidiary under this sub-paragraph (b) upon the completion of such transfer.

Any determination made by the auditors of the Company as to whether a Subsidiary of the Company is or is not a Material Subsidiary at any time shall be conclusive in the absence of manifest error.

Month ” means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:

 

  (a) subject to paragraph (c), if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;

 

  (b) if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and

 

  (c) if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.

The above rules will only apply to the last Month of any period.

 

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Moody’s ” means Moody’s Investors Services Inc.

Net Borrowings ” has the meaning given to it in Clause 20 ( Financial covenants ).

Net Interest Payable ” has the meaning given to it in Clause 20 ( Financial covenants ).

New Lender ” has the meaning given to it in Clause 23.1 ( Assignments and transfers by the Lenders ).

NZD ” means the lawful currency for the time being of New Zealand.

Obligor ” means the Company, a Borrower or a Guarantor.

Original Financial Statements ” means the audited consolidated financial statements of the Group for the financial year ended 31 December 2013.

Original Obligor ” means an Original Borrower or an Original Guarantor.

Party ” means a party to this Agreement.

Project Finance Indebtedness ” means Financial Indebtedness (in respect of which Security has been given) incurred by a member of the Group (a “ Project Group Member ”) for the purposes of financing the acquisition, construction, development and/or operation of an asset (a “ Project Asset ”) where the provider of the Financial Indebtedness has no recourse against any member of the Group, except for recourse to:

 

  (a) the Project Asset of the Project Group Member or receivables arising from the Project Asset;

 

  (b) a Project Group Member for the purpose of enforcing Security given by it so long as:

 

  (i) the recourse is limited to recoveries in respect of the Project Asset; and

 

  (ii) if the Project Asset does not comprise all or substantially all of the business of that Project Group Member, the provider of the Financial Indebtedness does not have the right to take any steps towards its winding up or dissolution or the appointment of a liquidator, administrator, receiver or similar officer or person, other than in respect of the Project Asset or receivables arising therefrom; or

 

  (c) a member of the Group to the extent only of its shareholding in a Project Group Member.

Project Group Member ” has the meaning given to it in the definition of Project Finance Indebtedness provided that the principal assets and business of such member of the Group is constituted by Project Assets and it has no other Financial Indebtedness except Project Finance Indebtedness.

Qualifying Lender ” has the meaning given to it in Clause 12 ( Tax gross-up and indemnities ).

 

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Quarter Date ” means each 31 March, 30 June, 30 September and 31 December in each financial year of the Company.

Quotation Day ” means, two Business Days before the first day of that period unless market practice differs in the Relevant Interbank Market, in which case the Quotation Day will be determined by the Agent in accordance with market practice in the Relevant Interbank Market (and if quotations would normally be given on more than one day, the Quotation Day will be the last of those days.

Reference Banks ” means, in relation to LIBOR the principal London offices of such banks as may be appointed by the Facility Agent in agreement with the Company (such agreement not to be unreasonably withheld).

Reference Bank Rate ” means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Agent at its request by the Reference Banks:

 

  (a) (other than where paragraph (b) below applies) as the rate at which the relevant Reference Bank could borrow funds in the London interbank market in US Dollars for the relevant period were it to do so by asking for and then accepting interbank offers for deposits in reasonable market size in that currency and for that period; or

 

  (b) if different, as the rate (if any and applied to the relevant Reference Bank and the relevant currency and period) which contributors to the Screen Rate are asked to submit to the relevant administrator.

Relevant Interbank Market ” means the London interbank market.

Relevant Period ” has the meaning given to it in Clause 20 ( Financial covenants ).

Repeating Representations ” means each of the representations set out in Clauses 18.1 ( Status ) to 18.4 ( Power and authority ), paragraph (a) of Clause 18.6 ( No default ) and Clause 18.8 ( Pari passu ranking ).

Representative ” means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.

Resignation Letter ” means a letter substantially in the form set out in Schedule 6 ( Form of Resignation Letter ).

Screen Rate ” means the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) US Dollars for the relevant period displayed (before any correction, recalculation or republication by the administrator) on the Thomson Reuters ICE Libor rates – LIBOR01 page of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate).

Security ” means a mortgage, pledge, lien, hypothecation, security interest or other charge or encumbrance entered into for the purpose of securing any obligation of any person.

 

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Specified Time ” means a time determined in accordance with Schedule 9 ( Timetables ).

Subsidiary ” means a subsidiary within the meaning of section 1159 of the Companies Act 2006 and, for the purpose of Clause 20 ( Financial covenants ) and in relation to financial statements of the Group, a subsidiary undertaking within the meaning of section 1162 of the Companies Act 2006, but in this Agreement “ Subsidiary ” shall for all purposes exclude each Project Group Member.

Super - Majority Lenders ” means a Lender or Lenders whose Commitments aggregate more than 85 per cent. of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 85 per cent. of the Total Commitments immediately prior to the reduction).

Tax ” means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure by an Obligor to pay or any delay in paying by an Obligor any of the same).

Termination Date ” means, subject to Clause 6.2 ( Extension of the Repayment Date ) the date which is 6 Months after the date of the Utilisation Date.

Total Commitments ” means the aggregate of the Lenders’ Commitments being $400,000,000 at the date of this Agreement.

Transfer Certificate ” means a certificate substantially in the form set out in Schedule 4 ( Form of Transfer Certificate ) or any other form agreed between the Facility Agent and the Company.

Transfer Date ” means, in relation to a transfer, the later of:

 

  (a) the proposed Transfer Date specified in the Transfer Certificate; and

 

  (b) the date on which the Facility Agent executes the Transfer Certificate.

Unpaid Sum ” means any sum due and payable but unpaid by an Obligor under the Finance Documents.

US ” means the United States of America.

US Dollars ” or “ $ ” means the lawful currency for the time being of the United States of America.

Utilisation ” means the utilisation of the Facility.

Utilisation Date ” means the date of the Utilisation, being the date on which the relevant Loan is to be made.

Utilisation Reques t” means a notice substantially in the form set out in Part A of Schedule 3 ( Requests ).

 

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VAT ” means:

 

  (a) any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and

 

  (b) any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere.

 

1.2 Construction

 

  (a) Unless a contrary indication appears, any reference in this Agreement to:

 

  (i) the “ Facility Agent ”, the “ Arranger ”, any “ Finance Party ”, any “ Guarantor ”, any “ Lender ”, any “ Obligor ” or any “ Party ” shall be construed so as to include its successors in title, permitted assigns and permitted transferees;

 

  (ii) assets ” includes present and future properties, revenues and rights of every description;

 

  (iii) a “ Finance Document ” or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, novated, supplemented, extended, restated (however fundamentally and whether or not more onerously) or replaced and includes any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under that Finance Document or other agreement or instrument;

 

  (iv) indebtedness ” includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;

 

  (v) a “ person ” includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality);

 

  (vi) a “ regulation ” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law but, if not having the force of law, which is generally complied with by those to whom it is addressed) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation;

 

  (vii) a “ subsidiary ” has the meaning given to it in section 1159 of the Companies Act 2006 and “ subsidiary undertaking ” has the same meaning given to it in section 1162 of the Companies Act 2006;

 

  (viii) a provision of law is a reference to that provision as amended or re-enacted; and

 

  (ix) a time of day is a reference to London time.

 

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  (b) Section, Clause and Schedule headings are for ease of reference only.

 

  (c) Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.

 

  (d) A Default or an Event of Default is “ continuing ” if it has not been remedied or waived.

 

1.3 Third Party Rights

A person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Agreement.

 

2. THE FACILITY

 

2.1 The Facility

Subject to the terms of this Agreement, the Lenders make available to the Borrowers a US Dollar term loan facility in an aggregate amount equal to the Total Commitments.

 

2.2 Increase

 

  (a) The Company may by giving prior notice to the Facility Agent after the effective date of a cancellation of:

 

  (i) all or part of the Commitments of a Lender in accordance with Clause 7.5 ( Right of repayment and cancellation in relation to, or replacement of, a single Lender ); or

 

  (ii) the Commitments of a Lender in accordance with Clause 7.1 ( Illegality ),

request that the Total Commitments be increased (and the Total Commitments under that Facility shall be so increased) in an aggregate amount of up to the amount of the Available Commitments or Commitments so cancelled as follows:

 

  (iii) the increased Commitments may be assumed by one or more Lenders or other banks, financial institutions, trusts, funds or other entities (each an “ Increase Lender ”) selected by the Company (each of which shall not be a member of the Group) and each of which confirms its willingness to assume and does assume all the obligations of a Lender corresponding to that part of the increased Commitments which it is to assume, as if it had been an Original Lender;

 

  (iv) each of the Obligors and any Increase Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and the Increase Lender would have assumed and/or acquired had the Increase Lender been an Original Lender;

 

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  (v) each Increase Lender shall become a Party as a “Lender” and any Increase Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Increase Lender and those Finance Parties would have assumed and/or acquired had the Increase Lender been an Original Lender;

 

  (vi) the Commitments of the other Lenders shall continue in full force and effect; and

 

  (vii) any increase in the Total Commitments shall take effect on the date specified by the Company in the notice referred to above or any later date on which the conditions set out in paragraph (b) below are satisfied.

 

  (b) An increase in the Total Commitments will only be effective on:

 

  (i) the execution by the Facility Agent of an Increase Confirmation from the relevant Increase Lender and the Facility Agent shall execute an Increase Confirmation within five Business Days of receipt by it of an Increase Confirmation duly executed by the Increase Lender;

 

  (ii) in relation to an Increase Lender which is not a Lender immediately prior to the relevant increase, the performance by the Facility Agent of all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the assumption of the increased Commitments by that Increase Lender, the completion of which the Facility Agent shall promptly notify to the Company and the Increase Lender.

 

  (c) Each Increase Lender, by executing the Increase Confirmation, confirms (for the avoidance of doubt) that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the increase becomes effective.

 

  (d) The Company may (but shall be under no obligation to) pay to the Increase Lender a fee in the amount and at the times agreed between the Company and the Increase Lender in a letter between the Company and the Increase Lender setting out that fee. A reference in this Agreement to a Fee Letter shall include any letter referred to in this paragraph.

 

  (e) Clause 23.5 ( Limitation of responsibility of Existing Lenders ) shall apply mutatis mutandis in this Clause 2.2 in relation to an Increase Lender as if references in that Clause to:

 

  (i) an “ Existing Lender ” were references to all the Lenders immediately prior to the relevant increase;

 

  (ii) the “ New Lender ” were references to that “ Increase Lender ”; and

 

  (iii) a “ re-transfer ” and “ re-assignment ” were references to respectively a “ transfer ” and “ assignment ”.

 

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2.3 Finance Parties’ rights and obligations

 

  (a) The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.

 

  (b) The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor shall be a separate and independent debt.

 

  (c) A Finance Party may, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents.

 

2.4 Obligors’ agent

 

  (a) Each Obligor (other than the Company) by its execution of this Agreement or an Accession Letter irrevocably appoints the Company to act on its behalf as its agent in relation to the Finance Documents and irrevocably authorises:

 

  (i) the Company on its behalf to supply all information concerning itself contemplated by this Agreement to the Finance Parties and to give all notices and instructions (including, if relevant, any Utilisation Request), to execute on its behalf any Accession Letter, to make such agreements and to effect the relevant amendments, supplements and variations capable of being given, made or effected by any Obligor notwithstanding that they may affect the Obligor (including, without limitation, by increasing the obligations of such Obligor howsoever fundamentally, whether by increasing the liabilities guaranteed or otherwise), without further reference to or the consent of that Obligor; and

 

  (ii) each Finance Party to give any notice, demand or other communication to that Obligor pursuant to the Finance Documents to the Company,

and in each case the Obligor shall be bound as though the Obligor itself had given the notices and instructions (including, without limitation, any Utilisation Request) or executed or made the agreements or effected the amendments, supplements or variations, or received the relevant notice, demand or other communication.

 

  (b)

Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice or other communication given or made by the Obligors’ agent or given to the Obligors’ agent under any Finance Document on behalf of another Obligor or in connection with any Finance Document (whether or not known to any other Obligor and whether occurring before or

 

- 18 -


  after such other Obligor became an Obligor under any Finance Document) shall be binding for all purposes on that Obligor as if that Obligor had expressly made, given or concurred with it. In the event of any conflict between any notices or other communications of the Obligors’ agent and any other Obligor, those of the Obligors’ agent shall prevail.

 

3. PURPOSE

 

3.1 Purpose

Each Borrower shall apply all amounts borrowed by it under the Facility towards general corporate purposes of the Group.

 

3.2 Monitoring

No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.

 

4. CONDITIONS OF UTILISATION

 

4.1 Initial conditions precedent

The Lenders will only be obliged to comply with Clause 5.4 ( Lenders’ participation ) in relation to the Utilisation if on or before the Utilisation Date for that Utilisation, the Facility Agent has received all of the documents and other evidence listed in Part A ( Conditions Precedent to Initial Utilisation ) of Schedule 2 ( Conditions Precedent ) in form and substance satisfactory to the Facility Agent. The Facility Agent shall notify the Company and the Lenders promptly upon being so satisfied.

 

4.2 Further conditions precedent

The Lenders will only be obliged to comply with Clause 5.4 ( Lenders’ participation ) if on the date of the Utilisation Request and on the proposed Utilisation Date:

 

  (a) no Default is continuing or would result from the proposed Loan; and

 

  (b) the Repeating Representations to be made by each Obligor are true in all material respects.

 

5. UTILISATION

 

5.1 Delivery of a Utilisation Request

A Borrower may utilise the Facility by delivery to the Facility Agent of the duly completed Utilisation Request not later than the Specified Time.

 

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5.2 Completion of a Utilisation Request

 

  (a) The Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:

 

  (i) the proposed Utilisation Date is a Business Day within the Availability Period;

 

  (ii) the currency and amount of the Utilisation comply with Clause 5.3 ( Currency and amount );

 

  (iii) the proposed Interest Period complies with Clause 9 ( Interest Periods ); and

 

  (iv) it specifies the account to which the proceeds of the Utilisation are to be credited.

 

  (b) Only one Loan may be requested in the Utilisation Request.

 

5.3 Currency and amount

 

  (a) The currency specified in the Utilisation Request must be US Dollars.

 

  (b) The amount of the proposed Loan must be an amount equal to the Available Facility.

 

5.4 Lenders’ participation

 

  (a) If the conditions set out in this Agreement have been met, and subject to Clause 6 ( Repayment ), each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office by no later than 2.30pm.

 

  (b) The amount of each Lender’s participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to making the Loan.

 

5.5 Cancellation of Commitment

The Total Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period.

 

6. REPAYMENT

 

6.1 Repayment of Loans

Subject to Clause 6.2 ( Extension of the Repayment Date ) below, the Borrower shall repay the aggregate Loans in full on the Termination Date (“ Repayment Date ”).

 

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6.2 Extension of the Repayment Date

In this Agreement:

Extended Repayment Date ” means the date which is six Months after the Repayment Date or, if such date is not a Business Day, the immediately preceding Business Day.

Extension Fee ” means 0.075% flat of the amount of the Facility (to be paid within five Business Days of the Repayment Date).

Second Extended Repayment Date ” means the date which is six Months after the Extended Repayment Date, or if such date is not a Business Day, the immediately preceding Business Day.

Second Extension Fee ” means 0.125% flat of the amount of the Facility (to be paid within five Business Days of the Extended Repayment Date):

 

  (a) The Finance Parties shall extend the Repayment Date to the Extended Repayment Date if each of the following conditions are satisfied on or before the Repayment Date:

 

  (i) the Borrower delivers an unconditional and irrevocable extension request in writing to the Facility Agent not more than 15 Business Days prior to the Termination Date; and

 

  (ii) no Default is outstanding on the date of the request referred to in paragraph (i) above or on the Termination Date or would result from the extension of the Repayment to the Extended Repayment Date.

 

  (b) Following an extension of the Facility in accordance with Clause 6.2 (a) ( Extended Repayment Date ), the Finance Parties shall extend the Extended Repayment Date to the Second Extended Repayment Date if each of the following are satisfied on or before the Extended Repayment Date:

 

  (i) the Borrower delivers an unconditional and irrevocable extension request in writing to the Facility Agent not more than three months before and not less than 15 days prior to the Extended Repayment Date; and

 

  (ii) no Default is outstanding on the date of the request referred to in paragraph (i) above or on the Extended Repayment Date or would result from the extension of the Extended Repayment Date to the Second Extended Repayment Date.

 

6.3 Payment of extension fees

 

  (a) If the Repayment Date is extended to the Extended Repayment Date pursuant to paragraph (a) of Clause 6.2 ( Extension of the Repayment Date ), the Borrower or the Company shall pay to the Agent (for the account of each Lender) the Extension Fee within five Business Days of the Repayment Date.

 

  (b) If the Extended Repayment Date is extended to the Second Extended Repayment Date pursuant to paragraph (b) of Clause 6.2 ( Extension of the Repayment Date ), the Borrower or the Company shall pay to the Agent (for the account of each Lender) the Second Extension Fee within five Business Days of the Extended Repayment Date.

 

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7. PREPAYMENT AND CANCELLATION

 

7.1 Illegality

If it becomes unlawful in any applicable jurisdiction for a Lender to perform any of its obligations as contemplated by this Agreement or to fund or maintain its participation in any Loan:

 

  (a) that Lender shall promptly notify the Facility Agent upon becoming aware of that event;

 

  (b) upon the Facility Agent notifying the Company, the Commitment of that Lender will be immediately cancelled; and

 

  (c) each Borrower shall repay that Lender’s participation in the Loans made to that Borrower on the last day of the Interest Period for each Loan occurring after the Facility Agent has notified the Company or, if earlier, the date specified by the Lender in the notice delivered to the Facility Agent (being no earlier than the last day of any applicable grace period permitted by law).

 

7.2 Change of control

 

  (a) If at any time any person or group of persons acting in concert gains control of the Company:

 

  (i) the Company shall promptly notify the Facility Agent upon becoming aware of that event;

 

  (ii) a Lender shall not be obliged to fund a Utilisation; and

 

  (iii) if a Lender so requires and notifies the Facility Agent within 30 days of the Company notifying the Facility Agent of the event, the Facility Agent shall, by not less than 30 days’ notice to the Company, cancel the Commitment of that Lender and declare the participation of that Lender in all outstanding Loans, together with accrued interest, and all other amounts accrued under the Finance Documents immediately due and payable, whereupon the Commitment of that Lender will be cancelled and all such outstanding amounts will become immediately due and payable.

 

  (b) For the purpose of paragraph (a) above “ control ” has the meaning given to it in section 1124 of the CTA 2010.

 

  (c) For the purpose of paragraph (a) above “ acting in concert ” has the meaning given to it in the City Code on Takeovers and Mergers.

 

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7.3 Voluntary cancellation

The Company may, if it gives the Facility Agent not less than three Business Days’ (or such shorter period as the Majority Lenders may agree) prior notice in writing, cancel the whole or any part (being a minimum amount of $40,000,000 and in multiples of $10,000,000) of the Available Facility. Any cancellation under this Clause 7.3 shall reduce the Commitments of the Lenders rateably.

 

7.4 Voluntary prepayment of Loans

A Borrower to which a Loan has been made, may, if it gives the Facility Agent not less than three Business Days’ (or such shorter period as the Majority Lenders may agree) prior notice in writing, prepay the whole or any part of a Loan (but, if in part, being an amount that reduces the Loan by a minimum amount of $40,000,000 and in multiples of $10,000,000).

 

7.5 Right of repayment and cancellation in relation to, or replacement of, a single Lender

 

  (a) If:

 

  (i) any sum payable to any Lender by an Obligor is required to be increased under Clause 12.2(c) ( Tax gross-up ); or

 

  (ii) any Lender claims indemnification from the Company under Clause 12.3 ( Tax indemnity ) or Clause 13.1 ( Increased costs ),

the Company may, whilst the circumstance giving rise to the requirement or indemnification continues, give the Facility Agent notice of:

 

  (w) cancellation of the Commitment of that Lender; and/or

 

  (x) its intention to procure the repayment of that Lender’s participation in the Loans; and/or

 

  (y) its intention to procure the repayment of that Lender’s participation in the Loans to the specified Borrower in relation to which an event referred to in paragraphs (i) or (ii) above has occurred; and/or

 

  (z) its intention to replace that Lender in accordance with paragraph (d) below.

 

  (b) On receipt of a notice referred to in paragraph (a) above (other than one providing only for repayment of the Lender’s participation in the Loans to a specified Borrower), the Commitment of that Lender shall immediately be reduced to zero.

 

  (c) On the last day of each Interest Period which ends after the Company has given notice under paragraph (a) above (or, if earlier, the date specified by the Company in that notice), each Borrower (or, as the case may be, the specified Borrower) to which a Loan is outstanding shall repay that Lender’s participation in that Loan.

 

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  (d) The Company may, in the circumstances set out in paragraph (a) above, on five Business Days’ prior notice to the Facility Agent and that Lender, replace that Lender by requiring that Lender to (and, to the extent permitted by law, that Lender shall) transfer pursuant to Clause 23 ( Changes to the Lenders ) all (and not part only) of its rights and obligations under this Agreement to a Lender or other bank, financial institution, trust, fund or other entity selected by the Company which confirms its willingness to assume and does assume all the obligations of the transferring Lender in accordance with Clause 23 ( Changes to the Lenders ) for a purchase price in cash or other cash payment payable at the time of the transfer equal to the outstanding principal amount of such Lender’s participation in the outstanding Loans and all accrued interest (to the extent that the Facility Agent has not given a notification under Clause 23.9 ( Pro rata interest settlement )), Break Costs and other amounts payable in relation thereto under the Finance Documents.

 

  (e) The replacement of a Lender pursuant to paragraph (d) above shall be subject to the following conditions:

 

  (i) no Finance Party shall have any obligation to find a replacement Lender;

 

  (ii) any replacement pursuant to this Clause 7.5 (but subject to the other provisions of this Agreement) of a Lender which is the Facility Agent shall not affect its role as the Facility Agent; and

 

  (iii) any Lender replaced pursuant to this Clause 7.5 shall not be required to refund, or to pay or surrender to any other Lender, any of the fees or other amounts received by that Lender under any Finance Document.

 

7.6 Replacement of a Non-Consenting Lender

 

  (a) In this Clause 7.6, “ Non-Consenting Lender ” means any Lender which does not agree to a consent, waiver or amendment if:

 

  (i) the Company or the Facility Agent has requested a consent under or waiver or amendment of any provision of any Finance Document;

 

  (ii) that consent, waiver or amendment requires the agreement of all the Lenders; and

 

  (iii) the Super-Majority Lenders have agreed to that consent, waiver or amendment.

 

  (b) If any Lender becomes a Non-Consenting Lender, the Company may, if it gives the Facility Agent and that Lender not less than 5 Business Days’ prior notice, arrange for the transfer of the whole (but not part only) of that Lender’s Commitment and participations in the Utilisations at par to a new or existing Lender willing to accept that transfer and acceptable to the Company and the remaining Lenders.

 

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  (c) The replacement of a Lender pursuant to this Clause 7.6 shall be subject to the following conditions:

 

  (i) no Finance Party shall have any obligation to find a replacement Lender;

 

  (ii) any replacement of a Non-Consenting Lender must take place no later than 180 days after the earlier of (A) the date the Non-Consenting Lender notified the Facility Agent of its refusal to agree to the relevant consent, waiver or amendment and (B) the deadline (being not less than 15 Business Days after the Lender received the request for the relevant consent, waiver or amendment) by which the Non-Consenting Lender failed to reply to that request;

 

  (iii) any Lender replaced pursuant to this Clause 7.6 shall not be required to refund, or to pay or surrender to any other Lender, any of the fees or other amounts received by that Lender under any Finance Document; and

 

  (iv) any replacement pursuant to this Clause 7.6 (but subject to the other provisions of this Agreement) of a Lender which is the Facility Agent shall not affect its role as the Facility Agent.

 

7.7 Restrictions

 

  (a) Any notice of cancellation, prepayment or replacement given by any Party under this Clause 7 shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.

 

  (b) Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty.

 

  (c) The Borrowers shall not repay or prepay all or any part of the Loans or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.

 

  (d) Subject to Clause 2.2 ( Increase ), no amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.

 

  (e) If the Facility Agent receives a notice under this Clause 7 it shall promptly forward a copy of that notice to either the Company or the affected Lender, as appropriate.

 

  (f) If all or part of a Loan is repaid or prepaid, an amount of the Commitments will be deemed to be cancelled on the date of repayment or prepayment. Any cancellation under this paragraph (f) shall reduce the Commitments of the Lenders rateably.

 

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8. INTEREST

 

8.1 Calculation of interest

The rate of interest on each Loan for each Interest Period is the percentage rate per annum which is the aggregate of the applicable:

 

  (a) Margin; and

 

  (b) LIBOR.

 

8.2 Payment of interest

The Borrower to which a Loan has been made shall pay accrued interest on that Loan on the last day of each Interest Period (and, if the Interest Period is longer than six Months, on the dates falling at six monthly intervals after the first day of the Interest Period).

 

8.3 Default interest

 

  (a) If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (b) below, is the sum of 1 per cent. and the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Facility Agent (acting reasonably). Any interest accruing under this Clause 8.3 shall be immediately payable by the Obligor on demand by the Facility Agent.

 

  (b) If any overdue amount consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan:

 

  (i) the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and

 

  (ii) the rate of interest applying to the overdue amount during that first Interest Period shall be the sum of 1 per cent. and the rate which would have applied if the overdue amount had not become due.

 

  (c) Default interest (if unpaid) arising on an overdue amount will be compounded with the overdue amount at the end of each Interest Period applicable to that overdue amount but will remain immediately due and payable.

 

8.4 Notification of rates of interest

The Facility Agent shall promptly notify the Lenders and the relevant Borrower of the determination of a rate of interest under this Agreement.

 

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9. INTEREST PERIODS

 

9.1 Selection of Interest Periods

 

  (a) A Borrower (or the Company on behalf of a Borrower) may select an Interest Period for a Loan in the Utilisation Request for that Loan.

 

  (b) Subject to this Clause 9, a Borrower (or the Company) may select an Interest Period of 1, 2, 3 or 6 Months or any other period agreed between the Company and the Facility Agent (acting on the instructions of all the Lenders).

 

  (c) An Interest Period for a Loan shall not extend beyond:

 

  (i) the Termination Date;

 

  (ii) if the Repayment Date is extended pursuant to paragraph (a) of Clause 6.2 ( Extension of Repayment Date ), the Extended Repayment Date; or

 

  (iii) if the Extended Repayment Date is extended pursuant to paragraph (b) of Clause 6.2 ( Extension of Repayment Date ), the Second Extended Repayment Date.

 

  (d) A Loan has one Interest Period only.

 

  (e) Each Interest Period shall start on the Utilisation Date or (if already made) on the last day of its preceding Interest Period.

 

9.2 Non-Business Days

If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).

 

10. CHANGES TO THE CALCULATION OF INTEREST

 

10.1 Unavailability of Screen Rate

 

  (a) Interpolated Screen Rate : If no Screen Rate is available for LIBOR for the Interest Period of a Loan, the applicable LIBOR shall be the Interpolated Screen Rate for a period equal in length to the Interest Period of that Loan.

 

  (b) Shortened Interest Period : If no Screen Rate is available for LIBOR for:

 

  (i) US Dollars; or

 

  (ii) the Interest Period of a Loan and it is not possible to calculate the Interpolated Screen Rate,

the Interest Period of that Loan shall (if it is longer than the applicable Fallback Interest Period) be shortened to the applicable Fallback Interest Period and the applicable LIBOR for that shortened Interest Period shall be determined pursuant to the definition of “ LIBOR ”.

 

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  (c) Shortened Interest Period and Historic Screen Rate : If the Interest Period of a Loan is, after giving effect to paragraph (b) above, either the applicable Fallback Interest Period or shorter than the applicable Fallback Interest Period and, in either case, no Screen Rate is available for LIBOR for:

 

  (i) US Dollars; or

 

  (ii) the Interest Period of that Loan and it is not possible to calculate the Interpolated Screen Rate,

the applicable LIBOR shall be the Historic Screen Rate for that Loan.

 

  (d) Shortened Interest Period and Interpolated Historic Screen Rate : If paragraph (c) above applies but no Historic Screen Rate is available for the Interest Period of the Loan, the applicable LIBOR shall be the Interpolated Historic Screen Rate for a period equal in length to the Interest Period of that Loan.

 

  (e) Reference Bank Rate : If paragraph (d) above applies but it is not possible to calculate the Interpolated Historic Screen Rate, the Interest Period of that Loan shall, if it has been shortened pursuant to paragraph (b) above, revert to its previous length and the applicable LIBOR shall be the Reference Bank Rate as of the Specified Time for US Dollars and for a period equal in length to the Interest Period of that Loan.

 

  (f) Cost of funds : If paragraph (e) above applies but no Reference Bank Rate is available for US Dollars or the relevant Interest Period there shall be no LIBOR for that Loan and Clause 10.4 ( Cost of funds ) shall apply to that Loan for that Interest Period.

 

10.2 Calculation of Reference Bank Rate

 

  (a) Subject to paragraph (b) below, if LIBOR is to be determined on the basis of a Reference Bank Rate but a Reference Bank does not supply a quotation by the Specified Time, the Reference Bank Rate shall be calculated on the basis of the quotations of the remaining Reference Banks.

 

  (b) If at or about noon on the Quotation Day, none or only one of the Reference Banks supplies a quotation, there shall be no Reference Bank Rate for the relevant Interest Period.

 

10.3 Market disruption

If before close of business in London on the Quotation Day for the relevant Interest Period the Facility Agent receives notifications from a Lender or Lenders (whose participations in a Loan exceed 35 per cent. of that Loan) that the cost to it of funding its participation in that Loan from whatever source it may reasonably select would be in excess of LIBOR then Clause 10.4 ( Cost of funds ) shall apply to that Loan for the relevant Interest Period.

 

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10.4 Cost of funds

 

  (a) If this Clause 10.4 applies, the rate of interest on each Lender’s share of the relevant Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of:

 

  (i) the Margin; and

 

  (ii) the rate notified to the Facility Agent by that Lender as soon as practicable and in any event within 5 Business Days of the first day of that Interest Period (or, if earlier, on the date falling 5 Business Days before the date on which interest is due to be paid in respect of that Interest Period), to be that which expresses as a percentage rate per annum the cost to the relevant Lender of funding its participation in that Loan from whatever source it may reasonably select.

 

  (b) If this Clause 10.4 applies and the Facility Agent or the Company so requires, the Facility Agent and the Company shall enter into negotiations (for a period of not more than thirty days) with a view to agreeing a substitute basis for determining the rate of interest.

 

  (c) Any alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of all the Lenders and the Company, be binding on all Parties.

 

10.5 Break Costs

 

  (a) Each Borrower shall, within five Business Days of a demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of a Loan or Unpaid Sum being paid by that Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum.

 

  (b) Each Lender shall, together with its demand provide a certificate confirming the amount and basis of calculation of its Break Costs for any Interest Period in which they accrue.

 

11. FEES

 

11.1 Arrangement fee

The Company shall (or the Company shall procure that an Obligor shall) pay to the Arranger an arrangement fee in the amount and at the times agreed in a Fee Letter.

 

11.2 Ticking fee

The Company shall (or the Company shall procure that an Obligor shall) pay to the Arranger a ticking fee in the amount and at the times agreed in the Mandate Letter.

 

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12. TAX GROSS-UP AND INDEMNITIES

 

12.1 Definitions

 

  (a) In this Agreement:

“Borrower DTTP Filing” means an HM Revenue & Customs’ Form DTTP2 duly completed and filed by the relevant Borrower, which:

 

  (i) where it relates to a Treaty Lender that is an Original Lender, contains the scheme reference number and jurisdiction of tax residence stated opposite that Lender’s name in Schedule 1Part A ( The Original Parties (Other than UK Non-Bank Lenders )), and

 

  (A) where the Borrower is an Original Borrower, is filed with HM Revenue & Customs within 30 days of the date of this Agreement; or

 

  (B) where the Borrower is an Additional Borrower, is filed with HM Revenue & Customs within 30 days of the date on which that Borrower becomes an Additional Borrower; or

 

  (ii) where it relates to a Treaty Lender that is a New Lender or an Increase Lender, contains the scheme reference number and jurisdiction of tax residence stated in respect of that Lender in the relevant Transfer Certificate or Increase Confirmation and

 

  (A) where the Borrower is a Borrower as at the relevant Transfer Date or Increase Date (as set out in the relevant Increase Confirmation), is filed with HM Revenue & Customs within 30 days of that Transfer Date or Increase Date; or

 

  (B) where the Borrower is not a Borrower as at the relevant Transfer Date or Increase Date, is filed with HM Revenue & Customs within 30 days of the date on which that Borrower becomes an Additional Borrower.

“Protected Party means a Finance Party which is or will be subject to any liability, or required to make any payment, for or on account of Tax in relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Finance Document.

“Qualifying Lender” means:

 

  (i) a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document and is:

 

  (A) a Lender:

 

  (1) which is a bank (as defined for the purpose of section 879 of the ITA) making an advance under a Finance Document and is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance or would be within such charge as respects such payments apart from section 18A of the CTA 2009; or

 

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  (2) in respect of an advance made under a Finance Document by a person that was a bank (as defined for the purpose of section 879 of the ITA) at the time that that advance was made and which is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance; or

 

  (B) a Lender which is:

 

  (1) a company resident in the United Kingdom for United Kingdom tax purposes;

 

  (2) a partnership each member of which is:

 

  (a) a company so resident in the United Kingdom; or

 

  (b) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA 2009) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA 2009;

 

  (3) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA 2009) of that company; or

 

  (C) a Treaty Lender ; or

 

  (iii) a Lender which is a building society (as defined for the purpose of section 880 of the ITA) making an advance under a Finance Document.

“Tax Confirmation” means a confirmation by a Lender that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document is either:

 

  (i) a company resident in the United Kingdom for United Kingdom tax purposes;

 

  (ii) a partnership each member of which is:

 

  (A) a company so resident in the United Kingdom; or

 

  (B) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA 2009) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA 2009; or

 

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  (iii) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA 2009) of that company.

Tax Credit means a credit against, relief or remission for, or repayment of any Tax.

“Tax Deduction” means a deduction or withholding for or on account of Tax from a payment under a Finance Document, other than a FATCA Deduction.

Tax Payment ” means either the increase in a payment made by an Obligor to a Finance Party under Clause 12.2 ( Tax gross-up ) or a payment under Clause 12.3 ( Tax indemnity ).

“Treaty Lender” means a Lender which:

 

  (i) is treated as a resident of a Treaty State for the purposes of the Treaty;

 

  (ii) does not carry on a business in the United Kingdom through a permanent establishment with which that Lender’s participation in the Loan is effectively connected; and

 

  (iii) fulfils any conditions which must be fulfilled under the double taxation agreement for residents of that Treaty State to obtain exemption from United Kingdom taxation on interest (subject to the completion of any necessary procedural formalities).

Treaty State means a jurisdiction having a double taxation agreement (a “Treaty”) with the United Kingdom which makes provision for full exemption from tax imposed by the United Kingdom on interest.

“UK Non-Bank Lender” means:

 

  (i) where a Lender becomes a Party on the day on which this Agreement is entered into, a Lender listed in Schedule 1Part B (The Original Parties (UK Non-Bank Lenders) ) ; and

 

  (ii) where a Lender becomes a Party after the day on which this Agreement is entered into, a Lender which gives a Tax Confirmation in the Increase Confirmation or Transfer Certificate which it executes on becoming a Party.

 

  (b) Unless a contrary indication appears, in this Clause 12 a reference to “determines” or “determined” means a determination made in the absolute discretion of the person making the determination.

 

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12.2 Tax gross-up

 

  (a) Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.

 

  (b) The Company shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Facility Agent accordingly. Similarly, a Lender shall promptly notify the Facility Agent on becoming so aware in respect of a payment payable to that Lender. If the Facility Agent receives such notification from a Lender it shall promptly notify the Company and that Obligor.

 

  (c) If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.

 

  (d) A payment shall not be increased under paragraph (c) above by reason of a Tax Deduction on account of Tax imposed by the United Kingdom, if on the date on which the payment falls due:

 

  (i) the payment could have been made to the relevant Lender without a Tax Deduction if the Lender had been a Qualifying Lender, but on that date that Lender is not or has ceased to be a Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty or any published practice or published concession of any relevant taxing authority; or

 

  (ii) the relevant Lender is a Qualifying Lender solely by virtue of paragraph (i)(B) of the definition of Qualifying Lender; and:

 

  (A) an officer of HM Revenue & Customs has given (and not revoked) a direction (a “Direction”) under section 931 of the ITA which relates to the payment and that Lender has received from the Obligor making the payment or from the Company a certified copy of that Direction; and

 

  (B) the payment could have been made to the Lender without any Tax Deduction if that Direction had not been made; or

 

  (iii) the relevant Lender is a Qualifying Lender solely by virtue of paragraph (i)(B) of the definition of Qualifying Lender and:

 

  (A) the relevant Lender has not given a Tax Confirmation to the Company; and

 

  (B) the payment could have been made to the Lender without any Tax Deduction if the Lender had given a Tax Confirmation to the Company, on the basis that the Tax Confirmation would have enabled the Company to have formed a reasonable belief that the payment was an “excepted payment” for the purpose of section 930 of the ITA; or

 

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  (iv) the relevant Lender is a Treaty Lender and the Obligor making the payment is able to demonstrate (assuming the completion of all necessary procedural formalities by the Obligor) that the payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations under paragraph (g) or (h) (as applicable) below; or

 

  (v) the Tax Deduction is required as a result of a direction under regulation 9(b) of SI 1970/488 and the application of regulation 9(b) to that Lender does not result from a change after it became a Lender in (or the interpretation, administration or application of) any law or Treaty, or any published practice or concession of any relevant taxing authority.

 

  (e) If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.

 

  (f) Within thirty days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Facility Agent for the Finance Party entitled to the payment a statement under section 975 of the ITA or other evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.

(g)

 

  (i) Subject to paragraph (ii) below, a Treaty Lender and each Obligor which makes a payment to which that Treaty Lender is entitled shall co-operate in promptly completing any procedural formalities (including completing and submitting appropriate documents to the applicable tax authorities) necessary for that Obligor to obtain authorisation to make that payment without a Tax Deduction.

(ii)

 

  (A) A Treaty Lender which becomes a Party on the day on which this Agreement is entered into that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence opposite its name in Schedule 1Part A ( The Original Parties (Other than UK Non-Bank Lenders )); and

 

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  (B) a New Lender or Increase Lender that is a Treaty Lender that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence in the Transfer Certificate or Increase Confirmation which it executes,

and, having done so, that Lender shall be under no obligation pursuant to paragraph (i) above.

 

  (iii) Each Lender severally warrants to the Company that it is a Qualifying Lender on the date it becomes a Party to this Agreement. If at any time after this Agreement is entered into any Lender becomes aware that it is not and will not or will cease to be a Qualifying Lender, it shall promptly notify the Facility Agent and the Company.

 

  (h) If a Lender has confirmed its scheme reference number and its jurisdiction of tax residence in accordance with paragraph (g)(ii) above and:

 

  (i) a Borrower making a payment to that Lender has not made a Borrower DTTP Filing in respect of that Lender; or

 

  (ii) a Borrower making a payment to that Lender has made a Borrower DTTP Filing in respect of that Lender but:

 

  (A) that Borrower DTTP Filing has been rejected by HM Revenue & Customs; or

 

  (B) HM Revenue & Customs has not given the Borrower authority to make payments to that Lender without a Tax Deduction within 60 days of the date of the Borrower DTTP Filing,

and in each case, the Borrower has notified that Lender in writing, that Lender and the Borrower shall co-operate in completing any additional procedural formalities necessary for that Borrower to obtain authorisation to make that payment without a Tax Deduction.

 

  (i) If a Lender has not confirmed its scheme reference number and jurisdiction of tax residence in accordance with paragraph (g)(ii) above, no Obligor shall make a Borrower DTTP Filing or file any other form relating to the HMRC DT Treaty Passport scheme in respect of that Lender’s Commitment or its participation in any Loan unless the Lender otherwise agrees.

 

  (j) A Borrower shall, promptly on making a Borrower DTTP Filing, deliver a copy of that Borrower DTTP Filing to the Facility Agent for delivery to the relevant Lender.

 

  (k) A UK Non-Bank Lender which becomes a Party on the day on which this Agreement is entered into gives a Tax Confirmation to the Company by entering into this Agreement.

 

  (l) A UK Non-Bank Lender shall promptly notify the Company and the Facility Agent if there is any change in the position from that set out in the Tax Confirmation.

 

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12.3 Tax indemnity

 

  (a) The Company shall (within five Business Days of demand by the Facility Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document.

 

  (b) Paragraph (a) above shall not apply:

 

  (i) with respect to any Tax assessed on a Finance Party:

 

  (A) under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or

 

  (B) under the law of the jurisdiction in which that Finance Party’s Facility Office is located in respect of amounts received or receivable in that jurisdiction,

if that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Finance Party;

 

  (ii) to the extent a loss, liability or cost:

 

  (A) is compensated for by an increased payment under Clause 12.2 (Tax gross-up ) ;

 

  (B) would have been compensated for by an increased payment under Clause 12.2 (Tax gross-up ) but was not so compensated solely because one of the exclusions in paragraph (d) of Clause 12.2 (Tax gross-up ) applied; or

 

  (C) relates to a FATCA Deduction required to be made by a Party; or

 

  (iii) to the extent that such loss, liability or cost has not been notified to the Company by the relevant Finance Party within two Months of such Finance Party becoming aware of the existence of the same.

 

  (c) A Protected Party making, or intending to make a claim under paragraph (a) above shall promptly notify the Facility Agent of the event which will give, or has given, rise to the claim, following which the Facility Agent shall promptly notify the Company.

 

  (d) A Protected Party shall, on receiving a payment from an Obligor under this Clause 12.3, notify the Facility Agent.

 

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12.4 Tax Credit

If an Obligor makes a Tax Payment and the relevant Finance Party determines that:

 

  (a) a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was required; and

 

  (b) that Finance Party has obtained and utilised that Tax Credit,

the Finance Party shall pay an amount to the Obligor which that Finance Party determines will leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been required to be made by the Obligor.

 

12.5 Lender status confirmation

Each Lender which becomes a Party to this Agreement after the date of this Agreement shall indicate, in the Transfer Certificate or Increase Confirmation which it executes on becoming a Party, and for the benefit of the Facility Agent and without liability to any Obligor, which of the following categories it falls in:

 

  (a) not a Qualifying Lender;

 

  (b) a Qualifying Lender (other than a Treaty Lender); or

 

  (c) a Treaty Lender.

If a New Lender fails to indicate its status in accordance with this Clause 12.5 then such New Lender shall be treated for the purposes of this Agreement (including by each Obligor) as if it is not a Qualifying Lender until such time as it notifies the Facility Agent which category applies (and the Facility Agent, upon receipt of such notification, shall inform the Company). For the avoidance of doubt, a Transfer Certificate or Increase Confirmation shall not be invalidated by any failure of a Lender to comply with this Clause 12.5.

 

12.6 Stamp taxes

The Company shall pay and, within three Business Days of demand, indemnify each Finance Party against any cost, loss or liability that Finance Party incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any Finance Document.

 

12.7 VAT

 

  (a) All amounts expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document and such Finance Party is required to account to the relevant tax authority for the VAT, that Party must pay to such Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of the VAT (and such Finance Party must promptly provide an appropriate VAT invoice to that Party).

 

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  (b) If VAT is or becomes chargeable on any supply made by any Finance Party (the “ Supplier ”) to any other Finance Party (the “ Recipient ”) under a Finance Document, and any Party other than the Recipient (the “ Relevant Party ”) is required by the terms of any Finance Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):

 

  (i) (where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Recipient must (where this paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and

 

  (ii) (where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.

 

  (c) Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.

 

  (d) Any reference in this Clause 12.7 to any Party shall, at any time when such Party is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the representative member of such group at such time (the term “representative member” to have the same meaning as in the Value Added Tax Act 1994).

 

  (e) In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party’s VAT registration and such other information as is reasonably requested in connection with such Finance Party’s VAT reporting requirements in relation to such supply

 

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12.8 FATCA Information

 

  (a) Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request by another Party:

 

  (i) confirm to that other Party whether it is:

 

  (A) a FATCA Exempt Party; or

 

  (B) not a FATCA Exempt Party;

 

  (ii) supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party’s compliance with FATCA; and

 

  (iii) supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party’s compliance with any other law, regulation, or exchange of information regime.

 

  (b) If a Party confirms to another Party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.

 

  (c) Paragraph (a) above shall not oblige any Finance Party to do anything, and paragraph (a)(iii) above shall not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of:

 

  (i) any law or regulation;

 

  (ii) any fiduciary duty; or

 

  (iii) any duty of confidentiality.

 

  (d) If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (a)(i) or (ii) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.

 

12.9 FATCA Deduction

 

  (a) Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.

 

  (b) Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify the Company and the Facility Agent and the Facility Agent shall notify the other Finance Parties.

 

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13. INCREASED COSTS

 

13.1 Increased costs

 

  (a) Subject to Clause 13.3 ( Exceptions ) the Company shall, within five Business Days of a demand by the Facility Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of: (i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation; (ii) compliance with any law or regulation made after the date of this Agreement; or (iii) the implementation of, or compliance with, Basel III or any law or regulation that implements or applies Basel III.

 

  (b) In this Agreement “ Increased Costs ” means:

 

  (i) a reduction in the rate of return from the Facility or on a Finance Party’s (or its Affiliate’s) overall capital;

 

  (ii) an additional or increased cost; or

 

  (iii) a reduction of any amount due and payable under any Finance Document,

which is incurred or suffered by a Finance Party or any of its Affiliates to the extent that it is attributable to that Finance Party having entered into its Commitment or funding or performing its obligations under any Finance Document.

 

13.2 Increased cost claims

 

  (a) A Finance Party intending to make a claim pursuant to Clause 13.1 ( Increased costs ) shall notify the Facility Agent of the event giving rise to the claim, following which the Facility Agent shall promptly notify the Company.

 

  (b) Each Finance Party shall, as soon as practicable after a demand by the Facility Agent, provide a certificate confirming the amount and reasonable details of the basis therefor.

 

13.3 Exceptions

 

  (a) Clause 13.1 ( Increased costs ) does not apply to the extent any Increased Cost is:

 

  (i) attributable to a Tax Deduction required by law to be made by an Obligor;

 

  (ii) compensated for by Clause 12.3 ( Tax indemnity ) (or would have been compensated for under Clause 12.3 ( Tax indemnity ) but was not so compensated solely because any of the exclusions in Clause 12.3(b) ( Tax indemnity ) applied);

 

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  (iii) attributable to the negligence or wilful breach by the relevant Finance Party or its Affiliates of any law or regulation;

 

  (iv) attributable to the implementation or application of or compliance with the “International Convergence of Capital Measurement and Capital Standards, a Revised Framework” published by the Basel Committee on Banking Supervision in June 2004 in the form existing on the date of this Agreement (but excluding any amendment arising out of Basel III) (“ Basel II ”) or any other law or regulation which implements Basel II (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates); or

 

  (v) without prejudice to the exception set out in paragraph (ii) above, attributable to the implementation or application of or compliance with any Bank Levy or any law or regulation which implements any Bank Levy (whether such implementation, application or compliance is by a government or a regulator or by a Finance Party or any of its Affiliates).

In this Clause 13.3, a reference to a “ Tax Deduction ” has the same meaning given to the term in Clause 12.1 ( Definitions ).

 

14. OTHER INDEMNITIES

 

14.1 Currency indemnity

 

  (a) If any sum due from an Obligor under the Finance Documents (a “ Sum ”), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the “ First Currency ”) in which that Sum is payable into another currency (the “ Second Currency ”) for the purpose of:

 

  (i) making or filing a claim or proof against that Obligor;

 

  (ii) obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,

that Obligor shall as an independent obligation, within five Business Days of demand, indemnify each Finance Party to whom that Sum is due against any cost, loss or liability arising out of or as a result of the conversion including any discrepancy between (A) the rate of exchange used to convert that Sum from the First Currency into the Second Currency and (B) the rate or rates of exchange available to that person at the time of its receipt of that Sum.

 

  (b) Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.

 

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14.2 Other indemnities

The Company shall (or shall procure that an Obligor will), within five Business Days of demand, indemnify each Finance Party against any cost, loss or liability incurred by that Finance Party as a result of:

 

  (a) the occurrence of any Event of Default;

 

  (b) a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 27 ( Sharing among the Finance Parties );

 

  (c) funding, or making arrangements to fund, its participation in a Loan requested by a Borrower in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone); or

 

  (d) a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given by a Borrower or the Company.

 

14.3 Indemnity to the Facility Agent

The Company shall promptly indemnify the Facility Agent against any cost, loss or liability incurred by the Facility Agent (acting reasonably) as a result of:

 

  (a) investigating any event which it reasonably believes is an Event of Default; or

 

  (b) acting or relying on any notice, request or instruction made by an Obligor which it reasonably believes to be genuine, correct and appropriately authorised.

 

15. MITIGATION BY THE LENDERS

 

15.1 Mitigation

 

  (a) Each Finance Party shall, in consultation with the Company, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 7.1 ( Illegality ), Clause 12 ( Tax gross-up and indemnities ) or Clause 13 ( Increased Costs ) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.

 

  (b) Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents.

 

15.2 Limitation of liability

 

  (a) The Company shall indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 15.1 ( Mitigation ).

 

  (b) A Finance Party is not obliged to take any steps under Clause 15.1 ( Mitigation ) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.

 

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16. COSTS AND EXPENSES

 

16.1 Transaction expenses

The Company shall promptly on demand pay the Facility Agent and the Arranger the amount of all reasonable costs and expenses (including legal fees) reasonably incurred by any of them (subject to a maximum in respect of legal fees as agreed with the Company) in connection with the negotiation, preparation, printing and execution of:

 

  (a) this Agreement and any other documents referred to in this Agreement; and

 

  (b) any other Finance Documents executed after the date of this Agreement.

 

16.2 Amendment costs

If (a) an Obligor requests an amendment, waiver or consent or (b) an amendment is required pursuant to Clause 28.10 ( Change of currency ), the Company shall, within five Business Days of demand, reimburse the Facility Agent for the amount of all reasonable costs and expenses (including legal fees) reasonably incurred by the Facility Agent in evaluating, negotiating or complying with that request.

 

16.3 Enforcement costs

The Company shall, within five Business Days of demand, pay to each Finance Party the amount of all costs and expenses (including legal fees) incurred by that Finance Party in connection with the enforcement of, or the preservation of any rights under, any Finance Document.

 

17. GUARANTEE AND INDEMNITY

 

17.1 Guarantee and indemnity

Each Guarantor irrevocably and unconditionally jointly and severally:

 

  (a) guarantees to each Finance Party punctual performance by each Borrower of all that Borrower’s payment obligations under the Finance Documents;

 

  (b) undertakes with each Finance Party that whenever a Borrower does not pay any amount when due under or in connection with any Finance Document, that Guarantor shall immediately on demand pay that amount as if it was the principal obligor; and

 

  (c) agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Finance Party immediately on demand against any cost, loss or liability it incurs as a result of a Borrower not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Finance Document on the date when it would have been due. The amount payable by a Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 17 if the amount claimed had been recoverable on the basis of a guarantee.

 

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17.2 Continuing guarantee

This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by any Obligor under the Finance Documents, regardless of any intermediate payment or discharge in whole or in part.

 

17.3 Reinstatement

If any discharge, release or arrangement (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is made by a Finance Party in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in insolvency, liquidation, administration or otherwise, without limitation, then the liability of each Guarantor under this Clause 17 will continue or be reinstated as if the discharge, release or arrangement had not occurred.

 

17.4 Waiver of defences

The obligations of each Guarantor under this Clause 17 will not be affected by an act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause 17 (without limitation and whether or not known to it or any Finance Party) including:

 

  (a) any time, waiver or consent granted to, or composition with, any Obligor or other person;

 

  (b) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;

 

  (c) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;

 

  (d) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;

 

  (e) any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or security including without limitation any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document or other document or security;

 

  (f) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or

 

  (g) any insolvency or similar proceedings.

 

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17.5 Immediate recourse

Each Guarantor waives any right it may have of first requiring any Finance Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from that Guarantor under this Clause 17. This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.

 

17.6 Appropriations

Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full, each Finance Party (or any trustee or agent on its behalf) may:

 

  (a) refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and no Guarantor shall be entitled to the benefit of the same; and

 

  (b) hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of any Guarantor’s liability under this Clause 17.

 

17.7 Deferral of Guarantors’ rights

Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full and unless the Facility Agent otherwise directs, no Guarantor will exercise any rights which it may have by reason of performance by it of its obligations under the Finance Documents or by reason of any amount being payable, or liability arising, under this Clause 17:

 

  (a) to be indemnified by an Obligor;

 

  (b) to claim any contribution from any other guarantor of any Obligor’s obligations under the Finance Documents;

 

  (c) to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Finance Party;

 

  (d) to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which any Guarantor has given a guarantee, undertaking or indemnity under Clause 17.1 ( Guarantee and Indemnity );

 

  (e) to exercise any right of set-off against any Obligor; and/or

 

  (f) to claim or prove as a creditor of any Obligor in competition with any Finance Party.

 

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If a Guarantor receives any benefit, payment or distribution in relation to such rights it shall hold that benefit, payment or distribution to the extent necessary to enable all amounts which may be or become payable to the Finance Parties by the Obligors under or in connection with the Finance Documents to be repaid in full on trust for the Finance Parties and shall promptly pay or transfer the same to the Facility Agent or as the Facility Agent may direct for application in accordance with Clause 28 ( Payment mechanics ).

 

17.8 Release of Guarantors’ right of contribution

If any Guarantor (a “ Retiring Guarantor ”) ceases to be a Guarantor in accordance with the terms of the Finance Documents for the purpose of any sale or other disposal of that Retiring Guarantor then on the date such Retiring Guarantor ceases to be a Guarantor:

 

  (a) that Retiring Guarantor is released by each other Guarantor from any liability (whether past, present or future and whether actual or contingent) to make a contribution to any other Guarantor arising by reason of the performance by any other Guarantor of its obligations under the Finance Documents; and

 

  (b) each other Guarantor waives any rights it may have by reason of the performance of its obligations under the Finance Documents to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under any Finance Document or of any other security taken pursuant to, or in connection with, any Finance Document where such rights or security are granted by or in relation to the assets of the Retiring Guarantor.

 

17.9 Additional security

This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by any Finance Party.

 

18. REPRESENTATIONS

Each Obligor makes the representations and warranties set out in this Clause 18 to each Finance Party, on the date of this Agreement.

 

18.1 Status

 

  (a) It is a corporation, duly incorporated and validly existing under the law of its jurisdiction of incorporation.

 

  (b) It and each of its Material Subsidiaries has the power to own its assets and carry on its business as it is being conducted.

 

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18.2 Binding obligations

The obligations expressed to be assumed by it in each Finance Document are subject to any general principles of law limiting its obligations which are specifically referred to in any legal opinion delivered pursuant to Clause 4 ( Conditions of Utilisation ) or Clause 24 ( Changes to the Obligors ) legal, valid, binding and enforceable obligations.

 

18.3 Non-conflict with other obligations

The entry into and performance by it of, and the transactions contemplated by, the Finance Documents do not and will not conflict with:

 

  (a) any law or regulation applicable to it;

 

  (b) its constitutional documents; or

 

  (c) any agreement or instrument binding upon it or any of its Subsidiaries or any of its or any of its Subsidiaries’ assets breach of which would have a Material Adverse Effect.

 

18.4 Power and authority

It has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, the Finance Documents to which it is a party and the transactions contemplated by those Finance Documents.

 

18.5 Validity and admissibility in evidence

All Authorisations required:

 

  (a) to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party; and

 

  (b) to make the Finance Documents to which it is a party admissible in evidence in its jurisdiction of incorporation,

have been obtained or effected and are in full force and effect (or, in each case, will be when required).

 

18.6 No default

 

  (a) No Event of Default is continuing or could reasonably be expected to result from the making of any Utilisation.

 

  (b) No other event or circumstance is outstanding which constitutes a default under any other agreement or instrument which is binding on it or any of its Subsidiaries or to which its (or any of its Subsidiaries’) assets are subject which has or could reasonably be expected to have a Material Adverse Effect.

 

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18.7 Financial statements

 

  (a) The Original Financial Statements were prepared in accordance with IFRS consistently applied.

 

  (b) The Original Financial Statements fairly represent the consolidated financial condition and operations of the Group during the relevant financial period.

 

  (c) There has been no material adverse change in the business or financial condition of the Group since 31 December 2013.

 

18.8 Pari passu ranking

Its payment obligations under the Finance Documents rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally.

 

18.9 No proceedings pending or threatened

No litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency which are reasonably likely to be adversely determined and, if adversely determined, could be reasonably likely to have a Material Adverse Effect have (to the best of its knowledge and belief) been started or threatened against it or any of its Subsidiaries.

 

18.10 No misleading information

 

  (a) Any written factual information provided by or on behalf of any member of the Group for the purposes of the entry into of this Agreement by a Finance Party, was true and accurate in all material respects as at the date it was provided or as at the date (if any) at which it is stated.

 

  (b) Nothing has occurred since the date of delivery of, or been omitted from, the factual information referred to in paragraph (a) above and no information has been given or withheld that results in the information referred to in paragraph (a) being untrue or misleading in any material respect.

 

  (c) The representations and warranties in this Clause 18.10 are made by the Company only.

 

18.11 Repetition

The Repeating Representations are deemed to be made by each Obligor by reference to the facts and circumstances then existing on:

 

  (a) the date of the Utilisation Request and the first day of each Interest Period; and

 

  (b) in the case of an Additional Obligor, the day on which the company becomes (or it is proposed that the company becomes) an Additional Obligor.

 

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19. INFORMATION UNDERTAKINGS

The undertakings in this Clause 19 remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.

 

19.1 Financial statements

The Company shall supply to the Facility Agent in sufficient copies for all the Lenders:

 

  (a) as soon as the same become available, but in any event within 120 days after the end of each of its financial years:

 

  (i) its audited consolidated financial statements for that financial year; and

 

  (ii) the financial statements of each Obligor for that financial year (which shall be audited if that Obligor produces audited financial statements); and

 

  (b) as soon as the same become available, but in any event within 90 days after the end of the first half of each of its financial years, its consolidated financial statements for that financial half year.

 

19.2 Compliance Certificate

 

  (a) The Company shall supply to the Facility Agent, with each set of financial statements delivered pursuant to paragraph (a)(i) or (b) of Clause 19.1 ( Financial statements ), a Compliance Certificate setting out:

 

  (i) (in reasonable detail) computations as to compliance with Clause 20 (Financial covenants ); and

 

  (ii) an updated list of Material Subsidiaries,

in each case, as at the date at which those financial statements were drawn up.

 

  (b) Each Compliance Certificate shall be signed by a director or an authorised signatory on behalf of the Company.

 

19.3 Requirements as to financial statements

 

  (a) Each set of financial statements delivered by the Company pursuant to paragraph (a) of Clause 19.1 ( Financial statements ) shall be certified by an authorised signatory on behalf of the relevant company as fairly representing its (or, as the case may be, its consolidated) financial condition and operations as at the end of and for the period in relation to which those financial statements were drawn up.

 

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  (b) The Company shall procure that each set of financial statements of the Group delivered pursuant to Clause 19.1 ( Financial statements ) is prepared using IFRS and it shall deliver to the Facility Agent:

 

  (i) sufficient information, in form and substance as may be reasonably required by the Facility Agent, to enable the Lenders to determine whether Clause 20 ( Financial covenants ) has been complied with and make an accurate comparison between the financial position indicated in those financial statements and the Original Financial Statements; and

 

  (ii) a description of any change necessary for those financial statements to reflect the Applicable Accounting Principles upon which the Original Financial Statements were prepared.

 

  (c) Any reference in this Agreement to the financial statements of the Group delivered pursuant to Clause 19.1 ( Financial statements ) shall be construed as a reference to those financial statements as adjusted to reflect the Applicable Accounting Principles and, if applicable, any amendments pursuant to paragraph (d) below.

 

  (d) The Company may at any time notify the Facility Agent that there has been a change in accounting practices applied or accounting principles in force in relation to a set of financial statements from the Applicable Accounting Principles upon which the Original Financial Statements were prepared, in which case the Company and the Facility Agent shall negotiate in good faith for not less than 30 days with a view to agreeing:

 

  (i) any amendments to Clause 19.1 ( Financial statements ) and any of the definitions of terms used therein as are necessary to provide the Lenders and the Company comparable protection to that contemplated at the date of this Agreement; and

 

  (ii) any other amendments to this Agreement which are necessary to ensure that the adoption by the Group of different accounting practices or principles does not result in any material alteration to the commercial effect of the obligations of any Obligor under this Agreement.

If amendments satisfactory to the Majority Lenders (acting reasonably) are so agreed in writing by the Company and the Facility Agent, those amendments shall take effect in accordance with the terms of that agreement.

 

19.4 Information: miscellaneous

The Company shall supply to the Facility Agent (in sufficient copies for all the Lenders, if the Facility Agent so requests):

 

  (a) all documents dispatched by the Company to its shareholders (or any class of them) or its creditors generally at the same time as they are dispatched;

 

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  (b) promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings which are current, threatened or pending against any member of the Group, and which might, if adversely determined, have a Material Adverse Effect; and

 

  (c) promptly, such further information regarding the financial condition, business and operations of any member of the Group as any Finance Party (through the Facility Agent) may reasonably request except to the extent that disclosure of the information would breach any law regulation, stock exchange requirement or duty of confidentiality.

 

19.5 Notification of default

 

  (a) Each Obligor shall notify the Facility Agent of any Default and the steps, if any, being taken to remedy it promptly upon becoming aware of its occurrence (unless that Obligor is aware that a notification has already been provided by another Obligor).

 

  (b) Promptly upon a request by the Facility Agent, the Company shall supply to the Facility Agent a certificate signed by a director or authorised signatory on its behalf certifying that no Default is continuing (or if continuing, specifying the steps, if any, being taken to remedy it).

 

19.6 Use of websites

 

  (a) The Company may satisfy its obligation under this Agreement to deliver any information in relation to those Lenders (the “ Website Lenders ”) who accept this method of communication by posting this information onto an electronic website designated by the Company and the Facility Agent (the “ Designated Website ”) if:

 

  (i) the Facility Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by this method;

 

  (ii) the Company and the Facility Agent are aware of the address of and any relevant password specifications for the Designated Website; and

 

  (iii) the information is in a format previously agreed between the Company and the Facility Agent.

If any Lender (a “Paper Form Lender” ) does not agree to the delivery of information electronically then the Facility Agent shall notify the Company accordingly and the Company shall supply the information to the Facility Agent (in sufficient copies for each Paper Form Lender) in paper form. In any event the Company shall supply the Facility Agent with at least one copy in paper form of any information required to be provided by it.

 

  (b) The Facility Agent shall supply each Website Lender with the address of and any relevant password specifications for the Designated Website following designation of that website by the Company and the Facility Agent.

 

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  (c) The Company shall promptly upon becoming aware of its occurrence notify the Facility Agent if:

 

  (i) the Designated Website cannot be accessed due to technical failure;

 

  (ii) the password specifications for the Designated Website change;

 

  (iii) any new information which is required to be provided under this Agreement is posted onto the Designated Website;

 

  (iv) any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or

 

  (v) the Company becomes aware that the Designated Website or any information posted onto the Designated Website is or has been infected by any electronic virus or similar software.

If the Company notifies the Facility Agent under paragraph (c)(i) or paragraph (c)(v) above, all information to be provided by the Company under this Agreement after the date of that notice shall be supplied in paper form unless and until the Facility Agent and each Website Lender is satisfied that the circumstances giving rise to the notification are no longer continuing.

 

  (d) Any Website Lender may request, through the Facility Agent, one paper copy of any information required to be provided under this Agreement which is posted onto the Designated Website. The Company shall comply with any such request within ten Business Days.

 

19.7 “Know your customer” checks

 

  (a) If:

 

  (i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement;

 

  (ii) any change in the status of an Obligor after the date of this Agreement; or

 

  (iii) a proposed assignment or transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such assignment or transfer,

obliges the Facility Agent or any Lender (or, in the case of paragraph (iii) above, any prospective new Lender) to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, each Obligor shall promptly upon the request of the Facility Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent (for itself or on behalf of any Lender) or any Lender (for itself or, in the case of the event described in paragraph (iii) above, on behalf of any prospective new Lender) in order for the Facility Agent, such Lender or, in the

 

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case of the event described in paragraph (iii) above, any prospective new Lender to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.

 

  (b) Each Lender shall promptly upon the request of the Facility Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent (for itself) in order for the Facility Agent to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.

 

  (c) The Company shall, by not less than five Business Days’ prior written notice to the Facility Agent, notify the Facility Agent (which shall promptly notify the Lenders) of its intention to request that one of its Subsidiaries becomes an Additional Obligor pursuant to Clause 24 ( Changes to the Obligors ).

 

  (d) Following the giving of any notice pursuant to paragraph (c) above, if the accession of such Additional Obligor obliges the Facility Agent or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall promptly upon the request of the Facility Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent (for itself or on behalf of any Lender) or any Lender (for itself or on behalf of any prospective new Lender) in order for the Facility Agent or such Lender or any prospective new Lender to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the accession of such Subsidiary to this Agreement as an Additional Obligor.

 

20. FINANCIAL COVENANTS

 

20.1 Financial Condition

The Company shall ensure that:

 

  (a) the ratio of EBITDA to Net Interest Payable for each Relevant Period will not be less than 3.50:1; and

 

  (b) the ratio of Net Borrowings as at the last day of each Relevant Period to EBITDA for that Relevant Period will not be more than 3.50:1, where EBITDA for the purpose of this covenant shall be adjusted to take into account the pro forma impact of any acquisitions or disposals (other than disposals of Managed Assets) made during the Relevant Period by a member of the Group.

 

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20.2 Financial covenant calculations

For the purposes of this Agreement, Borrowings (including Financial Indebtedness for the purpose of calculating Borrowings), EBITDA, Net Borrowings and Net Interest Payable shall be:

 

  (a) calculated and interpreted on a consolidated basis in accordance with the Applicable Accounting Principles of the Company and shall be expressed in the currency in which the relevant financial statements of the Group delivered under Clause 19.1 ( Financial statements ) are presented; and

 

  (b) extracted (except as needed to reflect the terms of this Clause 20) from the financial statements of the Group delivered under Clause 19.1 ( Financial statements ) and Clause 19.2 ( Compliance Certificate ).

 

20.3 Definitions

In this Agreement:

Borrowings ” means, as at any particular time, the aggregate outstanding principal, capital or nominal amount (and any fixed or minimum premium payable on redemption) of the Financial Indebtedness of members of the Group, other than:

 

  (a) any indebtedness referred to in paragraph (g) of the definition of Financial Indebtedness;

 

  (b) any Project Finance Indebtedness; and

 

  (c) any indebtedness referred to in paragraphs (i) and (j) of the definition of Financial Indebtedness except to the extent any such obligation or liability specified in such paragraphs has been provided for in the financial statements of the Group delivered under Clause 19.1 ( Financial statements ) or is disclosed as a contingency in the notes thereto and is quantified,

and deducting, to the extent included, amounts attributable to interests of third parties in members of the Group.

For this purpose, any amount outstanding or repayable in a currency other than US Dollars shall on that day be taken into account in its US Dollar equivalent at the rate of exchange that would have been used had an audited consolidated balance sheet of the Group been prepared as at that day in accordance with IFRS as applicable to the Original Financial Statements.

“Cash ” means any credit balances on any deposit, savings, current or other account, and any cash in hand, which is:

 

  (a) freely withdrawable on demand;

 

  (b) not subject to any Security (other than permitted pursuant to Clause 21.3 ( Negative pledge) );

 

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  (c) denominated and payable in freely transferable and freely convertible currency; and

 

  (d) capable of being remitted to an Obligor in the United Kingdom.

Cash Equivalents ” means short-term, highly liquid investments that are readily convertible to known amounts of cash and which have contractual maturities of three months or less (including, for the avoidance of doubt, any money market instruments, investments in money market funds and repo agreements).

EBITDA ” means, in relation to any Relevant Period, the total consolidated operating profit of the Group for that Relevant Period:

 

  (a) before taking into account:

 

  (i) Net Interest Payable;

 

  (ii) Tax; and

 

  (iii) all exceptional items; and

 

  (b) after adding back all amounts provided for depreciation and amortisation; and

 

  (c) deducting, to the extent included, amounts attributable to interests of third parties in members of the Group.

Net Borrowings ” means, as at any particular time, Borrowings less Cash and Cash Equivalents.

Net Interest Payable ” means, in relation to any Relevant Period, the aggregate amount of interest and any other finance charges accrued by the Group in that Relevant Period in respect of Borrowings including:

 

  (a) the interest element of leasing and hire purchase payments;

 

  (b) commitment fees, commissions and guarantee fees; and

 

  (c) amounts in the nature of interest payable in respect of any shares other than equity share capital,

adjusted (but without double counting) by:

 

  (i) deducting interest income of the Group in respect of that Relevant Period;

 

  (ii) adding back the net amount payable (or deducting the net amount receivable) by members of the Group in that Relevant Period as a result of close-out or termination of any interest or (so far as they relate to interest) currency hedging activities;

 

  (iii) adding back the amount payable as a premium on any bond buy-back by members of the Group in that Relevant Period;

 

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  (iv) deducting, to the extent included, the amount payable by members of the Group in that Relevant Period for arrangement or related fees in respect of Borrowings including, for the avoidance of doubt, any unamortised fees to be written-off in respect of the Existing Agreement (to include, for the avoidance of doubt, underwriting, syndication and fees of a similar nature); and

 

  (v) deducting, to the extent included, the amount of interest and other finance charges attributable to interests of third parties in members of the Group and adjusting, as appropriate, the additions or deductions specified in paragraphs (i) to (iv) (inclusive) above as a consequence of interests of third parties in members of the Group,

but shall exclude in relation to the Relevant Period (A) net mark-to-market gains or losses on revaluation of financial instruments, and (B) for the avoidance of doubt, any amount of interest paid to the Group’s loyalty programme on the accumulated balance of cash received in advance of the redemption of loyalty points awarded.

Relevant Period ” means:

 

  (a) each financial year of the Company; and

 

  (b) each period beginning on the first day of the second half of a financial year of the Company and ending on the last day of the first half of its next financial year.

 

21. GENERAL UNDERTAKINGS

The undertakings in this Clause 21 remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.

 

21.1 Authorisations

Each Obligor shall promptly:

 

  (a) obtain, comply with and do all that is necessary to maintain in full force and effect; and

 

  (b) supply certified copies to the Facility Agent of,

any Authorisation required under any law or regulation of its jurisdiction of incorporation to enable it to perform its obligations under the Finance Documents and to ensure the legality, validity, enforceability or admissibility in evidence in its jurisdiction of incorporation of any Finance Document.

 

21.2 Compliance with laws

Each Obligor shall comply with all laws to which it may be subject, if failure so to comply would materially impair its ability to perform its obligations under the Finance Documents.

 

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21.3 Negative pledge

 

  (a) No Obligor shall (and the Company shall ensure that no other member of the Group will) create or permit to subsist any Security over any of its assets.

 

  (b) Paragraph (a) above does not apply to:

 

  (i) any Security listed in Schedule 8 ( Security ) except to the extent the principal amount secured by that Security exceeds the amount stated in that Schedule;

 

  (ii) any cash management, netting or set-off arrangement entered into by any member of the Group in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances;

 

  (iii) any payment or close out netting or set-off arrangement pursuant to any hedging transaction entered into by a member of the Group for the purpose of:

 

  (A) hedging any risk to which any member of the Group is exposed in its ordinary course of trading; or

 

  (B) its interest rate or currency management operations which are carried out in the ordinary course of business and for non-speculative purposes only,

excluding, in each case, any Security under a credit support arrangement in relation to a hedging transaction;

 

  (iv) any lien arising by operation of law and in the ordinary course of business;

 

  (v) any Security resulting from the rules and regulations of any clearing system or stock exchange over shares and/or other securities held in that clearing system or stock exchange;

 

  (vi) any Security over or affecting any asset acquired by a member of the Group after the date of this Agreement to the extent that:

 

  (A) the Security was not created in contemplation of the acquisition of that asset by a member of the Group; and

 

  (B) the principal amount secured has not been increased in contemplation of or since the acquisition of that asset by a member of the Group;

 

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  (vii) any Security over or affecting any asset of any company which becomes a member of the Group after the date of this Agreement, where the Security is created prior to the date on which that company becomes a member of the Group, to the extent that:

 

  (A) the Security was not created in contemplation of the acquisition of that company; and

 

  (B) the principal amount secured has not increased in contemplation of or since the acquisition of that company;

 

  (viii) any Security created pursuant to any Finance Document;

 

  (ix) any title transfer or retention of title arrangement entered into by any member of the Group in the ordinary course of business;

 

  (x) pledges of goods, the related documents of title and/or other related documents arising or created in the ordinary course of business as security for indebtedness to a bank or financial institution directly relating to the goods or documents over which that pledge exists;

 

  (xi) any Security over cash or other investments for bank guarantees given in the ordinary course of trading securing liabilities of up to, in aggregate, $100,000,000 (or its equivalent in any other currency or currencies) or to meet any margin requirement in respect of derivative transactions;

 

  (xii) any Security resulting from the rules and regulations of any clearing system or stock exchange over shares and/or other securities held in that clearing system or stock exchange;

 

  (xiii) any Security securing Project Finance Indebtedness;

 

  (xiv) any Security provided in relation to the InterContinental executive top-up scheme securing liabilities of up to, in aggregate, $100,000,000 (or its equivalent in any other currency or currencies);

 

  (xv) any Security replacing any Security permitted under paragraph (i) above or this paragraph (xv) and securing the same indebtedness or obligations whose principal amount does not exceed the maximum principal amount secured, or which could be secured, by the replaced Security when it is replaced;

 

  (xvi) any Security securing indebtedness the principal amount of which (when aggregated with the principal amount of any other indebtedness which has the benefit of Security given by any member of the Group other than any permitted under paragraphs (i) to (xv) above) does not exceed an amount equal to $150,000,000 (or its equivalent in any other currency or currencies); or

 

  (xvii) any other Security created or outstanding with the prior consent of the Majority Lenders.

 

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21.4 Disposals

 

  (a) No Obligor shall (and the Company shall ensure that no other member of the Group will) enter into a single transaction or a series of transactions (whether related or not and whether voluntary or involuntary) to sell, lease, transfer or otherwise dispose of any asset of the Group (each a “ Disposal ”).

 

  (b) Paragraph (a) above does not apply to any Disposal:

 

  (i) made in the ordinary course of day-to-day business of the disposing entity;

 

  (ii) of assets in exchange for or to be replaced within 12 months (or committed within 12 months to be replaced and actually replaced within 24 months) by other assets comparable or superior as to type, value and quality;

 

  (iii) of assets which are obsolete or redundant;

 

  (iv) which constitutes the payment of cash for any purpose not prohibited by any Finance Document;

 

  (v) by any member of the Group to another member of the Group;

 

  (vi) which constitutes any short term investment of funds not immediately required in the Group’s business and the realisation of those investments;

 

  (vii) which constitutes the making of a lawful distribution;

 

  (viii) of assets which become Managed Assets following such Disposal;

 

  (ix) of assets (i) acquired by a member of the Group or (ii) owned by an entity which is acquired by a member of the Group, in each case as permitted by the terms of this Agreement, which become the subject of a Disposal on arm’s length terms to a person who is not a member of the Group within the period of twelve Months following the date of the relevant acquisition;

 

  (x) where the proceeds of that Disposal (net of fees, transaction costs and Taxes) (or such smaller amount having regard to other Disposals which are permitted to be made pursuant to the other sub-paragraphs of this paragraph (b)) are (within the period of 12 months following receipt of those proceeds) applied (or committed within the period of 12 months following receipt of those proceeds to be applied (and actually applied within the period of 18 months following receipt of those proceeds)) in or towards capital expenditure of the Group;

 

  (xi) where any member of the Group has applied funds in or towards capital expenditure of the Group within the period of 12 months prior to the receipt of the proceeds of that Disposal and where the amount so applied is at least equal to the proceeds of that Disposal (net of fees, transaction costs and Taxes) or, to the extent it is less than those proceeds, the balance is attributed to, or applied pursuant to, another sub-paragraph of this paragraph (b);

 

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  (xii) where an amount equal to the proceeds of that Disposal (net of fees, transaction costs and Taxes) (or such smaller amount having regard to other Disposals which are permitted to be made pursuant to the other sub-paragraphs of this paragraph (b)) is used in or towards a permanent reduction of Financial Indebtedness of the Group;

 

  (xiii) to which the Majority Lenders have consented; or

 

  (xiv) where the higher of the market value or consideration receivable (when aggregated with the higher of the market value or consideration receivable for any other Disposal, to the extent not permitted under any of paragraphs (i) to (xiii) above, effected during any financial year), does not exceed an amount equal to $225,000,000 (or its equivalent in any other currency or currencies) in any financial year.

 

21.5 Subsidiary Indebtedness

 

  (a) The Company shall ensure that the portion of Financial Indebtedness which is borrowed or incurred by Subsidiaries that are not Guarantors under this Agreement shall not at any time exceed the aggregate of:

 

  (i) $400,000,000 (or its equivalent in any other currency or currencies); and (but without double counting)

 

  (ii) $400,000,000 (or its equivalent in any other currency or currencies) (provided such amount relates exclusively to Financial Indebtedness specified in paragraphs (i) and (j) of the definition of Financial Indebtedness),

and provided that Financial Indebtedness for the purpose of this Clause 21.5 shall exclude:

 

  (A) amounts borrowed under this Agreement;

 

  (B) qualifying amounts specified in paragraph (b) below which are secured as permitted pursuant to paragraphs (b)(vi) or (vii) of Clause 21.3 ( Negative pledge ) or otherwise is outstanding for the period of up to 6 months following the relevant acquisition;

 

  (C) amounts which would be included as Financial Indebtedness due to a change in IFRS after the date of this Agreement but would not be treated as Financial Indebtedness using Applicable Accounting Principles; and

 

  (D) amounts which are incurred in connection with the arrangements described in paragraphs (b)(ii) or (b)(iii) of Clause 21.3 ( Negative pledge ).

 

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  (b) Where a member of the Group acquires an asset or a company after the date of this Agreement in respect of which Financial Indebtedness is outstanding (other than Project Finance Indebtedness), where:

 

  (i) that Financial Indebtedness was not created in contemplation of the acquisition of that asset or company; and

 

  (ii) that Financial Indebtedness has not increased in contemplation of or since that acquisition,

then that Financial Indebtedness shall be permitted and be in addition to the threshold numbers specified in paragraph (a) above.

 

21.6 Change of business

The Company shall procure that no substantial change is made to the general nature of the business of the Group taken as a whole from that anticipated to be carried on at the date of this Agreement but this shall not prevent any member of the Group engaging in any ancillary or related business.

 

21.7 Insurance

The Company shall or shall procure that other members of the Group shall, maintain insurances on and in relation to the business and assets of the Group with reputable underwriters or insurance companies against those risks, and to the extent, usually insured against by a prudent group of companies located in the same or similar locations and carrying on a similar business to that of the Group.

 

21.8 Acquisitions

No Obligor shall (and the Company shall ensure that no other member of the Group will) complete (without the approval of the Majority Lenders which shall not be unreasonably withheld or delayed) any acquisition (whether through a single transaction or series of related transactions with the same party or with parties connected with one another) where the consideration for the acquisition exceeds 25 per cent. of the Group’s market capitalisation at the time of the London Stock Exchange market close on the Business Day falling immediately prior to the date of formal announcement of such acquisition by the Company.

 

21.9 Disposal of Receivables

 

  (a) No Obligor shall (and the Company shall ensure that no other member of the Group will) sell, transfer or otherwise dispose of any of its trade receivables.

 

  (b) Paragraph (a) above does not apply to any sale, transfer or other disposal of any of its receivables where the aggregate face value of all such receivables that are outstanding at any time does not exceed $70,000,000 (or its equivalent in any other currency or currencies).

 

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21.10 Merger

No Obligor shall enter into any amalgamation, demerger, merger, consolidation or corporate reconstruction other than any such transaction between Obligors or Obligors and other persons provided that , in each case, the surviving entity is (or, as the case may be, becomes) a Guarantor and/or a Borrower (as the case may be).

 

22. EVENTS OF DEFAULT

Each of the events or circumstances set out in Clause 22 (other than Clause 22.13 ( Acceleration )) is an Event of Default.

 

22.1 Non-payment

An Obligor does not pay on the due date any amount payable pursuant to a Finance Document at the place at and in the currency in which it is expressed to be payable unless:

 

  (a) its failure to pay is caused by:

 

  (i) administrative or technical error; or

 

  (ii) a Disruption Event; and

 

  (b) payment is made within five Business Days of its due date.

 

22.2 Financial covenants

Any requirement of Clause 20 ( Financial covenants ) is not satisfied.

 

22.3 Other obligations

 

  (a) An Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 22.1 ( Non-payment ) and Clause 22.2 ( Financial covenants )).

 

  (b) No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within 20 days of the earlier of Facility Agent giving notice to the Company or the Company becoming aware of the failure to comply.

 

22.4 Misrepresentation

 

  (a) Any representation or statement made or deemed to be made by an Obligor in the Finance Documents or any other document delivered by or on behalf of any Obligor under or in connection with any Finance Document is or proves to have been incorrect or misleading in any material respect when made or deemed to be made.

 

  (b) No Event of Default under paragraph (a) above will occur if the circumstances giving rise to a misrepresentation or misstatement is/are capable of remedy and is/are remedied within 20 days of the Facility Agent giving notice to the Company requiring such remedy or (if earlier) the Company becoming aware of the failure to comply.

 

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22.5 Cross default

 

  (a) Any Financial Indebtedness of any member of the Group is not paid when due nor within any applicable grace period.

 

  (b) Any Financial Indebtedness of any member of the Group is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described).

 

  (c) Any creditor of any member of the Group becomes entitled to declare any Financial Indebtedness of any member of the Group due and payable prior to its specified maturity as a result of an event of default (however described).

 

  (d) No Event of Default will occur under this Clause 22.5 if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within paragraphs (a) to (c) above is less than $50,000,000 (or its equivalent in any other currency or currencies) and Financial Indebtedness for the purposes of this Clause 22.5 shall exclude, in each case, Project Finance Indebtedness.

 

22.6 Insolvency

 

  (a) An Obligor or a Material Subsidiary is unable or admits inability to pay its debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness.

 

  (b) A moratorium is declared or takes effect in respect of all or a material part (or a particular type of) the indebtedness of an Obligor or a Material Subsidiary.

 

22.7 Insolvency proceedings

 

  (a) Any corporate action or legal proceeding is taken (subject to paragraph (d) below) for the winding-up or dissolution of an Obligor or Material Subsidiary, or the appointment of a liquidator, administrator, administrative receiver, compulsory manager or other similar officer is appointed in respect of, an Obligor or Material Subsidiary other than for a solvent winding-up, dissolution or liquidation of an Obligor (other than the Company or the Guarantors) or a Material Subsidiary.

 

  (b) Any corporate action or legal proceeding is taken (subject to paragraph (d) below), or an agreement is entered into or proposed by an Obligor or Material Subsidiary, for the suspension of payments by, a moratorium of any indebtedness of, or a general composition, compromise or assignment for the benefit of the creditors of, an Obligor or Material Subsidiary.

 

  (c) A receiver, administrative receiver, compulsory manager or other similar officer is appointed in respect of an Obligor or Material Subsidiary or any of its assets, or any Security is enforced over an Obligor’s or Material Subsidiary’s assets, having an aggregate value of and in respect of indebtedness aggregating not less than $50,000,000 (or its equivalent in any other currency or currencies).

 

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  (d) A person presents a petition for the winding up, liquidation, dissolution, administration or suspension of payments of an Obligor or Material Subsidiary except:

 

  (i) where such petition is being contested in good faith and by appropriate means and is in any event dismissed within 30 days of its presentation; or

 

  (ii) where such presentation is frivolous or vexatious or an abuse of process and is in any event dismissed within 30 days of its presentation.

 

22.8 Creditors’ process

Any expropriation, attachment, sequestration, distress or execution affects any asset or assets of an Obligor or Material Subsidiary having an aggregate value of and in respect of indebtedness aggregating at least $50,000,000 (or its equivalent in any other currency or currencies) and is not discharged within 30 days.

 

22.9 Ownership of the Obligors

An Obligor (other than the Company) is not or ceases to be a Subsidiary of the Company.

 

22.10 Unlawfulness

It is or becomes unlawful for an Obligor to perform any of its material obligations under the Finance Documents.

 

22.11 Repudiation

An Obligor repudiates a Finance Document or evidences an intention to repudiate a Finance Document.

 

22.12 Cessation of business

An Obligor ceases to carry on its business except pursuant to a reconstruction, amalgamation, merger or consolidation on solvent terms or, for the avoidance of doubt, by way of a disposal.

 

22.13 Acceleration

On and at any time after the occurrence of an Event of Default which is continuing the Facility Agent may, and shall if so directed by the Majority Lenders, by notice to the Company:

 

  (a) cancel the Total Commitments whereupon they shall immediately be cancelled;

 

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  (b) declare that all or part of the Loans, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon they shall become immediately due and payable; and/or

 

  (c) declare that all or part of the Loans be payable on demand, whereupon they shall immediately become payable on demand by the Facility Agent on the instructions of the Majority Lenders.

 

23. CHANGES TO THE LENDERS

 

23.1 Assignments and transfers by the Lenders

Subject to this Clause 23, a Lender (the “Existing Lender ) may:

 

  (a) assign any of its rights; or

 

  (b) transfer by novation any of its rights and obligations,

to another bank or financial institution or, following the occurrence of an Event of Default which is continuing, to a trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets (the “ New Lender ”).

 

23.2 Conditions of assignment or transfer

 

  (a) The consent of the Company is required for an assignment or transfer by an Existing Lender, unless:

 

  (i) the assignment or transfer is to an Affiliate of an Existing Lender, an Existing Agreement Lender or an Affiliate of an Existing Agreement Lender and the Existing Lender has consulted with the Company for a period of no less than five Business Days prior to the assignment or transfer;

 

  (ii) following the occurrence of an Event of Default which is continuing; or

 

  (iii) such assignment or transfer is made in accordance with the terms of the Mandate Letter.

 

  (b) The consent of the Company to an assignment or transfer must not be unreasonably withheld or delayed. The Company will be deemed to have given its consent five Business Days after the Existing Lender has requested it unless consent is expressly refused by the Company within that time.

 

  (c) A partial transfer by a Lender shall be in a minimum amount of $10,000,000.

 

  (d) An assignment will only be effective on:

 

  (i) receipt by the Facility Agent of written confirmation from the New Lender (in form and substance satisfactory to the Facility Agent) that the New Lender will assume the same obligations to the other Finance Parties as it would have been under if it was an Original Lender; and

 

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  (ii) performance by the Facility Agent of all “know your customer” or other checks relating to any person that it is required to carry out in relation to such assignment to a New Lender, the completion of which the Facility Agent shall promptly notify to the Existing Lender and the New Lender.

 

  (e) A transfer will only be effective if the procedure set out in Clause 23.6 ( Procedure for transfer ) is complied with.

 

  (f) If:

 

  (i) a Lender assigns or transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and

 

  (ii) as a result of circumstances existing at the date the assignment, transfer or change occurs, an Obligor would be obliged to make a payment to the New Lender or Lender acting through its new Facility Office under Clause 12 ( Tax gross-up and indemnities ) or Clause 13 ( Increased Costs ),

then the New Lender or Lender acting through its new Facility Office is only entitled to receive payment under those Clauses to the same extent as the Existing Lender or Lender acting through its previous Facility Office would have been if the assignment, transfer or change had not occurred. This paragraph (f) shall not apply, in relation to Clause 12.2 ( Tax gross-up ), to a Treaty Lender that has included a confirmation of its scheme reference number and its jurisdiction of tax residence in accordance with Clause 12.2(g)(ii)(B) ( Tax gross-up ) if the Obligor making the payment has not made a Borrower DTTP Filing in respect of that Treaty Lender.

 

23.3 Transfer by sub-participation

Where a Lender proposes to enter into a sub-participation (whether funded or unfunded) where as a result of the sub-participation such Lender would no longer retain absolute discretion with regard to the exercise of votes under the Finance Documents, then unless the sub-participation is to be entered into with an Affiliate of the Lender or an existing Lender, the Company’s consent shall be required to the extent so required when applying Clause 23.2 ( Conditions of assignment or transfer ) mutatis mutandis in respect of such sub-participation.

 

23.4 Assignment or transfer fee

The New Lender shall, on the date upon which an assignment or transfer takes effect, pay to the Facility Agent (for its own account) a fee of $3,000.

 

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23.5 Limitation of responsibility of Existing Lenders

 

  (a) Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:

 

  (i) the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any other documents;

 

  (ii) the financial condition of any Obligor;

 

  (iii) the performance and observance by any Obligor of its obligations under the Finance Documents or any other documents; or

 

  (iv) the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document,

and any representations or warranties implied by law are excluded.

 

  (b) Each New Lender confirms to the Existing Lender and the other Finance Parties that it:

 

  (i) has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender in connection with any Finance Document; and

 

  (ii) will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities whilst any amount is or may be outstanding under the Finance Documents or any Commitment is in force.

 

  (c) Nothing in any Finance Document obliges an Existing Lender to:

 

  (i) accept a re-transfer from a New Lender of any of the rights and obligations assigned or transferred under this Clause 23; or

 

  (ii) support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor of its obligations under the Finance Documents or otherwise.

 

23.6 Procedure for transfer

 

  (a) Subject to the conditions set out in Clause 23.2 ( Conditions of assignment or transfer ) a transfer is effected in accordance with paragraph (b) below when the Facility Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Facility Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Transfer Certificate.

 

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  (b) The Facility Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the transfer to such New Lender.

 

  (c) Subject to Clause 23.9 ( Pro rata interest settlement ), the Transfer Date:

 

  (i) to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under the Finance Documents each of the Obligors and the Existing Lender shall be released from further obligations towards one another under the Finance Documents and their respective rights against one another under the Finance Documents shall be cancelled (being the “ Discharged Rights and Obligations ”);

 

  (ii) each of the Obligors and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Discharged Rights and Obligations only insofar as that Obligor and the New Lender have assumed and/or acquired the same in place of that Obligor and the Existing Lender;

 

  (iii) the Facility Agent, the Arranger, the New Lender and other Lenders shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had the New Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of the transfer and to that extent the Facility Agent, the Arranger and the Existing Lender shall each be released from further obligations to each other under the Finance Documents; and

 

  (iv) the New Lender shall become a Party as a Lender .

 

23.7 Copy of Transfer Certificate or Increase Confirmation to Company

The Facility Agent shall, as soon as reasonably practicable after it has executed a Transfer Certificate or Increase Confirmation, send to the Company a copy of that Transfer Certificate or Increase Confirmation.

 

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23.8 Security over Lenders’ rights

In addition to the other rights provided to Lenders under this Clause 23, each Lender may without consulting with or obtaining consent from any Obligor in relation to a charging, assignment or creation of Security in favour of a central bank or federal reserve, or with the agreement of the Company (acting reasonably) in relation to a charging, assignment or creation of Security in favour of any other entity, at any time charge, assign or otherwise create Security in or over (whether by way of collateral or otherwise) all or any of its rights under any Finance Document to secure obligations of that Lender including, without limitation:

 

  (a) any charge, assignment or other Security to secure obligations to a federal reserve or central bank; and

 

  (b) in the case of any Lender which is a fund, any charge, assignment or other Security granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities,

except that no such charge, assignment or Security shall:

 

  (i) release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Security for the Lender as a party to any of the Finance Documents; or

 

  (ii) require any payments to be made by an Obligor other than or in excess of, or grant to any person any more extensive rights than, those required to be made or granted to the relevant Lender under the Finance Documents.

 

23.9 Pro rata interest settlement

If the Facility Agent has notified the Lenders that it is able to distribute interest payments on a “ pro rata basis” to Existing Lenders and New Lenders then (in respect of any transfer pursuant to Clause 23.6 ( Procedure for transfer ) the Transfer Date of which, in each case, is after the date of such notification and is not on the last day of an Interest Period):

 

  (a) any interest or fees in respect of the relevant participation which are expressed to accrue by reference to the lapse of time shall continue to accrue in favour of the Existing Lender up to but excluding the Transfer Date (“ Accrued Amounts ”) and shall become due and payable to the Existing Lender (without further interest accruing on them) on the last day of the current Interest Period (or, if the Interest Period is longer than six Months, on the next of the dates which falls at six Monthly intervals after the first day of that Interest Period); and

 

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  (b) the rights assigned or transferred by the Existing Lender will not include the right to the Accrued Amounts, so that, for the avoidance of doubt:

 

  (i) when the Accrued Amounts become payable, those Accrued Amounts will be payable to the Existing Lender; and

 

  (ii) the amount payable to the New Lender on that date will be the amount which would, but for the application of this Clause 23.9, have been payable to it on that date, but after deduction of the Accrued Amounts.

 

24. CHANGES TO THE OBLIGORS

 

24.1 Assignments and transfer by Obligors

No Obligor may assign any of its rights or transfer any of its rights or obligations under the Finance Documents.

 

24.2 Additional Borrowers

 

  (a) Subject to compliance with the provisions of paragraphs (c) and (d) of Clause 19.7 (“ Know your customer checks ), the Company may request that any of its Subsidiaries becomes an Additional Borrower. That Subsidiary shall become an Additional Borrower if:

 

  (i) all Lenders (acting reasonably) approve the addition of that Subsidiary and which they shall do so if that Subsidiary is a wholly owned subsidiary incorporated in the United Kingdom or in the same jurisdiction as an existing Borrower;

 

  (ii) the Company delivers to the Facility Agent a duly completed and executed Accession Letter;

 

  (iii) the Company confirms that no Default is continuing or would occur as a result of that Subsidiary becoming an Additional Borrower; and

 

  (iv) the Facility Agent has received all of the documents and other evidence listed in Part B of Schedule 2 ( Conditions precedent ) in relation to that Additional Borrower, each in form and substance reasonably satisfactory to the Facility Agent.

 

  (b) The Facility Agent shall notify the Company and the Lenders promptly upon being satisfied that it has received (in form and substance reasonably satisfactory to it) all the documents and other evidence listed in Part B of Schedule 2 ( Conditions precedent ).

 

24.3 Resignation of a Borrower

 

  (a) The Company may request that a Borrower (other than the Company) ceases to be a Borrower by delivering to the Facility Agent a Resignation Letter.

 

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  (b) The Facility Agent shall accept a Resignation Letter and notify the Company and the Lenders of its acceptance if:

 

  (i) no Default is continuing or would result from the acceptance of the Resignation Letter (and the Company has confirmed this is the case); and

 

  (ii) that Borrower is under no actual or contingent obligations as a Borrower under any Finance Documents,

whereupon that company shall cease to be a Borrower and shall have no further rights or obligations under the Finance Documents.

 

24.4 Additional Guarantors

 

  (a) Subject to compliance with the provisions of paragraphs (c) and (d) of Clause 19.7 (“ Know your customer checks ), the Company may request that any of its Subsidiaries become an Additional Guarantor. That Subsidiary shall become an Additional Guarantor if:

 

  (i) the Company delivers to the Facility Agent a duly completed and executed Accession Letter; and

 

  (ii) the Facility Agent has received all of the documents and other evidence listed in Part B of Schedule 2 ( Conditions precedent ) in relation to that Additional Guarantor, each in form and substance reasonably satisfactory to the Facility Agent.

 

  (b) The Facility Agent shall notify the Company and the Lenders promptly upon being satisfied that it has received (in form and substance reasonably satisfactory to it) all the documents and other evidence listed in Part B of Schedule 2 ( Conditions precedent ).

 

24.5 Repetition of Representations

Delivery of an Accession Letter constitutes confirmation by the relevant Subsidiary that the Repeating Representations are true and correct in relation to it as at the date of delivery as if made by reference to the facts and circumstances then existing.

 

24.6 Resignation of a Guarantor

 

  (a) The Company may request that a Guarantor (other than the Company) ceases to be a Guarantor by delivering to the Facility Agent a Resignation Letter.

 

  (b) The Facility Agent shall accept a Resignation Letter and notify the Company and the Lenders of its acceptance if:

 

  (i) no Default is continuing or would result from the acceptance of the Resignation Letter (and the Company has confirmed this is the case); and

 

  (ii) the Majority Lenders have consented to the Company’s request (which they shall do if in relation to any Subsidiary of the Company, Clause 21.5 ( Subsidiary Indebtedness ) is being complied with at such time).

 

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25. ROLE OF THE FACILITY AGENT AND THE ARRANGER

 

25.1 Appointment of the Facility Agent

 

  (a) Each other Finance Party appoints the Facility Agent to act as its agent under and in connection with the Finance Documents.

 

  (b) Each other Finance Party authorises the Facility Agent to exercise the rights, powers, authorities and discretions specifically given to the Facility Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions.

 

25.2 Duties of the Facility Agent

 

  (a) Subject to paragraph (b) below, the Facility Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Facility Agent for that Party by any other Party.

 

  (b) Without prejudice to Clause 23.7 ( Copy of Transfer Certificate or Increase Confirmation to Company ), paragraph (a) above shall not apply to any Transfer Certificate or any Increase Confirmation.

 

  (c) Except where a Finance Document specifically provides otherwise, the Facility Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.

 

  (d) If the Facility Agent receives notice from a Party referring to this Agreement, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the Finance Parties.

 

  (e) If the Facility Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Facility Agent or the Arranger) under this Agreement it shall promptly notify the other Finance Parties.

 

  (f) The Facility Agent shall provide to the Company (i) every six months, starting with the date falling six Months from the date of this Agreement and (ii) in any event within three Business Days of a request by the Company, a list (which may be in electronic form) setting out the names of the Lenders as at the date of response or as at the date of that request (as the Company may elect), their respective Commitments, the address and fax number (and the department or officer, if any, for whose attention any communication is to be made) of each Lender for any communication to be made or document to be delivered under or in connection with the Finance Documents, the electronic mail address and/or any other information required to enable the sending and receipt of information by electronic mail or other electronic means to and by each Lender to whom any communication under or in connection with the Finance Documents may be made by that means and the account details of each Lender for any payment to be distributed by the Facility Agent to that Lender under the Finance Documents.

 

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  (g) The Facility Agent’s duties under the Finance Documents are solely mechanical and administrative in nature.

 

25.3 Role of the Arranger

Except as specifically provided in the Finance Documents, the Arranger has no obligations of any kind to any other Party under or in connection with any Finance Document.

 

25.4 No fiduciary duties

 

  (a) Nothing in this Agreement constitutes the Facility Agent or the Arranger as a trustee or fiduciary of any other person.

 

  (b) Neither the Facility Agent nor the Arranger shall be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account.

 

25.5 Business with the Group

The Facility Agent and the Arranger may accept deposits from, lend money to and generally engage in any kind of banking or other business with any member of the Group.

 

25.6 Rights and discretions of the Facility Agent

 

  (a) The Facility Agent may rely on:

 

  (i) any representation, notice or document believed by it to be genuine, correct and appropriately authorised; and

 

  (ii) any statement made by a director, authorised signatory or employee of any person regarding any matters which may reasonably be assumed to be within his knowledge or within his power to verify.

 

  (b) The Facility Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lenders) that:

 

  (i) no Default has occurred (unless it has actual knowledge of a Default arising under Clause 22.1 ( Non-payment ));

 

  (ii) any right, power, authority or discretion vested in any Party or the Majority Lenders has not been exercised; and

 

  (iii) any notice or request made by the Company (other than a Utilisation Request) is made on behalf of and with the consent and knowledge of all the Obligors.

 

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  (c) The Facility Agent may engage, pay for and rely on the advice or services of any lawyers, accountants, surveyors or other experts.

 

  (d) The Facility Agent may act in relation to the Finance Documents through its personnel and agents.

 

  (e) The Facility Agent may disclose to any other Party any information it reasonably believes it has received as agent under this Agreement.

 

  (f) Notwithstanding any other provision of any Finance Document to the contrary, neither the Facility Agent nor the Arranger is obliged to do or omit to do anything if it would or might in its reasonable opinion constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.

 

25.7 Majority Lenders’ instructions

 

  (a) Unless a contrary indication appears in a Finance Document, the Facility Agent shall (i) exercise any right, power, authority or discretion vested in it as Facility Agent in accordance with any instructions given to it by the Majority Lenders (or, if so instructed by the Majority Lenders, refrain from exercising any right, power, authority or discretion vested in it as Facility Agent) and (ii) not be liable for any act (or omission) if it acts (or refrains from taking any action) in accordance with an instruction of the Majority Lenders.

 

  (b) Unless a contrary indication appears in a Finance Document, any instructions given by the Majority Lenders will be binding on all the Finance Parties.

 

  (c) The Facility Agent may refrain from acting in accordance with the instructions of the Majority Lenders (or, if appropriate, the Lenders) until it has received such security as it may require for any cost, loss or liability (together with any associated VAT) which it may incur in complying with the instructions.

 

  (d) In the absence of instructions from the Majority Lenders (or, if appropriate, the Lenders), the Facility Agent may act (or refrain from taking action) as it considers to be in the best interest of the Lenders.

 

  (e) The Facility Agent is not authorised to act on behalf of a Lender (without first obtaining that Lender’s consent) in any legal or arbitration proceedings relating to any Finance Document.

 

25.8 Responsibility for documentation

Neither the Facility Agent nor the Arranger:

 

  (a) is responsible for the adequacy, accuracy and/or completeness of any information (whether oral or written) supplied by the Facility Agent, the Arranger, an Obligor or any other person given in or in connection with any Finance Document; or

 

  (b) is responsible for the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of or in connection with any Finance Document.

 

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25.9 Exclusion of liability

 

  (a) Without limiting paragraph (b) below and without prejudice to the provisions of paragraph (e) of Clause 28.11 ( Disruption to Payment Systems, etc. ), the Facility Agent will not be liable for any action taken by it under or in connection with any Finance Document, unless directly caused by its gross negligence or wilful misconduct.

 

  (b) No Party (other than the Facility Agent) may take any proceedings against any officer, employee or agent of the Facility Agent in respect of any claim it might have against the Facility Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document and any officer, employee or agent of the Facility Agent may rely on this Clause.

 

  (c) The Facility Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Facility Agent if the Facility Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Facility Agent for that purpose.

 

  (d) Nothing in this Agreement shall oblige the Facility Agent or the Arranger to carry out any “know your customer” or other checks in relation to any person on behalf of any Lender and each Lender confirms to the Facility Agent and the Arranger that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Facility Agent or the Arranger.

 

25.10 Lenders’ indemnity to the Facility Agent

Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Facility Agent, within three Business Days of demand, against any cost, loss or liability incurred by the Facility Agent (otherwise than by reason of the Facility Agent’s gross negligence or wilful misconduct) in acting as Facility Agent under the Finance Documents (unless the Facility Agent has been reimbursed by an Obligor pursuant to a Finance Document).

 

25.11 Resignation of the Facility Agent

 

  (a) The Facility Agent may resign and appoint one of its Affiliates acting through an office in the United Kingdom as successor by giving notice to the other Finance Parties and the Company.

 

  (b) Alternatively the Facility Agent may resign by giving notice to the other Finance Parties and the Company, in which case the Majority Lenders may appoint a successor Facility Agent with the consent of the Company (such consent not to be unreasonably withheld or delayed) unless the successor Facility Agent is an Arranger or an Affiliate thereof, in which case the consent of the Company shall not be required.

 

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  (c) If the Majority Lenders have not appointed a successor Facility Agent in accordance with paragraph (b) above within 30 days after notice of resignation was given, the Facility Agent (after consultation with the Company) may appoint a successor Facility Agent (acting through an office in the United Kingdom).

 

  (d) The retiring Facility Agent shall, at its own cost, make available to the successor Facility Agent such documents and records and provide such assistance as the successor Facility Agent may reasonably request for the purposes of performing its functions as Facility Agent under the Finance Documents.

 

  (e) The Facility Agent’s resignation notice shall only take effect upon the appointment of a successor.

 

  (f) Upon the appointment of a successor, the retiring Facility Agent shall be discharged from any further obligation in respect of the Finance Documents but shall remain entitled to the benefit of this Clause 25. Its successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.

 

  (g) After consultation with the Company the Majority Lenders may, by notice to the Facility Agent, require it to resign in accordance with paragraph (b) above. In this event, the Facility Agent shall resign in accordance with paragraph (b) above.

 

  (h) The Facility Agent shall resign in accordance with paragraph (b) above (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Facility Agent pursuant to paragraph (c) above) if on or after the date which is three months before the earliest FATCA Application Date relating to any payment to the Facility Agent under the Finance Documents, either:

 

  (i) the Facility Agent fails to respond to a request under Clause 12.8 ( FATCA Information ) and the Company or a Lender reasonably believes that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;

 

  (ii) the information supplied by the Facility Agent pursuant to Clause 12.8 ( FATCA Information ) indicates that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or

 

  (iii) the Facility Agent notifies the Company and the Lenders that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date,

 

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and (in each case) the Company or a Lender reasonably believes that a Party will be required to make a FATCA Deduction that would not be required if the Facility Agent were a FATCA Exempt Party, and the Company or that Lender, by notice to the Agent, requires it to resign.

 

25.12 Replacement of the Facility Agent

 

  (a) Subject to paragraph (b) below, the Majority Lenders may, by giving 30 days’ notice to the Facility Agent (or, at any time the Facility Agent is an Impaired Agent, by giving any shorter notice determined by the Majority Lenders) replace the Facility Agent by appointing a successor Facility Agent (acting through an office in the United Kingdom).

 

  (b) The Facility Agent may only be replaced with the consent of the Company (such consent not to be unreasonably withheld or delayed) unless the successor Facility Agent is an Arranger or an Affiliate thereof, in which case the consent of the Company shall not be required.

 

  (c) The retiring Facility Agent shall (at its own cost if it is an Impaired Agent and otherwise at the expense of the Lenders) make available to the successor Facility Agent such documents and records and provide such assistance as the successor Facility Agent may reasonably request for the purposes of performing its functions as Facility Agent under the Finance Documents.

 

  (d) The appointment of the successor Facility Agent shall take effect on the date specified in the notice from the Majority Lenders to the retiring Facility Agent. As from this date, the retiring Facility Agent shall be discharged from any further obligation in respect of the Finance Documents but shall remain entitled to the benefit of this Clause 25 (and any agency fees for the account of the retiring Facility Agent shall cease to accrue from (and shall be payable on) that date).

 

  (e) Any successor Facility Agent and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.

 

25.13 Confidentiality

 

  (a) In acting as agent for the Finance Parties, the Facility Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments.

 

  (b) If information is received by another division or department of the Facility Agent, it may be treated as confidential to that division or department and the Facility Agent shall not be deemed to have notice of it.

 

25.14 Relationship with the Lenders

 

  (a) Subject to Clause 23.9 ( Pro rata interest settlement ), the Facility Agent may treat each Lender as a Lender, entitled to payments under this Agreement and acting through its Facility Office unless it has received not less than five Business Days prior notice from that Lender to the contrary in accordance with the terms of this Agreement.

 

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  (b) Any Lender may by notice to the Facility Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made or despatched to that Lender under the Finance Documents. Such notice shall contain the address, fax number and (where communication by electronic mail or other electronic means is permitted under Clause 30.6 ( Electronic communication )) electronic mail address and/or any other information required to enable the sending and receipt of information by that means (and, in each case, the department or officer, if any, for whose attention communication is to be made) and be treated as a notification of a substitute address, fax number, electronic mail address, department and officer by that Lender for the purposes of Clause 30.2 ( Addresses ) and paragraph (a)(iii) of Clause 30.6 ( Electronic communication ) and the Facility Agent shall be entitled to treat such person as the person entitled to receive all such notices, communications, information and documents as though that person were that Lender.

 

25.15 Credit appraisal by the Lenders

Without affecting the responsibility of any Obligor for information supplied by it or on its behalf in connection with any Finance Document, each Lender confirms to the Facility Agent and the Arranger that it has been, and will continue to be, solely responsible for making its own independent appraisal and investigation of all risks arising under or in connection with any Finance Document including but not limited to:

 

  (a) the financial condition, status and nature of each member of the Group;

 

  (b) the legality, validity, effectiveness, adequacy or enforceability of any Finance Document and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;

 

  (c) whether that Lender has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and

 

  (d) the adequacy, accuracy and/or completeness of any information provided by the Facility Agent, any Party or by any other person under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document.

 

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25.16 Reference Banks

If a Reference Bank (or, if a Reference Bank is not a Lender, the Lender of which it is an Affiliate) ceases to be a Lender, the Facility Agent shall (in agreement with the Company, such agreement not to be unreasonably withheld) appoint another Lender or an Affiliate of a Lender to replace that Reference Bank.

 

25.17 Deduction from amounts payable by the Facility Agent

If any Party owes an amount to the Facility Agent under the Finance Documents the Facility Agent may, after giving notice to that Party, deduct an amount not exceeding that amount from any payment to that Party which the Facility Agent would otherwise be obliged to make under the Finance Documents and apply the amount deducted in or towards satisfaction of the amount owed. For the purposes of the Finance Documents that Party shall be regarded as having received any amount so deducted.

 

26. CONDUCT OF BUSINESS BY THE FINANCE PARTIES

No provision of this Agreement will:

 

  (a) interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;

 

  (b) oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or

 

  (c) oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.

 

27. SHARING AMONG THE FINANCE PARTIES

 

27.1 Payments to Finance Parties

If a Finance Party (a “ Recovering Finance Party ”) receives or recovers any amount from an Obligor other than in accordance with Clause 28 ( Payment mechanics ) and applies that amount to a payment due under the Finance Documents then:

 

  (a) the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery to the Facility Agent;

 

  (b) the Facility Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the receipt or recovery been received or made by the Facility Agent and distributed in accordance with Clause 28 ( Payment mechanics ), without taking account of any Tax which would be imposed on the Facility Agent in relation to the receipt, recovery or distribution; and

 

  (c) the Recovering Finance Party shall, within three Business Days of demand by the Facility Agent, pay to the Facility Agent an amount (the “ Sharing Payment ”) equal to such receipt or recovery less any amount which the Facility Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with Clause 28.6 ( Partial payments ).

 

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27.2 Redistribution of payments

The Facility Agent shall treat the Sharing Payment as if it had been paid by the relevant Obligor and distribute it between the Finance Parties (other than the Recovering Finance Party) in accordance with Clause 28.6 ( Partial payments ).

 

27.3 Recovering Finance Party’s rights

 

  (a) On a distribution by the Facility Agent under Clause 27.2 ( Redistribution of payments ), the Recovering Finance Party will be subrogated to the rights of the Finance Parties which have shared in the redistribution.

 

  (b) If and to the extent that the Recovering Finance Party is not able to rely on its rights under paragraph (a) above, the relevant Obligor shall be liable to the Recovering Finance Party for a debt equal to the Sharing Payment which is immediately due and payable.

 

27.4 Reversal of redistribution

If any part of the Sharing Payment received or recovered by a Recovering Finance Party becomes repayable and is repaid by that Recovering Finance Party, then:

 

  (a) each Finance Party which has received a share of the relevant Sharing Payment pursuant to Clause 27.2 ( Redistribution of payments ) shall, upon request of the Facility Agent, pay to the Facility Agent for account of that Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay); and

 

  (b) that Recovering Finance Party’s rights of subrogation in respect of any reimbursement shall be cancelled and the relevant Obligor will be liable to the reimbursing Finance Party for the amount so reimbursed.

 

27.5 Exceptions

 

  (a) This Clause 27 shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this Clause, have a valid and enforceable claim against the relevant Obligor.

 

  (b) A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of taking legal or arbitration proceedings, if:

 

  (i) it notified that other Finance Party of the legal or arbitration proceedings; and

 

  (ii) that other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings.

 

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28. PAYMENT MECHANICS

 

28.1 Payments to the Facility Agent

 

  (a) On each date on which an Obligor or a Lender is required to make a payment under a Finance Document, that Obligor or Lender shall make the same available to the Facility Agent (unless a contrary indication appears in a Finance Document) for value on the due date at the time and in such funds specified by the Facility Agent as being customary at the time for settlement of transactions in the relevant currency in the place of payment.

 

  (b) Payment shall be made to such account in the principal financial centre of the country of that currency with such bank as the Facility Agent specifies.

 

28.2 Distributions by the Facility Agent

Each payment received by the Facility Agent under the Finance Documents for another Party shall, subject to Clause 28.3 ( Distributions to an Obligor ) and Clause 28.4 ( Clawback ), be made available by the Facility Agent as soon as practicable after receipt to the Party entitled to receive payment in accordance with this Agreement (in the case of a Lender, for the account of its Facility Office), to such account as that Party may notify to the Facility Agent by not less than five Business Days’ notice with a bank in the principal financial centre of the country of that currency.

 

28.3 Distributions to an Obligor

The Facility Agent may (with the consent of the Obligor or in accordance with Clause 29 ( Set-off )) apply any amount received by it for that Obligor in or towards payment (on the date and in the currency and funds of receipt) of any amount due from that Obligor under the Finance Documents or in or towards purchase of any amount of any currency to be so applied.

 

28.4 Clawback

 

  (a) Where a sum is to be paid to the Facility Agent under the Finance Documents for another Party, the Facility Agent is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum.

 

  (b) If the Facility Agent pays an amount to another Party and it proves to be the case that the Facility Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the Facility Agent shall on demand refund the same to the Facility Agent together with interest on that amount from the date of payment to the date of receipt by the Facility Agent, calculated by the Facility Agent to reflect its cost of funds.

 

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28.5 Impaired Agent

 

  (a) If, at any time, the Facility Agent becomes an Impaired Agent, an Obligor or a Lender which is required to make a payment under the Finance Documents to the Facility Agent in accordance with Clause 28.1 ( Payments to the Facility Agent ) may instead either pay that amount direct to the required recipient or pay that amount to an interest-bearing account held with an Acceptable Bank and in relation to which no Insolvency Event has occurred and is continuing, in the name of the Obligor or the Lender making the payment and designated as a trust account for the benefit of the Party or Parties beneficially entitled to that payment under the Finance Documents. In each case such payments must be made on the due date for payment under the Finance Documents.

 

  (b) All interest accrued on the amount standing to the credit of the trust account shall be for the benefit of the beneficiaries of that trust account pro rata to their respective entitlements.

 

  (c) A Party which has made a payment in accordance with this Clause 28.5 shall be discharged of the relevant payment obligation under the Finance Documents and shall not take any credit risk with respect to the amounts standing to the credit of the trust account.

 

  (d) Promptly upon the appointment of a successor Facility Agent in accordance with Clause 25.12 ( Replacement of the Facility Agent ), each Party which has made a payment to a trust account in accordance with this Clause 28.5 shall give all requisite instructions to the bank with whom the trust account is held to transfer the amount (together with any accrued interest) to the successor Facility Agent for distribution in accordance with Clause 28.2 ( Distributions by the Facility Agent ).

 

28.6 Partial payments

 

  (a) If the Facility Agent receives a payment that is insufficient to discharge all the amounts then due and payable by an Obligor under the Finance Documents, the Facility Agent shall apply that payment towards the obligations of that Obligor under the Finance Documents in the following order:

 

  (i) firstly , in or towards payment pro rata of any unpaid fees, costs and expenses of the Facility Agent or the Arranger under the Finance Documents;

 

  (ii) secondly , in or towards payment pro rata of any accrued interest, fee or commission due but unpaid under this Agreement;

 

  (iii) thirdly , in or towards payment pro rata of any principal due but unpaid under this Agreement; and

 

  (iv) fourthly , in or towards payment pro rata of any other sum due but unpaid under the Finance Documents.

 

  (b) The Facility Agent shall, if so directed by the Majority Lenders, vary the order set out in paragraphs (a)(ii) to (iv) above.

 

  (c) Paragraphs (a) and (b) above will override any appropriation made by an Obligor.

 

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28.7 No set-off by Obligors

All payments to be made by an Obligor under the Finance Documents shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim unless all Lenders have agreed to that Obligor making such payments with set-off or counterclaim.

 

28.8 Business Days

 

  (a) Any payment which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).

 

  (b) During any extension of the due date for payment of any principal or Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.

 

28.9 Currency of account

 

  (a) Subject to paragraphs (b) to (c) below, US Dollars is the currency of account and payment for any sum due from an Obligor under any Finance Document.

 

  (b) Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.

 

  (c) Any amount expressed to be payable in a currency other than US Dollars shall be paid in that other currency.

 

28.10 Change of currency

 

  (a) Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then:

 

  (i) any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall be translated into, or paid in, the currency or currency unit of that country designated by the Facility Agent (acting reasonably and after consultation with the Company); and

 

  (ii) any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Facility Agent (acting reasonably and after consultation with the Company).

 

  (b) If a change in any currency of a country occurs, this Agreement will, to the extent the Facility Agent (acting reasonably and after consultation with the Company) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the Relevant Interbank Market and otherwise to reflect the change in currency.

 

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28.11 Disruption to Payment Systems etc.

If either the Facility Agent determines (in its discretion) that a Disruption Event has occurred or the Facility Agent is notified by the Company that a Disruption Event has occurred:

 

  (a) the Facility Agent may, and shall if requested to do so by the Company, consult with the Company with a view to agreeing with the Company such changes to the operation or administration of the Facility as the Facility Agent may deem necessary in the circumstances;

 

  (b) the Facility Agent shall not be obliged to consult with the Company in relation to any changes mentioned in paragraph (a) if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes;

 

  (c) the Facility Agent may consult with the Finance Parties in relation to any changes mentioned in paragraph (a) but shall not be obliged to do so if, in its opinion, it is not practicable to do so in the circumstances;

 

  (d) any such changes agreed upon by the Facility Agent and the Company shall (whether or not it is finally determined that a Disruption Event has occurred) be binding upon the Parties as an amendment to (or, as the case may be, waiver of) the terms of the Finance Documents notwithstanding the provisions of Clause 34 ( Amendments and Waivers );

 

  (e) the Facility Agent shall not be liable for any damages, costs or losses whatsoever arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Clause 28.11 save to the extent the relevant damage, cost or loss (as the case may be) is caused by the fraud of the Facility Agent; and

 

  (f) the Facility Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above.

 

29. SET-OFF

Without prejudice to the normal rights of the Finance Parties at law, after the occurrence of an Event of Default which is continuing, a Finance Party may set off any matured obligation due from an Obligor under the Finance Documents (to the extent beneficially owned by that Finance Party) against any matured obligation owed by that Finance Party to that Obligor, regardless of the place of payment, booking branch or currency of either obligation. If the obligations are in different currencies, the Finance Party may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off. That Finance Party shall promptly notify that Obligor of any such set-off or conversion.

 

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30. NOTICES

 

30.1 Communications in writing

Any communication to be made under or in connection with the Finance Documents shall be made in writing and, unless otherwise stated, may be made by fax or letter.

 

30.2 Addresses

The address and fax number (and the department or officer, if any, for whose attention the communication is to be made) of each Party for any communication or document to be made or delivered under or in connection with the Finance Documents is:

 

  (a) in the case of the Company, that identified with its name below;

 

  (b) in the case of each Lender or any other Obligor, that notified in writing to the Facility Agent on or prior to the date on which it becomes a Party; and

 

  (c) in the case of the Facility Agent, that identified with its name below,

or any substitute address, fax number or department or officer as the Party may notify to the Facility Agent (or the Facility Agent may notify to the other Parties, if a change is made by the Facility Agent) by not less than five Business Days’ notice.

 

30.3 Delivery

 

  (a) Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be effective:

 

  (i) if by way of fax, when received in legible form; or

 

  (ii) if by way of letter, when it has been left at the relevant address or five Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address,

and, if a particular department or officer is specified as part of its address details provided under Clause 30.2 (Addresses), if addressed to that department or officer.

 

  (b) Any communication or document to be made or delivered to the Facility Agent will be effective only when actually received by the Facility Agent and then only if it is expressly marked for the attention of the department or officer identified with the Facility Agent’s signature below (or any substitute department or officer as the Facility Agent shall specify for this purpose).

 

  (c) All notices from or to an Obligor shall be sent through the Facility Agent.

 

  (d) Any communication or document made or delivered to the Company in accordance with this Clause will be deemed to have been made or delivered to each of the Obligors.

 

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30.4 Notification of address and fax number

Promptly upon receipt of notification of an address and fax number or change of address or fax number pursuant to Clause 30.2 ( Addresses ) or changing its own address or fax number, the Facility Agent shall notify the other Parties.

 

30.5 Communication when Facility Agent is Impaired Agent

If the Facility Agent is an Impaired Agent the Parties may, instead of communicating with each other through the Facility Agent, communicate with each other directly and (while the Facility Agent is an Impaired Agent) all the provisions of the Finance Documents which require communications to be made or notices to be given to or by the Facility Agent shall be varied so that communications may be made and notices given to or by the relevant Parties directly. This provision shall not operate after a replacement Facility Agent has been appointed.

 

30.6 Electronic communication

 

  (a) Any communication to be made between the Facility Agent and a Lender or an Obligor and the Facility Agent under or in connection with the Finance Documents may be made by electronic mail or other electronic means, if the Facility Agent and the relevant Lender or, as appropriate, the relevant Obligor and the Facility Agent:

 

  (i) agree that, unless and until notified to the contrary, this is to be an accepted form of communication;

 

  (ii) notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and

 

  (iii) notify each other of any change to their address or any other such information supplied by them.

 

  (b) Any electronic communication made between the Facility Agent and a Lender or an Obligor and the Facility Agent will be effective only when actually received in readable form and in the case of any electronic communication made by a Lender to the Facility Agent or an Obligor to the Facility Agent only if it is addressed in such a manner as the Facility Agent shall specify for this purpose.

 

  (c) The ability of an Obligor to use electronic communications is without prejudice to its obligation to submit any Utilisation Request, Accession Letter, Resignation Letter or Compliance Certificate in the form required under this Agreement or any other document or notice which requires the signature of any director or authorised signatory of an Obligor.

 

30.7 English language

 

  (a) Any notice given under or in connection with any Finance Document must be in English.

 

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  (b) All other documents provided under or in connection with any Finance Document must be:

 

  (i) in English; or

 

  (ii) if not in English, and if so required by the Facility Agent, accompanied by a certified English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.

 

31. CALCULATIONS AND CERTIFICATES

 

31.1 Accounts

In any litigation or arbitration proceedings arising out of or in connection with a Finance Document, the entries made in the accounts maintained by a Finance Party are prima facie evidence of the matters to which they relate.

 

31.2 Certificates and Determinations

Any certification or determination by a Finance Party of a rate or amount under any Finance Document shall set out the basis of calculation in reasonable detail and is prima facie evidence of the matters to which it relates.

 

31.3 Day count convention

Any interest, commission or fee accruing under a Finance Document will accrue from day to day and is calculated on the basis of the actual number of days elapsed and a year of 360 days.

 

32. PARTIAL INVALIDITY

If, at any time, any provision of the Finance Documents is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.

 

33. REMEDIES AND WAIVERS

No failure to exercise, nor any delay in exercising, on the part of any Finance Party, any right or remedy under the Finance Documents shall operate as a waiver, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.

 

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34. AMENDMENTS AND WAIVERS

 

34.1 Required consents

 

  (a) Subject to Clause 34.2 ( Exceptions ) any term of the Finance Documents may be amended or waived only with the consent of the Majority Lenders and the Obligors and any such amendment or waiver will be binding on all Parties.

 

  (b) The Facility Agent may effect, on behalf of any Finance Party, and the Company may effect, on behalf of any Obligor, any amendment or waiver permitted by this Clause.

 

34.2 Exceptions

 

  (a) Subject to Clause 34.3 ( Replacement of Screen Rate), an amendment or waiver that has the effect of changing or which relates to:

 

  (i) the definition of “LIBOR” or “Majority Lenders” in Clause 1.1 ( Definitions );

 

  (ii) an extension to the date of payment of any amount under the Finance Documents;

 

  (iii) a reduction in the Margin or a reduction in the amount of any payment of principal, interest, fees or commission payable;

 

  (iv) an increase in or an extension of any Commitment;

 

  (v) a change to the Borrowers or Guarantors other than in accordance with Clause 24 ( Changes to the Obligors );

 

  (vi) any provision which expressly requires the consent of all the Lenders;

 

  (vii) Clause 2.3 ( Finance Parties’ rights and obligations ), Clause 23 ( Changes to the Lenders ), Clause 27 ( Sharing among the Finance Parties ), or this Clause 34; or

 

  (viii) the nature or scope of the guarantee and indemnity granted under Clause 17 ( Guarantee and Indemnity ),

shall not be made without the prior consent of all the Lenders.

 

  (b) An amendment or waiver which relates to the rights or obligations of the Facility Agent or the Arranger or a Reference Bank may not be effected without the consent of the Facility Agent or the Arranger or that Reference Bank.

 

  (c)

If a Lender fails to respond or vote in relation to a request for a consent, waiver, amendment or other vote under the Finance Documents (a “ Request ”) within twenty-five Business Days (unless any Borrower and the Facility Agent agree a longer time period in relation to any request) of that Request being made, (i) with respect to any Request that does not require the consent of all

 

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  Lenders pursuant to paragraph (a) of this Clause 35.2, in ascertaining whether the Majority Lenders or any other given percentage of the Total Commitments has been obtained, that Lender’s Commitments shall not be included (for the avoidance of doubt, for the purposes of calculating both (A) the Total Commitments and (B) the aggregate Commitments of Lenders voting in favour of such Request) and (ii) with respect to any Request requiring the consent of all Lenders pursuant to paragraph (a) of this Clause 35.2, that Lender shall be deemed to have declined to consent to such Request (and the requested consent, waiver, amendment or other vote shall not become effective); provided, however, that if the Super-Majority Lenders have agreed to the Request, the Company may exercise its rights under Clause 8.6 ( Replacement of a Non-Consenting Lender ) with respect to such Lender as if it were a Non-Consenting Lender.

 

34.3 Replacement of Screen Rate

 

  (a) Subject to Clause 34.2(b) ( Exceptions ), if the Screen Rate is not available for US Dollars, any amendment or waiver which relates to providing for another benchmark rate to apply in relation to US Dollars in place of that Screen Rate (or which relates to aligning any provision of a Finance Document to the use of that other benchmark rate) may be made with the consent of the Majority Lenders and the Obligors.

 

  (b) If any Lender fails to respond to a request for an amendment or waiver described in paragraph (a) above within 5 Business days (unless the Company and the Agent agree to a longer time period in relation to any request) of that request being made:

 

  (i) its Commitment shall not be included for the purpose of calculating the Total Commitments when ascertaining whether any relevant percentage of Total Commitments has been obtained to approve that request; and

 

  (ii) its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve that request.

 

35. CONFIDENTIALITY

 

35.1 Confidential Information

Each Finance Party agrees to keep all Confidential Information confidential and not to disclose it to anyone, save to the extent permitted by Clause 35.2 ( Disclosure of Confidential Information ) and Clause 35.3 ( Disclosure to numbering service providers ), to ensure that all Confidential Information is protected with security measures and a degree of care that would apply to its own confidential information and to use all reasonable endeavours to ensure that any person to whom that Finance Party passes any Confidential Information (unless disclosed in accordance with paragraph (b)(v) of Clause 35.2 ( Disclosure of Confidential Information )) acknowledges and complies with the provisions of this Clause 35 as if that person were bound by it.

 

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35.2 Disclosure of Confidential Information

Any Finance Party may disclose, on a need-to-know basis:

 

  (a) to any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors and partners such Confidential Information as that Finance Party shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this paragraph (a) is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information;

 

  (b) to any person:

 

  (i) to (or through) whom it transfers (or may potentially transfer) all or any of its rights and/or obligations under one or more Finance Documents and to any of that person’s Affiliates, Representatives and professional advisers for the purpose of that actual or potential assignment or transfer;

 

  (ii) with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to, one or more Finance Documents and/or one or more Obligors and to any of that person’s Affiliates, Representatives and professional advisers for the purpose of that actual or potential sub-participation or transaction;

 

  (iii) appointed by any Finance Party or by a person to whom paragraph (b)(i) or (ii) above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf (including, without limitation, any person appointed under paragraph (c) of Clause 25.14 ( Relationship with the Lenders ));

 

  (iv) who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in paragraph (b)(i) or (b)(ii) above for the purpose of that transaction;

 

  (v) to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation;

 

  (vi) to whom or for whose benefit that Finance Party charges, assigns or otherwise creates Security (or may do so) pursuant to Clause 23.8 ( Security over Lenders’ rights );

 

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  (vii) to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes in connection with the Finance Documents;

 

  (viii) who is a Party; or

 

  (ix) with the consent of the Company;

in each case, such Confidential Information as that Finance Party shall consider appropriate if:

 

  (A) in relation to paragraphs (b)(i), (b)(ii) and (b)(iii) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information;

 

  (B) in relation to paragraph (b)(iv) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information;

 

  (C) in relation to paragraphs (b)(v), (b)(vi) and (b)(vii) above, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no requirement to so inform if, in the reasonable opinion of that Finance Party, it is not practicable so to do in the circumstances;

 

  (c) to any person appointed by that Finance Party or by a person to whom paragraph (b)(i) or (b)(ii) above applies to provide administration or settlement services in respect of one or more of the Finance Documents including without limitation, in relation to the trading of participations in respect of the Finance Documents, such Confidential Information as may be required to be disclosed to enable such service provider to provide any of the services referred to in this paragraph (c) if the service provider to whom the Confidential Information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Company and the relevant Finance Party;

 

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  (d) to any rating agency (including its professional advisers) the following information:

 

  (i) names of Obligors;

 

  (ii) country of domicile of Obligors;

 

  (iii) place of incorporation of Obligors;

 

  (iv) date of this Agreement;

 

  (v) the names of the Facility Agent and the Arranger;

 

  (vi) date of each amendment and restatement of this Agreement;

 

  (vii) amount of Total Commitments;

 

  (viii) currencies of the Facility;

 

  (ix) type of Facility;

 

  (x) ranking of Facility;

 

  (xi) Termination Date for Facility;

 

  (xii) the amount of such Finance Party’s Commitment;

 

  (xiii) changes to any of the information previously supplied pursuant to paragraphs (i) to (xii) above; and

 

  (xiv) such other information agreed between such Finance Party and the Company,

as may be required to be disclosed to enable such rating agency to perform its normal corporate loan rating activities in relation to the Finance Documents.

 

35.3 Disclosure to numbering service providers

 

  (a) Any Finance Party may disclose to any national or international numbering service provider appointed by that Finance Party to provide identification numbering services in respect of this Agreement, the Facility and/or one or more Obligors the following information:

 

  (i) names of Obligors;

 

  (ii) country of domicile of Obligors;

 

  (iii) place of incorporation of Obligors;

 

  (iv) date of this Agreement;

 

  (v) the names of the Facility Agent and the Arranger;

 

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  (vi) date of each amendment and restatement of this Agreement;

 

  (vii) amount of Total Commitments;

 

  (viii) currencies of the Facility;

 

  (ix) type of Facility ;

 

  (x) ranking of Facility;

 

  (xi) Termination Date for Facility;

 

  (xii) changes to any of the information previously supplied pursuant to paragraphs (i) to (xi) above; and

 

  (xiii) such other information agreed between such Finance Party and the Company,

to enable such numbering service provider to provide its usual syndicated loan numbering identification services.

 

  (b) The Parties acknowledge and agree that each identification number assigned to this Agreement, the Facility and/or one or more Obligors by a numbering service provider and the information associated with each such number may be disclosed to users of its services in accordance with the standard terms and conditions of that numbering service provider.

 

  (c) The Facility Agent shall notify the Company and the other Finance Parties of:

 

  (i) the name of any numbering service provider appointed by the Facility Agent in respect of this Agreement, the Facility and/or one or more Obligors; and

 

  (ii) the number or, as the case may be, numbers assigned to this Agreement, the Facility and/or one or more Obligors by such numbering service provider.

 

35.4 Entire agreement

This Clause 35 ( Confidentiality ) constitutes the entire agreement between the Parties in relation to the obligations of the Finance Parties under the Finance Documents regarding Confidential Information and supersedes any previous agreement, whether express or implied, regarding Confidential Information.

 

35.5 Inside information

Each of the Finance Parties acknowledges that some or all of the Confidential Information is or may be price-sensitive information and that the use of such information may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and each of the Finance Parties undertakes not to use any Confidential Information for any unlawful purpose.

 

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35.6 Notification of disclosure

Each of the Finance Parties agrees (to the extent permitted by law and regulation) to inform the Company:

 

  (a) of the circumstances of any disclosure of Confidential Information made pursuant to (i) paragraph (b)(v) of Clause 35.2 ( Disclosure of Confidential Information ) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function or (ii) paragraph (b)(vi) of Clause 35.2 ( Disclosure of Confidential Information ); and

 

  (b) upon becoming aware that Confidential Information has been disclosed in breach of this Clause 35 ( Confidentiality ).

 

35.7 Continuing obligations

The obligations in this Clause 35 ( Confidentiality ) are continuing and, in particular, shall survive and remain binding on each Finance Party for a period of twelve months from the earlier of:

 

  (a) the date on which all amounts payable by the Obligors under or in connection with this Agreement have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and

 

  (b) the date on which such Finance Party otherwise ceases to be a Finance Party.

 

36. COUNTERPARTS

Each Finance Document may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of the Finance Document.

 

37. GOVERNING LAW

This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.

 

38. ENFORCEMENT

 

38.1 Jurisdiction

 

  (a) The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute relating to the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement) (a “ Dispute ”).

 

  (b) The Parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary.

 

- 94 -


  (c) This Clause 38.1 is for the benefit of the Finance Parties only. As a result, no Finance Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Finance Parties may take concurrent proceedings in any number of jurisdictions.

 

38.2 Service of process

Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in England and Wales):

 

  (a) irrevocably appoints the Company as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document; and

 

  (b) agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned.

This Agreement has been entered into on the date stated at the beginning of this Agreement.

 

- 95 -


The Company

INTERCONTINENTAL HOTELS GROUP PLC

By: LOGO

Name: Paul Edgecliffe - Johnson

Title: Director

Address: Broadwater Park, Denham, Buckinghamshire UB9 5HR

Fax No: 01895 512101

Attention: The Company Secretary

cc: The Treasurer

Fax No: 01283 514767

 

- 119 -


The Original Borrowers

INTERCONTINENTAL HOTELS GROUP PLC

By: LOGO

Name: Paul Edgecliffe - Johnson

Title: Director

Address: Broadwater Park, Denham, Buckinghamshire UB9 5HR

Fax No: 01895 512101

Attention: The Company Secretary

cc: The Treasurer

Fax No 01283 514767

INTERCONTINENTAL HOTELS LIMITED

By: LOGO

Name: Nicolette Henfrey

Title: Director

Address: Broadwater Park, Denham, Buckinghamshire UB9 5HR

Fax No: 01895 512 101

Attention: The Company Secretary

cc: The Treasurer

Fax No 01283 514767

SIX CONTINENTS LIMITED

By: LOGO

Name: Nicolette Henfrey

Title: Director

Address: Broadwater park, Denham, Buckinghamshire UB9 5HR

Fax No: 01895 512 101

Attention: The Company Secretary

cc: The Treasurer

Fax No: 01283 514767

 

- 120 -


The Original Guarantors

INTERCONTINENTAL HOTELS GROUP PLC

By: LOGO

Name: Paul Edgecliffe - Johnson

Title: Director

INTERCONTINENTAL HOTELS LIMITED

By: LOGO

Name: Nicolette Henfrey

Title: Director

SIX CONTINENTS LIMITED

By: LOGO

Name: Nicolette Henfrey

Title: Director

 

- 121 -


The Arrangers

BANK OF AMERICA MERRILL LYNCH INTERNATIONAL LIMITED

By: LOGO

Name: Adam Lawrence

Title: Vice President

Address: 2 King Edward Street, London, ECIA 1HQ

Fax No: 0207 996 8547

Attention: Adam Lawrence

Telephone No: 0207 995 6896

E-mail address: ADAM.M.LAWRENCE@BAML.COM

The Original Lenders

BANK OF AMERICA MERRILL LYNCH INTERNATIONAL LIMITED

By: LOGO

Name: Tarun Mehta

Title: Director

Address: 2 King Edward Street, London, EC1A 1HQ

Fax No: 0207 976 8547

Attention:

The Facility Agent

BANK OF AMERICA MERRILL LYNCH INTERNATIONAL LIMITED

By: LOGO

Name: Kevin Day

Title: Vice President

Address: 2 King Edward Street, London, EC1A 1HQ , United Kingdom

Fax No: + 4420 8313 2149

Attention: Loans Agency

 

- 122 -


The exhibits and schedules to this bank facility agreement have been omitted from the filing. The following is a list of omitted exhibits and schedules and a brief description of each. InterContinental Hotels Group PLC agrees to furnish to the Securities and Exchange Commission, upon its request, a copy of any such omitted exhibits and schedules:

Schedule 1 The Original Lenders

Schedule 2 Conditions Precedent

Schedule 3 Requests

Schedule 4 Form of Transfer Certificate

Schedule 5 Form of Accession Letter

Schedule 6 Form of Resignation Letter

Schedule 7 Form of Compliance Certificate

Schedule 8 Security

Schedule 9 Timetables

Schedule 10 Form of Confidentiality Undertaking

Schedule 11 Form of Increase Confirmation

Exhibit 4(a)(ii)

EXECUTION VERSION

PURCHASE AND SALE AGREEMENT

by and between

KIMPTON GROUP HOLDING LLC

and

DUNWOODY OPERATIONS, INC.

Dated as of December 15, 2014


TABLE OF CONTENTS

 

ARTICLE I   
D EFINITIONS   
Section 1.01.

Definitions

  1   
Section 1.02.

Cross References

  10   
Section 1.03.

Interpretation

  12   
ARTICLE II   
P URCHASE AND S ALE   
Section 2.01.

Purchase and Sale

  12   
Section 2.02.

Purchase Price

  12   
Section 2.03.

Closing

  13   
Section 2.04.

Closing Deliverables

  13   
Section 2.05.

Preliminary Closing Statement; Payment of Preliminary Purchase Price

  14   
Section 2.06.

Post-Closing Adjustment

  15   
Section 2.07.

Purchase Price Allocation

  17   
Section 2.08.

Withholding

  18   
Section 2.09.

Asset Management Business

  18   
ARTICLE III   
R EPRESENTATIONS AND W ARRANTIES OF S ELLER   
Section 3.01.

Organization and Qualification

  19   
Section 3.02.

Authorization

  19   
Section 3.03.

Non-contravention

  20   
Section 3.04.

Governmental Authorization

  20   
Section 3.05.

Capitalization

  20   
Section 3.06.

Financial Statements

  21   
Section 3.07.

Absence of Certain Developments

  22   
Section 3.08.

Compliance with Laws; Permits; Privacy

  22   
Section 3.09.

Litigation

  24   
Section 3.10.

No Undisclosed Liabilities

  24   
Section 3.11.

Environmental Matters

  25   
Section 3.12.

Employee Matters

  25   
Section 3.13.

Employee Benefit Plans

  26   
Section 3.14.

Taxes

  27   
Section 3.15.

Intellectual Property

  28   
Section 3.16.

Material Contracts

  29   
Section 3.17.

Insurance

  30   
Section 3.18.

Real Property

  31   
Section 3.19.

Related Party Transactions

  31   
Section 3.20.

Brokers

  31   
Section 3.21.

Solvency

  31   
Section 3.22.

No Other Representations And Warranties

  32   

 

i


ARTICLE IV   
R EPRESENTATIONS AND W ARRANTIES OF B UYER   
Section 4.01.

Organization and Qualification

  32   
Section 4.02.

Authorization

  33   
Section 4.03.

Non-contravention

  33   
Section 4.04.

Governmental Authorization

  33   
Section 4.05.

Litigation

  33   
Section 4.06.

Solvency

  34   
Section 4.07.

Brokers

  34   
Section 4.08.

Purchase for Investment

  34   
Section 4.09.

Acknowledgements by Buyer

  34   
Section 4.10.

Availability of Funds

  35   
Section 4.11.

Guarantee

  36   
ARTICLE V   
C OVENANTS   
Section 5.01.

Conduct of the Business

  36   
Section 5.02.

Pre-Closing Access and Information

  39   
Section 5.03.

Regulatory Filings

  40   
Section 5.04.

Affiliate Transactions

  43   
Section 5.05.

Third Party Approvals and Permits

  43   
Section 5.06.

Insurance

  43   
Section 5.07.

Confidentiality

  43   
Section 5.08.

Non-Competition; Non-Solicitation

  44   
Section 5.09.

Public Announcements

  46   
Section 5.10.

Indemnification and Exculpation

  46   
Section 5.11.

Notice of Certain Events

  48   
Section 5.12.

No Solicitation of Transactions

  49   
Section 5.13.

Further Assurances

  51   
Section 5.14.

Post-Closing Books and Records

  52   
Section 5.15.

Liquor Licenses and Related Entities

  53   
Section 5.16.

Seller’s Maintenance of Net Worth

  53   
Section 5.17.

Pre-Closing and Retention Bonuses

  53   
Section 5.18.

Certain Liens

  53   
Section 5.19.

Certain Guarantees

  54   
ARTICLE VI   
T AX M ATTERS   
Section 6.01.

Straddle Tax Period Allocations

  54   
Section 6.02.

Cooperation

  54   
Section 6.03.

Post-Closing Actions

  55   
Section 6.04.

Transfer Taxes

  55   
Section 6.05.

Certain Refunds

  55   
Section 6.06.

Certain Tax Contests and Returns

  55   

 

ii


ARTICLE VII   
E MPLOYEE M ATTERS   
Section 7.01.

Employees

  56   
ARTICLE VIII   
C ONDITIONS TO C LOSING   
Section 8.01.

Mutual Conditions

  57   
Section 8.02.

Conditions to the Obligation of Buyer

  57   
Section 8.03.

Conditions to the Obligations of Seller

  58   
Section 8.04.

Frustration of Closing Conditions

  58   
ARTICLE IX   
I NDEMNIFICATION   
Section 9.01.

Survival

  59   
Section 9.02.

Indemnification

  59   
Section 9.03.

Procedures

  60   
Section 9.04.

Limitations on Liability

  62   
Section 9.05.

Assignment of Claims

  63   
Section 9.06.

Exclusivity

  63   
Section 9.07.

Characterization of Indemnity Payments

  64   
Section 9.08.

Indemnification Payments and Escrow

  64   
Section 9.09.

Releases

  65   
ARTICLE X   
T ERMINATION   
Section 10.01.

Termination

  66   
Section 10.02.

Effect of Termination

  67   
ARTICLE XI   
M ISCELLANEOUS   
Section 11.01.

Notices

  68   
Section 11.02.

Amendments and Waivers

  69   
Section 11.03.

Expenses

  70   
Section 11.04.

Governing Law; Jurisdiction; WAIVER OF JURY TRIAL

  70   
Section 11.05.

Assignment; Successors and Assigns; No Third Party Beneficiaries

  71   
Section 11.06.

Counterparts; Effectiveness

  71   
Section 11.07.

Entire Agreement

  71   
Section 11.08.

Severability

  71   
Section 11.09.

Specific Performance

  71   
Section 11.10.

Disclosure Schedule

  72   
Section 11.11.

Retention of Counsel

  72   

 

iii


EXHIBITS

 

Exhibit A Form of Support Agreement
Exhibit B Calculation Principles
Exhibit C Form of Assignment and Assumption Agreement
Exhibit D Escrow Agreement
Exhibit E FIRPTA Certificate
Exhibit F Sample Preliminary Closing Statement

 

iv


PURCHASE AND SALE AGREEMENT

This PURCHASE AND SALE AGREEMENT (this “ Agreement ”), dated as of December 15, 2014, is made and entered into by and between Kimpton Group Holding LLC, a Delaware limited liability company (“ Seller ”), and Dunwoody Operations, Inc., a Delaware corporation (“ Buyer ”). Each of the foregoing parties is referred to herein as a “ Party ” and together as the “ Parties ”.

W I T N E S S E T H:

WHEREAS, Seller owns all of the limited liability company interests (the “ LLC Interests ”) in Kimpton Hotel & Restaurant Group, LLC, a Delaware limited liability company (the “ Company ”);

WHEREAS, upon the terms and subject to the conditions set forth herein, Buyer desires to purchase from Seller, and Seller desires to sell to Buyer, all of the LLC Interests of the Company;

WHEREAS, as a condition to and inducement to Seller’s and Buyer’s willingness to enter into this Agreement, simultaneously with the execution of this Agreement, certain members of the Seller are entering into executed support agreements with Seller and Buyer as of the date hereof in substantially the form attached as Exhibit A (the “ Support Agreements ”);

WHEREAS, concurrently with the execution of this Agreement, Buyer has delivered to the Company the guarantee (the “ Guarantee ”) of Six Continents Hotels, Inc. (the “ Guarantor ”), dated as of the date hereof, and pursuant to which the Guarantor has guaranteed all of Buyer’s obligations under this Agreement; and

WHEREAS, the managing board of Seller (the “ Seller Managing Board ”) has, upon the terms and subject to the conditions set forth herein, (i) determined that the transactions contemplated hereby are fair to and in the best interests of Seller, the Company and Seller’s members, (ii) approved and declared advisable this Agreement and the transactions contemplated hereby and (iii) recommended that Seller’s members approve this Agreement and the transactions contemplated hereby (the “ Seller Managing Board Recommendation ”).

NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:

ARTICLE I

D EFINITIONS

Section 1.01. Definitions . As used herein, the following terms have the following meanings:

Action ” means any action, claim, suit, arbitration, investigation or proceeding, in each case by or before any Governmental Authority.


Acceptable Confidentiality Agreement ” means a confidentiality agreement that contains confidentiality provisions that are no less favorable in the aggregate to Seller or the Company than those contained in the Confidentiality Agreement.

Affiliate ” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such Person. For purposes of this definition, “ control ” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms “ controlling ” and “ controlled ” have correlative meanings. For the avoidance of doubt, none of the Funds shall be deemed to be an Affiliate of the Company or any Company Subsidiary for any purpose under this Agreement.

Asset Management Business ” means the real property asset and portfolio management and related project management and administrative services business conducted by Seller and certain employees of the Company and the Company Subsidiaries prior to the Closing on behalf of the Funds.

Balance Sheet ” means the unaudited consolidated balance sheet of the Company and the Company Subsidiaries, taken as a whole, as of the Balance Sheet Date.

Balance Sheet Date ” means October 31, 2014.

Bargaining Agreement ” means each agreement or labor contract, including memoranda of understanding, entered into with a union, labor organization or works council governing the terms and conditions of employment of any Company Employee, including all amendments to or restatements of such agreements or contracts.

Business Day ” means a day other than Saturday, Sunday or other day on which commercial banks in New York, New York, United States of America, or London, England, are required to or may be closed.

Business Records ” means all files, documents, instruments, papers, books, reports, records, tapes, microfilms, photographs, letters, ledgers, journals, technical documentation, Tax Returns and other Tax work papers and files of the Company and the Company Subsidiaries, in each case, other than any of the foregoing records to the extent related to the Asset Management Business.

Calculation Principles ” means (a) the accounting principles, procedures, policies, practices, estimates, judgments and methods set forth on Exhibit B and (b) to the extent not specified on Exhibit B , GAAP consistent with the principles, procedures, policies, practices, estimates, judgments and methods applied in preparation of the Balance Sheet. Any inconsistency between the principles of presentation in the Balance Sheet and the principles, procedures, policies, practices, estimates, judgments and methods described on Exhibit B shall be resolved in favor of Exhibit B .

Cash ” means cash, cash equivalents and marketable securities of the Company and the Company Subsidiaries.

 

2


Closing Date Cash ” means the aggregate amount of Cash retained by the Company and the Company Subsidiaries as of the close of business on the date immediately prior to the Closing Date. For the avoidance of doubt, Closing Date Cash shall exclude (i) Restricted Cash, and (ii) Cash distributed (or otherwise paid) by the Company to Seller prior to or as of the Closing in accordance with the terms of this Agreement.

Closing Date Indebtedness ” means the aggregate amount of Indebtedness retained by the Company and the Company Subsidiaries as of the close of business on the date immediately prior to the Closing Date.

Code ” means the United States Internal Revenue Code of 1986, as amended.

Company Employee ” means each current employee of the Company and the Company Subsidiaries.

Company Plan ” means each “employee benefit plan” (as defined in Section 3(3) of ERISA) and each other material plan, practice, arrangement or policy providing welfare benefits (health, dental, vision, life and disability), pension or retirement benefits (but excluding (a) any statutory plans or similar employee benefit plans or programs required by Law or sponsored by any Governmental Authority, (b) any Bargaining Agreements and (c) any multiemployer plans (within the meaning of Section 3(37) of ERISA) and other employee benefit plans sponsored or maintained by any labor union or works council for the benefit of any Company Employee) that the Company or any Company Subsidiary sponsors, maintains or contributes to, or is required to maintain or contribute to, for the benefit of any Company Employee. For the avoidance of doubt, no employee benefit plan sponsored, maintained or contributed to by Seller, including any stock appreciation rights, dividend participation or other equity plan, however structured, shall be deemed to be a Company Plan for any purpose under this Agreement.

Company Subsidiaries ” means each of the direct or indirect Subsidiaries of the Company set forth on Schedule 3.01(a) .

Company Transaction Expenses ” means all costs and expenses incurred by the Company and the Company Subsidiaries in connection with the preparation, negotiation, execution and performance of this Agreement and the transactions contemplated hereby and thereby, including any amounts payable by the Company or the Company Subsidiaries at or following the Closing pursuant to any retention, stay, transaction completion or similar bonus arrangement (other than pursuant to any such arrangements entered into at the direction of Buyer); provided , however , that Company Transaction Expenses shall exclude (a) costs and expenses paid by Seller or any of its Subsidiaries (including the Company and the Company Subsidiaries) prior to or as of the Closing, (b) costs and expenses contemplated to be paid by Buyer or its Affiliates pursuant to this Agreement or any other Transaction Document, (c) costs and expenses incurred by the Company and the Company Subsidiaries after the Closing, including pursuant to any Severance Arrangements with respect to any Company Employees (other than Asset Management Employees) terminated at or following the Closing and (d) all amounts payable or paid by Seller at or following the Closing pursuant to any retention, stay, transaction completion or similar bonus or other severance arrangements (and any withholding Taxes related thereto).

 

3


Competing Proposal ” shall mean any proposal made by a Person or group (other than a proposal or offer by Buyer or any of its Subsidiaries) at any time which is structured to permit such Person or group to acquire beneficial ownership of at least 20% of the assets of, equity interest in, or businesses of, the Company and the Company Subsidiaries, taken as a whole (whether pursuant to a merger, consolidation or other business combination, sale of shares of capital stock, sale of assets, tender offer or exchange offer or otherwise, including any single or multi-step transaction or series of related transactions), in each case, other than the transactions contemplated hereby.

Confidentiality Agreement ” means that certain Confidentiality Agreement by and between Seller and Six Continents Hotels, Inc., dated September 26, 2014

Contract ” means any written contract, agreement, lease, sublease, license, sublicense, instrument or other commitment that is binding on any Person under Law, including all amendments, modifications or restatements thereto.

COTS License ” means (a) a “shrink-wrap,” “click-through” or, “off-the shelf” software license, or (b) any other software license that is commercially available to the public generally, with one time or annual royalty, license, maintenance, support and other fees of $100,000 or less.

Damages ” means any losses or damages (including Taxes) that are actually, directly and immediately suffered or sustained and that have required an outlay of cash, or other non-cash consideration, whether resulting from a judgment, a settlement or an award, including the Taxes, costs and expenses (including reasonable fees and expenses of counsel, consultants, experts, and other professional fees) associated therewith.

Disclosure Schedule ” means the disclosure schedules delivered by Seller to Buyer concurrently with the execution and delivery of this Agreement or any other Transaction Document.

Effect ” has the meaning set forth in the definition of Material Adverse Effect.

Environmental Conditions ” means the presence of Hazardous Substances in the environment (including natural resources, soil, surface water, ground water, any present or potential drinking water supply, subsurface strata or ambient air) in a manner or in quantities that would result in a violation of Environmental Laws.

Environmental Laws ” means any applicable Law relating to pollution, protection of the environment and/or protection of the health and safety of persons from exposures to Hazardous Substances in the environment.

ERISA ” means the Employee Retirement Income Security Act of 1974, as amended.

Escrow Agent ” means Wilmington Trust, N.A.

Escrow Amount ” means $13,000,000.

 

4


Final Net Working Capita l” means the Net Working Capital set forth in the Final Closing Statement and determined to be final pursuant to Section 2.06 .

Fraud ” means that (a) a representation and warranty made by Seller in Article III was false when made, (b) to the knowledge of Seller, such representation and warranty in Article III was false when made, (c) Seller had an intent to induce Buyer to act or refrain from acting in such context and (d) Buyer acted in justifiable reliance on such representation and warranty in Article III .

Funds ” means each of KHP Fund I, LP, a California limited partnership, KHP Fund II, LP, a California limited partnership and KHP Fund III, LP, a California limited partnership, and each of their respective general and limited partners.

Fundamental Representations ” means the representations and warranties of Seller contained in Sections 3.01 (Organization and Qualification), 3.02 (Authorization), 3.05(a) (Capitalization) and 3.20 (Brokers).

GAAP ” means generally accepted accounting principles in the United States of America.

Governmental Authority ” means (a) any national, federal, state, county, municipal, local or foreign or supranational government, or other political subdivision thereof, (b) any entity exercising executive, legislative, judicial, regulatory, tribunal, taxing or administrative functions of or pertaining to government and (c) any arbitrator or arbitral body or panel, department, ministry, instrumentality, agency, court, commission or body of competent jurisdiction.

Hazardous Substances ” means any toxic, infectious, carcinogenic, radioactive, ignitable, corrosive, reactive or caustic substances or materials (whether solids, liquids or gases) subject to regulation, control or remediation under any Environmental Law based on their deleterious characteristic(s), including petroleum, its derivatives, by-products and other hydrocarbons, urea formaldehyde, lead-based paint, PCBs and asbestos.

HSR Act ” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder.

Indebtedness ” means, in each case calculated in accordance with the Calculation Principles, (a) all obligations of the Company and the Company Subsidiaries for borrowed money, (b) all obligations of the Company and the Company Subsidiaries evidenced by notes, bonds, debentures or similar instruments, (c) all obligations of the Company and the Company Subsidiaries for the deferred purchase price of property or services (other than obligations for inventory, services and supplies incurred in the ordinary course of business), (d) all obligations of the Company and the Company Subsidiaries under interest rate, currency or commodity derivatives or hedging transactions (valued at the termination value thereof), (e) all guarantees or indemnities issued by the Company or any Company Subsidiary of any Indebtedness of any Person other than the Company or any Company Subsidiary, (f) any counter-indemnity obligation in respect of a guarantee, indemnity, bond, letter of credit or any other instrument issued by a bank or financial institution, (g) all Liabilities for gift certificates and gift cards that have been sold and remain outstanding, (h) all Liabilities established related to reward

 

5


certificates and any cash collected through the Kimpton-in-Touch or Karma programs in excess of administrative and redemption expenses incurred, (i) Liabilities pursuant to all capital leases (except as indicated herein below), and (j) all accrued and unpaid interest, penalties, make-whole payments, fees and other charges related to any of the foregoing. For the avoidance of doubt, Indebtedness shall not include: (i) obligations solely between or among the Company and the Company Subsidiaries, (ii) undrawn letters of credit or performance bonds and (iii) Liabilities pursuant to capital leases charged to individual hotel properties through KG Technology LLC.

Intellectual Property ” means all United States and foreign intellectual property rights, including all: (a) patents and patent applications; (b) trademarks, service marks, trade dress, logos, brand names and other indicia of origin, and all registrations of and applications to register the foregoing; (c) copyrights, and all registrations thereof and applications to register the foregoing; (d) mask works and industrial designs, and all registrations of and applications to register the foregoing; (e) internet domain names; and (f) trade secrets and any other intellectual property rights in proprietary information, unpatented inventions, know-how, methods, processes, customer lists, and data and databases.

Intervening Event ” means a material event or circumstance that was not known to the Seller Managing Board on the date of this Agreement (or if known, the consequences of which are not known to or reasonably foreseeable by the Seller Managing Board as of the date hereof), which event or circumstance, or any material consequences thereof, becomes known to the Seller Managing Board prior to the receipt of the Seller Member Approval.

IRS ” means the U.S. Internal Revenue Service.

knowledge of Seller ”, “ Seller’s knowledge ” or any other similar knowledge qualification in this Agreement means (a) the actual knowledge of the Persons set forth in Schedule 1.01(a) , and (b) any matter that reasonably would be expected to be known by an individual listed in clause (a)  had such individual performed the customary duties of an individual holding such title or position with Seller, which duties would not include any inquiry of any person not employed by Seller or any investigation or search of any public records or database maintained by any Person other than Seller and its Affiliates.

Law ” means, with respect to any Person, any United States or foreign federal, state or local law, constitution, treaty, convention, ordinance, code, rule, regulation, statute, order, injunction, judgment, decree, ruling or other similar requirement enacted, adopted or promulgated by a Governmental Authority that is binding upon or applicable to such Person, as amended unless expressly specified otherwise herein.

Leased Real Property ” means the real property leased by the Company or any Company Subsidiary.

Liability ” means any liability, cost, expense, debt or obligation of any kind, character or description, and whether known or unknown, accrued, absolute, contingent or otherwise, and regardless of when asserted or by whom.

Lien ” means, with respect to any property, equity interest or asset, any mortgage, deed of trust, hypothecation, lien, encumbrance, pledge, charge, security interest, right of first refusal, right of first offer, adverse claim, restriction on transfer, covenant or option in respect of such property, equity interest or asset.

 

6


Material Adverse Effec t” means any change, event or effect (each, an “ Effect ”) that, individually or in the aggregate, has had, or would reasonably be expected to have, a material adverse effect on the business, financial condition or results of operations of the Company and the Company Subsidiaries (taken as a whole); provided , however , that no Effect shall be considered when determining whether a Material Adverse Effect has occurred to the extent such Effect resulted or arose from any of the following: (a) any action taken or omission to act with the consent or upon the request of Buyer or any action taken or omission to act which is required or permitted by the Transaction Documents; (b) any change or development in general economic conditions in the industries, markets or geographies in which the Company and the Company Subsidiaries operate; (c) any change in Law or GAAP or the interpretation or enforcement of any of the foregoing; (d) any failure of the Company and the Company Subsidiaries to meet, with respect to any period or periods, any internal forecasts or projections, estimates of earnings or revenues or business plans; provided that this clause (d)  shall not prevent a determination that any Effect underlying such failure to meet forecasts or projections has resulted in a Material Adverse Effect (to the extent such Effect is not otherwise excluded from this definition of Material Adverse Effect); (e) any natural disaster, change in the weather or climate, act of war (whether or not declared), armed hostilities or terrorism, change in political environment or any escalation or worsening thereof or actions taken in response thereto; (f) the negotiation, execution, delivery, performance, consummation, potential consummation or announcement or disclosure of this Agreement or the transactions contemplated by this Agreement, including any Action resulting therefrom or with respect thereto, and any adverse change in customer, owner, governmental, vendor, employee, union, supplier or similar relationships resulting therefrom or with respect thereto, including as a result of the identity of Buyer or any of its Affiliates; (g) any change or development in financial, credit, currency or securities markets, general economic or business conditions, or political, social or regulatory conditions; or (h) any fluctuations in currency; but in the case of clauses (b) , (c)  and (g)  only to the extent any such Effects do not, individually or in the aggregate, have a materially disproportionate adverse impact on the Company and the Company Subsidiaries, taken as a whole, relative to other Persons in the boutique hotel industry in the geographic markets in which the Company and the Company Subsidiaries operate.

Net Working Capital ” means the difference between total current assets and total current liabilities of the Company and the Company Subsidiaries, as determined in accordance with the Calculation Principles.

Organizational Documents ” means any charter, certificate of formation, articles of incorporation, declaration of partnership, articles of association, bylaws, operating agreement, limited liability company agreement, partnership agreement or similar formation or governing documents and instruments of any Person.

Permitted Liens ” means: (a) Liens for Taxes, assessments or other governmental charges, in each case, not yet delinquent or the amount or validity of which is being contested in good faith by appropriate proceedings; (b) mechanics’, materialmens’, carriers’, workers’, repairers’ and similar Liens arising or incurred in the ordinary course of business; (c) zoning,

 

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entitlement and other land use and environmental regulations promulgated by any Governmental Authority; (d) Liens set forth on Schedule 1.01(b) ; (e) covenants, conditions, restrictions, easements, rights of way, encumbrances, defects, imperfections, irregularities of title or other Liens, if any, that would not reasonably be expected to result in material Liability or otherwise materially interfere with the conduct of the business of the Company and the Company Subsidiaries in substantially the manner currently conducted; (f) with respect to any Leased Real Property, (i) the interests and rights of the respective lessors with respect thereto, including any statutory landlord liens and any Lien thereon, and (ii) any Lien permitted under the applicable lease agreement and any ancillary documents thereto; (g) all covenants, conditions, restrictions, easements, rights of way, encumbrances, defects, imperfections, irregularities of title or other Liens that would be readily apparent upon physical inspection of the Leased Real Property or review of an accurate survey covering the Leased Real Property, or that are otherwise disclosed in any real property files that have been made available to Buyer; (h) Liens created by Buyer or its successors and assigns; (i) Liens disclosed in the Disclosure Schedules; (j) Liens (other than monetary liens) incurred in the ordinary course of business since the Balance Sheet Date; (k) licenses to Intellectual Property granted in the ordinary course of business; and (l) liens that would not reasonably be expected to have a Material Adverse Effect.

Person ” means an individual, firm, corporation, partnership, limited liability company, incorporated or unincorporated association, joint venture, joint stock company, trust or other entity or organization of any kind, including a Governmental Authority.

Personal Data ” means all data relating to one or more individual(s) that is personally identifying (i.e., data that identifies an individual or, in combination with any other information or data available to the Company, is capable of identifying an individual).

Pre-Closing Period ” means any taxable period ending on or before the Closing Date and the portion of any Straddle Tax Period ending on the Closing Date.

Pre-Closing Taxes ” means any and all Taxes imposed on the Company or any of the Company Subsidiaries for (a) any taxable period ending on or before the Closing Date and (b) the portion of any Straddle Tax Period ending on the Closing Date determined in accordance with Section 6.01 .

Preliminary Net Working Capital ” means the Net Working Capital as estimated by Seller in the Preliminary Closing Statement pursuant to Section 2.05(a) .

Prime Rate ” means the rate per annum published in The Wall Street Journal from time to time as the prime lending rate prevailing during any relevant period.

Representative ” means, with respect to any Person, such Person’s directors, legal representatives, officers, employees, counsel, financial advisors, accountants, financing sources, auditors, agents and other authorized representatives (whether third-party or otherwise).

Restricted Cash ” means cash recorded as an asset on the balance sheet under “restricted cash” with a corresponding liability under accrued liabilities. By way of example, but not limitation, Restricted Cash shall include all cash collected from participating hotel properties to fund the aggregate deductible with respect to the workers’ compensation or general liability insurance deductibles retained by the Company.

 

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Seller Member Approval ” means the written approval of members of Seller holding more than fifty percent (50%) of the limited liability company interests in Seller that (a) have not been revoked and remain effective through the end of the five (5)-day period during which the members of Seller are permitted to give notice to call for Seller to hold a Seller Member Meeting, and during which no such notice has been duly given, (b) in the event that a Seller Member Meeting shall have been called, have been delivered at or following such Seller Member Meeting or (c) have otherwise been irrevocably delivered to the Seller Managing Board in accordance with applicable Law and the Organizational Documents of Seller.

Severance Arrangements ” means the Kimpton Hotels and Restaurants Severance Policy.

Straddle Tax Period ” means a Tax period that begins on or before the Closing Date and ends after the Closing Date.

Subsidiary ” or “ subsidiary ” means, with respect to any Person: (a) any other Person of which such Person beneficially owns, either directly or indirectly, more than fifty percent (50%) of (i) the total combined voting power of all classes of voting securities of such other Person, (ii) the total combined equity interests of such other Person, or (iii) the capital or profit interests of such other Person; or (b) any other Person of which such Person has the power to vote, either directly or indirectly, sufficient securities to elect a majority of the board of directors or similar governing body of such other Person.

Superior Proposal ” means a Competing Proposal made by any person on terms that the Seller Managing Board determines in good faith, after consultation with Seller’s financial and legal advisors, and considering such factors as the Seller Managing Board considers to be appropriate, is (a) more favorable to Seller, the Company and Seller’s members than the transactions contemplated by this Agreement, and (b) reasonably likely to be consummated without undue delay relative to the transactions contemplated by this Agreement, taking into account all financial, legal, regulatory and other aspects of such Competing Proposal; provided , however , that for the purposes of the reference to a “Competing Proposal” in this definition of “Superior Proposal,” the reference to “20%” in the definition of Competing Proposal shall be deemed to be a reference to “50%.”

Target Net Working Capital ” means $(1,453,060).

Tax ” or “Taxes” shall mean any tax (including any income tax, franchise tax, capital gains tax, estimated tax, gross receipts tax, value-added tax, surtax, excise tax, ad valorem tax, transfer tax, stamp tax, sales tax, use tax, property tax, business tax, occupation tax, inventory tax, occupancy tax, withholding tax or payroll tax) and any similar levy, assessment, tariff, impost, imposition, toll, duty (including any customs duty), deficiency or fee, and any related charge or amount (including any fine, penalty or interest), that is, has been or may in the future be imposed, assessed or collected by or under the authority of any Governmental Authority.

Tax Return ” means any report, return, document, declaration, information return or other filing required to be supplied to any Taxing Authority in connection with the determination, assessment, or collection of Taxes, including any attachment or schedule thereto or amendment thereof.

 

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Taxing Authority ” means any Governmental Authority having jurisdiction over the assessment, determination, collection or imposition of any Tax.

Transaction Documents ” means this Agreement, the Assignment and Assumption Agreement, the Consulting Agreements, the Escrow Agreement and the Support Agreements.

Treasury Regulations ” means the rules and regulations promulgated by the U.S. Treasury Department under the Code.

Section 1.02. Cross References . Each of the following terms is defined in the Section set forth opposite such term:

 

Term

  

Section

Affiliate Transactions    3.19(b)
Agreement    Preamble
Allocation    2.07
Anti-Corruption Laws    3.08(a)
Applicable Plans    7.01(b)
Asset Management Employee    Schedule 2.09
Asset Management Information    5.02(b)
Assignment and Assumption Agreement    2.04(a)(i)
Audited Financial Statements    3.06
Buyer    Preamble
Buyer Claim Notice    9.08(a)
Buyer Indemnity Claim    9.08(a)
Buyer Indemnitees    9.02(a)
Buyer Material Adverse Effect    5.03(d)
Change of Recommendation    5.12(a)
Claim Notice    9.03(a)
Closing    2.03
Closing Date    2.03
Closing Legal Impediment    8.01(a)
Company    Recitals
Company Registered Intellectual Property    3.15(a)
Consulting Agreements    5.08(e)
D&O Indemnitees    5.10(a)
Data Activities    3.08(c)(i)
De Minimis Amount    9.04(a)
Deductible    9.04(b)
Escrow Account    2.04(c)
Escrow Agreement    2.04(a)(ii)
Escrow Release Date    9.08(c)
Estimated Final Purchase Price    2.06(a)(ii)(3)
Final Closing Balance Sheet    2.06(a)(i)

 

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Term

  

Section

Final Closing Documents    2.06(c)
Final Closing Statement    2.06(a)(ii)
Final Purchase Price    2.06(c)
Financial Statements    3.06(a)
Guarantee    Recitals
Guarantor    Recitals
Hotel Brand    5.08(a)
Independent Firm    2.06(d)
Indemnified Party    9.03(a)
Indemnifying Party    9.03(a)
Leases    3.18(c)
LLC Interests    Recitals
Material Contract    3.16(a)
Matching Bid    5.12(d)
Newco    2.04(a)(vii)
Non-Assignable Contract    5.05
Notice of Objection    2.06(c)
Notice of Superior Proposal    5.12(d)
Outside Date    10.01(c)
Parties    Preamble
Party    Preamble
Permits    3.08(b)
Potential Contributor    9.05
Preliminary Closing Statement    2.05(a)
Preliminary Purchase Price    2.05(b)
Privacy and Data Security Policies    3.08(c)(ii)
Privacy Laws    3.08(c)(i)
Purchase Price    2.02
Regulatory Approvals    5.03(a)
Released Parties    9.09(a)
Releasing Parties    9.09(a)
Restricted Business    5.08(a)
Restricted Period    5.08(a)
Review Documents    3.22
Sample Preliminary Closing Statement    2.05(a)
Securities Act    4.08
Seller    Preamble
Seller Indemnitees    9.02(b)
Seller Managing Board    Recitals
Seller Managing Board Recommendation    Recitals
Seller Member Meeting    5.12(c)
Support Agreements    Recitals
Termination Fee    10.02(b)
Third Party Approvals    5.05
Third Party Claim    9.03(a)

 

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Term

  

Section

Transfer Taxes    6.04
Unaudited Financial Statements    3.06
Unresolved Indemnity Claims    9.08(d)
Unresolved Items    2.06(d)
Valuation    2.07

Section 1.03. Interpretation . The table of contents, titles, headings and captions contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Unless otherwise indicated to the contrary herein by the context or use thereof: (a) the words, “hereby,” “herewith,” “herein,” “hereto,” “hereof” and words of similar import refer to this Agreement as a whole and not to any particular Section or paragraph hereof; (b) the words “include,” “includes” or “including” shall be deemed to be followed by the words “without limitation”; (c) masculine gender shall also include the feminine and neutral genders, and vice versa; (d) words importing the singular shall also include the plural, and vice versa; (e) references to “Articles,” “Exhibits,” “Sections” or “Schedules” shall be to Articles, Exhibits, Sections or Schedules of or to this Agreement; (f) all Exhibits or Schedules of or to this Agreement are hereby incorporated in and made a part of this Agreement as if set forth in full herein, and any capitalized terms used in such Exhibits or Schedules and not otherwise defined therein shall have the meaning set forth in this Agreement; (g) “writing,” “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form; (h) the sign “$” means the lawful currency of the United States of America; (i) all references to “days” mean calendar days and all references to time mean Eastern Time in the United States of America, in each case, unless otherwise indicated; (j) any references in this Agreement to dollar amount thresholds shall not be deemed to be evidence of a Material Adverse Effect or materiality; and (k) derivative forms of defined terms will have correlative meanings. The Parties acknowledge that each Party and its attorney has reviewed and participated in the drafting of this Agreement and that any rule of construction to the effect that any ambiguities are to be resolved against the drafting Party, or any similar rule operating against the drafter of an agreement, shall not be applicable to the construction or interpretation of this Agreement.

ARTICLE II

P URCHASE AND S ALE

Section 2.01. Purchase and Sale . At the Closing, upon the terms and subject to the conditions of this Agreement, Seller agrees to sell to Buyer and Buyer agrees to purchase from Seller, all of Seller’s right, title and interest in and to the LLC Interests.

Section 2.02. Purchase Price . The purchase price for the LLC Interests (the “ Purchase Price ”) shall equal: (a) Four Hundred Thirty Million Dollars ($430,000,000.00), plus (b) Closing Date Cash, minus (c) the excess (if any) of the Target Net Working Capital over the Final Net Working Capital, plus (d) the excess (if any) of the Final Net Working Capital over the Target Net Working Capital, minus (e) Closing Date Indebtedness, minus (f) Company Transaction Expenses, in the case of clauses (b) through (f) (inclusive), as finally determined in accordance with Section 2.06 .

 

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Section 2.03. Closing . The closing (the “ Closing ”) of the purchase and sale of the LLC Interests contemplated hereby shall take place at the offices of Latham & Watkins LLP, 885 Third Avenue, New York, New York 10022, as promptly as practicable, but in no event later than the third (3 rd ) Business Day following the satisfaction or waiver of the conditions set forth in Article VIII (other than those conditions that by their nature are to be satisfied by actions taken at the Closing but subject to the satisfaction of such conditions), or on such other date or at such other place as the Parties mutually agree in writing (the date on which the Closing occurs, the “ Closing Date ”). The Parties acknowledge and agree that (i) all proceedings at the Closing shall be deemed to be taken and all documents to be executed and delivered by all Parties at the Closing shall be deemed to have been taken and executed simultaneously, and no proceedings shall be deemed taken nor any documents executed or delivered until all have been taken, executed or delivered, and (ii) the Closing shall be deemed to have occurred at 12:01 a.m., Eastern Time, on the Closing Date.

Section 2.04. Closing Deliverables .

(a) Subject to the terms and conditions hereof, at the Closing, Seller shall deliver to Buyer:

(i) the duly executed assignment and assumption agreement in the form attached as Exhibit C (the “ Assignment and Assumption Agreement ”);

(ii) the duly executed escrow agreement substantially in the form attached as Exhibit D (the “ Escrow Agreement ”);

(iii) the resignations of all directors and officers of the Company and the Company Subsidiaries that are not continuing as employees of the Company or any Company Subsidiary after Closing from their director and officer positions, as applicable;

(iv) the closing certificate of Seller as provided for in Section 8.02(d) ;

(v) evidence of the satisfaction or termination of Seller’s line of credit under that certain Senior Credit Agreement dated August 2, 2006 by and between Kimpton Group Holding LLC, a Delaware limited liability company and Bank of America, N.A. a national banking association, as Administrative Agent and each Lender Party thereto. as amended;

(vi) a duly executed side letter as mutually agreed and initialed by the Parties as of the date hereof with respect to certain future activities;

(vii) a duly executed side letter between an entity formed by members of Seller’s senior management team for the purpose of conducting the Asset Management Business (“ Newco ”) and Buyer whereby Newco has agreed to comply with the restrictive covenants applicable to Seller set forth in Sections 5.08(a) , (b) , (c)  and (d) .

 

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(viii) a statement in the form of Exhibit E ( provided that if Seller fails to deliver (or cause to be delivered) such statement at or prior to the Closing, then Buyer’s sole remedy shall be to make an appropriate withholding to the extent required pursuant to Section 1445 of the Code); and

(ix) such other customary closing documents and instruments as required by this Agreement.

(b) Subject to the terms and conditions hereof, at the Closing, Buyer shall deliver to Seller:

(i) the Preliminary Purchase Price, minus the Escrow Amount, which Buyer shall pay via wire transfer of immediately available funds to an account or accounts designated by Seller;

(ii) the duly executed Assignment and Assumption Agreement;

(iii) the duly executed Escrow Agreement;

(iv) the closing certificate of Buyer as provided for in Section 8.03(c) ; and

(v) such other customary closing documents and instruments as required by this Agreement.

(c) At the Closing, Buyer shall deliver the Escrow Amount via wire transfer of immediately available funds to the account (the “ Escrow Account ”) designated by the Escrow Agent to be held and released in accordance with the terms of the Escrow Agreement and Section 9.08 .

Section 2.05. Preliminary Closing Statement; Payment of Preliminary Purchase Price .

(a) No later than three (3) Business Days prior to the Closing Date, Seller shall deliver to Buyer a preliminary closing statement setting forth its good faith estimates of the Preliminary Net Working Capital, Closing Date Cash, Closing Date Indebtedness and Company Transaction Expenses (the “ Preliminary Closing Statement ”). The Preliminary Closing Statement shall be prepared in good faith in accordance with the Calculation Principles. For illustrative purposes only, attached hereto as Exhibit F is a sample Preliminary Closing Statement based upon the Balance Sheet and assuming the Closing were to occur as of the Balance Sheet Date (the “ Sample Preliminary Closing Statement ”).

(b) The Purchase Price to be paid at the Closing (the “ Preliminary Purchase Price ”) shall equal: (i) Four Hundred Thirty Million Dollars ($430,000,000.00), plus (ii) Closing Date Cash reflected on the Preliminary Closing Statement, minus (iii) the excess (if any) of the Target Net Working Capital over the Preliminary Net Working Capital, plus (iv) the excess (if any) of the Preliminary Net Working Capital over the Target Net Working Capital, minus (v) Closing Date Indebtedness reflected on the Preliminary Closing Statement, minus (vi) Company Transaction Expenses reflected on the Preliminary Closing Statement.

 

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(c) Subject to Sections 2.04(b)(i) and 2.04(c) , the Preliminary Purchase Price shall be paid by Buyer at the Closing to Seller in accordance with written instructions delivered to Buyer prior to the Closing.

Section 2.06. Post-Closing Adjustment .

(a) Within sixty (60) days after the Closing Date, Buyer shall prepare and deliver to Seller:

(i) an unaudited consolidated balance sheet of the Company and the Company Subsidiaries, taken as a whole (the “ Final Closing Balance Sheet ”), as of and at the close of business on the date immediately prior to the Closing Date; and

(ii) a final closing statement (the “ Final Closing Statement ”) as of and at the close of business on the date immediately prior to the Closing Date, reflecting Buyer’s calculation of:

 

  1) the Final Net Working Capital, Closing Date Cash, Closing Date Indebtedness and Company Transaction Expenses;

 

  2) the difference between the Preliminary Purchase Price and the Estimated Final Purchase Price shown on the Final Closing Statement (determined in accordance with Section 2.02 by substituting Buyer’s calculation of the Final Net Working Capital, Closing Date Cash, Closing Date Indebtedness and Company Transaction Expenses amounts shown on the Final Closing Statement for those previously appearing on the Preliminary Closing Statement); and

 

  3) the resulting calculation of the final Purchase Price calculated in accordance with Section 2.02 (the “ Estimated Final Purchase Price ”).

(b) The Final Closing Balance Sheet and Final Closing Statement shall be prepared in accordance with the Calculation Principles. Nothing in this Section 2.06 is intended to be used to adjust for errors, omissions or inconsistencies that may be found with respect to the Financial Statements, the Balance Sheet, the Preliminary Closing Statement and the Sample Preliminary Closing Statement, or any actual or alleged failure of the Financial Statements, the Balance Sheet, the Preliminary Closing Statement or the Sample Preliminary Closing Statement to be prepared in accordance with GAAP. Buyer shall not be permitted to introduce different accounting principles, procedures, policies, practices, estimates, judgments or methodologies in the preparation of the Final Closing Statement or the determination of the Final Net Working Capital, Closing Date Cash, Closing Date Indebtedness or Company Transaction Expenses from the Calculation Principles.

(c) Seller may dispute Buyer’s calculation of the Final Closing Balance Sheet or the Final Closing Statement (collectively, the “ Final Closing Documents ”) (or any element thereof)

 

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by notifying Buyer in writing, setting forth in reasonable detail the particulars of such disagreement (the “ Notice of Objection ”), within forty-five (45) days after Seller’s receipt of the Final Closing Documents. Any item or amount as to which no dispute is raised in the Notice of Objection will be final, conclusive and binding on the Parties for all purposes hereunder, unless such item or amount is by its nature adjusted in connection with the matters raised in the Notice of Objection. In the event that Seller does not deliver a Notice of Objection to Buyer within such forty-five (45) day period, Seller shall be deemed to have accepted Buyer’s calculation of the Estimated Final Purchase Price set forth in the Final Closing Documents (the Purchase Price as finally determined in accordance with this Section 2.06 , the “ Final Purchase Price ”). In connection with the review by Seller of the Final Closing Documents, Buyer shall (i) permit Seller and its Representatives to have reasonable access to the books, records and other documents (including work papers, schedules, financial statements and memoranda) pertaining to or used in connection with the preparation of the Final Closing Documents and the calculation of the Final Net Working Capital, Closing Date Cash, Closing Date Indebtedness and Company Transaction Expenses and provide Seller with copies thereof and (ii) provide Seller and its Representatives reasonable access to employees and accountants of Buyer, the Company and the Company Subsidiaries as reasonably requested by Seller to verify the accuracy of the Final Closing Documents. Buyer shall cause the employees and accountants of Buyer, the Company and the Company Subsidiaries to cooperate in all reasonable respects with Seller and its Representatives in connection with their review of such work papers and other documents and information relating to the calculation of the Final Net Working Capital, Closing Date Cash, Closing Date Indebtedness and Company Transaction Expenses as Seller may reasonably request and that are available to Buyer and its Subsidiaries, including the Company and the Company Subsidiaries, or any of their respective accountants. In the event that a Notice of Objection is timely delivered, Buyer and Seller shall use their respective commercially reasonable efforts for a period of sixty (60) days after Buyer’s receipt of the Notice of Objection, or such longer period as the Parties may agree in writing, to resolve any disagreements set forth in the Notice of Objection.

(d) If Buyer and Seller are unable to resolve such disagreements within such sixty (60) day period (or such longer period as the Parties shall have agreed in writing), then KPMG LLP (or such other independent accounting firm of recognized national standing as may be mutually selected by Buyer and Seller) (the “ Independent Firm ”) shall be appointed, as an expert and not an arbitrator, to resolve any items that remain in dispute at the end of such period (the “ Unresolved Items ”), but in no case shall the Independent Firm review or propose any resolution for any matters that have not been raised in the Notice of Objection. If KPMG LLP is unwilling or unable to serve in such capacity and the Parties are not able to mutually select an alternative accounting firm that is willing and able to serve in such capacity, then Seller shall within ten (10) days deliver to Buyer a listing of three (3) other accounting firms of nationally recognized standing (and none of which have worked in the past three (3) years for Seller or Buyer or any of their respective Affiliates) and Buyer shall within ten (10) days after receipt of such list, select one of such three (3) accounting firms to act as the Independent Firm.

(e) Buyer and Seller shall instruct the Independent Firm to determine as promptly as practicable, and in any event within ninety (90) days after the date on which such dispute is referred to the Independent Firm, based solely on the provisions of this Agreement, and the written presentations by Seller and Buyer, and not on an independent review, whether and to

 

16


what extent (if any) the calculations set forth in the Final Closing Documents require adjustment. In resolving any Unresolved Item, the Independent Firm (i) may not assign a value to any item greater than the greatest value for such item claimed by either Party or less than the smallest value for such item claimed by either Party, (ii) may not take oral testimony from the Parties hereto or any other Person and (iii) shall not consider any facts that have occurred after the Closing Date. Seller and Buyer shall give each other copies of any written submissions at the same time as they are submitted to the Independent Firm. Buyer shall bear and pay a percentage of the fees and expenses of the Independent Firm that is equal to the percentage of the total dollar amount of changes to the Final Purchase Price proposed by Seller that are successful, and Seller shall bear and pay a percentage of the fees and expenses of the Independent Firm that is equal to the percentage of the total dollar amount of changes to the Final Purchase Price proposed by Seller that are not successful, in each case, as determined by the Independent Firm ( provided that fees and expenses of the Independent Firm for which Seller is responsible shall be paid solely from the Escrow Account). The determination of the Independent Firm shall be set forth in a written statement delivered to the Parties and shall be final, conclusive and binding on the Parties, absent fraud or manifest error.

(f) If the Final Closing Statement shows that an amount is due to Buyer (because the Preliminary Purchase Price is greater than the Final Purchase Price), Buyer shall be entitled to payment of such amount solely out of the Escrow Account. If the Final Closing Statement shows that an amount is due to Seller (because the Preliminary Purchase Price is less than the Final Purchase Price), Buyer shall promptly pay such excess to Seller, in cash. Any payment pursuant to this Section 2.06(f) shall be made by Buyer or, upon the receipt of joint written instructions in accordance with the terms and provisions of the Escrow Agreement, the Escrow Agent, as the case may be, by wire transfer of immediately available funds within five (5) Business Days to such account or accounts of Seller or Buyer, as applicable, as may be designated by Seller or Buyer in writing. In the event of a failure to timely make such payment, interest shall accrue on such amount for the period commencing on the payment due date through the date on which such payment is made calculated at the Prime Rate. Such interest shall be payable at the same time as the payment to which it relates and shall be calculated daily on the basis of a year of three hundred and sixty-five (365) days and the actual number of days elapsed.

Section 2.07. Purchase Price Allocation . The Parties agree to treat the purchase of the LLC Interests as a purchase of the assets of the Company and the noncorporate Company Subsidiaries for U.S. federal and, to the extent permitted by Law, applicable state and local income tax purposes. The Parties further acknowledge and agree that Seller intends to engage a valuation expert to prepare a written, independent valuation of the fair market value of certain assets of the Company and such Company Subsidiaries as of the Closing Date (the “ Valuation ”). No later than ninety (90) days after the later of (a) the determination of the Final Purchase Price pursuant to Section 2.06 and (b) the delivery of the Valuation to Seller, Seller shall deliver to Buyer a draft allocation of the sum of the Final Purchase Price and (to the extent properly taken into account for U.S. federal and other applicable income tax purposes) the Liabilities of the Company and the noncorporate Company Subsidiaries, among the assets of the Company and such Company Subsidiaries, determined consistently with the Valuation and in accordance with Section 1060 of the Code and the Treasury Regulations promulgated thereunder (and any similar provisions of state or local Law, as appropriate), provided , however , that not less than 95% of the

 

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foregoing sum shall be allocated to assets that are “section 197 intangibles” within the meaning of Section 197(d) of the Code or other depreciable or amortizable assets that have a recovery period for U.S. federal income tax purposes that is equal to or less than fifteen (15) years (the “ Allocation ”). Buyer shall have thirty (30) days to give a written notice to Seller of its objections, if any, to the Allocation; provided that Buyer shall not be entitled to object to the Allocation to the extent the Allocation is consistent with the Valuation. If Buyer does not provide such notice of objection within such thirty (30) day period, Buyer shall be deemed to have accepted in full the Allocation delivered by Seller. If Buyer delivers a timely notice of objection with respect to assets that were not covered by the Valuation, Buyer and Seller shall negotiate in good faith to reach agreement regarding the Allocation. For the avoidance of doubt, the Parties agree that none of the Final Purchase Price or other consideration payable in connection with this Agreement will be allocated to the covenants contained in Section 5.08 . If the Purchase Price is adjusted for federal or other applicable income tax purposes pursuant to Section 9.07 or otherwise, the Parties shall cooperate in good faith to make appropriate updates to the Allocation, consistent with the original Allocation and taking into account the circumstances giving rise to the adjustment. The Parties shall, and shall cause their Affiliates to, file all Tax Returns (including Internal Revenue Service Form 8594) consistent with the Allocation (including as modified pursuant to this Section 2.07 ); provided that nothing in this sentence shall prevent any Party or its Affiliates from settling any proposed deficiency or adjustment by any Governmental Authority based upon or arising out of the Allocation, and no Party or its Affiliates shall be required to litigate before any court any proposed deficiency or adjustment by any Governmental Authority challenging such Allocation. Buyer and Seller shall notify each other promptly in writing upon receiving notice of any examination, audit or other proceeding regarding the Allocation.

Section 2.08. Withholding . The Parties agree that no amounts shall be withheld from any payments by Buyer under this Agreement so long as Seller delivers (or causes to be delivered) the statement referred to in Section 2.04(a)(v) at or prior to the Closing.

Section 2.09. Asset Management Business . Notwithstanding anything in this Agreement to the contrary, and subject to Schedule 2.09 , the Parties acknowledge and agree that Seller shall, and shall cause the Company and the Company Subsidiaries to (a) take each of the actions set forth in Schedule 2.09 , (b) transfer or assign all claims initiated or made by the Company and the Company Subsidiaries to the extent relating to the Asset Management Business to Seller prior to the Closing, (c) use its commercially reasonable efforts to transfer or assign all assets, documents, materials, communications, analyses and other information of the Company and the Company Subsidiaries to the extent relating to the Asset Management Business to Seller prior to the Closing, and (d) as between Seller, on the one hand, and the Company and the Company Subsidiaries on the other hand, transfer and assign all other claims and other Liabilities of the Company and the Company Subsidiaries to the extent relating to the Asset Management Business to Seller prior to the Closing (it being acknowledged and agreed that this clause (d)  shall not require Seller, the Company or the Company Subsidiaries to obtain, except as otherwise provided in Schedule 2.09 , the consent or approval of any third party related to such transfers and assignments). The Parties acknowledge and agree that Buyer is not acquiring or assuming, any assets, Liabilities or other matters to the extent related to the Asset Management Business. In accordance with Section 9.02(a)(iii) , Seller will indemnify Buyer, the Company and the Company Subsidiaries from any and all claims, Liabilities or Damages related

 

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to the Asset Management Business, both prior to and following the Closing. Seller shall pay or cause to be paid all Taxes arising as a direct result of the transfers and assignments described in this Section 2.09 .

ARTICLE III

R EPRESENTATIONS AND W ARRANTIES OF S ELLER

Seller represents and warrants to Buyer as of the date hereof and as of the Closing Date that, except as set forth in the Disclosure Schedule (but subject to Section 11.10 ):

Section 3.01. Organization and Qualification .

(a) Seller is duly organized, validly existing and (where such concept is applicable) in good standing (or local equivalent) under the Laws of the State of Delaware. The Company and each Company Subsidiary is duly organized, validly existing and (where such concept is applicable) in good standing (or local equivalent) under the Laws of its jurisdiction of organization, formation or incorporation, as applicable and as specified in Schedule 3.01(a) . Each of Seller, the Company and each Company Subsidiary has the company power and authority necessary to own or lease their respective properties and assets and to carry on their respective business as presently conducted in all material respects, except, in the case of Seller, as would not reasonably be expected, individually or in the aggregate, to interfere with, prevent or materially delay the ability of Seller to enter into and perform its obligations under this Agreement or consummate the transactions contemplated by the Transaction Documents.

(b) Each of Seller, the Company and each Company Subsidiary is duly qualified to do business (where such concept is applicable) in each jurisdiction where the nature of their respective business or the ownership of their respective assets makes such qualification necessary, except where the failure to be so qualified would not reasonably be expected, individually or in the aggregate, to interfere with, prevent or materially delay its ability to enter into and perform its obligations under this Agreement or consummate the transactions contemplated by the Transaction Documents. Seller has made available to Buyer true and complete copies of the Organizational Documents of the Company and each Company Subsidiary, and all respective amendments thereto, as currently in effect. Neither the Company nor any Company Subsidiary is in material violation of any provision of such Organizational Documents.

Section 3.02. Authorization .

(a) Seller has all requisite organizational power and authority to execute and deliver this Agreement and each other Transaction Document to be executed by Seller and to perform its obligations hereunder and thereunder and, subject to receipt of the Seller Member Approval, to consummate the transactions contemplated on its respective parts hereby and thereby. This Agreement and each Transaction Document to be executed by Seller has been duly authorized, executed and delivered by Seller, subject to receipt of the Seller Member Approval, and, assuming that this Agreement has been duly and validly authorized, executed and delivered by Buyer, constitutes a valid and binding agreement of Seller, enforceable against Seller in accordance with its terms, except as limited by Laws affecting the enforcement of creditors’

 

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rights generally, by general equitable principles or by the discretion of any Governmental Authority before which any Action seeking enforcement may be brought (regardless of whether enforcement is sought in a proceeding at law or in equity).

(b) The only vote of holders of any class or series of equity interests of Seller necessary to approve the transactions contemplated by this Agreement is the Seller Member Approval. No other vote or approval of the members or other holders of equity interests of Seller is necessary to consummate the transactions contemplated by this Agreement.

Section 3.03. Non-contravention .

(a) The execution, delivery and performance of this Agreement and the other Transaction Documents to be executed by Seller, the consummation of the transactions contemplated hereby and thereby, and the fulfillment of and the performance by Seller of its obligations hereunder and thereunder will not (i) violate any provision of the Organizational Documents of Seller, the Company or any Company Subsidiary, (ii) except as set forth on Schedule 3.03 , violate or result in a breach of, or constitute a default or require a consent under or give rise to any right of termination, cancellation or acceleration of any right or obligation or to a loss of any benefit to which Seller, the Company or any Company Subsidiary is entitled under any provision of any Material Contract to which such Person is party, (iii) assuming compliance with the matters referred to in Section 3.04 , violate or result in a breach of any Law or Permit applicable to Seller, the Company or any Company Subsidiary or (iv) result in the creation or imposition of any Lien (other than Permitted Liens) on any asset of Seller, the Company or any Company Subsidiary, except, with respect to clauses (ii) , (iii)  and (iv) : as would not reasonably be expected, individually or in the aggregate, to interfere with, prevent or materially delay the ability of Seller to enter into and perform its obligations under this Agreement or consummate the transactions contemplated by the Transaction Documents.

(b) Each of the Company and the Company Subsidiaries has good and marketable title to all of its assets, free and clear of all liens and encumbrances, other than Permitted Liens.

Section 3.04. Governmental Authorization . The execution, delivery and performance by Seller of this Agreement and other Transaction Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby require no action by or in respect of, or consent from or filing with, any Governmental Authority, other than (a) compliance with any applicable requirements of the HSR Act, (b) compliance with the regulatory requirements set forth in Schedule 3.04 and (c) any such action or filing the failure of which to be made or obtained would not reasonably be expected, individually or in the aggregate, to interfere with, prevent or materially delay the ability of Seller to enter into and perform its obligations under this Agreement or consummate the transactions contemplated by the Transaction Documents.

Section 3.05. Capitalization .

(a) All of the LLC Interests are owned beneficially and of record by Seller, free and clear of any Liens other than transfer restrictions imposed thereon by Law and the Organizational Documents of Seller (which transfer restrictions will have been complied with and/or satisfied on

 

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or before Closing). None of the LLC Interests have been issued in violation of, or are subject to, any preemptive or subscription rights. There are no options, offers, warrants, profits interests, conversion or exchange rights, call Contracts or other rights granted by the Company to subscribe for or to purchase from the Company, or Contracts obligating the Company to issue, repurchase, redeem, transfer, dispose of or sell, capital stock, partnership or limited liability company interests or other securities of the Company (whether debt, equity or a combination thereof or whether convertible into or exchangeable or exercisable for such securities) or obligating Seller or the Company to grant, extend or enter into any such Contract. There are no bonds, debentures, notes or other Indebtedness of the Company having the right to vote (or convertible into securities having the right to vote) on any matters on which Seller may vote.

(b) Schedule 3.05(b) sets forth an accurate and complete list of each Company Subsidiary. All of the Company Subsidiaries are wholly-owned, directly or indirectly, beneficially and of record by the Company, free and clear of any Liens other than Permitted Liens and transfer restrictions imposed thereon by Law, and, except as identified on Schedule 3.05(b) , the Company and the Company Subsidiaries do not own, directly or indirectly, any equity interests in any other entities. Except for the Company Subsidiaries, the Company does not own or hold, directly or indirectly, any equity interest in any other Person. There is no (A) existing option, warrant, call, right or agreement to which the Company or any Company Subsidiary is a party requiring, and there are no securities of any of the Company Subsidiaries outstanding that upon conversion or exchange would require, an increase to the value of any capital stock, limited liability company interest or partnership interest of any Company Subsidiary, as applicable, or other securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase any capital stock, limited liability company interest or partnership interest of any Company Subsidiary, (B) shares of capital stock of, partnership interests that represent the corporate capital of or other equity interests in the Company Subsidiaries that are reserved for issuance or (C) bonds, debentures, notes or other Indebtedness having the right to vote on any matters on which the equity holders of any Company Subsidiary may vote.

Section 3.06. Financial Statements .

(a) Seller has made available to Buyer complete and correct copies of the (i) consolidated balance sheets of the Company and the Company Subsidiaries as of December 31, 2013, 2012 and 2011, and the related consolidated statements of income, changes in members’ equity and cash flows for each of the three years in the period ended December 31, 2013, 2012 and 2011 (the “ Audited Financial Statements ”), and (ii) the unaudited consolidated balance sheet of the Company and the Company Subsidiaries for the ten-month period ended as of October 31, 2014, and the related unaudited consolidated statements of income for the ten-month period ended as of October 31, 2014 (the “ Unaudited Financial Statements ” and, together with the Audited Financial Statements, the “ Financial Statements ”), true and complete copies of which are set forth in Schedule 3.06(a) . The Financial Statements (A) have been prepared from, are in accordance with, and accurately reflect the books and records of the Company and the Company Subsidiaries in all material respects (except as may be indicated in the notes thereto), (B) fairly present in all material respects the combined financial position and combined results of operations and cash flows of the Company and the Company Subsidiaries as of the respective dates or for the respective time periods set forth therein and (C) have been prepared in

 

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accordance with GAAP consistently applied (except as may be indicated in the notes thereto or, in the case of the Unaudited Financial Statements, for normal and recurring year-end adjustments).

(b) Schedule 3.06(b) sets forth (i) the fees received by the Company in respect of the Asset Management Business and the renovation services projects set forth therein for the ten-month period ended October 31, 2014; (ii) payroll expenses associated with the employees of the Company and Company Subsidiaries identified therein for the ten-month period ended October 31, 2014 and (iii) an estimate of non-payroll expenses anticipated to be incurred by Newco with respect to the Asset Management Business for an illustrative ten-month period.

(c) The Company and the Company Subsidiaries (i) have only those key money commitments as set forth on Schedule 3.06(c) and (ii) do not have individual outstanding capital expenditure commitments in excess of $25,000, except for capital expenditures made or to be made at any individual hotel property on behalf and at the cost of the applicable hotel owner.

Section 3.07. Absence of Certain Developments . Except for actions taken in preparation for the transactions contemplated by this Agreement, from and after the Balance Sheet Date through the date of this Agreement, (a) there has not been any Material Adverse Effect, (b) the business of the Company and the Company Subsidiaries, including renewing all permits and liquor licenses as they become eligible for renewal, has been conducted in the ordinary course consistent with past practice in all material respects and (c) neither the Company nor any Company Subsidiary has taken any action that would, if taken by such Person from the date hereof through the Closing Date, require the consent of Buyer under Section 5.01 .

Section 3.08. Compliance with Laws; Permits; Privacy .

(a) Except with respect to compliance with Law concerning (i) employee and employee benefits matters (which is solely addressed in those certain representations and warranties made pursuant to Sections 3.12 and 3.13 ), (ii) Environmental Laws (which is solely addressed in those certain representations and warranties made pursuant to Section 3.11 ), (iii) Taxes (which is solely addressed in those certain representations and warranties made pursuant to Section 3.14 ) and (iv) Intellectual Property (which is solely addressed in those certain representations and warranties made pursuant to Section 3.15 ), as of the date hereof, neither the Company nor any Company Subsidiary is in conflict with, default under or violation of, charged by any Governmental Authority with a violation of, or to Seller’s knowledge is being investigated for a violation of, any Law (including the US Foreign Corrupt Practices Act, UK Bribery Act, the International Money Laundering Abatement and Financial Anti-Terrorism Act of 2001, Title III of the USA PATRIOT Act, anti-boycott laws or any similar Laws (collectively, “ Anti-Corruption Laws ”)) applicable to the Company and the Company Subsidiaries or by which any property or asset of the Company or any Company Subsidiary is bound or affected. Without limiting the foregoing, neither the Companies nor the Company Subsidiaries have received any written notice during the twelve (12) months prior to the date of this Agreement alleging any violation with respect to any liquor license held directly, or indirectly for the benefit of, the Company or the Company Subsidiaries.

 

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(b) To Seller’s knowledge, (i) none of Seller, the Company or the Company Subsidiaries has ever been the subject of any bribery, money laundering or anti-kick-back investigation by any Governmental Authority and (ii) none of the directors, officers, agents, employees or other Persons acting on behalf of the Company or the Company Subsidiaries, directly or indirectly, have taken any action, or failed to act, in a manner that would be a violation of any Anti-Corruption Laws. As of the date hereof, neither Seller, the Company nor any of the Company Subsidiaries has, since January 1, 2010, received any written notice of any facts or circumstances that would constitute a violation of any Anti-Corruption Laws.

(c) With respect to privacy and data protection matters:

(i) To the knowledge of Seller, the Company and the Company Subsidiaries are, and since January 1, 2010 have been, in material compliance with: (A) all applicable Laws-pertaining to (x) data security, cyber security and e-commerce, (y) the collection, storage, use, access, disclosure, processing, security and transfer of Personal Data (collectively “ Data Activities ”) ((x) and (y) together, “ Privacy Laws ”) and (z) sales and marketing, including the CAN-SPAM Act, the Telephone Consumer Protection Act and the Telemarketing Sales Rule; and (B) the Payment Card Industry Security Standards set by the PCI Security Standards Council and the Company and the Company Subsidiaries have validated their compliance as required by any contractual obligations on Company and the applicable rules and guidelines issued by the Card Associations.

(ii) Schedule 3.08(c) sets forth, as of the date hereof, the Company’s and the Company Subsidiaries’ written policies relating to Data Activities, including publicly posted website and mobile app privacy policies (“ Privacy and Data Securities Policies ”). To the knowledge of Seller, at all times the Company and the Company Subsidiaries are, and since January 1, 2010 have been, in material compliance with such Privacy and Data Security Policies.

(iii) Schedule 3.08(c) sets forth, as of the date hereof, all Actions against the Company alleging that any Data Activity of the Company or the Company Subsidiaries: (A) is in violation of any applicable Privacy Laws, (B) is in violation of any Contracts applicable to Data Activities to which the Company or the Company Subsidiaries are a party (collectively, “ Privacy Agreements ”), (C) is in violation of any Privacy and Data Security Policies or (D) otherwise constitutes an unfair, deceptive or misleading trade practice. To the knowledge of Seller, neither the execution, delivery or performance of this Agreement, nor the consummation of any of the transactions contemplated hereby, will violate any of the Privacy and Data Security Policies.

(iv) Except as set forth on Schedule 3.08(c) , to the knowledge of Seller, there has been no material unauthorized access, use or disclosure of Personal Data in the possession or control of the Company and the Company Subsidiaries.

(v) Where materially relevant to the scope of services being delivered, the Company and the Company Subsidiaries currently contractually require, and

 

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since January 1, 2010, have contractually required, in all new written Contracts with third parties, including vendors, affiliates, and other persons providing services to them that have access to or receive Personal Data from or on behalf of the Company and the Company Subsidiaries to comply with all applicable Privacy Laws, and to take all reasonable steps to ensure that all Personal Data of the Company and the Company Subsidiaries is protected against damage, loss, and against unauthorized access or disclosure.

(d) The Company and the Company Subsidiaries possess all material governmental permits, approvals, orders, authorizations, consents, licenses, certificates, franchises, exemptions of, or filings or registrations with, or issued by, any Governmental Authority necessary for the operation of the business of the Company and the Company Subsidiaries as currently conducted (the “ Permits ”). All such Permits are in full force and effect, and to Seller’s knowledge there are no Actions pending or threatened by any Governmental Authority that seek the revocation, cancellation, suspension or adverse modification thereof. Neither the Company nor any of the Company Subsidiaries is in default, and, to the knowledge of Seller, no condition exists that with notice or lapse of time or both would constitute a material default, under the Permits.

Section 3.09. Litigation . Except as set forth in Schedule 3.09 , as of the date hereof, there are no Actions pending by or before any Governmental Authority or, to the knowledge of Seller, threatened against Seller, the Company or the Company Subsidiaries that (i) in the case of Seller, would reasonably be expected, individually or in the aggregate, to interfere with, prevent or materially delay the ability of Seller to enter into and perform their obligations under this Agreement or consummate the transactions contemplated by the Transaction Documents, (ii) otherwise would reasonably be expected, individually or in the aggregate, to result in material Liability to the Company and the Company Subsidiaries, taken as a whole, or otherwise materially interfere with the conduct of the business of the Company and the Company Subsidiaries in substantially the manner currently conducted and (iii) were initiated by the Company as plaintiff. As of the date hereof, except as set forth in Schedule 3.09 , (i) there is no order, writ, settlement, judgment, award, ruling, injunction, decree or consent decree entered by or with any Governmental Authority or third party purporting to enjoin or restrain the execution, delivery and performance by Seller of the transactions contemplated hereby, or (ii) there is no order, writ, settlement, judgment, award, ruling, injunction, decree or consent decree entered by or with any Governmental Authority or third party that would reasonably be expected, individually or in the aggregate, to result in material Liability to the Company and the Company Subsidiaries, taken as a whole, or otherwise materially interfere with the conduct of the business of the Company and the Company Subsidiaries in substantially the manner currently conducted.

Section 3.10. No Undisclosed Liabilities . The Company and the Company Subsidiaries do not have any material Liabilities that would have been required to be reflected in, reserved against or otherwise described in the Balance Sheet in accordance with GAAP, consistently applied in accordance with past practice, and that were not so reflected, reserved against or described therein, other than Liabilities (a) incurred in the ordinary course of business after the Balance Sheet Date, or (b) incurred under this Agreement or in connection with the transactions contemplated hereby.

 

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Section 3.11. Environmental Matters .

(a) Except as set forth on Schedule 3.11 :

(i) to Seller’s knowledge, the Company and the Company Subsidiaries are in material compliance with all applicable Environmental Laws in connection with the conduct of their businesses, including any Permits required by applicable Environmental Laws;

(ii) to Seller’s knowledge, (A) no written notice, claim, inquiry, order, complaint, penalty or demand has been made and (B) there is no Action pending or threatened, which (1) alleges the actual or potential violation of or noncompliance with any Environmental Law or any Permit required by any applicable Environmental Law, alleges any potential Liability, obligation, costs or Damages arising under or relating to any Environmental Law including any remedial, natural resource, response, removal or corrective obligations, or seeks to revoke, amend, modify or terminate any Permit required by any applicable Environmental Law, (2) relates to the Company and the Company Subsidiaries or the Leased Real Property and (3) has not been settled, dismissed, paid or otherwise resolved without ongoing obligations or costs prior to the date hereof; and

(iii) there are no Actions involving the actual or potential violation of or noncompliance with any Environmental Law or any Permit required by any applicable Environmental Law which have been initiated by the Company or the Company Subsidiaries against any other party (and all such Actions which have been settled, dismissed, paid or otherwise resolved since January 1, 2012, are identified on Schedule 3.11 ).

(b) The representations in this Section 3.11 are the sole and exclusive representations made by Seller with respect to any Environmental Conditions, Environmental Laws or any Permit required under any Environmental Law.

Section 3.12. Employee Matters .

(a) With respect to the Company Employees, each of the Company and the Company Subsidiaries are in material compliance with all applicable Laws respecting employment, employment practices, labor, terms and conditions of employment, wages and hours, employment standards, workers’ compensation and plant closings. Except as set forth on Schedule 3.12(a) , there are no Actions pending or, to the knowledge of Seller, threatened against the Company or any of the Company Subsidiaries brought by or on behalf of any Company Employee relating to any such Laws. Except as set forth on Schedule 3.12(a) , no claims are currently pending or under investigation, and to the knowledge of Seller there is no basis for any claim, against any employee on the basis of fraud, embezzlement, material theft or any similar claim involving material dishonesty. Schedule 3.12(a) includes, as of the date hereof, all litigation initiated by the Company against any person related to employment matters, including matters related to fraud, embezzlement, material theft, or any similar claims

 

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(b) Schedule 3.12(b)(i) sets forth a list of all Bargaining Agreements to which the terms and conditions of employment of the Company Employees are subject as of the date hereof and, as of the date hereof, except as set forth on Schedule 3.12(b)(ii) , there are no labor unions or works councils (i) representing any Company Employee in connection with their employment by the Company or any of the Company Subsidiaries or (ii) to the knowledge of Seller, engaged in any organizing activity with respect to representing any Company Employee. Since January 1, 2013, there has not been and, to the knowledge of Seller there is not presently pending, existing, or threatened, any material strike, slowdown, picketing, or work stoppage by Company Employees.

(c) A complete and accurate list of all employees of the Company and the Company Subsidiaries, as of the date hereof, whose costs are not allocated to, and reimbursed by, hotel owners, including position and compensation as of the date hereof is set forth in Schedule 3.12(c) . Except as set forth on Schedule 3.12(c) , and excluding the Company Plans set forth on Schedule 3.13(a) and the Bargaining Agreements set forth in Schedule 3.12(b)(i) , none of the Company’s or the Company Subsidiaries’ employees is a party to a written employment agreement or contract with the Company or any Company Subsidiary.

(d) The severance policies and any other severance agreements or retention or stay bonuses of the Company and the Company Subsidiaries are as set forth in the Review Documents.

(e) The representations in this Section 3.12 are the sole and exclusive representations made by Seller with respect to any matters relating to employees and employment.

Section 3.13. Employee Benefit Plans .

(a) Schedule 3.13(a) lists, as of the date hereof, each Company Plan. Seller has made available to Buyer a copy of each plan document for each Company Plan listed in Schedule 3.13(a) .

(b) None of the Company Plans are subject to Title IV of ERISA. The transactions contemplated by this Agreement are not reasonably expected to trigger any material Liability for Buyer or any of the Company and the Company Subsidiaries under Title IV of ERISA with respect to any Company Plan.

(c) Each Company Plan which is intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter, or has pending or is within the remedial amendment period in which to file, an application for such determination from the IRS.

(d) Each Company Plan has been maintained in material compliance with its terms and with any applicable Law. None of the Company Plans are presently, or, in the past three years, have been, under audit or examination (nor has notice been received of any potential audit or examination) by any Governmental Authority. Other than routine claims for benefits, there are no material proceedings or claims pending or, to the knowledge of Seller, threatened with respect to any Company Plan.

 

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(e) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in conjunction with any other event, such as a termination of employment) (i) result in any material payment becoming due to any Company Employee under any Company Plan, (ii) materially increase any benefits otherwise payable under any Company Plan or (iii) result in the acceleration of the time of payment or vesting of any material benefits under any Company Plan.

(f) Neither Company or any Company Subsidiary has any equity or equity-equivalent based employee benefit plans relating to equity of the Company or the Company Subsidiaries; provided that Buyer acknowledges that certain employees of the Company and the Company Subsidiaries participate in equity or equity equivalent based employee benefit plans maintained by Seller, which plans will not be transferred to Buyer pursuant to this Agreement, and Buyer will not be bound by, liable for or subject to any such plans.

(g) The representations in this Section 3.13 , along with the representations and warranties set forth in Section 3.09 regarding litigation involving the Company, whether as plaintiff or defendant, are the sole and exclusive representations made by Seller with respect to any matters relating to employee benefits.

Section 3.14. Taxes .

(a) Each of the Company and the Company Subsidiaries has timely filed all Tax Returns required to be filed by it. None of the Company and the Company Subsidiaries currently is the beneficiary of any extension of time within which to file any Tax Return, other than automatic extensions of time not requiring the consent of any Taxing Authority and extensions of time requested or obtained in the ordinary course of business.

(b) All Pre-Closing Taxes have either been paid or are included as a current liability in Final Net Working Capital.

(c) There are currently no deficiencies for Taxes due from the Company or any of the Company Subsidiaries that have been claimed, proposed or assessed, in each case, in writing, by any Taxing Authority for any taxable period for which the period of assessment remains open. There are no pending audits, claims, assessments, administrative proceedings or other Actions for or relating to any Tax Liability of the Company or any of the Company Subsidiaries. Neither the Company nor any Company Subsidiary has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to any Tax assessment or deficiency which waiver has not expired or been terminated. Schedule 3.14 sets forth all Actions related to Taxes which have been initiated by or against the Company or the Company Subsidiaries which have not been resolved.

(d) There are no Liens for Taxes upon the assets of the Company or any of the Company Subsidiaries other than Permitted Liens.

(e) For U.S. federal income tax purposes, the Company and each of the Company Subsidiaries that are organized as limited liability companies are treated as entities that are disregarded as separate from Seller.

 

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(f) Neither the Company nor any of the Company Subsidiaries has engaged in any “listed transactions” within the meaning of Treasury Regulation Section 1.6011-4(b)(2).

(g) The representations and warranties in Section 3.13 (to the extent related to Taxes) and this Section 3.14 are the sole and exclusive representations and warranties made by Seller with respect to any matters relating to Taxes, and none of the representations and warranties in this Section 3.14 (other than Section 3.14(e) ) may be relied upon for purposes of indemnification or otherwise with respect to any taxable periods (or portions thereof) beginning after the Closing Date.

Section 3.15. Intellectual Property .

(a) Schedule 3.15(a) contains a list, as of the date hereof, of all (i) issued patents and pending patent applications, (ii) trademark and service mark registrations and pending applications, (iii) copyright registrations and pending applications, and (iv) material internet domain name registrations owned by the Company or any of the Company Subsidiaries (collectively, the “ Company Registered Intellectual Property ”).

(b) (i) The Company and the Company Subsidiaries are the sole and exclusive owners of the Company Registered Intellectual Property, (ii) each item of Company Registered Intellectual Property is subsisting, with all maintenance and renewal fees that are due through the Closing Date having been paid, (iii) to the knowledge of Seller, there are no judgments, orders, decrees, other official determinations, or contractual obligations that invalidate, or limit the ownership or enforceability of any of the Company Registered Intellectual Property and (iv) no Action is pending, or to the knowledge of Seller, is threatened, which challenges the validity, enforceability, registration, ownership or use of any of the Company Registered Intellectual Property.

(c) The execution, delivery and performance of this Agreement and the other Transaction Documents to be executed by Seller, the consummation of the transactions contemplated hereby and thereby, and the fulfillment of and the performance by Seller of its obligations hereunder and thereunder will not result in the loss, forfeiture, termination, or impairment of, or give rise to a right of any Person to limit, terminate, or consent to the continued use of, any rights of the Company and the Company Subsidiaries in any Intellectual Property.

(d) Neither the Company nor any Company Subsidiary is, to the knowledge of Seller, currently infringing, misappropriating, diluting, or otherwise violating any Intellectual Property of any other Person. None of Seller, the Company or the Company Subsidiaries have received any charge, complaint, claim, demand or notice during the past three (3) years (or earlier, if presently not resolved) alleging any infringement, misappropriation, dilution or other violation of the Intellectual Property of any other Person by Seller, the Company or any of the Company Subsidiaries. To the knowledge of Seller, no Person is infringing, misappropriating, diluting, or otherwise violating any material Intellectual Property owned by the Company or any of the Company Subsidiaries.

 

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(e) The Company and the Company Subsidiaries have in place commercially reasonable measures, consistent with current industry standards, to protect the confidentiality, integrity and security of the computers, servers, workstations, routers, hubs, switches, circuits, networks and other information technology equipment owned or controlled by the Company and the Company Subsidiaries (and all information and transactions stored or contained therein or transmitted thereby) against any unauthorized use, access, interruption, modification or corruption.

(f) The representations in this Section 3.15 are the sole and exclusive representations made by Seller with respect to any matters relating to Intellectual Property.

Section 3.16. Material Contracts .

(a) Schedule 3.16(a) sets forth a list of all Contracts (other than purchase or service orders executed in the ordinary course of business) of the type described below to which the Company or any Company Subsidiary is a party that is in effect on the date of this Agreement (each contract that is required to be listed in Schedule 3.16(a) , being a “ Material Contract ”):

(i) any agreement for the purchase or lease of equipment, materials, supplies or other personal property that is not terminable within six (6) months’ notice and requiring annual payments by the Company or any of the Company Subsidiaries of $250,000 or more;

(ii) any agreement providing for the sale of services that is not terminable within six (6) months’ notice and requiring annual payments to the Company or any of the Company Subsidiaries of $250,000 or more (other than Company Plans);

(iii) any hotel operating agreement or technical services agreement, or other material agreement with a third party hotel owner;

(iv) any agreement that contains noncompetition covenants that prohibit the Company and the Company Subsidiaries from freely engaging in any business or in any geographic territory or market;

(v) any mortgage, indenture, note, bond or other agreement relating to indebtedness for borrowed money incurred by the Company and the Company Subsidiaries;

(vi) any agreements regarding loans by the Company or the Company Subsidiaries to third parties, including to officers, directors, employees, hotel owners or otherwise (excluding any Company Plans and travel advances in the ordinary course of business) that will remain outstanding following the Closing;

(vii) any partnership, joint venture, franchise or other similar equity investment agreements with any Person other than the Company or any Company Subsidiary;

 

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(viii) any agreement granting any of the Company and the Company Subsidiaries the right to use, exploit or practice any Intellectual Property owned by third parties which is material to the businesses of the Company and the Company Subsidiaries (other than COTS Licenses);

(ix) any agreement granting any third party the right to use, exploit or practice any Intellectual Property owned by any of the Company and the Company Subsidiaries, which agreement is material to the businesses of the Company or any Company Subsidiary;

(x) except for transactions between or among the Company and the Company Subsidiaries, any agreement entered during the three (3)-year period prior to the date of this Agreement relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise); or

(xi) any agreement associated with hedges, derivatives or other similar instruments.

(b) Except as set forth in Schedule 3.16(b) , each Material Contract set forth in Schedule 3.16(a) is (i) a valid and binding agreement of the Company or the Company Subsidiary party thereto, and to the knowledge of Seller, of the other party or parties thereto, enforceable in accordance with its terms, except as limited by Laws affecting the enforcement of creditors’ rights generally, by general equitable principles or by the discretion of any Governmental Authority before which any Action seeking enforcement may be brought, and (ii) to Seller’s knowledge, in full force and effect as of the date hereof, in each case. Neither the Company nor any of the Company Subsidiaries has received any written notice of, and to Seller’s knowledge there are no facts or circumstances that would serve as the basis of, any default or event that, with notice or lapse of time, or both, would constitute a default by the Company or any of the Company Subsidiaries under any Material Contract. To the knowledge of Seller, no other party to a Material Contract is in default of such Material Contract or has repudiated any term of any Material Contract, and there has been no waiver of any rights by the Company, any Company Subsidiary, or any other party thereto. As of the date hereof, Seller has not received any written notice of, and to Seller’s knowledge there are no facts or circumstances that would serve as the basis of, any termination, cancellation or non-renewal with respect to any Material Contract.

(c) Except as set forth on Schedule 3.16(d) , there is no outstanding failure of a performance test to which the Company and the Company Subsidiaries is subject under any hotel management agreement, and to Seller’s knowledge, there is no pending or anticipated failure of a performance test for the operating year ending December 31, 2014.

Section 3.17. Insurance . Schedule 3.17 sets forth an accurate and complete list of all material policies of property, liability, workers’ compensation and other forms of insurance owned or held by the Company and the Company Subsidiaries (not including any Company Plan). All premiums due and payable have been paid, no written notice of cancellation or termination has been received with respect to any such policy, and there is no existing default with respect to any such policy.

 

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Section 3.18. Real Property . Schedule 3.18 sets forth an accurate and complete list of any lease covering Leased Real Property (the “ Leases ”). Neither the Company nor any Company Subsidiary owns any real property. Each Lease is a valid and binding agreement of the Company or the applicable Company Subsidiary, enforceable in accordance with its terms, except as limited by Laws affecting the enforcement of creditors’ rights generally, by general equitable principles or by the discretion of any Governmental Authority before which any Action seeking enforcement may be brought. Neither the Company nor any Company Subsidiary is in default of, or have received any written notice of any default or event that, with notice or lapse of time, or both, would constitute a default by the Company or any of the Company Subsidiaries under any Lease. With respect to each Lease, the lease agreement and all amendments thereto have been provided in the Review Documents. To the knowledge of Seller, no other party to a Lease is in default of such Lease. Seller has delivered to the Buyer true, correct and complete copies of each Lease; and to Seller’s knowledge, there are no condemnation or eminent domain proceedings pending, contemplated or overtly threatened against the Leased Real Property.

Section 3.19. Related Party Transactions .

(a) Except as set forth on Schedule 3.19(a) , no current officer or director of the Company or any of the Company Subsidiaries (i) is party to any material Contract or other business arrangement (other than employment, retention or similar agreements and arrangements and Company Plans) with the Company or any of the Company Subsidiaries that is not terminable at will by the Company or the applicable Company Subsidiary without payment or penalty or (ii) owns any material property or right, tangible or intangible, which is used by the Company or any of the Company Subsidiaries.

(b) There are no agreements, arrangements or understandings between Seller, on the one hand, and the Company or any Company Subsidiary, on the other hand, that are not terminable at will by the Company or such Company Subsidiary without payment or penalty (“ Affiliate Transactions ”).

Section 3.20. Brokers . Except for fees payable to Goldman Sachs & Co., whose fees shall be paid by Seller, no Person is or will be entitled to a broker’s, finder’s, investment banker’s, financial adviser’s or similar fee from Seller or any Person acting on its behalf in connection with this Agreement or any of the transactions contemplated hereby.

Section 3.21. Solvency . Seller is not entering into this Agreement or the transactions contemplated hereby with the actual intent to hinder, delay or defraud present or future creditors of Seller or any of its Affiliates. At and immediately prior to the Closing, the Company and each of the Company Subsidiaries (a) will be solvent (in that both the fair value of its assets will not be less than the sum of its indebtedness (including a reasonable estimate of any contingent Liabilities) and that the present fair saleable value of its assets will not be less than the amount required to pay its probable Liability on its recourse indebtedness as such indebtedness matures or becomes due), (b) will have adequate capital and liquidity with which to engage in its business, and (c) will not have incurred and does not plan to incur indebtedness beyond its ability to pay as such indebtedness matures or becomes due.

 

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Section 3.22. No Other Representations And Warranties . Except for the specific representations and warranties contained in this Article III (in each case as modified by the Disclosure Schedules hereto), neither Seller nor any other Person makes any express or implied representation or warranty, including with respect to Seller, the Company or any Company Subsidiary or the transactions contemplated by this Agreement, and Seller disclaims any other representations or warranties, whether made by Seller, any of its Affiliates or any of their respective officers, directors, direct or indirect equity holders, managers, employees, agents or other Representatives. Any documents, title information, assessments, surveys, plans, specifications, reports and studies or other information made available to Buyer by or on behalf of Seller, including any information made available to Buyer on any electronic data room (collectively, “ Review Documents ”) are provided as information only. Buyer shall not rely upon any Review Document(s) in lieu of conducting its own due diligence. Except for the specific representations and warranties contained in this Article III (in each case as modified by the Disclosure Schedules hereto), Seller has not made, does not make and has not authorized anyone else to make any representation as to: (a) the accuracy, reliability or completeness of any of the Review Documents; (b) the condition of any building(s), structures or other improvements at the Leased Real Property; (c) the operating condition of the properties or assets of the Company and the Company Subsidiaries; (d) the Environmental Conditions of the Leased Real Property INCLUDING THE PRESENCE OR ABSENCE OF ANY HAZARDOUS SUBSTANCES; (e) the enforceability of, or Buyer’s ability to obtain the benefits of, any agreement of record affecting the Company or the Company Subsidiaries; (f) the transferability or assignability of any Contract or Permit; or (g) any other matter or thing affecting or relating to the Company, the Company Subsidiaries or the LLC Interests. SELLER HEREBY DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY REPRESENTATION, WARRANTY, PROJECTION, FORECAST, STATEMENT, OR INFORMATION MADE, COMMUNICATED OR FURNISHED (ORALLY OR IN WRITING) TO BUYER OR ITS AFFILIATES OR REPRESENTATIVES (INCLUDING ANY OPINION, INFORMATION, PROJECTION OR ADVICE THAT MAY HAVE BEEN OR MAY BE PROVIDED TO BUYER BY ANY DIRECTOR, OFFICER, MANAGER, EMPLOYEE, AGENT, CONSULTANT OR REPRESENTATIVE OF SELLER OR ANY OF THEIR RESPECTIVE AFFILIATES) EXCEPT AS EXPRESSLY PROVIDED FOR IN THE TRANSACTION DOCUMENTS. SELLER MAKES NO REPRESENTATIONS OR WARRANTIES TO BUYER REGARDING THE PROBABLE SUCCESS, PROFITABILITY OR VALUE OF ANY OF THE COMPANY AND THE COMPANY SUBSIDIARIES.

ARTICLE IV

R EPRESENTATIONS AND W ARRANTIES OF B UYER

Buyer represents and warrants to Seller that:

Section 4.01. Organization and Qualification . Buyer is a Delaware corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. Buyer is duly qualified to do business (where such concept is applicable) in each jurisdiction where the nature of its business or the ownership of its assets makes such qualification necessary, except where the failure to be so licensed or qualified would not reasonably be expected, individually or in the aggregate, to interfere with, prevent or materially delay the ability of Buyer to enter into and perform its obligations under this Agreement or consummate the transactions contemplated hereby. Buyer has the company power and authority necessary to own or lease its properties and assets and to carry on its business as presently conducted in all material respects.

 

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Section 4.02. Authorization . Buyer has all requisite organizational power and authority to execute and deliver this Agreement and each other Transaction Document to be executed by Buyer and to perform its obligations hereunder and thereunder and to consummate the transactions contemplated on its part hereby and thereby. This Agreement and each Transaction Document to be executed by Buyer has been duly authorized, executed and delivered by Buyer and, assuming that this Agreement has been duly and validly authorized, executed and delivered by Seller, constitutes a valid and binding agreement of Buyer, enforceable against Buyer in accordance with its terms, except as limited by Laws affecting the enforcement of creditors’ rights generally, by general equitable principles or by the discretion of any Governmental Authority before which any Action seeking enforcement may be brought (regardless of whether enforcement is sought in a proceeding at law or in equity).

Section 4.03. Non-contravention . The execution, delivery and performance by Buyer of this Agreement and the other Transaction Documents to be executed by Buyer, and the consummation of the transactions contemplated hereby and thereby, and the fulfillment of and the performance by Buyer of its obligations hereunder and thereunder do not and will not (a) violate any provision of the Organizational Documents of Buyer, (b) violate or result in a breach of, or constitute a default or require a consent under or give rise to any right of termination or other action by any Person under, any provision of any Contract to which Buyer is party, (c) assuming compliance with the matters referred to in Section 4.04 , violate or result in a breach of any Law of any Governmental Authority applicable to Buyer, or (d) result in the creation or imposition of any material Lien on any asset of Buyer (except, in the case of clauses (b) , (c) and (d) , as would not reasonably be expected, individually or in the aggregate, to interfere with, prevent or materially delay the ability of Buyer to enter into and perform its obligations under this Agreement or consummate the transactions contemplated by the Transaction Documents).

Section 4.04. Governmental Authorization . The execution, delivery and performance by Buyer of this Agreement and other Transaction Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby require no action by or in respect of, or consent from or filing with, any Governmental Authority, other than (a) compliance with any applicable requirements of the HSR Act, and (b) any such action or filing the failure of which to be made or obtained would not reasonably be expected, individually or in the aggregate, to interfere with, prevent or materially delay the ability of Buyer to enter into and perform its obligations under this Agreement or consummate the transactions contemplated by the Transaction Documents.

Section 4.05. Litigation . As of the date hereof, there are no Actions pending or, to the knowledge of Buyer, threatened against Buyer by or before any Governmental Authority, except for such Actions as would not reasonably be expected, individually or in the aggregate, to interfere with, prevent or materially delay the ability of Buyer to enter into and perform its obligations under this Agreement or the other Transaction Documents or consummate the transactions contemplated hereby or thereby. There is no order, writ, judgment, award, ruling injunction, decree or consent decree entered by or with any Governmental Authority purporting

 

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to enjoin or restrain the execution, delivery and performance by Buyer of this Agreement or the other Transaction Documents or the transactions contemplated hereby or that would reasonably be expected, individually or in the aggregate, to interfere with, prevent or materially delay the ability of Buyer to enter into and perform its obligations under this Agreement or the other Transaction Documents or consummate the transactions contemplated hereby or thereby.

Section 4.06. Solvency . Buyer is not entering into this Agreement or the transactions contemplated hereby with the actual intent to hinder, delay or defraud present or future creditors of Buyer or any of its Affiliates. After giving effect to the transactions contemplated by this Agreement, at and immediately after the Closing, Buyer and each of its Subsidiaries (including each of the Company and the Company Subsidiaries) (a) will be solvent (in that both the fair value of its assets will not be less than the sum of its indebtedness (including a reasonable estimate of any contingent Liabilities) and that the present fair saleable value of its assets will not be less than the amount required to pay its probable Liability on its recourse indebtedness as such indebtedness matures or becomes due), (b) will have adequate capital and liquidity with which to engage in its business, and (c) will not have incurred and does not plan to incur indebtedness beyond its ability to pay as such indebtedness matures or becomes due.

Section 4.07. Brokers . Except for Bank of America Merrill Lynch, whose fees and expenses shall be paid by Buyer, no Person is or will be entitled to a broker’s, finder’s, investment banker’s, financial adviser’s or similar fee from Buyer or any Person acting on its behalf in connection with this Agreement or any of the transactions contemplated hereby.

Section 4.08. Purchase for Investment . Buyer is purchasing the LLC Interests for investment for its own account and not with a view to, or for sale in connection with, any distribution thereof. Buyer is an “accredited investor” as defined in Regulation D promulgated by the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “ Securities Act ”). Buyer (either alone or together with its advisors) has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in the LLC Interests and is capable of bearing the economic risks of such investment. Buyer acknowledges that the LLC Interests have not been registered under any federal, state or foreign securities Laws (including the Securities Act) and that the LLC Interests may not be sold, transferred, offered for sale, pledged, hypothecated or otherwise disposed of unless such transfer, sale, assignment, pledge, hypothecation or other disposition is registered under applicable federal, state or foreign securities Laws (including the Securities Act) or is effected pursuant to an exemption from registration under applicable federal, state or foreign securities Laws (including the Securities Act).

Section 4.09. Acknowledgements by Buyer .

(a) Buyer acknowledges and agrees that it has conducted its own independent review and analysis of the Company and the Company Subsidiaries and their assets, financial condition, results of operations and prospects. Buyer is an informed and sophisticated purchaser, and has engaged expert advisors and Representatives, experienced in the evaluation and purchase of companies, property and assets such as the Company and the Company Subsidiaries and their properties and assets and the LLC Interests as contemplated hereunder. Buyer has undertaken such investigation and has been provided with and has evaluated such documents and

 

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information as it has deemed necessary to enable it to make an informed and intelligent decision with respect to the execution, delivery and performance of this Agreement and has relied solely upon its own investigation and the express representations and warranties set forth in this Agreement. Buyer acknowledges that Seller has given Buyer access to the employees, documents and facilities of the Company and the Company Subsidiaries for the purpose of evaluating the transaction contemplated by the Transaction Documents.

(b) Buyer acknowledges and agrees that none of Seller, the Company, the Company Subsidiaries or its or their Affiliates or any other Person acting on behalf of them (i) has made any representation or warranty, express or implied, including as to the condition, merchantability, suitability or fitness for a particular purpose of any assets of or held by the Company and the Company Subsidiaries, or (ii) has made any representation or warranty, express or implied, as to the accuracy or completeness of any information regarding the Company and the Company Subsidiaries, in each case except as expressly set forth in this Agreement.

(c) Buyer acknowledges and agrees that the properties and assets of the Company and the Company Subsidiaries and the LLC Interests are sold “as is”, except as expressly set forth in this Agreement or any other agreement or certificate executed and delivered in connection herewith, including the Transaction Documents. Buyer agrees to accept the properties and assets of the Company and the Company Subsidiaries in the condition they are in on the Closing Date based on its own inspection, examination and determination with respect to all matters, and without reliance upon any express or implied representations or warranties of any nature made by or on behalf of or imputed to Seller, except as expressly set forth in this Agreement or any other agreement or certificate delivered in connection herewith, including the Transaction Documents.

(d) In connection with Buyer’s investigation of the Company and the Company Subsidiaries, Buyer has received certain projections, including projected statements of operating revenues and income from operations of the Company and the Company Subsidiaries and certain budget and business plan information. Buyer acknowledges and agrees that there are uncertainties inherent in attempting to make such estimates, projections and other forecasts and plans, and that Buyer is familiar with such uncertainties and that Buyer is taking full responsibility for making its own evaluation of the adequacy and accuracy of all estimates, projections and other forecasts and plans so furnished to it, including the reasonableness of the assumptions underlying such estimates, projections and forecasts. Accordingly, Buyer acknowledges and agrees that Seller does not make any representation or warranty with respect to such estimates, projections and other forecasts and plans, including the reasonableness of the assumptions underlying such estimates, budgets, projections and forecasts (or any component thereof).

Section 4.10. Availability of Funds . Buyer has access to immediately available funds in a quantity sufficient to pay the Preliminary Purchase Price, any adjustments to the Preliminary Purchase Price hereunder and all of the other fees, costs and expenses to be paid by Buyer under this Agreement.

 

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Section 4.11. Guarantee . Concurrently with the execution of this Agreement, Guarantor and Buyer have delivered to the Company the Guarantee, dated as of the date hereof, in respect of Buyer’s obligations under this Agreement. The Guarantee is in full force and effect and is a valid and binding obligation of the Guarantor, enforceable against the Guarantor in accordance with its terms and no event has occurred which, with notice or lapse of time or both, could constitute a default on the part of the Guarantor under such Guarantee.

ARTICLE V

C OVENANTS

Section 5.01. Conduct of the Business . From the date hereof until the Closing Date, except as set forth in Schedule 5.01 , as required by applicable Law, as permitted or contemplated by this Agreement or the other Transaction Documents, or otherwise with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller shall cause the Company and the Company Subsidiaries to conduct their business, including renewing all permits and liquor licenses as they become eligible for renewal, in all material respects in the ordinary course of business consistent with past practice. For the Asset Management Business, Seller shall continue to operate such business in a manner to achieve the transfer as outlined in Schedule 2.09 and shall use its commercially reasonable efforts to operate such business in a manner designed to cause the Company and the Company Subsidiaries not to incur any liabilities that will not be transferred prior to the Closing to the extent provided in Section 2.09 . Notwithstanding the foregoing, from the date hereof until the Closing Date, except as set forth in Schedule 5.01 , as required by applicable Law, as permitted or contemplated by this Agreement or the other Transaction Documents, or otherwise with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller shall cause the Company and the Company Subsidiaries not to:

(a) amend or modify the Organizational Documents of the Company or any of the Company Subsidiaries, except, with the consent of Buyer, in connection with the organization of new Subsidiaries in connection with the performance of any existing hotel management agreement or any new hotel management agreement permitted under this Section 5.01 ;

(b) merge or consolidate with, or purchase all or substantially all of the stock (or other equity interests) or assets of, or otherwise acquire the business of, any other Person, except pursuant to Contracts in existence on the date hereof, as specifically identified in Schedule 5.01(b) ;

(c) sell, transfer, lease, license or otherwise dispose of the stock (or other equity interest) or assets of the Company or any of the Company Subsidiaries, except, in the case of any sale, transfer, lease, license or disposal of assets, in the ordinary course of business that do not exceed $25,000 individually or $200,000 in the aggregate and, in each case, except pursuant to Contracts in existence on the date hereof as specifically identified in Schedule 5.01(c) ;

(d) issue any capital stock or other equity interests of, or become a party to any subscriptions, warrants, rights, options, convertible securities, voting or other similar agreements or commitments relating to the capital stock or other equity interests of the Company or any of the Company Subsidiaries, except (i) pursuant to Contracts in existence on the date hereof as

 

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specifically identified in Schedule 5.01(d) or (ii) for the organization, with the consent of Buyer, of new Subsidiaries in connection with the performance of any existing hotel management agreement or any new hotel management agreement permitted under this Section 5.01 ; provided that organization of new Subsidiaries formed for purposes of employment or liquor licenses related to any such permitted new hotel management agreement shall not require consent of Buyer;

(e) make any change in any method of accounting or accounting practice or policy, except as required by applicable Law or GAAP;

(f) increase the compensation or benefits payable to any officer or director of the Company or any Company Subsidiary or grant any retention, severance or termination pay to any officer or director of the Company or any Company Subsidiary, except (i) as required by applicable Law or the terms of any Company Plan, any Severance Arrangement or any other Contract in existence on the date hereof and identified in Schedule 5.01(f) or (ii) to the extent any such compensation or benefits or retention, severance or termination pay is to be paid by Seller;

(g) hire any corporate office-level employee with an annual compensation level, including bonuses, at or above $100,000; for the avoidance of doubt, the foregoing shall not restrict the hiring of any hotel-level employee on behalf of, and at the cost of, the hotel owner;

(h) adopt or enter into any new Company Plan or amend or modify in any material respect or terminate any existing Company Plan, except as required by applicable Law or the terms of any Company Plan or any Contract in existence on the date hereof;

(i) make any loans or advances to, or equity investments in, any Person, except (i) pursuant to Contracts in existence on the date hereof, as specifically identified in Schedule 5.01(h) or (ii) advancement of trade credit to customers or expenses to employees or hotel owners in the ordinary course of business;

(j) except with respect to hotel management agreements (which are addressed in Section 5.01(k) ), amend, waive any rights under, or modify in any material respect adverse to the Company or terminate any Material Contract, except renewal in the ordinary course of business prior to the expiration of such Material Contract, provided that (i) such renewal is on terms no less favorable to the Company as the expiring Material Contract, and (ii) such renewed contract is terminable at will by the Company or the Company Subsidiary;

(k) enter into any new hotel operating agreement or any letter of intent with respect to hotel management, or amend, waive any rights under, modify, terminate or renew any existing hotel management agreement, without the prior written consent of Buyer;

(l) make, or commit to make, any capital expenditure, except, (i) pursuant to any Contracts in existence on the date hereof, (ii) pursuant to any other Contract entered into by the Company after the date hereof with the written consent of Buyer, (iii) for capital expenditures not to exceed $50,000 individually or $200,000 in the aggregate, (iv) as may be required in an emergency context, but only up to such amount necessary to address the immediate emergency situation with the intention of minimizing or otherwise mitigating the adverse consequences of

 

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the situation in relation to the Company and/or the Company Subsidiaries or (v) capital expenditures made at any individual hotel property on behalf of the applicable hotel owner, provided that all such capital expenses are reimbursable by the hotel owner;

(m) enter into any new Bargaining Agreement or amend, waive any rights under, or modify in any material respect adverse to the Company, any existing Bargaining Agreement,;

(n) cancel, compromise or settle any Action, except any settlement involving a payment of less than $150,000 plus any amount(s) subject to reimbursement from any insurance provider or applicable hotel owner, provided that the settlement is for monetary consideration only with no admission of liability and is in full and final settlement and with no restriction on the future operations of the business of the Company and the Company Subsidiaries. For the avoidance of doubt, the undertaking in a settlement agreement of customary obligations such as a non-disparagement or similar employment-related covenants that are immaterial to the operation of the business of the Company and the Company Subsidiaries shall not be deemed to be a restriction on the future operations of the business of the Company and the Company Subsidiaries;

(o) (i) make or change any Tax election, (ii) adopt or change any method of Tax accounting, (iii) compromise or settle any Tax Liability or (iv) amend any Tax Return, in each case except if such action would not have a material adverse effect on the Tax Liability of Buyer, the Company or any Company Subsidiary following the Closing;

(p) except as expressly contemplated in Schedule 2.09 , enter into any new renovation services or development services agreements or any other Contract requiring the Company and the Company Subsidiaries to perform services similar to those required by the Contracts set forth in Schedule 5.01(j) ; or

(q) agree or commit to do any of the foregoing.

For the avoidance of doubt, prior to Closing, Seller shall be permitted to (A) cause each of the Company and the Company Subsidiaries to dividend, distribute or otherwise pay to Seller, any of its Affiliates or any of its direct or indirect equity holders any Cash (other than Restricted Cash) of such Person and (B) remove, or cause the Company and the Company Subsidiaries to remove, and pay to Seller, any of its Affiliates or any of its direct or indirect equity holders any Cash (other than Restricted Cash) held in any bank account, and (C) cause the Company and the Company Subsidiaries to take any of the actions described in clauses (a) through (p) above to the extent related to the conduct of the Asset Management Business.

Without in any way limiting any Party’s rights or obligations under this Agreement, the Parties understand and agree that prior to Closing nothing contained in this Agreement shall give Buyer, directly or indirectly, the right to control or direct the operation of the Company and the Company Subsidiaries, and prior to Closing, Seller, the Company and the Company Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their respective businesses and operations.

Prior to Closing, Seller shall cause the Company and the Company Subsidiaries to pursue extensions of contracts, letters of intent and ongoing pursuit and negotiation of new hotel

 

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management agreement opportunities in the ordinary course of business, including those extensions, letters of intent and new hotel management agreement opportunities as of the date hereof as set forth on Schedule 5.01 , subject to the limitations of this Section 5.01 requiring consent of Buyer to execute such agreements. Seller will provide information to Purchaser at Purchaser’s written request with regard to the progress of such matters.

Section 5.02. Pre-Closing Access and Information .

(a) From the date hereof until the Closing Date, Seller shall, and shall cause the Company and the Company Subsidiaries to, (i) afford Buyer and its Representatives reasonable access to the offices, properties, books and records of the Company and the Company Subsidiaries during normal business hours and upon reasonable prior written notice, (ii) furnish to Buyer and its Representatives such financial and operating data and other information relating to the Company and the Company Subsidiaries as such Persons may reasonably request and (iii) cause the employees, counsel and financial advisors of the Company and the Company Subsidiaries to cooperate with Buyer solely in connection with clauses (i)  and (ii)  above; provided that Buyer acknowledges that such books and records, data and other information shall be provided by Seller, the Company and the Company Subsidiaries in a manner consistent with the information provided to Buyer prior to the date hereof; provided , further , that none of Seller, the Company or the Company Subsidiaries shall be required to (x) provide access or information related to individual hotel properties or (y) facilitate or cooperate with any investigation pursuant to this Section 5.02 unless, with respect to (i) and (ii), such access or investigation is conducted in such manner as not to unreasonably interfere with the conduct of the business of Seller, the Company and the Company Subsidiaries; provided , further , that any such access pursuant to this Section 5.02 must be coordinated through Seller’s Chief Financial Officer and Chief Accounting Officer.

(b) Notwithstanding the foregoing, (i) prior to the Closing Date Buyer shall not have access to (A) personnel records of the Company Employees, including records relating to individual performance or evaluation records, medical histories, individual employee benefit information or other information to the extent that the disclosure of which could, in the reasonable opinion of the Seller, subject Seller, the Company, the Company Subsidiaries or any of their respective Affiliates or direct or indirect equity holders to risk of Liability and (B) any properties of Seller, the Company, the Company Subsidiaries or any of their respective Affiliates or direct or indirect equity holders for purposes of conducting any environmental sampling or testing and (ii) Seller, the Company, the Company Subsidiaries and their respective Affiliates or direct or indirect equity holders may withhold (A) any information relating to the sale process, bids received from other Persons in connection with the transactions contemplated by this Agreement and information and analysis (including financial analysis) relating to such bids and (B) prior to the Closing Date, any document or information, the disclosure of which could reasonably be expected to violate any Contract or any Law, result in the loss of protectable interests in trade secrets, or result in the waiver of any legal privilege or work-product privilege ( provided that, in the case of this clause (B) , Seller shall give notice to Buyer of the fact that such documents or information are being withheld and thereafter Seller shall use its commercially reasonable efforts to cause such documents or information, as applicable, to be made available in a manner that would not reasonably be expected to cause such a violation, disclosure or waiver).

 

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(c) Buyer acknowledges and agrees that, notwithstanding anything to the contrary in this Agreement, all documents, materials, communications, analyses and other information relating to (x) the sale process, bids received from Buyer and other Persons in connection with the transactions contemplated by this Agreement and (y) the Asset Management Business (the “ Asset Management Information ”) that are in the possession of the Company or any of the Company Subsidiaries as of the date hereof and through the Closing will be transferred to Seller prior to or as of the Closing and, subject to Section 5.14(c) , Seller shall not be required to grant access to such documents, materials and other information to Buyer or any of its Affiliates at any time. Notwithstanding the foregoing, upon Buyer’s written request, Seller shall provide to the Company, at the Closing, any confidentiality agreements executed in connection with the sale process to enable Buyer to enforce any breach by a third party of such confidentiality obligations that may potentially harm the business of the Company and the Company Subsidiaries.

(d) Seller, the Company and the Company Subsidiaries shall have the right to have one or more Representatives present at all times during any inspections, interviews and examinations provided for in this Section 5.02 . Buyer shall hold in confidence all such information disclosed, whether before or after the date hereof, pursuant to the terms and subject to the conditions contained in the Confidentiality Agreement and such information shall not be used by any Person, other than in connection with the transactions contemplated hereby or as otherwise expressly permitted by the Confidentiality Agreement.

(e) Notwithstanding anything to the contrary contained herein, prior to Closing, without the prior written consent of Seller, and except in accordance with and pursuant to an agreed integration plan with respect to the Company and the Company Subsidiaries, Buyer shall not contact any hotel owners, Company Employees or any vendors to, or customers of, Seller, the Company and the Company Subsidiaries or any of their respective Affiliates regarding the Company and the Company Subsidiaries, this Agreement or the transactions contemplated hereby.

Section 5.03. Regulatory Filings .

(a) Subject to the terms and conditions of this Agreement, each Party shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary or desirable under applicable Law to consummate the transactions contemplated by this Agreement, including (i) preparing and filing as promptly as practicable with any Governmental Authority all documentation necessary to effect all filings, notices, petitions, statements, registrations, submissions of information, applications and other documents and (ii) obtaining and maintaining all approvals, consents, registrations, permits, authorizations and other confirmations, in each case, required to be made with or obtained from any Governmental Authority that are necessary, proper or advisable to consummate the transactions contemplated by this Agreement (collectively, the “ Regulatory Approvals ”). In furtherance and not in limitation of the foregoing, each Party and their respective Affiliates shall not extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, except with the prior written consent of the other Party hereto.

 

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(b) In furtherance and not in limitation of the foregoing, each Party shall, and shall cause their respective Affiliates to, (i) make or cause to be made all filings required of such Party or any of its Affiliates under the HSR Act with respect to the transactions contemplated hereby as promptly as practicable and, in any event, on or before December 31, 2014, (ii) respond as promptly as practicable to any request under the HSR Act for additional information, documents, or other materials received by such Party or any of its Affiliates from any Governmental Authority in respect of such filings or such transactions and (iii) cooperate with the other Parties in connection with any such filing and in connection with resolving any investigation or other inquiry of any Governmental Authority under the HSR Act with respect to any such filing or any such transaction. Each Party shall use its reasonable best efforts to furnish to the other Parties all information required for any application or other filing to be made pursuant to any applicable Law in connection with the transactions contemplated by this Agreement (including, to the extent permitted by Law and subject to reasonable confidentiality considerations, responding to any reasonable requests for copies of documents filed with the non-filing Party’s prior filings). Any Party may, as it deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other Parties under this Section 5.03 as “outside counsel only.” Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient, and the recipient shall cause such outside counsel not to disclose such materials or information to any employees, officers, directors or other Representatives of the recipient or their Affiliates, unless express written permission is obtained in advance from the source of the materials. Each Party shall promptly inform the other Parties of any oral communication with, and provide copies of written communications with, any Governmental Authority regarding any such filings or any such transaction. No Party shall independently participate in any meeting or telephone conference with any Governmental Authority in respect of any such filings, investigation, or other inquiry without giving the other Party prior notice of the meeting and, to the extent permitted by such Governmental Authority, the opportunity to attend and/or participate. Subject to applicable Law, the Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party relating to proceedings under the HSR Act. Buyer shall pay all filing fees in connection with all filings under the HSR Act.

(c) In furtherance and not in limitation of the actions and obligations described in Section 5.03(b) , Buyer shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Authority with respect to the transactions contemplated by this Agreement under the HSR Act. In connection therewith, if any Action is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as in violation of the HSR Act, Buyer shall use its reasonable best efforts to contest and resist any such Action, and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, limits, delays or restricts consummation of the transactions contemplated by this Agreement, including by pursuing all available avenues of administrative and judicial appeal, unless, (i) by mutual agreement, the Parties agree that litigation is not in their respective best interests, or (ii) counsel to Buyer advises (after a review of the facts and available precedent) that there is no reasonable basis for litigation resisting such Action and no reasonable expectation of success. Buyer shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods under the HSR Act with respect to such transactions as promptly as possible after the execution of this Agreement.

 

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(d) Subject to the provisions set forth at the end of this Section 5.03(d) , Buyer further agrees that it shall, and shall cause its Affiliates to, to the extent necessary to obtain the waiver or consent from any Governmental Authority required to satisfy the conditions set forth in Section 8.01(a) , Section 8.01(b) or Section 8.01(c) , as applicable, or to avoid the entry of or have lifted, vacated or terminated any preliminary injunction or other order, take the following actions: (i) propose, negotiate, offer to commit and effect (and if such offer is accepted, commit to and effect), by consent decree, hold separate order or otherwise, and in connection with the consummation of the transactions contemplated by this Agreement and the other Transaction Documents, the sale, divestiture or disposition (including by licensing any Intellectual Property) of any assets of the Company and the Company Subsidiaries and/or any other assets or businesses of Buyer or any of its Affiliates (or equity interests held by Buyer or any of its Affiliates in entities with assets or businesses); (ii) terminate any existing relationships and contractual rights and obligations; (iii) otherwise offer to take or offer to commit to take any action that it is capable of taking and, if the offer is accepted, take or commit to take such action, that limits its freedom of action with respect to, or its ability to retain, any of the assets of the Company and the Company Subsidiaries and/or any other assets or businesses of Buyer or any of its Affiliates (or equity interests held by Buyer or any of its Affiliates in entities with assets or businesses); and (iv) subject to clause (ii)  of the second sentence of Section 5.03(c) , take promptly, in the event that any permanent or preliminary injunction or other order is entered or becomes reasonably foreseeable to be entered in any Action that would make consummation of the transactions contemplated by this Agreement and the other Transaction Documents unlawful or that would prevent or materially delay consummation of the transactions contemplated by this Agreement and the other Transaction Documents, any and all steps (including the appeal thereof, the posting of a bond or the taking of the steps contemplated by clauses (i) , (ii)  and (iii)  of this Section 5.03(d) ) necessary to vacate, modify or suspend such injunction or order. Notwithstanding the foregoing or any other provision of this Agreement, Buyer shall not be required to agree to any terms and conditions which would materially adversely affect the Buyer’s and its Affiliates’ existing businesses or the business of the Company and the Company Subsidiaries. With respect to the foregoing, in deciding if any terms and conditions would materially adversely affect (i) the Buyer’s (and its Affiliates’) existing business, any such decision may be made in Buyer’s discretion, and, (ii) the business of the Company and the Company Subsidiaries, any such decision will be made in Buyer’s reasonable discretion after consultation with Seller. If any terms and conditions proposed by any Governmental Authority in connection with obtaining antitrust clearance under the HSR Act would have a material adverse effect on Buyer’s and its Affiliates’ existing businesses or the business of the Company and the Company Subsidiaries, Buyer agrees that it will consult with Seller and attempt in good faith to work with Seller and such Government Entity to develop a counter proposal that would eliminate such material adverse effect on Buyer and/or its Affiliates or the business of the Company and the Company Subsidiaries. Buyer’s obligation to develop such a counter proposal shall cease if Buyer reasonably determines after good faith consultation with Seller, that such efforts to develop such a counter proposal are no longer reasonably likely to succeed in eliminating either such material adverse effects or a Governmental Authority’s antitrust objections to the transactions contemplated by this Agreement.

 

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Section 5.04. Affiliate Transactions . Except as contemplated by this Agreement and the other Transaction Documents, Buyer acknowledges and agrees that all Affiliate Transactions, and all rights and obligations of the Company and the Company Subsidiaries under Contracts with respect thereto, will be terminated at or prior to the Closing, with no further Liability of Seller, on the one hand, or Buyer or the Company and the Company Subsidiaries, on the other hand, with respect thereto.

Section 5.05. Third Party Approvals and Permits . Except with respect to Regulatory Approvals which are addressed in Section 5.03 , subject to the terms and conditions of this Agreement, prior to the Closing, each Party shall, and shall cause its respective Subsidiaries to, cooperate with the other Party and use commercially reasonable efforts to (i) obtain the consents, waivers, approvals, orders and authorizations (the “ Third Party Approvals ”) necessary to transfer and assign the rights under any Material Contract that require any such consent, waiver, approval, order or authorization (each, a “ Non-Assignable Contract ”) and (ii) provide all notices and otherwise take all actions to transfer, reissue or obtain any Permits required to be transferred, reissued or obtained as a result of or in furtherance of the transactions contemplated by this Agreement and that are material to the Company and the Company Subsidiaries. Notwithstanding the foregoing, none of Seller, the Company or any Company Subsidiary shall be required to incur any Liabilities or provide any financial accommodation in order to obtain any such Third Party Approval or Permit with respect to the transfer or assignment of any such Non-Assignable Contract or the issuance of any such Permit. Notwithstanding anything to the contrary contained herein, each Party acknowledges and agrees that the successful procurement of any Third Party Approval with respect to any Non-Assignable Contract pursuant to this Section 5.05 is not a condition to any Party’s obligation to effect the Closing.

Section 5.06. Insurance . Seller shall use commercially reasonable efforts to, and to cause the Company and the Company Subsidiaries to, continue to carry their existing insurance policies up to the Closing, and shall use commercially reasonable efforts to prevent any breach, default or cancellation (other than expiration and replacement of policies in the ordinary course of business) of such insurance policies.

Section 5.07. Confidentiality .

(a) Buyer acknowledges and agrees that the Confidentiality Agreement shall remain in full force and effect until the Closing and that any books and records, data and other information provided to Buyer between the date hereof and the Closing shall be considered Evaluation Material (as such term is defined in the Confidentiality Agreement) and afforded all protections provided therein. Effective upon, and only upon, the Closing, the Confidentiality Agreement shall terminate; provided , that effective upon the Closing, Buyer and its Affiliates shall not initiate or maintain, directly or indirectly through any of its Representatives or otherwise, any contact with any direct or indirect equity holder of Seller or any of their respective partners, members, Affiliates, directors, officers, employees, controlling persons, agents or representatives regarding the transactions contemplated by this Agreement, the Company’s business, operations, prospects or finances, except with the express permission of Seller and except to the extent that the Company and the Company Subsidiaries have a separate commercial relationship with any such Person, in the ordinary course of business of the Company and the Company Subsidiaries in respect of such relationship.

 

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(b) Seller shall not, and shall cause its Representatives not to, directly or indirectly, for a period of three (3) years after the Closing Date, without the prior written consent of Buyer, disclose to any third party (other than each other and their respective Representatives) any confidential or proprietary information related to the Company and the Company Subsidiaries; provided that the foregoing restriction shall not (i) apply to any information (A) generally available to, or known by, the public (other than as a result of disclosure in violation of this Section 5.07(b) ), (B) independently developed by Seller without reference to or use of the applicable confidential or proprietary information, (C) any financial or other information disclosed or otherwise made available by Seller to its equity holders in their capacity as such, or (D) to the extent related to the Asset Management Business, or (ii) prohibit any disclosure (A) required by Law so long as, to the extent legally permissible and feasible, Seller provides Buyer with reasonable prior notice of such disclosure and a reasonable opportunity to contest such disclosure or (B) made in connection with the enforcement of any right or remedy relating to this Agreement or any of the other Transaction Documents or the transactions contemplated hereby or thereby. Notwithstanding anything to the contrary set forth in this Section 5.07(b) , Seller and its Representatives shall be deemed to have satisfied their obligations hereunder with respect to confidential or proprietary information related to the Company and the Company Subsidiaries if they exercise the same degree of care (but no less than a reasonable degree of care) as they take to preserve confidentiality for their own similar information.

(c) Buyer shall not, and shall cause its Representatives, Subsidiaries (including the Company and the Company Subsidiaries) and other Affiliates not to, directly or indirectly, for a period of three (3) years after the Closing Date, without the prior written consent of Seller, disclose to any third party (other than each other and their respective Representatives) any confidential or proprietary information related to Seller; provided that the foregoing restriction shall not (i) apply to any information (A) generally available to, or known by, the public (other than as a result of disclosure in violation of this Section 5.07(c) ) or (B) independently developed by Buyer or any of its Subsidiaries without reference to or use of the applicable confidential or proprietary information, or (ii) prohibit any disclosure (A) required by Law so long as, to the extent legally permissible and feasible, Buyer provides Seller with reasonable prior notice of such disclosure and a reasonable opportunity to contest such disclosure or (B) made in connection with the enforcement of any right or remedy relating to this Agreement or any of the other Transaction Documents or the transactions contemplated hereby or thereby. Notwithstanding anything to the contrary set forth in this Section 5.07(c) , Buyer and its Subsidiaries, Affiliates and Representatives shall be deemed to have satisfied their obligations hereunder with respect to confidential or proprietary information related to Seller if they exercise the same degree of care (but no less than a reasonable degree of care) as they take to preserve confidentiality for their own similar information.

Section 5.08. Non-Competition; Non-Solicitation .

(a) For a period of two (2) years from and after the Closing (the “ Restricted Period ”), Seller agrees that it shall not, directly or indirectly, be involved in (i) developing any new Hotel Brand (as defined below) or (ii) providing hotel management services to third parties, in each case, to the extent in the upscale or upper upscale segment as determined by Smith Travel Research that is comparable to those hotels that are considered to be, and compete with, other boutique and lifestyle brands such as Hotel Indigo, Kimpton, Monaco, Palomar, Autograph,

 

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Curio, Aloft, AC Hotels, W, Canopy, Edition, etc., relative to their style, service offerings, targeted customer base and price segments as of the Closing Date (collectively, a “ Restricted Business ”). For the avoidance of doubt, the foregoing will not preclude Seller from engaging and continuing to engage in the business of (i) raising capital and operating investment funds for the purpose of buying, selling, developing and/or owning hotels or (ii) managing the hotels acquired, developed or owned by Seller, its Affiliates or third parties, so long as such activities do not constitute a Restricted Business. “ Hotel Brand ” shall mean the naming or identification of a hotel and its services which name or identification is associated with or intended to be associated with more than one hotel.

(b) Notwithstanding the provisions of Section 5.08(a) , (i) Seller may own not more than ten percent (10%) of the equity interests of any Person that is engaged in any Restricted Business, so long as Seller does not manage or exercise control over any such Person or otherwise take any part in any of its businesses, other than exercising its rights as a shareholder, and (ii) Seller shall not be prohibited from acquiring (whether by means of acquisition, asset purchase, merger, consolidation, similar business combination or otherwise) a Person engaged in a Restricted Business together with other lines of business if (A) the portion of the revenues of such Person and its Affiliates on a consolidated basis for the last fiscal year ending prior to the date of such acquisition that are attributable to the Restricted Business by such Person and its Affiliates account for less than twenty five percent (25%) of the revenues of such Person and its Affiliates on a consolidated basis for such fiscal year, or (ii) Seller uses its commercially reasonable efforts to divest that portion of such Person or business that engages in the Restricted Business within twelve (12) months after its acquisition of such Person or Restricted Business.

(c) For a period of eighteen (18) months from and after the Closing Date, Seller shall not, directly or indirectly:

(i) request, induce or attempt to influence any Company Employee (other than those Company Employees set forth on Schedule 5.08 ) to terminate his or her employment with or service to Buyer or the Company and the Company Subsidiaries; or

(ii) hire or employ, or solicit the employment of, or make or extend any offer of employment to, any Company Employee (other than those Company Employees set forth on Schedule 5.08 ) who is then employed by Buyer, the Company or the Company Subsidiaries.

Nothing in this Section 5.08(c) shall restrict or prevent Seller from making generalized searches for employees by the use of advertisements in the media of any form (including trade media) or by engaging search firms that are not instructed to directly solicit the Company Employees or, in either case, hiring any Company Employee who responds to such generalized searches or search firm solicitations.

(d) Seller acknowledges and agrees that Buyer may be irreparably damaged if any provision of this Section 5.08 is not performed in accordance with its terms or otherwise is breached. Accordingly, Seller acknowledges and agrees that, notwithstanding any other provision of this Agreement, Buyer may be entitled, subject to a determination by a court of competent jurisdiction, to injunctive relief to prevent any failure of performance or breach and to enforce specifically this Section 5.08 and any of the terms and provisions hereof.

 

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(e) Seller will (i) reasonably cooperate with and assist Buyer in entering into (x) retention agreements with key personnel of the Company and the Company Subsidiaries as identified by Buyer and (y) consulting agreements with the senior executives identified on Schedule 5.08(e) (such agreements, the “ Consulting Agreements ”) and (ii) accomplish the transfer of those persons identified by Buyer and Seller pursuant to Schedule 2.09 without any post-Closing cost to the Company and the Company Subsidiaries.

Section 5.09. Public Announcements . The timing and content of all press releases or public announcements regarding any aspect of this Agreement or any other Transaction Document or the transactions contemplated hereby or thereby to the financial community, government agencies or the general public shall be mutually agreed upon in advance by the Parties. Notwithstanding the foregoing, each Party may make any such announcement that it in good faith believes, based on advice of counsel, is required by Law or any listing agreement with any national securities exchange to which such Party is subject; provided that such Party shall consult with and agree on the language of any such announcement with the other Party prior to any such announcement to the extent practicable, and shall in any event promptly provide the other Party with copies of any such announcement.

Section 5.10. Indemnification and Exculpation .

(a) From and after the Closing Date, subject to the express limitations in Section 5.10(h) , Buyer shall, and shall cause the Company and each Company Subsidiary to, indemnify, defend and hold harmless, to the fullest extent permitted under Law and the respective Organizational Documents of Seller, the Company and the Company Subsidiaries, in each case, in effect as of the date of this Agreement, the individuals who on or prior to the Closing Date were directors, managers, officers or employees of Seller, the Company or any Company Subsidiary (collectively, the “ D&O Indemnitees ”), as applicable, with respect to all acts or omissions by them in their capacities as such or taken at the request of Seller, the Company or the Company Subsidiaries on or prior to the Closing Date. Buyer agrees that, subject to Section 5.10(h) , all rights of the D&O Indemnitees to indemnification and exculpation from Liabilities for acts or omissions occurring at or prior to the Closing Date pursuant to any Organizational Documents or other arrangements of the Company and each of the Company Subsidiaries shall survive the Closing Date and shall continue in full force and effect to the same extent as on the Closing Date and in accordance with their terms, and otherwise to the fullest extent permitted by Law. Such rights shall not be amended, or otherwise modified in any manner that would adversely affect the rights of the D&O Indemnitees, unless such modification is required by applicable Law. In addition, Buyer shall cause the Company and each of the Company Subsidiaries to advance and pay any expenses of any D&O Indemnitee under this Section 5.10 (except in relation to the Asset Management Business or with respect to any portion of the Seller’s business expressly excluded as provided in Section 5.10(h) ) as incurred to the fullest extent permitted under Law and the Organizational Documents of Seller, the Company and the Company Subsidiaries in effect as of the date of this Agreement; provided that the Person to whom expenses are advanced provides an undertaking to repay such advances to the extent required by Law.

 

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(b) If any Action is asserted or made with respect to which a D&O Indemnitee may seek or obtain indemnification hereunder, any determination required to be made with respect to whether a D&O Indemnitee’s conduct complies with the standards set forth under Law or any Organizational Documents of Seller, the Company or the Company Subsidiaries shall be made by independent legal counsel with expertise in applicable Delaware law selected by such D&O Indemnitee and reasonably acceptable to Buyer and any D&O insurer of the Company, the Company Subsidiaries, or Buyer.

(c) Buyer and each D&O Indemnitee shall cooperate, and cause their respective Affiliates to cooperate, in the defense of any such Action and shall provide access to properties and individuals as reasonably requested and furnish or cause to be furnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.

(d) If Buyer, the Company or any of the Company Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that such successors and assigns of Buyer shall assume all of the obligations thereof set forth in this Section 5.10 .

(e) Buyer hereby acknowledges that any D&O Indemnitee may have certain rights to indemnification, advancement of expenses or insurance provided by the Seller, the Company or the Company Subsidiaries. Buyer hereby agrees that (i) it is the indemnitor of first resort (i.e., its obligations to such D&O Indemnitee are primary to the same extent as the obligation of Seller, the Company or any of the Company Subsidiaries as of the Closing Date, and any obligation of Seller, the Company and the Company Subsidiaries to advance expenses or to provide indemnification for the same expenses or liabilities incurred by such D&O Indemnitee are secondary, except in relation to the Asset Management Business or with respect to any portion of the Seller’s business expressly excluded as provided in Section 5.10(h) , which shall be sole responsibility of Seller), (ii) it shall be required to advance the full amount of expenses incurred by such D&O Indemnitee and shall be liable for the full amount of all Liabilities paid in settlement to the same extent as the obligation of Seller, the Company or any of the Company Subsidiaries as of the Closing Date and to the extent legally permitted and as required by the terms of this Section 5.10 , without regard to any rights such D&O Indemnitee may have against Seller, the Company or the Company Subsidiaries, and (iii) it irrevocably waives, relinquishes and releases Seller from any and all claims against Seller for contribution, subrogation or any other recovery of any kind in respect thereof, except for claims for indemnification in accordance with Article IX . Buyer further agrees that no advancement or payment by Seller on behalf of such D&O Indemnitee with respect to any claim for which such D&O Indemnitee has sought indemnification from Buyer shall affect the foregoing and Seller shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such D&O Indemnitee against Buyer to the extent such rights are provided herein. Buyer and each D&O Indemnitee agree that Seller is an express third party beneficiary of the terms of this Section 5.10(e) .

 

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(f) The obligations of Buyer under this Section 5.10 shall not be terminated or modified in such a manner as to adversely affect any D&O Indemnitee to whom this Section 5.10 applies without the consent of the affected D&O Indemnitee. The provisions of this Section 5.10 (i) are intended to be for the benefit of, and shall be enforceable by, each D&O Indemnitee and such D&O Indemnitee’s heirs and Representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by Contract, at Law or otherwise.

(g) For a period of six (6) years from and after the Closing Date, the Company and the Company Subsidiaries shall (and Buyer shall cause the Company and Company Subsidiaries to) procure and maintain in effect with respect to all periods prior to the Closing Date, directors’ and officers’ liability insurance covering those present and former officers, directors and managers of Seller (excluding matters related to the Asset Management Business or with respect to any portion of the Seller’s business expressly excluded as provided in Section 5.10(h) ) and the Company and the Company Subsidiaries that is substantially equivalent to and in any event on terms no less favorable in the aggregate than the terms of Seller’s, the Company’s and the Company Subsidiaries’ current directors’ and officers’ liability insurance coverage; provided , however , Buyer, the Company and the Company Subsidiaries shall not be required to pay an annual premium for such insurance in excess of 350% of the last annual premium paid by the Company and the Company Subsidiaries prior to the date of this Agreement. The provisions of this Section 5.10(g) shall be deemed to have been satisfied if prepaid “tail” policies have been obtained prior to the Closing, which policies provide such directors and officers with coverage for an aggregate period of six (6) years with respect to claims arising from facts or events that occurred on or before the Closing Date, including in respect of the transactions contemplated by this Agreement.

(h) Notwithstanding any other provision of this Section 5.10 , Buyer and its Affiliates shall have no obligation under this Section 5.10 in respect of any acts or omissions of any D&O Indemnitee to the extent they (i) relate to the Asset Management Business or (ii) do not relate to the business (excluding the Asset Management Business) conducted by the Company and the Company Subsidiaries (whether conducted directly or in the D&O Indemnitee’s capacity as a director, manager, officer or employee of Seller) or the transactions contemplated by this Agreement or any of the Transaction Documents. For the avoidance of doubt, (x) Seller will be solely responsible for all indemnification and exculpation of D&O Indemnitees with respect to any and all matters related to (A) the Asset Management Business, and (B) the other businesses of Seller to the extent they do not relate to the businesses conducted by the Company and the Company Subsidiaries (whether such businesses have been conducted directly or in the D&O Indemnitee’s capacity as a director, manager, officer or employee of Seller) and (y) no D&O Indemnitee will be entitled to indemnification or exculpation with respect to Fraud. Seller will indemnify Buyer for any indemnification or exculpation with respect to D&O Indemnitees with respect to any acts or omissions by them prior to Closing with respect to the matters that are the sole responsibility of Seller as set forth herein.

Section 5.11. Notice of Certain Events .

(a) Prior to the Closing Date, Buyer shall give Seller, and Seller shall give Buyer, prompt written notice if such Party becomes aware of (a) any written communication from any

 

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Person to such Party alleging that a Third Party Approval of or by such Person (or another Person) is required in connection with the transactions contemplated by this Agreement, (b) any material Action commenced or threatened against such Party that arises out of the transactions completed by this Agreement, and (c) any development that would reasonably be expected to result in a failure of a condition set forth in Article VIII . The delivery of any such notice pursuant to this Section 5.11(a) shall not cure any breach of any representation, warranty, covenant or agreement contained in this Agreement or otherwise limit or affect the remedies available hereunder to the Party receiving such notice; provided that if the disclosure of the facts, circumstances and events included in such notice would give the Party receiving such notice the right to elect to terminate this Agreement pursuant to Sections 10.01(d) or 10.01(e) , as applicable, assuming for these purposes that any applicable cure period described in Sections 10.01(d) and 10.01(e) had lapsed and the Party receiving such notice does not make such election within fifteen (15) Business days of its receipt of such notice, the matters set forth in such notice shall be deemed to be an amendment to this Agreement for all purposes hereof, including with respect to Article IX and the conditions set forth in Sections 10.01(d) or 10.01(e) .

(b) Without limiting Section 5.11(a) , (i) all Schedules providing disclosures “as of the date hereof” will be updated as of the Closing Date, and as of the Closing Date, all references in the Seller representations and warranties or the Schedules to “as of the date hereof” shall be deemed to refer to the Closing Date and (ii) prior to the Closing, Seller shall provide to Buyer updates to the other Schedules to include any known development that could reasonably be expected to result in a breach of the representations and warranties set forth in this Agreement; provided , that any matter disclosed in the Schedules delivered pursuant to this Section 5.11(b) arising prior to the date hereof shall not be deemed to amend this Agreement or the Schedules for any purposes under this Agreement; provided , further , that any matter disclosed in the Schedules delivered pursuant to this Section 5.11(b) arising after the date hereof shall not be deemed to amend this Agreement or the Schedules for purposes of determining whether the condition set forth in Section 8.02(b) has been satisfied, but shall be deemed to amend this Agreement and the Schedules for all purposes under Article IX , provided that if such matter (i) should have been disclosed prior to signing this Agreement but was not, or (ii) would constitute a breach of Section 5.01 , such matter may still be the basis of a claim under Article IX .

Section 5.12. No Solicitation of Transactions .

(a) From and after the date hereof until the Closing or, if earlier, the termination of this Agreement in accordance with Article X , Seller agrees that it shall not (and shall not permit the Company or any Company Subsidiary to), and that it shall use its commercially reasonable efforts to cause its Representatives not to, directly or indirectly: (i) solicit, initiate or knowingly facilitate or encourage the submission of any Competing Proposal; (ii) participate in any negotiations regarding, or furnish to any Person any material nonpublic information in connection with, any Competing Proposal; (iii) engage in discussions with any Person with respect to any Competing Proposal; (iv) approve or recommend any Competing Proposal; (v) withdraw, change, amend, modify or qualify, in a manner adverse to Buyer, the Seller Managing Board Recommendation; or (vi) resolve or agree to do any of the foregoing (any act or failure to act relating to clauses (iv) and (v) above, a “ Change of Recommendation ”); provided that none of Seller, the Company or the Company Subsidiaries or any of their respective Representatives shall be prohibited from taking any of the foregoing actions to the extent related to the Asset Management Business.

 

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(b) Notwithstanding anything to the contrary contained in Section 5.12(a) , if at any time following the date hereof and prior to the receipt of the Seller Member Approval, Seller receives a Competing Proposal that (i) constitutes a Superior Proposal or (ii) the Seller Managing Board determines in good faith, after consultation with Seller’s outside legal and financial advisors, could reasonably be expected to result, after the taking of any of the actions referred to in either of clause (A)  or (B)  below, in a Superior Proposal, Seller may take the following actions: (A) furnish nonpublic and other information and provide access to Company facilities, personnel and Representatives to the third party making such Competing Proposal, if, and only if, prior to so furnishing such information and providing such access, the Company receives from the third party an executed Acceptable Confidentiality Agreement, and (B) engage in discussions or negotiations with the third party with respect to the Competing Proposal; provided , however , that as promptly as reasonably practicable following the Company taking such actions as described in clauses (A)  and (B)  above, Seller shall (x) provide written notice to Buyer of such Superior Proposal or the determination of the Seller Managing Board as provided for in clause (ii)  above, as applicable, and (y) provide to Buyer any material non-public information concerning the Company provided to such third party which was not previously provided to Buyer.

(c) Notwithstanding the limitations set forth in Section 5.12(a) , if the Seller Managing Board has concluded, after consultation with Seller’s outside legal and financial advisors, that a Competing Proposal constitutes a Superior Proposal, then the Seller Managing Board may, prior to the earlier of (i) the expiration of the five (5)-day period during which the members of Seller are permitted to give notice to call for Seller to hold a meeting of the members of Seller in accordance with the Organizational Documents of Seller to consider the approval of this Agreement and the consummation of the transactions contemplated hereby (the “ Seller Member Meeting ”) without such notice being duly given and (ii) if such notice with respect to a Seller Member Meeting shall have been given, at any time prior to receipt of the Seller Member Approval, cause Seller to, after complying with Section 5.12(d) , effect a Change of Recommendation.

(d) Neither Seller nor the Seller Managing Board shall take any of the actions described in Section 5.12(c) unless (i) Seller shall have complied in all material respects with this Section 5.12 with respect to such Superior Proposal, (ii) Seller shall have given Buyer prompt (but in any event, within forty-eight (48) hours of such determination being reached by the Seller Managing Board) written notice (a “ Notice of Superior Proposal ”) advising them of the decision of the Seller Managing Board to effect a Change of Recommendation, detailing the terms and conditions of the Competing Proposal that serves as the basis of such action, and (iii)(A)(x) in the case of the initial Superior Proposal, Seller shall have given Buyer forty-eight (48) hours after delivery of such notice to propose revisions to the terms of this Agreement or the transactions contemplated hereby (or make any other proposals) (a “ Matching Bid ”) and during such time shall have negotiated and directed Seller’s Representatives to negotiate (if Buyer has notified Seller that it desires to negotiate), in good faith with Buyer as to such Matching Bid, or (y) if the Competing Proposal to which the initial Notice of Superior Proposal applied is modified in response to a Matching Bid (or otherwise) and a new Notice of Superior

 

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Proposal is as a result given, Seller shall have given Buyer forty-eight (48) hours after delivery of such new notice to propose a second Matching Bid and during such time shall have negotiated and directed the Company Representatives to negotiate (if Buyer has notified Seller that it desires to negotiate), in good faith with Buyer as to such Matching Bid, and (B) the Seller Managing Board shall have concluded, after consultation with its outside financial and legal advisors and consideration of the applicable Matching Bid, that such Competing Proposal nevertheless remains a Superior Proposal.

(e) Notwithstanding the limitations set forth in Section 5.12(a) and prior to the earlier of (i) the expiration of the five (5)-day period during which the members of Seller are permitted to give notice to call for Seller to hold a Seller Member Meeting without such notice being duly given and (ii) if such notice with respect to a Seller Member Meeting shall have been given, at any time prior to receipt of the Seller Member Approval, the Seller Managing Board may effect a Change of Recommendation in response to an Intervening Event if the Seller Managing Board has concluded in good faith, after consultation with Seller’s outside legal and financial advisors, that the failure of the Seller Managing Board to effect a Change of Recommendation would be inconsistent with the proper exercise of the fiduciary duties of the Seller Managing Board to Seller’s members under applicable Law.

(f) Nothing contained in this Agreement shall prohibit Seller or the Seller Managing Board from making any disclosure to its members if the Seller Managing Board has reasonably determined in good faith, after consultation with outside legal counsel, that the failure to do so would be inconsistent with any applicable Law; provided that disclosures under this Section 5.12(f) shall not be a basis, in themselves, for Buyer to terminate this Agreement pursuant to Section 10.01(f) .

(g) The Seller Managing Board shall, as soon as practicable (and, in any event, within five (5) Business Days) following the date of this Agreement, duly call for the written approval of Seller’s members without a meeting, to approve this Agreement and the consummation of the transactions contemplated hereby for the purposes of obtaining the Seller Member Approval in accordance with the Organizational Documents of Seller.

(h) In the event that a member or members of Seller representing ten percent (10%) or more of the outstanding limited liability company interests of Seller shall have duly given notice to call for a Seller Member Meeting in accordance with the Organizational Documents of Seller, the Seller Managing Board shall duly call and give notice of, and, no later than fifteen (15) Business Days following the receipt of notice from such member(s), convene and hold such Seller Member Meeting. Notwithstanding any Change of Recommendation, unless this Agreement is terminated in accordance with its terms, the Seller Managing Board shall submit this Agreement and the consummation of the transactions contemplated hereby to its members at or promptly following the Seller Member Meeting for the purposes of obtaining the Seller Member Approval in accordance with the Organizational Documents of Seller.

Section 5.13. Further Assurances . In furtherance and not in limitation of Sections 5.03 , 5.04 and 5.05 , each of the Parties shall use their commercially reasonable efforts to (a) take, or cause to be taken, all actions, and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Laws to consummate and make effective the transactions

 

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contemplated by this Agreement and (b) cause the satisfaction at the earliest practicable date of all of the conditions to their respective obligations to consummate the transactions contemplated by this Agreement; provided that the foregoing shall in no event be interpreted to require any Party to waive any condition precedent to its obligations to close the transactions contemplated hereby.

Section 5.14. Post-Closing Books and Records .

(a) After the Closing, Buyer shall, and Buyer shall cause the Company and the Company Subsidiaries to, hold at least one copy of all Business Records relating to the Company and the Company Subsidiaries on or before the Closing Date and not to destroy or dispose of such copy for a period of seven (7) years from the Closing Date or such longer time as may be required by applicable Law, and Buyer agrees, upon the request of Seller prior to such date, to provide a copy of the applicable Business Records prior to the destruction or disposition thereof. Subject to the confidentiality obligations set forth herein, Seller may retain a copy of any or all of the Business Records and any other materials included in any electronic data room or that are otherwise in the possession or under the control of Seller relating to the Company and the Company Subsidiaries on or before the Closing Date.

(b) From and after the Closing Date, Buyer shall, and shall cause the Company and the Company Subsidiaries to, (i) afford Seller and its Representatives reasonable access to the offices, properties, books and records of the Company and the Company Subsidiaries during normal business hours and upon reasonable prior written notice, (ii) furnish to Seller and its Representatives copies of such Business Records as such Persons may reasonably request and (iii) cause the employees, counsel and financial advisors of Buyer, the Company and the Company Subsidiaries to cooperate with Seller solely in connection with clauses (i)  and (ii)  above; provided , that any such access shall be granted in a manner as not to unreasonably interfere with the conduct of the business of Buyer, the Company or the Company Subsidiaries. Buyer, the Company, the Company Subsidiaries may withhold any document or information, the disclosure of which could reasonably be expected to violate any Contract or any Law, result in the loss of protectable interests in trade secrets, or result in the waiver of any legal privilege or work-product privilege ( provided that Buyer shall give notice to Seller of the fact that such documents or information are being withheld and thereafter Buyer shall use its commercially reasonable efforts to cause such documents or information, as applicable, to be made available in a manner that would not reasonably be expected to cause such a violation, disclosure or waiver).

(c) From and after the Closing Date, all Asset Management Information shall be the sole property of Seller, and, except to the extent necessary for Buyer to address (i) any claims against the Company and the Company Subsidiaries based on the conduct of the Asset Management Business prior to the Closing (which claims are not assumed by Buyer and are the subject of indemnification pursuant to Section 9.02(a)(iii) ), or (ii) any accounting, tax or other purpose related to the pre-Closing operations of the Company and/or the Company Subsidiaries, Seller shall not be required to provide copies of or access to any Asset Management Information to Buyer, the Company or the Company Subsidiaries. To the extent any Asset Management Information remains in the possession of the Company and the Company Subsidiaries after the Closing Date, the Company and the Company Subsidiaries shall promptly notify Seller of the existence of such Asset Management Information, and Seller shall be permitted to cause such

 

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Asset Management Information to be transferred to Seller. With respect to retention of records by Seller and access to records by Buyer to the extent provided in this Section 5.14(c) , the provisions of Sections 5.14(a) and 5.14(b) shall apply to Asset Management Information, mutatis mutandis.

Section 5.15. Liquor Licenses and Related Entities . Seller will use its commercially reasonable efforts to take all actions reasonably necessary, and will cooperate fully with Buyer, both prior to and following the Closing, to assure that any and all liquor licenses related to the business of the Company and the Company Subsidiaries, whether currently held by the Company and the Company Subsidiaries or, whether at the direction or for the convenience of the Company, by third party entities, are properly transferred to Buyer, including completing and filing all necessary forms, applications and supporting documents with relevant Government Authorities both before and after the Closing. Buyer and Seller will collaborate fully prior to Closing to assure the liquor licenses are transferred at Closing, including with respect to the transfer of any entity holding a liquor license as nominee for the Company and the Company Subsidiaries, and to the extent reasonably necessary, Seller and its Affiliates or principals will enter into bridge agreements transitioning liquor licenses post-closing, in a form reasonably acceptable to Buyer and Seller. Any entity nominee to be transferred to Buyer will be transferred without any additional consideration from Buyer. For the avoidance of doubt, the transfer of any liquor license shall not be a condition to the Closing.

Section 5.16. Seller’s Maintenance of Net Worth . For the thirty-six (36) months following the Closing Date, Seller covenants and agrees to maintain its net worth at not less than $12,000,000 (less any amounts paid to Buyer by Seller pursuant to Article IX and without regard to any accrued Liabilities with respect to claims for indemnification pursuant to Article IX ), provided that if there are any Unresolved Indemnity Claims pending as of the date that is thirty-six (36) months following the Closing Date, Seller covenants and agrees to maintain its net worth at not less than the aggregate amount of all Unresolved Indemnity Claims (less any amounts retained in the Escrow Account for Unresolved Indemnity Claims) until such time as there is a final resolution of the Unresolved Indemnity Claims.

Section 5.17. Pre-Closing and Retention Bonuses . For the avoidance of doubt, (a) any amounts payable by the Company or the Company Subsidiaries prior to, at, or in connection with the Closing pursuant to any bonus arrangements related to the consummation of the transactions contemplated by this Agreement, including but not limited to retention, stay, transaction completion or similar bonus arrangement (other than pursuant to any such arrangements entered into at the direction of Buyer) shall be deducted from the Purchase Price as Company Transaction Expenses or otherwise paid by Seller and (b) any amounts payable by the Company or the Company Subsidiaries pursuant to performance bonus arrangements or other ordinary course employment-related bonus arrangements for any period ending on or prior to the Closing Date will either be paid by the Company prior to the Closing and result in a reduction in the calculation of Closing Date Cash, or, to the extent not paid prior to Closing, be accrued as a Liability in the calculation of Net Working Capital.

Section 5.18. Certain Liens . The Seller shall use its commercially reasonable efforts to, and to cause the Company and the Company Subsidiaries to, obtain releases of the outstanding UCC liens set forth on Schedule 5.18 prior to the Closing. Seller will continue to use its

 

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commercially reasonable efforts for up to 120 days following the Closing to obtain the release of any such liens not released prior to Closing. For the avoidance of doubt, the release of any liens set forth on Schedule 5.18 shall not be a condition to Closing.

Section 5.19. Certain Guarantees . Seller and Buyer shall cooperate and use their respective commercially reasonable efforts to obtain from the respective beneficiary, in form and substance reasonably satisfactory to Seller, on or before the Closing, valid and binding written releases of Seller from any Liability, whether arising before, on or after the Closing Date, under the guarantees listed on Schedule 5.19 (each a “ Scheduled Guarantee ”), which shall be effective as of the Closing, including, as applicable, by providing substitute guarantees. If any Scheduled Guarantee has not been released as of the Closing Date, then Seller and Buyer shall use their respective commercially reasonable efforts after the Closing to cause each such unreleased Scheduled Guarantee to be released promptly. Buyer shall indemnify and hold harmless Seller from and after the Closing for any amounts required to be paid under any Scheduled Guarantees.

Section 5.20. Trademark Filings . Seller and Buyer shall cooperate and use their respective commercially reasonable efforts to complete (i) the filing of trademark applications simultaneously with or soon after execution of this Agreement in Seller’s name in the United States (establishing priority in other jurisdictions), Taiwan, Macau, Ethiopia, Aruba and Hong Kong for the KIMPTON, KIMPTON KARMA, PALOMAR and HOTEL MONACO marks; and (ii) filings necessary to correct any erroneous references to Seller’s state of formation. Any such filings will be prepared by Buyer but subject to approval of Seller.

ARTICLE VI

T AX M ATTERS

Section 6.01. Straddle Tax Period Allocations . In the case of any Straddle Tax Period, for purposes of calculating Net Working Capital and for purposes of Section 6.05 , (i) the amount of any real property, personal property and other similar ad valorem Taxes of the Company and the Company Subsidiaries for the Straddle Tax Period which relate to the portion of such Straddle Tax Period ending as of an applicable date shall be deemed to be the amount of such Taxes for the entire taxable period multiplied by a fraction the numerator of which is the number of days in the portion of such Straddle Tax Period ending on such date and the denominator of which is the number of days in the entire Straddle Tax Period and (ii) the amount of all other Taxes of the Company and the Company Subsidiaries for the Straddle Tax Period which relate to the portion of such Straddle Tax Period ending as of an applicable date shall be determined based on an interim closing of the books of the Company and the Company Subsidiaries.

Section 6.02. Cooperation . Buyer and Seller shall cooperate fully, and shall cause their respective Affiliates to cooperate fully, as and to the extent reasonably requested by the other Party, in connection with the preparation and filing of Tax Returns and in connection with any Action regarding Taxes of or with respect to the Company and the Company Subsidiaries. Such cooperation shall include the retention and (upon the other Party’s request) the provision of, and ability to inspect, the records and information reasonably relevant to any such Tax Return or Action and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.

 

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Section 6.03. Post-Closing Actions . Without the prior written consent of Seller, Buyer shall not, and shall cause the Company and the Company Subsidiaries not to, amend or take a position on any Tax Return for any Pre-Closing Period, make any Tax election with respect to any Pre-Closing Period, make any voluntary Tax disclosure that could relate to any Pre-Closing Period or take any other action or enter into any transaction affecting a Pre-Closing Period that, in each case, could adversely affect the Tax Liability (whether pursuant to Law or Article IX ) of Seller, any of its Affiliates or direct or indirect equity holders.

Section 6.04. Transfer Taxes . All transfer, sales, use, documentary, gains, stock transfer and stamp Taxes, conveyance fees, recording charges and other similar Taxes, fees and charges (including any penalties and interest) incurred in connection with the transactions contemplated by the Transaction Documents (collectively, “ Transfer Taxes ”) shall be borne and paid by Buyer. Buyer shall prepare and timely file all Tax Returns required to be filed in respect of Transfer Taxes in accordance with applicable Law. Each party hereto shall use its commercially reasonable efforts to minimize the amount of such Transfer Taxes and to cooperate in the preparation, execution and filing of all Tax Returns and other documents required in connection with such Transfer Taxes.

Section 6.05. Certain Refunds . All refunds, credits or similar benefits relating to Taxes of the Company and the Company Subsidiaries that were either (i) paid prior to the close of business on the date immediately prior to the Closing Date, (ii) included as a current liability in Final Net Working Capital, (iii) indemnified pursuant to Article IX , (iv) income Taxes attributable to any income or gains of the Company or of any Company Subsidiary that was treated as a passthrough entity for the relevant income Tax purposes or otherwise (v) borne by Seller or its Affiliates shall be for the benefit of Seller, except to the extent such refund or similar benefit was specifically included as a current asset in Final Net Working Capital. Following the Closing, Buyer shall, and shall cause its Affiliates (including the Company and the Company Subsidiaries) to, use reasonable efforts to obtain any such refunds, credits or similar benefits to the extent permitted by Law. In the event Buyer or its Affiliates (including the Company or the Company Subsidiaries) realize such a refund, credit or similar benefit following the Closing that is for Seller’s benefit pursuant to the previous sentence, Buyer or such Affiliate (as applicable) shall promptly pay over to Seller an amount in cash equal to such refund, credit or benefit, together with any evidence reasonably requested by Seller to confirm the calculation of such amount.

Section 6.06. Certain Tax Contests and Returns . Notwithstanding anything to the contrary in this Agreement, all Actions relating to Taxes that could result in a Liability to Seller or its Affiliates shall be governed by the provisions of Section 9.03 , including all Actions relating to income Taxes of the Company and/or the Company Subsidiaries for which Seller could be expected to be liable (whether pursuant to Law or Article IX ). Seller shall have the right and obligation to prepare all income Tax Returns with respect to a taxable period ending on or before the Closing Date that relate to income or gains of the Company or of any Company Subsidiary that is a pass-through entity for the relevant income Tax purposes for such taxable period. To the extent these Tax Returns require Buyer’s signature post-closing, then Buyer shall cooperate in the execution and filing of such Tax Returns as reasonably requested by Seller. Buyer shall prepare, or cause to be prepared, all other Tax Returns of the Company and the Company Subsidiaries that are required to be filed after the Closing with respect to any taxable period.

 

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ARTICLE VII

E MPLOYEE M ATTERS

Section 7.01. Employees .

(a) For the one-year period following the Closing Date or such longer period as may be required by applicable Law or Contract, the Company and the Company Subsidiaries shall provide the Company Employees with base salaries or wage rates and cash bonus opportunities at least equal in the aggregate to the base salaries or wage rates and cash bonus opportunities that are in effect for Company Employees immediately prior to the Closing and other cash compensation (excluding equity or equity-based compensation) and employee benefits that are not materially less favorable in the aggregate than the compensation and employee benefits provided to the Company Employees immediately prior to the Closing under Company Plans or otherwise.

(b) Buyer and its Subsidiaries shall to the extent feasible under the Applicable Plans, (i) give each Company Employee credit under each employee benefit plan and personnel policy of Buyer or its Subsidiaries that covers such Company Employee after the Closing Date (including any vacation, sick leave and severance policies) (collectively, the “ Applicable Plans ”) for purposes of eligibility, vesting and entitlement to benefits for such Company Employee’s service with Seller, the Company and the Company Subsidiaries (and any predecessors thereto), (ii) allow such Company Employee to participate in each plan providing welfare benefits (including medical, dental, vision, life insurance, short-term and long-term disability insurance) without regard to preexisting-condition limitations, waiting periods, evidence of insurability or other exclusions or limitations not imposed on such Company Employee by the corresponding Company Plans immediately prior to the Closing Date, and (iii) credit such Company Employee with any expenses that were covered by (or paid to) the Company Plans immediately prior to the Closing Date for purposes of determining deductibles, co-pays and other applicable limits under any Applicable Plan, except in each case of clauses (i) through (iii)  above, where such crediting would result in duplicate benefits with respect to the same period of service and only to the same extent such service and expenses were credited under the Company Plan immediately prior to the Closing Date.

(c) Notwithstanding Section 7.01(b) , and without limiting Section 7.01(a) , the Company and the Company Subsidiaries shall (i) at or following the Closing, for the avoidance of doubt, be solely responsible for any retention, bonus, commission and severance benefits owed to any Company Employee employed as of the Closing pursuant to a Company Plan or otherwise and (ii) for the one-year period following the Closing Date or such longer period as may be required by applicable Law or Contract, provide or make available to eligible Company Employees not covered under a Bargaining Agreement, the Severance Arrangements (or the equivalent thereof). Company Employees covered under a Bargaining Agreement will continue under the severance policy entitlements in their applicable Bargaining Agreement.

 

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(d) This Section 7.01 shall survive the Closing and shall be binding on all successors and assigns of Seller, Buyer, the Company and the Company Subsidiaries. Nothing set forth in this Section 7.01 (i) shall confer any rights or remedies upon any former employee of the Company and the Company Subsidiaries, any Company Employee or upon any other Person other than the parties hereto and their respective successors and assigns or (ii) shall constitute an amendment to any Company Plan or any other plan or arrangement covering the Company Employees or any former employee of the Company or any of the Company Subsidiaries. Nothing in this Section 7.01 shall obligate Buyer or the Company and the Company Subsidiaries to continue the employment of any Company Employee for any specific period.

ARTICLE VIII

C ONDITIONS TO C LOSING

Section 8.01. Mutual Conditions . The respective obligations of each Party to consummate the transactions contemplated by this Agreement shall be subject to the satisfaction at or prior to the Closing of each of the following conditions, any and all of which may be waived, in whole or in part, by the Parties to the extent permitted by applicable Law:

(a) No Law enacted, entered, promulgated or enforced by any Governmental Authority of competent jurisdiction shall be in effect at the Closing preventing the consummation of the transactions contemplated by this Agreement (each, a “ Closing Legal Impediment ”).

(b) No material Action commenced by a Governmental Authority with authority over antitrust matters shall be pending that seeks any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that would prohibit, prevent, limit, delay or restrict consummation of the transactions contemplated by this Agreement; provided, that no Party shall be permitted to assert that this condition has not been satisfied unless such Party shall have complied with its obligations set forth in Section 5.03 .

(c) Any applicable waiting period (and any extension thereof) under the HSR Act shall have expired or been terminated and all required filings shall have been made, applicable waiting periods (and extensions thereof) expired or been terminated.

(d) The Seller Member Approval shall have been obtained and shall be effective.

Section 8.02. Conditions to the Obligation of Buyer . The obligation of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the satisfaction at or prior to the Closing of each of the following conditions, any and all of which may be waived, in whole or in part, by Buyer to the extent permitted by applicable Law:

(a) Since the date of this Agreement, no Material Adverse Effect shall have occurred and be continuing.

(b) All representations and warranties made by Seller contained in Article III (other than the Fundamental Representations), without giving effect to materiality, Material Adverse Effect or similar qualifications, shall be true and correct in all respects at and as of the Closing

 

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Date as though such representations and warranties were made at and as of the Closing Date (except in the case of any representation or warranty that by its terms addresses matters only as of another specified date, which shall be so true and correct only as of such specified date), except to the extent the failure of such representations and warranties to be true and correct would not reasonably be expected to have a Material Adverse Effect. All Fundamental Representations made by Seller in this Agreement shall be true and correct in all material respects at and as of the Closing Date as though such Fundamental Representations were made at and as of the Closing Date (except in the case of any representation or warranty that by its terms addresses matters only as of another specified date, which shall be so true and correct only as of such specified date).

(c) Seller shall have duly performed or complied with, in all material respects, all of the covenants and agreements required to be performed or complied with by Seller at or prior to Closing under the terms of this Agreement.

(d) Seller shall have delivered to Buyer a certificate dated as of the Closing Date signed by an officer of Seller to the effect that each of the conditions set forth in Section 8.02(b) and Section 8.02(c) have been satisfied.

(e) Seller shall have delivered, or caused to be delivered, to Buyer the items and documents set forth in Section 2.04(a) .

Section 8.03. Conditions to the Obligations of Seller . The obligations of Seller to consummate the transactions contemplated by this Agreement shall be subject to the satisfaction at or prior to the Closing of each of the following conditions, any and all of which may be waived, in whole or in part, by Seller to the extent permitted by applicable Law:

(a) All representations and warranties made by Buyer contained in Article IV shall be true and correct in all material respects at and as of the Closing Date as though such representations and warranties were made at and as of the Closing Date (except in the case of any representation or warranty that by its terms addresses matters only as of another specified date, which shall be true and correct only as of such specified date).

(b) Buyer shall have duly performed or complied with, in all material respects, all of the material covenants and agreements required to be performed or complied with by Buyer at or prior to the Closing under the terms of this Agreement.

(c) Buyer shall have delivered to Seller a certificate dated as of the Closing Date signed by an officer of Buyer to the effect that each of the conditions set forth in Section 8.03(a) and Section 8.03(b) have been satisfied.

(d) Buyer shall have delivered to Seller the Preliminary Purchase Price and the other items and documents set forth in Section 2.04(b) .

Section 8.04. Frustration of Closing Conditions . Neither Seller nor Buyer may rely, either as a basis for not consummating the transactions contemplated by this Agreement or terminating this Agreement and abandoning the transactions contemplated by this Agreement, on the failure of any condition set forth in this Article VIII to be satisfied if such failure has been primarily caused by, or is primarily the result of, such Party’s failure to comply with its obligations under this Agreement.

 

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ARTICLE IX

I NDEMNIFICATION

Section 9.01. Survival . The representations, warranties, covenants and agreements contained in this Agreement or in any closing certificate delivered pursuant hereto shall survive the Closing until the twenty-four (24) month anniversary thereof; provided that (a) the representations in Section 3.14 shall survive until the thirty-six (36) month anniversary thereof, and (b) the covenants and agreements set forth in Section 5.10 and Section 9.06 shall survive indefinitely and the other covenants and agreements set forth in this Agreement shall survive until performed in accordance with their terms. The Parties acknowledge and agree that with respect to any claim that any Party may have against any other Party that is permitted pursuant to the terms of this Agreement, the survival periods set forth and agreed to in this Section 9.01 shall govern when any such claim may be brought and shall replace and supersede any statute of limitations that may otherwise be applicable.

Section 9.02. Indemnification .

(a) Subject to the provisions of this Article IX , including the limitations set forth in Section 9.04 , effective at and after the Closing, Buyer and each of its Affiliates, directors, officers, employees, successors, permitted assigns, agents and representatives (collectively, the “ Buyer Indemnitees ”) shall be indemnified and held harmless by Seller from and against any and all Damages incurred or suffered by any Buyer Indemnitee to the extent arising out of or relating to (i) any breach of any representation or warranty of Seller in Article III of this Agreement, (ii) any breach of any covenant or agreement made or to be performed by Seller pursuant to this Agreement, and (iii) any Liabilities to the extent related to the Asset Management Business (including any Liability of Buyer under Section 5.10 with respect to claims related to the Asset Management Business).

(b) Subject to the provisions of this Article IX , including the limitations set forth in Section 9.04 , effective at and after the Closing, Buyer agrees to indemnify Seller and its Affiliates, directors, officers, employees, successors, permitted assigns, agents and representatives (collectively, the “Seller Indemnitees”) against, and agrees to hold each of them harmless from, any and all Damages incurred or suffered by any Seller Indemnitee to the extent arising out of or relating to (i) any breach of any representation or warranty of Buyer in this Agreement or (ii) any breach of covenant or agreement made or to be performed by Buyer pursuant to this Agreement.

(c) For purposes of determining the amount of Damages subject to indemnification pursuant to Section 9.02(a)(i) (except for Damages arising out of or relating to a breach of the representations and warranties in Sections 3.06 (Financial Statements), 3.07 (Absence of Certain Developments), 3.10 (No Undisclosed Liabilities), 3.16 (Material Contracts) (with respect to the definition of Material Contracts set forth therein), which shall not be subject to this Section 9.02(c) ), but not for purposes of determining whether the representations and warranties giving rise to such right to indemnification have been breached, such Damages shall be determined without regard to any qualification or exception contained in such representation or warranty relating to materiality or Material Adverse Effect applicable thereto.

 

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Section 9.03. Procedures . Except as otherwise provided in Section 6.06 , claims for indemnification under this Agreement shall be asserted and resolved as follows:

(a) Any Buyer Indemnitee or Seller Indemnitee seeking indemnification under this Agreement (an “ Indemnified Party ”) with respect to any claim asserted against the Indemnified Party by a third party (“ Third Party Claim ”) in respect of any matter that is subject to indemnification under Section 9.02 shall (i) promptly notify the other Party (the “ Indemnifying Party ”) of the Third Party Claim (and in any event within sixty (60) Business Days of the date on which the Indemnified Party knows or reasonably should have known of the Third Party Claim unless the Indemnifying Party is prejudiced by such delay), and (ii) as promptly as practicable transmit to the Indemnifying Party a written notice (a “ Claim Notice ”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), the basis of the Indemnified Party’s request for indemnification under this Agreement and a reasonable estimate of any Damages suffered with respect thereto.

(b) The Indemnifying Party shall have the right to defend the Indemnified Party against such Third Party Claim. The Indemnifying Party will promptly notify the Indemnified Party (and in any event within ten (10) Business Days after having received any Claim Notice) with respect to whether or not it is exercising its right to defend the Indemnified Party against such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party that the Indemnifying Party elects to assume the defense of the Third Party Claim (such election to be without prejudice to the right of the Indemnifying Party to dispute whether such claim is an indemnifiable Damage under this Article IX ), then the Indemnifying Party shall have the right to defend such Third Party Claim with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party, in all appropriate proceedings, to a final conclusion or settlement at the discretion of the Indemnifying Party in accordance with this Section 9.03(b) . The Indemnifying Party shall have full control of such defense and proceedings, including any compromise or settlement thereof; provided , however , that the Indemnifying Party shall (i) provide periodic updates on the progress of the matter and copies of all pleadings to the Indemnified Party, and (ii) not enter into any settlement agreement without the written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, such consent shall not be required if (x) the settlement agreement is for monetary consideration only with no admission of liability and no restriction on the future operations of the business of the Company and the Company Subsidiaries and (y) the settlement agreement contains a complete and unconditional general release by the third party asserting the Third Party Claim to all Indemnified Parties affected by the Third Party Claim. The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 9.03(b) , and the Indemnified Party shall bear its own costs and expenses with respect to such participation. Notwithstanding anything to the contrary, in the case of any Action with respect to income Taxes of the Company and/or the Company Subsidiaries that relates solely to taxable periods ending on or prior to the Closing Date, Seller shall be entitled to control, defend and settle such Action in its sole discretion, and the Buyer Indemnitees shall not be entitled to participate in such Action, provided that (A) Seller will provide notice of any proposed settlement of such Action to Buyer, and (B) such settlement will not have a material adverse effect on the Tax Liability of the Company or the Company Subsidiaries.

 

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(c) If the Indemnifying Party does not notify the Indemnified Party that the Indemnifying Party elects to defend the Indemnified Party pursuant to Section 9.03(b) within ten (10) Business Days after receipt of any Claim Notice, then the Indemnified Party shall defend itself against the applicable Third Party Claim, and be reimbursed for its reasonable cost and expense (but only if the Indemnified Party is actually entitled to indemnification hereunder) in regard to the Third Party Claim with counsel selected by the Indemnified Party, in all appropriate proceedings and in good faith, which proceedings shall be prosecuted diligently by the Indemnified Party. In such circumstances, the Indemnified Party shall defend any such Third Party Claim in good faith and have full control of such defense and proceedings; provided , however , that the Indemnified Party may not enter into any compromise or settlement of such Third Party Claim if indemnification is to be sought hereunder, without the Indemnifying Party’s consent (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 9.03(c), and the Indemnifying Party shall bear its own costs and expenses with respect to such participation; provided , however , if at any time the Indemnifying Party acknowledges in writing that such Third Party Claim is an indemnifiable Damage under this Article IX , the Indemnifying Party shall be entitled to assume the defense of such Third Party Claim in accordance with Section 9.03(b) .

(d) If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is actually entitled to indemnification hereunder), to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, including providing reasonable access to documents, records and information. In addition, the Indemnified Party will make its personnel reasonably available at no cost to the Indemnifying Party for conferences, discovery, proceedings, hearings, trials or appeals as may be reasonably requested by the Indemnifying Party. The Indemnified Party also agrees to cooperate with the Indemnifying Party and its counsel in the making of any related counterclaim against the Person asserting the Third Party Claim or any cross complaint against any Person and executing powers of attorney to the extent necessary.

(e) A claim for indemnification for any matter not involving a Third Party Claim shall be asserted by notice to the Party from whom indemnification is sought as promptly as practicable (the failure to give prompt notice shall not, however, relieve the Indemnifying Party of its indemnification obligations if such notice is provided within thirty (30) Business Days of the date on which the Indemnified Party knows or reasonably should have known of the claim for indemnification, unless the Indemnifying Party is prejudiced by such delay), which notice shall describe in reasonable detail the nature of the claim, the basis of the Indemnified Party’s request for indemnification under this Agreement and a reasonable estimate of the Damages associated with the claim. In the case of a claim for indemnification relating to Taxes, no such claim may shall be asserted unless a third party has actually commenced a lawsuit, action or regulatory proceeding or issued a written notice of proposed adjustment, assessment or deficiency, in each case, with respect to the specific matters addressed in such claim.

 

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Section 9.04. Limitations on Liability . Notwithstanding anything to the contrary herein:

(a) Seller shall not be liable for any breach of any representation, warranty, covenant or agreement of Seller set forth in this Agreement unless and until the amount of Damages actually incurred by the Buyer Indemnitees resulting from such breach exceeds $125,000 (“ De Minimis Amount ”), provided that the De Minimis Amount shall not apply to indemnification for Damages arising out of or resulting from Fraud, any breach of the Fundamental Representations or Section 3.14 , any breach of Section 5.01 , or Seller’s indemnification pursuant to Section 9.02(a)(iii) ;

(b) Seller shall not be liable for (i) any breach of any representation or warranty of Seller set forth in this Agreement or (ii) any breach of Section 5.01 , in either case, unless the aggregate amount of Damages actually incurred by the Buyer Indemnitees for such breach and all other breaches otherwise subject to indemnification hereunder exceeds $4,000,000 (the “ Deductible ”), and then only to the extent such aggregate Damages exceed such amount; provided , however , that the Deductible shall not apply to indemnification for Damages arising out of or resulting from Fraud, any breach of the Fundamental Representations or Section 3.14 , any breach of Section 5.01 , or Seller’s indemnification pursuant to Section 9.02(a)(iii). For the avoidance of doubt, Damages attributable to any breach that does not exceed the De Minimis Amount pursuant to Section 9.04(a) shall not be counted towards the calculation of the Deductible;

(c) Except solely with respect to Fraud and Seller’s indemnification obligations pursuant to Section 9.02(a)(iii) , in no event shall Seller’s aggregate Liability arising out of or relating to Seller’s indemnification obligations under this Agreement exceed $25,000,000;

(d) in no event shall Seller be liable under Section 9.02(a) for any Damages arising from an action taken or not taken by Seller at the request of or with the consent of Buyer;

(e) Buyer Indemnitees shall not have a right to assert claims for indemnification under any provision of this Agreement for Damages to the extent that such Damages arise out of actions taken (or omitted to be taken) by Buyer, the Company, any Company Subsidiary or any Buyer Indemnitee after the Closing Date;

(f) no Buyer Indemnitee shall be entitled to indemnification to the extent a Liability or reserve relating to the matter giving rise to such Damages has been included in the calculation of Final Purchase Price or to the extent such Buyer Indemnitee has otherwise been compensated with respect thereto pursuant to the post-Closing adjustment contemplated by Section 2.06 ;

(g) each Indemnified Party shall have a duty to use commercially reasonable efforts to mitigate any Damages arising out of or relating to this Agreement or the transactions contemplated hereby, including incurring the minimum costs necessary to remedy any breach that gives rise to such Damages;

(h) the amount of any Damages for which an Indemnified Party claims indemnification under this Agreement shall be reduced by the amount of (i) any insurance proceeds actually received from third party insurers with respect to such Damages; and (ii) any indemnification, contribution, offset or reimbursement payments actually received from third

 

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parties with respect to such Damages; provided that such Indemnified Party shall use commercially reasonable efforts to obtain recoveries from insurers, including title insurers, and other third parties in respect of this Section 9.04(h) . If an Indemnified Party (A) actually receives insurance proceeds from third-party insurers with respect to such Damages or (B) actually receives indemnification, contribution, offset or reimbursement payments from third parties with respect to such Damages, in each case, at any time subsequent to any indemnification payment pursuant to this Article IX , then such Indemnified Party shall promptly reimburse the applicable Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification up to such amount actually received by such Indemnified Party;

(i) in the event an Indemnified Party shall recover Damages in respect of a claim of indemnification under this Article IX , no other Indemnified Party shall be entitled to recover the same Damages in respect of a claim for indemnification; and

(j) notwithstanding anything provided under applicable Law, no Party shall have any Liability (including under Article III or this Article IX ) for, and Damages shall not include, any punitive, incidental, consequential, special or indirect Damages (including lost profits, loss in value or any damages that are based on a multiple of earnings), in each case, except to the extent any such Damages are awarded and paid with respect to a Third Party Claim as to which a Party is entitled to indemnification under this Agreement.

For the avoidance of doubt, there are no limitations with respect to time or amount with respect to Seller’s liability for any claims for Fraud and Seller’s indemnification obligations pursuant to Section 9.02(a)(iii) .

Section 9.05. Assignment of Claims . If the Indemnified Party receives any payment from an Indemnifying Party in respect of any Damages pursuant to Section 9.02 and the Indemnified Party could have recovered all or a part of such Damages from a third party (a “ Potential Contributor ”) based on the underlying claim asserted against the Indemnifying Party, the Indemnified Party shall, to the extent permitted by Law and any pertinent Contract, assign such of its rights to proceed against the Potential Contributor as are necessary to permit the Indemnifying Party to recover from the Potential Contributor the amount of such payment.

Section 9.06. Exclusivity .

(a) After the Closing, except in the case of Fraud, the sole and exclusive remedy for any and all claims, Damages or other matters arising under, out of, or related to this Agreement or the transactions contemplated hereby shall be the rights of indemnification set forth in this Article IX only, and no Person will have any other entitlement, remedy or recourse, whether in contract, tort, strict liability, equitable remedy or otherwise, it being agreed that all of such other remedies, entitlements and recourse are expressly waived and released by the Parties to the fullest extent permitted by Law. This Section 9.06(a) will not operate to interfere with or impede the operation of the covenants contained in this Agreement that by their nature are required to be performed after the Closing, with respect to a Party’s right to seek equitable remedies (including specific performance or injunctive relief). The provisions of this Section 9.06(a) , together with the covenants contained in this Agreement that by their nature are required to be performed after

 

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the Closing, were specifically bargained-for between Seller, on the one hand, and Buyer, on the other hand, and were taken into account by the Parties in arriving at the Purchase Price. Each Party, respectively, specifically relied upon the provisions of this Section 9.06(a) in agreeing to the Purchase Price and in agreeing to provide the specific representations and warranties set forth in Article III (in the case of Seller) and Article IV (in the case of Buyer).

(b) Except with respect to Fraud, and except with respect to the enforcement of covenants contained in this Agreement that by their nature are required to be performed after the Closing and a Party’s right to seek equitable remedies (including specific performance or injunctive relief), all claims, demands, remedies or recoveries from or against Seller under this Agreement, shall be limited as set forth in this Article IX . Except with respect to Fraud and Seller’s indemnification obligations pursuant to Section 9.02(a)(iii) , any claims for indemnification pursuant to this Article IX must be first recovered against the Escrow Account, and if there are insufficient Escrow Funds remaining to satisfy any such claims, such claims may then, at the election of Buyer, be recovered against Seller in accordance with this Article IX . Claims with respect to Fraud and claims for indemnification pursuant to Seller’s obligations pursuant to Section 9.02(a)(iii) may, in Buyer’s sole discretion, be recovered against the Escrow Account or Seller, in accordance with this Article IX .

Section 9.07. Characterization of Indemnity Payments . The Parties agree that any indemnification payments made pursuant to this Article IX shall be treated for all Tax purposes as an adjustment to the Purchase Price unless otherwise required by applicable Law.

Section 9.08. Indemnification Payments and Escrow .

(a) If any Buyer Indemnitee delivers to Seller any Claim Notice pursuant to Section 9.03(a) or other claim notice pursuant to Section 9.03(e) (each, a “ Buyer Claim Notice ”), then Buyer may provide to the Escrow Agent a copy of such Buyer Claim Notice. Upon receipt of any Buyer Claim Notice from Buyer, the Escrow Agent shall, pursuant to the Escrow Agreement, set aside and hold as a reserve to cover the Third Party Claim or other claim in respect of which such Buyer Claim Notice was delivered (each, a “ Buyer Indemnity Claim ”) such portion of the Escrow Amount equal to the amount set forth in such Buyer Claim Notice until there is a final resolution of such Buyer Indemnity Claim.

(b) Any payment to the Buyer Indemnitees in respect of any claim for indemnification properly asserted by the Buyer Indemnitees under this Article IX shall be paid within five (5) Business Days after the date of the final determination of any amounts due and owing under this Article IX (i) by release of funds to the Buyer Indemnitees from the Escrow Account by the Escrow Agent, or (ii) if there are insufficient Escrow Funds remaining to satisfy any such claims, or, at the election of Buyer, if such claims relate to Fraud or Seller’s indemnification obligations pursuant to Section 9.02(a)(iii) , by payment to Buyer by Seller, provided that except with respect to Fraud, and Seller’s indemnification obligations pursuant to Section 9.02(a)(iii), under no circumstances may Buyer recover more than $12,000,000 with respect to indemnification claims directly from Seller.

(c) Any payment to the Seller Indemnitees in respect of any claim for indemnification properly asserted by the Seller Indemnitees under this Article IX shall be paid by wire transfer by

 

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Buyer of immediately available funds to an account designated in writing by Seller within five (5) Business Days after the date of the final determination of any amounts due and owing under this Article IX .

(d) On the twenty-four (24) month anniversary of the Closing (the “ Escrow Release Date ”), the Escrow Agent shall release all or a portion of the funds remaining in the Escrow Account to Seller such that, following such release, the amount remaining in the Escrow Account, if any, equals not less than the aggregate amount of claims for Buyer Claim Notices that have been delivered by Buyer pursuant to Section 9.08(a) prior to the Escrow Release Date, but not yet resolved (such unresolved indemnity claims, the “ Unresolved Indemnity Claims ”). To the extent applicable, the amounts retained for the Unresolved Indemnity Claims shall be released by the Escrow Agent to the applicable Party upon final resolution of such Unresolved Indemnity Claims.

Section 9.09. Releases .

(a) Effective upon the Closing, Buyer and, from and after the Closing, the Company and the Company Subsidiaries and, in each case, each of their respective partners, members, Affiliates, directors, officers, employees, controlling persons, agents, representatives, successors and assigns (collectively, the “ Releasing Parties ”) shall be deemed to have remised, released and forever discharged Seller and its direct and indirect equity holders and their respective Affiliates, and any of the respective partners, members, Affiliates, directors, officers, employees, trustees, controlling persons and agents of any of the foregoing (collectively, the “ Released Parties ”) of and from any and all claims which the Releasing Parties, or any of them, now have, ever had, or at the Closing may have, or hereafter shall or may have, against the Released Parties, or any of them, for, upon or by reason of any matter, cause or thing whatsoever from the beginning of time through the Closing Date, except, for claims for indemnification in accordance with Article IX . For the avoidance of doubt, Buyer is not releasing (i) any claims with respect to Fraud, (ii) any Released Party that is party to a commercial Contract with Buyer, the Company or the Company Subsidiaries with respect to any matters or claims, known or unknown, arising out of such Contracts, and (iii) (x) any employee continuing with the business (solely in its capacity as such), (y) any Released Parties who are D&O Indemnitees with respect to any matters which would not entitle such Released Party to exculpation and indemnification pursuant to Section 5.10 because the conduct of such Released Party did not comply with the standards therefor set forth under Law or any Organizational Documents of the Seller, the Company or the Company Subsidiaries, as applicable, or (z) any hotel owner (solely in its capacity as such), with respect to any matters or claims, known or unknown, related to or arising out of the prior or ongoing business of the Company and the Company Subsidiaries which the Company or the Company Subsidiaries may have with respect to such persons or entities. As of the Closing Date, Buyer, on behalf of each of the Releasing Parties, expressly acknowledges that it has had the opportunity to be advised by independent legal counsel and hereby waives and relinquishes, and does so understanding and acknowledging the significance and consequence of such specific waiver, all rights and benefits afforded by Section 1542 of the California Civil Code (and any analogous law of any other state, locality or other jurisdiction), which provides:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR

 

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HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.

(b) Buyer, on behalf of each of the Releasing Parties, hereby agrees that if any Releasing Party hereafter commences, joins in or in any manner seeks relief through any suit arising out of, based upon or relating to any of the claims released hereunder, or in any manner asserts against any Released Party any of the claims released hereunder, then such Releasing Parties will pay to such Released Party, in addition to any other Damages, direct or indirect, all attorneys’ fees incurred in defending or otherwise responding to such suit or claims.

(c) Effective upon the Closing, Seller shall be deemed to have remised, released and forever discharged the Company and the Company Subsidiaries of and from any and all claims which Seller now has, ever had, or at the Closing may have, or hereafter shall or may have, against the Company or the Company Subsidiaries, or any of them, for, upon or by reason of any matter, cause or thing whatsoever from the beginning of time through the Closing Date, except for claims (i) arising under this Agreement, (ii) arising from and after the Closing in connection with any commercial Contract between Seller and the Company or the Company Subsidiaries with respect to any matters or claims, known or unknown, arising out of such Contracts and (iii) arising in connection with any third party claim against Seller to the extent such third party claim is related to the business conducted by the Company and the Company Subsidiaries (other than the Asset Management Business). The provisions of the last sentence of Section 9.09(a) and the provisions of Section 9.09(b) shall apply to Seller with respect to the release provided herein, mutatis mutandis .

ARTICLE X

T ERMINATION

Section 10.01. Termination . This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing:

(a) by mutual written agreement of Seller and Buyer;

(b) by Seller or Buyer if any Governmental Authority having competent jurisdiction has issued a final, non-appealable order, decree, ruling or injunction or taken any other Action permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement; provided that this right of termination shall not be available to any Party whose failure to comply with its obligations under this Agreement has been the primary cause of, or has primarily resulted in, such order, decree, ruling, injunction or other Action;

(c) by Seller or Buyer if any of the conditions set forth in Sections 8.01 , 8.02 and 8.03 of this Agreement, as applicable, have not been satisfied or waived on or prior to April 15, 2015 (the “ Outside Date ”); provided , that if on April 15, 2015 all of the conditions set forth in Article VII have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing) except for the conditions set forth in Section 8.01(b) or Section 8.01(c) , the Outside Date may be extended by either Party in writing, on one or more occasions to a date no later than August 15, 2015; provided , further , that this right of termination shall not

 

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be available to any Party whose failure to comply with its obligations under this Agreement has been the primary cause of, or has primarily resulted in, the failure of any such conditions to be satisfied before such date;

(d) by Buyer upon written notice to Seller, in the event of a breach of any representation, warranty, covenant or agreement on the part of Seller, such that the conditions specified in Section 8.02 would not be satisfied at the Closing, and which, (i) with respect to any such breach that is capable of being cured, is not cured by Seller within thirty (30) days after receipt of written notice thereof or (ii) is incapable of being cured prior to the Outside Date; provided that Buyer shall not have the right to terminate this Agreement pursuant to this Section 10.01(d) if it is then in material breach of any of its representations, warranties, covenants or agreements set forth in this Agreement;

(e) by Seller upon written notice to Buyer, in the event of a breach of any representation, warranty, covenant or agreement contained in this Agreement on the part of Buyer, such that the conditions specified in Section 8.03 would not be satisfied at the Closing, and which, (i) with respect to any such breach that is capable of being cured, is not cured by Buyer within thirty (30) days after receipt of written notice thereof, or (ii) is incapable of being cured prior to the Outside Date; provided that Seller shall not have the right to terminate this Agreement pursuant to this Section 10.01(e) if Seller is then in material breach of any of its representations, warranties, covenants or agreements set forth in this Agreement; or

(f) by Seller or Buyer if, prior to the receipt of the Seller Member Approval, (i) the Seller Managing Board shall have effected a Change of Recommendation and (ii) either (x) the Seller Member Approval shall not have been received at, or within the three (3) day period following the completion of, a duly called Seller Member Meeting or (y) if no such Seller Member Meeting has been called, the Seller Member Approval shall not have been obtained within ten (10) days following the request by the Seller Managing Board for the written approval of Seller’s members without a meeting to approve this Agreement and the consummation of the transactions contemplated hereby for the purposes of obtaining the Seller Member Approval in accordance with the Organizational Documents of Seller.

Section 10.02. Effect of Termination .

(a) In the event of termination of this Agreement pursuant to Section 10.01 , this Agreement shall forthwith become null and void and have no effect, without any Liability on the part of any Party hereto; provided , however , that the last sentence of Section 5.03(b) , the provisions of this Section 10.02 and Article XI hereof and, except as set forth in Section 10.02(c) , any Liability of any Party for any willful breach of this Agreement prior to such termination shall survive any termination of this Agreement. The Confidentiality Agreement shall not be affected by a termination of this Agreement.

(b) In the event that this Agreement is terminated pursuant to Section 10.01(f) , then Seller shall pay to Buyer an amount equal to $25,800,000 (the “ Termination Fee ”) no later than the second Business Day following such termination by wire transfer of immediately available funds.

 

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(c) Notwithstanding anything to the contrary in this Agreement, in the event that the Termination Fee is payable and actually paid to Buyer in accordance with this Section 10.02 , payment of the Termination Fee shall be the sole and exclusive remedy of Buyer and its Affiliates and each of their respective partners, members, Affiliates, directors, officers, employees, controlling persons, agents, representatives, successors and assigns against Seller and its direct and indirect equity holders and their respective Affiliates, and any of the respective partners, members, Affiliates, directors, officers, employees, trustees, controlling persons and agents of any of the foregoing, for any Damages based upon, arising out of or relating to this Agreement or the negotiation, execution or performance hereof or the transactions contemplated hereby. Solely for purposes of establishing the basis for the amount thereof, and without in any way increasing the amount of the Termination Fee, expanding the circumstances in which the Termination Fee is to be paid or restricting or modifying the other rights of any party hereunder, in the event of the valid termination of this Agreement under circumstances in which the Termination Fee is payable pursuant to this Section 10.02 , it is agreed that the Termination Fee is liquidated damages, and not a penalty, and the payment thereof in such circumstances is supported by due and sufficient consideration

ARTICLE XI

M ISCELLANEOUS

Section 11.01. Notices . All notices, requests, claims, demands and other communications required or permitted hereunder shall be in writing and shall be deemed sent, given and delivered (a) immediately if given by personal delivery, (b) one (1) day after deposit with an overnight delivery service, (c) three (3) days after deposit in the mail via registered or certified mail (return receipt requested) to the Parties at the following addresses (or at such other address for a Party as shall be specified by like notice) and (d) upon confirmation of receipt if given by electronic mail or other customary means of electronic communication (provided that any notice sent via any means of electronic communication must also be sent by a second means set forth above) as provided below:

if to Buyer, to:

Dunwoody Operations, Inc.

c/o InterContinental Hotels Group

Three Ravina Drive, Suite 100

Atlanta, Georgia 30346-2149

Attention: Corp. Finance, Acq. & Mergers, Bob Chitty

Email: Bob.chitty@ihg.com

with a copy (which shall not constitute notice) to

InterContinental Hotels Group

Three Ravina Drive, Suite 100

Atlanta, Georgia 30346-2149

Attention: Legal Dept. - Paul Huang

Email: Paul.huang@ihg.com

 

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and

DLA Piper LLP (US)

One Fountain Square

11911 Freedom Drive, Suite 300

Reston, Virginia 20190

Attention: Jay Gary Finkelstein

Email: Jay.finkelstein@dlapiper.com

if to Seller, to:

Kimpton Group Holding LLC

222 Kearny Street, Suite 200

San Francisco, California 94108

Attention:       Judy Miles

Email: judy.miles@kimptongroup.com

with a copy (which shall not constitute notice) to:

Latham & Watkins LLP

885 Third Avenue

New York, New York 10022

Attention: Edward Sonnenschein
Gary Axelrod
Email: ted.sonnenschein@lw.com
Gary.Axelrod@lw.com

or to such other address or facsimile number as any Party shall notify the other Parties (as provided above) from time to time. All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. in the place of receipt and such day is a Business Day in the place of receipt. Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding Business Day in the place of receipt.

Section 11.02. Amendments and Waivers .

(a) Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed, in the case of an amendment, by Seller and Buyer, or in the case of a waiver, by the Party against whom the waiver is to be effective.

(b) No failure or delay by any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. Except as otherwise provided in Section 9.06 or Section 10.02 , the rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by Law.

 

69


Section 11.03. Expenses . Regardless of whether the transactions provided for in this Agreement are consummated, except as otherwise provided herein, each Party shall pay its own expenses incident to this Agreement and the transactions contemplated herein.

Section 11.04. Governing Law; Jurisdiction; WAIVER OF JURY TRIAL .

(a) This Agreement, and all Actions (whether in contract or tort) that may be based upon, arise out of or relate to this Agreement or the negotiation, execution or performance hereof (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall be governed by and construed in accordance with the law of the State of New York, without regard to the choice of law or conflicts of law principles thereof. The Parties expressly waive any right they may have, now or in the future, to demand or seek the application of a governing law other than the law of the State of New York.

(b) Each of the Parties hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the state courts sitting in the borough of Manhattan of the State of New York or, if such courts shall not have jurisdiction, any federal court of the United States of America sitting in the borough of Manhattan of the State of New York, and any appellate court from any appeal thereof, in any Action arising out of or relating to this Agreement or the other Transaction Documents or the transactions contemplated hereby or thereby or for recognition or enforcement of any judgment relating thereto, and each of the Parties hereby irrevocably and unconditionally (i) agrees not to commence any such Action except in such courts, (ii) agrees that any claim in respect of any such Action may be heard and determined in any state court sitting in the borough of Manhattan of the State of New York or, to the extent permitted by Law, in such federal court, (iii) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any such Action in the borough of Manhattan of the State of New York or such federal court and (iv) waives, to the fullest extent permitted by Law, the defense of an inconvenient forum to the maintenance of such Action in the borough of Manhattan of the State of New York or such federal court. Each of the Parties agrees that a final judgment in any such Action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law. Each Party irrevocably consents to service of process in the manner provided for notices in Section 11.01 . Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by Law.

(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE OTHER TRANSACTION DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH

 

70


WAIVERS, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES SUCH WAIVERS VOLUNTARILY AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11.04(c) .

Section 11.05. Assignment; Successors and Assigns; No Third Party Beneficiaries . Except as otherwise provided herein, this Agreement may not, without the prior written consent of the other Parties, be assigned by operation of Law or otherwise, and any attempted assignment shall be null and void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, successors, permitted assigns and legal representatives. No provision of this Agreement is intended to confer any rights, benefits, remedies or Liabilities hereunder upon any Person other than the Parties and their respective successors and assigns; provided , however , that the Indemnified Parties and the Released Parties shall be express third party beneficiaries of and have the right to enforce Article IX and the D&O Indemnitees shall be express third party beneficiaries of and have the right to enforce Section 5.10 .

Section 11.06. Counterparts; Effectiveness . This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement shall become effective when each Party shall have received a counterpart hereof signed by all of the other Parties. Until and unless each Party has received a counterpart hereof signed by the other Parties, this Agreement shall have no effect and no Party shall have any right or obligation hereunder (whether by virtue of any other oral or written agreement or other communication). The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission in .PDF or other equivalent format or by facsimile shall be sufficient to bind the Parties to the terms and conditions of this Agreement.

Section 11.07. Entire Agreement . This Agreement, including the Exhibits and Schedules attached thereto and the Transaction Documents constitute the entire agreement among the Parties with respect to the matters covered hereby and supersedes all previous written, oral or implied understandings among them with respect to such matters.

Section 11.08. Severability . If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other Governmental Authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such a determination, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.

Section 11.09. Specific Performance . The Parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached and that any breach of this Agreement would not be adequately compensated by monetary damages. Accordingly, each Party agrees

 

71


that the other Parties shall be entitled to injunctive relief to prevent any such failure of performance or breach and to enforce specifically this Agreement and any of the terms and provisions hereof, in each case without proof of actual damages and without posting any bond or other indemnity, in addition to any other remedy to which it may be entitled at law or in equity.

Section 11.10. Disclosure Schedule . The Parties acknowledge and agree that (a) the inclusion of any items or information in the Disclosure Schedules that are not required by this Agreement to be so included is solely for the convenience of Buyer, (b) the disclosure by Seller of any matter in the Disclosure Schedules shall not be deemed to constitute an acknowledgement by Seller that the matter is required to be disclosed by the terms of this Agreement or that the matter is material or significant, (c) if any section of the Disclosure Schedules lists an item or information in such a way as to make its relevance to the disclosure required by or provided in another section of the Disclosure Schedules or the statements contained in any Section of this Agreement reasonably apparent, the matter shall be deemed to have been disclosed in or with respect to such other Section, notwithstanding the omission of an appropriate cross-reference to such other Section or the omission of a reference in the particular representation and warranty to such section of the Disclosure Schedule, (d) except as provided in clause (c)  above, headings have been inserted in the Disclosure Schedules for convenience of reference only, (e) the Disclosure Schedules are qualified in their entirety by reference to specific provisions of this Agreement and (f) the Disclosure Schedules and the information and statements contained therein are not intended to constitute, and shall not be construed as constituting, representations or warranties of Seller except as and to the extent provided in this Agreement.

Section 11.11. Retention of Counsel .

(a) Buyer, for itself and the Company and the Company Subsidiaries, and for Buyer’s and the Company’s and the Company Subsidiaries’ respective successors and assigns, irrevocably acknowledges and agrees that all communications between Seller, on the one hand, and counsel, on the other hand, including the general counsel of Seller and the attorneys in Seller’s legal department reporting to her and Latham & Watkins LLP (“Seller’s Counsel”), made in connection with the negotiation, preparation, execution, delivery and closing under, or any dispute or Action arising under or in connection with, this Agreement, which, immediately prior to the Closing, would be deemed to be privileged communications of Seller and/or any of its respective Subsidiaries (including the Company and the Company Subsidiaries) and their counsel and would not be subject to disclosure to Buyer in connection with any process relating to a dispute arising under or in connection with this Agreement or otherwise and shall continue after the Closing to be privileged communications between Seller and such counsel, and neither Buyer nor any Person acting or purporting to act on behalf of or through Buyer shall seek to obtain the same by any process on the grounds that the privilege attaching to such communications belongs to the Company and/or the Company Subsidiaries and not Seller. Buyer and the Company and the Company Subsidiaries agree that any attorney-client privilege, attorney work-product protection and expectation of client confidence arising from or as a result of any counsel’s representation of the Company and the Company Subsidiaries, or Seller prior to the Closing, and all information and documents covered by such privilege or protection, shall belong to and be controlled by Seller and may be waived only by Seller, and not the Company or the Company Subsidiaries and shall not pass to or be claimed or used by Buyer, the Company or any Company Subsidiary.

 

72


(b) It is acknowledged by each of the Parties that Seller, the Company and the Company Subsidiaries retained Seller’s Counsel to act as its counsel in connection with the transactions contemplated hereby and that Seller’s Counsel has not acted as counsel for any other Party in connection with the transactions contemplated hereby and that no other Party has the status of a client of Seller’s Counsel for conflict of interest or any other purposes as a result thereof. Seller and Buyer hereby agree that, in the event that any dispute, or any other matter in which the interests of Seller, its Affiliates and its direct and indirect equity holders, on the one hand, and Buyer and its Affiliates (including the Company and the Company Subsidiaries following the Closing), on the other hand, are adverse, arises after the Closing between Buyer or the Company or any of the Company Subsidiaries, on the one hand, and Seller, its Affiliates and its direct and indirect equity holders, on the other hand, Seller’s Counsel may represent Seller, its Affiliates and its direct and indirect equity holders in such dispute even though the interests of Seller, its Affiliates and its direct and indirect equity holders may be directly adverse to Buyer or, following the Closing, the Company or any of the Company Subsidiaries, and even though Seller’s Counsel formerly may have represented one or more of the Company or Company Subsidiaries in any matter substantially related to such dispute.

[ Signature pages follow. ]

 

73


SELLER:
KIMPTON GROUP HOLDING LLC
By: LOGO
 

 

Name: Michael A. Depatie
Title: CEO

 

[Signature Page to Purchase and Sale Agreement]


BUYER:
DUNWOODY OPERATIONS, INC.
By: LOGO
 

 

Name:

Richard Solomons

Title:

Authorized Representative

 

[Signature Page to Purchase and Sale Agreement]


The exhibits and schedules to this sale and purchase agreement have been omitted from the filing. The following is a list of omitted exhibits and schedules and a brief description of each. InterContinental Hotels Group PLC agrees to furnish to the Securities and Exchange Commission, upon its request, a copy of any such omitted exhibits and schedules:

Exhibit A: Form of Support Agreement

Exhibit B: Calculation Principles

Exhibit C: Form of Assignment and Assumption Agreement

Exhibit D: Escrow Agreement

Exhibit E: FIRPTA Certificate

Exhibit F: Sample Preliminary Closing Statement

Exhibit 4(a)(iii)

 

 

DATED 7 December 2014

(1) BHR Holdings BV

- and -

(2) Constellation Hotels France Grand SA

AGREEMENT

relating to

the sale and purchase of

100% of the shares issued by

Société Des Hotels InterContinental France

 

LOGO


C ONTENTS

 

1.

DEFINITIONS AND INTERPRETATION

  1   
2.

SALE AND PURCHASE OF SHARES

  9   
3.

CONSIDERATION

  9   
4.

CONDITIONS

  11   
5.

PRE-COMPLETION MATTERS

  13   
6.

COMPLETION

  17   
7.

PURCHASER WARRANTIES

  18   
8.

SELLER WARRANTIES

  19   
9.

TAX

  20   
10.

SELLER LIMITATIONS

  21   
11.

SELLER CLAIMS HANDLING

  27   
12.

POST COMPLETION COVENANTS

  30   
13.

CONFIDENTIALITY AND ANNOUNCEMENTS

  31   
14.

GROUP SEPARATION MATTERS

  32   
15.

EFFECT OF TERMINATION

  34   
16.

ASSIGNMENT

  34   
17.

THIRD PARTY RIGHTS

  35   
18.

COSTS AND EXPENSES

  35   
19.

PAYMENTS, ETC.

  35   
20.

FURTHER ASSURANCE

  36   
21.

ENTIRE AGREEMENT

  36   
22.

GENERAL

  36   
23.

NOTICES

  37   
24.

GOVERNING LAW, ARBITRATION AND LANGUAGE

  39   
SCHEDULE 1: WARRANTED INFORMATION   40   
1.

SOCIÉTÉ NOUVELLE DU GRAND HOTEL

  41   
2.

GRAND HOTEL INTER-CONTINENTAL PARIS

  41   
3.

BHR SERVICES (FRANCE)

  42   
SCHEDULE 2: WARRANTIES   46   
1.

THE SELLER

  46   
2.

THE SHARES

  46   
3.

THE GROUP COMPANIES

  47   
4.

INTERESTS IN OTHER COMPANIES, ETC.

5.

CONSTITUTIONAL AND CORPORATE DOCUMENTS

  47   
6.

INSOLVENCY

  47   

7.

ACCOUNTS

  48   

 

 


8.

PERIOD SINCE THE ACCOUNTS DATE

  48   
9.

FUNDING

  48   
10.

ASSETS

  49   
11.

LISTED LIABILITIES

  49   
12.

DEBTORS

  49   
13.

REAL PROPERTY

  49   
14.

OCCUPATION OF THE OWNED PROPERTY

  51   
15.

ENVIRONMENTAL MATTERS

  51   
16.

INSURANCE

  52   
17.

IP

  52   
18.

IT SYSTEMS

  53   
19.

DATA PROTECTION

  53   
20.

GUARANTEES, ETC.

  53   
21.

MATERIAL CONTRACTS

  53   
22.

LICENCES

  54   
23.

POWERS OF ATTORNEY

  54   
24.

EMPLOYEES AND TERMS OF EMPLOYMENT

  54   
25.

COLLECTIVE AGREEMENTS, ETC.

  55   
26.

EMPLOYMENT DISPUTES

  55   
27.

PENSION BENEFITS

  55   
28.

COMPLIANCE WITH LAWS

  55   
29.

LITIGATION

  55   
30.

TAX RETURN AND PAYMENTS

  56   
SCHEDULE 3: DISCLOSURES   57   
SCHEDULE 4: COMPLETION OBLIGATIONS   75   
1.

PAYMENT OBLIGATIONS OF THE SELLER GROUP

  75   
2.

DOCUMENTS

  75   
3.

OTHER OBLIGATIONS

  75   
1.

PAYMENT OF THE CONSIDERATION

  76   
2.

DOCUMENTS

  76   
SCHEDULE 5: COMPLETION STATEMENTS   77   
1.

CONTENTS

  77   
2.

BASES OF PREPARATION

  77   
3.

SUBMISSION OF DRAFT COMPLETION STATEMENTS

  77   
4.

AGREEMENT OR DETERMINATION OF DRAFT COMPLETION STATEMENTS

  77   
5.

RECORDS, ETC.

  78   
1.

APPOINTMENT OF EXPERT

  79   
2.

PROCEDURE

  79   
3.

DETERMINATION OF EXPERT

  80   

 

 


1.

PAYMENTS MADE ON COMPLETION

  84   
2.

NO DOUBLE COUNTING

  84   
3.

TAX

  84   

SCHEDULE 6: REORGANISATION

  85   

 

 


THIS AGREEMENT is made on 7 December 2014,

BETWEEN:

 

(1) BHR Holdings BV , a company incorporated in the Netherlands with number 33220835 which has its registered office at Amsterdam, the Netherlands ( “Seller” ), duly represented by Mrs Daisy Llewellyn; and

 

(2) Constellation Hotels France Grand SA , a company incorporated in Luxembourg with number B 190364 which has its registered office at 15, boulevard Roosevelt, L- 2450 Luxembourg ( “Purchaser” ), duly represented by                     .

BACKGROUND:

 

A. Société Des Hotels InterContinental France (the “Company” ) is a société par actions simplifiée incorporated in France. Further information relating to the Company and its Subsidiaries is set out in parts 1 and 2 of schedule 1.

 

B. Constellation Hotels Holding Limited, a company incorporated in Luxembourg, which has its registered office at 15, Boulevard Roosevelt, L-2450 Luxembourg, Luxembourg ( “Constellations” ) sent on 7 August 2014 an irrevocable offer to the Seller under which it undertook, upon satisfaction of certain conditions, to acquire 100% of the Shares owned by the Seller. On the same day, Constellations, the Seller and the Escrow Agent have entered into an “escrow convention” pursuant to which Constellations has deposited the amount of € 20,000,000 (twenty million euros) on an escrow account guaranteeing the enforcement by Constellations of its obligations under the above referred firm offer (the “Deposit” ). For the purpose of the acquisition of the Shares, Constellations has transferred its rights and obligations to the Purchaser under the firm offer and the escrow convention.

 

C. The Seller owns 100% of the Shares. The Seller has agreed to sell and the Purchaser has agreed to purchase the Shares on the terms set out in this agreement.

 

D. Prior to the execution of this agreement, each of the Seller and the Purchaser has complied with the applicable employee information/consultation obligations.

IT IS AGREED:

 

1. DEFINITIONS AND INTERPRETATION

 

1.1 In this agreement:

“Accounts” means the financial statements of each Group Company in their final form as at and for the financial year ended on the Accounts Date, comprising its balance sheet, profit and loss account and other statements and all attached notes and reports and drawn up in accordance with the French generally accepted accounting principles;

“Accounts Relief” means a Relief which is treated as an asset taken into account in the Completion Statements and/or has been taken into account for the calculation of the Consideration and/or the Working Capital, or is taken into account in computing (and so reducing or eliminating) any provision for Tax which appears, or which but for the presumed availability of the Relief would have appeared, in the Completion Statements;

 

 

1


“Accounts Date” means the last day of the fiscal year ended before the year during which this agreement is signed;

“Acquisition” means the proposed acquisition of the Shares by the Purchaser on the terms of this agreement;

“Acquisition Documents” means this agreement (including its schedules), the Agreed Form documents and any other documents to be delivered on Completion;

“Actual Tax Liability” means any liability of a Group Company to make a payment of or increased payment of Tax whether or not such Tax is also or alternatively chargeable against or attributable to any other person;

“Affiliate” , in relation to a company, means any other company directly or indirectly controlling, controlled by or under common control with such company, and “control” for these purposes means (a) holding the majority of the voting rights or share capital of such company or (b) otherwise having the power to direct the management and policies of such company;

“Agreed Form” , in relation to a document, means the form approved and for identification purposes initialled by (or on behalf of) the Seller and the Purchaser;

“Authority” means any supra-national, national or sub-national authority, commission, department, agency, regulator, regulatory body, court, tribunal or arbitrator;

“Business” means the business of owning and operating the hotel known as ‘InterContinental Paris - Le Grand’ at the Property;

“Business Day” (other than in clause 23 (Notices)) means any day other than a Saturday or Sunday on which commercial banks are open for general business in London and Paris;

“Cash” means the aggregate amount of cash (including cash in hand, in transit and at bank, together with accrued interest) and cash equivalents (including liquid or easily realisable stocks, shares, bonds, treasury bills and other similar securities) held by or on behalf of all Group Companies, and as such sum shall be calculated as at close of business on the Completion Date derived from the books and records of the Group Companies, as stated in the Completion Statements, in all cases excluding the amounts taken into consideration in the Intra-Group Debt (i.e. corresponding to the sum of the items identified in part 3 of schedule 5, and as such sum shall be calculated as at close of business on the Completion Date as stated in the Completion Statements);

“Claim” means any claim against the Seller in relation to this agreement;

“Completion” means completion of the sale and purchase of the Shares in accordance with this agreement;

“Completion Date” means the 10 th Business Day after the date on which the Conditions have been satisfied, or such other date as may be agreed in writing between the Seller and the Purchaser;

“Completion Payment” has the meaning given in clause 3.3;

“Completion Statements” means the statements to be prepared and agreed or determined in accordance with schedule 5;

 

 

2


“Conditions” means the conditions set out in clause 4.1, and “Condition” means any one of them;

“Consideration” means the consideration for the Shares set out in clause 3.1;

“Construction Documents” means contracts entered into by the Seller or any member of the Seller Group relating to the design, management or construction of any building or refurbishment works at the Property;

“Control” means having the ability, whether directly or indirectly, whether through exercise or non-exercise of any voting power in a general meeting, or whether by agreement or otherwise, to direct decisively the business affairs of a company;

“Damages” has the meaning given in clause 8.2;

“Debt” means the aggregate amount (expressed as a positive number) of (i) all long term debt of the Group Companies (other than between Group Companies) and (ii) the Intra-Group Debt corresponding to the sum of the items identified in part 3 of schedule 5, and as such sum shall be calculated as at close of business on the Completion Date as stated in the Completion Statements;

“Defendant Claim” means any actual or potential demand, claim or action by a third party against the Purchaser Group which has given or is likely to give rise to a Warranty Claim;

“Deposit” has the meaning given in the recitals;

“Determination Date” has the meaning given in clause 5.7.1.1;

“Disclosed Information” means the information fairly disclosed in the Disclosure Schedule and the Due Diligence Information;

“Disclosure Schedule” means schedule 3;

“Dispute” means any dispute or claim arising out of or in connection with this agreement, its subject matter or formation (including any non-contractual dispute or claim);

“Due Diligence Information” means the reports, information and documents contained in the electronic data room maintained by Merrill Datasite in relation to the Group Companies and their respective businesses and assets as listed in the index in the Agreed Form (a download of which has, for evidential purposes, been delivered to the Purchaser on CD-ROM immediately before the signing of this agreement), and the information contained in the Q&A feature of the data room;

“ECMR” has the meaning given in clause 4.1.1;

“Encumbrance” means any mortgage, charge, pledge, lien, option, restriction, assignment, right to acquire, right of pre-emption or any other form of right, interest, preference, security or encumbrance of any nature in favour of a third party or any agreement, arrangement or obligation to create any of them;

“Escrow Agent” means Société Générale;

“Estimated Cash” , “Estimated Debt” and “Estimated Working Capital” each have the meaning given in clause 3.2;

 

 

3


“Excepted Contracts” means contracts and arrangements that (i) expire prior to Completion or (ii) are terminated prior to Completion at the Seller’s cost and expense;

“Exit Agreement” has the meaning given in clause 14.4;

“French Competition Authority” has the meaning given in clause 4.1.2;

“Group Companies” means the Company and the Subsidiaries, and “Group Company” means any of them;

“Interest Rate” means the three months’ EURIBOR + 700 bps, calculated on the basis of the actual number of days elapsed from the date on which is payment is due to the date of the actual payment over a 360 day annual period;

“Intra-Group Debt” means:

 

    the aggregate amount owed by the Group Companies to the Seller Group; less

 

    the aggregate amount owed by the Seller Group to the Group Companies,

excluding in each case any amounts owed in respect of ordinary course of trading necessary for the continuation of the Business or intra-group services, as at close of business on the Completion Date as stated in the Completion Statements;

“IP” means:

 

    patents, rights in inventions, know-how, show-how and trade secrets, copyright and related rights, moral rights, registered designs, design rights, database rights, semiconductor topography rights, trademarks and service marks, trade names, business names, brand names, get-up, logos, domain names and URLs, rights in unfair competition, goodwill and rights to sue for passing-off and any other intellectual property rights (in each case, whether or not registered, and including all applications to register and rights to apply to register any of them, and all rights to sue for any past or present infringement of them); and

 

    all rights or forms of protection having equivalent or similar effect in any jurisdiction;

“Key Warranties” means the Warranties in paragraphs 1 (The Seller), 2 (The Shares), and 3 (The Group Companies) of schedule 2;

“Leased Property” means the buildings leased by any Group Company as tenant as detailed in part 4 of schedule 1;

“Listed Liabilities” means: (i) all amounts owing or accrued due by or liabilities of the Group Companies (other than in relation to ownership or occupation of the Property) to the extent referable to the period prior to Completion including liabilities in respect of bank borrowing or any other indebtedness in the nature of borrowing; (ii) any and all liabilities arising in respect of any claims brought against the Group Companies in relation to belongings of guests of the hotel located in the Property which the claimant claims were checked in any safe deposit box of this hotel (excluding hotel room safe deposit boxes) at Completion to the extent such claims are not insured; and (iii) all amounts owing or accrued due by or liabilities of the Seller or a member of the Seller Group in connection with the Construction Documents (other than in relation to ownership or occupation of the Property) to the extent referable to the period prior to Completion (including amounts due under any final

 

 

4


account or final statement issued following Completion which are attributable to amounts due for works undertaken prior to Completion), but in each case (a) only to the extent such liabilities have not been taken into account in calculating the Completion Statements and (b) explicitly excluding any Tax due in relation to such Listed Liabilities;

“Longstop Time” means 6pm CET on 31 July 2015, or such other time and date as may be agreed in writing between the Seller and the Purchaser;

“MAE Claim Notice” has the meaning given in clause 5.6;

“MAE Expert” has the meaning given in clause 5.6.2;

“Management Agreement” means the Hotel Management Agreement for InterContinental Paris Le Grand Hotel between members of the Group Companies and the Seller Group;

“Management Agreement Suite” means the Management Agreement and the following agreements, each in the Agreed Form, to be entered into on Completion between members of the Seller Group and the Purchaser and/or the Group Companies pursuant to the Management Agreement:

 

    the Holidex Agreement;

 

    the ECS Agreement;

 

    the Accounting Services Agreement; and

 

    the Non-disturbance Agreement,

in each case as defined in the Management Agreement as well as attached thereto;

“Material Adverse Effect” means (i) the destruction, closure or other inability to use guest rooms or other material facilities at the Property, other than through routine maintenance or planned works, which together result in: (a) 75% of the guest rooms of the Property being destroyed or reasonably likely to be closed or unable to be used for a period not less than 22 Business Days between the signing of this agreement and Completion; (b) 50% of the guest rooms of the Property being destroyed or reasonably likely to be closed or unable to be used for a period not less than 65 Business Days between the signing of this agreement and Completion; or (ii) any act, event or circumstance that has a negative effect on the ownership of the Property such that the value of the Property is reduced by 10% or more of the Consideration, in each case that arises after the date of signing this agreement and will continue until immediately prior to Completion but excluding in each case any such material adverse effect resulting from:

 

    changes in stock markets, interest rates, exchange rates, commodity prices or other general economic conditions;

 

    changes in conditions generally affecting the hotel industry;

 

    changes in laws, regulations or accounting practices;

 

    an act of terrorism;

 

    matters disclosed in the Disclosed Information; or

 

    the transactions contemplated by this agreement or the change of control resulting from those transactions.

 

 

5


“Material Contract” has the meaning given in clause 5.2.8;

“Member” has the meaning given in clause 14.4;

“Merger Conditions” has the meaning given in clause 4.2;

“Owned Property” means the co-ownership lots owned by any Group Company as detailed in part 3 of schedule 1;

“Payment Account” has the meaning given in clause 19.1;

“Pension Schemes” means the pension plans applicable to the Group Companies’ employees and disclosed at Disclosure Schedule;

“Post Completion Relief” means a Relief to the extent that it arises by reference to an event occurring, or deemed for any Tax purpose to occur, after Completion or in respect of a period commencing (or part of a period falling) after Completion (but excluding any Relief to the extent that it was available before Completion and/or to the extent that it is treated as an asset in the calculation of, or is taken in to account in computing, the Completion Statements;

“Property” means together the Owned Property and the Leased Property;

“Purchaser Group” means each or any of (a) the Purchaser and any Affiliate of the Purchaser for the time being, and (b) with effect from Completion, each Group Company (and any reference to “member of the Purchaser Group” or, in the case of any member of the Purchaser Group, to “its group” shall be construed accordingly);

“Recognised Investment Exchange” means any recognised investment exchange (as such term is defined in s285 Financial Services and Markets Act 2000, as amended) or an investment exchange that has been recognised by the UK Financial Services Authority as a designated investment exchange;

“Recovery Claim” means any right which the Purchaser Group has, or becomes entitled to, (including under any insurance policy or by way of payment, set-off, claim or otherwise) to recover any monies from a third party in relation to anything that has given or is likely to give rise to a Warranty Claim or another Claim;

“Referral Date” has the meaning given in clause 5.6.2;

“Relevant Accounting Period(s)” has the meaning given in clause 9.1;

“Relief” means any loss, relief, allowance, credit, deduction, exemption or set-off in each case in respect of Tax or the computation of income, profits or gains for the purpose of any Tax and any right to repayment of Tax;

“Reorganisation” means each of the actions regarding the reorganisation of the Group Companies listed in schedule 6;

“Request” has the meaning given in clause 11.3.2;

 

 

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“Seller Group” means each or any of the Seller and any Affiliate of the Seller for the time being, excluding each Group Company (and any reference to “member of the Seller Group” or, in the case of any member of the Seller Group, to “its group” shall be construed accordingly);

“Service Document” means a claim form, summons, order, judgment or other process relating to or in connection with any proceeding, suit or action arising out of or in connection with this agreement;

“Shares” means the 14,319,044 shares representing 100% of the share capital and the voting rights of the Company;

“Subsidiaries” means those companies detailed in part 2 of schedule 1, and “Subsidiary” means any of them;

“Target Working Capital” means the amount of € 0 (nil);

“Tax” means any form of taxation and duty, impost, reassessment or tariff in each case in the nature of taxation, whether chargeable directly or primarily against or attributable directly or primarily to the Group Companies or any other person, and including any social security and payroll taxes as well as including all interest and penalties thereon (save to the extent such penalties or interest are attributable to unreasonable delay by the Purchaser or by any member of the Purchaser Group after Completion), but excluding the local taxes ( impôts locaux ), property rates and all other similar rates and charges and other local (including for the avoidance of doubt regional) authority rates or charges;

“Tax Authority” means any Authority competent to impose, assess, collect or administer any Tax;

“Tax Computations” has the meaning given in clause 9.1;

“Tax Group” has the meaning given in clause 14.4;

“Tax Warranties” means the Warranties in paragraph 30 (Tax return and payments) of schedule 2;

“VAT” means value added tax or any equivalent Tax on the supply of goods and services in any jurisdiction;

“Warranties” means the warranties given by the Seller in clause 8.1 and schedule 2;

“Warranty Claim” means any Claim in relation to any Warranty; and

“Working Capital” means:

 

  (a) current assets (including these items listed under ‘Current Assets’ part 3 of schedule 5); less

 

  (b) current liabilities (including these items listed under ‘Current Liabilities’ in items identified in part 3 of schedule 5),

as at close of business on the Completion Date as stated in the Completion Statements, but in all cases excluding the amounts taken into consideration for the calculation of Cash and Debt.

 

 

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1.2 In this agreement (unless the context requires otherwise):

 

  1.2.1 “€” and “euro” means the currency of any Member State of the European Union that has the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union; and

 

  1.2.2 “including” , “includes” or “in particular” means including, includes or in particular without limitation.

 

1.3 In this agreement (unless the context requires otherwise), any reference to:

 

  1.3.1 any gender includes all genders, and the singular includes the plural (and vice versa);

 

  1.3.2 a company includes any company, corporation or body corporate, or any other entity having a separate legal personality; and a person includes an individual, company, partnership, unincorporated association or Authority (whether or not having a separate legal personality);

 

  1.3.3 any time of day or date is to that time or date in Paris;

 

  1.3.4 a day shall be a period of 24 hours running from midnight to midnight, and days shall be to calendar days unless Business Days are specified;

 

  1.3.5 a month or a year shall be to a calendar month or a calendar year respectively;

 

  1.3.6 legislation or a legislative provision includes reference to the legislation or legislative provision as amended or re-enacted, any legislation or legislative provision which it amends or re-enacts and any legislation made under or implementing it, in each case for the time being in force (whether before, on or after the date of this agreement);

 

  1.3.7 any French legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than France, be deemed to include the specific term stated in the language of such other jurisdiction immediately after it or, if no such term is stated, what most nearly approximates to such French term in such other jurisdiction; and any reference to any specific French law shall be deemed to include any equivalent or similar law in any other jurisdiction; and

 

  1.3.8 writing or written includes any method of representing or reproducing words in a legible form.

 

1.4 For the purposes of applying a reference to a monetary sum expressed in euros in:

 

  1.4.1 clause 5.1 (Restrictions on Group Companies);

 

  1.4.2 any Warranty; or

 

  1.4.3 clause 10 (Seller limitations),

 

 

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an amount in a different currency shall be deemed to be an amount in euros converted at the closing mid-point spot rate for a transaction between the relevant currency and euros as quoted by the French Central Bank as at the close of business on the Business Day immediately preceding the date of this agreement.

 

1.5 Unless the context requires otherwise, any reference in this agreement to a clause or, schedule, is to a clause of or schedule to this agreement, any reference to a part or paragraph is to a part or paragraph of a schedule to this agreement, any reference within a schedule to a part is to a part of that schedule, and any reference within a part of a schedule to a paragraph is to a paragraph of that part of that schedule.

 

1.6 This agreement incorporates the schedules to it.

 

1.7 The contents list, headings and any descriptive notes are for ease of reference only and shall not affect the construction or interpretation of this agreement.

 

2. SALE AND PURCHASE OF SHARES

 

2.1 Subject to the terms of this agreement, the Seller shall sell and the Purchaser shall purchase the Shares on and with effect from Completion.

 

2.2 The Shares shall be sold free from all Encumbrances and together with all rights of any nature attached or accruing to them on or after Completion (including the right to receive all dividends and distributions declared, paid or made by the Company on or after the Completion Date).

 

3. CONSIDERATION

 

3.1 Total purchase price

The consideration for the sale of the Shares shall be the sum of ( “Consideration” ), which is and shall be payable to the Seller as follows:

 

  3.1.1 the Deposit;

 

  3.1.2 plus € 310,000,000 (three hundred ten million euros), being the balance of the € 330,000,000 (three hundred thirty million euros) less the Deposit, on Completion;

 

  3.1.3 less the amount of the interest referred to in clause 3.5;

 

  3.1.4 plus the Cash;

 

  3.1.5 less the Debt; and

 

  3.1.6 plus the excess in the Working Capital above the Target Working Capital or less the amount of any shortfall in the Working Capital below the Target Working Capital, as the case may be,

on close of Business Day on Completion (for the avoidance of doubt an example of the calculation of the Consideration based on the Accounts is attached hereto as part 3 of schedule 5).

in each case in cash by electronic transfer for same day value to the Seller’s Payment Account.

 

  3.1.7 Any dispute regarding the calculation of Cash, Debt and Working Capital shall be dealt in accordance with in part 1 of schedule 5.

 

 

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3.2 Notification of estimates

The Seller shall notify the Purchaser of the Seller’s estimates in good faith of the Cash, the Debt and the Working Capital ( “Estimated Cash” , “Estimated Debt” and “Estimated Working Capital” respectively) by providing a statement substantially in the form set out in part 3 of schedule 5 as close as reasonably practicable to, but no later than two Business Days before, the Completion Date.

 

3.3 Payment on account of Consideration

The Purchaser shall pay to the Seller on Completion the sum of ( “Completion Payment” ):

 

  3.3.1 the amount referred to in clause 3.1.2,

 

  3.3.2 plus the Estimated Cash,

 

  3.3.3 less the Estimated Debt,

 

  3.3.4 less the amount of the interest referred to in clause 3.5;

 

  3.3.5 plus the amount of any excess in the Estimated Working Capital above the Target Working Capital or less the amount of any shortfall in the Estimated Working Capital below the Target Working Capital, as the case may be.

 

3.4 Adjusting payment

Within ten Business Days of the agreement or determination of the Completion Statements in accordance with schedule 5:

 

  3.4.1 if the Consideration less the Deposit exceeds the Completion Payment, the Purchaser shall pay the difference to the Seller; or

 

  3.4.2 if the Consideration less the Deposit is less than the Completion Payment, the Seller shall repay the difference to the Purchaser.

 

3.5 Interest on Deposit

 

  3.5.1 The Escrow Agent shall place the Deposit on interest bearing deposit until the Completion Date.

 

  3.5.2 Any interest received on the Deposit prior to the Completion Date shall be deducted from the Completion Payment, but shall otherwise be dealt with in accordance with clause 3.6.

 

 

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3.6 Repayment of Deposit

Without prejudice to the provisions of clauses 3.1.1 and 5.3.3:

 

  3.6.1 in the event that Completion does not occur by the Longstop Time or this agreement is terminated pursuant to clauses 5.5 or 6.3.3, in each case other than as a result of a material breach by the Purchaser of its obligations under part 2 of schedule 4, the Deposit, along with any interest which has accrued thereon, shall forthwith be repaid to the Purchaser; and

 

  3.6.2 in the event that Completion does not occur by the Longstop Time or this agreement is terminated pursuant to clauses 5.5 or 6.3.3 in each case as a result of a material breach by the Purchaser of its obligations under part 2 of schedule 4, the Deposit, along with any interest which has accrued thereon, shall be forfeited to the Seller (the sum forfeited being exclusive of VAT, if any).

 

4. CONDITIONS

 

4.1 Conditions

Completion is conditional on the following conditions being satisfied by the Longstop Time:

 

  4.1.1 the European Commission issuing a decision under the EC Merger Regulation (Council Regulation No 139/2004) (“ECMR”) declaring the Acquisition compatible with the common market, or being deemed to have done so, without the European Commission: (a) initiating phase II proceedings under Article 6(1)(c) of the ECMR; (b) attaching any conditions or obligations (other than those that require undertakings within the scope of clause 4.2.2.5 or that are otherwise acceptable to the Purchaser (acting reasonably)); or (c) referring, or being deemed to have referred, the Acquisition or any part of it to another competent authority under Article 9 of the ECMR; or

 

  4.1.2 in case of a referral of the Acquisition by the European Commission to the French Competition Authority ( Autorité de la Concurrence ) ( “French Competition Authority” ), the French Competition Authority having approved the Acquisition, either tacitly on expiry of the applicable waiting period following receipt of the relevant filing or by explicit approval, without attaching any conditions or obligations (other than those that require undertakings within the scope of clause 4.2.2.5 or that are otherwise acceptable to the Purchaser (acting reasonably)); and

 

  4.1.3 completion of the each of the individual transactions of the Reorganisation.

 

4.2 Satisfying the Merger Conditions

 

  4.2.1 The Purchaser and the Seller shall use all reasonable endeavours to procure that either one or the other of the Conditions set out in clauses 4.1.1 and 4.1.2 (together the “Merger Conditions” ) is satisfied as soon as reasonably practicable and, in any event, by the Longstop Time. In particular:

 

  4.2.1.1 the Purchaser and the Seller shall prepare and submit the necessary joint filing to the European Commission or the French Competition Authority, as soon as practicable after the date of this agreement, it being agreed that the Parties will proceed with a pre-notification to the European Commission before the official joint filing with the same authority;

 

 

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  4.2.1.2 The Purchaser shall give the Seller and its legal advisers reasonable notice of and the opportunity to participate in all meetings and significant telephone calls with the European Commission or the French Competition Authority, as the case may be, unless prohibited by it; and

 

  4.2.2 Each of the Purchaser and the Seller shall:

 

  4.2.2.1 promptly provide to the other all information available to it that is necessary or desirable for the preparation of any filings or submissions to, or responses to requests for information from, the European Commission or the French Competition Authority, as the case may be;

 

  4.2.2.2 provide the other with a reasonable opportunity to comment on the drafts of all such filings, submissions and responses and take account of all reasonable comments received;

 

  4.2.2.3 promptly submit any submissions and responses to information requests to the European Commission or the French Competition Authority and provide a copy to the other; and

 

  4.2.2.4 not, and shall procure that its group shall not, enter into any arrangement which is likely to prejudicially affect or significantly delay satisfaction of either one or the other of the Merger Conditions.

 

  4.2.2.5 offer and give to the European Commission or the French Competition Authority, as the case may be, any undertakings reasonably necessary to obtain its approval to the Acquisition (e.g. no significant cash adverse effect or material adverse effect).

Nothing in this clause 4.2.2 shall oblige the Seller or the Purchaser to provide to the other any of its own or its group’s confidential business information, but such information must instead be provided to the other’s external lawyers on a confidential lawyer to lawyer basis.

 

4.3 Satisfying the Reorganisation Condition

The Seller shall use all reasonable endeavours to procure that the Condition in clause 4.1.3 is satisfied as soon as reasonably practicable and, in any event, by the Longstop Time.

 

4.4 Notification obligations

Each of the Purchaser and the Seller shall keep the other informed as to its progress in satisfying the Conditions, and notify the other immediately when:

 

  4.4.1 any Condition is satisfied (with copies of appropriate evidence of satisfaction); and

 

  4.4.2 it becomes aware of any matter which is likely to prevent any Condition being satisfied by the Longstop Time.

 

 

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5. PRE-COMPLETION MATTERS

 

5.1 Operation of Group Companies

Pending Completion, the Seller shall procure that each Group Company shall (subject to clause 5.3):

 

  5.1.1 continue to operate in the ordinary course of business consistent with past practice in accordance with all applicable laws;

 

  5.1.2 send weekly revenue reports of the financial performance of the Group Companies in writing to the Purchaser; and

 

  5.1.3 maintain and comply in all material respects with all licenses, registrations, concessions, permits, notifications and consents which are required for it to conduct the Business in the manner in which it currently does so.

 

5.2 Restrictions on Group Companies

Pending Completion, the Seller shall procure that (subject to clause 5.3 and to the extent permitted by applicable competition laws) no Group Company shall or shall agree to (whether conditionally or not):

 

  5.2.1 change its issued share capital in any way (including the creation of new shares, the redemption or repurchase of shares or any reduction of capital) or grant any option or right to subscribe for any shares or other securities convertible into shares;

 

  5.2.2 change any rights attached to any of its shares;

 

  5.2.3 declare, pay or make any dividend or other distribution or capitalise any reserves;

 

  5.2.4 change its articles of association ( statuts );

 

  5.2.5 change its auditors, the date to which its annual accounts are prepared or its accounting principles, procedures or practices;

 

  5.2.6 enter into, amend or terminate any material agreement or arrangement with the Seller Group (other than in the ordinary course of business and except as otherwise referred to in this agreement or in the Management Agreement Suite);

 

  5.2.7 enter into, materially amend or terminate any joint venture or partnership arrangement;

 

  5.2.8 without the Purchaser’s prior written consent in accordance with clause 5.4, enter into, renew, extend, materially amend, waive any default under, or terminate any contract, financial agreement, bank facility or arrangement that:

 

  5.2.8.1 involves expenditure or liabilities in excess of € 100,000;

 

  5.2.8.2 has a notice period for termination exceeding six months; or

 

 

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  5.2.8.3 is long-term, being for concluded for a period exceeding three years,

with the exception of the following types of contract or arrangement which do not require consent: contracts and arrangements that relate to (i) the employment of an officer or employee of any Group company whose annual salary before Tax (excluding any benefits) is in excess € 100,000, (ii) utilities, or (iii) revenue generating contracts, such as banquets, corporate rate, tour operator, events or conferences,

( “Material Contract” ); or

 

  5.2.9 make any material changes to the terms and conditions of employment (including remuneration and benefits) of any of its officers or employees other than salary increases in the ordinary course of business not exceeding 15 per cent and other than what is provided for in the operating or capital budget.

Furthermore, in the event that the finalisation of the Operating Budget for fiscal year 2015 (as this term is defined under the Hotel Management Agreement) shall occur before Completion, the Seller shall submit to Buyer the draft of such Operating Budget for approval before finalizing it.

 

5.3 Permitted actions

The clauses 5.1 and 5.2 shall not restrict or prevent a Group Company from doing anything:

 

  5.3.1 required, necessary or otherwise helpful to perform for the purpose of the Reorganisation

 

  5.3.2 to enter into, renew, materially amend, waive any default under or terminate any Excepted Contract;

 

  5.3.3 required by, or to give effect to, any Acquisition Document;

 

  5.3.4 required by, or to give effect to, any Management Agreement Suite;

 

  5.3.5 with the Purchaser’s prior written consent (not to be unreasonably withheld or delayed);

 

  5.3.6 which is in the Business’ operating or capital budget as set out in the Due Diligence Information (with reference B);

 

  5.3.7 to comply with any newly applicable law;

 

  5.3.8 to comply with its existing contractual obligations to the extent set out in the Disclosed Information; or

 

  5.3.9 that is a reasonable response to an emergency or disaster to minimise any adverse effect on it, provided that the Purchaser is notified of any action taken as soon as reasonably practicable.

 

5.4 Material Contracts

The Seller shall deliver to the Purchaser written notice of any proposed action as set out in clause 5.2.8, which notice shall contain the material information regarding the Material

 

 

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Contract(s) that the Seller believes is reasonably necessary to enable the Purchaser to make informed decisions with respect to the advisability of the proposed action. The Purchaser’s consent shall not be unreasonably withheld, conditioned or delayed. If no response by the Purchaser is received within five (5) Business Days after the Purchaser’s receipt of such written notice, the Purchaser will be served a second notice. If no response is received within forty eight (48) hours after service of such second notice, consent shall be deemed to have been granted. The Purchaser’s consent shall be deemed to have been granted if given by either Fady Bakhos or Mr Zaki El Guiziri.

For the avoidance of doubt, it is reminded between the Parties that the following contracts have already been approved by the Purchaser and therefore do not need any further authorizations under this clause 5 for their execution between the date of signing of this agreement and Completion Date: (i) Public Areas and Back of House Cleaning Services Contract with Hôtelière de Ménage, (ii) Minibar Rental Agreement with Bartech, (iii) Laundry Services Agreement with Elis Poulard, (iv) Facility Management Services Agreement with Cofely, and (v) Renewal of lease with Relais H shop on reduced rent.

 

5.5 Pre-completion termination

Without prejudice to clause 3.6,

 

  5.5.1 this agreement shall terminate automatically at the Longstop Time if any Condition set forth in (i) clauses 4.1.1 and/or (ii) in clause 4.1.2 has not then been satisfied;

 

  5.5.2 subject to the provisions of clause 5.7, each of the Seller and the Purchaser may terminate this agreement by notice in writing to the Purchaser or the Seller, as the case may be, at any time prior to Completion if a Material Adverse Effect occurs; and

 

  5.5.3 the Seller may terminate this agreement by notice in writing to the Purchaser, at any time prior to Completion if (i) the Purchaser breaches the obligation not to assign as referred to in clause 16.1, or if (ii) Constellation no longer owns, directly or indirectly, 100% of the shares issued by the Purchaser.

 

5.6 If either the Seller or the Purchaser reasonably believes that a Material Adverse Effect has occurred, such party shall give written notice to the other party (a “MAE Claim Notice” ), following which:

 

  5.6.1 within 2 Business Days after the date of service of the MAE Claim Notice, the Seller and the Purchaser shall discuss in good faith and use reasonable endeavours to resolve whether a Material Adverse Effect has occurred;

 

  5.6.2 if the Seller and the Purchaser fail to resolve whether a Material Adverse Effect has occurred within 10 Business Days of service of the MAE Claim Notice (the “Referral Date” ), the dispute shall be referred to an independent expert (the “MAE Expert” ) to be appointed by the Seller and the Purchaser to determine whether or not a Material Adverse Effect has occurred (who shall be instructed to deliver his determination within ten (10) Business Days of his appointment);

 

  5.6.3 if the Purchaser and the Seller cannot agree on the identity of a MAE Expert within five Business Days of the Referral Date, on the request of either the Purchaser or the Seller the MAE Expert shall be nominated by the President of the Tribunal of Commerce of Paris via “ référé ” proceedings at the request of the most diligent party (who shall be instructed to deliver his determination within ten (10) Business Days of his appointment);

 

 

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  5.6.4 the MAE Expert shall:

 

  5.6.4.1 conduct and deliver his determination in the English language;

 

  5.6.4.2 be entitled to obtain such independent legal or other professional advice as he may reasonably require in making his determination;

 

  5.6.4.3 determine the procedure to be followed in making his determination;

 

  5.6.4.4 determine on the basis of all information, documents and materials before him; and

 

  5.6.4.5 notify the Purchaser and the Seller of his determination in writing (without reasons) as soon as practicable.

 

  5.6.5 In making its determination, the MAE Expert shall act pursuant to the provisions of article 1592 of the French Civil Code as expert and its decision as to any matter referred to it for determination shall, in the absence of manifest error, be final and binding in all respects on the Purchaser and the Seller and shall not be subject to question on any ground whatsoever.

 

  5.6.6 The MAE Expert’s fees and expenses (including the costs of his nomination and any fees and expenses of any professional advisers appointed by him) shall be borne as determined by the Expert (having regard to the merits of the parties’ submissions), failing which, borne equally by the Purchaser and the Seller.

 

5.7 In the event that on or by the Completion Date a MAE Claim Notice has been served by the Seller or the Purchaser, as the case may be, pursuant to clause 5.6 and the occurrence of such Material Adverse Effect has not been resolved by agreement between the Seller and the Purchaser or by determination by the MAE Expert:

 

  5.7.1 the Completion Date shall be deferred to:

 

  5.7.1.1 the first day of the calendar month following the calendar month in which either the Seller and the Purchaser agree or the MAE Expert determines (in accordance with the provisions of clause 5.6) that a Material Adverse Effect has not occurred (the “Determination Date” ), if there are five or more Business Days between the Determination Date and the first day of the calendar month following the calendar month in which the Determination Date occurs; or

 

  5.7.1.2 the first day of the second calendar month following the calendar month in which the Determination Date occurs, if there are less than five Business Days between the Determination Date and the last day of the calendar month in which the Determination Date occurs; or

 

  5.7.2 if, subsequently, the Purchaser and the Seller agree or the MAE Expert determines (in accordance with the provisions of clause 5.6) that a Material Adverse Effect has occurred, the party serving the MAE Claim Notice may (i), with immediate effect by notice in writing to the other party, terminate this agreement in accordance with clause 5.5.2, or (ii) continue to Completion, in which case the date of Completion shall be deferred in the manner set out in clause 5.7.1.

 

 

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5.8 If a Material Adverse Effect occurs and the Seller or the Purchaser, as the case may be, elects to terminate this agreement pursuant to clause 5.5.2, the facts, matters and circumstances giving rise thereto and the termination resulting therefrom shall not give rise to any right to damages or compensation.

 

5.9 Additional actions before Completion

 

  5.9.1 Before Completion the Seller will have a lease entered into for the letting by BHR Services (France) of the non-retail premises of the co-ownership lot n°11 consisting of the basement for technical equipment of the Property and the mezzanine floor for hotel office premises to SNGH and Grand Hotel as locataire-gérant at market rent and conditions under a commercial lease which will have to be submitted to the Buyer for its prior approval.

 

  5.9.2 The Seller shall use its best efforts for BHR Services (France) to carry out a legal division of the co-ownership lot n°11 in order to separate the retail units to become one co-ownership lot from the premises occupied by the Group to become a separate co-ownership lot. The Seller shall continue to cooperate with the Buyer after Completion if this division is not effective prior to Completion.

 

6. COMPLETION

 

6.1 Completion arrangements

Completion of the sale and purchase of the Shares shall take place at the office of the Purchaser’s lawyers (or at such other place as may be agreed in writing between the Purchaser and the Seller) on the Completion Date.

 

6.2 Completion actions

On Completion:

 

  6.2.1 the Seller shall:

 

  6.2.1.1 deliver, or procure the delivery of, the documents set out in part 1 of schedule 4 to the Purchaser; and

 

  6.2.1.2 comply, or procure compliance, with the obligations set out in that part; and

 

  6.2.2 the Purchaser shall:

 

  6.2.2.1 deliver, or procure the delivery of, the documents set out in part 2 of schedule 4 to the Seller; and

 

  6.2.2.2 comply, or procure compliance, with the obligations set out in that part.

 

 

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6.3 Non-compliance

If, on the Completion Date, any party does not comply with its obligations under clause 6.2 in any material respect, then the Seller (in the case of the Purchaser’s non-compliance) or the Purchaser (in the case of the Seller’s non-compliance) may by notice to the other:

 

  6.3.1 proceed to Completion to the extent reasonably practicable;

 

  6.3.2 postpone Completion to another date not less than two nor more than 10 Business Days after the Completion Date (so that the provisions of this clause 6 (other than this clause 6.3.2) shall apply as if that later date is the Completion Date); or

 

  6.3.3 subject to Completion having first been postponed in accordance with clause 6.3.2, terminate this agreement.

 

7. PURCHASER WARRANTIES

 

7.1 Purchaser warranties

The Purchaser warrants to the Seller that the following statements are true and accurate as at the date of this agreement, and will be true and accurate immediately before Completion:

 

  7.1.1 it is validly existing and is a company duly incorporated and registered under the law of its jurisdiction of incorporation;

 

  7.1.2 it has the legal right, full power and authority and all necessary consents and authorisations to enter into and perform its obligations under this agreement and each other Acquisition Document to which it is or will be party;

 

  7.1.3 this agreement and each other Acquisition Document to which it is or will be party constitutes, or will when executed constitute, legal, valid and binding obligations on it and will be enforceable in accordance with their respective terms;

 

  7.1.4 the entry into and performance of its obligations under this agreement and each other Acquisition Document will not:

 

  7.1.4.1 conflict with or breach any provision of its constitutional documents;

 

  7.1.4.2 breach any agreement or instrument to which it is a party or by which it is bound;

 

  7.1.4.3 conflict with or breach any applicable law or any requirement of any Authority to which it is subject or submits; or

 

  7.1.4.4 require the consent, approval or authorisation of any Authority except for the provisions of clauses 4.1.1 or 4.1.2;

 

  7.1.5 it is not insolvent under the law of its jurisdiction of incorporation or of any jurisdiction in which it carries on business, and it is not unable to pay its debts as they fall due, nor has it stopped paying its debts as they fall due;

 

  7.1.6 no arrangement or compromise has been made by it with its creditors;

 

 

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  7.1.7 no insolvency proceedings have been commenced or applied for, nor has any liquidator, receiver or similar officer been appointed, in relation to it or any of its assets;

 

  7.1.8 no resolution has been passed, proceedings commenced or order made for its winding-up or any other reorganisation or restructuring; and

 

  7.1.9 it has immediately available on an unconditional basis (subject only to Completion) the necessary cash resources to pay the Consideration and otherwise discharge its obligations under this agreement.

 

8. SELLER WARRANTIES

 

8.1 Warranties

 

  8.1.1 The Seller warrants to the Purchaser that the statements set out in schedule 2 are true and accurate as at the date of this agreement and that the Key Warranties will be true and accurate immediately before Completion.

 

  8.1.2 For the purposes of this clause, unless explicitly mentioned otherwise, any express or implied reference to the date of this agreement in any specified paragraph of schedule 2 shall be construed as a reference to the date of signing this agreement.

 

8.2 Seller’s payment obligation under the Warranties

Subject to the provisions of this clause 8, the Seller shall pay to the Purchaser as a repayment of a portion of, and adjustment to, the Consideration, the amount of any loss, liability, claim, damage (excluding incidental and consequential damages and excluding any reduction of Tax losses carried forward), penalty (including costs of investigation and defence and reasonable attorneys’ fees) (collectively, “Damages” ) suffered or incurred by the Purchaser or any of the Group Companies, which it would not have incurred had the Warranty not been breached, arising from or in connection with:

 

  8.2.1 any breach of any Warranty of the Seller contained in this agreement; or

 

  8.2.2 all costs and expenses (together with any VAT on them) which may be incurred by the Purchaser Group as a result of or in connection with any breach of the Warranty.

The Seller and the Purchaser agree that the assessment of the Damages pursuant to this clause 8.2 shall not be made with reference to the value of the Group Companies and/or their assets.

 

8.3 Knowledge or awareness

Any Warranty qualified by a reference (however expressed) to the knowledge or awareness of the Seller shall be limited to the actual knowledge or awareness of Gisele Ford, Emen Bejaoui, Christophe Laure and Jacques Chesnet, and the Seller shall not be required to make any enquiry of any other person, nor shall the Seller be deemed to have any other actual, imputed or constructive knowledge regarding the subject matter of such Warranty.

 

 

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8.4 No rights against the Group Companies

The Seller undertakes to the Purchaser that it has no rights against (and waives any rights it may have against) and shall not make any claim against (and waives any claim it may have against):

 

  8.4.1 any of the Group Companies; or

 

  8.4.2 any current or former officer, employee, consultant or agent of any Group Company,

in respect of any misrepresentation, inaccuracy or omission in or from any information or advice provided by any such person for the purpose of assisting the Seller to give any Warranty and/or prepare the Disclosed Information.

 

9. TAX

 

9.1 The Seller or its duly authorised agents or advisers shall, at its expense (unless and to the extent that such expense has been taken into account in computing the Completion Statements and save in respect of any accounting period which is terminating on Completion as a result of any action requested by the Purchaser), be responsible and be properly authorised by each Group Company to prepare, (i) to the extent required by law, the Tax computations and returns of each Group Company ( “Tax Computations” ) (ii) all elections, surrenders, claims, disclaimers, notices or consents in each case for its accounting periods (or other relevant period for Tax purposes where relevant) ended on or before 31 December up to and including 31 December 2014 ( “Relevant Accounting Period(s)” ). Notwithstanding anything to the contrary, the Purchaser and the Group Companies shall, at their expense, be responsible to submit (i) such Tax Computations and/or, as the case may be, (ii) such elections, surrenders, claims, disclaimers, notices and/or consents, as the case may be, in each case for the Relevant Accounting Periods.

 

9.2 For the avoidance of doubt the Seller may require the Group companies to make, for any Relevant Accounting Period, any elections, surrenders, claims, disclaimers, notices or consents in respect of and on behalf of each Group Company provided that such an election, surrender, claim, disclaimer, notice or consent does not cause or increase an Actual Tax Liability of the Group Companies or any member of the Purchaser Group unless either:

 

  9.2.1 it has been taken into account in the computation of the Completion Statements; or

 

  9.2.2 it is made with the agreement of the Purchaser.

 

9.3 As from Completion, the Purchaser shall deliver to the Seller copies of any material correspondence sent to, or received from, the relevant Tax Authority relating to the Tax Computations for the Relevant Accounting Periods and shall keep the Seller informed of its and the Group Companies’ actions under this clause 9.

 

9.4 Subject to the clauses 9.1 to 9.3 above, the Purchaser shall or shall procure that:

 

  9.4.1 each Group Company promptly and properly authorises and signs the Tax Computations and makes and signs or otherwise enters into all such elections, surrenders, claims, disclaimers, notices and consents and withdraws or disclaims such elections, surrenders, claims, disclaimers, notices and consents and gives such notices and signs such other documents as the Seller shall require in relation to the Relevant Accounting Periods);

 

 

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  9.4.2 if a time limit applies in relation to the submission to a Tax Authority of any of the documents referred to in clause 9.4.1 above, the Seller shall ensure that such documents are delivered to the Purchaser at least 20 Business Days before the expiry of the relevant time limit and the Purchaser shall procure that such documents are submitted to a Tax Authority, properly authorised and signed, prior to the expiry of the time limit;

 

  9.4.3 each Group Company provides to the Seller such information and assistance, including such access to its books, accounts, records, correspondence, documents and personnel which may reasonably be required to prepare, submit, negotiate and agree the Tax Computations, in each case within 5 Business Days of receipt of the request thereto;

 

  9.4.4 any correspondence which relates to the Tax Computations shall, if received by the Purchaser or any Group Company or their agents or advisers, be copied to the Seller within 5 Business Days of receipt; and

 

  9.4.5 neither the Purchaser nor any Group Company shall submit any return or make any representation to any Tax Authority which is inconsistent with the content of the Tax Computations (as prepared in accordance with this clause 9).

 

9.5 The Purchaser shall, and the Purchaser shall procure that the Group Companies shall, in respect of the Relevant Accounting Periods, use all reasonable endeavours to ensure that the Tax Computations are agreed with, or as the case may be, finalised with, the relevant Tax Authority as soon as reasonably practicable after 31 December 2014 and shall promptly respond to all communications and enquiries from the relevant Tax Authority in relation to those Tax Computations as soon as reasonably practicable, it being understood that the provisions of clause 11.3 shall apply to any communications and enquiries from the relevant Tax Authority.

 

9.6 For the avoidance of doubt, the Purchaser shall procure that the Group Companies comply with this clause 9 immediately following Completion.

 

10. SELLER LIMITATIONS

 

10.1 Financial caps

 

  10.1.1 The aggregate liability of the Seller for all Warranty Claim arising from a breach of the Warranties in paragraphs 1 (The Seller), 2 (The Shares), 3 (the Group Companies) and 6 (Insolvency) and 30 (Tax Return and Payments) of schedule 2 shall not exceed an amount equal to the Consideration.

 

  10.1.2 The aggregate liability of the Seller for all Warranty Claims other than those arising from a breach of the Warranties listed in clause 10.1.1 above shall not exceed an amount equal to € 100,000,000.

 

  10.1.3 For the avoidance of doubt, it is expressly agreed between the Parties that the aggregate liability of the Seller for all Warranty Claim shall not exceed shall not exceed an amount equal to the Consideration.

 

 

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10.2 Financial thresholds

 

  10.2.1 The Seller shall not be liable for any Warranty Claim unless:

 

  10.2.1.1 the Seller’s liability in respect of such Warranty Claim and any other Warranty Claims arising from substantially the same matter exceeds € 100,000 (excluding interest and costs) (each a “Qualifying Warranty Claim” ); and

 

  10.2.1.2 the Seller’s aggregate liability for all Qualifying Warranty Claims exceeds € 3,300,000 (excluding interest and costs),

when the Seller shall (subject to clause 10.1) be liable from the first euro and not only for the excess over € 3,300,000, this amount being a threshold, not a deductible.

 

10.3 Time limits

 

  10.3.1 The Seller shall not be liable for any Warranty Claim unless the Purchaser has given notice of such Warranty Claim to the Seller:

 

  10.3.1.1 up to three (3) months after the expiry of the applicable statute of limitations, in case of any Warranty Claim pursuant to the Tax Warranties;

 

  10.3.1.2 on or before the second anniversary of the Completion Date, in case of any Warranty Claim pursuant to Warranties other than the Tax Warranties.

 

  10.3.2 Any notice under clause 10.3.1 must set out, to the extent then available, reasonable details of the matter giving rise to the Warranty Claim and the grounds on which it is based and, if then reasonably capable of preparation, the Purchaser’s good faith estimate of the amount of the Warranty Claim.

 

10.4 Legal proceedings

Subject to clause 10.3, the Seller shall not be liable for any Warranty Claim unless legal proceedings in respect of it have been commenced by being both properly issued and validly served on the Seller:

 

  10.4.1 if such Warranty Claim is not actionable by virtue of clause 10.2 (Financial thresholds) when the Seller is notified of it in accordance with clause 10.3, within one month of the date on which such Warranty Claim becomes actionable under clause 10.2;

 

  10.4.2 if such Warranty Claim arises out of a liability which, when the Seller is notified of such Warranty Claim in accordance with clause 10.3, is contingent only, within one month of the date such liability ceases to be contingent; and

 

  10.4.3 otherwise, within one month of the date on which the Seller was notified of such Warranty Claim in accordance with clause 10.3,

(such periods may be reduced in accordance with any shorter procedural deadlines which may be applicable).

 

 

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No new Warranty Claim may be made in respect of the matter giving rise to such Warranty Claim.

 

10.5 Information and knowledge

The Seller shall not be liable for any Warranty Claim to the extent that the matter giving rise to it:

 

  10.5.1 has been disclosed by the Disclosed Information or any other written information provided by or on behalf of the Seller or any Group Company to the Purchaser or any of its advisers in connection with the transactions contemplated by the Management Agreement Suite and/or the Acquisition Documents; or

 

  10.5.2 would have been apparent from searches of the public registers or records in France on the third Business Day before the date of this agreement; or

 

  10.5.3 was, at the date of this agreement, known by the Purchaser and the Purchaser’s legal, tax and other advisors. For the purposes of this clause 10.5.3, the Purchaser shall be deemed to have knowledge of matters which were actually known to Mr Fady Bakhos and Mr Zaki El Guiziri.

 

10.6 Accounts - Completion Statements

Notwithstanding clause 10.9, the Seller shall not be liable for any Warranty Claim to the extent that the matter giving rise to it has been specifically provided for in the Accounts and/or specifically provided for or otherwise taken into account in the Completion Statements and/or has been taken into account for the calculation of the Consideration and/or the Working Capital.

 

10.7 Insurance - Recovery from third parties

 

  10.7.1 The Seller shall not be liable for any (part of a) Warranty Claim to the extent that the loss, liability or damage to which it relates is recoverable by the Purchaser Group under any insurance policy.

 

  10.7.2 If the Purchaser or any Group Company is or may be entitled to recover from some other person (including insurers) any loss or damage which gives rise to any Warranty Claim, the Purchaser shall take all appropriate steps to enforce that recovery (keeping the Seller informed on a timely basis of any action so taken) before taking any action (other than notifying the Seller of the Warranty Claim) against the Seller.

 

  10.7.3 If, notwithstanding any other provision of this clause, any payment is made by the Seller in or towards the settlement of any Warranty Claim and the Purchaser and/or any Group Company subsequently recovers or procures the recovery from a third party (including insurers) of an amount which is referable to that Warranty Claim (and, in the event that the Purchaser becomes entitled subsequent to payment by the Seller to make recovery, the Purchaser undertakes to procure that all necessary steps are taken to enforce that recovery) the Purchaser shall forthwith repay to the Seller an amount equal to whichever is the lesser of:

 

  10.7.3.1 the amount (including interest (if any)) recovered from the third party; and

 

  10.7.3.2 the amount paid by the Seller in or towards settlement of the Warranty Claim;

 

 

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and the amount so repaid shall be deemed never to have been paid by the Seller for the purpose of determining the liability of the Seller.

 

10.8 Other exclusions

 

  10.8.1 The Seller shall not be liable for any Warranty Claim to the extent that it arises from or is otherwise attributable to, or the amount of such Warranty Claim is increased as a result of:

 

  10.8.1.1 any new or amended legislation, law or administrative or regulatory practice, or any change in the generally accepted interpretation or application of any legislation or law, in each case taking effect after Completion;

 

  10.8.1.2 anything done or not done by any Group Company before or on Completion at the written request, or with the prior written consent, of Mr Zaki El Guiziri and Mr Fady Bakhos; or

 

  10.8.1.3 anything done or not done by any member of the Purchaser Group after Completion.

 

  10.8.2 In addition to the provisions of paragraph 10.8.1, the Purchaser shall not be entitled to bring a Warranty Claim:

 

  10.8.2.1 if and to the extent that the Warranty Claim arises or is increased as a result of the Purchaser not complying with its obligations under this agreement; or

 

  10.8.2.2 in respect of any loss of profit, revenue, use, production, business, contracts, goodwill, reputation or anticipated savings or any consequential, special or indirect loss.

 

10.9 Tax limitations

The provisions of this clause 10.9 are meant to complete the provisions relating to the Warranties (in general, including the Tax Warranties) set out in clause 10. In case of any conflict between the provisions of this clause 10.9 and the (general) wording on Warranties in clause 10 (excluding clause 10.9), the latter shall apply.

 

  10.9.1 The Seller shall not be liable under any Tax Warranty or for any claim under this agreement to the extent that:

 

  10.9.1.1 any provision or reserve is made or taken into account in the Completion Statements in respect of any such liability or to the extent that the payment or discharge of any such liability is taken into account in the Completion Statements or such liability has been discharged prior to Completion;

 

  10.9.1.2 any provision for Tax made or taken into account in the Completion Statements is insufficient by reason of any increase in the rates of Tax or variation in the method of applying or calculating the rate of Tax announced by the relevant Tax Authority after Completion whether or not with retrospective effect;

 

 

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  10.9.1.3 such liability arises or is increased as a result of any voluntary act, transaction or omission of any Group Company or of any member of the Purchaser Group after Completion, and which:

 

  (a) is not required by any legislation or other statutory requirement coming into force before Completion;

 

  (b) is not pursuant to a legally binding obligation of the Group Company entered into on or before Completion;

 

  (c) is not the subject of a written request or otherwise with the written approval, of the Seller or its authorised representative; and

 

  (d) is otherwise than in the ordinary course of business of the relevant Group Company as carried on at Completion;

 

  10.9.1.4 such liability arises or is increased as a result of the disposal of shares in, or the reorganisation of, any Group Company or breaking of any fiscal unity after Completion;

 

  10.9.1.5 the liability would not have arisen or would have been reduced or eliminated but for a failure or omission after Completion, on the part of a Group Company or the Purchaser or member of the Purchaser Group, to make any claim, election, surrender or disclaimer or to give any notice or consent or to do any other thing under any enactment or regulation relating to Tax the making, giving or doing of which is taken into account in computing the provision for Tax in the Completion Statements and disclosed in a written notice given to the Purchaser not less than 10 Business Days before the final date upon which the claim, election, surrender, disclaimer, notice consent or other thing in question may be made given or done;

 

  10.9.1.6 the liability arises or is increased as a result of any change after Completion in the bases, methods or policies of accounting of the Purchaser or a Group Company but excluding any change required to comply with generally accepted accounting practices or principles as a result of a failure by the relevant Group Company prior to Completion to comply with generally accepted accounting principles or practices;

 

  10.9.1.7 such liability arises or is increased as a result of the disclaimer, revocation or revision by a Group Company after Completion in whole or in part of any Relief claimed or the entitlement to which was taken into account in whole or in part in the preparation of the Completion Statements;

 

  10.9.1.8 the income, profits or gains in respect of which the liability arises were actually earned, accrued or received by a Group Company or any member of the Purchaser Group before Completion but were not reflected in the Completion Statements;

 

 

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  10.9.1.9 a Relief (other than an Accounts Relief or a Post Completion Relief), which is not treated as an asset in the calculation of the Completion Statements, is available (at no cost to a Group Company) to a Group Company to relieve or mitigate that liability or is available as a result of that liability;

 

  10.9.1.10 the liability has been satisfied (otherwise than by the Purchaser or any member of the Purchaser Group including any Group Company but only if and to the extent that the Seller would otherwise have been liable to the Purchaser under this agreement in respect of the liability of that Group Company);

 

  10.9.1.11 the liability would not have arisen, but for an act carried out by the Seller or a Group Company prior to Completion which is both (i) at the request or with the approval of the Purchaser; and (ii) outside the ordinary course of the Seller’s or that Group Company’s respective normal businesses. Such acts shall not include, for the avoidance of doubt, the individual transactions of the Reorganisation;

 

  10.9.1.12 where payment of Tax is by instalments, interest or penalties arise as a consequence of the underpayment of an instalment attributed to any Group Company prior to Completion, where such interest or penalties would not have arisen but for the receipt or accrual of income, profits or gains after Completion which was not reasonably foreseeable at the time when the instalment payment was made;

 

  10.9.1.13 recovery has been made in respect of the same subject matter under this agreement or otherwise; or

 

  10.9.1.14 notwithstanding any other provision of this agreement, the liability is a liability of a Group Company in respect of any transfer Tax (together with any interest or penalties thereon) arising on the entry into any agreement(s) (whenever entered into) for the direct or indirect transfer on or after Completion of the shares in any Group Company or arising on the direct or indirect transfer of the shares in any Group Company on or after Completion.

 

  10.9.2 The Seller shall not be liable in respect of any breach of the Tax Warranties if, and to the extent that, the loss incurred is or has been included in any claim under this agreement which has been satisfied in full and in cleared funds nor shall the Seller be liable in respect of a claim under this agreement if, and to the extent that, the amount claimed is or has been included in a claim for breach of the Tax Warranties which has been satisfied in full except, in either case, to the extent that such claim or loss has not been satisfied in full due to the operation of this clause 10.9.

 

  10.9.3

The Seller shall not be liable in any case in respect of the amount of Tax losses of the Company and the Group Companies, and in particular shall not be liable for the increase or decrease of such amount nor the ability of the Purchaser or the Purchaser Group to use such Tax losses. In this respect and for sake of clarity, the Seller should notably not be liable for any corporate income taxes reassessment (including impôt sur les sociétés, contribution sociale sur l’impôt sur les sociétés, contribution exceptionnelle sur l’impôt sur les sociétés and imposition forfaitaire annuelle , as well as penalties and late payment interest reassessed by the French

 

 

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  tax authorities) of the Group Companies to the extent that such corporate income taxes reassessment does not create additional positive tax burden at the level of the Tax Group.

 

10.10 Credit for benefits

In calculating the liability of the Seller in relation to any Warranty Claim, there shall be taken into account past, present and future quantifiable financial benefit accruing to the Purchaser Group as a result of the matter giving rise to such Warranty Claim (including the amount of any reduction in, or relief from, Tax).

 

10.11 No double recovery

Any payment made by the Seller in respect of any Claim shall satisfy and discharge any other Claim which is capable of being made against the Seller in respect of the same matter, but only to the extent of the payment made.

 

10.12 Claim to be reduction of Consideration

Any payment by the Seller in respect of any Claim shall be deemed to reduce the Consideration received by the Seller.

 

11. SELLER CLAIMS HANDLING

 

11.1 Notification, information and access

Notwithstanding clause 11.3, the Purchaser shall, and shall procure that the Purchaser Group shall:

 

  11.1.1 as soon as reasonably practicable, notify the Seller of any matter that it becomes aware of that has given or is likely to give rise to a Warranty Claim, Defendant Claim or Recovery Claim and keep the Seller fully and promptly informed of all material developments relating to it; and

 

  11.1.2 provide the Seller and its representatives with reasonable access to, and (at the Seller’s expense) copies of, all information which is or may be relevant to any such Warranty Claim, Defendant Claim or Recovery Claim.

Nothing in this clause 11.1 shall require the Purchaser Group to provide access to any information (a) in breach of any applicable law, or (b) that has been prepared by it or its advisers with a view to assessing the merits of any actual or potential Warranty Claim.

 

11.2 Mitigation and third party claims

Notwithstanding clause 11.3:

 

  11.2.1 The Purchaser shall, and shall procure that the Purchaser Group shall, take all reasonable steps to avoid or mitigate any loss, liability or damage which may arise from any matter that has given or is likely to give rise to a Warranty Claim (including any Defendant Claim) and to maximise sums recovered from any Recovery Claim.

 

 

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  11.2.2 In particular, the Purchaser shall, and shall procure that the Purchaser Group shall:

 

  11.2.2.1 take such action, or ensure that any member of the Purchaser Group takes such action, as the Seller may reasonably require to avoid, contest, dispute, resist, appeal, compromise or defend the third party claim (including, but without limitation, making counter claims and exercising all rights of set off against third parties);

 

  11.2.2.2 permit the Seller, and ensure that any member of the Purchaser Group permits the Seller (if applicable), in the name of and on behalf of the Purchaser, and any member of the Purchaser Group, to have the sole conduct of all proceedings relating to the third party claim as the Seller may deem appropriate including the appointment of lawyers and other professional advisers and the making of any settlement or compromise of the third party claim; and

 

  11.2.2.3 render or cause to be rendered to the Seller all assistance as the Seller may reasonably require (including providing access to information and to employees of the Purchaser or any other member of the Purchaser Group) for the purpose of avoiding, contesting, disputing, resisting, appealing, compromising or defending the third party claim,

provided that:

 

  11.2.2.4 the Seller shall indemnify the Purchaser and all other members of the Purchaser Group from and against all costs reasonably incurred by them in complying with their respective obligations under paragraphs 11.2.2.1-11.2.2.3; and

 

  11.2.2.5 the Seller shall not make any settlement or compromise of the third party claim which is likely to affect the Purchaser or any member of the Purchaser Group without the prior approval of the Purchaser;

 

  11.2.3 The Purchaser will not (and will procure that all other members of the Purchaser Group will not) make or attempt to make any admission of liability, agreement, settlement or compromise in relation to a third party claim without the consent of the Seller (that consent not to be unreasonably withheld or delayed).

 

  11.2.4 The Purchaser shall in any event keep the Seller informed as to the steps which are being taken in connection with the third party claim.

 

11.3 Conduct of Tax claims

The provisions of this clause 11.3 are meant to complete the provisions relating to the conduct of Claims set out in clause 11. In case of any communications and enquiries from a Tax Authority as referred to in clause 9.5, the provisions of this clause 11.3 shall, to the extent possible, equally apply.

 

  11.3.1 If the Purchaser or any Group Company becomes aware of any Claim for Tax, the Purchaser shall, or shall procure that that Group Company shall within 10 Business Days of becoming so aware (and in the case of the receipt of a Claim for Tax consisting of any assessment or demand for Tax or for which the time for response or appeal is limited, not less than 10 Business Days prior to the day on which the time for response or appeal expires) give written notice of the Claim for Tax to the Seller.

 

 

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  11.3.2 The Purchaser and the relevant Group Company shall respond to any written request for assistance, the making or withdrawing of any election, surrender, claim, disclaimer, notice or consent, information, documentation or access to premises or personnel from the Seller ( “Request” ) with sufficient promptness to allow a response to a Taxation Authority or other person in relation to which the liability arises or may arise within any prescribed time limit or, if later, within five Business Days of receiving any such Request from the Seller.

 

  11.3.3 To the extent that the Purchaser or a Group Company is required or has the right to correspond with a Taxation Authority in respect of the matter, the Seller shall draft any correspondence or response (including any election, surrender, claim, disclaimer, notice or consent) to be sent to the Taxation Authority and the Purchaser shall, or shall procure that the relevant Group Company shall, send, or procure the sending of, such correspondence or response (including any, election, surrender, claim, disclaimer, notice or consent) to the Taxation Authority promptly and, in any event, within any applicable time limit. If such request is not made by the Seller promptly and without unreasonable delay, then the Purchaser and any relevant Group Company are only required to comply with the time restriction imposed by this clause 11.3 to the extent that they are able to do so within the time available, otherwise they will act promptly.

 

  11.3.4 The Purchaser shall not be obliged to take any action under this clause 11.3 in the case of a Tax Claim in relation to which any member, or employee of any member, of the Seller Group is proven to have committed fraudulent conduct, fraud or wilful default, conduct involving dishonesty or any criminal offence.

 

  11.3.5 Without prejudice to clause 10.9.3, neither the Purchaser nor any Group Company shall be obliged to take any action under this clause 11.3 which will have the effect of materially increasing the liability to Tax of any Group Company where that liability relates to an event occurring or income, profits or gains earned, accrued or received after Completion or in respect of any period commencing after Completion and:

 

  11.3.5.1 has not been taken into account in the computation of the Completion Statements; and

 

  11.3.5.2 such action has not been agreed with the Purchaser (such agreement not to be unreasonably withheld or delayed).

 

  11.3.6 All Group Companies shall comply with all requirements imposed upon them by any relevant Tax Authority, subject to the rights that the Group Companies have to dispute or challenge an audit, enquiry or other assessment by a relevant Tax Authority.

 

  11.3.7 The Purchaser shall, or shall procure that the relevant Group Company shall, promptly notify the Seller of any audit by or meeting with any Tax Authority or relevant other party which relates wholly or partly to any event occurring, or any period commencing on or before Completion and allow the Seller and/or its professional advisors to be present at and participate in such audit or meeting (the costs of the Seller’s professional advisors shall be borne by the Seller).

 

  11.3.8 The Purchaser agrees that it shall, and agrees to procure that any relevant Group Company shall, act in good faith to agree practical arrangements with the Seller for conducting the audit and presenting information on a basis consistent with the evaluation of the tax liabilities determined for the purposes of the Completion Statements.

 

 

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  11.3.9 The Purchaser shall, or shall procure that the relevant Group Company shall, not commence any litigation or other proceedings against a Tax Authority relating to an event causing any Claim for Tax, unless the prior approval for such litigation or other proceedings have been obtained from the Seller.

 

  11.3.10 For the avoidance of doubt, the Purchaser shall procure that the Group Companies comply with this clause 11.3.

 

11.4 Recovery Claim receipts

If:

 

  11.4.1 the Seller has made a payment in respect of a Warranty Claim ( “Claim Payment” );

 

  11.4.2 the Purchaser Group subsequently recovers any sum in respect of any corresponding Recovery Claim that was not taken into account in the determination or agreement of the Claim Payment ( “Recovery Sum” ); and

 

  11.4.3 the aggregate of the Claim Payment and the Recovery Sum exceeds the loss suffered by the Purchaser in respect of the matter giving rise to such Warranty Claim (such excess being the “Excess Recovery” ),

then the Purchaser shall repay promptly to the Seller an amount equal to the lesser of (a) the Claim Payment and (b) the Excess Recovery, less any Tax on the Recovery Sum and all reasonable costs and expenses incurred by the Purchaser Group in relation to the Recovery Claim (to the extent not already and otherwise reimbursed by the Seller). For the purposes of calculating the liability of the Seller under clauses 10.1 and 10.2, an amount equal to such repayment shall be deemed never to have been paid by the Seller.

 

12. POST COMPLETION COVENANTS

 

12.1 Books and records

As from the Completion Date, and without prejudice to the Management Agreement Suite:

 

  12.1.1 the Seller shall provide to the Purchaser, on reasonable request; and

 

  12.1.2 the Purchaser shall provide to the Seller reasonable access to and the right to take,

copies and extracts of the books, records, documents and information (including information recorded or retained in any electronic form) of or relating to the Group Companies which are or may be relevant in connection with any claim brought by the Purchaser against the Seller under the Warranties or any other provision of this agreement for so long as any actual or prospective claims remain outstanding, or, if longer, a period of five calendar years from the Completion Date.

 

 

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13. CONFIDENTIALITY AND ANNOUNCEMENTS

 

13.1 Definitions

In this clause 13:

 

  13.1.1 “Announcement” means the announcement in the Agreed Form to be issued by the Seller and the Purchaser on Completion to any third party (including the employees);

 

  13.1.2 “discloser” means the person making the announcement or disclosing or using the information; and

 

  13.1.3 “Relevant Party” means (a) when the discloser is a member of the Purchaser Group, the Seller; or (b) when the discloser is a member of the Seller Group, the Purchaser.

 

13.2 Announcements

Other than the Announcement, no party shall, and each party shall procure that its group shall not, at any time issue, or procure the issue of, any press release, circular or other publicity relating to the existence or provisions of this agreement or any other Acquisition Document or the sale and purchase of the Shares.

 

13.3 Group Companies’ confidential information

The Seller shall not, and shall procure that the Seller Group shall not, for a period of 20 years after the Completion Date disclose to any person other than the Seller Group, or use any confidential information of any Group Company that it holds at Completion.

 

13.4 Transaction and parties’ confidential information

Each party shall, and shall procure that its group shall, for a period of 20 years after the date of this agreement keep confidential:

 

  13.4.1 the provisions and subject matter of, and the negotiations relating to, this agreement and any other Acquisition Document or Management Agreement Suite; and

 

  13.4.2 all confidential information of any other party or its group (in the case of the Purchaser, as such group is constituted immediately before Completion, and including Constellation’s group) received by it as a result of negotiating, entering into or performing this agreement,

and shall use the information only for the purposes contemplated by this agreement or any other Acquisition Document or Management Agreement Suite.

 

13.5 Permitted announcements and disclosures

Clauses 13.2, 13.3 and 13.4 shall not restrict the making of any announcement or the disclosure or use of information:

 

  13.5.1 with the prior written consent of the Relevant Party, such consent not to be unreasonably withheld or delayed;

 

 

31


  13.5.2 if, and to the extent, required to vest the full benefit of an Acquisition Document in such discloser;

 

  13.5.3 if, and to the extent, made to:

 

  13.5.3.1 the professional advisers, auditors or bankers of a discloser or of any other member of the Purchaser Group (in the case of the Purchaser) or of any other member of the Seller Group (in the case of the Seller);

 

  13.5.3.2 the officers or employees of that party or of any other member of the Purchaser Group (in the case of the Purchaser) or of any other member of the Seller Group (in the case of the Seller) who need to know the information for the purposes of the transactions effected or contemplated by an Acquisition Document;

 

  13.5.4 if, and to the extent, such information has already come into the public domain through no fault of such discloser;

 

  13.5.5 to the extent required by any applicable law or for the purpose of any judicial proceedings; provided that, in each case (unless such consultation is prohibited), such announcement is made or disclosure occurs after consultation (so far as reasonably practicable) as to the timing and content of such announcement or disclosure with the Relevant Party;

 

  13.5.6 to the extent required by any Authority or any Recognised Investment Exchange or regulatory or governmental body to which that party is subject or submits, wherever situated, including the ‘London Stock Exchange’, the ‘New York Stock Exchange’, the UK Listing Authority’ or the Takeover Panel’, whether or not the requirement for disclosure has the force of law; provided that, in each case (unless such consultation is prohibited), such announcement is made or disclosure occurs after consultation (so far as reasonably practicable) as to the timing and content of such announcement or disclosure with the Relevant Party; or

 

  13.5.7 that is consistent in all material respects with the Announcement, or any other announcement issued in accordance with this clause 13.2.

 

14. GROUP SEPARATION MATTERS

 

14.1 Payment of Intra-Group Debt

On or before Completion:

 

  14.1.1 the Seller shall procure that the Seller Group pays to the Group Companies the amounts owed by it to the Group Companies, other than amounts owed in respect of ordinary course of business necessary for the continuation of the Business, and subject to the Reorganisation; and

 

  14.1.2 the Seller shall procure that each Group Company pays to the Seller (when applicable, as agent for each relevant member of the Seller Group) such amounts owed by it to the Seller Group, other than amounts owed in respect of ordinary course of business necessary for the continuation of the Business, and subject to the Reorganisation.

 

 

32


14.2 Seller’s access to information

The Purchaser shall procure that:

 

  14.2.1 all books of account, records, documents and information of any Group Company (in whatever form) relating to the period before Completion ( “Group Company Information” ) are preserved as referred to in clause 12.1; and

 

  14.2.2 (on giving reasonable notice to the Purchaser) the Seller Group and its representatives are permitted during normal business hours to have access to, and to take copies (at the Seller’s expense) of, such Group Company Information as they reasonably require for tax, accounting or insurance purposes, or to comply with any applicable law or requirement of any Authority or securities exchange.

 

14.3 Insurance

 

  14.3.1 The risk of loss or damage to the Property remains with the Seller prior to Completion. The Seller shall ensure, or shall procure, that any insurance claim arising under any policy relating to the Property prior to Completion is dealt with in a timely manner. Provided that Completion takes place the Seller shall account to the Purchaser for the proceeds of any buildings insurance claim in respect of loss or damage to the Property prior to Completion as soon as reasonably practicable after receipt less any reasonable costs of recovery of the same and this shall constitute the Purchaser’s only remedy against the Seller in respect of loss or damage to the Property prior to Completion.

 

  14.3.2 Other than as provided in the Management Agreement Suite, the Purchaser acknowledges and agrees with the Seller that, on and with effect from Completion:

 

  14.3.2.1 all insurance cover provided in relation to any Group Company pursuant to policies maintained by the Seller Group (each a “Seller Insurance Policy” ) shall cease;

 

  14.3.2.2 it shall be the sole responsibility of the Purchaser to ensure that adequate insurances are put in place for each Group Company; and

 

  14.3.2.3 it will procure that no Group Company will make any claim under any Seller Insurance Policy, except under and subject to the terms of any “occurrence-based” Seller Insurance Policy when such claim arises from an event or circumstance that occurred before Completion.

 

14.4 Tax group agreements

In case where a member (the “Member” ) of the existing French tax group headed by the Company (the “Tax Group” ) leaves the Tax Group before Completion, the former Members and the Company will enter into exit agreement (the “Exit Agreement” ) providing for the consequences of the exit from the Tax Group or its termination. Any Exit Agreement shall be drafted by the Seller and provided by the Seller for review to the Purchaser.

 

 

33


14.5 Use of offices by Seller Group

The Purchaser shall allow the Seller Group to use four desks in the offices of the Property until 31 December 2015 at no extra costs for the Seller Group for use by regional employees of the Seller Group as currently in place. The agreement on the use of the offices shall be further described in a tenancy agreement between the relevant member(s) of the Seller Group and the relevant Group Companies.

 

15. EFFECT OF TERMINATION

 

15.1 If this agreement terminates automatically under clause 5.5, or is terminated pursuant to clause 6.3.3, then each party’s further rights, obligations and liabilities under this agreement shall cease immediately on termination, except for:

 

  15.1.1 each party’s accrued rights (including the right to claim any remedy for breach or non-performance), obligations and liabilities as at the date of termination; and

 

  15.1.2 each party’s continuing rights, obligations and liabilities under this clause 15.1 and clauses 1 (Definitions and interpretation), 5.5 (Pre-Completion termination), 12 (Confidentiality and announcements), 16 (Assignment and successors), 18 (Costs and expenses), 19 (Payments, etc.), 21 (Entire agreement), 22.1 (Severance), 22.2 (Variation), 22.3 (Waiver), 22.4 (Cumulative remedies), 23 (Notices), and 24 (Governing law, jurisdiction and language).

 

15.2 To the extent lawful and except as stated in clause 5.5 and clause 6.3.3 or in the case of fraud or fraudulent concealment, no party shall have any right to rescind or terminate this agreement or to treat it as having been terminated (whether before or after Completion).

 

16. ASSIGNMENT

 

16.1 Assignment by Purchaser

 

  16.1.1 The Purchaser may assign all or any of its rights under this agreement following Completion without the Seller’s consent to one or more members of the Purchaser Group, subject to the condition that the Purchaser will procure that, before any assignee subsequently ceases to be a member of the Purchaser Group, that assignee shall transfer or assign back to the Purchaser, or to another member of the Purchaser Group (which itself shall then be deemed to be an assignee of the Purchaser for the purposes of this clause), so much of the benefit of this agreement and all of the agreements comprising the Management Agreement Suite as have been transferred or assigned to it.

 

  16.1.2 The Purchaser shall not assign all or any of its rights under this agreement without the Seller’s consent (i) prior to Completion or (ii) to any person other than the members of the Purchaser Group.

 

16.2 Assignment by Seller

 

  16.2.1 The Seller may assign all or any of its rights under this agreement without the Purchaser’s consent to one or more members of the Seller Group subject to the condition that the Seller will procure that, before any assignee subsequently ceases to be a member of the Seller Group, that assignee shall assign back to the Seller, or to another member of the Seller Group (which itself shall then be deemed to be an assignee of the Seller for the purposes of this clause), so much of the benefit of this agreement as has been assigned to it.

 

  16.2.2 The Seller shall not assign all or any of its rights under this agreement without the Purchaser’s consent to any person other than the members of the Seller Group.

 

 

34


17. THIRD PARTY RIGHTS

Except as otherwise expressly provided in clause 16 (Assignment), a person who is not a party to this agreement shall not have any right to enforce any of its terms.

 

18. COSTS AND EXPENSES

 

18.1 Any transfer Tax payable in connection with this agreement or its execution or on or in respect of the transfer of the Shares, will be shared between the Seller and the Purchaser, being specified that the Seller shall pay 2/3 of such transfer Tax and the Purchaser, 1/3 of the same. The Seller and the Purchaser shall both and jointly be responsible for the Tax registration and the payment of any related transfer Tax and related formalities, resulting, among others, from any communication with the French tax authorities.

 

18.2 Unless otherwise expressly provided in this agreement, each party shall bear its own costs, charges and expenses incurred in relation to the preparation, negotiation, execution and implementation of this agreement.

 

19. PAYMENTS, ETC.

 

19.1 In this clause 19, “Payment Account” means:

 

  19.1.1 if the relevant payment is to be made to the Seller, the account of the Seller or of its Affiliate notified to the Purchaser or Constellation (as appropriate) for this purpose not less than three Business Days before the date such payment is due; and

 

  19.1.2 if the relevant payment is to be made to the Purchaser, the account of the Purchaser notified to the Seller for this purpose not less than three Business Days before the date such payment is due.

 

19.2 Any payment to be made to the Seller or the Purchaser under this agreement shall be made in euros by transfer of immediately available funds for same day value to the Payment Account.

 

19.3 If requested, each party shall provide to the relevant payee, as soon as reasonably practicable, reasonable evidence of the origin of the funds used to meet its obligations to pay (or to procure the payment of) any amount under any Acquisition Document.

 

19.4 Unless otherwise expressly provided in this agreement, each party shall pay, and shall procure that its group pays, all amounts due under this agreement in full, without any set-off, counterclaim, deduction or withholding, except to the extent required by applicable laws. Any such deduction or withholding shall not exceed the minimum amount required by law, and the payer shall simultaneously pay to the payee such additional amount as is required for the aggregate of (a) the net amount received by the payee and (b) any Tax credit, repayment or benefit received or receivable by the payee in respect of such deduction or withholding to equal the full amount due before the required deduction or withholding.

 

 

35


19.5 To the extent that any payment pursuant to any indemnity or covenant to pay in this agreement is subject to a charge to Tax in the hands of the payee, the payer shall simultaneously pay to the payee such additional amount as is required for the aggregate of (a) the net amount received by the payee and (b) any Tax credit, repayment or benefit received or receivable by the payee in respect of such payment to equal the full amount due before the charge to Tax.

 

19.6 Unless otherwise expressly provided in this agreement, if any amount payable under this agreement is not paid by the due date for payment, then interest shall also be paid on that amount from (and including) the due date for payment to (but excluding) the date it is paid at the Interest Rate accruing on a daily basis, and compounded monthly.

 

20. FURTHER ASSURANCE

On and after Completion, each party shall from time to time, so far as it is reasonably able, do (or procure to be done) all such other things and/or execute and deliver (or procure to be executed and delivered) all such other documents as may be reasonably requested of it (at the requesting party’s expense) to give effect to this agreement.

 

21. ENTIRE AGREEMENT

 

21.1 In this clause 21, “Statement” means representation, warranty, statement or assurance (whether contractual or otherwise) made or given before this agreement is entered into.

 

21.2 The Acquisition Documents and the Management Agreement Suite (as varied in accordance with their terms) constitute the entire agreement and understanding between the parties in connection with the transactions contemplated by the Acquisition Documents. Accordingly, they supersede and extinguish all previous agreements, arrangements and understandings between, and (except to the extent incorporated in the Acquisition Documents) all Statements given by, the parties in connection with such transactions.

 

21.3 Each party acknowledges that it has not relied on, or been induced to enter into any Acquisition Document by, any Statement given by any person (whether a party to this agreement or not) that is not incorporated in any Acquisition Document.

 

21.4 This clause 21 shall not exclude or limit any liability or remedy arising as a result of any fraud or fraudulent concealment.

 

22. GENERAL

 

22.1 Severance

If any provision of this agreement is or becomes illegal, invalid or unenforceable in any respect under the law of any relevant jurisdiction, that shall not affect or impair the legality, validity or enforceability of (a) any other provision of this agreement in that jurisdiction; or (b) that provision or any other provision of this agreement in any other relevant jurisdiction. If any illegal, invalid or unenforceable provision of this agreement would be legal, valid and enforceable if some part or parts of it were modified, such provision shall apply with whatever modification is necessary so that it is legal, valid and enforceable and gives effect to the commercial intention of the parties.

 

 

36


22.2 Variation

No variation of this agreement shall be valid unless it is in writing and signed by or on behalf of the Seller and the Purchaser.

 

22.3 Waiver

Any waiver of any right or remedy under or in respect of this agreement shall only be valid if it is in writing, and shall apply only to the person to whom it is addressed and in the specific circumstances for which it is given. Unless otherwise expressly provided in this agreement, no right or remedy under or in respect of this agreement shall be precluded, waived or impaired by (a) any failure to exercise or delay in exercising it; (b) any single or partial exercise of it; (c) any earlier waiver of it, whether in whole or in part; or (d) any failure to exercise, delay in exercising, single or partial exercise of or earlier waiver of any other such right or remedy.

 

22.4 Cumulative remedies

Unless otherwise expressly provided in this agreement, the rights and remedies under this agreement are in addition to, and do not exclude, any rights or remedies provided by law.

 

22.5 Effect of Completion

Each provision of this agreement (other than any obligation which is fully performed at Completion) shall remain in full force and effect after Completion.

 

23. NOTICES

 

23.1 Interpretation

In this clause 23:

 

  23.1.1 “Business Day” means any day on which commercial banks are open for general business in the principal financial centre of the country in or to which the Notice is delivered or sent; and

 

  23.1.2 any reference to a time is to the local time in the place at or to which the Notice is delivered or sent.

 

23.2 Form and method of giving Notice

Any notice or other communication to be given or made under or in connection with this agreement ( “Notice” ) shall be in writing in English, sent to the relevant party at the postal or email address and for the attention of the person specified in clause 23.3, and may be delivered:

 

  23.2.1 by hand or by courier (using an internationally recognised courier company);

 

  23.2.2 by prepaid recorded delivery post or equivalent if the Notice is to be received in the same country from which it is sent; or

 

  23.2.3 by email, provided that the sender must deliver a copy of such Notice to the recipient otherwise than by email by 6.00 pm CET on the fifth Business Day after the date on which the original Notice is deemed to have been given in accordance with clause 23.4.2.

 

 

37


23.3 Contact details for Notices

The postal and email addresses and relevant contacts of the parties for the purposes of clause 23.2 are:

 

Seller:
For the attention of: The EU General Counsel of the Intercontinental Hotels Group, currently Nigel Stocks
Address: Legal Department, InterContinental Hotels Group

Broadwater Park, Denham

Buckinghamshire

UB9 5HR United Kingdom

Email: nigel.stocks@ihg.com
Purchaser:
For the attention of: François C. FABER
Address: 15, boulevard Roosevelt, L-2450 Luxembourg
Email: Francois.Faber@fff.lu

Fady Bakhos

P.O. Box 4044, Doha; Quatar

fbakhos@almirqab.com

With a copy to: Maître Jean-Marc Franceschi
Address:

Hogan Lovells

17, avenue Matignon

75008 Paris

France

Email: jean-marc.franceschi@hoganlovells.com

or, in each case, such other postal or email address or contact as a party may notify to the others for this purpose in accordance with this clause 23. Notice of any change shall be effective five Business Days after the date on which it is deemed to have been given in accordance with this clause 23, or such later date as may be specified in the Notice.

 

23.4 Time Notice is given

Any Notice which has been delivered in accordance with clause 23.2 shall be deemed to have been given:

 

  23.4.1 if delivered by hand, by courier or by post, at the time of delivery; or

 

  23.4.2 if sent by email, at the time the email is sent, provided that no automated message is received stating that the email has not been delivered.

 

 

38


However if any Notice would be deemed to have been given after 6.00 pm CET on a Business Day and before 9.00 am CET on the next Business Day, such Notice shall be deemed to have been given at 9.00 am CET on the second of such Business Days.

 

23.5 Service of process

Clause 23 shall not apply to the service of process in any legal action or proceedings relating to any Dispute.

 

24. GOVERNING LAW, ARBITRATION AND LANGUAGE

 

24.1 This agreement shall be governed by and construed in all respects in accordance with the laws of France.

 

24.2 The Seller and the Purchaser acknowledge that due to their continuing relationship they have a strong interest in resolving any dispute without destroying the relationship between them. The parties shall therefore use their best efforts to settle by way of amicable negotiations any difference which may occur between them in connection with this agreement.

 

24.3 Except for any determination which must be made by the Expert or the MAE Expert, any dispute, controversy or claim arising out of or in connection with this agreement or the breach, termination or invalidity, thereof, shall be submitted to the exclusive jurisdiction of the Commercial Court in Paris ( Tribunal de Commerce de Paris ).

 

 

39


This agreement has been duly signed by the Parties, in three originals in Paris (France) on the day written on the first page.

 

Signed for and on behalf of BHR Holdings

Holdings BV by:

)

)

Signature LOGO
       

 

Name D. LLEWELLYN
       

 

Director/authorised signatory

Signed for and on behalf of Constellation

Hotels France Grand SA by:

)

)

Signature LOGO
       

 

Name FADY BAKHOS
       

 

Director/authorised signatory

 

 

87


The exhibits and schedules to this sale and purchase agreement have been omitted from the filing. The following is a list of omitted exhibits and schedules and a brief description of each. InterContinental Hotels Group PLC agrees to furnish to the Securities and Exchange Commission, upon its request, a copy of any such omitted exhibits and schedules:

SCHEDULE 1: Warranted information

SCHEDULE 2: Warranties

SCHEDULE 3: Disclosures

SCHEDULE 4: Completion obligations

SCHEDULE 5: Completion statements

SCHEDULE 6: Reorganisation

Exhibit 4(c)(ix)

 

 

LOGO

INTERCONTINENTAL HOTELS GROUP

RULES

LONG TERM INCENTIVE PLAN

 

Directors’ Adoption:

13 February 2014

Shareholders’ Approval:

2 May 2014

Effective Date:

2 May 2014

Expiry Date:

2 May 2024


TABLE OF CONTENTS

 

1

Meanings of Words Used 1

2

Operation of the Plan 2
2.1

Committee Authority

2
2.2

Eligibility

2
2.3

End date for Awards

3

3

Making of Awards 3
3.1

Contract

3
3.2

Details

3
3.3

Timing of Awards

3
3.4

Notification

3
3.5

US Participants

3

4

Individual limits 4
4.1

Salary limit

4
4.2

Exceptional circumstances

4

5

Plan Limits 4
5.1

10 per cent. 10 year limit

4
5.2

5 per cent. 10 year limit

4
5.3

Exclusions

4
5.4

Meaning of Allocate

4

6

Voting, dividends and Dividend Equivalents 4
6.1

Rights

4
6.2

Dividend Equivalents

4
6.3

Settling Dividend Equivalents

5

7

Vesting Date 5
7.1

Normal Vesting Date

5
7.2

Delayed Vesting Date

5
7.3

US Participants

5

8

Termination provisions 5
8.1

Death

5
8.2

Good Leavers

5
8.3

Other leavers

6
8.4

Date of termination

6

9

Determination of Awards 6
9.1

End of Performance Period

6
9.2

Options

7

10

Vesting of Conditional Awards 7
10.1

Satisfying Conditional Awards

7
10.2

Vesting statement

7

 

 

     
IHG – Rules – Long Term Incentive Plan
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11

Exercise of Options 7
11.1

Exercise Period

7
11.2

Method

7
11.3

Delivery

7
11.4

Lapse

7

12

Cash alternative 7

13

Reconstructions and Takeovers 8
13.1

Acceleration of rights

8
13.2

Exchange of rights

8
13.3

Other transactions

8

14

Discretion to reduce Awards 8
14.1

Committee can reduce Awards

8
14.2

Circumstances

9
14.3

Notification

9

15

General 9
15.1

Notice

9
15.2

Final and conclusive

9
15.3

Costs

9
15.4

Withholding

10
15.5

Regulations

10
15.6

Section 409A

10

16

Terms of employment 10
16.1

Application

10
16.2

Not part of employment contract

10
16.3

No future expectation

10
16.4

No entitlement

10
16.5

Decisions

11
16.6

No compensation

11
16.7

Waiver

11
16.8

Third parties

11
16.9

Separate and independent

11

17

Personal data 11
17.1

Consent

11
17.2

Types of processing

11

18

Changes to and termination of the Plan 12
18.1

Committee powers

12
18.2

Participant’s consent

12
18.3

Shareholder approval

12

 

 

 

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18.4

Minor changes

12
18.5

Employees’ share scheme

12
18.6

Termination

13

19

Operating the Plan overseas 13

20

Governing law 13

 

 

 

IHG – Rules – Long Term Incentive Plan

 

iii ©Tapestry 2014


InterContinental Hotels Group Long Term Incentive Plan Rules

 

1 Meanings of Words Used

In these Rules:

Award ” means a Conditional Award, an Option or a conditional award of cash made to a Participant under this Plan. An Award may be designated to relate to a particular Plan Cycle.

Award Date ” means the date of the Award set by the Committee under Rule 3.2.

Change in Ownership under Section 409A ” means a “change in ownership” within the meaning of US Treasury Regulation Section 1.409A-3(i)(5)(v). In general, a change in the ownership of a corporation occurs on the date that any one person, or more than one person acting as a group (as defined for purposes of Section 409A), acquires ownership of stock of the corporation that, together with stock held by such person or group, constitutes more than 50 percent of the total fair market value or total voting power of the stock of such corporation. However, if any one person, or more than one person acting as a group, is considered to own more than 50 percent of the total fair market value or total voting power of the stock of a corporation, the acquisition of additional stock by the same person or persons is not considered to cause a change in the ownership of the corporation. An increase in the percentage of stock owned by any one person, or persons acting as a group, as a result of a transaction in which the corporation acquires its stock in exchange for property will be treated as an acquisition of stock for purposes of this section. This section applies only when there is a transfer of stock of a corporation (or issuance of stock of a corporation) and stock in such corporation remains outstanding after the transaction.

Committee ” means the board of directors of the Company or a duly authorised committee.

Company ” means InterContinental Hotels Group PLC (with registered number 5134420).

Conditional Award ” means a conditional award of Shares.

“Dividend Equivalent” means a cash payment (as defined in Rule 6.2) which, although not a real dividend payment, reflects the economic value of dividends that are paid on real Shares.

Employee ” means, except for the purposes of Rule 16, any employee, or former employee of any Group Company.

“Good Leaver” means Participants who terminate employment in certain termination situations as described in Rule 8.2.

Group Company ” means:

 

(i) the Company;

 

(ii) a Subsidiary; or

 

(iii) any other company which is associated with the Company and is so designated by the Committee.

“Lapse Date” is defined in Rule 11.4.

“Option” means a right to acquire Shares. The amount payable for the Shares comprised in an Option shall be nil irrespective of the number of Shares acquired, unless the Committee decides otherwise.

“Participant” means an Employee to whom the Committee has made an Award, and includes his personal representatives where appropriate.

“Performance Condition” means the performance condition specified in relation to an Award, if any.

“Performance Period” means the period during which the Performance Condition is to be satisfied.

 

 

 

IHG – Rules – Long Term Incentive Plan

 

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“Plan” means the InterContinental Hotels Group Long Term Incentive Plan constituted by this document as amended from time to time.

“Plan Cycle” means the operation of the Plan in a particular year or period or in relation to particular off cycle Awards.

“Reconstruction or Takeover” means any takeover or merger, however effected, including a reverse takeover, partial offer, reorganisation or scheme of arrangement sanctioned by the court other than an internal reconstruction or reorganisation which does not involve a significant change in the identity of the ultimate shareholders of the Company.

“Rules” means these rules as amended from time to time.

“Salary” for a financial year, means the basic annual salary in effect on the last day of that financial year excluding all payments additional to basic salary (for example mortgage support allowance, expatriate allowance etc).

“Section 409A” means Section 409A of the Internal Revenue Code of 1986, as amended.

“Shares” means ordinary shares in the Company, and includes any shares representing them following a Reconstruction or Takeover.

“Subsidiary” means a company which is a subsidiary of the Company within the meaning of section 1159 of the Companies Act 2006.

“US Participant” means a Participant who is or becomes subject to taxation under the federal income tax rules of the United States of America.

Vested Shares ” means

 

(i) in relation to a Conditional Award, the number of Shares to be transferred to a Participant or his nominee; and

 

(ii) in relation to an Option, the number of Shares which may be acquired by a Participant on the exercise of the Option;

and “Vest” shall be construed accordingly.

“Vesting Date” is defined in Rule 7.

References in the Plan to any statutory provisions are to those provisions as amended, extended or re-enacted from time to time and include any regulations made under them; and, unless the context otherwise requires, words in the singular include the plural (and vice versa) and words imputing gender include all genders.

 

2 Operation of the Plan

 

2.1 Committee Authority

The Plan shall be operated and administered by the Committee on behalf of the Company. The Committee shall have full authority from the Company to operate the Plan as it considers reasonable in all the circumstances.

 

2.2 Eligibility

Only Employees may be made Awards.

 

 

 

IHG – Rules – Long Term Incentive Plan

 

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The Committee shall have an absolute discretion as to the selection of Employees for participation in the Plan in respect of any Plan Cycle.

 

2.3 End date for Awards

Awards may be granted at any time before 2 May, 2024.

 

3 Making of Awards

 

3.1 Contract

Awards will be granted by deed or in any other manner which is legally enforceable in the relevant jurisdiction.

 

3.2 Details

When the Committee grants an Award it shall determine the terms of the Award in its absolute discretion, including:

 

  3.2.1 the Award Date;

 

  3.2.2 whether the Award is an Option, a Conditional Award or a conditional award of cash;

 

  3.2.3 the Performance Period;

 

  3.2.4 the Performance Condition, if any;

 

  3.2.5 the maximum number of Shares subject to the Award;

 

  3.2.6 the Vesting Date; and

 

  3.2.7 whether or not Dividend Equivalents will be paid.

 

3.3 Timing of Awards

Subject to any dealing restrictions, Awards may only be made within 42 days of:

 

  3.3.1 the day after the announcement of the Company’s results for any period;

 

  3.3.2 any day on which the Directors decide that exceptional circumstances exist which justify the grant of Awards;

 

  3.3.3 any day on which changes to law or regulation affecting employee share plans are announced, made or become effective; or

 

  3.3.4 the lifting of dealing restrictions which prevented the granting of Awards during any period specified above.

No awards may be granted after 2 May, 2024.

 

3.4 Notification

The Company may send an award certificate or statement to the Participant specifying the terms of the Award.

 

3.5 US Participants

Options will not be granted to US Participants.

 

 

 

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4 Individual limits

 

4.1 Salary limit

Subject to Rule 4.2, an Award must not be made to an Employee if it would at the proposed Award Date cause the aggregate of the market value of Shares or the amount of cash over which Awards have been made in any financial year to exceed 3 times his Salary as at the Award Date.

 

4.2 Exceptional circumstances

The limit in this Rule 4 may be exceeded if the Committee determine that exceptional circumstances make it desirable that Awards should be granted in excess of those limits.

 

5 Plan Limits

 

5.1 10 per cent. 10 year limit

The number of Shares which may be allocated under the Plan on any day must not exceed 10 per cent. of the ordinary share capital of the Company in issue immediately before that day, when added to the total number of Shares which have been allocated in the previous 10 years under the Plan and all other employee share plan operated by the Company.

 

5.2 5 per cent. 10 year limit

The number of Shares which may be allocated under the Plan on any day must not exceed 5 per cent. of the ordinary share capital of the Company in issue immediately before that day when added to the total number of Shares which have been allocated in the previous 10 years under the Plan and any other discretionary share plans operated by the Company.

 

5.3 Exclusions

Where the right to acquire Shares is released or lapses, the Shares concerned are ignored when calculating the limits in this Rule 5.

 

5.4 Meaning of Allocate

Allocate ” means granting a right to acquire unissued Shares or to acquire Shares which are held by the Company in treasury or, if there is no such grant, the issue and allotment of Shares or the transfer of Shares from treasury. (However, if at any time the relevant institutional investor guidelines cease to require treasury shares to be taken into account for this purpose, then Allocate shall not include such treasury shares.)

 

6 Voting, dividends and Dividend Equivalents

 

6.1 Rights

A Participant shall not be entitled to vote, to receive dividends or to have any other rights of a shareholder in respect of Shares subject to an Award until the Shares are issued or transferred to the Participant or his nominee.

 

6.2 Dividend Equivalents

Notwithstanding Rule 6.1, the Company may grant an Award on the basis that the Participant shall receive an amount equal to the dividends the record date for which falls between the Award Date and the Vesting Date, multiplied by the number of Shares in respect of which the Award is Vesting and adjusted assuming full dividend reinvestment (“Dividend Equivalents”). In the case of a Participant’s death, the relevant period will be extended (if relevant) to the date of issue or transfer to the Participants’ personal representatives. No shareholder rights or Dividend Equivalents shall attach to conditional awards of cash.

 

 

 

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6.3 Settling Dividend Equivalents

Any Dividend Equivalent may be paid in cash or in such whole number of Shares (rounded down) as has a market value (as at the Vesting Date) as nearly as practicable equal to that amount. The cash will be paid or Shares issued or transferred on the same date as cash is paid or Shares are issued or transferred with respect to the underlying Award.

 

7 Vesting Date

 

7.1 Normal Vesting Date

“Vesting Date” shall generally mean the first business day after the announcement of the Company’s results for the last financial year of the Performance Period.

The Committee may decide in its reasonable discretion that the Vesting Date will be a date within 45 days of the announcement of the Company’s results for the last financial year of the Performance Period.

 

7.2 Delayed Vesting Date

In the event that the acquisition or disposal of Shares is not permitted by law or by any relevant restrictions, the Vesting Date will be deferred until the ending of such restrictions unless the Committee decides otherwise. For US Participants, such a deferral shall be effected only to the extent permitted under Section 409A.

 

7.3 US Participants

In all cases, for Awards granted to US Participants, the Vesting Date shall be a date during the period from January 1 to March 15 of the calendar year following the calendar year in which the Performance Period ends.

 

8 Termination provisions

 

8.1 Death

If a Participant dies before the Vesting Date, the Committee will as soon as reasonably practicable determine in its reasonable discretion the number of Shares which shall Vest. The Committee will take account of the proportion of the Performance Period that has elapsed and the extent to which the Performance Condition has been satisfied.

In the case of a Conditional Award, the Committee will then procure the transfer of the Vested Shares or will pay the cash to the Participant’s personal representatives as soon as reasonably practicable. In the case of Awards granted to US Participants, the Committee will settle such Conditional Award, to the extent deemed Vested, within 60 days following the Participant’s date of death.

In the case of an Option, this may be exercised by the Participant’s personal representatives over the Vested Shares in the period of six months from the date of death, and will lapse if not exercised.

 

8.2 Good Leavers

If a Participant’s employment with any Group Company terminates before the Vesting Date for any of the reasons specified below, then the number of Vested Shares relating to his Awards shall be the number determined under Rule 9 after the end of the Performance Period, reduced pro rata to reflect

 

 

 

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the proportion of the Performance Period that had elapsed on the date of termination. However, the Committee shall retain discretion to accelerate the Vesting Date if it considers it reasonable to do so in all the circumstances. If the Vesting Date is accelerated then the number of Shares which will vest will be determined by the Committee in its reasonable discretion.

The reasons are:

 

  8.2.1 ill-health, injury, disability;

 

  8.2.2 redundancy;

 

  8.2.3 retirement by agreement with the Participant’s employer;

 

  8.2.4 the Participant’s employing company being transferred to a person which is not a Group Company;

 

  8.2.5 a transfer of the undertaking, or part of the undertaking, in which the Participant works to a person which is not a Group Company; or

 

  8.2.6 any other reason determined by the Committee.

The Committee will procure the transfer of the Vested Shares in a Conditional Award or pay cash to the Participant in accordance with Rule 10. For a US Participant, the transfer or payment will be made before March 15 of the calendar year following the calendar year in which the Performance Period ends. An Option may be exercised by the Participant over the Vested Shares in the period of six months from the Vesting Date, and will lapse if not exercised.

 

8.3 Other leavers

If a Participant’s office or employment with any Group Company terminates before the Vesting Date for any reason not included in Rules 8.1 and 8.2, he shall cease to be a Participant in the Plan. The Participant shall not be eligible to receive any Shares or cash in respect of his Awards unless the Committee decides otherwise within a reasonable time of the termination. For US Participants the timing of any settlement of an Award pursuant to this Rule 8.3 shall be made in a manner consistent with the requirements of Section 409A, if applicable. If the termination is by reason of gross misconduct, he shall not be eligible to receive any Shares or cash in respect of any Awards in any circumstances.

 

8.4 Date of termination

For the purposes of this Rule, a Participant’s employment with a Group Company will not be treated as having terminated until the Participant ceases to be employed by any Group Company. Unless the Committee decides otherwise, in the case of termination for any of the reasons set out in Rule 8.2 (other than retirement) the Participant will be treated as having terminated on the date of actual termination and not at the end of his contractual notice period or severance period.

 

9 Determination of Awards

 

9.1 End of Performance Period

As soon as reasonably practicable after the end of the Performance Period, the Committee will calculate:

 

  9.1.1 the extent to which the Performance Condition has been satisfied; and

 

  9.1.2 the number of Shares which Vest in respect of each Award, or the amount of cash to be awarded to each Participant.

 

 

 

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9.2 Options

In the case of an Option:

 

  9.2.1 the Committee will notify the Participant of the number of Vested Shares; and

 

  9.2.2 the balance of the Option will immediately lapse.

 

10 Vesting of Conditional Awards

 

10.1 Satisfying Conditional Awards

The Committee shall arrange delivery of the Vested Shares or cash to each Participant or his nominee on, or as soon as reasonably practical after, the Vesting Date.

 

10.2 Vesting statement

The Committee may notify each Participant of the number of Vested Shares transferred to him or his nominee in respect of his Conditional Award and the amount of any tax and social security contributions withheld.

 

11 Exercise of Options

 

11.1 Exercise Period

Except as otherwise provided in Rule 8, a Participant may exercise an Option to the extent that it has Vested at any time from the Vesting Date until the Lapse Date.

 

11.2 Method

In order to exercise an Option, the Participant must deliver to the Company a notice of exercise in the prescribed form. The date on which the notice is received by the Company shall, unless the notice is conditional or specifies some other date, be the Option exercise date.

 

11.3 Delivery

Subject to Rule 11.4, as soon as reasonably practicable following the Option exercise, the Committee will arrange delivery of the appropriate number of Shares to the Participant.

 

11.4 Lapse

The Lapse Date in relation to an Option is the earliest of the following dates:

 

  11.4.1 the second anniversary of the Vesting Date;

 

  11.4.2 if a Participant dies or terminates employment before the Vesting Date then, subject to Rule 8, the date on which the Participant’s employment with any Group Company ends; and

 

  11.4.3 if a Participant dies or terminates employment after the Vesting Date, six months after the date on which the Participant’s employment with any Group Company ends.

 

12 Cash alternative

The Committee may decide to satisfy any Award by paying an equivalent amount in cash, if it considers in its discretion that this would be appropriate. The Committee will in its discretion determine the appropriate cash amount by any reasonable means.

 

 

 

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13 Reconstructions and Takeovers

 

13.1 Acceleration of rights

In the event of a Reconstruction or Takeover before the Vesting Date, the Award may be accelerated and the Committee will as soon as practicable determine the number of Vested Shares or cash due in relation to all Awards, taking account of the proportion of the Performance Period that has elapsed, and the degree to which the Performance Condition has been satisfied.

The Committee will procure as soon as reasonably practicable the delivery to each Participant of the Vested Shares in a Conditional Award or payment of the cash so determined.

For a US Participant the transfer of Shares or payment of cash with respect to an Award subject to Section 409A may be advanced only if the Reconstruction or Takeover constitutes a Change in Ownership under Section 409A in which case the transfer or payment, as applicable, shall be made upon the date of the Reconstruction or Takeover. For a US Participant, such a Reconstruction or Takeover that is a Change in Ownership under Section 409A shall always trigger an advancement in time of the transfer of Shares or payment of cash.

In the case of an Option, this may only be exercised by the Participant over the number of Vested Shares in the period of 21 days from the date of the Reconstruction or Takeover, unless the Committee decides a longer period should apply, and will lapse if it has not been exercised.

 

13.2 Exchange of rights

In the case of a Reconstruction or Takeover involving the exchange of Shares for shares in another company, or in more than one other company, the Committee may in its discretion determine that no Shares or cash should be transferred, and that instead the Participant’s right to the Shares comprised in an Award should be replaced by a right to the appropriate number of shares in that other company or companies. For US Participants who are subject to Section 409A any such replacement of Shares with shares in that other company or companies, if made, shall be made in a manner consistent with the requirements of Section 409A.

 

13.3 Other transactions

The Committee has discretion to take such action as it may think appropriate if other events happen which may have an effect on Awards. For a US Participant no such action shall result in an advancement or additional deferral in time of the transfer of shares or payment of cash with respect to an Award subject to Section 409A, unless otherwise permitted under Section 409A.

 

14 Discretion to reduce Awards

 

14.1 Committee can reduce Awards

Notwithstanding any other Rule of the Plan, if circumstances occur which, in the reasonable opinion of the Committee, justify a reduction in one or more Awards granted to any one or more Participants, the Committee may reduce the Awards. The Committee may, at any time prior to the Vesting Date, determine (acting fairly and reasonably) that the cash amount payable under an Award or the number of Shares over which an Award is granted shall be reduced to such amount or number (including to nil) as the Committee considers appropriate in the circumstances.

 

 

 

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14.2 Circumstances

The circumstances in which the Committee may consider that it is appropriate to exercise its discretion under Rule 14.1, include the following:

 

  14.2.1 the misconduct of a Participant which results in or is reasonably likely to result in

 

  (i) significant reputational damage to the Company, any Group Company or to a relevant business unit (as appropriate);

 

  (ii) a material adverse effect on the financial position of the Company, any Group Company or to a relevant business unit (as appropriate); or

 

  (iii) a material adverse effect on the business opportunities and prospects for sustained performance or profitability of the Company, any Group Company or relevant business unit (as appropriate);

 

  14.2.2 a material misstatement or restatement in the Company’s or any Group Company’s audited financial accounts (other than as a result of a change in accounting practice).

 

14.3 Notification

If the Committee decides to exercise its discretion under this Rule, it shall confirm this in writing to each affected Participant. For the purposes of these Rules:

 

  14.3.1 the Award shall be deemed to have been granted over the reduced cash amount or reduced number of Shares (as the case may be);

 

  14.3.2 any subsequent vesting of an Award shall be determined by reference to this reduced cash amount or reduced number of Shares; and

 

  14.3.3 if the cash amount or number of Shares is reduced to nil, the Award shall be treated as if it had never been granted and a Participant (including a Participant who has left employment before the Vesting Date other than by reason of death) shall have no rights to any cash amount or Shares.

 

15 General

 

15.1 Notice

Any notice or other document given to any Employee or Participant pursuant to the Plan shall be delivered to him or sent to him by post or by an electronic communication (including by the updating of any web page) at his address according to the records of his employing company. Notices or other documents sent by post shall be deemed to have been given 5 days following the date of posting. Notices or other documents delivered electronically shall be deemed to have been given the day of transmission.

 

15.2 Final and conclusive

The decision of the Committee in any question of interpretation of the Rules or any dispute relating to or connected with this Plan shall be final and conclusive.

 

15.3 Costs

The costs of introducing, operating and administering the Plan shall be borne by the Company and the relevant Group Companies. The Group Company will, if required by the Company, reimburse the Company for any costs incurred in connection with Awards made to Participants who are employed by it.

 

 

 

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15.4 Withholding

The Company, any relevant Group Company and/or any relevant trustee may withhold any amounts or make such arrangements as they consider necessary to meet any liability to taxation and social security contributions in respect of the Shares, Dividend Equivalents or cash awarded under the Plan. The arrangements may include the sale of some or all of any Shares subject to an Award on behalf of the Participant, and the use of the proceeds to discharge the liability.

 

15.5 Regulations

The Committee shall have power from time to time to make or vary regulations for the administration and operation of the Plan provided that they are not inconsistent with these Rules.

 

15.6 Section 409A

With respect to Awards granted to Participants who are or become subject to taxation under the federal income tax rules of the United States of America, it is intended for such Awards to be exempt from Section 409A and, to the extent such Awards are not so exempt, for such Awards to comply with the requirements of Section 409A. In furtherance of such intent the provisions of the Plan and any Award document shall be interpreted in a manner that does not result in the imputation of any tax, penalty or interest pursuant to Section 409A, and the Plan shall be operated accordingly. If any provision of the Plan or any term or condition of any Award would otherwise frustrate or conflict with this intent, the provision, term or condition will be interpreted and deemed amended so as to avoid this conflict. Notwithstanding the foregoing, the tax treatment of the benefits provided under the Plan or any Award document is not warranted or guaranteed.

 

16 Terms of employment

 

16.1 Application

This Rule applies:

 

  16.1.1 during an Employee’s employment or employment relationship; and

 

  16.1.2 after the termination of an Employee’s employment or employment relationship, whether the termination is lawful or unlawful.

 

16.2 Not part of employment contract

Nothing in the Rules or the operation of the Plan forms part of the contract of employment or employment relationship of an Employee. The rights and obligations of an Employee are separate from, and are not affected by, the Plan. Participation in the Plan does not create any right to, or expectation of, continued employment or a continued employment relationship.

 

16.3 No future expectation

The grant of Awards on a particular basis in any year does not create any right to or expectation of the grant of Awards on the same basis, or at all, in any future year.

 

16.4 No entitlement

No Employee is entitled to participate in the Plan, or be considered for participation in it, at a particular level or at all. Participation in one operation of the Plan does not imply any right to participate, or to be considered for participation in any later operation of the Plan.

 

 

 

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16.5 Decisions

Without prejudice to an Employee’s right to receive the Shares comprised in an Award subject to and in accordance with the express terms of the Rules and the Performance Condition, no Employee has any rights in respect of the exercise or omission to exercise any discretion, or the making or omission to make any decision, relating to the Award. Any and all discretions, decisions or omissions relating to the Award may operate to the disadvantage of the Employee, even if this could be regarded as capricious or unreasonable, or could be regarded as in breach of any implied term between the Employee and his employer, including any implied duty of trust and confidence. Any such implied term is excluded and overridden by this Rule.

 

16.6 No compensation

No Employee has any right to compensation for any loss in relation to the Plan, including:

 

  16.6.1 any loss or reduction of any rights or expectations under the Plan in any circumstances or for any reason (including lawful or unlawful termination of employment or the employment relationship);

 

  16.6.2 any exercise of a discretion or a decision taken in relation to an Award or to the Plan, or any failure to exercise a discretion or take a decision;

 

  16.6.3 the operation, suspension, termination or amendment of the Plan.

 

16.7 Waiver

Participation in the Plan is permitted only on the basis that the Participant accepts all the provisions of the Rules, including in particular this Rule. By participating in the Plan, an Employee waives all rights under the Plan, other than the right to receive Shares subject to and in accordance with the express terms of the Rules and the Performance Condition, in consideration for, and as a condition of, the grant of an Award under the Plan.

 

16.8 Third parties

Nothing in this Plan confers any benefit, right or expectation on a person who is not an Employee. No such third party has any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Plan. This does not affect any other right or remedy of a third party which may exist.

 

16.9 Separate and independent

Each of the provisions of this Rule is entirely separate and independent from each of the other provisions. If any provision is found to be invalid then it will be deemed never to have been part of these Rules and to the extent that it is possible to do so, this will not affect the validity or enforceability of any of the remaining provisions.

 

17 Personal data

 

17.1 Consent

By participating in the Plan the Participant consents to the holding and processing of personal data provided by the Participant to the Company for all purposes relating to the operation of the Plan.

 

17.2 Types of processing

These include, but are not limited to:

 

  17.2.1 administering and maintaining Participant records;

 

 

 

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  17.2.2 providing information to trustees of any employee benefit trust, registrars, brokers or third party administrators of the Plan;

 

  17.2.3 providing information to future purchasers of the Company or the business in which the Participant works;

 

  17.2.4 transferring information about the Participant to a country or territory outside the European Economic Area.

 

18 Changes to and termination of the Plan

 

18.1 Committee powers

Subject as provided in this Rule, the Committee may, in its discretion, amend the Rules or any part of the Plan as it considers appropriate. Variations may affect the terms of Awards which have already been made.

 

18.2 Participant’s consent

No amendment shall be made to the Rules or to any outstanding Award which would have the effect of abrogating or altering adversely in any material respect any of the subsisting rights of Participants in relation to Awards, except with the consent of the majority of the Participants affected by the proposed amendment. For a US Participant, no amendment of the Plan may result in the advancement or additional deferral in timing of the transfer of shares or payment of cash with respect to an Award subject to Section 409A except to the extent permitted by Section 409A.

 

18.3 Shareholder approval

Except as provided in Rule 18.4, the prior approval of the Company in general meeting is required for any proposed change to the Rules to the advantage of present or future Participants which relates to:

 

  18.3.1 the persons to or for whom Awards may be made;

 

  18.3.2 the limitations on the number of Shares which may be allocated under the Plan;

 

  18.3.3 the individual limits under Rule 4;

 

  18.3.4 any rights attaching to Conditional Awards, Options, Awards or Shares;

 

  18.3.5 the terms of this Rule 18.3.

 

18.4 Minor changes

The approval of the Company in general meeting is not required for any minor changes to the Rules which are:

 

  18.4.1 to benefit the administration of the Plan;

 

  18.4.2 to comply with or take account of the provisions of any proposed or existing legislation;

 

  18.4.3 to take account of any changes to legislation; or

 

  18.4.4 to obtain or maintain favourable tax, exchange control or regulatory treatment of any Group Company or any present or future Participant.

 

18.5 Employees’ share scheme

No amendment shall take effect to the extent that it would cause the Plan to cease to be an “employees’ share scheme” as defined in section 1166 of the Companies Act 2006.

 

 

 

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18.6 Termination

The Committee shall have discretion to terminate the Plan at any time, without prejudice to subsisting Awards.

 

19 Operating the Plan overseas

The Plan may be operated by the Company both in the United Kingdom and overseas. If the Plan is operated overseas the Committee may vary these rules as it reasonably considers necessary for legal; tax; regulatory or administrative reasons to facilitate the operation of the Plan.

In order to enable the Plan to operate in other overseas jurisdictions, the Committee may decide that when a Participant terminates employment with an employing entity in an overseas jurisdiction or when a Participant relocates outside of an overseas jurisdiction, all rights that the Participant may have under the plan may be terminated; accelerated; varied or settled as the Committee thinks reasonable in all the circumstances.

 

20 Governing law

The Plan is governed by English law and if there is any conflict of laws, English law shall prevail. All Group Companies and Participants shall submit to the jurisdiction of the English Courts as regards any matter arising under the Plan.

 

 

 

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Exhibit 4(c)(x)

 

 

LOGO

INTERCONTINENTAL HOTELS GROUP

RULES

ANNUAL PERFORMANCE PLAN

 

Directors’ Adoption: 13 February 2014
Shareholders’ Approval: 2 May 2014
Effective Date: 2 May 2014
Expiry Date: 2 May 2024


TABLE OF CONTENTS

 

1 Meanings of Words Used   1   
2 Administration of the Plan   2   
3 Operation of the Plan   3   
3.1 Setting Performance Targets   3   
3.2 Basis of calculation of Performance Payments   3   
3.3 Nature of Performance Payments   3   
3.4 Notification to Participants   3   
3.5 Variation   4   
4 Plan limits   4   
4.2 Exclusions   4   
4.3 Meaning of Allocate   4   
5 Voting, dividends and Dividend Equivalents   4   
5.1 Rights   4   
5.2 Dividend Equivalents   4   
5.3 Settling Dividend Equivalents   5   
6 Material events before the making of Performance Payments   5   
6.1 New joiners   5   
6.2 Death during the Performance Period   5   
6.3 Good Leaver terminations during the Performance Period   5   
6.4 Other leavers during the Performance Period   5   
6.5 Reconstructions and Takeovers during the Performance Period   6   
6.6 Death after the Performance Period   6   
6.7 Good Leaver terminations after the Performance Period   6   
6.8 Other leavers after the Performance Period   6   
6.9 Reconstructions and Takeovers after the Performance Period   6   
6.10 Date of termination   6   
7 Making of Performance Payments   7   
7.1 Calculation of Performance Payments   7   
7.2 Performance Payments in cash   7   
7.3 Performance Payments in Shares   7   
7.4 Timing of APP Deferred Share Awards   7   
8 Termination of employment before the Release Date   8   
8.1 Death   8   
8.2 Good Leaver terminations   8   
8.3 Other terminations   8   
8.4 Reconstruction or Takeover   8   
9 Release Date   8   
9.1 Rights   8   
9.2 Dealing restrictions   8   

 

 

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10 Cash alternative   9   
11 Reconstructions and Takeovers   9   
11.1 Acceleration of rights   9   
11.2 Exchange of rights   9   
11.3 Other transactions   9   
12 Discretion to reduce Performance Payments   9   
12.1 Committee can reduce Performance Payments   9   
12.2 Circumstances   10   
12.3 Notification   10   
13 General   10   
13.1 Notice   10   
13.2 Final and conclusive   10   
13.3 Costs   10   
13.4 Withholding   11   
13.5 Regulations   11   
13.6 Section 409A   11   
14 Terms of employment:   11   
14.1 Application   11   
14.2 Not part of employment contract   11   
14.3 No future expectation   11   
14.4 No entitlement   11   
14.5 Decisions   12   
14.6 No compensation   12   
14.7 Waiver   12   
14.8 Third parties   12   
14.9 Separate and independent   12   
15 Personal data   12   
15.1 Consent   12   
15.2 Types of processing   12   
16 Changes to and termination of the Plan   13   
16.1 Committee powers   13   
16.2 Shareholder approval   13   
16.3 Minor amendments   13   
16.4 Employees’ share scheme   13   
16.5 Termination   14   
17 Operating the Plan overseas   14   
18 Governing law   14   

 

 

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Intercontinental Hotels Group Annual Performance Plan (“APP”) Rules

 

1 Meanings of Words Used

In these Rules:

“APP Cash Award” means a conditional cash award payable under this Plan.

“APP Deferred Share Award” means any Shares comprised in a Performance Payment, which may be in the form of a Conditional Award or a Forfeitable Award.

“Change in Ownership under Section 409A” means a “change in ownership” within the meaning of US Treasury Regulation Section 1.409A-3(i)(5)(v). In general, a change in the ownership of a corporation occurs on the date that any one person, or more than one person acting as a group (as defined for purposes of Section 409A), acquires ownership of stock of the corporation that, together with stock held by such person or group, constitutes more than 50 percent of the total fair market value or total voting power of the stock of such corporation. However, if any one person, or more than one person acting as a group, is considered to own more than 50 percent of the total fair market value or total voting power of the stock of a corporation, the acquisition of additional stock by the same person or persons is not considered to cause a change in the ownership of the corporation. An increase in the percentage of stock owned by any one person, or persons acting as a group, as a result of a transaction in which the corporation acquires its stock in exchange for property will be treated as an acquisition of stock for purposes of this section. This section applies only when there is a transfer of stock of a corporation (or issuance of stock of a corporation) and stock in such corporation remains outstanding after the transaction.

Committee ” means the Board of Directors of the Company or a duly authorised committee.

Company ” means InterContinental Hotels Group PLC (with registered number 5134420).

Conditional Award ” means an APP Deferred Share Award within Rule 7.3.1.

Dividend Equivalen t” means a cash payment (as defined in Rule 5.2) which, although not a real dividend payment, reflects the economic value of dividends that are paid on real Shares.

Employee ” means, except for the purposes of Rule 14, any employee or former employee of any Group Company.

Forfeitable Award ” means an APP Deferred Share Award within Rule 7.3.2.

Forfeitable Share Agreement ” means the agreement setting out the terms of a Forfeitable Award as required by Rule 7.3.2.

“Good Leaver” and “Good Leaver Reason” means Participants who terminate employment in certain termination situations as described in Rule 6.3.

“Group Company ” means:

 

(i) the Company;

 

(ii) a Subsidiary; or

 

(iii) any other company which is associated with the Company and is so designated by the Committee.

“LTIP” means the InterContinental Hotels Group Long Term Incentive Plan as amended from time to time.

“Participant” means a person who has been selected to participate in the Plan.

“Performance Payment” means an award of an APP Cash Award or an APP Deferred Share Award, or both, made to a Participant in accordance with the Plan. Such Performance Payments may be designated to a particular Performance Payment Cycle.

 

 

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“Performance Payment Cycle” means the operation of the Plan in a particular year or period or in relation to particular one-off awards;

“Performance Period” means the period set by the Committee for the achievement of the Performance Target. The Performance Period shall not, generally, exceed one financial year.

“Performance Target” means any target specified in relation to a Performance Payment.

“Plan” means The InterContinental Hotels Group Annual Performance Plan constituted by this document as amended from time to time.

“Reconstruction or Takeover” means any takeover or merger, however effected, including a reverse takeover, partial offer or scheme of arrangement sanctioned by the court other than an internal reconstruction or reorganisation which does not involve a significant change in the identity of the ultimate shareholders of the Company.

“Release Date” in relation to Shares under any Forfeitable Award, means the date on which the Participant is entitled to the Shares free of any restrictions, and in relation to any Shares subject to a Conditional Award, means the date on which the Participant becomes entitled to receive the Shares under Rule 9, but in all cases subject to any delay under Rule 9.2 and subject to any advancement under any other provision of the Rules.

“Rules” means these rules as amended from time to time.

“Salary” in relation to a Performance Payment for a financial year, means the basic annual salary in effect on the last day of that financial year excluding all payments additional to basic salary (for example mortgage support allowance, expatriate allowance etc).

“Section 409A” means Section 409A of the US Internal Revenue Code of 1986, as amended.

“Shares” means ordinary shares in the Company, and includes any shares representing them following a Reconstruction or Takeover.

“Subsidiary” means a company which is a subsidiary of the Company within the meaning of section 1159 of the Companies Act 2006.

“US Participant” means a Participant who is or who becomes subject to taxation under the federal income tax rules of the United States of America.

References in the Plan to any statutory provisions are to those provisions as amended, extended or re-enacted from time to time and include any regulations made under them; and, unless the context otherwise requires, words in the singular include the plural (and vice versa) and words imputing gender include all genders.

 

2 Administration of the Plan

The Plan shall be operated and administered by the Committee on behalf of the Company. The Committee shall have full authority from the Company to operate the Plan as it considers reasonable in all the circumstances.

Only Employees may be selected to participate in the Plan. The Committee shall have an absolute discretion as to the selection of Employees for participation in the Plan in respect of any Performance Payment Cycle. The Committee may decide at any time and at its discretion when the Plan shall be operated. Performance Payments may be granted at any time before 2 May, 2024.

 

 

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3 Operation of the Plan

 

3.1 Setting Performance Targets

The Committee may set Performance Targets for Participants it selects to participate in any Performance Payment Cycle. However, the Committee may determine that Performance Targets are not necessary for any particular Performance Payment Cycle. The Committee may decide to make Performance Payments if those Performance Targets (if any) are achieved. However, the Committee retains a general discretion to withdraw some or all of the Participants from the Plan or Performance Payment Cycle at any time and not to make any Performance Payments if it considers it reasonable to do so in all the circumstances. These circumstances may, for example, include Company performance, business unit performance, individual performance or any combination of such factors. In the case of individual performance this may include the Participant’s failure or inability to contribute to the management team effort for example if:

 

  3.1.1 the Participant’s personal performance is formally appraised as unsatisfactory; or

 

  3.1.2 the Participant is subject to disciplinary action.

 

3.2 Basis of calculation of Performance Payments

Any potential Performance Payments shall be calculated as a specified percentage of Salary. Performance Payments given to any individual Participant in any given financial year must not exceed 200% of Salary.

 

3.3 Nature of Performance Payments

Performance Payments in any Performance Payment Cycle may take the form of APP Cash Awards or APP Deferred Share Awards, or a combination of the two, as the Committee may determine.

An APP Deferred Share Award may take the form of a Conditional Award or a Forfeitable Award and shall be deferred until the Release Date determined by the Committee.

The Committee may determine that there shall be more than one Release Date.

 

3.4 Notification to Participants

Participants may be notified that they have been selected for participation in the Plan in respect of a Performance Payment Cycle. The notice may include details of:

 

  3.4.1 any Performance Target and any Performance Period;

 

  3.4.2 the percentage of Salary comprising any Performance Payment;

 

  3.4.3 whether any Performance Payment will be an APP Cash Award, an APP Deferred Share award or a combination of the two;

 

  3.4.4 whether any APP Deferred Share Award will be a Conditional Award or a Forfeitable Award; and

 

  3.4.5 the Release Date.

For Participants who are or who become subject to taxation under the federal income tax rules of the United States of America, the number of Shares that will be subject to a Conditional Award and the number of Shares that will be subject to a Forfeitable Award must be determined at the time the Performance Payments are determined and notified to the Participant under this Rule.

 

 

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3.5 Variation

The Committee may, at any time after giving notice of participation, vary its terms as regards the operation of the Plan generally or in respect of any Participant and specify any other terms applicable to the operation of the Plan.

 

4 Plan limits

 

  4.1.1 10 per cent. 10 year limit

The number of Shares which may be allocated under the Plan on any day must not exceed 10 per cent. of the ordinary share capital of the Company in issue immediately before that day, when added to the total number of Shares which have been allocated in the previous 10 years under the Plan and all other employee share plans operated by the Company.

 

  4.1.2 5 per cent. 10 year limit

The number of Shares which may be allocated under the Plan on any day must not exceed 5 per cent. of the ordinary share capital of the Company in issue immediately before that day when added to the total number of Shares which have been allocated in the previous 10 years under the Plan and any other discretionary share plan operated by the Company.

 

4.2 Exclusions

Where the right to acquire Shares is released or lapses, the Shares concerned are ignored when calculating the limits in this Rule 4.

 

4.3 Meaning of Allocate

“Allocate” means granting a right to acquire unissued Shares or to acquire Shares which are held by the Company in treasury or, if there is no such grant, the issue and allotment of Shares or the transfer of Shares from treasury. (However, if at any time the relevant institutional investor guidelines cease to require treasury shares to be taken into account for this purpose, then Allocate shall not include such treasury shares.)

 

5 Voting, dividends and Dividend Equivalents

 

5.1 Rights

A Participant shall not be entitled to vote, to receive dividends or to have any other rights of a shareholder in respect of Shares until the Shares are issued or transferred to the Participant or his nominee.

 

5.2 Dividend Equivalents

Notwithstanding Rule 5.1, the Company may grant a Conditional Award on the basis that the Participant shall receive an amount equal to the declared and payable dividends the record date for which falls between the date the Conditional Award is made and the Release Date (“Dividend Equivalents”), multiplied by the number of Shares comprised in the Conditional Award, and adjusted assuming full dividend reinvestment. In the case of a Participant’s death, the relevant period will be extended (if relevant) to the date of issue or transfer to the Participant or his nominee. No shareholder rights or Dividend Equivalents shall attach to APP Cash Awards.

 

 

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5.3 Settling Dividend Equivalents

Any Dividend Equivalent may be paid in cash or in such whole number of Shares (rounded down) as has a market value (as at the Release Date) as nearly as practicable equal to that amount. The cash will be paid or Shares issued or transferred on the same date as cash is paid or Shares are issued or transferred with respect to the underlying Conditional Award, or such other date as the Committee may determine.

 

6 Material events before the making of Performance Payments

 

6.1 New joiners

The Committee may permit an Employee to join the Plan part way through a financial year, on the basis that any Performance Payment is either payable for the full year or pro-rated from the date of entry, at its discretion. The Participant shall be notified of the terms of participation accordingly.

 

6.2 Death during the Performance Period

If a Participant dies during the Performance Period then, unless the Committee decides otherwise and provided that the Committee has determined that a Performance Payment is payable pursuant to Rule 3.1, the Participant shall receive the Performance Payment as an APP Cash Award (and, for the avoidance of doubt, if any part of the Performance Payment had been designated as an APP Deferred Share Award, it shall be paid as an APP Cash Award) prorated to reflect the proportion of the Performance Period which occurred before the Participant’s death and the Committee will as soon as reasonably practicable procure the payment of the APP Cash Award to the Participant’s personal representatives.

 

6.3 Good Leaver terminations during the Performance Period

If a Participant’s employment with any Group Company terminates during the Performance Period by reason of:

 

  (i) ill-health, injury, disability;

 

  (ii) redundancy;

 

  (iii) retirement by agreement with the Participant’s employer;

 

  (iv) the Participant’s employing company being transferred to a person which is not a Group Company; or

 

  (v) a transfer of the undertaking, or part of the undertaking, in which the Participant works to a person which is not a Group Company;

(each a “Good Leaver Reason”) the Participant shall, provided that the Committee has determined that a Performance Payment is payable pursuant to Rule 3.1, receive a Performance Payment which will be prorated to the date of termination or, exceptionally, to such later date as the Committee may determine. Unless the Committee determines otherwise, the form of the Performance Payment will not be changed from that notified under Rule 3.4. Unless the Committee decides otherwise, there will be no acceleration of settlement as a result of such termination.

 

6.4 Other leavers during the Performance Period

If a Participant’s employment with any Group Company terminates during the Performance Period other than because of death or for a Good Leaver Reason, he shall not receive any Performance Payment unless the Committee decides otherwise. If the Committee decides to exercise its discretion to make a Performance Payment in these circumstances, it may prorate the Performance Payment to reflect the proportion of the Performance Period which occurred before the termination and will determine all other terms applicable to the Performance Payment. For US Participants the timing of any settlement of a Conditional Award pursuant to this Rule 6.4 shall be made in a manner consistent with the requirements of Section 409A, if applicable.

 

 

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6.5 Reconstructions and Takeovers during the Performance Period

If there is a Reconstruction or Takeover during the Performance Period, Performance Payments will be pro-rated to the date of the Reconstruction or Takeover, or such later date as the Committee may determine, and shall consist of an APP Cash Award rather than an APP Deferred Share Award, unless the Committee determines otherwise.

There will be no acceleration of settlement as a result of any such Reconstruction or Takeover, unless the Committee determines otherwise.

 

6.6 Death after the Performance Period

If a Participant dies after the end of the Performance Period but before Performance Payments have been made under Rule 7, then, unless the Committee decides otherwise and provided that the Committee has determined that a Performance Payment is payable pursuant to Rule 3.1, the Committee will as soon as reasonably practicable procure the awarding and payment of the Performance Payment as an APP Cash Award to the Participant’s personal representatives. For the avoidance of doubt, if any part of the Performance Payment had been designated as an APP Deferred Share Award, it shall be paid as an APP Cash Award.

 

6.7 Good Leaver terminations after the Performance Period

If a Participant’s employment with any Group Company terminates for a Good Leaver Reason after the end of the Performance Period, but before Performance Payments have been made under Rule 7, provided that the Committee has decided to make Performance Payments, , the Participant shall receive a Performance Payment in the form specified under Rule 3.4, unless the Committee determines otherwise. There will be no acceleration of settlement as a result of such termination.

 

6.8 Other leavers after the Performance Period

If a Participant’s employment with any Group Company terminates after the Performance Period other than for a Good Leaver Reason the Participant shall receive only an APP Cash Award (and for the avoidance of doubt, if any part of the Performance Payment had been designated as an APP Deferred Share Award, Participants shall not receive an APP Deferred Share Award), provided the Committee has decided to make Performance Payments, unless the Committee determines otherwise. There will be no acceleration of settlement as a result of such termination.

 

6.9 Reconstructions and Takeovers after the Performance Period

If there is a Reconstruction or Takeover during the period between the end of the Performance Period and the making of Performance Payments under Rule 7, Performance Payments will be made in full, and shall consist of an APP Cash Award and not an APP Deferred Share Award, unless the Committee determines otherwise.

There will be no acceleration of settlement as a result of any such Reconstruction or Takeover, unless the Committee determines otherwise.

 

6.10 Date of termination

For the purposes of this Rule and Rule 8, a Participant’s employment with a Group Company will not be treated as having terminated until the Participant ceases to be employed by any Group Company. Unless the Committee decides otherwise, in the case of termination for any of the reasons set out in Rule 6.3 (other than retirement) the Participant will be treated as having terminated on the date of actual termination and not at the end of his contractual notice period or severance period.

 

 

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7 Making of Performance Payments

 

7.1 Calculation of Performance Payments

As soon as reasonably practicable after the end of the Performance Period, if any, (and if the Committee decides to make Performance Payments) the Performance Target (if any) shall be evaluated, and the amount of each Participant’s Performance Payment shall be calculated.

 

7.2 Performance Payments in cash

APP Cash Awards shall be paid as soon as reasonably practicable by the Company or, where relevant the Group Company employing the Participant, and in any event within 90 days of the end of the Performance Period (if any). However, US Participants shall receive payment no later than 15 March of the calendar year following the end of the Performance Period.

 

7.3 Performance Payments in Shares

In respect of each APP Deferred Share Award, the Committee shall determine whether to make it in the form of a Conditional Award or a Forfeitable Award. The relevant number of Shares will be calculated by reference to the market value of the Shares. The market value of the Shares will be taken as the average of the middle market quotation of a Share for the three business days following the announcement of the Company’s results for the relevant financial year or by such other method and for such other days as the Committee may determine.

APP Deferred Share Awards will be granted by deed or in any other manner which is legally enforceable in the relevant jurisdiction.

 

  7.3.1 Conditional Award : The Participant is entitled to receive the relevant number of Shares on the Release Date, provided he remains an Employee of a Group Company until the Release Date.

 

  7.3.2 Forfeitable Award : The relevant number of Shares is transferred to the Participant or his nominee for his absolute benefit but on terms that he may forfeit them if he ceases to be an Employee of a Group Company before the Release Date, and on any other terms contained in the Forfeitable Share Agreement. The Participant must sign the Forfeitable Share Agreement within a specified time, and failure to do so will result in the forfeiture of the Shares, unless the Committee decides otherwise.

 

7.4 Timing of APP Deferred Share Awards

Subject to any dealing restrictions, APP Deferred Share Awards may only be made within 42 days of:

 

  7.4.1 the day after the announcement of the Company’s results for any period;

 

  7.4.2 any day on which the Directors decide that exceptional circumstances exist which justify the grant of APP Deferred Share Awards;

 

  7.4.3 any day on which changes to law or regulation affecting employee share plans are announced, made or become effective; or

 

  7.4.4 the lifting of dealing restrictions which prevented the granting of APP Deferred Share Awards during any period specified above.

 

 

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8 Termination of employment before the Release Date

 

8.1 Death

If the Participant dies before the Release Date, the Release Date for the Shares comprised in the APP Deferred Share Award will be accelerated, unless the Committee decides otherwise. For any US Participants the Release Date shall be advanced and accelerated to the date that is not more than 60 days after the date of his death.

 

8.2 Good Leaver terminations

If the Participant’s employment with a Group Company is terminated before the Release Date for a Good Leaver Reason, the employee will continue to participate in the Plan and the Release Date for the Shares comprised in the APP Deferred Share Award will generally not be accelerated. However the Committee may, in its discretion, accelerate the Release Date for some or all of the Shares to the date of termination. However, notwithstanding the above, for any US Participants the Release Date may not be advanced.

 

8.3 Other terminations

If the Participant ceases to be in the employment of any Group Company before the Release Date for any reason other than Death or a Good Leaver Reason, all Shares subject to Forfeitable Awards are forfeited immediately, and his right to receive Shares pursuant to a Conditional Award on the Release Date is lost, unless the Committee decides otherwise. For US Participants the timing of any settlement of a Conditional Award pursuant to this Rule 8.3 shall be made in a manner consistent with the requirements of Section 409A, if applicable.

 

8.4 Reconstruction or Takeover

If the Participant’s employment with a Group Company is terminated in connection with a Reconstruction or Takeover before the Release Date, the Release Date in respect of all the Shares comprised in his APP Deferred Share Award will, unless the Committee decides otherwise, be advanced to the date of termination of employment. However, for the APP Deferred Share Award of any US Participants, (i) if the Reconstruction or Takeover is also a Change in Ownership, this Rule 8.4 shall not apply to such APP Deferred Share Award because Rule 11.1 would have already taken effect upon the date of the Reconstruction or Takeover; and (ii) if the Reconstruction or Takeover is not also a Change in Ownership, the Release Date shall not be advanced.

 

9 Release Date

 

9.1 Rights

Unless otherwise provided in these Rules, the Participant is entitled to receive the Shares comprised in his Conditional Award on the Release Date.

The Committee shall arrange delivery of the Shares or cash to each Participant or his nominee on, or as soon as reasonably practical after, the Release Date.

 

9.2 Dealing restrictions

In the event that the acquisition or disposal of Shares is not permitted by law or by any relevant restrictions, the Release Date will be deferred until the ending of such restrictions unless the Committee decides otherwise. For US Participants, such a deferral shall be effected only to the extent permitted under Section 409A.

 

 

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10 Cash alternative

The Committee may decide to satisfy any APP Deferred Share Award by paying an equivalent amount in cash, if it considers in its discretion that this would be appropriate. The Committee will in its discretion determine the appropriate cash amount by any reasonable means.

 

11 Reconstructions and Takeovers

 

11.1 Acceleration of rights

In the event of a Reconstruction or Takeover before the Release Date, unless the Committee decides otherwise, the Company will as soon as reasonably practicable deliver to each Participant the Shares in the Conditional Awards and the Participants will become entitled to the Shares subject to a Forfeitable Award free of any restrictions.

For US Participants, the transfer of Shares or payment of cash with respect to a Performance Payment subject to Section 409A may be advanced only if the Reconstruction or Takeover constitutes a Change in Ownership under Section 409A in which case the transfer or payment, as applicable, shall be made upon the date of the Reconstruction or Takeover. For US Participants such a Reconstruction or Takeover that is a Change in Ownership under Section 409A shall always trigger an advancement in time of the transfer of Shares or payment of cash.

 

11.2 Exchange of rights

In the case of a Reconstruction or Takeover involving the exchange of Shares for shares in another company, or in more than one other company, the Committee may in its discretion determine that no Shares or cash should be transferred, and that instead the Participant’s right to the Shares comprised in a Conditional Award should be replaced by a right to the appropriate number of shares in that other company or companies. The Committee may also determine that any Shares subject to a Forfeitable Award shall remain subject to equivalent restrictions until the Release Date. For US Participants who are subject to Section 409A any such replacement of Shares with shares in that other company or companies, if made, shall be made in a manner consistent with the requirements of Section 409A.

 

11.3 Other transactions

The Committee has discretion to take such action as it may think appropriate if other events happen which may have an effect on Performance Payments. For a US Participant, no such action shall result in an advancement or additional deferral in time of the transfer of shares or payment of cash with respect to a Performance Payment subject to Section 409A, unless otherwise permitted under Section 409A.

 

12 Discretion to reduce Performance Payments

 

12.1 Committee can reduce Performance Payments

Notwithstanding any other Rule of the Plan, if circumstances occur which, in the reasonable opinion of the Committee, justify a reduction in one or more Performance Payments granted to any one or more Participants, the Committee may in its discretion at any time prior to the Release Date determine (acting fairly and reasonably) that the cash amount payable under a Performance Payment or the number of Shares over which a Performance Payment is granted shall be reduced to such amount or number (including to nil) as the Committee considers appropriate in the circumstances.

 

 

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12.2 Circumstances

The circumstances in which the Committee may consider that it is appropriate to exercise its discretion under this Rule, include the following:

 

  12.2.1 the misconduct of a Participant which results in or is reasonably likely to result in

 

  (i) significant reputational damage to the Company, any Group Company or to a relevant business unit (as appropriate);

 

  (ii) a material adverse effect on the financial position of the Company, any Group Company or to a relevant business unit (as appropriate); or

 

  (iii) a material adverse effect on the business opportunities and prospects for sustained performance or profitability of the Company, any Group Company or relevant business unit (as appropriate);

 

  12.2.2 a material misstatement or restatement in the Company’s or any Group Company’s audited financial accounts (other than as a result of a change in accounting practice).

 

12.3 Notification

If the Committee decides to exercise its discretion under this Rule, it shall confirm this in writing to each affected Participant. For the purposes of these Rules:

 

  12.3.1 the Performance Payment shall be deemed to have been granted over the reduced cash amount or reduced number of Shares (as the case may be);

 

  12.3.2 any subsequent release of a Performance Payment shall be determined by reference to this reduced cash amount or reduced number of Shares;

 

  12.3.3 if the cash amount or number of Shares is reduced to nil, the Performance Payment shall be treated as if it had never been granted and a Participant (including a Participant who has left employment before the Release Date other than by reason of death) shall have no rights to any cash amount or Shares.

 

13 General

 

13.1 Notice

Any notice or other document given to any Employee or Participant pursuant to the Plan shall be delivered to him or sent to him by post or by an electronic communication (including by the updating of any web page) at his address according to the records of his employing company. Notices or other documents sent by post shall be deemed to have been given 5 days following the date of posting. Notices or other documents delivered electronically shall be deemed to have been given the day of transmission.

 

13.2 Final and conclusive

The decision of the Committee in any question of interpretation of the Rules or any dispute relating to or connected with this Plan shall be final and conclusive.

 

13.3 Costs

The costs of introducing, operating and administering the Plan shall be borne by the Company and the relevant Group Companies.

Each relevant Group Company will, if required by the Company, reimburse the Company for any costs incurred in connection with Performance Payments made to Participants who are employed by it.

 

 

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13.4 Withholding

The Company, any relevant Group Company and/or any relevant trustee may withhold any amounts or make such arrangements as are necessary to meet any liability to taxation and social security contributions in respect of the Shares, Dividend Equivalents or cash awarded under the Plan. The arrangements may include the sale of some or all of any Shares subject to an APP Deferred Share Award on behalf of the Participant, and the use of the proceeds to discharge the liability.

 

13.5 Regulations

The Company shall have power from time to time to make or vary regulations for the administration and operation of the Plan provided that they are not inconsistent with these Rules.

 

13.6 Section 409A

With respect to Performance Payments granted to US Participants, it is intended for such Performance Payments to be exempt from Section 409A and, to the extent such Performance Payments are not so exempt, for such Performance Payments to comply with the requirements of Section 409A. In furtherance of such intent the provisions of the Plan and any Performance Payment document shall be interpreted in a manner that does not result in the imputation of any tax penalty or interest pursuant to Section 409A, and the Plan shall be operated accordingly. If any provision of the Plan or any term or condition of any Performance Payment would otherwise frustrate or conflict with this intent, the provision, term or condition will be interpreted and deemed amended so as to avoid this conflict. Notwithstanding the foregoing, the tax treatment of the benefits provided under the Plan or any Performance Payment document is not warranted or guaranteed.

 

14 Terms of employment:

 

14.1 Application

This Rule applies:

 

  14.1.1 during an Employee’s employment or employment relationship; and

 

  14.1.2 after the termination of an Employee’s employment or employment relationship, whether the termination is lawful or unlawful.

 

14.2 Not part of employment contract

Nothing in the Rules or the operation of the Plan forms part of the contract of employment or employment relationship of an Employee. The rights and obligations of an Employee are separate from, and are not affected by, the Plan. Participation in the Plan does not create any right to, or expectation of, continued employment or a continued employment relationship.

 

14.3 No future expectation

The grant of Performance Payments on a particular basis in any year does not create any right to or expectation of the grant of Performance Payments on the same basis, or at all, in any future year.

 

14.4 No entitlement

No Employee is entitled to participate in the Plan, or be considered for participation in it, at a particular level or at all. Participation in one operation of the Plan does not imply any right to participate, or to be considered for participation in any later operation of the Plan.

 

 

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14.5 Decisions

Without prejudice to an Employee’s right to receive the Shares comprised in an APP Deferred Share Award subject to and in accordance with the express terms of the Rules, no Employee has any rights in respect of the exercise or omission to exercise any discretion, or the making or omission to make any decision, relating to the Performance Payment. Any and all discretions, decisions or omissions relating to the Performance Payment may operate to the disadvantage of the Employee, even if this could be regarded as capricious or unreasonable, or could be regarded as in breach of any implied term between the Employee and his employer, including any implied duty of trust and confidence. Any such implied term is excluded and overridden by this Rule.

 

14.6 No compensation

No Employee has any right to compensation for any loss in relation to the Plan, including:

 

  14.6.1 any loss or reduction of any rights or expectations under the Plan in any circumstances or for any reason (including lawful or unlawful termination of employment or the employment relationship);

 

  14.6.2 any exercise of a discretion or a decision taken in relation to a Performance Payment or to the Plan, or any failure to exercise a discretion or take a decision;

 

  14.6.3 the operation, suspension, termination or amendment of the Plan.

 

14.7 Waiver

Participation in the Plan is permitted only on the basis that the Participant accepts all the provisions of the Rules, including in particular this Rule. By participating in the Plan, an Employee waives all rights under the Plan, other than the right to receive Shares subject to and in accordance with the express terms of the Rules and the Performance Condition, in consideration for, and as a condition of, the grant of a Performance Payment under the Plan.

 

14.8 Third parties

Nothing in this Plan confers any benefit, right or expectation on a person who is not an Employee. No such third party has any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Plan. This does not affect any other right or remedy of a third party which may exist.

 

14.9 Separate and independent

Each of the provisions of this Rule is entirely separate and independent from each of the other provisions. If any provision is found to be invalid then it will be deemed never to have been part of these Rules and to the extent that it is possible to do so, this will not affect the validity or enforceability of any of the remaining provisions.

 

15 Personal data

 

15.1 Consent

By participating in the Plan the Participant consents to the holding and processing of personal data provided by the Participant to the Company for all purposes relating to the operation of the Plan.

 

15.2 Types of processing

These include, but are not limited to:

 

  15.2.1 administering and maintaining Participant records;

 

 

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  15.2.2 providing information to trustees of any employee benefit trust, registrars, brokers or third party administrators of the Plan;

 

  15.2.3 providing information to future purchasers of the Company or the business in which the Participant works;

 

  15.2.4 transferring information about the Participant to a country or territory outside the European Economic Area.

 

16 Changes to and termination of the Plan

 

16.1 Committee powers

Subject as provided in this Rule, the Committee may, in its discretion, amend the Rules or any part of the Plan as it considers appropriate. Variations may affect the terms of Performance Payments which have already been made.

No amendment shall be made to the Rules or to any outstanding Performance Payment which would have the effect of abrogating or altering adversely in any material respect any of the subsisting rights of Participants, except with the consent of the majority of the Participants affected by the proposed amendment.

For a Participant who is or becomes subject to taxation under the federal income tax rules of the United States of America, no amendment of the Plan may result in the advancement or additional deferral in timing of the transfer of shares or payment of cash with respect to a Performance Payment subject to Section 409A except to the extent permitted by Section 409A.

 

16.2 Shareholder approval

Except as provided in Rule 16.3, the prior approval of the Company in general meeting is required for any proposed change to the Rules to the advantage of present or future Participants which relates to:

 

  16.2.1 the persons to or for whom Performance Payments may be made;

 

  16.2.2 t he limitations on the number of Shares which may be allocated under the Plan;

 

  16.2.3 the individual limit under Rule 3.2;

 

  16.2.4 any rights attaching to Performance Payments or Shares;

 

  16.2.5 the terms of this Rule.

 

16.3 Minor amendments

The approval of the Company in general meeting is not required for any minor changes to the Rules which are:

 

  16.3.1 to benefit the administration of the Plan;

 

  16.3.2 to comply with or take account of the provisions of any proposed or existing legislation;

 

  16.3.3 to take account of any changes to legislation; or

 

  16.3.4 to obtain or maintain favourable tax, exchange control or regulatory treatment of any Group Company or any present or future Participant.

 

16.4 Employees’ share scheme

No amendment shall take effect to the extent that it would cause the Plan to cease to be an “employees’ share scheme” as defined in section 1166 of the Companies Act 2006.

 

 

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16.5 Termination

The Committee shall have discretion to terminate the Plan at any time, without prejudice to subsisting Performance Payments.

 

17 Operating the Plan overseas

The Plan may be operated by the Company both in the United Kingdom and overseas. If the plan is operated overseas the Committee may vary these Rules as it reasonably considers necessary for legal, tax, regulatory or administrative reasons to facilitate the operation of the Plan.

In order to enable the Plan to operate in other overseas jurisdictions the Committee may decide that when a Participant terminates employment with an employing entity in an overseas jurisdiction or when a Participant relocates outside of an overseas jurisdiction all rights that the Participant may have under the plan may be terminated; accelerated; varied or settled as the Committee thinks reasonable in all the circumstances.

 

18 Governing law

The Plan is governed by English law and if there is any conflict of laws English law will prevail. All Group Companies and all Participants shall submit to the jurisdiction of the English Courts as regards any matter arising under the Plan.

 

 

IHG – Rules – Annual Performance Plan

 

14 ©Tapestry 2014

Exhibit 8

INDEX OF ENTITIES

As at 31.12.2014

 

Name of Entity

   Country of Incorporation
“IHG Management” d.o.o. Beograd    Serbia
111 East 48th Street Holdings LLC    Delaware, USA
426 Main Ave LLC    Delaware, USA
46 Nevins Street Associates, LLC    Delaware, USA
831 6th Avenue Associates, LLC    Delaware, USA
American Commonwealth Assurance Company Limited    Bermuda
Arabian Hotel Management Co. LLC    Oman
Asia Pacific Holdings Limited    England
Avendra LLC    Delaware, USA
Barclay Operating Corp.    New York, USA
BCRE IHG 180 Orchard Holdings LLC    Delaware, USA
Beijing Orient Express Hotels Co., Ltd    People’s Republic of China
BHMC Canada Inc.    Ontario, Canada
BHR Holdings B.V.    The Netherlands
BHR Luxembourg S.A.R.L.    Luxembourg
BHR Overseas (Finance) B.V.    The Netherlands
BHR Pacific Holdings, Inc.    Delaware, USA
BHR Services (France) SARL.    France
BHR US Holdings B.V.    The Netherlands
BHTC Canada Inc.    Ontario, Canada
Blue Blood (Tianjin) Equity Investment Management Co., Ltd    People’s Republic of China
BOC Barclay Sub LLC (New York)    New York, USA
Bristol Oakbrook Tenant Company    Delaware, USA
Café Biarritz    Texas, USA
Carr 625 First Street LLC    Virginia, USA
Carr 901 N. Fairfax Street LLC    Virginia, USA
Carr Waterfront Hotel, LLC    D.C., USA
CDC San Francisco LLC    Delaware, USA
China Hotel Investment Ltd    Barbados
Compañia Inter-Continental De Hoteles El Salvador SA    El Salvador
Crowne Plaza Amsterdam (Management) BV    The Netherlands
Crowne Plaza LLC    Delaware, USA

 

Page 1


INDEX OF ENTITIES

As at 31.12.2014

 

D.I.H (Cyprus) SPV (No. 2) Limited Cyprus
D.I.H. (Cyprus) SPV (No.12) Limited Cyprus
D.I.H. (Cyprus) SPV (No.4) Limited Cyprus
D.I.H. (Cyprus) SPV (No.6) Limited Cyprus
D.I.H. (Cyprus) SPV (No.7) Limited Cyprus
Duet India Hotels (Ahmedabad) Private Ltd India
Duet India Hotels (Bangalore) Private Ltd India
Duet India Hotels (Chennai OMR) Private Ltd India
Duet India Hotels (Chennai) Private Ltd India
Duet India Hotels (Hyderabad) Private Ltd India
Duet India Hotels (Mumbai) Private Ltd India
Duet India Hotels (Nagpur) Private Ltd India
Duet India Hotels (Navi Mumbai) Private Ltd India
Duet Smart Hotels (India) Limited Cyprus
Duet Smart Hotels (India) SPV (No. 1) Limited Delaware
Duet Smart Hotels (India) SPV (No. 3) Limited Delaware
Dunwoody Operations, Inc Delaware
Edinburgh IC Limited Scotland
EMERO BV The Netherlands
EVEN Real Estate Holding LLC Delaware, USA
General Innkeeping Acceptance Corporation Tennessee, USA
Gestion Hotelera Gestel, C.A. Venezuela
Grand Hotel Inter-Continental Paris SNC France
Graviss Hospitality Limited India
Guangzhou SC Hotels Services Ltd. People’s Republic of China
H.I. (Ireland) Limited Ireland
H.I. Mexicana Servicios, SA de CV Mexico
H.I. Soaltee Hotel Company Private Ltd Nepal
H.I. Soaltee Management Company Ltd Hong Kong
Hale International Ltd. British Virgin Islands
HC International Holdings, Inc Delaware, USA
HH France Holdings SAS France
HH Hotels (EMEA) BV The Netherlands
HH Hotels (EMEA) BV - Egyptian Branch Egypt
HH Hotels (EMEA) BV - Russian Branch (TotRusUs) Russia
HH Hotels (Romania) SRL Romania
HI Sugarloaf, LLC Georgia, USA

 

Page 2


INDEX OF ENTITIES

As at 31.12.2014

 

HIA (T) Pty Ltd Australia
HIM (Aruba) NV Aruba
Hoft Properties LLC Delaware, USA
Holiday Hospitality Franchising, LLC Delaware, USA
Holiday Inn Cairns Pty Ltd Australia
Holiday Inn Mexicana S.A. Mexico
Holiday Inns (China) Ltd Hong Kong
Holiday Inns (Chongqing), Inc. Tennessee, USA
Holiday Inns (Courtalin) Holdings SAS France
Holiday Inns (Courtalin) SAS France
Holiday Inns (England) Ltd. England
Holiday Inns (Germany) LLC Tennessee, USA
Holiday Inns (Germany) LLC - German Branch Germany
Holiday Inns (Guangzhou), Inc. Tennessee, USA
Holiday Inns (Jamaica) Inc. Tennessee, USA
Holiday Inns (Jamaica) Inc. - Jamaica Branch Jamaica
Holiday Inns (Macau) Ltd. Hong Kong
Holiday Inns (Malaysia) Ltd. Hong Kong
Holiday Inns (Middle East) Ltd - Cairo Branch Egypt
Holiday Inns (Middle East) Ltd - Dubai Branch UAE
Holiday Inns (Middle East) Ltd - Jordan Branch Jordan
Holiday Inns (Middle East) Ltd. Hong Kong
Holiday Inns (Philippines), Inc. Tennessee, USA
Holiday Inns (Philippines), Inc. - Philippines Branch Philippines
Holiday Inns (Saudi Arabia), Inc. Tennessee, USA
Holiday Inns (South East Asia) Inc. Tennessee, USA
Holiday Inns (Thailand) Ltd. Hong Kong
Holiday Inns (U.K.), Inc. Tennessee, USA
Holiday Inns (U.K.), Inc. - Malta Branch Malta
Holiday Inns (U.K.), Inc. - UK Branch England
Holiday Inns Crowne Plaza (Hong Kong), Inc. Tennessee, USA
Holiday Inns Crowne Plaza (Hong Kong), Inc. - Hong Kong branch Hong Kong
Holiday Inns Holdings (Australia) Pty Ltd. Australia
Holiday Inns Inc. Delaware, USA
Holiday Inns Investment (Nepal) Ltd. Hong Kong

 

Page 3


INDEX OF ENTITIES

As at 31.12.2014

 

Holiday Inns of America (UK) Ltd. England
Holiday Inns of Belgium NV Belgium
Holiday Pacific Equity Corporation Delaware, USA
Holiday Pacific Limited Liability Company Delaware, USA
Holiday Pacific Partners Limited Partnership Delaware, USA
Hospitality Network Corporation Japan
Hotel Guayana C.A. Venezuela
Hotel InterContinental London (Holdings) Limited England
Hotel Inter-Continental London Ltd. England
Hotel JV Services LLC Delaware, USA
Hoteles Estelar de Colombia S.A. Colombia
Hoteles Y Turismo HIH Srl Venezuela
I.H.C. (Thailand) Ltd Thailand
IC Hotelbetriebsfuhrungs GmbH Austria
IC Hotels Management (Portugal) Unipessoal, Lda Portugal
IC International Hotels Limited Liability Company Russia
IHC Buckhead LLC Georgia, USA
IHC Edinburgh (Holdings) England
IHC Hopkins (Holdings) Corp. Delaware, USA
IHC Hotel Ltd. England
IHC Inter-Continental (Holdings) Corp. Delaware, USA
IHC London (Holdings) England
IHC May Fair (Holdings) Ltd. England
IHC May Fair Hotel Ltd. England
IHC M-H (Holdings) Corp. Delaware, USA
IHC Overseas (U.K.) Ltd. England
IHC UK (Holdings) Ltd England
IHC United States (Holdings) Corp. Delaware, USA
IHC Willard (Holdings) Corp. Delaware, USA
IHG (Australasia) Limited Singapore
IHG (Marseille) SAS France
IHG (Thailand) Limited Thailand
IHG (Victoria Park) Pty Ltd Australia
IHG ANA Hotels Group Japan LLC Japan
IHG ANA Hotels Holdings Co., Ltd Japan
IHG Bangkok Ltd British Virgin Islands

 

Page 4


INDEX OF ENTITIES

As at 31.12.2014

 

IHG Brasil Administracao de Hoteis e Servicos Ltda Brazil
IHG Community Development, LLC Georgia, USA
IHG Cyprus Limited Cyprus
IHG de Argentina SA Argentina
IHG Development Gmbh Germany
IHG ECS (Barbados) SRL Barbados
IHG Franchising Brasil Ltda Brazil
IHG Franchising DR Corporation Delaware, USA
IHG Franchising DR Corporation - Dominican Republic Branch Dominican Republic
IHG Franchising LLC Delaware, USA
IHG Hotels (New Zealand) Limited New Zealand
IHG Hotels Limited England
IHG Hotels Management (Australia) Pty Limited Australia
IHG Hotels Nigeria Limited Nigeria
IHG HOTELS SOUTH AFRICA (Pty) Limited South Africa
IHG International Partnership England
IHG İstanbul Otel Yönetim Limited Şirketi Turkey
IHG IT Services (India) Private Limited India
IHG Japan (Management) LLC Japan
IHG Japan (Osaka) LLC Japan
IHG Management (Maryland) LLC Maryland, USA
IHG Management (Netherlands) B.V. The Netherlands
IHG Management (Netherlands) B.V. - Indonesia Branch Indonesia
IHG Management MD Barclay Sub (New York) LLC New York, USA
IHG Orchard Street Member, LLC Delaware
IHG PS Nominees Limited England
IHG Queenstown Limited New Zealand
IHG Systems Pty Ltd Australia
IHG Szalloda Budapest Szolgaltato Kft Hungary
IND East Village SD Holdings LLC Delaware, USA
InterContinental (Branston) 1 Ltd England
InterContinental (PB) 1 England
InterContinental (PB) 2 Limited England

 

Page 5


INDEX OF ENTITIES

As at 31.12.2014

 

InterContinental (PB) 3 Limited England
InterContinental Brasil Administracao de Hoteis LLC Brazil
Intercontinental D.C. Operating Corp. Delaware, USA
Inter-Continental Florida Investment Corp. Delaware, USA
Inter-Continental Florida Partner Corp. Delaware, USA
InterContinental Gestion Hotelera S.L. Spain
InterContinental Hong Kong Ltd. Hong Kong
Intercontinental Hospitality Corporation Delaware, USA
Intercontinental Hospitality Corporation - Greek Branch Greece
InterContinental Hotel Berlin GmbH Germany
InterContinental Hotel Düsseldorf GmbH Germany
Inter-Continental Hoteleira Limitada Brazil
Inter-Continental Hotels (Montreal) Operating Corp. Quebec, Canada
Inter-Continental Hotels (Montreal) Owning Corp. Quebec, Canada
Inter-Continental Hotels (Overseas) Ltd. England
InterContinental Hotels (Puerto Rico) Inc Puerto Rico
Inter-Continental Hotels (Singapore) Pte Ltd Singapore
Inter-Continental Hotels Corporation Delaware, USA
Inter-Continental Hotels Corporation - Egyptian Branch Egypt
Inter-Continental Hotels Corporation - Israel Branch Israel
Inter-Continental Hotels Corporation - Jordan Branch Jordan
Inter-Continental Hotels Corporation - Malta Branch Malta
Inter-Continental Hotels Corporation - Philippines Branch Philippines
Inter-Continental Hotels Corporation - Poland Branch Poland
InterContinental Hotels Corporation de Venezuela C.A. Venezuela
Intercontinental Hotels Corporation Limited Bermuda

 

Page 6


INDEX OF ENTITIES

As at 31.12.2014

 

Intercontinental Hotels Corporation Limited - Kenya Branch Kenya
Intercontinental Hotels Corporation Limited - Saudi Branch Saudi Arabia
InterContinental Hotels Group (Asia Pacific) Pte. Ltd. Singapore
InterContinental Hotels Group (Asia Pacific) Pte. Ltd. - Korean Branch Korea
InterContinental Hotels Group (Australia) Pty Limited Australia
InterContinental Hotels Group (Canada) Inc. Ontario, Canada
InterContinental Hotels Group (Espana) SA Spain
InterContinental Hotels Group (Greater China) Limited Hong Kong
InterContinental Hotels Group (Greater China) Limited - Maldives branch Maldives
InterContinental Hotels Group (India) Private Limited India
InterContinental Hotels Group (Japan) Inc. Tennessee, USA
InterContinental Hotels Group (Japan) Inc. - Japan Branch Japan
InterContinental Hotels Group (New Zealand) Limited New Zealand
InterContinental Hotels Group (Shanghai) Ltd People’s Republic of China
InterContinental Hotels Group (Shanghai) Ltd - Beijing Branch People’s Republic of China
InterContinental Hotels Group Customer Services Ltd. England
InterContinental Hotels Group do Brasil Limitada Brazil
InterContinental Hotels Group Healthcare Trustee Ltd England
InterContinental Hotels Group Operating Corp. Delaware, USA
InterContinental Hotels Group PLC England
InterContinental Hotels Group Resources Inc Delaware, USA
InterContinental Hotels Group Resources Inc - Guam Branch Guam

 

Page 7


INDEX OF ENTITIES

As at 31.12.2014

 

InterContinental Hotels Group Services Company England
InterContinental Hotels Group Services Company - Swedish Branch Sweden
InterContinental Hotels Group Services Company - Zurich Branch Switzerland
InterContinental Hotels Italia, SrL Italy
InterContinental Hotels Limited England
InterContinental Hotels Management GmbH Germany
InterContinental Hotels Nevada Corporation Nevada, USA
Intercontinental Hotels of San Francisco, Inc. Delaware, USA
InterContinental Management France SAS France
Inter-Continental IOHC (Mauritius) Limited Mauritius
Inter-Continental Management (Australia) Pty Limited Australia
Intercontinental Overseas Holding Corporation Delaware, USA
Intercontinental Overseas Holding Corporation - Bermuda Branch Bermuda
Intercontinental Overseas Holding Corporation - Egyptian Branch Egypt
Intercontinental Overseas Holding Corporation - Jamaican Branch Jamaica
Intercontinental Overseas Holding Corporation - Kazakhstan Branch Kazakhstan
Intercontinental Overseas Holding Corporation - Slovakia Branch Slovakia
Intercontinental Overseas Holding Corporation - Ukraine Branch Ukraine
InterContinental PLC Employee Share Ownership Plan (not part of IHG Group) Jersey
Kenya Hotel Properties Ltd. Kenya
KHL SubCo Limited Papua New Guinea
Kumul Hotels Ltd Papua New Guinea

 

Page 8


INDEX OF ENTITIES

As at 31.12.2014

 

LRR 36 LLC Delaware
Louisiana Acquisitions Corp. Delaware, USA
Maya Baiduri Sdn Bhd Malaysia
Mercer Fairview Holdings LLC Delaware, USA
Nuevas Fronteras S.A. Argentina
P.T. Jakarta International Hotels & Development Indonesia
Panacon Louisiana, USA
Pershing Associates District of Columbia, USA
PML Services LLC Maryland, USA
Pollstrong Limited England
Powell Pine, Inc. Delaware, USA
President Hotel & Tower Co Ltd. Thailand
Priscilla Holliday of Texas, Inc. Texas, USA
PT SC Hotels & Resorts Indonesia Indonesia
Resort Services International (Cayo Largo), L.P., S.E. Georgia, USA
Saudi Arabia Intercontinental Hotels C. Ltd. Saudi Arabia
SBS Maryland Beverage Company LLC Maryland, USA
SC Cellars Ltd. England
SC Hotels International Services, Inc. Delaware, USA
SC Leisure Group Ltd. England
SC Luxembourg Investments SARL Luxembourg
SC NAS 2 Ltd. England
SC NAS 3 England
SC Quest Ltd England
SC Racing Gibraltar Gibraltar
SC Reservations (Philippines) Inc Tennessee, USA
SC Reservations (Philippines) Inc - Philippines Branch Phillippines
SCH Insurance Company Vermont, USA
SCIH Branston 2 England
SCIH Branston 3 England
SF MH Acquisition LLC Delaware, USA
SFH Associates L.P. California, USA
Six Continents Corporate Services England

 

Page 9


INDEX OF ENTITIES

As at 31.12.2014

 

Six Continents Holdings Ltd. England
Six Continents Hotels de Colombia SA Colombia
Six Continents Hotels International Ltd. England
Six Continents Hotels, Inc. Delaware, USA
Six Continents International Holdings BV The Netherlands
Six Continents Investments Ltd. England
Six Continents Limited England
Six Continents Overseas Holdings Ltd. England
Six Continents Restaurants Ltd. England
SixCo North America, Inc. Delaware, USA
Soaltee Hotel Ltd. Nepal
Societe des Grands Hotels du Liban Lebanon
Societe des Hotels InterContinental France SNC France
Societe Immobiliere Kinoise SZARL Rep of Congo, Zaire
Societe Nouvelle du Grand Hotel SA France
Southern Pacific Hotel Corporation (BVI) Ltd. British Virgin Islands
Southern Pacific Hotels Properties Limited British Virgin Islands
SPHC (IP) Pty Ltd. Australia
SPHC Group Pty Ltd. Australia
SPHC Management Ltd. Papua New Guinea
Summit IHG JV, LLC Delaware
Summit IHG TRS JV, LLC Delaware
Tahiti Beachcomber SA Tahiti
TAK How Investment Limited Hong Kong
Tian An Hotels International Limited Hong Kong
Tianjin ICBCI IHG Equity Investment Fund Management Co., Ltd People’s Republic of China
Tianjin ICBCI IHG Equity Investment Fund Partnership People’s Republic of China
Trifaith Investments Ltd. British Virgin Islands
Universal de Hoteles SA Colombia
White Shield Insurance Company Ltd. Gibraltar
Willard Associates District of Columbia, USA
World Trade Center Montreal Hotel Corporation Quebec, Canada
Yokohama Grand Intercontinental Hotel Co. Ltd. Japan

 

Page 10

Exhibit 12(a)

I, Richard Solomons, certify that:

1. I have reviewed this Annual Report on Form 20-F of InterContinental Hotels Group PLC;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report;

4. The company’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the company and have:

(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

(c) Evaluated the effectiveness of the company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

(d) Disclosed in this report any change in the company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the company’s internal control over financial reporting; and


5. The company’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the company’s auditors and the audit committee of the company’s board of directors (or persons performing the equivalent functions):

(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company’s ability to record, process, summarize and report financial information; and

(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the company’s internal control over financial reporting.

Date: 26 February 2015

 

/s/ Richard Solomons

Chief Executive Officer

Exhibit 12(b)

I, Paul Edgecliffe-Johnson, certify that:

1. I have reviewed this Annual Report on Form 20-F of InterContinental Hotels Group PLC;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report;

4. The company’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the company and have:

(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

(c) Evaluated the effectiveness of the company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

(d) Disclosed in this report any change in the company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the company’s internal control over financial reporting; and


5. The company’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the company’s auditors and the audit committee of the company’s board of directors (or persons performing the equivalent functions):

(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company’s ability to record, process, summarize and report financial information; and

(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the company’s internal control over financial reporting.

Date: 26 February 2015

 

/s/ Paul Edgecliffe-Johnson

Chief Financial Officer

Exhibit 13(a)

906 Certification

The certification set forth below is being submitted in connection with the Annual Report on Form 20-F for the year ended December 31, 2014 (the “Report”) for the purpose of complying with Rule 13a-14(b) or Rule 15d-14(b) of the Securities Exchange Act of 1934 (the “Exchange Act”) and Section 1350 of Chapter 63 of Title 18 of the United States Code.

Richard Solomons, the Chief Executive Officer, and Paul Edgecliffe-Johnson, the Chief Financial Officer of InterContinental Hotels Group PLC, each certifies that, to the best of his knowledge:

 

1. the Report fully complies with the requirements of Section 13(a) or 15(d) of the Exchange Act; and

 

2. the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of InterContinental Hotels Group PLC.

Date: 26 February 2015

 

By:

/s/ Richard Solomons

Name: Richard Solomons
Title: Chief Executive Officer
By:

/s/ Paul Edgecliffe-Johnson

Name: Paul Edgecliffe-Johnson
Title: Chief Financial Officer

Exhibit 15(a)

Consent of independent registered public accounting firm

We consent to the incorporation by reference in the following Registration Statements (Form F-3 No. 333-108084 and Form S-8 Nos. 333-99785, 333-89508, 333-104691, 333-126139, 333-181334 and 333-197846) of InterContinental Hotels Group PLC of our reports dated 16 February 2015, with respect to the Consolidated Financial Statements of InterContinental Hotels Group PLC, and the effectiveness of internal control over financial reporting of InterContinental Hotels Group PLC, included in this Annual Report on Form 20-F for the year ended 31 December 2014.

 

ERNST & YOUNG LLP
London, England
25 February 2015