As filed with the Securities and Exchange Commission on March 10, 2015
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 20-F
(Mark One)
¨ | REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) or 12(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 |
For the transition period from to
Or
¨ | SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Commission file number: 1-3334 |
Commission file number: 1-13688 |
REED ELSEVIER PLC | REED ELSEVIER NV | |
(Exact name of Registrant as specified in its charter) | (Exact name of Registrant as specified in its charter) | |
England | The Netherlands | |
(Jurisdiction of incorporation or organisation) | (Jurisdiction of incorporation or organisation) | |
1-3 Strand, London, WC2N 5JR, England | Radarweg 29, 1043 NX, Amsterdam, The Netherlands | |
(Address of principal executive offices) | (Address of principal executive offices) | |
Henry Udow | Jans van der Woude | |
Company Secretary | Company Secretary | |
Reed Elsevier PLC | Reed Elsevier NV | |
1-3 Strand, London, WC2N 5JR, England | Radarweg 29, 1043 NX, Amsterdam, The Netherlands | |
011 44 20 7166 5500 | 011 31 20 485 2222 | |
henry.udow@relxgroup.com | j.vanderwoude@reedelsevier.com | |
(Name, telephone, e-mail and/or facsimile number and address of
Company Contact Person) |
(Name, telephone, e-mail and/or facsimile number and address of
Company Contact Person) |
Securities registered or to be registered pursuant to Section 12(b) of the Act:
Title of each class |
Name of exchange on which
|
|
Reed Elsevier PLC: |
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American Depositary Shares
|
New York Stock Exchange | |
Ordinary shares of 14 51/116p each
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New York Stock Exchange* | |
Reed Elsevier NV: |
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American Depositary Shares
|
New York Stock Exchange | |
Ordinary shares of 0.07 each
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New York Stock Exchange* |
* | Listed, not for trading, but only in connection with the listing of the applicable Registrants American Depositary Shares issued in respect thereof. |
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 issuers classes of capital or common stock as of December 31, 2014:
Reed Elsevier PLC: |
Number of outstanding shares | |||||
Ordinary shares of 14 51/116p each |
1,205,397,320 | |||||
Reed Elsevier NV: |
||||||
Ordinary shares of 0.07 each |
697,153,245 | |||||
R shares of 0.70 each (held by a subsidiary of Reed Elsevier PLC) |
4,303,179 |
Indicate by check mark if the registrants are well-known seasoned issuers, 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 registrants are 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 registrants (1) have 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) have 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 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 registrants are large accelerated filers, accelerated filers, or non-accelerated filers. See definition of accelerated filer and large accelerated filer in Rule 12b-2 of the Exchange Act.
Large accelerated filer þ Accelerated filer ¨ Non-accelerated filer ¨
Indicate by check mark which basis of accounting the registrants have used to prepare the financial statements included in this filing.
¨ US GAAP þ International Financial Reporting Standards as issued by the International Accounting Standards Board ¨ Other
If Other has been checked in response to the previous question indicate by check mark which financial statement item the registrants have elected to follow:
Item 17 ¨ Item 18 ¨
If this is an annual report, indicate by check mark whether the registrants are shell companies (as defined in Rule 12b-2 of the Exchange Act).
Yes ¨ No þ
Page | ||||||
1 | ||||||
2 | ||||||
ITEM 1: |
IDENTITY OF DIRECTORS, SENIOR MANAGEMENT AND ADVISERS | N/A | ||||
ITEM 2: |
OFFER STATISTICS AND EXPECTED TIMETABLE | N/A | ||||
ITEM 3: |
KEY INFORMATION | 3 | ||||
3 | ||||||
7 | ||||||
ITEM 4: |
INFORMATION ON THE GROUP | 11 | ||||
11 | ||||||
12 | ||||||
23 | ||||||
25 | ||||||
ITEM 4A: |
UNRESOLVED STAFF COMMENTS | N/A | ||||
ITEM 5: |
OPERATING AND FINANCIAL REVIEW AND PROSPECTS | 26 | ||||
26 | ||||||
39 | ||||||
40 | ||||||
40 | ||||||
41 | ||||||
42 | ||||||
43 | ||||||
ITEM 6: |
DIRECTORS, SENIOR MANAGEMENT AND EMPLOYEES | 44 | ||||
44 | ||||||
46 | ||||||
61 | ||||||
67 | ||||||
69 | ||||||
ITEM 7: |
MAJOR SHAREHOLDERS AND RELATED PARTY TRANSACTIONS | 70 | ||||
70 | ||||||
71 | ||||||
ITEM 8: |
FINANCIAL INFORMATION | 72 | ||||
ITEM 9: |
THE OFFER AND LISTING | 73 | ||||
73 | ||||||
ITEM 10: |
ADDITIONAL INFORMATION | 75 | ||||
75 | ||||||
81 | ||||||
81 | ||||||
81 | ||||||
84 | ||||||
ITEM 11: |
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK | 85 | ||||
ITEM 12: |
DESCRIPTION OF SECURITIES OTHER THAN EQUITY SECURITIES | 87 |
Page | ||||||
ITEM 13: |
DEFAULTS, DIVIDEND ARREARAGES AND DELINQUENCIES | N/A | ||||
ITEM 14: |
MATERIAL MODIFICATIONS TO THE RIGHTS OF SECURITY HOLDERS AND USE OF PROCEEDS | N/A | ||||
ITEM 15: |
CONTROLS AND PROCEDURES | 88 | ||||
ITEM 16A: |
AUDIT COMMITTEE FINANCIAL EXPERT | 94 | ||||
ITEM 16B: |
CODES OF ETHICS | 94 | ||||
ITEM 16C: |
PRINCIPAL ACCOUNTANT FEES AND SERVICES | 94 | ||||
ITEM 16D: |
EXEMPTIONS FROM THE LISTING STANDARDS FOR AUDIT COMMITTEES | 95 | ||||
ITEM 16E: |
PURCHASES OF EQUITY SECURITIES BY THE ISSUER AND AFFILIATED PURCHASERS | 95 | ||||
ITEM 16F: |
CHANGE IN REGISTRANTS CERTIFYING ACCOUNTANT | 96 | ||||
ITEM 16G: |
CORPORATE GOVERNANCE | 96 | ||||
ITEM 16H: |
MINE SAFETY DISCLOSURE | N/A | ||||
ITEM 17: |
FINANCIAL STATEMENTS* | 97 | ||||
ITEM 18: |
FINANCIAL STATEMENTS | F-1 | ||||
ITEM 19: |
EXHIBITS | S-3 |
* | The registrants have responded to Item 18 in lieu of responding to this Item. |
THIS PAGE INTENTIONALLY BLANK
Reed Elsevier PLC and Reed Elsevier NV conducted their business through two jointly owned companies during 2014, Reed Elsevier Group plc and Elsevier Reed Finance BV. Reed Elsevier PLC and Reed Elsevier NV have retained their separate legal identities. Effective February 25, 2015, Reed Elsevier PLC and Reed Elsevier NV transferred their direct ownership interests in Elsevier Reed Finance BV to their jointly-owned company Reed Elsevier Group plc and named this newly-combined single group entity RELX Group plc. As a result, RELX Group plc now holds all Reed Elsevier businesses, subsidiaries and financing activities. Further information is provided on pages 23 to 24. As used in this Annual Report on Form 20-F, the terms the Group, RELX, the combined businesses, we, our or us refer collectively, to Reed Elsevier PLC, Reed Elsevier NV, RELX Group plc and their subsidiaries, associates and joint ventures. The financial statements of the combined businesses are referred to herein as the combined financial statements. Additional terms are defined in the Glossary of Terms on pages S-1 and S-2.
In this annual report, references to US dollars, $ and ¢ are to US currency; references to sterling, £, pence or p are to UK currency; references to euro and are to the currency of the European Economic and Monetary Union.
Statements regarding our competitive position included herein were obtained from internal surveys, market research, publicly available information and industry publications. While we believe that the market research, publicly available information and industry publications we use are reliable, we have not independently verified market and industry data from third-party sources. Moreover, while we believe our internal surveys are reliable, they have not been verified by any independent source.
1
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This document contains a number of forward-looking statements within the meaning of Section 27A of the United States Securities Act of 1933, as amended, and Section 21E of the United States Securities Exchange Act of 1934, as amended, with respect to:
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financial condition; |
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results of operations; |
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competitive positions; |
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the features and functions of and markets for the products and services we offer; and |
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our business plans and strategies. |
We consider any statements that are not historical facts to be forward-looking statements. These statements are based on the current expectations of the management of our businesses and are subject to risks and uncertainties that could cause actual results or outcomes to differ from those expressed in any forward-looking statement. These differences could be material; therefore, you should evaluate forward-looking statements in light of various important factors, including those set forth or incorporated by reference in this document.
Important factors that could cause actual results to differ materially from estimates or forecasts contained in the forward looking statements include, among others:
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competitive factors in the industries in which we operate; |
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demand for our products and services; |
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exchange rate fluctuations; |
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general economic, political and business conditions; |
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legislative, fiscal, tax and regulatory developments and political risks; |
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the availability of third party content and data; |
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breaches of our data security systems or other unauthorised access to our databases; |
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our ability to maintain high quality management; |
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changes in law and legal interpretation affecting our intellectual property rights and internet communications; |
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uncertainties as to whether our strategies, business plans and acquisitions will produce the expected returns; |
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significant failures or interruptions of our electronic platforms; |
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failure of third parties to whom we have outsourced business activities; |
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changes in the market values of defined benefit pension scheme assets and in the market related assumptions used to value scheme liabilities; |
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downgrades to the credit ratings of our debt; |
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breaches of generally accepted ethical business standards or applicable statutes; |
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our ability to manage our environmental impact; and |
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other risks referenced from time to time in the filings of Reed Elsevier PLC and Reed Elsevier NV with the Securities and Exchange Commission (the SEC). |
The terms estimate, project, plan, intend, expect, should be, will be, believe, trends and similar expressions identify forward-looking statements. These forward-looking statements are found at various places throughout this annual report and the other documents incorporated by reference in this annual report.
You should not place undue reliance on these forward-looking statements, which speak only as of the date of this annual report. Except as may be required by law, we undertake no obligation to publicly update or release any revisions to these forward-looking statements to reflect events or circumstances after the date of this annual report or to reflect the occurrence of unanticipated events.
2
THE GROUP
The selected combined financial data for the Group should be read in conjunction with, and is qualified by, the combined financial statements included in this annual report. In addition, as separate legal entities, Reed Elsevier PLC and Reed Elsevier NV prepare separate consolidated financial statements which reflect their respective shareholders economic interests in the Group accounted for on an equity basis.
The combined financial statements are prepared in accordance with accounting policies that are in conformity with International Financial Reporting Standards (IFRS) as issued by the International Accounting Standards Board (IASB) and as adopted by the European Union (EU). The selected financial data for the Group (in £) as at and for the years ended December 31, 2014, 2013 and 2012 set out below has been extracted or derived from the audited combined financial statements, included herein. The selected financial data for the Group as at and for the years ended December 31, 2011 and 2010 set out below has been extracted or derived from our audited financial statements, which are not included herein, and restated for the adoption of International Accounting Standard (IAS) 19 Employee Benefits (revised), which was adopted in the year ended December 31, 2013.
Combined Income Statement Data (1)
For the year ended December 31, |
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2014 (2) |
2014 |
2013 |
2012 |
2011 Restated |
2010
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(in millions) | ||||||||||||
Amounts in accordance with IFRS: |
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Revenue |
$9,006 | £5,773 | £6,035 | £6,116 | £6,002 | £6,055 | ||||||
Operating profit (3) |
2,187 | 1,402 | 1,376 | 1,333 | 1,171 | 1,064 | ||||||
Net finance costs |
(253) | (162) | (196) | (227) | (244) | (289) | ||||||
Disposals and other non operating items (4) |
(17) | (11) | 16 | 45 | (22) | (46) | ||||||
Profit before tax |
1,917 | 1,229 | 1,196 | 1,151 | 905 | 729 | ||||||
Tax expense (5) |
(419) | (269) | (81) | (102) | (167) | (132) | ||||||
Net profit for the year |
1,498 | 960 | 1,115 | 1,049 | 738 | 597 | ||||||
Net profit for the year attributable to non-controlling interests |
(8) | (5) | (5) | (5) | (7) | (6) | ||||||
Net profit attributable to parent companies shareholders |
1,490 | 955 | 1,110 | 1,044 | 731 | 591 |
Combined Statement of Financial Position Data (1)
As at December 31, |
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2014 (2) |
2014 |
2013 |
2012 |
2011 |
2010 |
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(in millions) | ||||||||||||
Amounts in accordance with IFRS: |
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Total assets |
$17,296 | £11,087 | £10,495 | £11,014 | £11,503 | £11,158 | ||||||
Long term borrowings |
(4,912) | (3,149) | (2,633) | (3,162) | (3,300) | (3,786) | ||||||
Net assets |
3,334 | 2,137 | 2,423 | 2,314 | 2,197 | 1,970 | ||||||
Non-controlling interests |
(49) | (31) | (33) | (34) | (25) | (27) | ||||||
Combined shareholders equity |
3,285 | 2,106 | 2,390 | 2,280 | 2,172 | 1,943 |
(1) | The combined financial statements are prepared in accordance with accounting policies that are in conformity with IFRS as issued by the IASB and as adopted by the EU. The figures for 2011 and 2010 have been extracted or derived from the combined financial statements for the years ended December 31, 2011 and 2010, not included herein, restated for the adoption of IAS19 Employee Benefits (revised), which was adopted by the Group in the year ended December 31, 2013. |
(2) | Noon buying rates as at December 31, 2014 have been used to provide a convenience translation into US dollars, see Exchange Rates on page 6. At December 31, 2014 the noon buying rate was $1.56 per £1.00. This compares to the average exchange rate for the year ended December 31, 2014 of $1.65 to £1.00 applied in the translation of the combined income statement for the year. |
(3) |
Operating profit is stated after charging £ 286 million in respect of amortisation of acquired intangible assets (2013: £318 million; 2012: £329 million; 2011: £359 million; 2010: £349 million); nil in respect of exceptional restructuring costs (2013: nil; 2012: nil; 2011: nil; |
3
2010: £57 million); £30 million in respect of acquisition related costs (2013: £43 million; 2012: £21 million; 2011: £52 million; 2010: £50 million); nil in respect of the share of joint ventures profit on disposals (2013: nil; 2012: nil; 2011: £1 million; 2010: nil) and £21 million in respect of taxation in joint ventures (2013: £12 million; 2012: £5 million; 2011: £11 million; 2010: £9 million). Exceptional restructuring costs in 2010 relate only to the restructuring of the Risk & Business Information business. |
(4) | Disposals and other non operating items comprise a £19 million loss on disposal of businesses and assets held for sale (2013: £11 million gain; 2012: £86 million gain; 2011: £12 million loss; 2010: £32 million loss), nil in respect of the charge to property provisions on disposed businesses (2013: nil; 2012: £60 million; 2011: £16 million; 2010: £22 million), and an £8 million gain relating to the revaluation of held for trading investments (2013: £5 million; 2012: £19 million; 2011: £6 million; 2010: £8 million). |
(5) | Tax expense in 2014 includes a deferred tax credit of nil (2013: £221 million; 2012: nil; 2011: nil; 2010: nil) arising on the alignment of certain business assets with their global management structure and an exceptional prior year tax credit of nil (2013: nil; 2012: £96 million; 2011: nil; 2010: nil) relating to the resolution of a number of significant tax matters. |
REED ELSEVIER PLC
The selected financial data for Reed Elsevier PLC should be read in conjunction with, and is qualified in its entirety by, the consolidated financial statements of Reed Elsevier PLC included in this annual report. The results of Reed Elsevier PLC reflect the 52.9% economic interest of Reed Elsevier PLCs shareholders in the Group, after taking account of results arising in Reed Elsevier PLC and its subsidiaries. These interests have been accounted for on an equity basis.
The consolidated financial statements are prepared in accordance with accounting policies that are in conformity with IFRS as issued by the IASB and as adopted by the EU. The selected financial data for Reed Elsevier PLC (in £) as at and for the years ended December 31, 2014, 2013 and 2012 set out below has been extracted or derived from the audited consolidated financial statements, included herein. The selected financial data for Reed Elsevier PLC as at and for the years ended December 31, 2011 and 2010 set out below has been extracted or derived from our audited financial statements, which are not included herein, and restated for the adoption of IAS19 Employee Benefits (revised), which was adopted in the year ended December 31, 2013.
For the year ended December 31, | ||||||||||||||||||||||||
2014 (3) | 2014 | 2013 | 2012 |
2011
Restated |
2010
Restated |
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(in millions, except per share amounts) | ||||||||||||||||||||||||
Amounts in accordance with IFRS: (1) |
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Profit before tax (2) |
$769 | £493 | £576 | £532 | £375 | £301 | ||||||||||||||||||
Tax (expense)/credit |
(5 | ) | (3 | ) | (4 | ) | 6 | (1 | ) | (1 | ) | |||||||||||||
Profit attributable to ordinary shareholders |
764 | 490 | 572 | 538 | 374 | 300 | ||||||||||||||||||
Earnings per Reed Elsevier PLC ordinary share from total operations of the combined businesses |
67 | ¢ | 43.0p | 48.8p | 44.8p | 31.1p | 25.0p | |||||||||||||||||
Diluted earnings per Reed Elsevier PLC ordinary share from total operations of the combined businesses |
66 | ¢ | 42.5p | 48.2p | 44.3p | 30.9p | 24.9p | |||||||||||||||||
Dividends per Reed Elsevier PLC ordinary share (4) |
39 | ¢ | 24.95p | 23.65p | 21.9p | 20.65p | 20.4p | |||||||||||||||||
Total assets |
$1,743 | £1,117 | £1,266 | £1,207 | £1,158 | £1,037 | ||||||||||||||||||
Total equity/Net assets |
1,741 | 1,116 | 1,264 | 1,206 | 1,149 | 1,028 | ||||||||||||||||||
Weighted average number of shares (5) |
1,140.2 | 1,140.2 | 1,172.2 | 1,200.6 | 1,202.0 | 1,199.1 |
(1) | The consolidated financial statements of Reed Elsevier PLC are prepared in accordance with accounting policies that are in conformity with IFRS as issued by the IASB and as adopted by the EU. The figures for 2011 and 2010 have been extracted or derived from the consolidated financial statements for the years ended December 31, 2011 and 2010, not included herein, restated for the adoption of IAS19 Employee Benefits (revised), which was adopted by the Group in the year ended December 31, 2013. |
(2) | Profit before tax includes Reed Elsevier PLCs share of the post-tax earnings of joint ventures, being the operations of the combined businesses. |
(3) | Noon buying rates as at December 31, 2014 have been used to provide a convenience translation into US dollars, see Exchange Rates on page 6. At December 31, 2014 the noon buying rate was $1.56 per £1.00. This compares to the average exchange rate for the year ended December 31, 2014 of $1.65 to £1.00 applied in the translation of the consolidated income statement for the year. |
(4) | The amount of dividends per Reed Elsevier PLC ordinary share shown excludes the UK tax credit available to certain Reed Elsevier PLC shareholders; see Item 10: Additional Information Taxation UK Taxation Dividends. |
Dividends paid in the year, in amounts per ordinary share, comprise a 2013 final dividend of 17.95p and 2014 interim dividend of 7.0p giving a total of 24.95p. The directors of Reed Elsevier PLC have proposed a 2014 final dividend of 19.0p (2013: 17.95p; 2012: 17.0p; 2011: 15.9p; 2010: 15.0p), giving a total ordinary dividend in respect of the financial year of 26.0p (2013: 24.6p; 2012: 23.0p; 2011: 21.55p; 2010: 20.4p). |
4
Dividends per Reed Elsevier PLC ordinary share in respect of the financial year ended December 31, 2014 translated into cents at the noon buying rate on December 31, 2014 were 40.6 cents. See Exchange Rates on page 6. |
(5) | Weighted average number of shares excludes shares held in treasury and shares held by the Employee Benefit Trust. During 2014, Reed Elsevier PLC repurchased 35,251,501 Reed Elsevier PLC ordinary shares and cancelled 65,000,000 Reed Elsevier PLC ordinary shares. During 2014, the Employee Benefit Trust purchased 757,781 Reed Elsevier PLC ordinary shares. |
REED ELSEVIER NV
The selected financial data for Reed Elsevier NV should be read in conjunction with, and is qualified in its entirety by, the consolidated financial statements of Reed Elsevier NV included in this annual report. The results and financial position of Reed Elsevier NV reflect the 50% economic interest of Reed Elsevier NVs shareholders in the Group. These interests are accounted for on an equity basis.
The consolidated financial statements are prepared in accordance with accounting policies that are in conformity with IFRS as issued by the IASB and as adopted by the EU. The selected financial data for Reed Elsevier NV (in ) as at and for the years ended December 31, 2014, 2013 and 2012 set out below has been extracted or derived from the audited consolidated financial statements, included herein. The selected financial data for Reed Elsevier NV as at and for the years ended December 31, 2011 and 2010 set out below has been extracted or derived from our audited financial statements, which are not included herein, and restated for the adoption of IAS19 Employee Benefits (revised), which was adopted in the year ended December 31, 2013.
For the year ended December 31, | ||||||||||||||||||||||||
2014 (3) | 2014 | 2013 | 2012 |
2011
Restated |
2010
Restated |
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(in millions, except per share amounts) | ||||||||||||||||||||||||
Amounts in accordance with IFRS: (1) |
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Profit before tax (2) |
$722 | 597 | 659 | 644 | 421 | 349 | ||||||||||||||||||
Tax (expense) |
(6 | ) | (5 | ) | (4 | ) | (2 | ) | (1 | ) | (3 | ) | ||||||||||||
Profit attributable to ordinary shareholders |
716 | 592 | 655 | 642 | 420 | 346 | ||||||||||||||||||
Earnings per Reed Elsevier NV share from total operations of the combined businesses |
$1.03 | 0.85 | 0.91 | 0.87 | 0.57 | 0.47 | ||||||||||||||||||
Diluted earnings per Reed Elsevier NV share from total operations of the combined businesses |
$1.02 | 0.84 | 0.90 | 0.87 | 0.57 | 0.47 | ||||||||||||||||||
Dividends per Reed Elsevier NV ordinary share (4) |
$0.64 | 0.525 | 0.469 | 0.456 | 0.413 | 0.402 | ||||||||||||||||||
Total assets |
$1,719 | 1,421 | 1,494 | 1,460 | 1,364 | 1,203 | ||||||||||||||||||
Total equity/Net assets |
1,644 | 1,359 | 1,434 | 1,402 | 1,303 | 1,137 | ||||||||||||||||||
Weighted average number of shares (5) |
700.1 | 700.1 | 717.6 | 734.0 | 735.3 | 734.5 |
(1) | The consolidated financial statements of Reed Elsevier NV are prepared in accordance with accounting policies that are in conformity with IFRS as issued by the IASB and as adopted by the EU. The figures for 2011 and 2010 have been extracted or derived from the consolidated financial statements for the years ended December 31, 2011 and 2010, not included herein, restated for the adoption of IAS19 Employee Benefits (revised), which was adopted by the Group in the year ended December 31, 2013. |
(2) | Profit before tax includes Reed Elsevier NVs share of post-tax earnings of joint ventures, being the operations of the combined businesses. |
(3) | Noon buying rates as at December 31, 2014 have been used to provide a convenience translation into US dollars, see Exchange Rates on page 6. At December 31, 2014 the Noon Buying Rate was $1.21 per 1.00. This compares to the average exchange rate for the year ended December 31, 2014 of $1.33 to 1.00 applied in the translation of the consolidated income statement for the year. |
(4) | Dividends paid in the year, in amounts per ordinary share, comprise a 2013 final dividend of 0.374 and 2014 interim dividend of 0.151 giving a total of 0.525. The directors of Reed Elsevier NV have proposed a 2014 final dividend of 0.438 (2013: 0.374; 2012: 0.337; 2011: 0.326; 2010: 0.303), giving a total ordinary dividend in respect of the financial year of 0.589 (2013: 0.506; 2012: 0.467; 2011: 0.436; 2010: 0.412). |
Dividends per Reed Elsevier NV ordinary share in respect of the financial year ended December 31, 2014 translated into dollars at the noon buying rate on December 31, 2014 were $0.71. See Exchange Rates on page 6. |
(5) | Weighted average number of shares excludes shares held in treasury and shares held by the Employee Benefit Trust and takes into account the R shares in Reed Elsevier NV held by a subsidiary of Reed Elsevier PLC, which represent a 5.8% interest in Reed Elsevier NV. |
During 2014 Reed Elsevier NV repurchased 20,403,351 Reed Elsevier NV ordinary shares and 107,901 R shares (equivalent to 1,079,010 Reed Elsevier NV ordinary shares) and cancelled 40,000,000 Reed Elsevier NV ordinary shares. During 2014, the Employee Benefit Trust purchased 1,989,279 Reed Elsevier NV ordinary shares. |
5
EXCHANGE RATES
For a discussion of the impact of currency fluctuations on the Groups combined results of operations and combined financial position, see Item 5: Operating and Financial Review and Prospects.
The following tables illustrate, for the periods and dates indicated, certain information concerning the Noon Buying Rate for pounds sterling expressed in US dollars per £1.00 and for the euro expressed in US dollars per 1.00. The exchange rate on February 27, 2015 was £1.00 = $ 1.54 and 1.00 = $ 1.12 .
US dollars per £1.00 Noon Buying Rates
Period | ||||||||||||||||
Year ended December 31, |
End | Average (1) | High | Low | ||||||||||||
2014 |
1.56 | 1.65 | 1.72 | 1.55 | ||||||||||||
2013 |
1.66 | 1.56 | 1.66 | 1.48 | ||||||||||||
2012 |
1.62 | 1.59 | 1.63 | 1.53 | ||||||||||||
2011 |
1.55 | 1.60 | 1.67 | 1.54 | ||||||||||||
2010 |
1.56 | 1.55 | 1.64 | 1.43 | ||||||||||||
Month |
High | Low | ||||||||||||||
February 2015 |
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1.55 | 1.50 | |||||||||||||
January 2015 |
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1.56 | 1.50 | |||||||||||||
December 2014 |
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1.57 | 1.55 | |||||||||||||
November 2014 |
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1.60 | 1.56 | |||||||||||||
October 2014 |
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1.62 | 1.59 | |||||||||||||
September 2014 |
|
1.66 | 1.61 |
US dollars per 1.00 Noon Buying Rates
Period | ||||||||||||||||
Year ended December 31, |
End | Average (1) | High | Low | ||||||||||||
2014 |
1.21 | 1.33 | 1.39 | 1.21 | ||||||||||||
2013 |
1.38 | 1.32 | 1.38 | 1.28 | ||||||||||||
2012 |
1.32 | 1.29 | 1.35 | 1.21 | ||||||||||||
2011 |
1.29 | 1.39 | 1.49 | 1.29 | ||||||||||||
2010 |
1.33 | 1.32 | 1.45 | 1.20 | ||||||||||||
Month |
High | Low | ||||||||||||||
February 2015 |
|
1.15 | 1.12 | |||||||||||||
January 2015 |
|
1.21 | 1.13 | |||||||||||||
December 2014 |
|
1.25 | 1.21 | |||||||||||||
November 2014 |
|
1.26 | 1.24 | |||||||||||||
October 2014 |
|
1.28 | 1.25 | |||||||||||||
September 2014 |
|
1.32 | 1.26 |
(1) | The average of the Noon Buying Rates on the last day of each month during the relevant period. |
Noon Buying Rates have not been used in the preparation of the combined financial statements, the Reed Elsevier PLC consolidated financial statements or the Reed Elsevier NV consolidated financial statements but have been used for certain convenience translations where indicated.
6
The principal risks facing our business are included below. Additional risks not presently known to us or that we currently deem immaterial may also impair our business.
We operate in a highly competitive environment that is subject to rapid change.
Our businesses operate in highly competitive markets. These markets continue to change in response to technological innovations, legislative and regulatory changes, the entrance of new competitors, and other factors. We cannot predict the changes that may occur and the effect of those changes on the competitiveness of our businesses. In particular, the means of delivering our products and services, and the products and services themselves, may be subject to rapid technological and other changes. We cannot predict whether technological innovations, changing legislation or other factors will, in the future, make some of our products wholly or partially obsolete or less profitable. Failure to anticipate market trends could impact the competitiveness of our products and services and consequently adversely affect our revenue and profit.
We cannot assure you that there will be continued demand for our products and services.
Our businesses are dependent on the continued acceptance by our customers of our products and services and the value placed on them. We cannot predict whether there will be changes in the future, either in the market demand or from the actions of competitors, which will affect the acceptability of products, services and prices to our customers. Failure to meet evolving customer needs could impact demand for our products and services and consequently adversely affect our revenue.
Fluctuations in exchange rates may affect our reported results.
Our financial statements are expressed in pounds sterling and euros and are, therefore, subject to movements in exchange rates on the translation of the financial information of businesses whose operational currencies are other than our reporting currencies. The United States is our most important market and, accordingly, significant fluctuations in US dollar exchange rates can significantly affect our reported results and financial position from year to year. In addition, in some of our businesses we incur costs in currencies other than those in which revenues are earned. The relative movements between the exchange rates in the currencies in which costs are incurred and the currencies in which revenues are earned can significantly affect the results of those businesses.
Current and future economic, political and market forces, and dislocations beyond our control may adversely affect demand for our products and services.
The demand for our products and services may be impacted by factors that are beyond our control, including macro economic, political and market conditions, the availability of short term and long term funding and capital and the level of volatility of interest rates, currency exchange rates and inflation. The United States, Europe and other major economies have in recent years undergone a period of economic turbulence, and this may continue into the future. Any one or more of these factors may contribute to reduced activity by our customers, may result in a reduction of demand for our products and services, and may adversely affect suppliers and third parties to whom we have outsourced business activities.
Changes in tax laws or uncertainty over their application and interpretation may adversely affect our reported results.
Our businesses operate globally and our earnings are subject to taxation in many differing jurisdictions and at differing rates. We seek to organise our affairs in a tax efficient manner, taking account of the jurisdictions in which we operate. However, tax laws that apply to our businesses may be amended or interpreted differently by the relevant authorities, which could adversely affect our reported results.
Changes in regulation of information collection and use could adversely affect our business.
Legal regulation relating to internet communications, data protection, e-commerce, direct marketing, credit scoring and digital advertising, privacy, information governance and use of public records is becoming more prevalent worldwide. Existing and proposed legislation and regulations, including changes in the manner in which such legislation and regulations are interpreted by courts and regulators may impose limits on our collection and use of certain kinds of information about individuals and our ability to communicate such information effectively with our customers. For example, many of the products offered by Risk & Business Information are subject to regulation under the US Fair Credit Reporting Act (FCRA), Gramm Leach Bliley Act (GLBA), Drivers Privacy Protection Act (DPPA) and related state laws. Certain of these laws further provide for statutory penalties and attorneys fees for non-compliance. We are unable to predict in what form laws and regulations will be adopted or modified or how they will be construed by the courts and regulators, or the extent to which any such laws or interpretation changes might adversely affect our business.
7
Changes in provision of third party information to us could adversely affect our businesses.
A number of our businesses rely extensively upon content and data from external sources. Data is obtained from public records, governmental authorities, customers and other information companies, including competitors. In the case of public records, including social security number data which are obtained from public authorities, our access is governed by law. We also obtain the credit header data in our databases from consumer credit reporting agencies. The disruption or loss of data sources, either because of changes in the law or because data suppliers decide not to supply them, could adversely affect our products and services.
Our business, operations and reputation could be adversely affected by a failure to comply with FTC Settlement Orders.
Through our Risk & Business Information business in the United States, we are party to two consent orders and two subsequent related supplemental orders (the FTC Settlement Orders) embodying settlements with the US Federal Trade Commission (FTC) that resolved FTC investigations into our compliance with federal laws governing consumer information security and related issues, including certain fraudulent data access incidents. We also entered into an Assurance of Voluntary Compliance and Discontinuance (the AVC) with the Attorneys General of 43 states and the District of Columbia in connection with one such FTC investigation. The FTC Settlement Orders and the AVC require us to institute and maintain information security, verification, credentialing, audit and compliance, and reporting and record retention programmes and to obtain an assessment from a qualified, independent third party every two years for twenty years (with the FTC having the right to extend such twenty-year period by up to two additional biennial assessment periods) to ensure that our performance under these information security programmes complies with the FTC Settlement Orders. Failure to comply with the FTC Settlement Orders and the AVC could result in civil penalties and adversely affect our business, operations and reputation.
Breaches of our data security systems or other unauthorised access to our databases could adversely affect our business and operations.
Our businesses provide customers with access to database information such as case law, treatises, journals, and publications as well as other data. Some of our businesses also provide authorised customers with access to public records and other information on US individuals made available in accordance with applicable privacy laws and regulations. There are persons who try to breach our data security systems or gain other unauthorised access to our databases in order to misappropriate such information for potentially fraudulent purposes and we have previously disclosed incidents of such unauthorised access. Because the techniques used by such persons change frequently, we may be unable to anticipate or protect against the threat of breaches of data security or other unauthorised access. Breaches of our data security systems or other unauthorised access to our databases could damage our reputation and expose us to a risk of loss or litigation and possible liability, as well as increase the likelihood of more extensive governmental regulation of these activities in a way that could adversely affect this aspect of our business.
Changes in levels of government funding of, or spending by, academic institutions may adversely affect demand for the products and services of our scientific, technical and medical (STM) businesses.
The principal customers for the information products and services offered by our STM publishing businesses are academic institutions, which fund purchases of these products and services from limited budgets that may be sensitive to changes in private and governmental sources of funding. Accordingly, any decreases in budgets of academic institutions or changes in the spending patterns of academic institutions could negatively impact our business and revenues.
Our intellectual property rights may not be adequately protected under current laws in some jurisdictions, which may adversely affect our results and our ability to grow.
Our products and services are largely comprised of intellectual property content delivered through a variety of media, including online, journals and books. We rely on trademark, copyright, patent, trade secret and other intellectual property laws to establish and protect our proprietary rights in these products and services. However, we cannot assure you that our proprietary rights will not be challenged, limited, invalidated or circumvented. Despite trademark and copyright protection and similar intellectual property protection laws, third parties may be able to copy, infringe or otherwise profit from our proprietary rights without our authorisation. These unauthorised activities may be facilitated by the internet.
In addition, whilst there is now certain internet-specific copyright legislation in the United States and in the European Union, there remains significant uncertainty as to the date from which such legislation will be enforced and the form copyright law regulating digital content may ultimately take. In several jurisdictions, including the United States, Australia and the European Union, copyright laws are increasingly coming under legal review. These factors create additional challenges for us in protecting our proprietary rights in content delivered through the internet and electronic platforms. Moreover, whilst non-copyrightable databases are protected in many circumstances by law in the European Union, there is no equivalent legal protection in the United States.
8
We may be unable to implement and execute our strategic and business plans if we cannot maintain high-quality management.
The implementation and execution of our strategic and business plans depend on our ability to recruit, motivate and retain high-quality people. We compete globally and across business sectors for talented management and skilled individuals, particularly those with technology and data analytics capabilities. An inability to recruit, motivate or retain such people could adversely affect our business performance.
We may not realise all of the future anticipated benefits of acquisitions.
We regularly make small business acquisitions to strengthen our portfolio. Whilst our acquisitions are made within the framework of our overall strategy, which emphasises organic development, we cannot assure you we will be able to generate the anticipated benefits such as revenue growth and/or cost savings associated with these acquisitions. Failure to realise the anticipated benefits of acquisitions could adversely affect our return on invested capital and financial condition.
We cannot assure you whether our substantial investment in electronic product and platform initiatives will produce satisfactory, long term returns.
We are investing significant amounts to develop and promote electronic products and platforms. The provision of electronic products and services is very competitive and we may experience difficulties developing this aspect of our business due to a variety of factors, many of which are beyond our control. These factors may include competition from comparable and new technologies and changes in regulation.
Our businesses may be adversely affected if their electronic delivery platforms, networks or distribution systems experience a significant failure or interruption.
Our businesses are dependent on electronic platforms and distribution systems, primarily the internet, for delivery of their products and services. From time to time we have experienced verifiable attacks on our platforms and systems by unauthorised parties. To date such attacks have not resulted in any material damage to us, however, our businesses could be adversely affected if their electronic delivery platforms and networks experience a significant failure, interruption or security breach.
Our businesses may be adversely affected by the failure of third parties to whom we have outsourced business activities.
Our organisational and operational structures are dependent on outsourced and offshored functions. Poor performance or the failure of third parties to whom we have outsourced business functions could adversely affect our business performance, reputation and financial condition.
Our scientific, technical and medical primary publications could be adversely affected by changes in the market.
Our STM primary publications, like those of most of our competitors, are published on a paid subscription basis. There is continued debate in government, academic and library communities, which are the principal customers for our STM publications, regarding, to what extent such publications should be funded instead through fees charged to authors or authors funders and/or made freely available in some form after a period following publication. If these methods of STM publishing are widely adopted or mandated, it could adversely affect our revenue from our paid subscription publications.
Spending by companies on advertising and other marketing activities, which comprises a significant portion of our revenue, has historically been cyclical.
In 2014 2% of our revenue was derived from advertising. Total advertising revenues for our businesses in 2014 were £135 million compared with £240 million in 2013. Traditionally, spending by companies on advertising and other marketing activities has been cyclical, with companies spending significantly less on advertising in times of economic slowdown or turbulence. In addition, there has been a structural shift of advertising and lead generation to Google and other search engines.
Exhibitions is similarly affected by cyclical pressures on spending by companies. Additionally, participation and attendance at exhibitions is affected by the availability of exhibition venues and the propensity of exhibitors and attendees to travel. Our results could be adversely affected if the availability of venues or the demand from exhibitors and attendees were reduced, for example due to international security or public health concerns or acts of terrorism or war.
Changes in the market values of defined benefit pension scheme assets and in the assumptions used to value defined benefit pension scheme obligations may adversely affect our businesses.
We operate a number of pension schemes around the world. Historically, the largest schemes have been local versions of the defined benefit type in the United Kingdom, the United States and the Netherlands. The assets and obligations associated
9
with defined benefit pension schemes are sensitive to changes in the market values of assets and the market related assumptions used to value scheme liabilities. In particular, declines in asset values, or increases in pension scheme liabilities, due to adverse changes in discount rates, inflation or mortality assumptions could increase future pension costs and funding requirements.
Our impairment analysis of goodwill and indefinite lived intangible assets incorporates various assumptions which are highly judgemental. If these assumptions are not realised, we may be required to recognise a charge in the future for impairment.
As at December 31, 2014, goodwill on the combined statement of financial position amounted to £4,981 million and intangible assets with an indefinite life amounted to £369 million. We conduct an impairment test at least annually, which involves a comparison of the carrying value of goodwill and indefinite lived intangible assets by cash generating unit with estimated values in use based on latest management cash flow projections. The assumptions used in the estimation of value in use are, by their very nature, highly judgemental, and include profit growth of the business over a five year forecast period, the long term growth rate of the business thereafter, and related discount rates. There is no guarantee that our businesses will be able to achieve the forecasted results which have been included in the impairment tests and impairment charges may be required in future periods if we are unable to meet these assumptions.
Our borrowing costs and access to capital may be adversely affected if the credit ratings assigned to our debt are downgraded.
Our outstanding debt instruments are, and any of our future debt instruments may be, publicly rated by independent rating agencies such as Moodys Investors Service Inc., Standard & Poors Rating Services and Fitch Ratings. A rating is based upon information furnished by us or obtained by the relevant rating agency from its own sources and from publicly available information and is subject to revision, suspension or withdrawal by the rating agency at any time. Rating agencies may review the assigned ratings due to developments that are beyond our control. Factors cited as a basis for a ratings downgrade or an assignment of a negative outlook could include the macro economic environment and the level of our indebtedness as a consequence of an acquisition. If the ratings of our debt are downgraded in the future, our borrowing costs and access to capital may be adversely affected.
Breaches of generally accepted ethical business standards or applicable statutes concerning bribery could adversely affect our reputation and financial condition.
As a leading provider of professional information solutions to the STM, Risk & Business Information, Legal and Exhibitions markets, we are expected to adhere to high standards of independence and ethical conduct. Whilst our employees are expected to abide by our Code of Ethics and Business Conduct, employees may still fail to abide by its guidelines relating to anti-bribery and principled business conduct. Similarly, whilst our major suppliers are expected to abide by our Supplier Code of Conduct, suppliers may still fail to abide by its guidelines relating to anti-bribery and principled business conduct. A breach of generally accepted ethical business standards or applicable statutes concerning bribery by our employees or our suppliers could adversely affect our business performance, reputation and financial condition.
Failure to manage our environmental impact could adversely affect our businesses.
Our businesses have an impact on the environment, principally through the use of energy and water, waste generation and, in our supply chain, through our paper use and print and production technologies. Whilst we are committed to reducing these impacts by limiting resource use and by efficiently employing sustainable materials and technologies, we cannot assure you that these efforts and expenditures incurred by us in order to comply with either new environmental legislation and regulations, new interpretations or existing laws and regulations or more rigorous enforcement of such laws and regulations will not adversely impact our businesses or reputation.
10
ITEM 4: INFORMATION ON THE GROUP
Introduction
Reed Elsevier NV was originally incorporated in 1880 and Reed Elsevier PLC in 1903. In 1993 they contributed their respective businesses to two jointly owned companies, Reed Elsevier Group plc and Elsevier Reed Finance BV. The parent companies, Reed Elsevier PLC and Reed Elsevier NV, are separate, publicly-held entities. Reed Elsevier PLCs ordinary shares are listed in London and New York, and Reed Elsevier NVs ordinary shares are listed in Amsterdam and New York. Trading on the New York Stock Exchange is in the form of American Depositary Shares (ADSs), evidenced by American Depositary Receipts (ADRs) issued by Citibank N.A., as depositary. During 2014, Reed Elsevier Group plc, a company incorporated in England, owned the publishing and information businesses and Elsevier Reed Finance BV, a company incorporated in the Netherlands, oversaw financing and treasury activities. Reed Elsevier PLC and Reed Elsevier NV each held a 50% interest in Reed Elsevier Group plc. Until February 2015, Reed Elsevier PLC held a 39% interest in Elsevier Reed Finance BV and Reed Elsevier NV held a 61% interest. Reed Elsevier PLC additionally holds an indirect equity interest in Reed Elsevier NV, reflecting the arrangements entered into between Reed Elsevier PLC and Reed Elsevier NV at the time of the merger, which determined the equalisation ratio whereby one Reed Elsevier NV ordinary share is, in broad terms, intended to confer equivalent economic interests to 1.538 Reed Elsevier PLC ordinary shares.
Effective February 25, 2015, Reed Elsevier PLC and Reed Elsevier NV transferred their direct ownership interests in Elsevier Reed Finance BV to their jointly-owned company Reed Elsevier Group plc and named this newly-combined single group entity RELX Group plc. As a result, RELX Group plc now holds all Reed Elsevier businesses, subsidiaries and financing activities. Further information is provided on pages 23 to 24.
Material acquisitions and disposals
Total acquisition expenditure in the three years ended December 31, 2014, was £933 million, net of cash acquired of £35 million. During 2014, a number of acquisitions were made for total consideration of £396 million, net of cash acquired of £9 million. During 2013, a number of acquisitions were made for total consideration of £221 million, net of cash acquired of £14 million. During 2012, a number of acquisitions were made for a total consideration of £316 million, net of cash acquired of £12 million.
The net cash received on the disposal of non-strategic assets, after timing differences and separation and transaction costs, was £53 million (2013: £195 million; 2012: £160 million).
Capital expenditure
Capital expenditure on property, plant, equipment and internally developed intangible assets principally relates to investment in systems infrastructure to support electronic publishing activities, computer equipment and office facilities. Total such capital expenditure, which was financed using cash flows generated from operations, amounted to £270 million in 2014 (2013: £308 million; 2012: £333 million). In 2014, there was continued investment in new product and related infrastructure, particularly in the Legal segment. Further information on capital expenditure is given in notes 15 and 17 to the combined financial statements.
Principal Executive Offices
The principal executive offices of Reed Elsevier PLC are located at 1-3 Strand, London WC2N 5JR, England. Tel: +44 20 7166 5500. The principal executive offices of Reed Elsevier NV are located at Radarweg 29, 1043 NX Amsterdam, the Netherlands. Tel: +31 20 485 2222. The principal executive office located in the United States is at 230 Park Avenue, New York, New York, 10169. Tel: +1 212 309 8100. Our internet address is www.relxgroup.com. The information on our website is not incorporated by reference into this report.
Our agent in the United States is Kenneth Thompson II, General Counsel Intellectual Property, Privacy and Governance, RELX Group, kenneth.thompson@relxgroup.com, 9443 Springboro Pike, B4/F5/514, Miamisburg, Ohio, 45342.
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We are a leading provider of information solutions for professional customers across industries. We operate in four market segments: Scientific, Technical & Medical, providing information and tools to help its customers improve scientific and healthcare outcomes; Risk & Business Information, providing data services and tools that combine proprietary, public and third-party information, with technology and analytics to business and government customers; Legal, providing legal, tax, regulatory news and business information to legal, corporate, government and academic markets; and Exhibitions, organising exhibitions and conferences.
The Groups reported segments are based on the internal reporting structure and financial information provided to the Boards. During 2014, Risk Solutions and Business Information have been combined into one business area, having previously operated separately. Accordingly, they are now presented as a single operating segment. Comparative figures have been presented as if the businesses had operated on a combined basis in the prior year.
Our principal operations are in North America and Europe. For the year ended December 31, 2014 we had total revenue of approximately £ 5.8 billion and an average of 28,200 employees. As at December 31, 2014 we had 28,500 employees. In 2014, North America represented our largest single geographic market, contributing 50% of our total revenue.
Revenue is derived principally from subscriptions, transactional and advertising sales. In 2014, 51% of our revenue was derived from subscriptions, 47% from transactional sales and 2% from advertising sales. An increasing proportion of revenue is derived from electronic information products, principally internet based. In 2014, 66% of our revenue was derived from such sources, including 85% of Risk & Business Information revenue, 77% of Legal revenue, 74% of Scientific, Technical & Medical revenue and 3% of Exhibitions revenue.
Subscription sales are defined as revenue derived from the periodic distribution or update of a product or from the provision of access to online services, which is often prepaid. Transactional sales include all other revenue from the distribution of a product and transactions of online services, usually on cash or credit terms. The level of publishing related advertising sales has historically been tied closely to the economic and business investment cycle with changes in the profit performance of advertisers, business confidence and other economic factors having a high correlation with changes in the size of the market. Subscription sales and transactional sales have tended to be more stable than advertising sales through economic cycles.
Revenue is recognised for the various categories as follows: subscriptions on periodic despatch of subscribed product or rateably over the period of the subscription where performance is not measurable by despatch; transactional on despatch or occurrence of the transaction or exhibition; and advertising on publication or period of online display. Where sales consist of two or more independent components whose value can be reliably measured, revenue is recognised on each component as it is completed by performance, based on the attribution of relative value.
Our businesses compete for subscription, transactional, and advertising expenditures in scientific and medical, risk, legal and business sectors. The bases of competition include, for readers and users of the information, the quality and variety of the editorial content and data, the quality of the software to derive added value from the information, the timeliness and the price of the products and, for exhibitors and advertisers, the quality and the size of the audiences targeted.
For additional information regarding revenue from our business activities and geographic markets, see Item 5: Operating and Financial Review and Prospects on page 26.
Revenue
Year ended December 31, |
||||||||||||||||||||||||
2014 | 2013 | 2012 | ||||||||||||||||||||||
(in millions, except percentages) | ||||||||||||||||||||||||
Scientific, Technical & Medical |
£ | 2,048 | 36 | % | £ | 2,126 | 35 | % | £ | 2,063 | 34 | % | ||||||||||||
Risk & Business Information |
1,439 | 25 | 1,480 | 25 | 1,589 | 26 | ||||||||||||||||||
Legal |
1,396 | 24 | 1,567 | 26 | 1,610 | 26 | ||||||||||||||||||
Exhibitions |
890 | 15 | 862 | 14 | 854 | 14 | ||||||||||||||||||
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|
|
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|
|
|
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|
|
|
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Total |
£ | 5,773 | 100 | % | £ | 6,035 | 100 | % | £ | 6,116 | 100 | % | ||||||||||||
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12
SCIENTIFIC, TECHNICAL & MEDICAL
Year ended December 31, | ||||||||||||
2014 | 2013 | 2012 | ||||||||||
(in millions) | ||||||||||||
Revenue |
£ | 2,048 | £ | 2,126 | £ | 2,063 | ||||||
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In Scientific, Technical & Medical markets, we provide information and tools to help customers improve scientific and healthcare outcomes.
Elsevier is a leading provider of scientific, technical & medical information serving scientists, health professionals and students worldwide. Its objective is to help its customers advance science and improve healthcare by providing content and innovative information solutions that enable them to make critical decisions, enhance productivity and improve outcomes.
Elsevier is a global business with principal operations in Amsterdam, Beijing, Boston, Chennai, Delhi, London, Madrid, Munich, New York, Oxford, Paris, Philadelphia, Rio de Janeiro, St. Louis, San Diego, Singapore and Tokyo. It has 7,000 employees.
In 2014, approximately 68% of revenue came from subscription sales, 30% from transactional sales, and 2% from advertising. Approximately 37% of revenue by destination in 2014 was derived from North America, 30% from Europe and the remaining 33% from the rest of the world. 74% of revenue was delivered electronically.
Elsevier serves the needs of the science, technology & medical markets by publishing primary research, reference, and education content, as well as by providing a range of database and workflow solutions. Elseviers customers are scientists, academic institutions, educators, research leaders and administrators, medical researchers, doctors, nurses, allied health professionals and students, as well as hospitals, research institutions, health insurers, managed healthcare organisations, research-intensive corporations, and governments. All of these customers rely on Elsevier to provide high-quality content and critical information for making scientific and medical decisions; to review, publish, disseminate and preserve research findings; to create innovative tools to help focus research strategies, increase research effectiveness, improve medical outcomes, and enhance the efficiency of healthcare and healthcare education.
In the primary research market during 2014, over 1.1 million research papers were submitted to Elsevier. Over 16,000 editors managed the peer review and selection of these papers, resulting in the publication of more than 360,000 articles in over 2,000 journals, many of which are the foremost publications in their field and a primary point of reference for new research. This content was accessed by around 12 million people, with more than 750 million full text article downloads last year. Content is provided free or at very low cost in most of the worlds poorest countries. Elseviers journals are primarily published and delivered through the ScienceDirect platform, the worlds largest database of scientific and medical research, hosting over 12 million pieces of content, and 30,000 full-text e-books. Flagship journals include Cell and The Lancet families of titles.
In 2014, Elsevier expanded the Lancet collection, adding new titles such as The Lancet Psychiatry, The Lancet HIV and The Lancet Haematology.
Elsevier is also a global leader in the scientific, technical & medical reference market, providing authoritative and current professional reference content. While reference has traditionally been provided in print, Elsevier has been a leader in driving the shift from print to electronic. Flagship titles include works such as Grays Anatomy, Nelsons Pediatrics and Netters Atlas of Human Anatomy.
Elseviers flagship clinical reference platform, ClinicalKey, provides physicians with access to leading Elsevier and third-party reference and evidence-based medical content in a single, fully integrated site. ClinicalKey is continuing to grow, and is currently accessed by over 2,000 institutions.
In medical education, Elsevier serves students of medicine, nursing and allied health professions through print and electronic books, as well as electronic solutions. For example, HESI, an online testing and remediation solution designed to help students of nursing and allied health professionals, conducted over 700,000 tests in 2014.
Elseviers database and workflow products provide a range of tools and solutions for professionals in the science, technical, and medical fields. Customers include academic and corporate researchers, research administrators and healthcare professionals.
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For academic and corporate researchers, significant products include Scopus, Reaxys, and Knovel. Scopus is the largest abstract and citation database of research literature in the world, with over 56 million abstract and bibliographic information records from more than 21,000 peer-reviewed journals and 5,000 international publishers. Reaxys is a leading solution for synthetic chemists, integrating chemical reaction and compound data searching with synthesis planning. Knovel provides a range of web-based productivity tools for the engineering community, integrating technical information with analytics and search to deliver trusted answers and drive innovation.
Elsevier serves academic and government research administrators through its Elsevier Research Intelligence suite of products. Leveraging bibliometric data from Scopus and other data types, SciVal, helps institutions to establish, execute and evaluate research strategies. Pure is a comprehensive research information management system which enables evidence-based research management decisions, promotes collaboration, simplifies administration and optimises impact. Our Analytical Services team provides accurate, unbiased analysis on research performance by combining high quality data sources with technical and research metrics expertise. SciVal Funding assists researchers and institutions in identifying grants that are most relevant in their research areas.
For healthcare professionals, Elsevier develops products to deliver patient-specific solutions at the point of care to improve patient outcomes. Its clinical solutions include ExitCare which provides patient education and discharge information and CPM Resource Center, which provides a data-driven framework to support nurses in undertaking procedures.
Market opportunities
Scientific, technical & medical information markets have good long-term growth characteristics. The importance of research and development to economic performance and competitive positioning is well understood by governments, academic institutions and corporations. This is reflected in the long-term growth in research and development spend and in the number of researchers worldwide. Growth in health markets is driven by ageing populations in developed markets, rising prosperity in developing markets and the increasing focus on improving medical outcomes and efficiency. Given that a significant proportion of scientific research and healthcare is funded directly or indirectly by governments, spending is influenced by governmental budgetary considerations. The commitment to research and health provision does, however, remain high, even in more difficult budgetary environments.
Strategic priorities
Elseviers strategic goal is to lead the way in providing information solutions that advance science, technology and health. To achieve this, Elsevier creates solutions that reflect deep insight into the way its users work and the outcomes they are seeking to achieve; strives for excellence in content, service and execution; constantly adapts and revitalises its products, business models and technology; and leverages its institutional skills, assets and resources to promote innovation and efficiency.
Elseviers strategic priorities are to continue to increase content volume and quality; to expand content coverage, building out integrated solutions combining Elsevier, third-party and customer data; to increase content utility, using Smart Content to enable new e-solutions; to combine content with analytics and technology, focused on measurably improving productivity and outcomes for customers; and to continue to drive operational efficiency and effectiveness.
In the primary research market, Elsevier aims to grow volume through new journal launches, expansion of author-pays journals and growth from emerging markets; to enhance quality by building on our premium brands; and to add value to core platforms by implementing new capabilities such as advanced recommendations on ScienceDirect and social collaboration through Mendeley.
In clinical reference markets, priorities are to expand content coverage, including licensing high-quality third-party content for ClinicalKey, as well as ensuring consistent tagging to link content assets across products.
Business model, distribution channels and competition
Science and medical research is principally disseminated on a paid subscription basis to the research facilities of academic institutions, government and corporations, and, in the case of medical and healthcare journals, also to individual practitioners and medical society members. For a number of journals, advertising and promotional income represents a small proportion of revenues predominantly from pharmaceutical companies in healthcare titles.
Over the past 15 years alternative payment models for the dissemination of research such as author-pays or authors-funder-pays have emerged. While it is expected that paid subscription will remain the primary distribution model, Elsevier has long invested in alternate business models to address the needs of customers and researchers. Over 1,600 of Elseviers journals now offer the option of funding research publishing and distribution via a sponsored article fee. In addition, Elsevier now publishes more than 100 open access journals.
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Electronic products, such as ScienceDirect, Scopus and ClinicalKey, are generally sold direct to customers through a dedicated sales force that has offices around the world. Subscription agents facilitate the sales and administrative process for print journals. Books are sold through traditional and online book stores, wholesalers and, particularly in medical and healthcare markets, directly to end users.
Competition within science and medical publishing is generally on a title-by-title and product-by-product basis. Competing journals, books and databases are typically published by learned societies and other professional publishers. Workflow tools face similar competition, as well as from software companies and internal solutions developed by customers.
Major brands
Elsevier is the master brand used for the business.
Elseviers major brands include: Cell, a life sciences journal in biochemistry and molecular biology; and The Lancet, one of the worlds leading medical journals since 1823. Many other products and journals are major brands in their fields, including: Mendeley, an innovative research management and social collaboration platform; SciVal, ready-to-use tools to analyse the world of research, and establish, execute and evaluate the best strategies for research organisations; ClinicalKey, combines reference and evidence-based medical content into its fully-integrated clinical insight engine; ScienceDirect, the worlds largest database of scientific and medical research articles; Scopus, a research performance tool for academic institutions and funding intelligence; and HESI, a suite of preparation testing and remediation resources that generate actionable data to prepare nursing and health profession students for success in pursuing degrees, passing licensure exams and starting their careers.
RISK & BUSINESS INFORMATION
Year ended December 31, | ||||||||||||
2014 | 2013 | 2012 | ||||||||||
(in millions) | ||||||||||||
Revenue |
£ | 1,439 | £ | 1,480 | £ | 1,589 | ||||||
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In Risk & Business Information, we provide data, analytics and insight that enable customers to evaluate and manage risk. We develop market intelligence, supporting more confident decisions, improving economic outcomes, and enhancing operational efficiency.
From 2014 Risk Solutions and Business Information have been combined into one business area. This union brings together LexisNexis Risk Solutions proprietary, public and third-party information, advanced technology and analytics, with Reed Business Informations high-value industry critical data services, information and tools as well as conferences, websites and business magazines.
Risk & Business Information has principal operations in Georgia, Florida, Illinois and Ohio in the US and London, Amsterdam and Shanghai. Risk & Business Information has 7,400 employees. Approximately 73% of revenue in 2014 came from North America, 22% from Europe and 5% from the rest of the world. 85% of Risk & Business Informations revenue was delivered electronically.
Risk & Business Information is organised around market-facing industry/sector groups including insurance, business services, government, healthcare, major data services (including banking, energy and chemicals, human resources) and other leading brands. The largest of these sector groups is insurance.
The identity management and risk evaluation solutions provided by Insurance Solutions, Business Services, Government Solutions and Health Care Solutions utilise comprehensive database platforms of public records and proprietary information with more than two petabytes of unique data, which makes it the largest database of its kind in the US market today. Our market-leading technology enables Risk & Business Information to provide its customers with highly relevant search results swiftly and to create new, low-cost solutions quickly and efficiently. It is also increasingly used across other Group business areas such as Legal and Scientific, Technical & Medical.
Risk & Business Information is focused on developing a pipeline of new solutions to drive growth in existing business segments and selected adjacent markets and geographies.
Insurance Solutions provides a comprehensive combination of data and analytics to personal, commercial and life insurance carriers in the US to improve critical aspects of their business, from customer acquisition and underwriting to claims handling. Information solutions, including the most comprehensive US personal loss history database, C.L.U.E. ® , help
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insurers assess risks and provide important inputs to pricing and underwriting insurance policies. Additional key products include LexisNexis ® Data Prefill, which provides critical information on customers, potential customers and their auto, property and life policy information directly into the insurance workflow, and LexisNexis ® Current Carrier, which identifies current or previous insurance coverage details as well as any lapses in coverage. Insurance Solutions released new driving behaviour products in four states in 2014. These products aggregate court data within specific states to provide insurers with vital traffic violation information for use in underwriting. In the UK, Insurance Solutions contributory No Claims Discount (NCD) module, which automates verification of consumers claims history, has achieved data contribution from over 55% of the UK auto insurance sector in just over a year.
In the Insurance business, Risk & Business Information acquired four businesses during 2014. Wunelli is an industry-leading telematics data services company based in the United Kingdom. The combined LexisNexis and Wunelli datasets will result in one of the largest provider-held insurance telematics databases in the world, with solutions to support insurers as they assess risk and discount safer drivers. Risk & Business Information also acquired three US based businesses to enhance the LexisNexis eCrash solution. iyeTek is an innovative provider of mobile and handheld software solutions, enabling public safety agencies to save time and money and improve services provided to their communities. PoliceReports.US is an online distributor of vehicle accident reports currently in use by 29 states and Coplogic is a leading provider of citizen self-reporting software solutions to law enforcement agencies. In October, a joint venture was signed with Jing You to supply data into the fast-growing auto insurance market in China.
Business Services provides financial institutions with risk management, identity management, fraud detection, credit risk management, and compliance solutions. These include Know Your Customer and Anti-Money Laundering products. The business also provides risk and identity management solutions for corporate customers in retail, telecommunications and utilities sectors. Receivables management solutions help debt recovery professionals in the segmentation, management and collection of consumer and business debt. In 2014, the group substantially advanced its international strategy, with the expansion of its international sales force, launch of a simplified Chinese language version of Bridger Insight ® XG, a Bank Secrecy Act and Anti-Money Laundering solution, and the ongoing upgrade of the WorldCompliance heightened risk individuals database.
In Business Services, Risk & Business Information acquired Tracesmart, a United Kingdom-based provider of tracing, identity verification, fraud prevention, Anti-Money Laundering, debt collection and data cleansing solutions. Tracesmart, a leader in identity management and fraud solutions in the UK, is a natural complement to Risk & Business Informations core competencies and brings a robust set of UK public records, allowing Risk & Business Information to extend its capabilities beyond the US in order to serve its customers more fully.
Government Solutions provides data and analytics to US federal, state and local law enforcement and government agencies to help solve criminal and intelligence cases and to identify fraud, waste and abuse in government programmes. The groups Tax Refund Investigative Solution (TRIS), now sold into eight states and the District of Columbia, continues to generate substantial benefits for both clients and taxpayers, with results to date over $100 million in avoided fraud losses.
Health Care Solutions provides identity, fraud, and clinical analytics solutions across key stages of the healthcare workflow to enable intelligent decision making for payers and providers.
During the year, the acquisition of Health Market Science, a leading supplier of high-quality data on healthcare professionals and an administrator of one of the largest practitioner-level medical claim databases in the US, was completed.
The business also provides risk-related information to the legal industry through LexisNexis Legal & Professional.
Outside of these areas, Risk & Business Information provides information and online data services to business professionals worldwide, with high-value industry critical data services, information and tools as well as producing conferences, websites and business magazines. It has many strong global brands with market-leading positions across a wide range of industry sectors.
Data Services include: ICIS, an information and data service in chemicals, energy and fertiliser; Accuity, a provider of services and solutions to the banking and corporate sectors focused on payment efficiency, Know Your Customer, Anti-Money Laundering and compliance; and XpertHR, an online service providing regulatory guidance, best practices and tools for HR professionals. During the year, Accuity completed the acquisition of FircoSoft, a leading provider of watch list filtering solutions for financial institutions and corporates. Accuity also launched risk solutions for customers in trade finance.
Leading Brands include Flightglobal, Farmers Weekly, Boerderij, Fiscaal Totaal, Estates Gazette, Elsevier and New Scientist and deliver a mix of high quality data, workflow tools and high-value news, information and opinion to business professionals across many industry sectors while also providing an effective marketing channel for customers. During the year Flightglobal completed the acquisition of Innovata, a provider of global airline schedules data. Risk & Business Information also acquired Farmade, a UK-based supplier of crop recording, mapping and precision farming workflow tools.
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In 2014, Risk & Business Information continued to reshape its portfolio, exiting areas not core to its strategy. As part of this strategy, 51% of Reed Construction Data (RCD), a provider of online construction data and information to the construction industry was divested, and 100% of RS Means, a construction costing service which had previously been a division of RCD. Risk & Business Information also completed its exit from its Marketing Solutions businesses, including the sales of BuyerZone and emedia and one divestment of a portfolio of B2B assets from its Netherlands operation now also completed.
Market opportunities
Risk & Business Information operates in markets with strong long-term growth drivers with growing demand for high-quality industry data and information and insight including: insurance underwriting transactions; insurance, healthcare, tax and entitlement fraud; credit defaults and financial fraud; regulatory compliance and due diligence requirements surrounding customer enrolment; security and privacy considerations; and data and analytics for the banking, energy and chemicals, human resources and aviation sectors.
In the insurance segment, growth is supported by increasing transactional activity in the auto, property and life insurance markets and the increasing adoption by insurance carriers of more sophisticated data and analytics in the prospecting, underwriting and claims evaluation processes, to assess underwriting risk, increase competitiveness and improve operating cost efficiency. Transactional activity is driven by growth in insurance quoting and policy switching, as consumers seek better policy terms. This activity is stimulated by competition among insurance companies, high levels of carrier advertising, and rising levels of internet quoting and policy binding.
A number of factors support growth in banking and financial services markets, including cross-border payments and trade finance levels, new credit originations, continued high fraud losses, stringent regulatory compliance requirements, and increasing Anti-Money Laundering fines. In receivables management, demand is driven mainly by levels of consumer debt and the prospect of recovering that debt, which is impacted by employment conditions in the US. In corporate markets, demand is supported by growth in online retail sales and continued high levels of credit card fraud. Growth in government markets is driven by the increasing use of data and analytics to combat criminal activity, fraud and tax evasion, and to address security issues. The level and timing of demand in this market is influenced by government funding and revenue considerations. In Health Care, there are numerous growth drivers for fraud and analytics solutions including the expansion of insurance coverage under the Affordable Care Act and the focus on cost containment and better patient outcomes.
Growth in the global energy and chemicals markets is driven by increasing trade and demand for more sophisticated information solutions. Risk & Business Informations aviation information markets are being driven by increases in air traffic and in the number of aircraft transactions.
Strategic priorities
Risk & Business Informations strategic goal is to help businesses and government achieve better outcomes with information and decision support in its individual markets through better understanding of risks associated with individuals, other businesses and transactions. By providing the highest quality industry data and tools, we assist customers in understanding their markets and managing risks efficiently and cost effectively. To achieve this, Risk & Business Information is focused on: delivering innovative new products across customer workflows; expanding the range of risk management solutions across adjacent markets; addressing international opportunities in selected markets to meet local needs; further growing its data services businesses; and continuing to strengthen its content, technology, and analytical capabilities.
Business model, distribution channels and competition
Risk & Business Informations products in Insurance, Business Services and Government are for the most part sold directly, with pricing predominantly on a transactional basis for insurance carriers and corporations, and primarily on a subscription basis for government entities.
Data services are typically sold directly on a subscription or transactional basis. Business magazines are mainly distributed on a paid basis. Advertising revenues are sold directly.
Risk & Business Information and Verisk, a competitor, each sell data and analytics solutions to insurance carriers but largely address different activities. Risk & Business Informations principal competitors in business services and government segments include Thomson Reuters and major credit bureaus, which in many cases address different activities in these segments as well.
Risk & Business Informations data services and leading brands compete with a number of information providers on a service and title-by-title basis including: Platts, Thomson Reuters, IHS and Wolters Kluwer as well as many niche and privately owned competitors. Risk & Business Information competes for online advertising with other business-to-business websites, search engines and social media.
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Across Risk & Business Information, subscription revenues now account for 94% of the total business with the remaining 6% derived from print and online advertising.
Major brands
Risk & Business Informations major brands include: C.L.U.E. ® , a comprehensive US personal insurance claims database; LexisNexis ® Data Prefill, tools to automate the insurance application process providing critical information insurers need to quote and underwrite a policy; LexisNexis ® Identity Management, a range of solutions to help clients verify that an identity exists and authenticate individuals; LexisNexis ® Anti-Money Laundering Solutions, content and information for anti-money laundering compliance, risk mitigation and enhanced due diligence; LexisNexis ® Revenue Recovery and Discovery, a suite of tools to enable governments to leverage public records and analytics to identify instances of fraud and to more efficiently collect on outstanding debts; Accuity, a provider of payment efficiency solutions, AML and KYC services and compliance tools for the banking and corporate sectors worldwide; ICIS, a global provider of news, price benchmarks, data, analytics and research to the energy, chemical and fertiliser industries; and Flightglobal, a data, news and advisory service for professionals working in the aviation industry.
LEGAL
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2014 | 2013 | 2012 | ||||||||||
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Revenue |
£ | 1,396 | £ | 1,567 | £ | 1,610 | ||||||
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In Legal markets, we are a leading provider of legal, regulatory and news & business information and analysis to law firm, corporate, government and academic customers.
Serving customers in more than 175 countries, LexisNexis Legal & Professional provides resources and services that inform decisions, increase productivity and drive new business.
LexisNexis Legal & Professional is headquartered in New York and has principal operations in the New York area, Ohio and North Carolina in the US, Toronto in Canada, London and Paris in Europe, and cities in several other countries in Africa and Asia Pacific. It has 9,500 employees worldwide. In 2014, approximately 79% of the revenue came from subscription sales and 21% from transactional sales. Approximately 66% of revenue by destination in 2014 was derived from North America, 23% from Europe and the remaining 11% from the rest of the world. 77% of Legals revenue was delivered electronically.
LexisNexis Legal & Professional is organised in market-facing groups. These are supported by global shared services organisations providing platform and product development, operational and distribution services, and other support functions.
In North America, electronic information solutions and innovative workflow tools from Research Solutions help legal and business professionals make better informed decisions in the practice of law and in managing their businesses. Flagship products for legal research are Lexis.com and Lexis Advance, which provide federal and state statutes and case law, together with analysis and expert commentaries from sources such as Matthew Bender and Michie and the leading citation service Shepards, which advises on the continuing relevance of case law precedents. Research solutions also include news and business information, ranging from daily news to company filings, as well as public records information and analytics. LexisNexis also partners with law schools to provide services to students as part of their training.
In 2014, LexisNexis continued to release new versions of Lexis Advance, an innovative web application designed to transform how legal professionals conduct research. Built on an advanced technology platform, Lexis Advance allows primary researchers within legal and professional organisations to find relevant information more easily and efficiently, helping them to drive better outcomes. Future releases will continue to expand content and outreach and add new innovative tools. LexisNexis employs lawyers and trained editors with professional legal backgrounds who review, annotate and update the legal content to help ensure each document in the collection is current and comprehensive. This domain expertise combined with the application of our big data HPCC technology means the Group is able to update its entire legal collection faster and more efficiently, while also identifying and linking content, enabling customers to uncover previously undiscovered relationships between documents.
New workflow and analytical tools and content sets are regularly introduced on Lexis Advance. For example, in 2014 LexisNexis launched LexisNexis Counsel Benchmarking, a new analytics solution that works with Verdict & Settlement Analyzer to inform litigation strategy decisions. Also, LexisNexis launched new modules for Lexis Practice Advisor, a web-based practical guidance product tailored for attorneys who handle transactional matters.
LexisNexis Business & Litigation Software Solutions serves as the software arm for the company. Its business of law software provides law firms with practice management solutions, including time and billing systems, case management, cost
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recovery and document management services. Its litigation software provides lawyers with a suite of tools covering case preparation to processing and review to trial preparation. During 2014, LexisNexis released multiple new versions for its existing portfolio including CounselLink, PCLaw, Sanction and Firm Manager.
In International markets outside the US, LexisNexis serves legal, corporate, government, accounting and academic markets in Europe, Canada, Africa and Asia Pacific with local and international legal, regulatory and business information. The most significant businesses are in the UK, France, Australia, Canada and South Africa.
LexisNexis focuses on providing customers with leading collections of content and innovative online solutions to help legal and business professionals make better decisions more efficiently. Penetration of online information services has grown strongly and electronic solutions now account for 63% of revenue outside the US.
In the UK, LexisNexis is a leading legal information provider offering an unrivalled collection of primary and secondary legislation, case law, expert commentary, and forms and precedents. Its extensive portfolio includes a number of heritage brands: Halsburys, Tolleys and Butterworths. The content is delivered through multiple formats from print to online to mobile apps and embedded in customers workflow.
In 2014, LexisNexis launched additional modules for the UK LexisPSL product suite which provides lawyers a single destination for their practical legal information needs with direct links to the relevant cases, legislation, precedents, forms, practical guidance and expert commentary.
In France, LexisNexis is a leading online provider of information to lawyers, notaries and courts. A heritage brand JurisClasseur and leading authoritative content is provided through multiple formats lexisnexis.fr, mobile and in print. These content sources are, as in the UK, being combined with new content and innovative workflow tools to develop practical guidance and practice management solutions. In 2014, LexisNexis France continued to enhance Lexis 360, the first semantic search online tool combining legal information, practical content and results from the web by providing tailored solutions for the public sector and the accounting markets.
Additional practical guidance solutions were launched in Canada, South Africa and Australia. Following the continued success of Lexis Advance in the US, an Australian version was launched in 2014 and additional international launches are planned.
In 2014, LexisNexis Legal & Professional strengthened its positions in Asia by introducing products created specifically for legal professionals and practitioners, corporate counsels, legal researchers and government institutions in markets including India, China and Japan. New practical guidance offerings are now available in China, Hong Kong and Japan. Also, LexisNexis continued its investment in broadening its core content offerings in India, Singapore and other countries in the region.
Market opportunities
Longer-term growth in legal and regulatory markets worldwide is driven by increasing levels of legislation, regulation, regulatory complexity and litigation, and an increasing number of lawyers.
Additional market opportunities are presented by the increasing demand for online information solutions and practice management tools that improve the quality and productivity of research, deliver better legal outcomes, and improve business performance. Notwithstanding this, legal activity and legal information markets are also influenced by economic conditions and corporate activity, as has been seen with the dampening of demand and the subdued market environment in North America and Europe in the aftermath of the global recession.
Strategic priorities
LexisNexis Legal & Professionals strategic goal is to enable better legal outcomes and be the leading provider of productivity-enhancing information and information-based workflow solutions in its markets. To achieve this LexisNexis is focused on introducing next generation products and solutions on the global New Lexis platform and infrastructure; leveraging New Lexis globally to continue to drive print to electronic migration and long-term international growth; and upgrading operational infrastructure, improving process efficiency and gradually improving margins.
In the US, LexisNexis focus is on the continuing development of next generation legal research and practice solutions. It is also conducting a major upgrade in operations infrastructure and customer service and support platforms. This will provide customers with an integrated and superior experience across multiple products and solutions. Over the next few years progressive product introductions, often based on the New Lexis platform, leveraging big data HPCC technology, will combine advanced technology with enriched content, sophisticated analytics and applications to enable LexisNexis customers to make better legal decisions and drive better outcomes for their organisations and clients.
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Outside the US, LexisNexis is focused on growing online services and developing further high-quality actionable content and workflow tools, including the continuous development of practical guidance and practice management applications. In 2015, LexisNexis will continue to introduce New Lexis globally. Additionally, LexisNexis is focusing on the expansion of its activities in emerging markets.
Business model, distribution channels and competition
LexisNexis Legal & Professional products and services are generally sold directly to law firms and to corporate, government, accounting and academic customers on a paid subscription basis, with subscriptions with law firms often under multi-year contracts.
Principal competitors for LexisNexis in US legal markets are West (Thomson Reuters), CCH (Wolters Kluwer) and Bloomberg. In news and business information they are Bloomberg and Factiva (News Corporation). Competitors in litigation solutions also include software companies. Significant international competitors include Thomson Reuters, Wolters Kluwer and Factiva.
Major brands
LexisNexis is the master brand used by LexisNexis Legal & Professional.
LexisNexis Legal & Professionals major brands include: Lexis ® , legal, news and public records content for legal professionals; Matthew Bender ® , critical analysis, checklists, forms, and practice guides authored by industry experts covering over 50 major practice areas; Lexis ® Library, LexisNexis ® UK flagship legal online product; Lexis ® PSL, LexisNexis ® UK legal practical guidance service; Shepards Citations Service, a citation service; Lexis Advance, a new online legal research tool that transforms the way legal professionals conduct research; Lexis Practice Advisor, a new resource that offers guidance to help attorneys handle transactional matters more efficiently and effectively; and Law360, a legal news provider covering the entire spectrum of practice areas every single business day.
EXHIBITIONS
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2014 | 2013 | 2012 | ||||||||||
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Revenue |
£ | 890 | £ | 862 | £ | 854 | ||||||
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Reed Exhibitions is a leading exhibitions business, with 500 events in over 30 countries.
Reed Exhibitions portfolio of exhibitions and conferences serves 43 industry sectors across the globe. In 2014, Reed Exhibitions brought together over 7 million event participants from around the world, generating billions of dollars of business and facilitating entry into new markets for its customers and boosting the local economies where the events are hosted.
Reed Exhibitions is a global business headquartered in London and has principal offices in Paris, Vienna, Norwalk (Connecticut), São Paulo, Abu Dhabi, Beijing, Moscow, Tokyo, and Sydney. Reed Exhibitions has 3,700 employees worldwide. In 2014, approximately 70% of Exhibitions revenue is derived from exhibitor participation fees, with the balance primarily comprising of conference fees, online and offline advertising, sponsorship fees and admission charges. Approximately 16% of Exhibitions revenue came from North America, 47% from Europe and the remaining 37% from the rest of the world on an event location basis.
Reed Exhibitions organises market-leading events which are relevant to industry needs, where participants from around the world meet face-to-face to do business, to network and to learn. Its exhibitions and conferences encompass a wide range of sectors. They include construction, cosmetics, electronics, energy and alternative energy, engineering, entertainment, gifts and jewellery, healthcare, hospitality, interior design, logistics, manufacturing, pharmaceuticals, real estate, recreation, security and safety, transport and travel.
Market opportunities
Growth in the exhibitions market is influenced by both business-to-business marketing spend and business investment. Historically, these have been driven by levels of corporate profitability, which in its turn has followed overall growth in GDP. Emerging markets and higher growth sectors provide additional opportunities for Reed Exhibitions. As some events are held other than annually, growth in any one year is affected by the cycle of non-annual exhibitions.
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Strategic priorities
Reed Exhibitions strategic goal is to understand and respond to its customers evolving needs and objectives better than its competition through deep knowledge of its customers and the markets they serve.
Reed Exhibitions delivers a platform for industry communities to conduct business, to network and to learn through a range of market-leading events in growth sectors, especially in higher growth geographies, enabling exhibitors to target and reach new customers quickly and cost effectively.
Organic growth will be achieved by continuing to generate greater customer value through the intelligent application of customer knowledge, by developing new events, and by building out technology platforms to ensure the rapid deployment of innovation and best practices across the organisation. Reed Exhibitions is also shaping its portfolio through a combination of strategic partnerships and acquisitions in high-growth sectors and geographies as well as by withdrawing from markets and industries with lower long-term growth prospects.
Reed Exhibitions is committed to continually improving customer solutions and experience. By providing a variety of services, including its integrated web platform, we continue to drive customer satisfaction. Using customer insights, Reed Exhibitions has developed an innovative product offering which enhances the value proposition for exhibitors by broadening their options in terms of the type and location of stand they take and the timing of their commitment to the event.
In 2014 Reed Exhibitions launched 36 new events. These included many events which delivered on the strategy of taking sector expertise, customer relationships and leading brands from one market and extending them into new geographies using local operational capability. Mipim, the leading property show held annually in Cannes, responded to the buoyant UK property market with the launch of an offshoot in London, FIBO China (health and fitness) was launched in Shanghai, building on the successful and long running German event FIBO, and in Singapore, Reed Exhibitions launched an Asian version of Maison&Objet, the leading design-led home and furniture show held twice a year in Paris.
A number of targeted acquisitions and investments were completed during 2014. Increasing its holding in Reed Tüyap gave Reed Exhibitions a strong position in Turkey, and with the acquisition of Fidalex and AFG, Reed Exhibitions achieved market leader status in Mexico. The Mexican acquisitions brought events such as Expo Carga (transport and logistics) and the Beauty Show into its portfolio. In addition, an investment in the Bakery event, serving the bakery and confectionery industry, broadening its footprint in China.
Business model, distribution channels and competition
The substantial majority of Reed Exhibitions revenues are from sales of exhibition space. The balance includes conference fees, online and offline advertising, sponsorship fees and, for some shows, admission charges. Exhibition space is sold directly or through local agents where applicable. Reed Exhibitions often works in collaboration with trade associations, which use the events to promote access for members to domestic and export markets, and with governments, for whom events can provide important support to stimulate foreign investment and promote regional and national enterprise. Increasingly, Reed Exhibitions is offering visitors and exhibitors the opportunity to interact before and after the show through the use of online and mobile tools such as directories and matchmaking.
Reed Exhibitions is the global market leader in a fragmented industry, holding less than a 10% global market share. Other international exhibition organisers include UBM, Informa IIR and some of the larger German Messe, including Messe Frankfurt, Messe Düsseldorf and Messe Munich. Competition also comes from industry trade associations and convention centre and exhibition hall owners.
Major brands
Reed Exhibitions major brands include: Mipim, the worlds property market; World Travel Market, an event for the travel industry; fiac!, an international contemporary art fair; Aluminium China, Asias sourcing and networking platform for the complete aluminium industry chain; Manufacturing World Tokyo, Japans largest trade show for the manufacturing industry; Mecanica, an international machinery trade fair; JCK Las Vegas, a North American jewellery industry trade event; and Pax Prime, a game festival for Tabletop, Videogame and PC Gamers.
ELSEVIER REED FINANCE BV
Elsevier Reed Finance BV, the Dutch parent company of the Elsevier Reed Finance BV group (ERF), was directly owned by Reed Elsevier PLC and Reed Elsevier NV during 2014. Effective February 25, 2015, Reed Elsevier PLC and Reed Elsevier NV transferred their direct ownership interests in ERF to their jointly-owned company Reed Elsevier Group plc. See
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Organisational Structure Proposed Modifications to Corporate Structure, Equalisation Arrangements and Corporate Entity Names. ERF provided treasury, finance, intellectual property and reinsurance services to the Group businesses through its subsidiaries in Switzerland: Elsevier Finance SA (EFSA), Reed Elsevier Properties SA (REPSA) and Elsevier Risks SA (ERSA). These three Swiss companies were organised under one Swiss holding company, which was in turn owned by ERF.
EFSA is the principal treasury centre for the combined businesses. It is responsible for all aspects of treasury advice and support for certain Group businesses, and undertakes foreign exchange and derivatives dealing services for the whole Group. EFSA also arranges or directly provides the Group businesses with financing for acquisitions, product development and other general requirements and manages cash pools, investments and debt programmes on their behalf. REPSA actively manages intellectual property assets including trademarks such as The Lancet and databases such as Reaxys and PharmaPendium. ERSA is responsible for reinsurance activities for the Group.
Certain of our businesses provide authorised customers with products and services such as access to public records and other information on individuals. Our businesses that provide such products and services are subject to applicable privacy and consumer information laws and regulations, including US federal and state and EU and member state regulation. Our compliance obligations vary from regulator to regulator, and may include, among other things, strict data security programs, submissions of regulatory reports, providing consumers with certain notices and correcting inaccuracies in applicable reports. We are also subject to the terms of consent decrees and other settlements with certain regulators in the U.S. See Item 8: Financial Information Legal Proceedings on page 72.
Section 219 of the Iran Threat Reduction and Syrian Human Rights Act of 2012 (the ITRA), which added Section 13(r) to the Securities Exchange Act of 1934, as amended (the Exchange Act), requires disclosures regarding certain activities relating to Iran or with persons designated pursuant to various U.S. Presidential Executive Orders. These disclosures are required even where the activities, transactions or dealings were conducted in compliance with applicable law. The ownership or control of our customers in Iran is often difficult to determine with certainty.
During 2014,
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our Scientific, Technical & Medical publications business sold subscriptions to online products and print publications to the Iran Ministry of Health, the Iran Ministry of Science Research and Technology and Islamic Azad University; and hosted pre-existing informational content from Masih Daneshvari Hospital on an online platform; |
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our Business Information business sold online subscription services to National Petrochemical Company, Abadan Petrochemical Company, Arya Sasol Polymer Company, Bandar Imam Petrochemical Company, Khorosan Petrochemical Company, Kimyagran Emrooz Chemical Industries, Petrochemical Commercial Company FZE, Polynar Corporation, Sepahan Oil Company and Tabriz Petrochemical Company; and |
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our Exhibitions business provided exhibition space to IRIB Media Trade, AITO Iran, Shahid Beheshti Medical University and the Cultural Centre of the Embassy of the Islamic Republic of Iran. |
Numerous Iranian nationals attended conferences organised by our exhibitions business. Individuals located in Iran also subscribed to or purchased certain of our scientific, medical and technical publications. Many of these individuals are researchers, doctors or other professionals who have obtained subscriptions or purchased publications in their individual capacity, but who may be employed by government agencies in Iran or by hospitals, universities or other entities owned or controlled by the government of Iran. In addition, we work with authors, other contributors and journal editorial board members who are located in Iran, many of whom are employed at hospitals, universities or research institutions that are owned or controlled by the government of Iran. We also sometimes receive payments from authors located in Iran who pay us to make their articles publicly available.
During 2014, our aggregate revenue from the foregoing activities was approximately £6.3 million. We do not normally allocate net profit on a subscription-by-subscription, individual customer or country-by-country basis. However, we estimate that our net profit from these activities, after internal cost allocations, amounted to 0.1% of our net profit reported in our combined income statement for the year ended December 31, 2014.
We believe these transactions and dealings were lawful under applicable laws and regulations and anticipate that similar transactions or dealings may occur in the future.
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Reed Elsevier PLC was originally incorporated in 1903 and Reed Elsevier NV was originally incorporated in 1880. Their businesses were combined in 1993. A description of our corporate structure as of December 31, 2014 is contained in note 1 to our combined financial statements on page F-10.
Proposed Modifications to Corporate Structure, Equalisation Arrangements and Corporate Entity Names
During 2014, the Boards carried out a review of our corporate structure and equalisation arrangements to explore ways in which it might be simplified and modernised. Certain changes have recently been made and others are being proposed to shareholders at the Annual General Meetings of Reed Elsevier PLC and Reed Elsevier NV to be held in April 2015. None of these changes will impact the economic or voting interests of any shareholder. In particular, dividend and capital distribution rights are unaffected. All parent company guarantees over debt are also unaffected.
Corporate Structure
Effective February 25, 2015, Reed Elsevier PLC and Reed Elsevier NV transferred their direct ownership interests in Elsevier Reed Finance BV to their jointly-owned company Reed Elsevier Group plc and named this newly-combined single group entity RELX Group plc. As a result, RELX Group plc now holds the businesses and subsidiaries, and carries out the Groups financing activities.
Shareholders in Reed Elsevier PLC hold a 52.9% economic interest in the combined businesses. Reed Elsevier PLC owns a 50% direct holding in RELX Group plc and has a 5.8% shareholding in Reed Elsevier NV. All other shareholders (other than Reed Elsevier PLC) in Reed Elsevier NV hold a 47.1% economic interest in the combined businesses. In order to simplify the corporate structure and make the respective economic interests of the two parent companies shareholders more transparent we have proposed that Reed Elsevier PLCs 5.8% shareholding in Reed Elsevier NV be replaced by a 2.9% direct (non-voting) shareholding in RELX Group plc. As a result, Reed Elsevier PLCs direct equity holding in RELX Group plc will become 52.9% and Reed Elsevier NVs direct equity holding in RELX Group plc will become 47.1%, which aligns with their shareholders respective economic interests.
The revised corporate structure, reflecting the changes that became effective February 25, 2015 and those being proposed to shareholders, is as follows:
* | These percentages reflect the respective equity interests of Reed Elsevier PLC and Reed Elsevier NV in RELX Group plc, subject to shareholder approval. Reed Elsevier PLC and Reed Elsevier NV will each continue to have equal voting rights in RELX Group plc, thus retaining the current 50%/50% joint voting control of the combined businesses. |
Equalisation Arrangements
Presently the equalisation ratio of Reed Elsevier PLC to Reed Elsevier NV shares is such that one Reed Elsevier NV ordinary share is generally intended to confer equivalent economic interests to 1.538 Reed Elsevier PLC ordinary shares. At its Annual General Meeting in April 2015, Reed Elsevier NV is proposing a resolution to issue additional bonus ordinary shares to existing Reed Elsevier NV shareholders on the basis of 0.538 bonus shares for each share held. If approved by shareholders, this will result in one ordinary share of Reed Elsevier NV conferring equivalent economic interests to one ordinary share of Reed Elsevier PLC. The reduction in the per share economic interests of Reed Elsevier NV shareholders as a
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result of the increase in the number of Reed Elsevier NV shares will be correspondingly offset by the number of additional shares each Reed Elsevier NV shareholder receives in the bonus issue, leaving the economic interest of each shareholder unchanged. Reed Elsevier PLC and Reed Elsevier NV ADRs on the New York Stock Exchange will also be adjusted so that they each represent one Reed Elsevier PLC or one Reed Elsevier NV ordinary share (from their current 4-to-1 and 2-to-1 ratios respectively).
By moving from the current 1.538-to-1 to a new 1-to-1 equalisation ratio between Reed Elsevier PLC and Reed Elsevier NV ordinary shares, capital rights (on a per share basis), dividends per share (on a gross basis including, with respect to the dividend on Reed Elsevier PLC ordinary shares, the associated UK tax credit) and adjusted earnings per share all will be readily identifiable as substantially equivalent between ordinary shares as well as their respective ADRs, subject only to the prevailing currency exchange rates between pounds sterling, euros or US dollars. This will also make it simpler to compare the prices of Reed Elsevier PLC and Reed Elsevier NV ordinary shares as well as their respective ADRs.
Subject to shareholder approval of the issuance of additional bonus shares by Reed Elsevier NV, the bonus issue, the changes to the number of Reed Elsevier PLC and Reed Elsevier NV ADRs and the requisite amendments to the Governing Agreement, all will be effective as of July 1, 2015.
Corporate Entity Names
Along with the proposed changes to the corporate structure, the Boards undertook a review of the names of the corporate entities. Following that review, as already noted, the Boards determined that as part of the transfer of ownership of Elsevier Reed Finance BV from Reed Elsevier PLC and Reed Elsevier NV to Reed Elsevier Group plc it was appropriate to name the newly-combined entity that holds the businesses and subsidiaries, and carries out the Groups financing activities, RELX Group plc. The Boards believe this shorter and more modern name reflects the transformation of the Group to a technology, content and analytics driven business while at the same time maintaining the link with its proud heritage. The Boards are proposing to shareholders at the Annual General Meetings in 2015 to also change the corporate names of Reed Elsevier PLC and Reed Elsevier NV to RELX PLC and RELX NV, respectively. There will not be any brand or name changes for any customer facing products or business units.
Shareholder Approval
As noted, certain of the structural changes and the change of name of the two parent companies, Reed Elsevier PLC and Reed Elsevier NV, will require the approval of shareholders. Detailed descriptions of the resolutions to be put to the Annual General Meetings of Reed Elsevier PLC and Reed Elsevier NV in April 2015 will be set out in the respective Notices of Annual General Meeting.
Significant Subsidiaries, Associates, Joint Ventures and Business Units
A list of significant subsidiaries, associates, joint ventures and business units is included under Item 19: Exhibits on pages S-3 and S-4.
INTELLECTUAL PROPERTY
Our products and services are largely comprised of intellectual property content delivered through a variety of media, including online, journals and books. We rely on trademark, copyright, patent, trade secret and other intellectual property laws, as well as in some cases licensing arrangements with third parties, to establish and protect our proprietary rights in these products and services.
24
We own or lease approximately 280 properties around the world, the majority of leased space being in the United States. The table below identifies the principal owned and leased properties which we use in our business.
Location |
Primary Business segment(s) |
Principal use(s) |
Floor space
(square feet) |
|||||
Owned properties |
||||||||
Alpharetta, Georgia |
Risk & Business Information | Office and data centre | 406,000 | |||||
Miamisburg, Ohio |
Risk & Business Information and Legal | Office | 403,638 | |||||
Linn, Missouri |
Scientific, Technical & Medical | Warehouse | 246,260 | |||||
Binghamton, New York |
Legal | Warehouse | 162,000 | |||||
Leased properties |
||||||||
New York, New York |
Scientific, Technical & Medical | Office | 451,800 | |||||
Amsterdam, Netherlands |
Risk & Business Information and Scientific, Technical & Medical | Office | 215,455 | |||||
Miamisburg, Ohio |
Risk & Business Information, Legal and Scientific, Technical & Medical | Office and data centre | 213,802 | |||||
Sutton, England |
Risk & Business Information and Legal | Office | 191,960 |
All of the above properties are substantially occupied by our businesses with the exception of the New York, New York property, where we occupy less than half of the floor space.
No property owned or leased by us which is considered material to us taken as a whole is presently subject to liabilities relating to environmental regulations and none has major encumbrances.
25
ITEM 5: OPERATING AND FINANCIAL REVIEW AND PROSPECTS
The following discussion is based on the combined financial statements of the Group for the three years ended December 31, 2014 which have been prepared in accordance with International Financial Reporting Standards (IFRS) as issued by the International Accounting Standards Board (IASB) and as adopted by the European Union.
The following discussion should be read in conjunction with, and is qualified by reference to, the combined financial statements.
The following tables analyse the Groups revenue in each of the three years ended December 31, 2014, 2013 and 2012 by type, format and geographic market. We derive our revenue principally from subscriptions, transactional and advertising sales. Transactional sales includes revenue from exhibitions. For additional information, see note 3 to the combined financial statements.
Revenue by type
Year ended December 31,
2014 | 2013 | 2012 | ||||||||||||||||||||||
(in millions, except percentages) | ||||||||||||||||||||||||
Subscriptions |
£ 2,966 | 51 | % | £ | 3,112 | 52 | % | £ | 2,978 | 49 | % | |||||||||||||
Transactional |
2,672 | 47 | 2,683 | 44 | 2,788 | 45 | ||||||||||||||||||
Advertising |
135 | 2 | 240 | 4 | 350 | 6 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total |
£ 5,773 | 100 | % | £ | 6,035 | 100 | % | £ | 6,116 | 100 | % | |||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
Revenue by format
Year ended December 31,
2014 | 2013 | 2012 | ||||||||||||||||||||||
(in millions, except percentages) | ||||||||||||||||||||||||
Electronic |
£ | 3,839 | 66 | % | £ | 3,971 | 66 | % | £ | 3,896 | 64 | % | ||||||||||||
|
1,012 | 18 | 1,168 | 19 | 1,305 | 21 | ||||||||||||||||||
Face to face |
922 | 16 | 896 | 15 | 915 | 15 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total |
£ | 5,773 | 100 | % | £ | 6,035 | 100 | % | £ | 6,116 | 100 | % | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
Revenue by geographic market
Year ended December 31,
2014 | 2013 | 2012 | ||||||||||||||||||||||
(in millions, except percentages) | ||||||||||||||||||||||||
North America |
£ 2,878 | 50 | % | £ | 3,082 | 51 | % | £ | 3,154 | 52 | % | |||||||||||||
United Kingdom |
455 | 8 | 443 | 7 | 442 | 7 | ||||||||||||||||||
The Netherlands |
153 | 3 | 166 | 3 | 165 | 3 | ||||||||||||||||||
Rest of Europe |
1,053 | 18 | 1,074 | 18 | 1,176 | 19 | ||||||||||||||||||
Rest of world |
1,234 | 21 | 1,270 | 21 | 1,179 | 19 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total |
£ 5,773 | 100 | % | £ | 6,035 | 100 | % | £ | 6,116 | 100 | % | |||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
The cost profile of individual businesses within the Group varies widely and costs are controlled on an individual business unit basis. Our most significant cost item is staff costs of £ 1,709 million (2013: £1,775 million; 2012: £1,845 million).
The following tables show revenue and adjusted operating profit for each of our business segments in each of the three years ended December 31, 2014, 2013 and 2012 together with the percentage change in 2014 and 2013 at both actual and constant exchange rates. Adjusted operating profit is included on the basis that it is the key segmental profit measure used by management to evaluate performance and allocate resources to the business segments, as reported under IFRS8: Operating Segments in note 3 to the combined financial statements. Adjusted operating profit represents operating profit before amortisation of acquired intangible assets, acquisition related costs, the share of profit on disposals in joint ventures, and is grossed up to exclude the equity share of taxes in joint ventures. A reconciliation of operating profit to adjusted operating profit is included below.
26
Following a review of activities, assets and costs across the business, we introduced a new method for the allocation of corporate and shared costs from January 1, 2014. Previously unallocated items and costs relating to shared activities and resources have been attributed to the business segments on the basis of usage and benefits derived. This new allocation reflects an increased level of shared resources and capitalised costs. Comparative adjusted operating profit figures for 2013 and 2012 have been restated as if this allocation method had operated in the prior periods.
Revenue
Year ended December 31, |
||||||||||||||||||||||||||||||||||||||||
2014 | 2013 | % change | 2012 | % change | ||||||||||||||||||||||||||||||||||||
|
|
|
|
actual
rates |
constant
rates (1) |
|
|
actual
rates |
constant
rates (2) |
|||||||||||||||||||||||||||||||
(in millions, except percentages) | ||||||||||||||||||||||||||||||||||||||||
Scientific, Technical & Medical |
£ | 2,048 | 36 | % | £ | 2,126 | 35 | % | -4 | % | +1 | % | £ | 2,063 | 34 | % | +3 | % | +1 | % | ||||||||||||||||||||
Risk & Business Information |
1,439 | 25 | % | 1,480 | 25 | % | -3 | % | +2 | % | 1,589 | 26 | % | -7 | % | -8 | % | |||||||||||||||||||||||
Legal |
1,396 | 24 | % | 1,567 | 26 | % | -11 | % | -6 | % | 1,610 | 26 | % | -3 | % | -4 | % | |||||||||||||||||||||||
Exhibitions |
890 | 15 | % | 862 | 14 | % | +3 | % | +11 | % | 854 | 14 | % | +1 | % | +2 | % | |||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
Total |
£ | 5,773 | 100 | % | £ | 6,035 | 100 | % | -4 | % | +1 | % | £ | 6,116 | 100 | % | -1 | % | -3 | % | ||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adjusted Operating Profit
(3)
Year ended December 31, |
||||||||||||||||||||||||||||||||||||||||
2014 |
2013
Restated |
% change |
2012
Restated |
% change | ||||||||||||||||||||||||||||||||||||
|
|
|
|
actual
rates |
constant
rates (1) |
|
|
actual
rates |
constant
rates (2) |
|||||||||||||||||||||||||||||||
(in millions, except percentages) | ||||||||||||||||||||||||||||||||||||||||
Scientific, Technical & Medical |
£762 | 44 | % | £787 | 45 | % | -3 | % | +1 | % | £743 | 44 | % | +6 | % | +2 | % | |||||||||||||||||||||||
Risk & Business Information |
506 | 29 | % | 507 | 29 | % | 0 | % | +5 | % | 498 | 29 | % | +2 | % | 0 | % | |||||||||||||||||||||||
Legal |
260 | 15 | % | 250 | 14 | % | +4 | % | +10 | % | 244 | 15 | % | +2 | % | +2 | % | |||||||||||||||||||||||
Exhibitions |
217 | 12 | % | 210 | 12 | % | +3 | % | +12 | % | 208 | 12 | % | +1 | % | +4 | % | |||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
Subtotal |
£1,745 | 100 | % | £1,754 | 100 | % | £1,693 | 100 | % | |||||||||||||||||||||||||||||||
Corporate costs |
(6) | (5 | ) | (5 | ) | |||||||||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||||||||
Total |
£1,739 | £1,749 | -1 | % | +5 | % | £1,688 | +4% | +1 | % | ||||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) | Represents percentage change in 2014 over 2013 at constant rates of exchange, which have been calculated using the average and hedge exchange rates for the 2013 financial year. These rates were used in the preparation of the 2013 combined financial statements. |
(2) | Represents percentage change in 2013 over 2012 at constant rates of exchange, which have been calculated using the average and hedge exchange rates for the 2012 financial year. These rates were used in the preparation of the 2012 combined financial statements. |
(3) | Adjusted operating profit represents operating profit before the amortisation of acquired intangible assets, acquisition related costs, the share of profit on disposal in joint ventures and is grossed up to exclude the equity share of taxes in joint ventures, and is reconciled to operating profit below. |
27
Adjusted operating profit is a non-GAAP measure included on the basis that it is a key financial measure used by management in assessing performance. It is derived from operating profit as follows:
2014 | 2013 | 2012 | ||||||||||
(in millions) | ||||||||||||
Operating profit |
£1,402 | £ | 1,376 | £ | 1,333 | |||||||
Adjustments: |
||||||||||||
Amortisation of acquired intangible assets |
286 | 318 | 329 | |||||||||
Acquisition related costs |
30 | 43 | 21 | |||||||||
Reclassification of tax in joint ventures |
21 | 12 | 5 | |||||||||
|
|
|
|
|
|
|||||||
Adjusted operating profit |
£1,739 | £ | 1,749 | £ | 1,688 | |||||||
|
|
|
|
|
|
Underlying revenue growth and underlying adjusted operating profit growth are non-GAAP measures included on the basis that they are key financial measures used by management in assessing performance. References to underlying growth are calculated at constant currencies, and exclude the results of all acquisitions and disposals made in both the year and prior year and assets held for sale. Underlying revenue growth rates also exclude the effects of exhibition cycling. The reconciliations of reported revenue and adjusted operating profit year-on-year are presented below:
Revenue |
Adjusted
operating profit |
|||||||||||||||
£m | % change | £m | % change | |||||||||||||
Year to December 31, 2012 |
6,116 | 1,688 | ||||||||||||||
Underlying growth |
167 | +3 | % | 75 | +5 | % | ||||||||||
Exhibition cycling |
(31 | ) | -1 | % | ||||||||||||
Acquisitions |
69 | +1 | % | 11 | | |||||||||||
Disposals |
(362 | ) | -6 | % | (62 | ) | -4 | % | ||||||||
Currency effects |
76 | +2 | % | 37 | +3 | % | ||||||||||
|
|
|
|
|
|
|
|
|||||||||
Year to December 31, 2013 |
6,035 | -1 | % | 1,749 | +4 | % | ||||||||||
Underlying growth |
171 | +3 | % | 78 | +5 | % | ||||||||||
Exhibition cycling |
30 | +1 | % | |||||||||||||
Acquisitions |
77 | +1 | % | 11 | | |||||||||||
Disposals |
(228 | ) | -4 | % | (2 | ) | | |||||||||
Currency effects |
(312 | ) | -5 | % | (97 | ) | -6 | % | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Year to December 31, 2014 |
5,773 | -4 | % | 1,739 | -1 | % | ||||||||||
|
|
|
|
|
|
|
|
In the commentary following, percentage movements are at actual exchange rates unless otherwise stated. Percentage movements at constant exchange rates are calculated using the average and hedge exchange rates for the previous financial year. Percentage movements at both actual rates and constant rates are shown in tables on page 27. The effect of currency movements on the 2014 results is further described separately below (see Effect of Currency Translation on page 37). References to operating profit relate to operating profit including joint ventures. Adjusted operating margin and underlying growth are defined in the glossary on pages S-1 and S-2.
28
Results of Operations for the Year Ended December 31, 2014
Compared to the Year Ended December 31, 2013
Revenue was £5,773 million (2013: £6,035 million), down 4%. Underlying revenue growth was 3%. At constant currencies, revenue growth was 1%. If exhibition cycling effects had been included underlying revenue growth would have been 4%.
The overall effect of disposals in 2014 was to reduce revenue growth by 4%, partially offset by a 1% contribution from acquisitions. Disposals made throughout 2014 will continue to impact reported revenue and operating profit growth rates in 2015.
The impact of currency movements was to reduce revenue by 5%, principally due to the weakening of the US dollar, on average, against sterling during 2014.
Total operating costs, including the amortisation of acquired intangible assets and acquisition related costs, decreased by 6%, principally reflecting business disposals and currency effects, partly offset by an increase in underlying costs. Actions were taken across our businesses to improve cost efficiency. At constant currencies, total operating costs decreased by 1%.
Underlying operating costs, excluding acquisitions and disposals, were up 3%, reflecting investment in global technology platforms and the launch of new products and services, partly offset by continued process innovation.
Cost of sales were £2,006 million, down 5% compared with 2013, in line with the overall decrease in revenue. Selling and distribution costs were £934 million, down 7%, while administration and other expenses were £1,467 million, down 6%, both principally reflecting the impact of business disposals and currency effects. Except as noted, changes in cost of sales, selling and distribution costs, and administration and other expenses, including changes in individual components thereof, were not material to the operating profit performance of the individual segments.
The amortisation charge in respect of acquired intangible assets, including the share of amortisation in joint ventures, decreased to £286 million (2013: £318 million), reflecting certain assets becoming fully amortised and currency effects. Acquisition related costs were £30 million (2013: £43 million), including a charge for deferred consideration payments required to be expensed under IFRS.
Total operating costs, excluding the amortisation of acquired intangible assets and acquisition related costs, decreased by 6%, principally reflecting business disposals and currency effects. Depreciation and amortisation of internally generated intangible assets decreased to £237 million (2013: £249 million).
The net pension expense, excluding the net pension financing charge, was £95 million (2013: £61 million), including settlement and past service credits of £15 million (2013: £59 million).
Reported operating profit was £1,402 million (2013: £1,376 million).
Total adjusted operating profit was £1,739 million (2013: £1,749 million), down 1%. Underlying adjusted operating profit grew 5%. Acquisitions and disposals had minimal net impact on adjusted operating profit. Currency effects reduced adjusted operating profit by 6%.
The overall adjusted operating margin of 30.1% was 1.1 percentage points higher than in the prior year. This included a 0.9 percentage point benefit to margin from portfolio change and a 0.1 percentage point decrease from currency effects.
Net pre-tax disposal losses were £11 million (2013: £16 million gain), arising largely from the sale of certain Risk & Business Information assets. These losses were increased by a related tax charge of £3 million (2013: £34 million charge).
Net finance costs were lower at £162 million (2013: £196 million), including the pension financing charge of £15 million (2013: £19 million). The reduction primarily reflects the benefit of term debt refinancing at lower rates and currency translation effects.
Profit before tax was £1,229 million (2013: £1,196 million). The tax charge was £269 million (2013: £81 million). In 2013, this included a deferred tax credit of £221 million arising on the alignment of certain business assets with their global management structure. The reported net profit attributable to the parent companies shareholders was £955 million (2013: £1,110 million).
29
Scientific, Technical & Medical
Revenue
% change* |
Adjusted
operating profit % change* |
|||||||
Underlying growth |
+2 | % | +3 | % | ||||
Acquisitions/disposals |
1 | % | 2 | % | ||||
Currency effects |
5 | % | 4 | % | ||||
|
|
|
|
|||||
Total growth |
4 | % | 3 | % | ||||
|
|
|
|
* | Percentage movements in this and similar tables on pages 31 to 36 relate to changes in revenue and adjusted operating profit expressed in sterling. |
Key business trends were positive for the year with underlying revenue growth in research subscriptions. Electronic revenues, which now account for 74% of the total, continued to grow across all segments.
Revenue was £2,048 million (2013: £2,126 million), down 4%. Underlying revenue growth was 2%.
In primary research, article submissions to subscription journals and usage continued to grow in double digits, and journal quality, as measured by relative impact factor, was maintained. Subscription revenue growth was driven by increased volume and new sales.
The volume of author-pays or authors-funder-pays articles continued to grow from a small base. We continued to launch new journals, and now operate over 100 stand-alone author pays open access journals alongside our sponsored article option in over 1,600 subscription journals.
We saw continued growth in databases and tools, as well as in electronic reference and education.
Print book and pharma promotion revenues continued to decline, albeit at a slightly lower rate than in the prior year.
The impact of currency movements was to reduce revenue by 5%. The overall effect of portfolio changes was to reduce revenue by 1%.
Total operating costs, including acquired intangible asset amortisation and acquisition related costs, decreased by 5% to £ 1,364 million, largely reflecting currency movements. Amortisation of acquired intangible assets decreased to £ 79 million (2013: £86 million). Depreciation and amortisation of internally generated intangible assets decreased to £ 94 million (2013: £100 million).
Underlying operating costs, excluding acquired intangible asset amortisation and acquisition related costs, grew by 1%.
Adjusted operating profit was £ 762 million (2013: £787 million), down 3%. Underlying adjusted operating profit grew 3%. The effect of portfolio changes was to reduce adjusted operating profit by 2%. The impact of currency movements was to reduce adjusted operating profit by 4%.
The adjusted operating margin increased by 0.2 percentage points, which included a 0.2 percentage point benefit from currency effects.
Risk & Business Information
Revenue
% change |
Adjusted
operating profit % change |
|||||||
Underlying growth |
+6 | % | +6 | % | ||||
Acquisitions/disposals |
4 | % | 1 | % | ||||
Currency effects |
5 | % | 5 | % | ||||
|
|
|
|
|||||
Total growth |
3 | % | 0 | % | ||||
|
|
|
|
Underlying revenue growth was driven by volume growth, new product roll-outs and expansion in adjacent segments. Underlying adjusted operating profit growth broadly matched underlying revenue growth, reflecting ongoing organic investment initiatives.
Revenue was £ 1,439 million (2013: £1,480 million), down 3%. Underlying revenue growth was 6%.
Growth in the insurance segment was driven by demand for the US auto underwriting business, take up of new products and services across the insurance workflow, and expansion in adjacent market verticals. The businesses continued to expand internationally, with 5% of revenue outside of the US and Europe.
30
In Business Services, growth was driven by demand for identity authentication and fraud detection solutions, particularly in the financial services sector.
In Government, the state & local segment continued to grow. Federal government revenue trends improved during the year.
Major Data Services maintained underlying revenue growth, driven by Accuity, XpertHR, and ICIS, and other magazines & services were stable.
The impact of currency movements was to reduce revenue by 5%.
In 2014 we continued to support organic growth through the acquisition of data and analytics assets. In 2014 we completed the acquisition of Innovata, a provider of airline schedule data, Tracesmart, a provider of UK public records, Wunelli, a provider of telematics solutions for the auto industry, FircoSoft, a provider of anti-money laundering solutions for the financial services industry, and Health Market Science, supplier of data on health care professionals.
We also exited assets that no longer fit our strategy, including the disposal of several magazines and the spin-off of certain construction industry assets. The overall effect of portfolio changes was to reduce revenue by 4%.
Total operating costs, including acquired intangible asset amortisation and acquisition related costs, decreased by 4% to £ 1,062 million principally reflecting currency effects and the impact of disposals. The amortisation charge in respect of acquired intangible assets decreased to £ 116 million (2013: £128 million), reflecting certain assets becoming fully amortised and currency effects.
Underlying operating costs, excluding acquired intangible asset amortisation and acquisition related costs, grew 6%, reflecting continued investment in new product development.
Adjusted operating profit was £ 506 million (2013: £507 million), flat on prior year. Underlying adjusted operating profit grew 6%. The effect of portfolio changes was to reduce adjusted operating profit by 1%. The impact of currency movements was to reduce adjusted operating by profit by 5%.
The adjusted operating margin increased by 0.9 percentage points, principally driven by portfolio changes.
Legal
Revenue
% change |
Adjusted
operating profit % change |
|||||||
Underlying growth |
+1 | % | +6 | % | ||||
Acquisitions/disposals |
7 | % | +4 | % | ||||
Currency effects |
5 | % | 6 | % | ||||
|
|
|
|
|||||
Total growth |
11 | % | +4 | % | ||||
|
|
|
|
Underlying revenue trends remained unchanged in 2014, with subdued market conditions in the US and Europe limiting overall revenue growth. The improvement in profitability reflects a combination of process innovation, infrastructure decommissioning, and portfolio reshaping.
Revenue was £1,396 million (2013: £1,567 million), down 11%. Underlying revenue growth was 1%. US and European markets remained stable but subdued. In other international markets we continued to see growth, with 11% of revenues outside of the US and Europe.
Portfolio changes reduced revenue by 7%. The impact of currency movements was to reduce revenue by 5%. Electronic revenues, which now account for 77% of the total, saw continued growth, partially offset by print declines.
The roll out of new platform releases continued in 2014, and adoption and usage rates for new products and solutions have continued to progress well.
Total operating costs, including acquired intangible asset amortisation and acquisition related costs, decreased by 14% to £ 1,223 million principally reflecting currency effects and the impact of disposals. The amortisation charge in respect of acquired intangible assets amounted to £ 57 million (2013: £64 million). Acquisition related costs reduced to £ 17 million (2013: £22 million) including a charge for deferred consideration required to be expensed under IFRS. Depreciation and amortisation of internally generated intangible assets decreased to £ 94 million (2013: £101 million).
Underlying operating costs, excluding acquired intangible asset amortisation and acquisition related costs, were flat year on year.
31
Adjusted operating profit was £ 260 million (2013: £250 million), up 4%. Underlying adjusted operating profit grew 6%. The effect of portfolio changes was to increase adjusted operating profit by 4%. The impact of currency movements was to reduce adjusted operating profit by 6%.
Organic process innovation, infrastructure decommissioning and portfolio changes contributed to a 2.6 percentage point improvement in the adjusted operating profit margin during 2014.
Exhibitions
Revenue
% change |
Adjusted
operating profit % change |
|||||||
Underlying growth (excluding cycling) |
+7 | % | ||||||
Cycling effects |
+2 | % | ||||||
|
|
|
|
|||||
Underlying growth (adjusted for cycling) |
+9 | % | +9 | % | ||||
Acquisitions/disposals |
+2 | % | +3 | % | ||||
Currency effects |
-8 | % | -9 | % | ||||
|
|
|
|
|||||
Total growth |
+3 | % | +3 | % | ||||
|
|
|
|
Exhibitions achieved another year of underlying revenue and adjusted operating profit growth, and continued to actively pursue growth opportunities through new launches and small acquisitions.
Revenue was £ 890 million (2013: £862 million), up 3%. Underlying revenue growth was 7%. Had the effects of cycling been included, underlying revenue growth would have been two percentage points higher.
Portfolio changes increased revenue by 2%. Currency movements reduced revenue by 8%.
The US and Japan achieved underlying revenue growth. In the US, growth reflected demand across our broad portfolio of leading events. Strong growth in Japan was driven by new launches and demand across our major events.
Europe saw modest growth overall. Domestic markets remained subdued, but international events in the UK and France achieved growth.
China continued to see strong growth in certain sectors, and moderate growth elsewhere. Revenues in Brazil reflected growth in some of our leading events, but a slowdown in the wider economy. Most other markets continued to grow.
In 2014 we launched 36 new events and completed several small acquisitions and joint venture investments, primarily in high growth geographies and sectors. In total, 37% of revenues were outside of the US and Europe.
Total operating costs, including acquired intangible asset amortisation and acquisition related costs, were £ 716 million, up 2%. The amortisation charge in respect of acquired intangible assets fell to £ 34 million (2013: £40 million).
Underlying operating costs, excluding acquired intangible asset amortisation and acquisition related costs, grew 6%, slightly below revenue, reflecting the increase in activity.
Adjusted operating profit was £ 217 million (2013: £210 million), up 3%. Underlying adjusted operating profit grew 9%. The effect of portfolio changes was to increase adjusted operating profit by 3%. The impact of currency movements was to reduce adjusted operating profit by 9%.
The adjusted operating margin was flat year on year.
32
Results of Operations for the Year Ended December 31, 2013
Compared to the Year Ended December 31, 2012
In 2012 and 2013, Risk Solutions and Business Information operated as separate business areas. Accordingly, financial information has been presented separately.
In 2014, following a review of activities, assets and costs across the business, we introduced a new method for the allocation of corporate and shared costs from January 1, 2014. Previously unallocated items and costs relating to shared activities and resources have been attributed to the business segments on the basis of usage and benefits derived. This new allocation reflects an increased level of shared resources and capitalised costs. Adjusted operating profit and operating profit figures for 2013 and 2012 have been restated as if this allocation method had been used in the prior years.
Revenue was £6,035 million (2012: £6,116 million), down 1%. Underlying revenue growth was 3%. Had the effects of exhibition cycling been included, underlying revenue growth would have been 2%.
The overall effect of disposals in 2013 was to reduce revenue by 6%, partially offset by a 1% increase from acquisitions. There have been disposals in each of our businesses, but the effect is most significant in Risk Solutions, where we sold the pre-employment screening business, in Business Information where we made a number of disposals, and in Legal where Martindale-Hubbell, the US lawyer directory business, was spun out into a joint venture. Disposals made throughout 2013 will continue to impact reported revenue and operating profit growth rates in 2014.
The impact of currency movements was to increase revenue by 2%, principally due to the strengthening of the US dollar, on average, against sterling during 2013.
Total operating costs, including the amortisation of acquired intangible assets and acquisition related costs, decreased by 2%, principally reflecting business disposals.
Cost of sales were £2,118 million, down 1% compared with 2012, in line with the overall decrease in revenue. Selling and distribution costs were £1,005 million, also down 1%. Administration and other expenses were £1,565 million, down 5%, principally reflecting the impact of business disposals. Except as noted, changes in cost of sales, selling and distribution costs, and administration and other expenses, including changes in individual components thereof, were not material to the operating profit performance of the individual segments.
The amortisation charge in respect of acquired intangible assets, including the share of amortisation in joint ventures, was £318 million (2012: £329 million). Acquisition related costs were £43 million (2012: £21 million), including a charge for deferred consideration payments required to be expensed under IFRS.
Total operating costs, excluding the amortisation of acquired intangible assets and acquisition related costs, decreased by 3%, reflecting business disposals.
Depreciation and amortisation of internally generated intangible assets increased to £249 million (2012: £227 million), while actions were taken across our businesses, especially Legal, to improve cost efficiency.
The net pension expense, excluding the net pension financing charge, was £61 million (2012: £89 million), including settlement and past service credits of £59 million (2012: £20 million), mainly arising from benefits changes in the US, which will reduce future costs for our US businesses.
Underlying operating costs, excluding acquisitions and disposals, were up 2%, reflecting investment in global technology platforms and launching of new products and services, partly offset by continued process improvements.
Reported operating profit was £1,376 million (2012: £1,333 million).
Total adjusted operating profit was £1,749 million (2012: £1,688 million), up 4%. Underlying adjusted operating profit grew 5%. The impact of disposals was to reduce adjusted operating profit by 4%. Currency effects increased adjusted operating profit by 3%.
The overall adjusted operating margin of 29.0% was 1.4 percentage points higher than in the prior year. This included a 0.5 percentage point benefit to margin from portfolio change and a 0.3 percentage point benefit from currency effects.
Net pre-tax disposal gains were £16 million (2012: £45 million), arising from a gain on the sale of Risk Solutions pre-employment screening business, offset by a net loss on other disposals. These were offset by a related tax charge of £34 million (2012: £58 million credit).
Net finance costs were lower at £196 million (2012: £227 million), including the pension financing charge of £19 million (2012: £11 million). The reduction primarily reflects the benefit of term debt refinancing at lower rates.
Profit before tax was £1,196 million (2012: £1,151 million). The tax charge was £81 million (2012: £102 million). This included a deferred tax credit of £221 million arising on the alignment of certain business assets with their global management
33
structure. The reported net profit attributable to the parent companies shareholders was £1,110 million (2012: £1,044 million).
Scientific, Technical & Medical
Revenue*
% change |
Adjusted*
operating profit % change |
|||||||
Underlying growth |
+2 | % | +3 | % | ||||
Acquisitions/disposals |
-1 | % | -1 | % | ||||
Currency effects |
+2 | % | +4 | % | ||||
|
|
|
|
|||||
Total growth |
+3 | % | +6 | % | ||||
|
|
|
|
The Scientific, Technical & Medical business achieved volume growth in primary research submissions and usage, and in databases & tools, across the scientific, technical & medical segments. Electronic revenue, which now accounts for 72% of the total, grew across all segments. Print book sales and pharma promotion continued to decline.
Revenue was £2,126 million (2012: £2,063 million), up 3%. Underlying revenue growth was 2%.
In primary research, growth in article submissions and usage remained strong across the scientific, technical and medical segments, and journal quality, as measured by Impact Factor, continued to improve. Revenue growth was driven by solid subscription renewals and new sales. Author-pays or authors-funder-pays article volumes continued to grow from a small base. Good growth in scientific databases & tools and electronic clinical solutions was also supported by new sales.
Print book sales and pharma promotion continued to decline reflecting a combination of format migration and structural changes in the pharmaceutical industry.
Portfolio development continued in 2013. Disposals included Elsevier Business Intelligence and a number of small print and pharma focused assets. We supported our organic growth strategy with small targeted acquisitions, including Mendeley, an online reference management and collaboration solution. The overall effect of portfolio changes was to reduce revenue by 1%.
The impact of currency movements was to increase revenue by 2%.
Total operating costs, including acquired intangible asset amortisation and acquisition related costs, increased by 2% to £1,433 million. Amortisation of acquired intangible assets increased to £86 million (2012: £78 million). Depreciation and amortisation of internally generated intangible assets increased to £100 million (2012: £87 million).
Underlying operating costs, excluding acquired intangible asset amortisation and acquisition related costs, grew by 1%.
Adjusted operating profit was £787 million (2012: £743 million), up 6%. Underlying adjusted operating profit grew 3%. The effect of portfolio changes was to reduce adjusted operating profit by 1%. The impact of currency movements was to increase adjusted operating profit by 4%.
The adjusted operating margin increased by 1.0 percentage points, which included a 0.6 percentage point benefit from currency effects.
Risk Solutions
Revenue
% change |
Adjusted
operating profit % change |
|||||||
Underlying growth |
+8 | % | +8 | % | ||||
Acquisitions/disposals |
-9 | % | -4 | % | ||||
Currency effects |
+2 | % | +2 | % | ||||
|
|
|
|
|||||
Total growth |
+1 | % | +6 | % | ||||
|
|
|
|
All business segments achieved growth in 2013. The improvement in adjusted operating margin largely reflects the impact of portfolio changes, as underlying operating cost growth was in line with underlying revenue growth, reflecting continued new product development.
34
Revenue was £933 million (2012: £926 million), up 1%. Underlying revenue growth was 8%.
The 2013 results reflect the impact of portfolio changes, including the disposal of the pre-employment screening business, and some small acquisitions. Taken together, these portfolio changes had the effect of reducing revenue by 9%.
The impact of currency movements was to increase revenue by 2%.
Revenue growth in the insurance segment was driven by good take up of new products and services across the insurance workflow, expansion into adjacent market verticals, and volume growth in the core underwriting business. The expansion into international markets is progressing well, although the absolute revenue contribution remains small relative to Risk Solutions overall.
Business Services growth reflected strong demand for identity authentication and fraud detection solutions across markets. The US mortgage refinancing market did slow down in the second half as expected, but the impact of this was largely offset by continued good growth elsewhere.
New product sales drove strong growth in government revenue for the year, somewhat tempered by a slowdown in federal markets in the fourth quarter.
Total operating costs, including acquired intangible asset amortisation and acquisition related costs, decreased by 4% to £634 million. The amortisation charge in respect of acquired intangible assets decreased to £97 million (2012: £109 million), reflecting business disposals.
Underlying operating costs, excluding acquired intangible asset amortisation and acquisition related costs, grew 8% reflecting continued investment in new product development.
Adjusted operating profit was £401 million (2012: £380 million), up 6%. Underlying adjusted operating profit grew 8%. The effect of portfolio changes was to reduce adjusted operating profit by 4%. The impact of currency movements was to increase adjusted operating by profit by 2%.
The adjusted operating margin increased by 2.1 percentage points, principally driven by portfolio changes.
Business Information
Revenue
% change |
Adjusted
operating profit % change |
|||||||
Underlying growth |
+4 | % | +14 | % | ||||
Acquisitions/disposals |
-23 | % | -25 | % | ||||
Currency effects |
+2 | % | +1 | % | ||||
|
|
|
|
|||||
Total growth |
-17 | % | -10 | % | ||||
|
|
|
|
Underlying revenue growth accelerated in 2013 reflecting continued good growth in data services and modest growth elsewhere. Focus on process innovation drove a further improvement in adjusted operating profit margin.
Revenue was £547 million (2012: £663 million), down 17%. Underlying revenue growth was 4%.
Major Data Services, which now accounts for over 50% of continuing portfolio revenue, achieved strong growth in 2013 driven by Accuity, ICIS and XpertHR.
Leading Brands and Other Business Magazines & Services achieved modest growth, despite weak print advertising markets, with solid results from data solutions and the agricultural segments.
In 2013 we continued to exit from businesses that no longer fit our strategy, with disposals during the period including RBI Australia, Italy, and France. Since the beginning of 2014 we have also divested BuyerZone in the Marketing Solutions segment. Portfolio changes reduced revenue by 23%.
The impact of currency movements was to increase revenue by 2%.
Since bringing the management structure of Reed Business Information and Risk Solutions more closely together at the end of 2012 we have made good initial progress on leveraging Risk Solutions strength in data, analytics and technology across Reed Business Informations broader geographic footprint.
Total operating costs, including acquired intangible asset amortisation and acquisition related costs, decreased by 19% to £477 million. This included a £36 million reduction in cost of sales, a £36 million reduction in selling and distribution costs
35
and a £38 million reduction in administration and other expenses, each reflecting business disposals. The amortisation charge in respect of acquired intangible assets decreased to £31 million (2012: £37 million).
Underlying operating costs, excluding acquired intangible asset amortisation and acquisition related costs, grew by 1%.
Adjusted operating profit was £106 million (2012: £118 million), down 10%. Underlying adjusted operating profit grew 14%. The effect of portfolio changes was to reduce adjusted operating profit by 25%. The impact of currency movements was to increase adjusted operating profit by 1%.
The adjusted operating margin increased by 1.5 percentage points, the result of the continued organic transformation of the business.
Legal
Revenue
% change |
Adjusted
operating profit % change |
|||||||
Underlying growth |
+1 | % | +5 | % | ||||
Acquisitions/disposals |
-5 | % | -4 | % | ||||
Currency effects |
+1 | % | +1 | % | ||||
|
|
|
|
|||||
Total growth |
-3 | % | +2 | % | ||||
|
|
|
|
Positive underlying revenue growth was maintained in 2013 despite subdued market conditions in the US and Europe. Electronic revenue continued to show good growth, largely offset by print declines.
Revenue was £1,567 million (2012: £1,610 million), down 3%. Underlying revenue growth was 1%.
In the US and in our major European markets, conditions remained subdued, with growth in online solutions largely offset by continued print declines. Other international markets achieved good growth.
The roll out of new product releases continued, with 73% of US legal customers activated on the New Lexis platform at period end, and new product usage progressing well.
The 2013 results reflect the impact of portfolio reshaping over the last 18 months, including the disposal of the US document retrieval and filing business in late 2012 and other small print assets early in 2013. In the second half of 2013 LexisNexis Martindale-Hubbell, the US lawyer directory, was spun out into a joint venture with Internet Brands, a broad-based internet marketing firm.
Portfolio changes reduced revenue by 5%. The impact of currency movements was to increase revenue by 1%.
Total operating costs, including acquired intangible asset amortisation and acquisition related costs, decreased by 2% to £1,406 million. The amortisation charge in respect of acquired intangible assets amounted to £64 million (2012: £73 million). Acquisition related costs increased to £22 million (2012: £4 million) including a charge for certain deferred consideration required to be expensed under IFRS. Depreciation and amortisation of internally generated intangible assets increased to £101 million (2012: £85 million), offset by actions taken to improve cost efficiency.
Underlying operating costs, excluding acquired intangible asset amortisation and acquisition related costs, were flat year on year.
Adjusted operating profit was £250 million (2012: £244 million), up 2%. Underlying adjusted operating profit grew 5%. The effect of portfolio changes was to reduce adjusted operating profit by 4%. The impact of currency movements was to increase adjusted operating profit by 1%.
Ongoing process innovation and some initial decommissioning of old infrastructure more than offset inflation and higher depreciation, contributing to a 0.7 percentage point improvement in the adjusted operating profit margin during 2013.
Exhibitions
Revenue
% change |
Adjusted
operating profit % change |
|||||||
Underlying growth (excluding cycling) |
+7 | % | ||||||
Cycling effects |
-5 | % | ||||||
|
|
|
|
|||||
Underlying growth (adjusted for cycling) |
+2 | % | +4 | % | ||||
Acquisitions/disposals |
0 | % | 0 | % | ||||
Currency effects |
-1 | % | -3 | % | ||||
|
|
|
|
|||||
Total growth |
+1 | % | +1 | % | ||||
|
|
|
|
36
In 2013 Exhibitions maintained strong underlying revenue growth. While growth in Europe was modest, the US, Japan, Brazil and other markets all grew well.
Revenue was £862 million (2012: £854 million), up 1%. Underlying revenue growth was 7%. Had the effects of cycling been included, underlying revenue growth would have been 2%.
The US and Japan achieved strong revenue growth for the year. US shows reported good growth in visitor numbers, and growth in Japan was supported by leadership of the alternative energy sector and new launches. Brazil and China continued to generate strong growth.
In Europe good growth in international events more than offset softness in some domestic continental European events, resulting in modest overall growth.
In 2013 we launched 37 new events, primarily in high-growth geographies and sectors, including the highly successful launch of World Travel Market Latin America, building on a global franchise.
We undertook a number of portfolio changes during the year, with acquisitions including Expo Ferretera in Mexico, IPSA in Russia, Travelweek Sao Paulo in Brazil and Capsule in the US. Disposals include a number of Spanish events as well as some smaller events across geographies.
Portfolio changes had no overall effect on revenue growth during 2013. Currency movements reduced revenue by 1%.
The impact of exhibition cycling has steadily been reduced from 10% in 2011 through 8% in 2012, to 5% in 2013.
Total operating costs, including acquired intangible asset amortisation and acquisition related costs, were £704 million, up 3%. The amortisation charge in respect of acquired intangible assets increased to £40 million (2012: £32 million) as a result of acquisitions completed in 2013 and 2012.
Underlying operating costs, excluding acquired intangible asset amortisation and acquisition related costs, grew 1%, slightly below revenue.
Adjusted operating profit was £210 million (2012: £208 million), up 1%. Underlying adjusted operating profit grew 4%. Portfolio changes had no overall impact on adjusted operating profit growth during 2013. The impact of currency movements was to reduce adjusted operating profit by 3%.
The adjusted operating margin increased by 0.1 percentage points.
Critical Accounting Policies
The accounting policies of the combined businesses under IFRS as issued by the IASB and as adopted by the EU are described in note 2 to the combined financial statements. The most critical accounting policies and estimates used in determining the financial condition and results of the combined businesses, and those requiring the most subjective or complex judgments, relate to the valuation of goodwill and acquired intangible assets, capitalisation of development spend, pensions and taxation.
The Audit Committees of Reed Elsevier PLC, Reed Elsevier NV and RELX Group plc have reviewed the development and selection of critical accounting estimates, and the disclosure of critical accounting policies in the financial statements.
Effect of Currency Translation
The combined financial statements are expressed in sterling and are therefore subject to the impact of movements in exchange rates on the translation of the financial information of individual businesses whose operational currencies are other than sterling. The principal exposures in relation to the results reported in sterling are to the US dollar and the euro, reflecting our business exposure to the United States and the euro zone, its most important markets. Some of these exposures are offset by denominating borrowings in US dollars.
Individual businesses are subject to foreign exchange transaction exposures caused by the effect of exchange rate movements on their revenue and operating costs, to the extent that such revenue and costs are not denominated in their functional currencies. Individual businesses generally hedge their exposures at market rates with the centralised treasury department within ERF. Hedging of foreign exchange transaction exposure is the only hedging activity undertaken by the individual businesses. For further details see note 18 to the combined financial statements.
Currency differences reduced the Groups revenue by £312 million in 2014 compared to 2013. Excluding amortisation of acquired intangible assets of £286 million and acquisition related costs of £30 million, currency differences reduced operating profits by £97 million in 2014 compared to 2013. Acquired intangible asset amortisation and acquisition related costs are
37
predominantly denominated in US dollars and, after these charges, currency differences reduced operating profits by £70 million in 2014 compared to 2013. Borrowings are predominantly denominated in US dollars and, after charging net finance costs, currency differences reduced profit before tax by £78 million in 2014 compared to 2013.
Recently Issued Accounting Pronouncements
Recently Issued Accounting Pronouncements are set out in note 2 to the combined financial statements.
38
LIQUIDITY AND CAPITAL RESOURCES THE GROUP
Cash Flow
The Groups cash generated from operations in 2014 amounted to £1,851 million (2013: £1,943 million; 2012: £1,847 million). Included in these net cash inflows are cash outflows of £27 million (2013: £40 million; 2012: £62 million) relating to acquisition related costs and exceptional restructuring costs incurred in prior years. A substantial proportion of revenue is received through subscription and similar advanced receipts, principally for scientific and medical journals and exhibition fees. At December 31, 2014 subscriptions and other revenues received in advance totalled £1,453 million (2013: £1,403 million; 2012: £1,394 million).
The Groups cash outflow on the purchase of property, plant and equipment in 2014 was £67 million (2013: £57 million; 2012: £70 million), while proceeds from the sale of property, plant and equipment amounted to £10 million (2013: £6 million; 2012: £7 million). The cash outflow on internally developed intangible assets in 2014 was £203 million (2013: £251 million; 2012: £263 million), reflecting sustained investment in new products and related infrastructure, particularly in the Legal business.
Net cash proceeds from disposals amounted to £53 million, after related separation and transaction costs, and working capital and other adjustments in respect of prior year transactions.
During 2014, the Group paid a total of £396 million (2013: £221 million; 2012: £316 million) for acquisitions, including deferred consideration of £34 million (2013: £21 million; 2012: £30 million) on past acquisitions and after taking account of net cash acquired of £9 million (2013: £14 million; 2012: £12 million). A further £6 million (2013: £10 million; 2012: £7 million) was paid on the purchase of investments during the year. During 2014, the Group paid tax of £348 million (2013: £362 million; 2012: £216 million).
Share repurchases by the parent companies in 2014 were £600 million (2013: £600 million; 2012: £250 million), with a further £100 million repurchased in 2015 as at February 25, 2015. On February 26, 2015, Reed Elsevier PLC and Reed Elsevier NV announced their intention to repurchase further ordinary shares up to the value of £400 million in aggregate over the remainder of 2015. The Employee Benefit Trust purchased shares in the parent companies totalling £39 million (2013: nil; 2012: nil). Proceeds from the exercise of share options were £ 45 million (2013: £125 million; 2012: £48 million).
During 2014, the Group paid ordinary dividends totalling £565 million to the shareholders of the parent companies (2013: £549 million; 2012: £521 million). Dividend payments are funded by the operating cash flow of the business after capital spend.
Debt
Net borrowings, a key indebtedness measure used in assessing the Groups financial position, at December 31, 2014 were £3,550 million (2013: £3,072 million; 2012: £3,127 million), comprising gross borrowings of £3,825 million, and £ 1 million of related derivative financial instrument liabilities, less cash and cash equivalents of £276 million. Excluding currency effects, net borrowings increased by £ 399 million.
Net borrowings are reconciled as follows:
2014 | 2013 | 2012 | ||||||||||
£m | £m | £m | ||||||||||
Cash & cash equivalents |
276 | 132 | 641 | |||||||||
Borrowings |
(3,825 | ) | (3,281 | ) | (3,892 | ) | ||||||
Related derivative financial instruments |
(1 | ) | 77 | 124 | ||||||||
|
|
|
|
|
|
|||||||
Net borrowings |
(3,550 | ) | (3,072 | ) | (3,127 | ) | ||||||
|
|
|
|
|
|
Liquidity
In June 2014, the first of two one year extension options was exercised on the $2.0 billion committed bank facility, taking the maturity to July 2019. This back-up facility provides security of funding for short-term debt. At December 31, 2014, this facility was undrawn.
In May 2014, 350 million of euro denominated floating rate term debt was issued with a maturity of three years, and swapped to $480 million on issue. In August 2014, £300 million of sterling denominated fixed rate term debt was issued with a maturity of five years and a coupon of 2.75%. In December 2014, $20 million of US term debt maturing in January 2019 was purchased in the open market.
The Group has ample liquidity and access to debt capital markets, providing the ability to repay or refinance borrowings as they mature.
39
The contractual obligations of the Group relating to debt finance and operating leases at December 31, 2014 analysed by when payments are due, are summarised below.
Total |
Less than
1 year |
1-3 years | 3-5 years |
After
5 years |
||||||||||||||||
(in millions) | ||||||||||||||||||||
Short term debt (1)(2) |
£679 | £ | 679 | £ | | £ | | £ | | |||||||||||
Long term debt (including finance leases) (2) |
3,976 | 135 | 1,246 | 962 | 1,633 | |||||||||||||||
Operating leases |
523 | 96 | 157 | 121 | 149 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total |
£ | 5,178 | £ | 910 | £ | 1,403 | £ | 1,083 | £ | 1,782 | ||||||||||
|
|
|
|
|
|
|
|
|
|
(1) | Short term debt primarily comprises term debt issues maturing within one year and commercial paper, and is supported by a $2,000 million committed bank facility maturing in July 2019 and by the central management of cash and cash equivalents. At December 31, 2014 the committed bank facility was undrawn. |
(2) | Short and long term debt obligations comprise undiscounted principal and interest cash flows. Interest cash flows are calculated by reference to the contractual payment dates and the fixed interest rates (for fixed rate debt) or the relevant forecast interest rates (for floating rate debt). |
Information on retirement benefit obligations is set out in note 6 to the combined financial statements.
Off-Balance Sheet Arrangements
Save as disclosed above under Contractual Obligations, we have no off-balance sheet arrangements that currently have or are reasonably likely to have a material effect on the combined businesses financial condition, results of operations, liquidity, capital expenditure or capital resources.
Treasury policies
The main treasury risks faced by the Group are liquidity risk, interest rate risk, foreign currency risk and credit risk. The Boards of Reed Elsevier PLC and Reed Elsevier NV agree overall policy guidelines for managing each of these risks and the Boards of RELX Group plc and Elsevier Finance SA agree policies (in line with parent company guidelines) for their respective business and treasury centres. A summary of these policies is provided in note 18 to the financial statements on pages F-37 to F-44. Financial instruments are used to finance our businesses and to hedge transactions. Our businesses do not enter into speculative transactions.
Capital and liquidity management
The capital structure is managed to support our objective of maximising long-term shareholder value through appropriate security of funding, ready access to debt and capital markets, cost effective borrowing and flexibility to fund business and acquisition opportunities while maintaining appropriate leverage to ensure an efficient capital structure.
Over the long-term, we seek to maintain cash flow conversion of 90% or higher and credit metrics that are consistent with a solid investment grade credit rating. The typical credit metrics are net debt to EBITDA, on a pensions and lease adjusted and on an unadjusted basis, and free cash flow as percentage of net debt. Adjusted EBITDA is derived from net profit as follows:
2014 | 2013 | 2012 | ||||||||||
(in millions) | (in millions) | (in millions) | ||||||||||
Net profit for the year |
£ 960 | £1,115 | £1,049 | |||||||||
Adjustments: |
||||||||||||
Taxation |
269 | 81 | 102 | |||||||||
Disposals and other non operating items |
11 | (16 | ) | (45 | ) | |||||||
Net finance costs |
162 | 196 | 227 | |||||||||
Amortisation of acquired intangible assets |
286 | 318 | 329 | |||||||||
Depreciation and other amortisation |
237 | 249 | 227 | |||||||||
Acquisition related costs |
30 | 43 | 21 | |||||||||
Reclassification of tax in joint ventures |
21 | 12 | 5 | |||||||||
|
|
|
|
|
|
|||||||
Adjusted EBITDA |
£ 1,976 | £1,998 | £1,915 | |||||||||
|
|
|
|
|
|
40
Our uses of free cash flow over the longer-term balance the dividend policy, selective acquisitions and share repurchases, while retaining the balance sheet strength to maintain access to cost effective sources of borrowing.
Further detail on our capital and liquidity management is provided on page F-37.
The main treasury centres operate commercial paper programmes to provide flexibility for funding operational requirements of the combined businesses on a daily basis, at short notice and at competitive rates. Commercial paper is issued under both US and Euro programmes and guaranteed by Reed Elsevier PLC and Reed Elsevier NV. In addition, short-term borrowing facilities are established with local banks to support the daily requirements of businesses operating in certain countries where there may be restrictions on borrowing from affiliates. Term debt comprises borrowings with an original maturity of greater than one year and which mature within 12 months of the reporting date. These short-term borrowings were backed up at December 31, 2014 by a $2.0 billion committed bank facility maturing in July 2019 which was undrawn. The short-term borrowing programmes are run in conjunction with term debt programmes which comprise the majority of our debt and provide the combined businesses with security of funding.
The average amount and the average interest rate during the year have been calculated by taking the average of the amounts outstanding at each month end (translated to sterling at the respective month end rate) and the average of the interest rate applicable at each month end. Commercial paper issuance reached a maximum month end level of £747 million in September 2014, and short-term loans and overdrafts reached a maximum month end level of £103 million in January 2014, both as a result of movements in trading cash flows. Term debt reached a maximum month end level of £351 million in February 2014 as the maturities of the term debt issues of CHF 350 million and $186.5 million, expiring in May 2014 and February 2015 respectively, both then fell below 12 months.
Short-term borrowings as at
December 31, |
2014
£m |
2014
Weighted average interest rate % |
2013
£m |
2013
Weighted average interest rate % |
2012
£m |
2012
Weighted average interest rate % |
||||||||||||||||||
Commercial paper |
465 | 0.3 | 229 | 0.3 | 118 | 0.2 | ||||||||||||||||||
Short term loans and overdrafts |
84 | 0.8 | 58 | 1.3 | 13 | 1.5 | ||||||||||||||||||
Finance leases |
7 | 2.2 | 9 | 2.1 | 7 | 2.5 | ||||||||||||||||||
Term debt |
120 | 5.2 | 352 | 2.0 | 592 | 3.7 | ||||||||||||||||||
|
|
|
|
|
|
|||||||||||||||||||
Total short term borrowings |
676 | 648 | 730 | |||||||||||||||||||||
|
|
|
|
|
|
Average short-term borrowings
during the year ended December 31, |
2014
£m |
2014
Weighted average interest rate % |
2013
£m |
2013
Weighted average interest rate % |
2012
£m |
2012
Weighted average interest rate % |
||||||||||||||||||
Commercial paper |
600 | 0.3 | 333 | 0.2 | 547 | 0.5 | ||||||||||||||||||
Short term loans and overdrafts |
51 | 1.4 | 71 | 1.3 | 22 | 8.9 | ||||||||||||||||||
Finance leases |
4 | 2.3 | 8 | 2.3 | 5 | 2.7 | ||||||||||||||||||
Term debt |
183 | 3.2 | 725 | 4.7 | 469 | 3.7 |
Maximum month end short-term borrowings |
2014
£m |
2013
£m |
2012
£m |
|||||||||
Commercial paper |
747 | 486 | 756 | |||||||||
Short term loans and overdrafts |
103 | 230 | 27 | |||||||||
Finance leases |
7 | 9 | 7 | |||||||||
Term debt |
351 | 1,050 | 643 |
41
OPERATING RESULTS REED ELSEVIER PLC AND REED ELSEVIER NV
The following discussion is based on the financial statements of Reed Elsevier PLC and Reed Elsevier NV for the three years ended December 31, 2014, 2013 and 2012. The results of Reed Elsevier PLC reflect its shareholders 52.9% economic interest in the combined businesses. The results of Reed Elsevier NV reflect its shareholders 50% economic interest in the combined businesses. The respective economic interests of the Reed Elsevier PLC and Reed Elsevier NV shareholders take account of Reed Elsevier PLCs 5.8% indirect interest in Reed Elsevier NV. Both parent companies equity account for their respective share in the Groups combined businesses.
Results of Operations for the Year Ended December 31, 2014
Compared to the Year Ended December 31, 2013
The earnings per share of Reed Elsevier PLC and Reed Elsevier NV were 43.0p and 0.85 respectively in 2014, compared to 48.8p and 0.91 in 2013. The reductions reflect the impact of deferred tax credits in 2013 on both companies.
Dividends to Reed Elsevier PLC and Reed Elsevier NV shareholders are, other than in special circumstances, equalised at the gross level, including the benefit of the UK attributable tax credit of 10% available to certain Reed Elsevier PLC shareholders.
Ordinary dividends paid in the year, in amounts per ordinary share, comprise: a 2013 final dividend of 17.95p and 2014 interim dividend of 7.00p giving a total of 24.95p (2013: 23.65p) for Reed Elsevier PLC; and a 2013 final dividend of 0.374 and 2014 interim dividend of 0.151 giving a total of 0.525 (2013: 0.469) for Reed Elsevier NV.
The Board of Reed Elsevier PLC has proposed a 2014 final dividend of 19.0p, up 6%, giving a total dividend of 26.0p in respect of the financial year, up 6% on 2013. The Board of Reed Elsevier NV, in accordance with the dividend equalisation arrangements, have proposed a 2014 final dividend of 0.438, up 16%, which results in a total dividend of 0.589 in respect of the financial year, up 16% on 2013. The difference in growth rates in the equalised final dividends reflects changes in the euro:sterling exchange rate since the respective prior year dividend announcement dates.
During 2014, 35,251,501 Reed Elsevier PLC shares and 20,403,351 Reed Elsevier NV shares were repurchased. A further 757,781 Reed Elsevier PLC shares and 1,989,279 Reed Elsevier NV shares were purchased by the Employee Benefit Trust. Reed Elsevier NV also repurchased 107,901 Reed Elsevier NV R shares (equivalent to 1,079,010 ordinary shares) from a subsidiary of Reed Elsevier PLC. During December 2014, 65,000,000 Reed Elsevier PLC shares and 40,000,000 Reed Elsevier NV shares held in treasury were cancelled. As at December 31, 2014, shares in issue for Reed Elsevier PLC and Reed Elsevier NV respectively, net of shares held in treasury, amounted to 1,127,666,342 and 690,905,759 (including R share equivalents). A further 4,815,950 Reed Elsevier PLC shares and 2,787,800 Reed Elsevier NV shares have been repurchased in January and February 2015.
Results of Operations for the Year Ended December 31, 2013
Compared to the Year Ended December 31, 2012
The earnings per share of Reed Elsevier PLC and Reed Elsevier NV were 48.8p and 0.91 respectively in 2013, compared to 44.8p and 0.87 in 2012. The increase reflects the improved trading performance and deferred tax credits.
Dividends to Reed Elsevier PLC and Reed Elsevier NV shareholders are, other than in special circumstances, equalised at the gross level, including the benefit of the UK attributable tax credit of 10% available to certain Reed Elsevier PLC shareholders.
Ordinary dividends paid in the year, in amounts per ordinary share, comprise: a 2012 final dividend of 17.0p and 2013 interim dividend of 6.65p giving a total of 23.65p (2012: 21.9p) for Reed Elsevier PLC; and a 2012 final dividend of 0.337 and 2013 interim dividend of 0.132 giving a total of 0.469 (2012: 0.456) for Reed Elsevier NV.
The Board of Reed Elsevier PLC has proposed a 2013 final dividend of 17.95p, up 6%, giving a total dividend of 24.60p in respect of the financial year, up 7% on 2012. The Board of Reed Elsevier NV, in accordance with the dividend equalisation arrangements, have proposed a 2013 final dividend of 0.374, up 11%, which results in a total dividend of 0.506 in respect of the financial year, up 8% on 2012. The difference in growth rates in the equalised final dividends reflects changes in the euro:sterling exchange rate since the respective prior year dividend announcement dates.
During 2013, 41,961,920 Reed Elsevier PLC ordinary shares and 24,282,106 Reed Elsevier NV ordinary shares were repurchased for consideration of £600 million. Reed Elsevier NV also repurchased 94,053 Reed Elsevier NV R shares (equivalent to 940,530 ordinary shares) from a subsidiary of Reed Elsevier PLC. These shares are held in treasury.
42
Trends, uncertainties and events which can affect the revenue, operating profit and liquidity and capital resources of the combined businesses include the usage, penetration and customer renewal of our print and electronic products and the prices that customers pay for our products, the migration of products to online services, investment in new products and services, cost control and the impact of our cost reduction programmes on operational efficiency, the levels of academic library funding, the impact of economic conditions on corporate and other customer budgets and the level of advertising demand, the actions of competitors and regulatory and legislative developments.
Trends, uncertainties and events which could have a material impact on our revenue, operating profit and liquidity and capital resources are discussed in further detail in Item 3: Key Information Risk Factors; Item 4: Information on the Group; and Item 5: Operating and Financial Review and Prospects Operating Results The Group; Liquidity and Capital Resources The Group; Operating Results Reed Elsevier PLC and Reed Elsevier NV.
43
ITEM 6: DIRECTORS, SENIOR MANAGEMENT AND EMPLOYEES
The Directors of each of Reed Elsevier PLC, Reed Elsevier NV and RELX Group plc as at February 25, 2015 were:
Name (Age) |
Reed Elsevier PLC |
Reed Elsevier NV |
RELX Group plc |
|||
Erik Engstrom (51) |
Executive Director and Chief Executive Officer | Executive Director and Chief Executive Officer | Executive Director and Chief Executive Officer | |||
Anthony Habgood (68) |
Non-Executive Chairman (3)(4) | Non-Executive Chairman (3)(4) | Non-Executive Chairman (2) | |||
Wolfhart Hauser (65) |
Non-Executive Director (4) | Non-Executive Director (4) | Non-Executive Director (2) | |||
Adrian Hennah (57) |
Non-Executive Director (1)(4) | Non-Executive Director (1)(4) | Non-Executive Director (1) | |||
Lisa Hook (56) |
Non-Executive Director (3)(4)(5) | Non-Executive Director (3)(4) | Non-Executive Director (2) | |||
Marike van Lier Lels (55) |
| Non-Executive Director (4) | | |||
Nick Luff (47) |
Executive Director and Chief Financial Officer | Executive Director and Chief Financial Officer | Executive Director and Chief Financial Officer | |||
Robert Polet (59) |
Non-Executive Director (4) | Non-Executive Director (4) | Non-Executive Director (2) | |||
Linda Sanford (62) |
Non-Executive Director (1)(4) | Non-Executive Director (1)(4) | Non-Executive Director (1) | |||
Ben van der Veer (63) |
Non-Executive Director (1)(3)(4) | Non-Executive Director (1)(3)(4) | Non-Executive Director (1) |
(1) | Member of the Audit Committees of the Boards of Reed Elsevier PLC, Reed Elsevier NV and RELX Group plc. |
(2) | Member of the Remuneration Committee of the Board of RELX Group plc. |
(3) | Member of the joint Nominations Committee of the Boards of Reed Elsevier PLC and Reed Elsevier NV. |
(4) | Member of the joint Corporate Governance Committee of the Boards of Reed Elsevier PLC and Reed Elsevier NV. |
(5) | Senior Independent Director, as defined by the UK Corporate Governance Code in the United Kingdom. |
Duncan Palmer stepped down as Chief Financial Officer and retired from the Groups Boards in September 2014.
A person described as a Non-Executive Director of Reed Elsevier PLC, Reed Elsevier NV or RELX Group plc is a Director not employed by such company in an executive capacity.
Erik Engstrom (Swedish) Chief Executive Officer since 2009. Joined the Group as Chief Executive Officer of Elsevier in 2004. Non-Executive Director of Smith & Nephew plc. Prior to joining the Group was a partner at General Atlantic Partners. Before that was President and Chief Operating Officer of Random House Inc and, before its merger with Random House, President and Chief Executive Officer of Bantam Doubleday Dell, North America. Began his career as a consultant with McKinsey. Served as a Non-Executive Director of Eniro AB and Svenska Cellulosa Aktiebolaget SCA. Holds a BSc from Stockholm School of Economics, an MSc from the Royal Institute of Technology in Stockholm, and gained an MBA from Harvard Business School as a Fulbright Scholar.
Anthony Habgood (British) Chairman since 2009. Chairman of the Nominations and Corporate Governance Committees. Chairman of: Court of the Bank of England, Preqin Holding Limited and Norwich Research Partners LLP. Previously was Chairman of Whitbread plc, Bunzl plc and of Mölnlycke Health Care Limited and served as Chief Executive of Bunzl plc, Chief Executive of Tootal Group plc and a Director of The Boston Consulting Group. Formerly Non-Executive Director of Geest plc, Marks and Spencer plc, National Westminster Bank plc, Powergen plc, SVG Capital plc and Norfolk and Norwich University Hospitals Trust. Holds an MA in Economics from Cambridge University and an MS in Industrial Administration from Carnegie Mellon University. He is a visiting Fellow at Oxford University.
44
Wolfhart Hauser (German) Non-Executive Director since 2013. Chairman of the Remuneration Committee. Chief Executive Officer of Intertek Group plc and a Non-Executive Director of Associated British Foods plc. Was Chairman of Dragenopharm GmbH & Co AG from 2002 to 2006. Prior to that he was Chief Executive Officer of TÜV Suddeutschland AG between 1998 and 2002 and Chief Executive Officer of TÜV Product Services GmbH for 10 years. Served as a Non-Executive Director of Logica Plc and Intertek Group plc before his current position at the company.
Adrian Hennah (British) Non-Executive Director since 2011. Chief Financial Officer of Reckitt Benckiser Group plc and Non-Executive Director of Indivior PLC. Was Chief Financial Officer of Smith & Nephew plc from 2006 to 2012. Before that was Chief Financial Officer of Invensys plc having previously held various senior finance and management positions within GlaxoSmithKline for 18 years.
Lisa Hook (American) Non-Executive Director since 2006. Senior Independent Director. President and Chief Executive Officer of Neustar, Inc and a Director of Vantiv, Inc and Island Press serves on the US Presidents National Security Telecommunications Advisory Committee (NSTAC) and as a member of the Advisory Board of the Peggy Guggenheim Collection. Was President and Chief Executive Officer at Sun Rocket Inc. Before that was President of AOL Broadband, Premium and Developer Services. Prior to joining AOL, was a founding partner at Brera Capital Partners LLC. Previously Chief Operating Officer of Time Warner Telecommunications and has served as senior advisor to the Federal Communications Commission Chairman and a senior counsel to Viacom Cable. Formerly a Director of Covad Communications, Inc and The Ocean Foundation.
Marike van Lier Lels (Dutch) Non-Executive Director of Reed Elsevier NV since 2010. Member of the Supervisory Boards of TKH Group NV, Eneco Holding NV and Royal Imtech NV, and a member of the executive committee of Aegon Association. A member of various Dutch governmental advisory boards. Previously was a member of the Supervisory Board of Maersk BV, KPN NV, USG People NV and Executive Vice President and Chief Operating Officer of the Schiphol Group. Prior to joining Schiphol Group, was a member of the Executive Board of Deutsche Post Euro Express and held various senior positions with Nedlloyd.
Nick Luff (British) Chief Financial Officer since September 2014. Non-Executive Director of Lloyds Banking Group plc. Prior to joining the Group was Group Finance Director of Centrica plc from 2007. Before that he was Chief Financial Officer at The Peninsular & Oriental Steam Navigation Company (P&O) and its affiliated companies, having previously held a number of senior finance roles at P&O. Began his career as an accountant with KPMG. Formerly a Non-Executive Director of QinetiQ Group plc. He has a degree in Mathematics from Oxford University and is a qualified UK Chartered Accountant.
Robert Polet (Dutch) Non-Executive Director since 2007. Chairman of Safilo Group S.p.A., Chairman of the Supervisory Board of Rituals Cosmetics BV and a Non-Executive Director of Philip Morris International Inc, William Grant & Sons Limited, Scotch and Soda NV and Crown Topco Limited, parent company of Vertu. Was President and Chief Executive Officer of Gucci Group from 2004 to 2011, having previously spent 26 years at Unilever working in a variety of marketing and senior executive positions throughout the world, including President of Unilevers Worldwide Ice Cream and Frozen Foods division. Formerly a member of the Supervisory Board of Nyenrode Foundation and a Non-Executive Director of Wilderness Holdings Limited.
Linda Sanford (American) Non-Executive Director since 2012. An independent Director of Consolidated Edison, Inc. Serves on the boards of directors of The Business Council of New York State and the Partnership for New York City. Also serves on the boards of trustees of the State University of New York, St. Johns University, Rensselaer Polytechnic Institute and the New York Hall of Science. Was Senior Vice President, Enterprise Transformation, IBM Corporation until December 2014, having joined the company in 1975. Formerly a Non-Executive Director of ITT Corporation.
Ben van der Veer (Dutch) Non-Executive Director since 2009. Chairman of the Audit Committees. Member of the Supervisory Boards of Aegon NV, TomTom NV, Koninklijke FrieslandCampina NV and Royal Imtech NV. Was Chairman of the Executive Board of KPMG in the Netherlands and a member of the management committee of the KPMG International board until his retirement in 2008, having joined KPMG in 1976. Formerly a member of the Supervisory Board of Siemens Nederland NV.
45
SENIOR MANAGEMENT
The executive officers of Reed Elsevier PLC, Reed Elsevier NV and RELX Group plc, other than Directors, at February 25, 2015 were:
Henry Udow : Chief Legal Officer and Company Secretary of Reed Elsevier PLC and RELX Group plc. A US and British citizen who is admitted to the Bar of New York State. Joined the Group in April 2011. Prior to joining the Group he was Chief Legal Officer and Company Secretary of Cadbury plc.
Ian Fraser: Human Resources Director of RELX Group plc. Joined the Group in 2005. Prior to joining the Group, he was Human Resources Director at BHP Billiton plc and, before that, held senior positions in human resources at Charter plc and Woolworths plc.
Jans van der Woude: Company Secretary and Legal Counsel of Reed Elsevier NV. A Dutch lawyer. Prior to joining the Group in 2009 was legal advisor to Corporate Express NV. Before that was Corporate Legal Director of TNT NV, having previously been General Counsel at Getronics NV.
The remuneration policy as approved by Reed Elsevier PLC shareholders at the 2014 Annual General Meeting continues to apply unchanged. A copy is available on the Group website under http://www.relxgroup.com/go/remunerationpolicy or on pages 47 to 56 of the 2013 Annual Report on Form 20-F.
Annual Remuneration Report
Single Total Figure of Remuneration Executive Directors
(a) | (b) | (c) | (d) | (e) | (f) | (g) | (h) | (i) | ||||||||||||||||||||||||||||||||||||||
Short-term employee
benefits |
Share-based
awards |
Pension | Total | |||||||||||||||||||||||||||||||||||||||||||
£000 |
Salary | Benefits 5 |
Annual
Incentive |
UK
statutory basis 1,2,4,7 |
Dutch
Civil Code basis 3 |
UK
statutory basis 2 |
Dutch
Civil Code basis 3 |
UK
statutory basis 1 ,2 |
Dutch
Civil Code basis 3 |
|||||||||||||||||||||||||||||||||||||
Erik Engstrom |
2014 | 1,104 | 29 | 1,170 | 13,181 | 3,943 | 692 | 562 | 16,176 | 6,808 | ||||||||||||||||||||||||||||||||||||
2013 | 1,077 | 28 | 1,134 | 2,472 | 3,300 | 719 | 528 | 5,430 | 6,067 | |||||||||||||||||||||||||||||||||||||
Nick Luff 6 |
2014 | 217 | 5 | 685 | 1,371 | 1,341 | 65 | 65 | 2,343 | 2,313 | ||||||||||||||||||||||||||||||||||||
Duncan Palmer |
2014 | 442 | 202 | 0 | 0 | 0 | 84 | 84 | 728 | 728 | ||||||||||||||||||||||||||||||||||||
2013 | 600 | 230 | 609 | 0 | 598 | 114 | 114 | 1,553 | 2,151 |
1. | The 2014 figure includes the vesting of the second and final tranche of the discontinued REGP. |
2. | UK statutory basis (columns (d), (f) and (h)): These figures are calculated in accordance with the methodology set out in the Large and Medium-sized Companies and Groups (Accounts and Reports) (Amendment) Regulations 2013 (the UK Regulations). They include, for performance related share-based awards, the value attributable to share price appreciation since the date the award was granted. In the case of the CEOs figures, the amount included that relates to share price appreciation is £1.5m for 2013 and £7.6m for 2014. |
3. | Dutch Civil Code basis (columns (e), (g) and (i)): These figures comply with the requirements of the Dutch Civil Code. The figures for share-based awards comprise the multi-year incentive charges in accordance with IFRS2 Share-Based Payment. These IFRS2 charges do not reflect the actual value received on vesting. The figures for pensions reflect the cost of pension provision which comprises (i) for defined benefit schemes, the transfer value of the increase in accrued pension during the year (net of inflation, Directors contributions and participation fee) based on the factors and basis applicable prior to the introduction of the new UK statutory basis in 2013 and (ii) for defined contribution schemes, payments made to the scheme or to the Executive Director in lieu of pension. |
4. | Share-based awards for Erik Engstrom (columns (d) and (e)): The figure for 2013 in column (d) was based on an estimate and has been restated in this Annual Report on Form 20-F to reflect the amount vested and the share prices and foreign exchange rates on the vesting dates of the 2011-13 cycle of BIP and ESOS. The vesting percentages under these plans were determined on February 28, 2014 and were in line with those disclosed on page 58 in the 2013 Annual Report on Form 20-F. Using the share prices and exchange rates on the vesting dates increased the 2013 disclosed figure by £5,651 (from £2,466,655 to £2,472,306). The 2014 figures reflect the vesting of the matching shares under the final tranche of the REGP measured over the 2010-14 period and the 2012-14 cycle of BIP and ESOS, both measured over the 2012-14 period. As the REGP matching shares and BIP vested after the approval date of the Annual Report on Form 20-F and ESOS vests in May 2015, the average share prices and foreign exchange rates for the last quarter of 2014 have been used to arrive at an estimated figure under the UK statutory basis in respect of these awards. The amount attributable to the vesting of the final tranche of the REGP in the UK statutory basis 2014 share-based awards figure is £9m. The share-based awards figure includes the dividend equivalent payments paid out in cash in 2015 on the REGP matching shares and the BIP. The proportion of the value of the CEOs share-based awards under the UK statutory basis that relates to share price appreciation between the dates of grant and vesting is 59% (or £1.5m) for 2013 and 57% (or £7.6m) for 2014 using, as required, the average share prices for the last quarter of 2014. |
46
5. | Benefits: Each Executive Director receives a car allowance, private medical/dental insurance and the Group meets the cost of tax return preparation. In respect of Duncan Palmer, the figure also includes a cash adjustment payment of £162,906 that was contractually due to him on termination relating to the pro-rated restricted share award released to him and legal expenses of £2,760 met by the Group in connection with his loss of office arrangement. Following his termination date, although not reflected in the 2014 figure, he received a cash payment of £75,117, representing dividend equivalents on his pro-rated restricted shares granted in 2012. All payments are in accordance with policy as disclosed on pages 53 to 55 of the 2013 Annual Report on Form 20-F. The 2013 benefits figure for Duncan Palmer included estimated amounts in respect of the relocation benefits and has been restated in this Annual Report on Form 20-F to reflect actuals. This reduced the 2013 benefits figure previously reported by £1,768 (from £231,668 to £229,900). |
6. | Nick Luff receives an annual base salary of £650,000, benefits as per note 5 and a 30% of salary cash allowance in lieu of pension. He participates in the annual incentive plan (AIP) and is eligible for annual multi-year incentive grants in accordance with the policy approved by shareholders at the 2014 Annual General Meetings of Reed Elsevier PLC. |
7. | Exchange rates used for share-based awards: The exchange rates used to convert share-based awards to pounds sterling are (i) for the UK statutory basis, those that applied at the vesting dates or, if vesting has not occurred at the time of sign off of this Report, the average exchange rates for the last quarter of 2014, (ii) for dividend equivalents, the exchange rates at the time of payment and (iii) for estimated dividend equivalents in respect of awards for which vesting has not occurred at the time of sign off of this Report and which are yet to be paid, the average exchange rates for the last quarter of 2014. |
8. | Total remuneration for Directors: This is set out in note 29 to the combined financial statements on page F-51. |
47
2014 Annual Incentive
Set out below is a summary of performance against each financial measure and the resulting annual incentive payments for 2014 (payable in March 2015):
Performance
|
Relative
weighting |
Achievement versus target |
Payout as %
Erik Engstrom |
Payout as %
Nick Luff |
||||
Revenue |
30% | Underlying revenue growth of 3% was at target, reflecting good growth in electronic and face to face revenues in a mixed macroeconomic environment. | Close to 30% | Close to 30% | ||||
Adjusted profit after tax |
30% | Total adjusted profit after tax grew by 7% in constant currency, just above target, reflecting a combination of underlying revenue growth and continued process innovation. | Just above 30% | Just above 30% | ||||
Cash flow conversion rate |
10% | Cash flow conversion of 96% was just above target, reflecting strong profits and the cash flow impact from continued capital expenditure to enable continued investment in technology and new products and services. | Just above 10% | Just above 10% | ||||
Key Performance Objectives (KPOs) |
30% | |||||||
Erik Engstrom (six KPOs) |
The first and second KPOs, related to business profile evolution through organic development and selective acquisitions and disposals, were achieved. The third KPO, related to the development of the corporate structure and the global functions, was achieved. The fourth and fifth KPOs, related to specific strategic initiatives across business areas and select priorities within each business, including technology and product development milestones, were achieved. The sixth KPO was to complete the actions listed in the 2013 corporate responsibility report and meet the quantified targets in the report. This KPO was almost fully met as set out on pages 40 to 47 of the corporate responsibility report in the RELX Group Annual Reports and Financial Statements 2014. |
Close to 30% | ||||||
Nick Luff (six KPOs) |
The first KPO related to 2014 final results and reporting. It was achieved. The second KPO related to achieving specific operating plan and financial milestones for the Group. It was achieved. The third and fourth KPOs related to specific deliverables for the finance function. They were essentially fully achieved. The fifth KPO related to the development of the corporate structure. It was achieved. The sixth KPO was to complete the actions listed in the 2013 corporate responsibility report and meet the quantified targets in the report. This KPO was almost fully met as set out on pages 40 to 47 of the corporate responsibility report in the RELX Group Annual Reports and Financial Statements 2014. |
Close to 30% | ||||||
106.0%* | 105.4%* | |||||||
£1,169,766 | £684,938** |
48
* | The maximum annual incentive opportunity is 150% of base salary. |
** | Nick Luff joined the Group on September 1, 2014. The terms of his service agreement, which he signed on January 6, 2014, provided that his full year 2014 annual incentive would be reduced on a pound for pound basis by the amount of any annual incentive payment received from his previous employer in respect of services rendered during 2014. No such payment was received from his previous employer. |
The Board believes that disclosing details beyond what is disclosed above would be commercially sensitive and would give competitors an unfair insight into our strategic direction and annual execution plans.
Multi-year incentives
Multi-year incentives with a performance period ended December 31, 2014 were for Erik Engstrom BIP 2012, ESOS 2012 and the final tranche of the REGP and for Nick Luff a performance share award granted as part compensation for forfeited entitlements from previous employment.
The Committee assessed the performance measures for these awards and made an overall assessment of underlying business performance and other relevant factors. The vesting outcome resulting from this review is summarised below.
Discontinued REGP: Final tranche performance outcome
Performance measure |
Weighting |
Performance range
and vesting levels set at grant 1 |
Achievement against the
|
Resulting
vesting percentage |
||||||
TSR measured over five years 2010-2014 |
1/3rd |
below median
median upper quartile |
0%
30% 100% |
In upper quartile of FTSE and European comparator groups; close to upper quartile in US comparator group | 99.7% | |||||
Average growth in adjusted EPS in 2013 and 2014 2 |
1/3rd |
below 7% p.a.
7% p.a. 13% p.a. or above |
0%
60% 100% |
8.5% p.a. |
70.0% |
|||||
ROIC in 2014 2 |
1/3rd | below 10.7% | 0% | |||||||
10.7% | 60% | 12.1% | 88.2% | |||||||
12.7% or above | 100% | |||||||||
Total vesting percentage: |
86.0% |
1. | Calculated on a straight-line basis for performance between the minimum and maximum levels. |
2. | The calculation methodology for EPS and ROIC is set out in the 2010 Notices of Annual General Meetings, which can be found on our website. |
BIP: 2012-14 cycle performance outcome
Performance measure |
Weighting |
Performance range
and vesting levels set at grant 1 |
Achievement
against the performance range |
Resulting
vesting percentage |
||||||||
Average growth in adjusted EPS over the three-year performance period 2 |
50% |
below 4% p.a.
4% p.a. |
0%
50% |
|||||||||
6.5% p.a. | 75% | 8.4% p.a. | 93.7% | |||||||||
9% p.a. or
above |
100% | |||||||||||
ROIC in the third year of the performance period 2 |
50% |
below 11%
11% |
0%
50% |
|||||||||
11.5% | 75% | |||||||||||
12% or above | 100% | 13.0% | 100% | |||||||||
Total vesting percentage: |
96.8% |
1. | Calculated on a straight-line basis for performance between the minimum and maximum levels. |
2. | The calculation methodology for EPS and ROIC is set out in the 2010 Notices of Annual General Meetings, which can be found on our website. |
49
ESOS: 2012-14 cycle performance outcome
Nick Luff: PSP award to compensate for forfeited entitlements from previous employment with performance period ended December 31, 2014
Performance measure |
Weighting |
Performance range
and vesting levels set at grant |
Achievement
against the performance range |
Resulting
vesting percentage |
||||||
Average growth in adjusted EPS in 2013 and 2014 |
2/3 rd s | below 7% p.a. | 0% | 8.5% p.a. | 100% | |||||
7% p.a. or above | 100% | |||||||||
ROIC in 2014 |
1/3 rd | below 10.7% | 0% | 12.1% | 100% | |||||
10.7% or above | 100% | |||||||||
Total vesting percentage: |
100% |
Single Total Figure of Remuneration Non-Executive Directors
Total fee | Benefits 1 | Total | ||||||||||||||||||||||
2014 | 2013 | 2014 | 2013 | 2014 | 2013 | |||||||||||||||||||
Anthony Habgood |
£ | 550,000 | £ | 550,000 | £ | 2,150 | £ | 1,900 | £ | 552,150 | £ | 551,900 | ||||||||||||
Wolfhart Hauser (from April 25, 2013) |
£ | 90,000 | £ | 65,058 | £ | 720 | £ | 90,720 | £ | 65,058 | ||||||||||||||
Adrian Hennah |
£ | 77,500 | £ | 65,000 | £ | 720 | £ | 500 | £ | 78,220 | £ | 65,500 | ||||||||||||
Lisa Hook |
£ | 110,000 | £ | 80,462 | £ | 1,230 | £ | 1,000 | £ | 111,230 | £ | 81,462 | ||||||||||||
Marike van Lier Lels 2 |
£ | 56,671 | £ | 55,085 | £ | 56,671 | £ | 55,085 | ||||||||||||||||
Robert Polet |
£ | 77,500 | £ | 65,000 | £ | 1,230 | £ | 500 | £ | 78,730 | £ | 65,500 | ||||||||||||
Linda Sanford |
£ | 77,500 | £ | 65,000 | £ | 1,230 | £ | 1,000 | £ | 78,730 | £ | 66,000 | ||||||||||||
Ben van der Veer 2 |
£ | 95,968 | £ | 93,220 | £ | 510 | £ | 500 | £ | 96,478 | £ | 93,720 |
1. | Benefits comprise the notional benefit of tax filing support provided to Non-Executive Directors for filings outside their home country resulting from their directorships with the Group. The incremental assessable benefit charge per tax return has been agreed for 2014 to amount to £510 for a UK tax return and £720 for a Netherlands tax return. Anthony Habgoods benefits also include £1,430 (£1,400 in 2013) in respect of private medical insurance. |
2. | The fees for Marike van Lier Lels and Ben van der Veer were paid in euros and were 70,272 and 119,000 respectively for 2014. For reporting purposes these were converted into pounds sterling at the average exchange rate for 2014. The 2013 figures were converted into pounds sterling at the average exchange rate for 2013. |
3. | The total remuneration for Directors is set out in note 29 to the combined financial statements on page F-51. |
50
2014 Non-Executive Directors fees
The fees in the Single Total Figure table for Non-Executive Directors reflect the following fees in 2014:
Annual fee
2014 |
Annual fee
2013 |
|||||||
Chairman |
£ | 550,000 | £ | 550,000 | ||||
Non-Executive Directors* |
£ | 65,000/80,000 | £ | 65,000/80,000 | ||||
Senior Independent Director |
£ | 25,000 | £ | 20,000 | ||||
Chairman of: |
||||||||
Audit Committee |
£ | 25,000/30,000 | £ | 25,000/30,000 | ||||
Remuneration Committee |
£ | 25,000 | £ | 20,000 | ||||
Committee membership fee: |
||||||||
Audit Committee |
£ | 12,500 | ||||||
Remuneration Committee |
£ | 12,500 | ||||||
Nominations Committee |
£ | 7,500/9,000 |
* | An annual fee of 65,000 is paid to Marike van Lier Lels in respect of her membership of the Reed Elsevier NV Board and reflects her time commitment to that company. Since July 22, 2014, she chaired the board of Elsevier Reed Finance BV for which an annual fee of 10,000 is payable. |
Total pension entitlements
Erik Engstrom is a member of the UK Groups defined benefit pension arrangements. Further details are provided in the Policy Report on page 48 of the 2013 Annual Report on Form 20-F and below.
Pension Standard information
Age at December 2014 |
Normal retirement age |
Directors contributions |
Participation fee | |||
51 |
60 | £11,216 | £23,962 |
Since October 2013, the CEO pays a participation fee on the amount of his base salary which exceeds the UK earnings cap. Starting with an initial rate of 1%, on April 1, 2014 the fee increased to 3%, and each April 1, thereafter this fee will increase by a further 2% of base salary which exceeds the UK earnings cap.
Pension UK statutory basis
Accrued annual pension at
|
Accrued annual pension at
|
Single figure pensions value |
||
£227,360 |
£263,704 | £691,702 1 |
Pension Dutch Civil Code basis (consistent with prior disclosure)
Increase in accrued pension during
|
Transfer value
2
at 31.12.14 of increase in accrued pension
|
|
£36,344 |
£561,989 |
1. | Net of Directors contribution and participation fee. |
2. | The transfer value represents a liability in respect of Directors pension entitlements, and is not an amount paid or payable to the Director calculated using the factors and basis applicable prior to the introduction of the UK statutory basis in 2013. |
51
Scheme interests awarded during the financial year
CURRENT MULTI-YEAR INCENTIVE PLANS
Basis on which award
|
Face value
of award at grant 1 |
Value of
awards if vest in line with expectations 2 |
Percentage of
maximum that would
|
End of
performance period |
||||||||||||
BIP matching share awards | ||||||||||||||||
Erik Engstrom |
Opportunity to invest cash and/or shares up to value of target bonus opportunity and receive 1 for 1 matching award | £ | 1,076,856 | £ | 721,493 | If one measure pays out at threshold, the overall payout is 25%. If both measures pay out at threshold, the overall payout is 50%. |
|
December 31,
2016 |
|
|||||||
Nick Luff |
£ | 649,992 | £ | 435,495 | ||||||||||||
LTIP performance share awards | ||||||||||||||||
Erik Engstrom |
250% of salary | £ | 2,692,223 | £ | 1,346,111 | If the measure with the lowest payout at threshold pays out at threshold, the overall payout is 3%. If each measure pays out at threshold, the overall payout is 32%. |
|
December 31,
2016 |
|
|||||||
Nick Luff |
200% of salary | £ | 1,299,988 | £ | 649,994 | |||||||||||
ESOS market value options | ||||||||||||||||
Erik Engstrom |
250% of salary | £ | 2,692,223 | £ | 430,756 | 33% | December 31, | |||||||||
Nick Luff |
200% of salary | £ | 1,299,988 | £ | 207,998 | 2016 |
ONE-OFF MULTI-YEAR INCENTIVE PLAN AWARDS TO COMPENSATE FOR FORFEITED ENTITLEMENTS FROM PREVIOUS EMPLOYMENT
Basis on which award
|
Face value
of award at grant 1 |
Value of
awards if vest in line with expectations 2 |
Percentage of
maximum that would
|
End of
performance period |
||||||||||||
Performance share awards 4 |
|
|||||||||||||||
Nick Luff |
200% of salary | £ | 1,299,988 | £ | 1,299,988 | If the measure with the lowest payout at threshold pays out at threshold, the overall payout is 33%. If each measure pays out at threshold, the overall payout is 100%. |
|
December 31,
2014 |
|
|||||||
200% of salary | £ | 1,299,988 | £ | 649,994 | If the measure with the lowest payout at threshold pays out at threshold, the overall payout is 3%. If each measure pays out at threshold, the overall payout is 32%. |
|
December 31,
2015 |
|
1. |
The face value of the LTIP and ESOS awards is calculated using (1) the middle market quotation of PLC ordinary shares; (2) the closing price of NV ordinary shares; and (3) the exchange rate on the day before grant. In respect of grants made to Erik Engstrom on April 7, 2014, (1) was £9.245 and (2) was 15.82. In respect of Nick Luff, who joined the Group on September 1, 2014, and whose grants were made on September 2, 2014, (1) was £9.90 and (2) was 17.50. These share prices are used to determine the number of awards granted, as well as to set option exercise prices. The face value of the ESOS options shown in this column has not been reduced to reflect the fact that the aggregate option price is payable on exercise. The face value of the BIP awards is calculated using the average price of participants investment shares purchased by the trustee. In respect of the matching award to Erik Engstrom on April 7, 2014, who |
52
invested in NV ADRs, the price per NV ADR was $42.951. In respect of the matching award to Nick Luff on September 2, 2014, who invested in PLC and NV ordinary shares, the price per PLC ordinary share was £9.96 and the price per NV ordinary share was 17.614. The face values for BIP and LTIP do not take into account the dividend equivalents relating to those awards. |
2. | For BIP, LTIP and ESOS, vesting in line with expectations is as per the performance scenario chart disclosed on page 52 of the 2013 Annual Report on Form 20-F, i.e. 67% for BIP, 50% for LTIP and 80% for ESOS. For options vesting in line with expectations, a valuation factor of 20% of the face value of the award at grant has been applied. Vesting in line with expectations for the performance share awards granted to Nick Luff, assumes, in respect of the award with a performance period ended December 31, 2014, that the thresholds for EPS and ROIC are met which results in 100% vesting. In respect of the award with the performance period ending December 31, 2015, which mirrors the performance conditions applicable to the 2013 LTIP award, vesting in line with expectations is 50%. |
3. | Threshold payout levels for each measure have been included. Where there are multiple measures, it is possible to achieve threshold, and hence payout, in respect of just one of the measures (or, for TSR, in respect of one of the three TSR comparator groups). The performance measures and targets for awards granted in 2014 under each of the plans and for the performance share awards granted to Nick Luff are set out on pages 54 and 55. |
4. | The performance share awards granted to Nick Luff on September 2, 2014 were essential to facilitate his recruitment and were disclosed in the notices of the 2014 annual general meetings of Reed Elsevier PLC and Reed Elsevier NV. The awards were split evenly between ordinary shares in Reed Elsevier PLC and Reed Elsevier NV. The awards of Reed Elsevier PLC ordinary shares fall within paragraph 9.4.2(2)R of the UK Listing Rules and the awards of Reed Elsevier NV ordinary shares were approved by shareholders at the Annual General Shareholders Meeting of Reed Elsevier NV on April 23, 2014. The awards are not pensionable and lapse on resignation or dismissal for cause (although in the case of a resignation, if an award has already vested and the date of resignation is within two years of Mr Luff joining the Group, then time pro-ration clawback provisions will apply to such award). In all other circumstances of termination, the share awards will vest subject to performance at the end of the applicable performance period with pro-ration for service applied, except in the case of a company initiated termination in which event the award will not be pro-rated. |
The following targets and vesting scales apply to awards granted in 2014:
BIP: 2014-16 cycle
Match earned on personal investment |
Average growth in adjusted EPS
|
ROIC in the third year of the
|
||
0% |
below 4% p.a. | below 11.6% | ||
50% |
4% p.a. | 11.6% | ||
75% |
6.5% p.a. | 12.1% | ||
100% |
9% p.a. or above | 12.6% or above |
* | EPS and ROIC have equal weighting and straight-line vesting applies to performance between the points. |
LTIP: 2014-16 cycle
Vesting is dependent on three separate performance measures of equal weighting: a TSR measure comprising three comparator groups, an EPS measure and a ROIC measure. 1
Vesting percentage of each third of
|
TSR ranking within the relevant TSR
comparator group |
|
0% |
Below median | |
30% |
Median | |
100% |
Upper quartile |
1. | The calculation methodology for TSR, EPS and ROIC is set out in the 2013 Notices of Annual General Meetings, which can be found on our website. |
2. | Vesting is on a straight-line basis for performance between the minimum and maximum levels. |
The three TSR comparator groups (Sterling, Euro and US Dollar) reflect the fact that we access equity capital markets through three exchanges London, Amsterdam and New York in three currency zones. The Groups TSR performance is measured separately against each comparator group and each ranking achieved will produce a payout, if any, in respect of one-third of the TSR measure. The proportion of the TSR measure that vests will be the sum of the three payouts.
53
Each comparator group comprises approximately 40 companies. The companies for the 2014-16 LTIP cycle were selected on the following basis (unchanged from 2013-15):
(a) | they were in a relevant market index or are the largest listed companies on the relevant exchanges at the end of the year before the start of the performance period: the FTSE 100 for the Sterling group; AEX, Euronext and the Frankfurt Stock Exchange for the Euro group; and the S&P 500 for the US Dollar group; |
(b) | certain companies were then excluded: |
|
those with mainly domestic revenues (as they do not reflect the global nature of the Groups customer base); |
|
those engaged in extractive industries (as they are exposed to commodity cycles); and |
|
financial services companies (as they have a different risk/reward profile). |
(c) | the remaining companies were then ranked by market capitalisation and, for each comparator group, the 20 companies above and below the Group were taken; |
(d) | relevant listed global peers operating in businesses similar to ours but not otherwise included were added. |
Vesting percentage of EPS and ROIC tranches* |
Average growth in adjusted
EPS over the three-year performance period |
ROIC in the third
|
||||
0% |
below 5% p.a. | below 11.6% | ||||
33% |
5% p.a. | 11.6% | ||||
52.5% |
6% p.a. | 11.85% | ||||
65% |
7% p.a. | 12.1% | ||||
75% |
8% p.a. | 12.35% | ||||
85% |
9% p.a. | 12.6% | ||||
92.5% |
10% p.a. | 12.85% | ||||
100% |
11% p.a. or above | 13.1% or above |
* | Vesting is on a straight-line basis for performance between the stated average adjusted EPS growth/ROIC percentages. |
ESOS: 2014-2016 cycle
Proportion of the award vesting |
Average growth in adjusted EPS
over the three-year performance period* |
|||
0% |
below 4% p.a. | |||
33% |
4% p.a. | |||
80% |
6% p.a. | |||
100% |
8% p.a. or above |
* | Vesting is on a straight-line basis for performance between the stated average adjusted EPS growth percentages. |
PSP awards granted to Nick Luff as compensation for forfeited entitlements from previous employment
PSP: Performance period ended December 31, 2014
Vesting percentage |
Average growth in adjusted EPS
|
ROIC in 2014* |
||||
0% |
below 7% p.a. | below 10.7% | ||||
100% |
7% p.a. or above | 10.7% or above |
* |
2/3 rds of the award is subject to EPS and 1/3 rd subject to ROIC performance. |
54
PSP: Performance period ending December 31, 2015
Vesting is dependent on three separate performance measures of equal weighting: a TSR measure (comprising three comparator groups as set out in the 2013 Notices of Annual General Meetings), an EPS measure and a ROIC measure. 1
Vesting percentage of each third of the TSR tranche 2 |
TSR ranking within the relevant TSR comparator group |
|||
0% |
Below median | |||
30% |
Median | |||
100% |
Upper quartile |
1. | The calculation methodology for TSR, EPS and ROIC is the same as applies to the LTIP award granted to Erik Engstrom in 2013. |
2. | Vesting is on a straight-line basis for performance between the minimum and maximum levels. |
Vesting percentage of EPS and ROIC tranches* |
Average growth in adjusted
|
ROIC in the third
|
||||
0% |
below 5% p.a. | below 11.2% | ||||
33% |
5% p.a. | 11.2% | ||||
52.5% |
6% p.a. | 11.45% | ||||
65% |
7% p.a. | 11.7% | ||||
75% |
8% p.a. | 11.95% | ||||
85% |
9% p.a. | 12.2% | ||||
92.5% |
10% p.a. | 12.45% | ||||
100% |
11% p.a. or above | 12.7% or above |
* | Vesting is on a straight-line basis for performance between the stated average adjusted EPS growth/ROIC percentages. |
External appointments
The Committee believes that the experience gained by allowing Executive Directors to serve as Non-Executive Directors on the boards of other organisations is of benefit to the Group. Accordingly, Executive Directors may, subject to the approval of the Chairman and the CEO (or the Chairman only in the case of the CEO), serve as non-executive directors on the boards of up to two non-associated companies (of which only one may be a major company) and they may retain remuneration arising from such appointments.
Nick Luff is a Non-Executive Director of Lloyds Banking Group plc and received fees of £45,000 since his appointment as a director of the Group up to the end of 2014. Duncan Palmer is a Non-Executive Director of Oshkosh Corporation and received fees of £44,773 and 2,500 shares of Oshkosh common stock during the year up to the date of termination of his employment with the Group (£63,141 in 2013).
Payments to past Directors and payments for loss of office
There have been no payments to past Directors or payments for loss of office in 2014 other than those included in the Single Total Figure table and the notes thereto.
55
Statement of Directors shareholdings and other share interests
Shareholding requirement
The Committee believes that a closer alignment of interests can be created between senior management and shareholders if executives build and maintain a significant personal stake in the company. The shareholding requirements applicable to the Executive Directors are set out in the table below. Shares that count for this purpose are any type of Reed Elsevier PLC or Reed Elsevier NV security owned outright by the individual and their spouse, civil partner or dependent child.
Meeting the shareholding requirement is both a vesting condition for awards granted and a requirement to maintain eligibility for future awards. Shareholding requirements fall away on leaving the Group.
On December 31, 2014, the Executive Directors shareholdings were as follows (valued using the middle market closing prices of the relevant securities):
Shareholding
requirement (% of 31 December 2014 annual base salary) |
Actual shareholding as
at 31 December 2014 (% of 31 December 2014 annual base salary) |
|||
Erik Engstrom |
300% | 830% | ||
Nick Luff |
200%* | 59% |
* | Nick Luff has until December 31, 2016 to build up to his required level of shareholding and is required to retain all net shares earned from incentive plans until he reaches this level. |
Share interests
See page 65.
56
Performance graphs
The graphs below show total shareholder returns for Reed Elsevier PLC and Reed Elsevier NV, calculated on the basis of the average share price in the 30 trading days before the respective year end and assuming dividends were reinvested. Reed Elsevier PLCs performance is compared with the FTSE 100 and Reed Elsevier NV with the AEX Index (to reflect their respective memberships of those indices), over the five years from December 31, 2009 to December 31, 2014. This period also reflects the tenure of the CEO and the TSR performance period for the final tranche of the REGP. The three-year charts cover the performance period of the 2012-14 cycles of BIP and ESOS.
3 years
5 years
10 years
57
UK regulations require disclosure of the relative share performance for the six-year period, 2009-2014, of Reed Elsevier PLC. During that period the total return for the FTSE 100 was +94% while TSR for Reed Elsevier PLC was +170%, an outperformance of 76 percentage points.
CEO historical pay table
The table below shows the historical CEO pay over a seven-year period. 2008 has been included to show the pre-2009 position, as 2009 was a transition year with three CEO incumbents.
£000 |
2008 | 2009 3 | 2010 | 2011 | 2012 | 2013 | 2014 | |||||||||||||||||||||||||||||
CEO |
Sir
Crispin Davis |
Sir
Crispin Davis |
Ian
Smith |
Erik
Engstrom |
Erik
Engstrom |
Erik
Engstrom |
Erik
Engstrom |
Erik
Engstrom |
Erik
Engstrom |
|||||||||||||||||||||||||||
Annualised base salary |
1,181 | 1,181 | 900 | 1,000 | 1,000 | 1,025 | 1,051 | 1,077 | 1,104 | |||||||||||||||||||||||||||
Annual incentive payout as a % of maximum |
61% | 30% | 37% | 71% | 67% | 66% | 73% | 70% | 71% | |||||||||||||||||||||||||||
Multi-year incentive vesting as a % of maximum |
100% | 0% | 0% | 0% | 0% | 0% | 70% | 4 | 96% | 4 | 90% | 4 | ||||||||||||||||||||||||
CEO total (UK statutory basis) 1 |
7,193 | 706 | 1,033 | 426 | 3,140 | 2,738 | 11,145 | 5 | 5,425 | 16,176 | 6 | |||||||||||||||||||||||||
CEO total (Dutch Civil Code basis) 2 |
6,631 | (514 | ) | 1,033 | 431 | 2,675 | 5,045 | 5,443 | 6,067 | 6,808 |
1. | UK statutory basis: This is described in footnote 2 to the Single Total Figure table on page 46. |
2. | Dutch Civil Code basis: This is described in footnote 3 to the Single Total Figure table on page 46. |
3. | Sir Crispin Davis was CEO from January 1 to March 31, Ian Smith was CEO from April 1 to November 10 and Erik Engstrom was CEO from November 11 to December 31. |
4. | The 2014 percentage reflects REGP tranche 2, BIP and ESOS. The 2013 percentage reflects BIP and ESOS only and the 2012 figure reflects REGP tranche 1 and BIP. |
5. | The 2012 figure reflects the vesting of tranche 1 of the REGP and includes the entire amount that was performance tested over the 2010-12 period, including the 50% of shares deferred until 2015 in accordance with the plan rules. It also includes £3m attributed to share price appreciation. |
6. | The 2014 figure includes the vesting of the second and final tranche of the discontinued REGP and includes £7.6m attributed to share price appreciation. |
Comparison of change in CEO pay with change in employee pay
The table below shows the percentage change in remuneration (salary, benefits and annual incentive) from 2013 to 2014 for the CEO compared with the average employee.
% change from
2013 to 2014 |
||||||||
CEO |
Average
employee* |
|||||||
Salary |
2.5% | 2.5% | ||||||
Benefits |
2.0% | 2.5% | ||||||
Annual incentive |
3.1% | 3.3% |
* | This reflects a substantial proportion of our global employee population. |
58
Relative importance of spend on pay
The following table sets out the total employee costs for all employees, as well as the amounts paid in dividends and share repurchases.
2014 (£m) | 2013 (£m) | % change | ||||||||||
Employee costs* |
1,709 | 1,775 | -4% | |||||||||
Dividends |
565 | 549 | +3% | |||||||||
Share repurchases |
600 | 600 | 0% |
* | Employee costs include wages and salaries, social security costs, pensions and share-based and related remuneration. |
Implementation of remuneration policy in 2015
Salary: The Committee has awarded a salary increase of 2.5% to the Executive Directors, which means that, from January 1, 2015, Erik Engstroms salary rose to £1,131,408 and Nick Luffs salary to £666,250. This is in line with the guidelines agreed for employees in the Groups most significant locations globally for 2015.
AIP: The operation of the AIP in 2015 remains the same as in 2014. Details of annual financial targets and KPOs are not disclosed as the Board believes that these are commercially sensitive and that disclosing them would give competitors an unfair insight into our strategic direction and annual execution plans. The targets are designed to be challenging relative to the 2015 execution plan.
Multi-year incentives: The award levels (% of salary) for 2015 are:
CEO | CFO | |||
BIP opportunity |
100% | 100% | ||
LTIP |
250% | 200% | ||
ESOS |
250% | 200% |
The targets and vesting scales for the multi-year incentive awards granted in 2015 are as follows:
BIP: 2015-17cycle
Match earned on personal investment |
Average growth in adjusted
EPS over the three-year performance period* |
ROIC in the third
year of the performance period* |
||
0% |
below 4% p.a. | below 12.3% | ||
50% |
4% p.a. | 12.3% | ||
75% |
6.5% p.a. | 12.8% | ||
100% |
9% p.a. or above | 13.3% or above |
* | EPS and ROIC have equal weighting and straight-line vesting applies to performance between the points. |
LTIP: 2015-17 cycle
Vesting is dependent on three separate performance measures of equal weighting: a TSR measure (comprising three comparator groups), an EPS measure and a ROIC measure. 1
Vesting percentage of each third of the TSR tranche 2 |
TSR ranking within the relevant TSR comparator group |
|
0% |
Below median | |
30% |
Median | |
100% |
Upper quartile |
1. | The calculation methodology for TSR, EPS and ROIC is set out in the 2013 Notices of Annual General Meetings, which can be found on our website. The methodology for selecting the TSR comparator group companies is unchanged from 2013 (see page 61 of the 2013 Annual Report on Form 20-F). Each comparator group comprises approximately 40 companies. The companies for the 2015-17 LTIP cycle were selected on the same basis as the comparator groups for prior cycles under this plan. |
2. | Vesting is on a straight-line basis for performance between the minimum and maximum levels. |
59
Vesting percentage of EPS and ROIC tranches* |
Average growth in adjusted
EPS over the three-year performance period |
ROIC in the third
year of the performance period |
||
0% |
below 5% p.a. | below 12.3% | ||
33% |
5% p.a. | 12.3% | ||
52.5% |
6% p.a. | 12.55% | ||
65% |
7% p.a. | 12.8% | ||
75% |
8% p.a. | 13.05% | ||
85% |
9% p.a. | 13.3% | ||
92.5% |
10% p.a. | 13.55% | ||
100% |
11% p.a. or above | 13.8% or above |
* | Vesting is on a straight-line basis for performance between the stated average adjusted EPS growth/ROIC percentages. |
ESOS: 2015-2017 cycle
Proportion of the award vesting |
Average growth in adjusted EPS over the
three-year performance period* |
|
0% |
below 4% p.a. | |
33% |
4% p.a. | |
80% |
6% p.a. | |
100% |
8% p.a. or above |
* | Vesting is on a straight-line basis for performance between the stated average adjusted EPS growth percentages. |
Remuneration Committee advice
The Committee consists of independent Non-Executive Directors and the Chairman of RELX Group plc. Details of members are contained in the section, Directors on page 44. The Chief Legal Officer & Company Secretary attends meetings as secretary to the Committee. At the invitation of the Chairman of the Committee, the CEO of RELX Group plc attends appropriate parts of the meetings. The CEO of RELX Group plc is not in attendance during discussions about his remuneration.
The Human Resources Director advised the Committee during the year.
Towers Watson is the external adviser, appointed by the Committee through a competitive process. Towers Watson also provided actuarial and other human resources consultancy services to some of our companies during the year. The Committee is satisfied that the firms advice continues to be objective and independent, and that no conflict of interest exists. The individual consultants who work with the Committee do not provide advice to the Executive Directors, or act on their behalf. Towers Watson is a member of the Remuneration Consultants Group and conducts its work in line with the UK Code of Conduct for executive remuneration consulting. During 2014, Towers Watson received fees of £10,726 for advice given to the Committee, charged on a time and expense basis.
Compensation of executive officers
The aggregate compensation (salary, annual incentive, benefits, pension and dividend equivalents received in respect of shares vested during 2014 under BIP and LTIP) paid during 2014 (and in respect of the annual incentive earned in respect of 2014) to those who were executive officers (other than Directors) of RELX Group plc as at February 25, 2015 for the year ended December 31, 2014 was £2,725,675, which included contributions made to the pension plans in respect of such officers of £107,524.
60
Multi-year incentive interests
All outstanding unvested options and share awards in the tables below and on page 62 are subject to performance conditions.
For disclosure purposes, any PLC and NV ADRs awarded under the BIP or the REGP have been converted into ordinary share equivalents. Between December 31, 2014 and the date of this Annual Report on Form 20-F, there have been no changes in the options or share awards held by Executive Directors.
Erik Engstrom
OPTIONS |
Year
of grant |
Type of
security |
No. of
options held on 1 Jan 2014 |
No.
of
options granted during 2014 |
Option
price |
No.
of
options exercised during 2014 |
Market
price per share at exercise |
No. of
options held on 31 Dec 2014 |
Unvested
options vesting on |
Options
exercisable until |
||||||||||||||||||||||||||||||
ESOS |
2006 | PLC ord | 178,895 | £ | 5.305 | 178,895 | £ | 9.138 | ||||||||||||||||||||||||||||||||
NV ord | 120,198 | | 11.470 | 120,198 | | 15.755 | ||||||||||||||||||||||||||||||||||
2011 | PLC ord | 139,146 | £ | 5.390 | 139,146 | May 5, 21 | ||||||||||||||||||||||||||||||||||
NV ord | 92,953 | | 8.969 | 92,953 | May 5, 21 | |||||||||||||||||||||||||||||||||||
2012 | * | PLC ord | 198,836 | £ | 5.155 | 198,836 | May 2, 15 | May 2, 22 | ||||||||||||||||||||||||||||||||
NV ord | 139,742 | | 9.030 | 139,742 | May 2, 15 | May 2, 22 | ||||||||||||||||||||||||||||||||||
2013 | PLC ord | 178,799 | £ | 7.345 | 178,799 | May 9, 16 | May 9, 23 | |||||||||||||||||||||||||||||||||
NV ord | 124,337 | | 12.530 | 124,337 | May 9, 16 | May 9, 23 | ||||||||||||||||||||||||||||||||||
2014 | PLC ord | 145,604 | £ | 9.245 | 145,604 | Apr 7, 17 | Apr 7, 24 | |||||||||||||||||||||||||||||||||
NV ord | 102,839 | | 15.820 | 102,839 | Apr 7, 17 | Apr 7, 24 | ||||||||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
Total PLC ords |
695,676 | 145,604 | 178,895 | 662,385 | ||||||||||||||||||||||||||||||||||||
Total NV ords |
477,230 | 102,839 | 120,198 | 459,871 | ||||||||||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
* | The performance outcome for the ESOS 2012 is set out on page 50. |
SHARES |
Year
of grant |
Type of
security |
No. of
unvested shares held on 1 Jan 2014 |
No.
of
shares awarded during 2014 |
Market
price per share at award |
No. of
shares vested/ performance tested during 2014 |
Market
price per share at vesting/ performance testing |
No. of
unvested/ non- performance tested shares held on 31 Dec 2014 |
End of
performance period |
Date of
release |
||||||||||||||||||||||||||||||
BIP |
2011 | NV ord | 122,352 | | 8.969 | 110,728 | | 15.975 | ||||||||||||||||||||||||||||||||
2012 | 1 | NV ord | 136,950 | | 9.030 | 136,950 | Dec 2014 | H1 2015 | ||||||||||||||||||||||||||||||||
2013 | NV ord | 96,830 | | 12.530 | 96,830 | Dec 2015 | H1 2016 | |||||||||||||||||||||||||||||||||
2014 | NV ord | 81,388 | | 15.820 | 81,388 | Dec 2016 | H1 2017 | |||||||||||||||||||||||||||||||||
LTIP |
2013 | PLC ord | 178,799 | £ | 7.345 | 178,799 | Dec 2015 | H1 2016 | ||||||||||||||||||||||||||||||||
NV ord | 124,337 | | 12.530 | 124,337 | Dec 2015 | H1 2016 | ||||||||||||||||||||||||||||||||||
2014 | PLC ord | 145,604 | £ | 9.245 | 145,604 | Dec 2016 | H1 2017 | |||||||||||||||||||||||||||||||||
NV ord | 102,839 | | 15.820 | 102,839 | Dec 2016 | H1 2017 | ||||||||||||||||||||||||||||||||||
REGP 2 |
2013 | PLC ord | 321,895 | £ | 7.760 | 321,895 | Dec 2014 | H1 2015 | ||||||||||||||||||||||||||||||||
NV ord | 450,494 | | 13.150 | 450,494 | Dec 2014 | H1 2015 | ||||||||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
Total PLC ords |
|
500,694 | 145,604 | 646,298 | ||||||||||||||||||||||||||||||||||||
Total NV ords |
|
930,963 | 184,227 | 110,728 | 992,838 | |||||||||||||||||||||||||||||||||||
|
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|
|
|
|
|
|
|
|
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|
|
|
|
|
|
|
|
1. | The performance outcome for the BIP 2012 is set out on page 49. |
2. | The performance outcome for the second and final tranche of the REGP is set out on page 49. The deferred shares from the first tranche of the REGP (i.e. 214,855 PLC ordinary shares and 141,094 NV ordinary shares) were performance tested in H1 2013 and fully disclosed as part of the 2012 single total figure on page 57 of the 2013 Annual Report on Form 20-F. |
61
Nick Luff
OPTIONS |
Year
of grant |
Type of
security |
No. of
options held on 1 Jan 2014 |
No. of
options granted during 2014 |
Option
price |
No. of
options exercised during 2014 |
Market
price per share at exercise |
No. of
options held on 31 Dec 2014 |
Unvested
options vesting on |
Options
exercisable until |
||||||||||||||||||||||||||||||
ESOS |
2014 | PLC ord | 65,656 | £ | 9.900 | 65,656 | Sep 2, 17 | Sep 2, 24 | ||||||||||||||||||||||||||||||||
NV ord | 46,963 | | 17.500 | 46,963 | Sep 2, 17 | Sep 2, 24 | ||||||||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
Total PLC ords |
65,656 | 65,656 | ||||||||||||||||||||||||||||||||||||||
Total NV ords |
46,963 | 46,963 | ||||||||||||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
SHARES |
Year
of grant |
Type of
security |
No. of
unvested shares held on 1 Jan 2014 |
No. of
shares awarded during 2014 |
Market
price per share at award |
No. of
shares vested/ performance tested during 2014 |
Market
price per share at vesting/ performance testing |
No. of
unvested/ non- performance tested shares held on 31 Dec 2014 |
End of
performance period |
Date of
release |
||||||||||||||||||||||||||||||
BIP |
2014 | PLC ord | 32,630 | £ | 9.900 | 32,630 | Dec 2016 | H1 2017 | ||||||||||||||||||||||||||||||||
NV ord | 22,870 | | 17.500 | 22,870 | Dec 2016 | H1 2017 | ||||||||||||||||||||||||||||||||||
LTIP |
2014 | PLC ord | 65,656 | £ | 9.900 | 65,656 | Dec 2016 | H1 2017 | ||||||||||||||||||||||||||||||||
NV ord | 46,963 | | 17.500 | 46,963 | Dec 2016 | H1 2017 | ||||||||||||||||||||||||||||||||||
PSP |
2014 | PLC ord | 65,656 | £ | 9.900 | 65,656 | Dec 2014 | H1 2015 | ||||||||||||||||||||||||||||||||
NV ord | 46,963 | | 17.500 | 46,963 | Dec 2014 | H1 2015 | ||||||||||||||||||||||||||||||||||
2014 | PLC ord | 65,656 | £ | 9.900 | 65,656 | Dec 2015 | H1 2016 | |||||||||||||||||||||||||||||||||
NV ord | 46,963 | | 17.500 | 46,963 | Dec 2015 | H1 2016 | ||||||||||||||||||||||||||||||||||
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
Total PLC ords |
229,598 | 229,598 | ||||||||||||||||||||||||||||||||||||||
Total NV ords |
163,759 | 163,759 | ||||||||||||||||||||||||||||||||||||||
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|||||||||||||||||||||
Duncan Palmer |
|
|||||||||||||||||||||||||||||||||||||||
SHARES |
Year
of grant |
Type of
security |
No. of
unvested shares held on 1 Jan 2014 |
No. of
shares awarded during 2014 |
Market
price per share at award |
No. of
shares vested/ performance tested during 2014 |
Market
price per share at vesting/ performance testing |
No. of
unvested/ non- performance tested shares held on 31 Dec 2014 |
End of
performance period |
Date of
release |
||||||||||||||||||||||||||||||
RSP* |
2012 | PLC ord | 72,042 | £ | 6.015 | 72,042 | £ | 9.781 | Sep 25, 14 | |||||||||||||||||||||||||||||||
NV ord | 51,378 | 51,378 | | 17.570 | Sep 25, 14 | |||||||||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
Total PLC ords |
|
72,042 | 72,042 | |||||||||||||||||||||||||||||||||||||
Total NV ords |
|
51,378 | 51,378 | |||||||||||||||||||||||||||||||||||||
|
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|
|
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|
|
* | Reflects the pro-rated number of shares following his resignation as previously disclosed. In accordance with the terms of the award, the full award was granted over Reed Elsevier PLC ordinary shares but half was settled with Reed Elsevier NV ordinary shares. |
THE GROUP
As of December 31, 2014 we operated and/or had awards outstanding under a number of equity-based plans as follows:
(i) | All-Employee Equity-Based Plans |
Our all-employee equity-based plans comprise the following two plans.
(a) | UK SAYE Share Option Scheme (the SAYE Scheme) |
Options over Reed Elsevier PLC ordinary shares have been granted under the SAYE Scheme. Shares may be acquired at not less than the higher of (i) 80% of the closing market price for the relevant share on The London Stock Exchange three dealing days before invitations to apply for options are issued, and (ii) if new shares are to be subscribed, their nominal value.
All UK employees of RELX Group plc and participating companies under its control in employment at the date of invitation are entitled to participate in the SAYE Scheme. In addition, the Directors of RELX Group plc may permit other employees of RELX Group plc and participating companies under its control to participate.
62
Invitations to apply for options may normally only be issued within 42 days after the announcement of our combined results for any period. No options may be granted more than 10 years after the approval of the scheme. A new 2013 SAYE Share Option Scheme was implemented during 2013, to replace the 2003 SAYE Share Option, under which the final grant of options permitted within the schemes 10 year validity period, was made during 2012. Outstanding options granted under the 2003 SAYE Share Option Scheme will remain capable of exercise until 2018.
On joining the SAYE Scheme, a save as you earn contract (a Savings Contract) must be entered into with an appropriate savings body, under which savings of between £10 and £500 per month may be made to such savings body for a period of three or five years. A bonus may be payable under the Savings Contract at the end of the savings period. Bonus rates are determined by HMRC. The amount of the monthly contributions may be reduced if applications exceed the number of Reed Elsevier PLC ordinary shares available for the grant of options on that occasion.
The number of Reed Elsevier PLC ordinary shares over which an option may be granted is limited to that number of shares which may be acquired at the exercise price out of the repayment proceeds (including any bonus) of the Savings Contract.
Options under the SAYE Scheme may normally only be exercised for a period of six months after the bonus date under the relevant Savings Contract. However, options may be exercised earlier than the normal exercise date in certain specified circumstances, including death, or on ceasing employment on account of injury, disability, redundancy, reaching contractual retirement age, or upon retirement under our self-standing retirement policy for the SAYE Scheme or the sale of the business or subsidiary for which the participant works, or on ceasing employment for any other reason, or provided the option has been held for at least three years. Exercise is allowed in the event of an amalgamation, reconstruction or take-over of the company whose shares are under option; alternatively, such options may, with the agreement of an acquiring company or a company associated with it, be exchanged for options over shares in the acquiring company or that associated company. Options may also be exercised in the event of the voluntary winding-up of the company whose shares are under option. In the event that options are exercised before the bonus date, the participant may acquire only the number of shares that can be purchased with the accumulated savings up to the date of exercise, plus interest (if any).
In the event of any capitalisation or rights issue by Reed Elsevier PLC or Reed Elsevier NV, or of any consolidation, subdivision or reduction of their share capital, the number of shares subject to any relevant option and/or the exercise price may be adjusted with the approval of HMRC, subject to the independent auditors of RELX Group plc confirming in writing that such adjustment is, in their opinion, fair and reasonable.
Mr Engstrom and Mr Luff have waived their right to participate in the SAYE Scheme.
(b) | Convertible debenture stock arrangements |
This facility consists of an annual issue by Reed Elsevier NV of a convertible debenture loan (the Netherlands Convertible Debenture Stock Scheme) that is open for subscription by staff employed by our companies in the Netherlands or temporarily seconded to affiliates abroad. The interest rate of the scheme is determined quarterly on the basis of market rates on internet savings accounts which can be withdrawn at a days notice in the Netherlands. Employees can annually subscribe for one or more debentures of 200 each, up to a maximum amount equal to 20% of the equivalent of 15 times the employees fixed gross monthly salary, including any fixed monthly allowances, but excluding any non-monthly salary components (holiday pay, annual incentives, profit shares etc). Interest is payable in arrears in the month of January following the subscription year. The loans have a term of 10 years. During the 10-year term of the loan employees can decide to convert their claim on Reed Elsevier NV into shares at an exercise price equal to the price of a Reed Elsevier NV ordinary share on Euronext Amsterdam on the last dealing day of the month in which the employee has subscribed for the loan (the exercise price). Each debenture of 200 can be converted into 50 ordinary shares in Reed Elsevier NV against payment of 50 times the exercise price, less 200.
(ii) | Executive Equity-Based Plans |
Our executive equity-based plans comprise:
(a) | Reed Elsevier Group plc Growth Plan (REGP) (discontinued as of December 31, 2014) |
The details of how the REGP operates have been disclosed on page 51 of the 2013 Annual Report on Form 20-F. The performance measures and targets for the matching awards granted in 2013 are disclosed in the 2013 Annual Report on Form 20-F on page 62. No further awards have been or will be granted under this plan and the final tranche of awards vested on February 27, 2015.
(b) | Long-term incentive plans (LTIP) |
The plans in this category comprise the Long-Term Incentive Plan 2013 (LTIP 2013), the Long-Term Incentive Plan 2010 (LTIP 2010) and the Long-Term Incentive Share Option Scheme 2003 (LTIS 2003). Details of the LTIP 2010 and the LTIS 2003 have been disclosed in previous years Annual Reports on Form 20-F.
63
The LTIP 2013 applies to senior executives (including executive officers and executive directors). Awards may be granted as performance share awards or nil-cost options but it is currently intended to only grant performance share awards. Awards vest subject to performance measured over three financial years. Awards may be satisfied with new issue shares, a transfer of treasury shares or shares purchased in the market, but it is currently intended to continue the existing practice of satisfying awards with shares purchased in the market. The performance measures and targets applicable to awards granted in 2014 under this plan are set out on pages 53 and 54. The vesting of awards is also subject to participants meeting a minimum shareholding requirement and continued employment (except for certain categories of approved leavers). Dividend equivalents accrue over the performance period and are paid out in cash at the end to the extent that the awards vest.
The LTIP 2010 has awards outstanding which were granted in 2012. No awards were granted under this plan in 2014.
The LTIS 2003 enabled the grant of options and restricted shares. Options previously granted under this plan vested subject to performance and will lapse to the extent they remain unexercised, on the tenth anniversary of the date of grant. No awards were made under the LTIS 2003 in 2014.
(c) | Executive share option schemes (ESOS) |
The plans in this category comprise the Executive Share Option Scheme 2013 (ESOS 2013) and the Share Option Scheme 2003 (ESOS 2003). Details of the ESOS 2003 have been disclosed in previous Annual Reports on Form 20-F.
The ESOS 2013 applies to around 1,000 executives (including executive officers and executive directors). Market value options are granted which vest (subject to performance in the case of executive directors) after three years and remain exercisable, subject to continued employment, until the tenth anniversary of grant. Options may be satisfied with new issue shares, a transfer of treasury shares or shares purchased in the market, but it is currently intended to continue the existing practice of satisfying options with new issue shares. The performance measure and targets applicable to options granted in 2014 under this plan to executive directors are set out on page 54.
ESOS 2003 has options outstanding under it but no options were granted under this plan in 2014 and no future options will be granted under this plan.
(d) | Bonus investment plans (BIP) |
The Bonus Investment Plan 2010 (BIP 2010) (see page 50 of the 2013 annual report for a description of this plan) is a voluntary plan aimed at encouraging personal investment in, and ongoing holding of, our shares to promote greater alignment with shareholders and support the retention of key talent. Awards were made in 2014 under BIP 2010 to senior executives (including executive officers and Executive Directors). The performance measures and targets applicable to awards granted in 2014 are set out on page 53.
(e) | Retention Share Plan (RSP) |
The RSP has been used to facilitate the grant of one-off awards of restricted shares, where appropriate, to senior new hires for example, to buy out share-based awards from previous employment. The restricted shares which have been awarded will be satisfied by shares purchased in the market and Executive Directors are not eligible to participate.
In addition, since 2006, employees eligible to participate in the ESOS (see (c) above), other than Executive Directors, have been able to choose prior to the date of grant whether to receive all or part of their grant in the form of restricted shares based on a pre-determined conversion ratio of one share for every five options that would otherwise be granted to them under ESOS. The RSP is the vehicle used to deliver the award of such restricted shares. The restricted shares vest after the expiry of three years from the date of grant, subject to the participant remaining employed by us or a participating company under our control. The restricted shares awarded are satisfied by shares purchased in the market.
Share options and conditional share awards
At February 25, 2015 the total number of ordinary shares subject to outstanding options was:
Number of
outstanding options |
Options over
shares |
Option price
range |
||||||||
SAYE Scheme |
2,295,649 | Reed Elsevier PLC | £4.108 £7.088 | |||||||
Netherlands Convertible Debenture Stock Scheme |
1,159,250 | Reed Elsevier NV | 9.00 18.365 | |||||||
ESOS |
6,126,253 | Reed Elsevier PLC | £4.20 £10.02 | |||||||
4,361,270 | Reed Elsevier NV | 7.301 17.82 | ||||||||
LTIS 2003 |
29,948 | Reed Elsevier PLC | £5.115 | |||||||
20,630 | Reed Elsevier NV | 11.13 |
64
Share options are expected, upon exercise, to be met principally by the issue of new ordinary shares, but may also be met from shares held by the Employee Benefit Trust.
At February 25, 2015 the following conditional share awards were also outstanding:
Number of
outstanding awards |
Awards over
shares in |
|||||
REGP* |
536,750 | Reed Elsevier PLC | ||||
591,588 | Reed Elsevier NV | |||||
LTIP |
3,385,339 | Reed Elsevier PLC | ||||
2,378,731 | Reed Elsevier NV | |||||
BIP* |
2,875,232 | Reed Elsevier PLC | ||||
1,498,399 | Reed Elsevier NV | |||||
RSP |
1,444,123 | Reed Elsevier PLC | ||||
888,598 | Reed Elsevier NV | |||||
Other** |
131,312 | Reed Elsevier PLC | ||||
93,926 | Reed Elsevier NV |
* | For disclosure purposes, any Reed Elsevier PLC and Reed Elsevier NV ADRs awarded under these plans have been converted into ordinary share equivalents. |
** | Performance share awards granted to Nick Luff on September 2, 2014. These were not granted under an existing plan the awards of Reed Elsevier PLC ordinary shares fall within paragraph 9.4.2(2)R of the UK Listing Rules and the awards of Reed Elsevier NV ordinary shares were approved by shareholders at the Annual General Shareholders Meeting of Reed Elsevier NV on April 23, 2014. More detail in relation to these awards is set out on pages 52 to 55. |
It is intended that these awards will be satisfied with shares purchased in the market.
THE GROUP
Share ownership
The interests of those individuals who were Directors of Reed Elsevier PLC and Reed Elsevier NV as at December 31, 2014 in the issued share capital of the respective companies at the beginning and end of the year are shown below. Reed Elsevier PLC and Reed Elsevier NV ADRs are converted into ordinary share equivalents.
Reed Elsevier PLC
ordinary shares |
Reed Elsevier NV
ordinary shares |
|||||||||||||||
January 1,
2014 |
December 31,
2014 |
January 1,
2014 |
December 31,
2014 |
|||||||||||||
Erik Engstrom |
114,552 | 118,552 | 513,765 | 516,765 | ||||||||||||
Anthony Habgood |
50,000 | 50,000 | 25,000 | 25,000 | ||||||||||||
Wolfhart Hauser |
4,107 | 750 | 2,010 | |||||||||||||
Adrian Hennah |
5,163 | 10,508 | ||||||||||||||
Lisa Hook |
4,800 | 4,800 | ||||||||||||||
Marike van Lier Lels |
||||||||||||||||
Nick Luff |
* | 17,187 | * | 12,106 | ||||||||||||
Robert Polet |
1,000 | 1,000 | ||||||||||||||
Linda Sanford |
3,600 | 6,700 | ||||||||||||||
Ben van der Veer |
5,000 | 7,000 |
* | On date of appointment. |
The interests of the current Executive Directors of Reed Elsevier PLC and Reed Elsevier NV in the issued share capital of the respective companies as at March 9, 2015 were:
Interest in
Reed Elsevier PLC ordinary shares* |
Interest in
Reed Elsevier NV ordinary shares* |
|||||||
Erik Engstrom |
127,040 | 521,556 | ||||||
Nick Luff |
67,534 | 47,616 |
* | In the table above, Reed Elsevier PLC and Reed Elsevier NV ADRs are converted into ordinary share equivalents. |
65
Shares and options held by executive officers
The following table indicates the total aggregate number of Reed Elsevier PLC ordinary shares and Reed Elsevier NV ordinary shares beneficially owned and the total aggregate number of share options and conditional share awards held by the executive officers (other than Directors) of RELX Group plc (three persons) in office as of February 25, 2015:
Reed
Elsevier PLC ordinary shares |
Reed
Elsevier PLC ordinary shares subject to options |
Reed
Elsevier PLC conditional share awards |
Reed
Elsevier NV ordinary shares |
Reed
Elsevier NV ordinary shares subject to options |
Reed
Elsevier NV conditional share awards |
|||||||||||||||||||
Executive officers (other than Directors) |
239,065 | 204,242 | 579,613 | 61,575 | 192,448 | 272,099 |
In the table above, Reed Elsevier PLC and Reed Elsevier NV ADRs are converted into ordinary share equivalents.
The options over Reed Elsevier PLC ordinary shares included in the above table are exercisable at prices ranging from £4.665 to £9.245 per share and between the date hereof and 2024. The options over Reed Elsevier NV ordinary shares included in the above table are exercisable at prices ranging from 8.31 to 21.74 per share and between the date hereof and 2024. The Reed Elsevier PLC and Reed Elsevier NV conditional share awards included in the above table will vest between 2015 and 2017.
66
THE GROUP
During 2014, the Boards of Directors of Reed Elsevier PLC and Reed Elsevier NV managed their respective shareholdings in Reed Elsevier Group plc and Elsevier Reed Finance BV. Effective February 25, 2015, Reed Elsevier PLC and Reed Elsevier NV transferred their direct ownership interest in Elsevier Reed Finance BV to their jointly-owned company, Reed Elsevier Group plc and named this newly-combined single group entity RELX Group plc. For further information regarding this transfer and developments to the corporate structure, see Item 4: Organisational Structure on pages 23 to 24. The Boards of Reed Elsevier PLC, Reed Elsevier NV and RELX Group plc are harmonised. All of the Directors of RELX Group plc are also Directors of Reed Elsevier PLC and Reed Elsevier NV. Reed Elsevier NV may nominate for appointment up to two Non-Executive Directors who are not appointed to the Boards of either Reed Elsevier PLC or RELX Group plc. Currently, one such Director has been appointed to the Board of Reed Elsevier NV. Subject to shareholders of Reed Elsevier PLC and Reed Elsevier NV re-electing retiring Directors at their respective Annual General Meetings in 2015, all the Directors of RELX Group plc will also be Directors of Reed Elsevier PLC and of Reed Elsevier NV. For a complete description of the Board membership positions and executive officer positions within the Group, see Directors and Senior Management on pages 44 to 46. Details of the membership of the Audit Committees of RELX Group plc, Reed Elsevier PLC and Reed Elsevier NV and details of the membership of the Remuneration Committee are given under Directors on page 44.
RELX GROUP PLC
The RELX Group plc Board consists of two Executive Directors and seven Non-Executive Directors. A person may only be appointed or proposed or recommended for appointment to the Board if that person has been nominated for that appointment by the joint Nominations Committee of Reed Elsevier PLC and Reed Elsevier NV. Persons nominated by the Nominations Committee will be required to be approved by the RELX Group plc Board, prior to appointment to the RELX Group plc Board.
Decisions of the Board of Directors of RELX Group plc require a simple majority, and the quorum required for meetings of the Board of RELX Group plc is any two Directors.
The RELX Group plc Board has established the following Committees:
|
Audit currently comprising three independent Non-Executive Directors; and |
|
Remuneration currently comprising three independent Non-Executive Directors and the Chairman of RELX Group plc. |
Arrangements established at the time of the merger of Reed Elsevier PLCs and Reed Elsevier NVs businesses provide that, if any person (together with persons acting in concert with him) acquires shares, or control of the voting rights attaching to shares, carrying more than 50% of the votes ordinarily exercisable at a general meeting of Reed Elsevier PLC or Reed Elsevier NV and has not made a comparable takeover offer for the other party, the other party may by notice suspend or modify the operation of certain provisions of the merger arrangements, such as (i) the right of the party in which control has been acquired (the Acquired Party) to appoint or remove directors of Reed Elsevier PLC, Reed Elsevier NV and RELX Group plc and (ii) the Standstill Obligations (defined below) in relation to the Acquired Party. Such a notice will cease to apply if the person acquiring control makes a comparable offer for all the equity securities of the other within a specified period or if the person (and persons acting in concert with him) ceases to have control of the other.
In the event of a change of control of one parent company and not the other (where there has been no comparable offer for the other), the parent company which has not suffered the change in control will effectively have the sole right to remove and appoint directors of RELX Group plc. Also, a director removed from the Board of a parent company which has suffered a change in control will not have to resign from the Board of the other parent company or RELX Group plc.
The articles of association of RELX Group plc contain certain restrictions on the transfer of shares in RELX Group plc. In addition, pursuant to arrangements established at the time of the merger, neither Reed Elsevier PLC nor Reed Elsevier NV may acquire or dispose of any interest in the share capital of the other or otherwise take any action to acquire the other without the prior approval of the other (the Standstill Obligations). The Panel on Takeovers and Mergers in the United Kingdom (the Panel) has stated that in the event of a change of statutory control of either Reed Elsevier PLC or Reed Elsevier NV, the person or persons acquiring such control will be required to make an offer to acquire the share capital of RELX Group plc held by the other, in accordance with the requirements of the City Code on Takeovers and Mergers in the United Kingdom. This requirement would not apply if the person acquiring statutory control of either Reed Elsevier PLC or Reed Elsevier NV made an offer for the other on terms which are considered by the Panel to be appropriate.
67
REED ELSEVIER PLC
The Reed Elsevier PLC Board currently consists of two Executive Directors and seven Non-Executive Directors. A person may only be appointed or proposed or recommended for appointment to the Board if that person has been nominated for that appointment by the joint Nominations Committee of Reed Elsevier PLC and Reed Elsevier NV. Persons nominated by the Nominations Committee will be required to be approved by the Reed Elsevier PLC Board, prior to the appointment to the Reed Elsevier PLC Board. A copy of the terms of reference of the Nominations Committee is available on request and can be viewed on our website, www.relxgroup.com. The information on our website is not incorporated by reference into this report.
Notwithstanding the provisions outlined above in relation to the appointment to the Board, Reed Elsevier PLC shareholders retain their rights under Reed Elsevier PLCs articles of association to appoint Directors to the Reed Elsevier PLC Board by ordinary resolution. Reed Elsevier PLC shareholders may also, by ordinary resolution, remove a Director from the Board of Reed Elsevier PLC, and in such circumstances that Director will also be required to be removed or resign from the Boards of Reed Elsevier NV and RELX Group plc (except in circumstances where there has been a change of control of Reed Elsevier PLC and not Reed Elsevier NV).
The Reed Elsevier PLC Board has also established the following Committees:
|
Audit currently comprising three independent Non-Executive Directors; |
|
Corporate Governance a joint Committee of Reed Elsevier PLC and Reed Elsevier NV, comprising all Non-Executive Directors of each company; and |
|
Nominations a joint Committee of Reed Elsevier PLC and Reed Elsevier NV, currently comprising three Non-Executive Directors of the Board including the Chairman of the Board. |
RELX Group plc has established a Remuneration Committee, which is responsible for determining the remuneration policy (subject to shareholder approval) and monitoring its implementation for the Executive Directors of Reed Elsevier PLC and RELX Group plc, and considering the remuneration for the Executive Directors of Reed Elsevier NV.
Under the articles of association of Reed Elsevier PLC, one third of the Directors shall retire from office and, if they wish, make themselves available for re-election by shareholders at the Annual General Meeting. Notwithstanding these provisions in the articles of association, in accordance with the provisions of the UK Corporate Governance Code all Directors normally retire and offer themselves for re-election at each Annual General Meeting.
REED ELSEVIER NV
On May 8, 2013 and the unitary board governance structure became effective. Reed Elsevier NV has a unitary board comprising both Executive and Non-Executive Directors. The Board currently comprises two Executive Directors and eight Non-Executive Directors. Directors shall be appointed by the General Shareholders Meeting upon a proposal of the Non-Executive Directors based on a nomination for appointment by the joint Nominations Committee of Reed Elsevier NV and Reed Elsevier PLC. The articles of association of Reed Elsevier NV provide that a resolution of the General Shareholders Meeting to appoint a Director other than in accordance with a proposal of the Board can only be taken by a majority of at least two-thirds of the votes cast if less than one-half of Reed Elsevier NVs issued capital is represented at the meeting.
The General Shareholders Meeting of Reed Elsevier NV shareholders may also, by ordinary resolution, resolve to suspend or dismiss each Director of Reed Elsevier NV. In addition, each Executive Director of the Board can, at any time, be suspended by the Board. In such circumstances that Executive Director will also be required to be removed or resign from the Boards of Reed Elsevier PLC and RELX Group plc (except in circumstances where there has been a change of control of Reed Elsevier NV and not Reed Elsevier PLC).
The Reed Elsevier NV Board has established the following committees:
|
Audit currently comprising three Non-Executive Directors; |
|
Corporate Governance a joint Committee of Reed Elsevier NV and Reed Elsevier PLC, comprising all Non-Executive Directors of each company; and |
|
Nominations a joint Committee of Reed Elsevier NV and Reed Elsevier PLC, currently comprising three Non-Executive Directors including the Chairman of the Board. |
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RELX Group plc has established a Remuneration Committee, which is responsible for considering the remuneration for the Executive Directors of Reed Elsevier NV, and determining the remuneration policy (subject to shareholder approval) and monitoring its implementation for the Executive Directors of RELX Group plc and Reed Elsevier PLC.
Under the articles of association of Reed Elsevier NV, a Director of Reed Elsevier NV shall retire no later than on the day on which the first General Meeting of Shareholders is held following the lapse of three years after his appointment, with the possibility of re-appointment and shall retire periodically in accordance with a rotation plan drawn up by the Board. Notwithstanding these provisions in the articles of association, in accordance with the provisions of the UK Corporate Governance Code all Directors retire and seek re-appointment at each Annual General Meeting of Shareholders. To align the arrangements regarding appointment for the Boards of Reed Elsevier NV and Reed Elsevier PLC annual re-appointment shall not affect the term of their three-year appointment. As a general rule, Non-Executive Directors serve for two three-year terms. The Nominations Committee may recommend that individual Non-Executive Directors serve up to one additional three-year term. A schedule with the anticipated dates of retirement of Directors is published on our website, www.relxgroup.com. A copy of the terms of reference of the Nominations Committee is available on request and can be viewed on our website. The information on our website is not incorporated by reference into this report.
ELSEVIER REED FINANCE BV
During 2014, Elsevier Reed Finance BV had a two-tier board structure comprising a Management Board, consisting of three members, and a Supervisory Board, consisting of three members.
The number of people employed is disclosed in note 5 to the combined financial statements.
The Board of RELX Group plc is fully committed to the concept of employee involvement and participation, and encourages each of its businesses to formulate its own tailor-made approach with the co-operation of employees. We are an equal opportunity employer, and recruit and promote employees on the basis of suitability for the job. Appropriate training and development opportunities are available to all employees. A code of ethics and business conduct applicable to employees within the Group has been adopted throughout its businesses.
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ITEM 7: MAJOR SHAREHOLDERS AND RELATED PARTY TRANSACTIONS
REED ELSEVIER PLC
Substantial share interests
As at March 6, 2015, we had been notified by the following shareholders that they held an interest of 3% or more in voting rights (1) of the issued share capital of Reed Elsevier PLC:
Identity of Person or Group (2) |
% of Class | |||
BlackRock, Inc |
5.03 | |||
Invesco Limited |
5.03 | |||
Lloyds Banking Group plc |
3.47 | |||
Legal & General Group plc |
3.40 |
The percentage interests stated above are as disclosed at the date on which the interests were notified to us.
(1) | Under the UK Disclosure and Transparency Rules, subject to certain limited exceptions, persons or groups with an interest of 3% or more in voting rights of the issued Reed Elsevier PLC ordinary share capital are required to notify both Reed Elsevier PLC and the UK Financial Conduct Authority of their interest. |
(2) | Under the UK Large and Medium-sized Companies and Groups (Accounts and Reports) Regulations 2008, Reed Elsevier PLC is required to disclose information they are aware of regarding the identity of each person with a significant direct or indirect holding of securities in Reed Elsevier PLC as at the financial year end. |
As far as Reed Elsevier PLC is aware, except as disclosed herein, it is neither directly or indirectly owned nor controlled by one or more corporations or by any government.
At December 31, 2014 there were 16,795 ordinary shareholders, including the depositary for Reed Elsevier PLCs ADR programme, with a registered address in the United Kingdom, representing 99.85% of shares issued.
Reed Elsevier PLC is not aware of any arrangements the operation of which may at a subsequent date result in a change in control of Reed Elsevier PLC. The major shareholders of Reed Elsevier PLC do not have different voting rights to other ordinary shareholders.
REED ELSEVIER NV
Substantial share interests
As of March 6, 2015, we were aware of the following disclosable interests of 3% or more in the issued Reed Elsevier NV shares based on the public database of and on notification received from the Netherlands Authority for the Financial Markets (1) or provided as a Schedule 13G filing (2) :
Identity of Person or Group |
% of Class | |||
BlackRock, Inc |
6.10 | |||
Reed Elsevier PLC (3) |
5.89 | |||
Causeway Capital Management LLC |
5.81 | |||
ING Groep N.V. |
5.00 | |||
The Bank of New York Mellon Corporation |
4.59 | |||
FIL Limited |
3.72 | |||
Reed Elsevier NV (4) |
5.94 |
(1) | Under Article 5:38 of the Netherlands Financial Markets Supervision Act, any person acquiring or disposing of shares or voting rights in public companies established under the laws of the Netherlands listed on a stock exchange in the European Union, is required to notify the Netherlands Authority for the Financial Markets (AFM) without delay if such person knows, or should know, that such interest therein reaches, exceeds or drops below a 3%, 5%, 10%, 15%, 20%, 25%, 30%, 40%, 50%, 60%, 75% and 95% threshold. No interest in the shares or voting rights of Reed Elsevier NV of 10% or more has been disclosed in the AFMs registers. |
(2) | The Securities Exchange Act of 1934 as amended requires any person who has, as at the end of the calendar year, a direct or indirect beneficial interest in 5% or more of the issued share capital of a company, to file a statement on Schedule 13G with the Securities and Exchange Commission reporting such interest within 45 days following the end of the calendar year. |
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(3) | Reed Elsevier PLCs interest comprises a holding of R shares of 0.70 nominal value each held by a subsidiary of Reed Elsevier PLC. The 5.89% indirect equity interest in the total share capital of Reed Elsevier NV was notified to the AFM at the time the 5% threshold was reached. The subsequent repurchases of R shares are not reflected in the substantial interest register held by AFM, as the interest did not drop below the 5% threshold. |
(4) | Under Dutch regulations, Reed Elsevier NV is required to notify the AFM if it acquires shares in its own capital as a result of which its percentage of shares in its own capital reaches, exceeds or falls below certain thresholds (including 3 and 5%). |
As far as Reed Elsevier NV is aware, except as disclosed herein, it is neither directly nor indirectly owned or controlled by any single corporation or corporations acting jointly, nor by any government.
Reed Elsevier NV is not aware of any arrangements the operation of which may at a subsequent date result in a change in control of Reed Elsevier NV. The major shareholders of Reed Elsevier NV do not have different voting rights to other ordinary shareholders.
Transactions with joint ventures and key management personnel, comprising the Executive and Non-Executive Directors of Reed Elsevier PLC and Reed Elsevier NV, are set out in note 29 to the combined financial statements. Further details of remuneration of key management personnel are set out in Item 6 Directors, Senior Management and Employees.
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FINANCIAL STATEMENTS
See Item 18: Financial Statements.
DIVIDEND POLICY
Dividends to Reed Elsevier PLC and Reed Elsevier NV shareholders are, other than in special circumstances, equalised at the gross level, including the benefit of the UK attributable tax credit of 10% available to certain Reed Elsevier PLC shareholders. The exchange rate used for each dividend calculation as defined in the Reed Elsevier merger agreement is the spot euro/sterling exchange rate, averaged over a period of five business days commencing with the tenth business day before the announcement of the proposed dividend. The Boards of Reed Elsevier PLC and Reed Elsevier NV have adopted dividend policies in recent years in respect of their equalised dividends that, subject to currency considerations, more closely align dividend growth with growth in adjusted earnings, consistent with the dividend normally being covered over the longer term at least two times by adjusted earnings (i.e. before the amortisation of acquired intangible assets, acquisition related costs, net financing charge on defined benefit pension schemes, disposal gains and losses and other non operating items, related tax effects, other deferred tax credits from intangible assets and exceptional prior year tax credits).
Reed Elsevier NV may resolve that the dividend to be paid on each R share shall be lower than the dividend to be paid on each ordinary share, but not less than 1% of the nominal value of an R share.
LEGAL PROCEEDINGS
Various of the Groups subsidiaries operating in the United States have been the subject of legal proceedings and federal and state regulatory actions relating to data security breaches, pursuant to which unauthorised persons obtained personal identifying information from our databases, or alleged breaches of federal privacy laws in connection with the obtaining and disclosure by such subsidiaries of information without the consent of the individuals involved. The principal actions and investigations have been settled, with the substantial portion of cash payments agreed to be paid by these subsidiaries being reimbursed by insurance and third-party indemnities. The settlements generally require strict data security programs, submissions of regulatory reports and on-going monitoring by independent third parties to ensure our compliance with the terms of those settlements. While the costs of such on-going monitoring will be borne by us, neither the costs of compliance nor the costs of such on-going monitoring are expected to have a material adverse effect on our financial position or the results of our operations.
Many of the products offered by Risk Solutions are subject to regulation under the US Fair Credit Reporting Act (FCRA), Graham Leach Bliley Act (GLBA), Drivers Privacy Protection Act (DPPA) and related state laws requiring that we meet certain obligations in connection with the disclosure of information. Certain of these laws further provide for statutory penalties and attorneys fees for non-compliance. In the normal course of its business, Risk & Business Information deals with individual and class action lawsuits claiming violation of one or more of these statutes. Other than pending matters, to date, these cases have either been settled or successfully defended with a substantial portion of cash payments agreed to be paid by our insurance providers. These proceedings have not had, and are not expected to have, a material adverse effect on our financial position or the results of our operations.
We are party to various other legal proceedings arising in the ordinary course of our business, the ultimate resolutions of which are not expected to have a material adverse effect on our financial position or the results of our operations.
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REED ELSEVIER PLC
The Reed Elsevier PLC ordinary shares are listed on the London Stock Exchange and the New York Stock Exchange. The London Stock Exchange is the principal trading market for Reed Elsevier PLC ordinary shares. Trading on the New York Stock Exchange is in the form of American Depositary Shares (ADSs), evidenced by American Depositary Receipts (ADRs) issued by Citibank N.A., as depositary. Each ADS represents four Reed Elsevier PLC ordinary shares.
The table below sets forth, for the periods indicated, the high and low closing middle market quotations for the Reed Elsevier PLC ordinary shares on the London Stock Exchange as derived from the Daily Official List of the London Stock Exchange and the high and low last reported sales prices in US dollars for the Reed Elsevier PLC ADSs on the New York Stock Exchange, as derived from the New York Stock Exchange Composite Tape, and reported by Thomson Reuters Datastream:
Pence per ordinary share | US dollars per ADS | |||||||||||||||
Calendar Periods |
High | Low | High | Low | ||||||||||||
2014 |
1,113 | 866 | 69.76 | 57.73 | ||||||||||||
2013 |
899 | 641 | 60.05 | 41.01 | ||||||||||||
2012 |
652 | 469 | 42.04 | 28.90 | ||||||||||||
2011 |
591 | 461 | 37.74 | 29.61 | ||||||||||||
2010 |
563 | 461 | 35.70 | 26.82 | ||||||||||||
2014 |
||||||||||||||||
Fourth Quarter |
1,113 | 938 | 69.76 | 59.69 | ||||||||||||
Third Quarter |
1,011 | 917 | 66.56 | 63.21 | ||||||||||||
Second Quarter |
959 | 866 | 65.27 | 58.39 | ||||||||||||
First Quarter |
935 | 878 | 62.56 | 57.73 | ||||||||||||
2013 |
||||||||||||||||
Fourth Quarter |
899 | 822 | 60.05 | 52.69 | ||||||||||||
Third Quarter |
854 | 761 | 54.39 | 46.18 | ||||||||||||
Second Quarter |
796 | 715 | 48.39 | 44.36 | ||||||||||||
First Quarter |
782 | 641 | 47.53 | 41.01 | ||||||||||||
2012 |
||||||||||||||||
Fourth Quarter |
652 | 598 | 42.04 | 38.25 | ||||||||||||
Third Quarter |
608 | 506 | 39.34 | 31.53 | ||||||||||||
Second Quarter |
565 | 469 | 36.24 | 28.90 | ||||||||||||
First Quarter |
563 | 509 | 35.75 | 31.44 | ||||||||||||
Month |
||||||||||||||||
February 2015 |
1,188 | 1,118 | 73.51 | 69.02 | ||||||||||||
January 2015 |
1,162 | 1,066 | 70.33 | 64.75 | ||||||||||||
December 2014 |
1,110 | 1,042 | 69.76 | 65.22 | ||||||||||||
November 2014 |
1,113 | 1,028 | 69.32 | 65.02 | ||||||||||||
October 2014 |
1,027 | 938 | 65.74 | 59.69 | ||||||||||||
September 2014 |
1,011 | 980 | 66.28 | 63.94 |
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REED ELSEVIER NV
The Reed Elsevier NV ordinary shares are quoted on Euronext Amsterdam NV and the New York Stock Exchange. Euronext Amsterdam NV is the principal trading market for Reed Elsevier NV ordinary shares. Trading on the New York Stock Exchange is in the form of ADSs, evidenced by ADRs issued by Citibank N.A., as depositary. Each ADS represents two Reed Elsevier NV ordinary shares.
The table below sets forth, for the periods indicated, the high and low closing middle market quotations for the Reed Elsevier NV Ordinary Shares on Euronext Amsterdam NV as derived from the Officiële Prijscourant of Euronext Amsterdam NV and the high and low last reported sales prices in US dollars for the Reed Elsevier NV ADSs on the New York Stock Exchange, as derived from the New York Stock Exchange Composite Tape, and reported by Thomson Reuters Datastream:
per ordinary share | US dollars per ADS | |||||||||||||||
Calendar Periods |
High | Low | High | Low | ||||||||||||
2014 |
19.95 | 14.70 | 49.32 | 40.78 | ||||||||||||
2013 |
15.82 | 11.18 | 43.01 | 28.97 | ||||||||||||
2012 |
11.37 | 8.17 | 29.58 | 20.35 | ||||||||||||
2011 |
10.27 | 7.59 | 27.84 | 21.23 | ||||||||||||
2010 |
10.12 | 8.17 | 26.93 | 20.14 | ||||||||||||
2014 |
||||||||||||||||
Fourth Quarter |
19.95 | 16.42 | 49.32 | 42.03 | ||||||||||||
Third Quarter |
18.10 | 16.23 | 46.50 | 44.11 | ||||||||||||
Second Quarter |
16.85 | 14.70 | 45.94 | 40.78 | ||||||||||||
First Quarter |
16.23 | 15.09 | 44.51 | 40.89 | ||||||||||||
2013 |
||||||||||||||||
Fourth Quarter |
15.82 | 14.46 | 43.01 | 39.05 | ||||||||||||
Third Quarter |
15.07 | 13.00 | 40.55 | 33.68 | ||||||||||||
Second Quarter |
13.43 | 12.26 | 34.38 | 32.21 | ||||||||||||
First Quarter |
13.37 | 11.18 | 34.18 | 28.97 | ||||||||||||
2012 |
||||||||||||||||
Fourth Quarter |
11.37 | 10.23 | 29.58 | 26.50 | ||||||||||||
Third Quarter |
10.66 | 9.14 | 27.49 | 22.20 | ||||||||||||
Second Quarter |
9.73 | 8.17 | 25.97 | 20.35 | ||||||||||||
First Quarter |
9.64 | 8.79 | 25.76 | 22.36 | ||||||||||||
Month |
||||||||||||||||
February 2015 |
22.73 | 21.63 | 51.52 | 49.20 | ||||||||||||
January 2015 |
21.83 | 19.10 | 49.28 | 45.45 | ||||||||||||
December 2014 |
19.95 | 18.70 | 49.32 | 46.43 | ||||||||||||
November 2014 |
19.77 | 18.36 | 49.03 | 45.96 | ||||||||||||
October 2014 |
18.37 | 16.42 | 46.01 | 42.03 | ||||||||||||
September 2014 |
18.10 | 17.36 | 46.35 | 44.83 |
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ITEM 10: ADDITIONAL INFORMATION
REED ELSEVIER PLC
A copy of Reed Elsevier PLCs current Articles of Association (the Articles) is incorporated by reference from Exhibit 4.1 to the Registration Statement on Form S-8 filed with the SEC on May 25, 2010 see Item 19: Exhibits on pages S-3 and S-4.
The following is a summary of the current Articles. As a summary, it is not exhaustive and is qualified in its entirety by reference to UK law and the Articles.
Companys Objects
Reed Elsevier PLCs objects are unrestricted.
Share Capital
As at December 31, 2014 issued ordinary share capital comprised 1,205,397,320 shares of 14 51 / 116 p. At December 31, 2014 the total shares held in treasury were 77,730,978. Of these 8,032,643 ordinary shares were held by the Employee Benefit Trust and 69,698,335 ordinary shares were held in treasury by Reed Elsevier PLC. During 2014, Reed Elsevier PLC bought back 35,251,501 ordinary shares pursuant to the authority given by shareholders at the Annual General Meeting held on April 24, 2014 and the previous authority given by shareholders at the Annual General Meeting held on April 25, 2013. These shares are included in the number of ordinary shares held in treasury.
Reed Elsevier PLC by ordinary resolution and subject to the UK Companies Act 2006 (the Act) may:
1. | Allot shares up to a limit of 1/3 of the issued share capital, a further 1/3 of the issued share capital may be allotted but only in connection with a fully pre-emptive rights issue; |
2. | Sub-divide all or part of the share capital into shares of a smaller nominal value than the existing shares; and |
3. | Consolidate and divide all or part of the share capital into shares of a larger nominal value than the existing shares. |
All shares created by increase of Reed Elsevier PLCs share capital by consolidation, division or sub-division shall be subject to all the provisions of the Articles.
Reed Elsevier PLC by special resolution and subject to the Act may:
1. | Disapply shareholders pre-emption rights on new issue shares up to a limit of 5% of the issued share capital; |
2. | Buy back its own shares up to a limit of 10% of the issued share capital; and |
3. | Reduce its share capital. |
Transfer of ordinary shares
A certificated shareholding may be transferred in the usual form or in any other form approved by the Board. The Board in its discretion may refuse to register the transfer of a certificated share unless the instrument of transfer:
1. | is stamped or certified and lodged, at the registered office or other place that the Board decide, accompanied by the relevant share certificate and any other evidence that the Board may reasonably require to prove a legitimate right to transfer; |
2. | is in respect of only one class of shares; |
3. | is in favour of not more than four transferees; and |
4. | is not fully paid. |
Where the Board refuses to register a transfer of certificated shares, it must notify the transferee of the refusal within two months after the date on which the instrument of transfer was lodged with Reed Elsevier PLC.
For those members holding uncertificated shares, such transfers must be conducted using a relevant system as defined in the UK Uncertificated Securities Regulations 2001.
Untraced shareholders
Reed Elsevier PLC is entitled to sell any of its ordinary shares if;
1. | during the period of twelve years prior to the publication of any advertisement stating the intent to sell, at least three dividends have become payable on the shares which have remained uncashed; and |
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2. | during the period of three months following the publication of any advertisement stating the intent to sell, Reed Elsevier PLC has received no indication of the location, or existence of the member, or the person entitled to the shares by way of transmission. |
Dividend Rights
Subject to the provisions of the Act, the shareholders may by ordinary resolution declare a dividend no larger than the amount recommended by the Board. Interim dividends may also be payable if the Board deems that there is sufficient profit available for distribution. Except as otherwise provided by the rights attached to the shares, all dividends shall be declared and paid according to the amounts paid up on the shares on which the dividend is declared. No dividend payable in respect of a share shall bear interest against Reed Elsevier PLC, unless otherwise provided by the rights attached to the share.
Unclaimed dividends
Any dividend which remains unclaimed for 12 years from the date when it became due for payment shall, if the Board so resolves, be forfeited and cease to be owed by Reed Elsevier PLC to the shareholder. Reed Elsevier PLC may stop issuing dividend cheques or warrants:
1. | Where on at least two consecutive occasions dividend cheques/warrants are left uncashed or returned undelivered; or |
2. | Where after one such occasion reasonable enquiries have failed to establish an updated address. |
If the member goes on to claim a dividend or warrant, Reed Elsevier PLC must recommence issuing dividend cheques and warrants.
Distribution of assets on winding up
In the event of Reed Elsevier PLC being wound up, on the authority of a special resolution of Reed Elsevier PLC and subject to the UK Insolvency Act 1986 (as amended) the liquidator may:
1. | Divide among the members the whole or any part of the assets of Reed Elsevier PLC. |
2. | Value any assets and determine how the division should be made between the members or different classes of members. |
3. | Place the whole or any part of the assets in trust for the benefit of the members and determine the scope and terms of these trusts. |
A member cannot be compelled to accept an asset with an inherent liability.
Variation of rights
Subject to the Act, where the capital of Reed Elsevier PLC is divided into different classes of shares, the unique rights attached to the respective classes may be varied or cancelled:
1. | With the written consent of the holders of 75% in nominal value of the issued shares of the class (excluding any treasury shares held in that class); or |
2. | By authority of a special resolution passed at a separate general meeting of the holders of the shares of the class. |
General meetings of shareholders
Subject to the Act, Reed Elsevier PLC must hold a general meeting as its annual general meeting within six months from January 1 every year. The Board may convene a general meeting when necessary and must do so promptly upon requisition by the shareholders. The notice period for annual general meetings is 21 clear days and 14 clear days for other general meetings. Subject to the Act and the Articles, the notice shall be sent to every member at their registered address. If, on two consecutive occasions notices are sent to a members registered address and have been returned undelivered the member shall not be entitled to receive any subsequent notice.
Voting rights
On a poll, every shareholder present in person or by proxy has one vote for every share of which he is the holder. No member is entitled to vote on a partly paid share. The Board also has the discretion to prevent a member from voting in person or by proxy if they are in default of a duly served notice under section 793 of the Act, concerning a request for information about interest in Reed Elsevier PLCs shares.
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Directors Interests
Subject to the provisions of the Act, where a Director declares an interest to the Board, the Board may authorise the matter proposed to it which would otherwise constitute a conflict of interest and place a Director in breach of their statutory duty. Such authorisation is effective where the Director in question is not included in the quorum for the meeting and the matter was agreed without their vote, or would have been agreed to had their vote not been counted. A Directors duty to declare an interest does not apply in the circumstances provided for by section 177(5) and 177(6) of the Act. A Director:
1. | May be a party to, or otherwise interested in, any transaction or arrangement with Reed Elsevier PLC or in which Reed Elsevier PLC is otherwise (directly or interested in); |
2. | May act solely or with his firm in a professional capacity (not as auditor) for Reed Elsevier PLC and shall be entitled to remuneration for his professional services, notwithstanding his position as Director; and |
3. | May be interested in a body corporate in which Reed Elsevier PLC is directly or indirectly interested or where the relationship between the Director and the body corporate is at the request or direction of Reed Elsevier PLC. |
A Director with a declared interest that has been authorised by the Board, is not accountable to Reed Elsevier PLC or its shareholders for any benefits received.
Directors Remuneration
The remuneration of any Executive Director shall be determined by the Board in accordance with Reed Elsevier PLCs Remuneration Policy and may include (without limitation) admission to or continuance of membership of any scheme (including share acquisition schemes), life assurance, pension provision or other such benefits payable to the Director on or after retirement, or to his dependants on or after death.
For Directors who do not hold an executive position in Reed Elsevier PLC, their ordinary remuneration shall not exceed in aggregate £500,000 per annum or such higher amount as Reed Elsevier PLC may determine by ordinary resolution from time to time. Each Director shall be paid a fee for their services which is deemed to accrue from day to day at such rate as determined by the Board.
The Directors may grant extra remuneration to any Director who does not hold executive office but sits on any committee of the Board, or performs any other special services at the request of Reed Elsevier PLC. This extra remuneration may be paid in addition to, or in substitution for the ordinary remuneration.
Directors appointment/retirement/removal
The Board may appoint a person willing to act as Director, either to fill a vacancy or as an additional Director, provided the upper limit set by the Articles is not exceeded. Reed Elsevier PLC may by ordinary resolution remove any Director from office, no special notice need be given and no Director proposed for removal under the Articles has a right of protest against such removal.
Borrowing powers
Subject to the Act, the Board may exercise all the powers of Reed Elsevier PLC to borrow money, guarantee, indemnify, mortgage or charge its undertaking, property, assets (present and future) and uncalled capital and to issue debentures and other securities whether outright or as collateral security for any debt, liability or obligation of Reed Elsevier PLC or of any third party. Without the authority of an ordinary resolution the directors are prohibited from borrowing an amount equal to the higher of (i) eight thousand million pounds; and (ii) two and a half times the adjusted total of capital and reserves.
Indemnity
Subject to the Act, without bar to any other existing indemnity entitlements, Reed Elsevier PLC may use its assets to indemnify a Director against liability incurred through negligence, default, breach of duty or breach of trust in relation to Reed Elsevier PLCs affairs.
REED ELSEVIER NV
The following is a summary of the principal provisions of Reed Elsevier NVs Articles of Association (the Articles). As a summary, it is not exhaustive and is qualified in its entirety by reference to Dutch law and the Articles as they read in the Dutch language. The Articles were last amended before a civil law notary in Amsterdam on October 21, 2014 after a shareholders resolution was passed to approve such amendment at a General Shareholders Meeting held on October 21, 2014. A copy of the current Articles is filed as Exhibit 1.2 see Item 19: Exhibits on pages S-3 and S-4.
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Share Capital
Reed Elsevier NV has two types of shares: ordinary shares of 0.07 euro nominal value and R shares of 0.70 euro nominal value. At the General Shareholders Meeting, each ordinary share is entitled to cast one vote. Each R share is convertible into 10 ordinary shares and is entitled to cast ten (10) votes. Otherwise it has the same rights as an ordinary share, except that Reed Elsevier NV may pay a lower dividend on an R share, but not less than 1% of the nominal value of an R share. The ordinary shares are listed at Euronext Amsterdam and ADRs in respect of the ordinary shares are listed on the NYSE New York.
As at December 31, 2014 Reed Elsevier NVs issued share capital comprised 697,153,245 ordinary shares and 4,303,179 R shares. At December 31, 2014 the total shares held in treasury were 49,279,276. Of these 5,337,782 ordinary shares were held by the Employee Benefit Trust and 41,298,544 ordinary shares and 264,295 R shares (equivalent to 2,642,950 ordinary shares) were held in treasury by Reed Elsevier NV.
At the extraordinary general meeting of shareholders of Reed Elsevier NV held in October 2014, the shareholders approved the reduction of the capital of Reed Elsevier NV by the cancellation of up to 40 million of its ordinary shares held in treasury. Following the shareholders meeting, the Board filed a declaration for the cancellation of 40 million ordinary shares with the Trade Register at the Chamber of Commerce on October 22, 2014. The 40 million ordinary shares of Reed Elsevier NV were subsequently cancelled with effect from December 24, 2014.
At the 2014 Annual General Shareholders Meeting, shareholders passed a resolution delegating the authority to the Board to acquire shares in Reed Elsevier NV for a period of 18 months from the date of the annual general meeting of shareholders and therefore up to and including October 22, 2015, for the maximum amount of 10% of the issued capital. During the year, 20,403,351 ordinary shares and additionally 107,901 R shares (equivalent to 1,079,010 ordinary shares) were purchased under this and the previous delegation of authority.
A resolution to renew the delegation of the authority to the Board to acquire shares in Reed Elsevier NV will be submitted to the shareholders at the 2015 Annual General Shareholders Meeting with a proposal to reduce the capital of Reed Elsevier NV by cancellation of up to 30 million of its ordinary shares held in treasury.
Ordinary shares can be registered in a shareholders name or held via a book-entry deposit under the Dutch Security Depositary Act.
Issuance of shares
Shares may be issued on the basis of a resolution of the general meeting of shareholders, which can designate this authority to the Board, provided that the aggregate nominal value up to which shares may be issued under this designated authority cannot exceed one-third of the sum of (i) Reed Elsevier NVs issued share capital at the time the resolution to make the designation is adopted and (ii) the aggregate nominal value of any rights granted by Reed Elsevier NV to take up shares outstanding at that time.
Pre-emptive rights of existing shareholders may be restricted or excluded by a resolution of the general meeting and in the event of an issue of shares pursuant to a resolution of the Board, the pre-emptive rights can be restricted or excluded pursuant to a resolution of the Board if the Board is designated competent to do so by the general meeting.
Acquisition of Reed Elsevier NVs own shares
Reed Elsevier NV is entitled to acquire its own fully paid-up shares or depositary receipts thereof, provided that either the acquisition is for no consideration or that:
(a) | Reed Elsevier NVs equity after the deduction of the acquisition price, is not less than the sum of the paid-up and called-up part of the issued share capital and the reserves which must be maintained by virtue of the law; and |
(b) | the nominal value of the shares or depositary receipts thereof, which Reed Elsevier NV acquires, holds, holds in pledge or which are held by a Subsidiary, does not exceed half of Reed Elsevier NVs issued share capital. |
An acquisition of Reed Elsevier NVs own shares other than for no consideration is only permitted if the general meeting has granted authorisation to the Board. No voting rights may be exercised on shares held by Reed Elsevier NV or a subsidiary and no dividend shall be paid on these shares.
The general meeting of shareholders may at the proposal of the Board resolve to reduce Reed Elsevier NVs issued share capital through cancellation of shares or through reduction of the nominal value of shares by amendment of the Articles of Association, provided that the issued share capital or the paid-up part thereof will not drop below the amount prescribed by the Dutch Civil Code.
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Transfer of shares
The transfer of a share shall require an instrument intended for such purpose and the written acknowledgement by Reed Elsevier NV of the transfer. The transfer of the rights of a Euroclear-participant with respect to ordinary shares which are included in the securities depositary system of Euroclear Nederland shall be effected in accordance with the provisions of the Dutch Security Depositary Act ( Wet giraal effectenverkeer ).
Dividend Rights
Each year the Board shall determine which part of the profits shown in the adopted profit and loss account shall be reserved. After allocation to reserves, the shareholders meeting shall determine the allocation of remaining profits. Distributions may be made only insofar as Reed Elsevier NVs equity exceeds the amount of the paid in and called up part of the issued share capital, increased by the reserves which must be kept by virtue of the law. Dividends shall be paid after adoption of the annual accounts showing that payment of dividends is permitted. Interim distributions may be payable, provided there is sufficient profit available for distribution in accordance with the aforementioned requirements as shown by interim accounts.
The Board
Reed Elsevier NV has a unitary board governance structure, comprising executive and non-executive directors. It is established board practice at Reed Elsevier NV that the executive and non-executive directors meet together. In performing their duties, the directors shall act in accordance with the interests of Reed Elsevier NV and the business connected with it.
The number of directors is determined by the Board. The number of executive directors shall at all times be less than the number of non-executive directors.
Directors shall be appointed by the General Shareholders Meeting on the basis of a proposal of the Non-Executive Directors. Under the Articles, directors are appointed for a three-year term, with the possibility of re-appointment. Notwithstanding these provisions in the articles of association and in accordance with the provisions of the UK Corporate Governance Code, all Directors seek annual re-appointment at the Annual General Meeting to align the arrangements regarding appointment for the Boards of Reed Elsevier NV and Reed Elsevier PLC.
Executive Directors
The Executive Directors are entrusted with the management of Reed Elsevier NV. In performing their duties, the Executive Directors shall act in accordance with the interests of Reed Elsevier NV and the business connected with it. The Board has established rules regarding the decision-making and working methods of the Executive Directors in addition to the Articles. In this context, the Board has also determined the duties for which each Executive Director in particular shall be responsible.
Non-Executive Directors
The duties of the Non-Executive Directors are to supervise the management of the Executive Directors and the general affairs in Reed Elsevier NV and the business connected with it, and to assist the executive directors by providing advice. In performing their duties the Non-Executive Directors shall act in accordance with the interests of Reed Elsevier NV and the business connected with it. The Non-Executive Directors have established rules regarding their decision-making process and working methods in addition to the Articles.
Reed Elsevier NV pursues a remuneration policy for the Executive Directors, which is determined by the general meeting upon a proposal by the Non-Executive Directors. The Remuneration Committee of RELX Group plc makes recommendations to the Non-Executive Directors of Reed Elsevier NV with regard to the remuneration policy for Executive Directors and the remuneration in all its forms for the Executive Directors.
As a general rule, Non-Executive Directors serve for two three-year terms. Individual Directors may serve up to one additional three-year term.
Suspension/dismissal
Each Director can at any time be suspended or dismissed by the General Shareholders Meeting. In addition, each Executive Director can at any time be suspended by the Board.
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Amendment of the Articles
Amendment of the Articles requires a shareholders resolution passed with an absolute majority of the votes cast, provided such resolution is passed at the proposal of the Board. Otherwise, a majority of two-thirds of the votes cast is required in a meeting at which at least half of Reed Elsevier NVs issued capital is represented. The notice for such a meeting must state that amendment of the Articles is on the agenda. A copy of the full text of the proposed amendment of the Articles must be made available free of charge to shareholders at the time of notice for the meeting. In accordance with Article 43 of the Articles, only certain provisions in the Articles including provisions governing appointments and dismissals of directors can be amended upon a proposal of the Board.
General meetings of shareholders
At least once a year, a General Shareholders Meeting is held. Notices of a general meeting are posted on our website and are made in accordance with the relevant provisions of the law. This means that the meeting is called at no less than 42 calendar days notice by an announcement on our website. The agenda and explanatory notes for the General Shareholders Meeting are published in advance on the website and are available at the listing agent and at the offices of Reed Elsevier NV from the day of the notice.
The Articles provide for a record date and this has been used at the recent General Shareholders Meetings. In accordance with Dutch law, the record date will be the 28th day before the date of the General Shareholders Meeting and the holder of shares as per the record date will be entitled to vote, irrespective of any transfer of such shares between the record date and the date of the general shareholders meeting.
The Annual General Shareholders Meeting discusses the annual report, adopts the annual accounts, resolves on a proposal to pay a dividend and votes on release from liability of the directors as separate agenda items in the annual general shareholders meeting.
Conflict of InterestDirectors
A Director shall not participate in the discussions and decision-making if he has a direct or indirect personal interest in the matter which is conflicting with the interests of Reed Elsevier NV and the business connected with it. In case because of this no resolution can be adopted by the Executive Directors, the Non-Executive Directors will resolve on the matter. In case because of this no resolution can be adopted by the Non-Executive Directors, the general meeting will resolve on the matter.
Remuneration
The remuneration policy for Executive Directors is determined by the General Shareholders Meeting upon a proposal of the Non-Executive Directors. The remuneration of the Executive Directors is determined by the Non-Executive Directors in line with the remuneration policy agreed by the shareholders meeting. With respect to remuneration in the form of shares in Reed Elsevier NV and/or rights to subscribe for such shares, the Non-Executive Directors will submit a proposal for approval to the shareholders meeting.
The Non-Executive Directors receive an annual remuneration. The remuneration of each Non-Executive Director individually, is determined by the Board, in line with the remuneration policy for non-executive directors. The maximum amount of annual remuneration shall be determined by the shareholders meeting and can only be adopted at the proposal of the Board. At the Annual General Meeting in 2011 the maximum amount of remuneration for the Non-Executive Directors was set at 600,000 per annum, for the proportion of the fees borne by Reed Elsevier NV.
Dissolution of Reed Elsevier NV
A resolution to dissolve Reed Elsevier NV requires an absolute majority of the votes cast at the General Meeting of Shareholders. The notice for such a meeting must state that dissolution will be on the agenda. If Reed Elsevier NV is dissolved by a resolution of the general meeting, the executive directors shall be charged with the liquidation of Reed Elsevier NV and the non-executive directors with the supervision thereof, subject to the relevant provisions of Book 2 of the Dutch Civil Code.
Assets which remain after payment of the debts shall be transferred to the holders of ordinary shares and the holders of class R shares in proportion to the nominal value of their shareholdings.
Indemnity
Under the Articles, to the extent permissible by law, Reed Elsevier NV shall indemnify and hold harmless each sitting and former director against the financial consequences of any liabilities or claims, brought by any party other than Reed Elsevier NV itself or its group companies, in relation to acts or omissions performed or committed in that persons capacity of director.
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PROPOSED CHANGES TO CORPORATE STRUCTURE
Certain changes to the corporate structure of our combined businesses are being proposed for shareholder approval at the Annual General Meetings of Reed Elsevier PLC and Reed Elsevier NV to be held in April 2015. In addition, the Boards of those two companies are proposing to shareholders to change the corporate names of Reed Elsevier PLC and Reed Elsevier NV to RELX PLC and RELX NV, respectively. See Item 4. Information on the GroupOrganisational Structure on pages 23 and 24.
There is currently no UK or Dutch legislation restricting the import or export of capital or affecting the remittance of dividends or other payments to holders of, respectively, Reed Elsevier PLC ordinary shares who are non-residents of the United Kingdom and Reed Elsevier NV ordinary shares who are non-residents of the Netherlands.
There are no limitations relating only to non-residents of the United Kingdom under UK law or Reed Elsevier PLCs Articles on the right to be a holder of, and to vote, Reed Elsevier PLC ordinary shares, or to non-residents of the Netherlands under Dutch law or Reed Elsevier NVs Articles on the right to be a holder of, and to vote, Reed Elsevier NV ordinary shares.
The following discussion is a summary under present law and tax authority practice of the material UK, Dutch and US federal income tax considerations relevant to the purchase, ownership and disposal of Reed Elsevier PLC ordinary shares or ADSs and Reed Elsevier NV ordinary shares or ADSs. This discussion applies to you only if you are a US holder, you hold your ordinary shares or ADSs as capital assets and you use the US dollar as your functional currency. It does not address the tax treatment of US holders subject to special rules, such as banks, dealers or traders in securities or currencies, insurance companies, tax-exempt entities, partnerships or other pass-through entities for US federal income tax purposes, holders of 10% or more of Reed Elsevier PLC or Reed Elsevier NV voting shares, persons holding ordinary shares or ADSs as part of a hedging, straddle, conversion or constructive sale transaction, persons that are resident or domiciled in the UK (or who have ceased to be resident in or became treated as resident outside the UK for the purpose of a double tax treaty (treaty non-resident) within the past five years of assessment, or, for departures before April 6, 2013, who have ceased to be resident or ordinarily resident or become treaty non-resident within the past five years of assessment) and persons that are resident in the Netherlands. The summary also does not discuss the US federal alternative minimum tax or the tax laws of particular states or localities in the US.
This summary does not consider your particular circumstances. It is not a substitute for tax advice. We urge you to consult your own independent tax advisors about the income, capital gains and/or transfer tax consequences to you in light of your particular circumstances of purchasing, holding and disposing of ordinary shares or ADSs.
As used in this discussion, US holder means a beneficial owner of ordinary shares or ADSs that is for US federal income tax purposes: (i) an individual US citizen or resident, (ii) a corporation, partnership or other business entity created or organised under the laws of the United States, any state thereof or the District of Columbia, (iii) a trust (a) that is subject to the control of one or more US persons and the primary supervision of a US court or (b) that has a valid election in effect under US Treasury regulations to be treated as a US person or (iv) an estate the income of which is subject to US federal income taxation regardless of its source.
UK Taxation
Dividends
Under current UK taxation legislation, no tax is required to be withheld at source from dividends paid on the Reed Elsevier PLC ordinary shares or ADSs. A shareholder in Reed Elsevier PLC who is an individual resident for UK tax purposes in the United Kingdom may be entitled, in calculating their liability to UK income tax, to a tax credit on cash dividends paid by Reed Elsevier PLC. The tax credit is equal to one-ninth of the cash dividend.
Capital Gains
Shareholders may be liable for UK taxation on capital gains realised on the disposal of their Reed Elsevier PLC ordinary shares or ADSs if at the time of the disposal the shareholder carries on a trade, profession or vocation in the United Kingdom through a branch or agency, or in the case of a company a permanent establishment, and such ordinary shares or ADSs are or have been used, held or acquired for the purposes of such trade, profession, vocation, branch, agency or permanent establishment.
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UK Stamp Duty and Stamp Duty Reserve Tax
Current UK law includes provision whereby UK stamp duty reserve tax (SDRT) or UK stamp duty is payable upon the transfer or issue of Reed Elsevier PLC ordinary shares to the depositary in exchange for Reed Elsevier PLC ADSs evidenced by ADRs. For this purpose, the current rate of stamp duty and SDRT is 1.5%, applied, in each case, to: (i) the issue price when the ordinary shares are issued; (ii) the amount or value of the consideration where shares are transferred for consideration in money or moneys worth; or (iii) the value of the ordinary shares in any other case. Following litigation HMRC have accepted that they will no longer seek to apply the 1.5% SDRT charge on an issue of shares into a clearance service or depositary receipt system on the basis that the charge is not compatible with EU law. Accordingly no UK SDRT or UK stamp duty is payable upon the issue of Reed Elsevier PLC shares to the depositary in exchange for Reed Elsevier PLC ADSs evidenced by ADRs. HMRCs view is that the 1.5% SDRT or stamp duty charge will continue to apply to transfer of shares into a clearance service or depositary receipt system, unless they are an integral part of the issue of share capital. This view is currently being challenged in further litigation.
Provided that the relevant instrument of transfer is not executed in the UK and remains outside the UK, no UK stamp duty will be payable on the acquisition or subsequent transfer of Reed Elsevier PLC ADSs. Under current law, an agreement to transfer Reed Elsevier PLC ADSs will not give rise to a liability to SDRT.
A transfer of Reed Elsevier PLC ordinary shares by the depositary to an ADS holder where there is no transfer of beneficial ownership will not be chargeable to UK stamp duty or SDRT.
Purchases of Reed Elsevier PLC ordinary shares, as opposed to ADSs, will generally give rise to UK stamp duty or SDRT at the time of transfer or agreement to transfer, normally at the rate of 0.5% of the amount payable for the ordinary shares. SDRT and UK stamp duty are usually paid by the purchaser. If the ordinary shares are later transferred to the depositary, additional UK stamp duty or SDRT may be payable as described above.
Dutch Taxation
Withholding tax
Dividends distributed to you by Reed Elsevier NV are normally subject to a withholding tax imposed by the Netherlands at a rate of 15%, which rate equals the rate of tax that the Netherlands is generally allowed to levy under the US-Netherlands income tax treaty. As a consequence, no administrative procedures for a partial relief at source from or a refund of Dutch dividend withholding tax need be complied with in respect of dividend distributions by Reed Elsevier NV. Dividends include, among other things, stock dividends unless the dividend is distributed out of recognised paid-in share premium for Dutch tax purposes.
Taxation of dividends and capital gains
You will not be subject to any Dutch taxes on dividends distributed by Reed Elsevier NV (other than the withholding tax described above) or any capital gain realised on the disposal of Reed Elsevier NV ordinary shares or ADSs provided that (i) the Reed Elsevier NV ordinary shares or ADSs are not attributable to an enterprise or an interest in an enterprise that you carry on, in whole or part through a permanent establishment or a permanent representative in the Netherlands, (ii) you do not have a substantial interest or a deemed substantial interest in Reed Elsevier NV (generally, 5% or more of either the total issued and outstanding capital or the issued and outstanding capital of any class of shares) or, if you have such an interest, you do not hold such interest with the avoidance of Netherlands (or foreign) (withholding) tax as (one of) the main purpose(s) or it forms part of the assets of an enterprise, and (iii) if you are an individual, such dividend or capital gain from your Reed Elsevier NV ordinary shares or ADSs does not form benefits from miscellaneous activities (resultaat uit overige werkzaamheden ) in the Netherlands. Benefits from miscellaneous activities in the Netherlands include income and gains derived from the holding, whether directly or indirectly, of (a combination of) shares, debt claims or other rights (together, a lucrative interest) that the holder thereof has acquired under such circumstances that such income and gains are intended to be remuneration for work or services performed by such holder (or a related person) in the Netherlands, whether within or outside an employment relation, where such lucrative interest provides the holder thereof, economically speaking, with certain benefits that have a relation to the relevant work or services.
US Federal Income Taxation
Holders of the ADSs generally will be treated for US federal income tax purposes as owners of the ordinary shares represented by the ADSs. Accordingly, deposits of ordinary shares for ADSs and withdrawals of shares for ADSs will not be subject to US federal income tax.
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Dividends
Dividends on Reed Elsevier PLC ordinary shares or ADSs or Reed Elsevier NV ordinary shares or ADSs (including any Dutch tax withheld) will generally be included in your gross income as ordinary income from foreign sources. The dollar amount recognised on receiving a dividend in pounds sterling or euros will be based on the exchange rate in effect on the date the depositary receives the dividend, or in the case of ordinary shares on the date you receive the dividend, as the case may be, whether or not the payment is converted into US dollars at that time. Any gain or loss recognised on a subsequent conversion of pounds sterling or euros for a different amount will be US source ordinary income or loss. Dividends received will not be eligible for the dividends received deduction available to corporations. Dividends received will be included in net investment income for purposes of the 3.8% Medicare contribution tax applicable to certain non-corporate US holders.
With respect to US holders who are individuals, certain dividends received from a qualified foreign corporation may be subject to reduced rates of taxation. A qualified foreign corporation includes a foreign corporation that is eligible for the benefits of certain comprehensive income tax treaties with the United States. United States Treasury Department guidance indicates that the United Kingdom is a country with which the United States has a treaty in force that meets these requirements, and Reed Elsevier PLC believes it is eligible for the benefits of this treaty. Additionally, the same guidance indicates that the Netherlands is also a country with which the United States has a treaty in force that meets the above requirements, and Reed Elsevier NV believes it is eligible for the benefits of this treaty. Individuals that do not meet a minimum holding period requirement during which they are not protected from the risk of loss or that elect to treat the dividend income as investment income pursuant to section 163(d)(4) of the US Internal Revenue Code of 1986, as amended, will not be eligible for the reduced rates of taxation. In addition, the rate reduction will not apply to dividends if the recipient of a dividend is obligated to make related payments with respect to positions in substantially similar or related property. This disallowance applies even if the minimum holding period has been met. US holders should consult their own tax advisors regarding the application of these rules given their particular circumstances.
Subject to certain conditions and limitations, foreign withholding taxes on dividends withheld at the appropriate rate may be treated as foreign taxes eligible for credit against your US federal income tax liability. For purposes of calculating the foreign tax credit, dividends paid on the ordinary shares or ADSs will be treated as income from sources outside the US and will generally constitute passive category income. Further, in certain circumstances, if you have held the ordinary shares or ADSs for less than a specified minimum period during which you are not protected from risk of loss, or are obligated to make payments related to the dividends, you will not be allowed a foreign tax credit for foreign taxes imposed on the dividends on the ordinary shares or ADSs. Individuals that treat a dividend as qualified dividend income may take into account for foreign tax credit limitation purposes only the portion of the dividend effectively taxed at the highest applicable marginal rate. The rules governing the foreign tax credit are complex. You are urged to consult your tax advisors regarding the availability of the foreign tax credit under your particular circumstances.
Dispositions
You will recognise a gain or loss on the sale or other disposition of ordinary shares or ADSs in an amount equal to the difference between your basis in the ordinary shares or ADSs and the amount realised. The gain or loss generally will be capital gain or loss. It will be long term capital gain or loss if you have held the ordinary shares or ADSs for more than one year at the time of sale or other disposition. Long term capital gains of individuals are eligible for reduced rates of taxation. Deductions for capital losses are subject to limitations. Any gain or loss you recognise generally will be treated as income from US sources for foreign tax credit limitation purposes.
If you receive pounds sterling or euros on the sale or other disposition of your ordinary shares or ADSs, you will realise an amount equal to the US dollar value of the pounds sterling or euros on the date of sale or other disposition (or in the case of cash basis and electing accrual basis taxpayers, if the ordinary shares or ADSs are traded on an established securities market, the settlement date for the sale or other disposition). You will have a tax basis in the pounds sterling or the euros that you receive equal to the US dollar amount received on the settlement date. Any gain or loss realised by a US holder between the sale date and the settlement date or on a subsequent conversion of pounds sterling or euros into US dollars will be US source ordinary income or loss. Gains recognised will be included in net investment income for purposes of the 3.8% Medicare contribution tax applicable to certain non-corporate US holders.
Information Reporting and Backup Withholding Tax
Dividends from ordinary shares or ADSs and proceeds from the sale of the ordinary shares or ADSs may be reported to the Internal Revenue Service (IRS) unless the shareholder is a corporation or other exempt recipient. A backup withholding tax may apply to such amounts unless the shareholder (i) is a corporation, (ii) provides an accurate taxpayer identification number and otherwise complies with applicable requirements of the backup withholding rules, or (iii) otherwise establishes a basis for exemption. The amount of any backup withholding tax will be allowed as a credit against the holders US federal income tax liability and may entitle the holder to a refund, provided the required information is furnished to the IRS.
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Certain US holders are required to report to the IRS information about their investment in ordinary shares or ADSs not held through an account with a domestic financial institution. Investors who fail to report required information are subject to substantial penalties. Investors should consult with their own tax advisers about the effect of this legislation on their investment in the ordinary shares or ADSs.
You may read and copy documents referred to in this annual report that have been filed with the SEC at the SECs public reference room located at 100 F Street NE, Washington, DC 20549-2521. Please call the SEC at 1-800-SEC-0330 for further information on the public reference rooms and their copy charges.
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ITEM 11: QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Market Risk
Our primary market risks are to changes in interest rates and exchange rates as well as liquidity and credit risk.
Net finance costs are exposed to interest rate fluctuations on borrowings, cash and cash equivalents. Upward fluctuations in interest rates increase the interest cost of floating rate borrowings whereas downward fluctuations in interest rates decrease the interest return on floating rate cash and cash equivalents. Interest expense payable on fixed rate borrowings is protected against upward fluctuations in interest rates but does not benefit from downward fluctuations. Our companies engage in foreign currency denominated transactions and are therefore subject to exchange rate risk on such transactions. Net finance costs are also exposed to changes in the fair value of derivatives (as a result of interest and exchange rate fluctuations) which are not part of a designated hedging relationship under IAS39 Financial Instruments: Recognition and Measurement, and to ineffectiveness that may arise on designated hedging relationships. Our management of this interest rate risk and foreign exchange rate risk is described below.
We manage a portfolio of long term debt, short term debt and committed bank facilities to support our capital structure and are exposed to the risk that relevant markets are closed and debt cannot be refinanced on a timely basis. In addition, the credit spread at which we borrow is exposed to changes in market liquidity and investor demand. We manage this risk by maintaining a range of borrowing facilities and debt programmes with a maturity profile to facilitate refinancing.
We have a credit exposure for the full principal amount of cash and cash equivalents held with individual counterparties. In addition, it has a credit risk from the potential non performance by counterparties to financial instruments; this credit risk normally being restricted to the amounts of any hedge gain and not the full principal amount being hedged. Credit risks are managed by monitoring the credit quality of counterparties and restricting the amounts outstanding with each of them.
Our management of the above market risks is described in further detail in note 18 on pages F-39 to F-40 of the combined financial statements.
Management of Interest Rate Risk and Foreign Exchange Rate Risk
We seek to limit our risk to interest and exchange rates by means of derivative financial instruments, including interest rate swaps, interest rate options, forward rate agreements and forward foreign exchange contracts. We only enter into derivative financial instruments to hedge (or reduce) the underlying risks described above.
We enter into interest rate swaps in order to achieve an appropriate balance between fixed and floating rate borrowings, cash and cash equivalents. They are used to hedge the effects of fluctuating interest rates on floating rate borrowings, cash and cash equivalents by allowing us to fix the interest rate on a notional principal amount equal to the principal amount of the underlying floating rate cash, cash equivalents or borrowings being hedged. They are also used to swap fixed interest rates payable on long term borrowings for a floating rate. Such swaps may be used to swap a whole fixed rate bond for floating rate or they may be used to swap a portion of the period or a portion of the principal amount for the floating rate.
Forward swaps and forward rate agreements are entered into to hedge interest rate exposures known to arise at a future date. These exposures may include new borrowings or cash deposits to be entered into at a future date or future rollovers of existing borrowings or cash deposits. Interest exposure arises on future, new and rollover borrowings and cash deposits because interest rates can fluctuate between the time a decision is made to enter into such transactions and the time those transactions are actually entered into. The purpose of forward swaps and forward rate agreements is to fix the interest cost on future borrowings or interest return on cash investments at the time it is known such a transaction will be entered into. The fixed interest rate, the floating rate index (if applicable) and the time period covered by forward swaps and forward rate agreements are known at the time the agreements are entered into. The use of forward swaps and forward rate agreements is limited to hedging activities; consequently no trading position results from their use. The hedging effect of forward swaps and forward rate agreements is the same as interest rate swaps. Similarly, We use forward foreign exchange contracts to hedge the effects of exchange rate movements on our foreign currency revenue and operating costs.
Interest rate options protect against fluctuating interest rates by enabling us to fix the interest rate on a notional principal amount of borrowings or cash deposits (in a similar manner to interest rate swaps and forward rate agreements) whilst at the same time allowing us to improve the fixed rate if the market moves in a certain way. We use interest rate options from time to time when we expect interest rates to move in our favour but it is deemed imprudent to leave the interest rate risk completely unhedged. In such cases, we may use an option to lock in at certain rates whilst at the same time maintaining some freedom to benefit if rates move in its favour.
Where net finance costs are exposed to changes in the fair value of derivatives (as a result of interest and exchange rate fluctuations), We manage this risk by designating derivatives in a highly effective hedging relationship unless the potential change in their fair value is deemed to be insignificant.
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Derivative financial instruments are utilised to hedge (or reduce) the risks of interest rate or exchange rate movements and are not entered into unless such risks exist. Derivatives utilised, while appropriate for hedging a particular kind of risk, are not considered specialised or high-risk and are generally available from numerous sources.
Sensitivity Analysis
The following analysis sets out the sensitivity of the fair value of our financial instruments to selected changes in interest rates and exchange rates. The range of changes represents our view of the changes that are reasonably possible over a one year period.
The fair values of interest rate swaps, interest rate options, forward rate agreements and forward foreign exchange contracts set out below represent the replacement costs calculated using market rates of interest and exchange at December 31, 2014. The fair value of long term borrowings has been calculated by discounting expected future cash flows at market rates.
Our use of financial instruments and its accounting policies for financial instruments are described more fully in notes 2 and 18 to the combined financial statements.
(a) Interest Rate Risk
The following sensitivity analysis assumes an immediate 100 basis point change in interest rates for all currencies and maturities from their levels at December 31, 2014 with all other variables held constant.
Financial Instrument |
Fair Value
December 31, 2014 |
Fair Value Change |
Fair Value
December 31, 2013 |
Fair Value Change | ||||||||||||||||||||
+100
basis points |
-100
basis points |
+100
basis points |
-100
basis points |
|||||||||||||||||||||
(In millions) | (In millions) | |||||||||||||||||||||||
Short term borrowings |
£ | (548 | ) | £ | | £ | | £ | (287 | ) | £ | | £ | | ||||||||||
Long term borrowings (including current portion) |
(3,682 | ) | 159 | (172 | ) | (3,360 | ) | 159 | (166 | ) | ||||||||||||||
Interest rate swaps (swapping fixed rate debt to floating) |
45 | (38 | ) | 40 | 92 | (47 | ) | 44 | ||||||||||||||||
Interest rate swaps (swapping floating rate debt to fixed) |
| | | | 1 | |
A 100 basis point change in interest rates would not result in a material change to the fair value of other financial instruments.
At December 31, 2014, 52% of gross borrowings are either fixed rate or have been fixed through the use of interest rate swaps, forward rate agreements and options. A 100 basis point reduction in interest rates would result in an estimated decrease in net finance costs of £16 million (2013: £12 million), based on the composition of financial instruments including cash, cash equivalents, bank loans and commercial paper borrowings at December 31, 2014. A 100 basis points rise in interest rates would result in an estimated increase in net finance costs of £16 million (2013: £12 million).
(b) Foreign Exchange Rate Risk
The following sensitivity analysis assumes an immediate 10% change in all foreign currency exchange rates against sterling from their levels at December 31, 2014 with all other variables held constant. A +10% change indicates a strengthening of the currency against sterling and a -10% change indicates a weakening of the currency against sterling.
Financial Instrument |
Fair Value
December 31, 2014 |
Fair Value Change |
Fair Value
December 31, 2013 |
Fair Value Change | ||||||||||||||||||||
+10% | -10% | +10% | -10% | |||||||||||||||||||||
(In millions) | (In millions) | |||||||||||||||||||||||
Cash and cash equivalents |
£ | 276 | £ | 26 | £ | (26 | ) | £ | 132 | £ | 13 | £ | (13 | ) | ||||||||||
Short term borrowings |
(548 | ) | (48 | ) | 48 | (287 | ) | (26 | ) | 26 | ||||||||||||||
Long term borrowings (including current portion) |
(3,682 | ) | (259 | ) | 259 | (3,360 | ) | (256 | ) | 256 | ||||||||||||||
Interest rate swaps (including cross currency interest rate swaps) |
5 | (2 | ) | 2 | 79 | 6 | (6 | ) | ||||||||||||||||
Forward foreign exchange contracts |
11 | (55 | ) | 55 | 92 | (62 | ) | 62 |
A 10% change in foreign currency exchange rates would not result in a material change to the fair value of other financial instruments.
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ITEM 12: DESCRIPTION OF SECURITIES OTHER THAN EQUITY SECURITIES
Fees and charges for American Depositary Receipt (ADR) holders
Citibank N.A., as depositary for the Reed Elsevier PLC and Reed Elsevier NV ADR programs, collects its fees for delivery and surrender of American Depositary Shares (ADSs) directly from investors depositing shares or surrendering ADSs for the purpose of withdrawal or from intermediaries acting for them. The depositary collects fees for making distributions to investors by deducting those fees from the amounts distributed or by selling a portion of distributable property to pay the fees. The depositary may collect its annual fee for depositary services by deductions from cash distributions or by directly billing investors or by charging the book-entry system accounts of participants acting for them. The depositary may generally refuse to provide fee-attracting services until its fees for those services are paid.
Persons depositing or withdrawing shares must pay |
For |
|
$5.00 (or less) per 100 ADSs (or portion of 100 ADSs) |
Issuance of ADSs, including issuances resulting from a distribution of shares or rights or other property (in certain circumstances volume discounts may be available) | |
Cancellation of ADSs for the purpose of withdrawal, including if the deposit agreement terminates | ||
$0.05 (or less) per ADS |
Any cash distribution to ADS registered holders | |
A fee equivalent to the fee that would be payable if securities distributed to you had been shares and the shares had been deposited for issuance of ADSs |
Distribution of securities distributed to holders of deposited securities which are distributed by the depositary to ADS registered holders |
|
$0.05 (or less) per ADS per calendar year |
Depositary services | |
Registration or transfer fees |
Transfer and registration of shares on our share register to or from the name of the depositary or its agent when you deposit or withdraw shares |
|
Expenses of the depositary |
Cable, telex and facsimile transmissions (when expressly provided in the deposit agreement) | |
Converting foreign currency to US dollars | ||
Taxes and other governmental charges the depositary or the custodian have to pay on any ADS or share underlying an ADS, for example, stock transfer taxes, stamp duty or withholding taxes | As necessary | |
Any charges incurred by the depositary or its agents for servicing the deposited securities | As necessary |
Fees and other payments made by the depositary to the Group
In consideration of acting as depositary, Citibank N.A. has agreed to make certain reimbursements and payments to us on an annual basis for expenses related to the administration and maintenance of the ADR programs including, but not limited to, New York Stock Exchange listing fees, investor relations expenses, or any other program related expenses. The depositary has also agreed to pay the standard out-of-pocket administrative, maintenance and shareholder services expenses for providing services to the registered DR holders. It has also agreed with us to waive certain standard fees associated with promotional services, program visibility campaigns and program analytic reporting. In certain instances, the depositary has agreed to provide additional annual reimbursements and payments to us based on any applicable performance indicators relating to the ADR facility. There are limits on the amount of expenses for which the depositary will reimburse us, but the amount of reimbursement available to us is not necessarily tied to the amount of fees the depositary collects from investors.
From January 1, 2014 to February 25, 2015, we received a reimbursement of $282,500, net of withheld taxes, from the depositary for New York Stock Exchange listing fees, investor relations expenses and other program related expenses, in connection with the ADR facility.
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ITEM 15: CONTROLS AND PROCEDURES
Evaluation of Disclosure Controls and Procedures
Reed Elsevier PLC and Reed Elsevier NV are required to comply with applicable US regulations, including the Sarbanes-Oxley Act of 2002, insofar as they apply to foreign private issuers. Accordingly, Reed Elsevier PLC and Reed Elsevier NV have established a Disclosure Committee comprising the company secretaries of Reed Elsevier PLC and Reed Elsevier NV and other senior Reed Elsevier managers appointed with the Chief Executive Officer and Chief Financial Officer of Reed Elsevier PLC and Reed Elsevier NV. The committee has reviewed and evaluated the effectiveness of our disclosure controls and procedures as of December 31, 2014. Based on that evaluation, the Chief Executive Officer and Chief Financial Officer of Reed Elsevier PLC and Reed Elsevier NV have concluded that the disclosure controls and procedures for the Reed Elsevier combined businesses, Reed Elsevier PLC and Reed Elsevier NV are effective as of the end of the period covered by this report.
Managements Annual Report on Internal Control over Financial Reporting
In accordance with Section 404 of the Sarbanes-Oxley Act, management is responsible for establishing and maintaining adequate internal control over financial reporting as defined in Rules 13a 15(f) and 15d 15(f) under the Exchange Act, as amended. The internal controls over financial reporting of the Reed Elsevier combined businesses, Reed Elsevier PLC and Reed Elsevier NV, are designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with IFRS. Because of its inherent limitations, internal control over financial reporting is not intended to provide absolute assurance that a misstatement of the financial statements of the Reed Elsevier combined businesses, Reed Elsevier PLC and Reed Elsevier NV would be prevented or detected.
Management conducted an evaluation of the effectiveness of its internal control over financial reporting based on the framework in Internal Control-Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission. Based on this evaluation, management concluded that the internal controls over financial reporting of the combined businesses, Reed Elsevier PLC and Reed Elsevier NV were effective as of December 31, 2014.
Certifications by the Chief Executive Officer and Chief Financial Officer of Reed Elsevier PLC and Reed Elsevier NV as required by the Sarbanes-Oxley Act are submitted as exhibits to this Form 20-F (see Item 19: Exhibits on pages S-3 and S-4).
Deloitte LLP has audited the combined financial statements for the fiscal year ended December 31, 2014 and have audited the effectiveness of internal control over financial reporting. Their report in respect of the combined businesses is included herein. Deloitte LLP have audited the consolidated financial statements of Reed Elsevier PLC and the consolidated financial statements of Reed Elsevier NV for the fiscal year ended December 31, 2014. They have also audited the effectiveness of internal control over financial reporting; their reports in respect of Reed Elsevier PLC and Reed Elsevier NV, respectively, are included herein.
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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and members of Reed Elsevier PLC and to the Board of Directors and shareholders of Reed Elsevier NV:
We have audited the internal control over financial reporting of the combined businesses of Reed Elsevier PLC, Reed Elsevier NV, RELX Group plc (formerly Reed Elsevier Group plc) and Elsevier Reed Finance BV and their respective subsidiaries, associates and joint ventures (together the Combined Businesses), as at December 31, 2014, based on criteria established in Internal Control Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission. The management of Reed Elsevier PLC and Reed Elsevier NV are responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting included in Managements Annual Report on Internal Control over Financial Reporting. Our responsibility is to express an opinion on the Combined Businesses 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 companys internal control over financial reporting is a process designed by, or under the supervision of, the companys principal executive and principal financial officers, or persons performing similar functions, and effected by the companys board of directors, management, and other personnel 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 companys 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 authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the companys assets that could have a material effect on the financial statements.
Because of the inherent limitations of internal control over financial reporting, including the possibility of collusion or improper management override of controls, material misstatements due to error or fraud may not be prevented or detected on a timely basis. Also, projections of any evaluation of the effectiveness of the internal control over financial reporting to future periods are subject to the risk that the 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, the Combined Businesses maintained, in all material respects, effective internal control over financial reporting as at December 31, 2014, based on the criteria established in Internal Control Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission.
We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the combined statement of financial position and the related combined income statement and combined statements of comprehensive income, cash flows and changes in equity as at and for the year ended December 31, 2014 of the Combined Businesses and our report dated February 25, 2015 expressed an unqualified opinion on those financial statements.
/s/ DELOITTE LLP London, United Kingdom February 25, 2015 |
||
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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and members of Reed Elsevier PLC:
We have audited the internal control over financial reporting of Reed Elsevier PLC and its subsidiaries (the Company) as at December 31, 2014, based on criteria established in Internal Control Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission. The Companys 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 Managements Annual Report on Internal Control over Financial Reporting. Our responsibility is to express an opinion on the Companys 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 companys internal control over financial reporting is a process designed by, or under the supervision of, the companys principal executive and principal financial officers, or persons performing similar functions, and effected by the companys board of directors, management, and other personnel 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 companys 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 authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the companys assets that could have a material effect on the financial statements.
Because of the inherent limitations of internal control over financial reporting, including the possibility of collusion or improper management override of controls, material misstatements due to error or fraud may not be prevented or detected on a timely basis. Also, projections of any evaluation of the effectiveness of the internal control over financial reporting to future periods are subject to the risk that the 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, the Company maintained, in all material respects, effective internal control over financial reporting as at December 31, 2014, based on the criteria established in Internal Control Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission.
We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated statement of financial position and the related consolidated income statement and the statements of comprehensive income, cash flows and changes in equity as at and for the year ended December 31, 2014 of the Company and our report dated February 25, 2015 expressed an unqualified opinion on those financial statements.
/ S / DELOITTE LLP |
London, United Kingdom February 25, 2015 |
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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and shareholders of Reed Elsevier NV:
We have audited the internal control over financial reporting of Reed Elsevier NV and its subsidiaries (the Company) as at December 31, 2014, based on criteria established in Internal Control Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission. The Companys 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 Managements Annual Report on Internal Control over Financial Reporting. Our responsibility is to express an opinion on the Companys 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 companys internal control over financial reporting is a process designed by, or under the supervision of, the companys principal executive and principal financial officers, or persons performing similar functions, and effected by the companys board of directors, management, and other personnel 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 companys 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 authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the companys assets that could have a material effect on the financial statements.
Because of the inherent limitations of internal control over financial reporting, including the possibility of collusion or improper management override of controls, material misstatements due to error or fraud may not be prevented or detected on a timely basis. Also, projections of any evaluation of the effectiveness of the internal control over financial reporting to future periods are subject to the risk that the 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, the Company maintained, in all material respects, effective internal control over financial reporting as at December 31, 2014, based on the criteria established in Internal Control Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission.
We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated statement of financial position and the related consolidated income statement and statements of comprehensive income, cash flows and changes in equity as at and for the year ended December 31, 2014 of the Company and our report dated February 25, 2015 expressed an unqualified opinion on those financial statements.
/ S / DELOITTE LLP |
London, United Kingdom |
February 25, 2015 |
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Internal Control over Financial Reporting
Management, including the Chief Executive Officer and Chief Financial Officer of Reed Elsevier PLC and Reed Elsevier NV, have reviewed whether or not during the period covered by the annual report, there have been any changes in internal control over financial reporting that have materially affected, or are reasonably likely to materially affect, the internal controls over financial reporting of the combined businesses, Reed Elsevier PLC and Reed Elsevier NV. Based on that review, the Chief Executive Officer and Chief Financial Officer of Reed Elsevier PLC and Reed Elsevier NV have concluded that there have been no such changes.
An outline of the internal control structure is set out below.
Parent companies
The Boards of Reed Elsevier PLC and Reed Elsevier NV have each adopted a schedule of matters which are required to be brought to them for decision. During 2014, the Boards of Reed Elsevier PLC and Reed Elsevier NV exercised independent supervisory roles over the activities and systems of internal control of Reed Elsevier Group plc and Elsevier Reed Finance BV. In relation to Reed Elsevier Group plc and Elsevier Reed Finance BV, the Boards of Reed Elsevier PLC and Reed Elsevier NV approved the strategy and the annual budgets, and received regular reports on the operations, including the treasury and risk management activities of the two companies. Major transactions proposed by the Boards of Reed Elsevier Group plc or Elsevier Reed Finance BV required the approval of the Boards of both Reed Elsevier PLC and Reed Elsevier NV.
The Reed Elsevier PLC and Reed Elsevier NV Audit Committees met on a regular basis to review the systems of internal control and risk management of Reed Elsevier Group plc and Elsevier Reed Finance BV.
Effective February 25, 2015, Reed Elsevier PLC and Reed Elsevier NV transferred their direct ownership interest in Elsevier Reed Finance BV to their jointly-owned company, Reed Elsevier Group plc and named this newly-combined single group entity RELX Group plc. As a result, RELX Group plc now holds all of our businesses and subsidiaries and controls our financing activities. In the future, Elsevier Reed Finance BV and its subsidiaries will be subject to the framework of procedures and controls established by RELX Group plc and the Audit Committee of RELX Group plc will review on a regular basis the system of internal control and risk management of Elsevier Reed Finance BV and its subsidiaries.
Operating companies
The Board of RELX Group plc is responsible for the system of internal control of the Group and reviewing the effectiveness of such systems. While the Boards of Elsevier Reed Finance BV were responsible for the system of internal control in respect of the finance activities during 2014 and reviewing the effectiveness of such systems, the responsibility transferred to RELX Group plc with effect from February 25, 2015.
The Boards of Reed Elsevier Group plc and Elsevier Reed Finance BV each implemented an ongoing process for identifying, evaluating, monitoring and managing the principal risks faced by their respective businesses. These processes were in place throughout the year ended December 31, 2014 and up to the date of the approvals of this annual report.
RELX Group plc
RELX Group plc has an established framework of procedures and internal controls, with which the management of each business is required to comply. Group businesses are required to maintain systems of internal control which are appropriate to the nature and scale of their activities and address all significant strategic, operational, financial and legal compliance risks that they face. The Board of RELX Group plc has adopted a schedule of matters that are required to be brought to it for decision.
RELX Group plc has a Code of Ethics and Business Conduct that provides a guide for achieving its business goals and requires officers and employees to behave in an open, honest, ethical and principled manner. The code also outlines confidential procedures enabling employees to report any concerns about compliance, or about the Groups financial reporting practice. The code is published on our website, www.relxgroup.com. The information on our website is not incorporated by reference into this report.
Each business area has identified and evaluated its principal risks, the controls in place to manage those risks and the levels of residual risk accepted. Risk management and control procedures are embedded into the operations of the business and include the monitoring of progress in areas for improvement that come to management and board attention. The principal risks identified include protection of IT systems and data, challenges to intellectual property rights, management of strategic and operational change, evaluation and integration of acquisitions, and recruitment and retention of personnel. Further detail on the principal risks facing the Group is set out on pages 7 to 10.
92
The principal risks facing the RELX Group plc businesses are regularly reported to and assessed by the Board and Audit Committee. With the close involvement of business management and central functions, the risk management and control procedures ensure that we are managing our business risks effectively and in a coordinated manner across the business with clarity on the respective responsibilities and interdependencies. Litigation and other legal and regulatory matters are managed by legal directors in Europe and the United States.
The RELX Group plc Audit Committee receives regular reports on the management of material risks and reviews these reports. The Audit Committee also receives regular reports from both internal and external auditors on internal control and risk management matters. In addition, each business area is required, at the end of the financial year, to review the effectiveness of internal controls and risk management and report its findings on a detailed basis to the management of RELX Group plc. These reports are summarised and, as part of the annual review of effectiveness, submitted to the Audit Committee of RELX Group plc. The Chairman of the Audit Committee reports to the Board on any significant internal control matters arising.
Elsevier Reed Finance BV
During 2014, Elsevier Reed Finance BV had established policy guidelines, which were applied to all Elsevier Reed Finance BV companies. The respective Boards of Elsevier Reed Finance BV adopted schedules of matters required to be brought to them for decision.
Procedures are in place for monitoring the activities of the finance group, including a comprehensive treasury reporting system. The principal risks affecting the finance group have been identified and evaluated and are subject to regular review. The controls in place to manage these risks and the level of residual risk accepted were monitored by the Boards of Elsevier Reed Finance BV. In future, these will be monitored by the Audit Committee of RELX Group plc.
Audit Committees
RELX Group plc, Reed Elsevier PLC and Reed Elsevier NV have established Audit Committees which comprise only non-executive directors, all of whom are independent. The Audit Committees, which meet regularly, are chaired by Ben van der Veer, the other members being Linda Sanford and Adrian Hennah.
The main roles and responsibilities of the Audit Committees in relation to the respective companies are set out in written terms of reference and include:
(i) | to monitor the integrity of the financial statements of the company, and any formal announcements relating to the companys financial performance, reviewing significant financial reporting judgements contained in them; |
(ii) | to review the companys internal financial controls and the companys internal control and risk management systems; |
(iii) | to monitor and review the effectiveness of the companys internal audit function; |
(iv) | to make recommendations to the Board, for it to put to the shareholders for their approval in general meeting, in relation to the appointment, reappointment and removal of the external auditor and to approve the remuneration and terms of engagement of the external auditor; |
(v) | to review and monitor the external auditors independence and objectivity and the effectiveness of the audit process, taking into consideration relevant professional and regulatory requirements; and |
(vi) | to develop and recommend policy on the engagement of the external auditor to supply non audit services, taking into account relevant ethical guidance regarding the provision of non audit services by the external audit firm, and to monitor compliance. |
The Audit Committees report to the respective boards on their activities identifying any matters in respect of which they consider that action or improvement is needed and making recommendations as to the steps to be taken.
The RELX Group plc Audit Committee fulfils this role in respect of the publishing and information operating business. The functions of an audit committee in respect of the financing activities were carried out by the Supervisory Board of Elsevier Reed Finance BV. The Reed Elsevier PLC and Reed Elsevier NV Audit Committees fulfil their roles from the perspective of the parent companies and both Committees have access to the reports to and the work of the RELX Group plc Audit Committee and, with respect to 2014, the Elsevier Reed Finance BV Supervisory Board.
The Audit Committees have explicit authority to investigate any matters within their terms of reference and have access to all resources and information that they may require for this purpose. The Audit Committees are entitled to obtain legal and other independent professional advice and have the authority to approve all fees payable to such advisers.
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The terms of reference of each Audit Committee are reviewed annually and a copy of each is published on our website, www.relxgroup.com. The information on our website is not incorporated by reference into this report.
Compliance with New York Stock Exchange Corporate Governance Rules
Reed Elsevier PLC and Reed Elsevier NV, as companies listed on the New York Stock Exchange (the NYSE), are subject to the listing requirements of the NYSE and the rules of the U.S. Securities and Exchange Commission (the SEC). We also continually monitor our compliance with the provisions of the Sarbanes-Oxley Act of 2002 that are applicable to foreign private issuers.
As a foreign private issuer, we are only required to comply with certain of the NYSE corporate governance rules and is in compliance with all applicable rules. The NYSEs rules also require disclosure of any significant ways in which our corporate governance practices differ from those required of US companies under the NYSE listing standards.
We follow UK corporate governance practice, which does not differ significantly from the NYSE corporate governance standards for foreign issuers. We also follow Dutch corporate governance practice. We believe that our corporate governance practices do not differ in any significant way from those required to be followed by US companies under the NYSE corporate governance listing standards.
The NYSE listing standards provide that US companies must have a nominating/corporate governance committee composed entirely of independent directors and with a written charter that addresses the committees purpose and responsibilities which, at a minimum, must be to identify individuals qualified to become board members, develop and recommend to the Board a set of corporate governance principles and to oversee the evaluation of the board and management.
Reed Elsevier PLC and Reed Elsevier NV have a joint Nominations Committee and a joint Corporate Governance Committee. The written terms of reference adopted by the Reed Elsevier PLC and the Reed Elsevier NV Boards for these committees specify purposes and responsibilities that correspond to those of a US companys nominating/corporate governance committee under the NYSEs listing standards. The Nominations Committee and the Corporate Governance Committee are composed entirely of Non-Executive Directors.
ITEM 16A: AUDIT COMMITTEE FINANCIAL EXPERT
Each of Reed Elsevier PLC and Reed Elsevier NV has an Audit Committee, the members of which are identified in Item 6: Directors, Senior Management and Employees. The members of the Board of Directors of Reed Elsevier PLC and members of the Board of Reed Elsevier NV, have determined that each of their respective Audit Committees contains at least one Audit Committee financial expert within the meaning of the applicable rules and regulations of the SEC. The Audit Committee financial experts serving on the Reed Elsevier PLC and the Reed Elsevier NV Audit Committees are Adrian Hennah and Ben van der Veer. Each is considered independent.
The Group has adopted a code of ethics (Code of Ethics and Business Conduct) that applies to all directors, officers and employees, and an additional separate code of ethics (Code for Senior Officers) that also applies to the Chief Executive Officer and Chief Financial Officer of Reed Elsevier PLC and Reed Elsevier NV and the Group Financial Controller of RELX Group plc. Both these codes of ethics are available on our website, www.relxgroup.com. The information on our website is not incorporated by reference into this report.
ITEM 16C: PRINCIPAL ACCOUNTANT FEES AND SERVICES
The aggregate fees billed by our principal accountants, Deloitte LLP, the member firm of Deloitte Touche Tohmatsu and their respective affiliates, were as follows:
Year
ended
December 31, 2014 |
Year
ended
December 31, 2013 |
|||||||
(in millions) | ||||||||
Audit fees |
£4.8 | £ | 4.9 | |||||
Audit related fees |
0.5 | 0.4 | ||||||
Tax fees |
1.0 | 1.8 | ||||||
Due diligence and other transaction related services |
0.3 | | ||||||
|
|
|
|
|||||
Total |
£6.6 | £ | 7.1 | |||||
|
|
|
|
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Audit fees of £4.8 million (2013: £4.9 million) comprise £0.6 million (2013: £0.6 million) payable to the auditors of the parent companies and £4.2 million (2013: £4.3 million) payable to the auditors of the parent companies and their associates for the audit of the financial statements of the operating and financing businesses, including the review and testing of internal control over financial reporting in accordance with the US Sarbanes-Oxley Act. Audit related fees comprise £0.5 million (2013: £0.4 million) for other audit related assurance services. Tax fees of £1 million (2013: £1.8 million) relate to tax services. Due diligence and other transaction related services fees of £0.3 million (2013: nil) relate to due diligence services.
The Audit Committees of Reed Elsevier PLC and Reed Elsevier NV have adopted policies and procedures for the pre-approval of audit and non audit services provided by the auditors. These policies and procedures are summarised below.
The terms of engagement and scope of the annual audit of the financial statements are agreed by the respective Audit Committees in advance of the engagement of the auditors in respect of the annual audit. The audit fees are approved by the Audit Committees.
The auditors are not permitted to provide non audit services that would compromise their independence or violate any laws or regulations that would affect their appointment as auditors. They are eligible for selection to provide non audit services only to the extent that their skills and experience make them a logical supplier of the services. The respective Audit Committees must pre-approve the provision of all non audit services by the auditors and will consider SEC rules and other guidelines in determining the scope of permitted services. The respective Audit Committees have pre-approved non audit services in respect of individual assignments for permitted services that meet certain criteria. Assignments outside these parameters must be specifically pre-approved by the Audit Committees in advance of commissioning the work. Aggregate non audit fees must not exceed the annual audit fees in any given year, unless approved in advance by the Audit Committees.
All of the audit and non audit services carried out in the year ended December 31, 2014 were pre-approved under the policies and procedures summarised above.
ITEM 16D: EXEMPTIONS FROM THE LISTING STANDARDS FOR AUDIT COMMITTEES
Not applicable.
ITEM 16E: PURCHASES OF EQUITY SECURITIES BY THE ISSUER AND AFFILIATED PURCHASERS
During 2014 we repurchased 35,251,501 Reed Elsevier PLC ordinary shares and 20,403,351 Reed Elsevier NV ordinary shares for total consideration of £600 million. These shares are held in treasury.
PLC | NV | |||||||||||||||
Number of ordinary shares |
Average price paid per share |
Number of ordinary shares |
Average price paid per share |
|||||||||||||
|
pence |
|
| |||||||||||||
January 2014 |
3,786,360 | 908 | 2,195,000 | 15.59 | ||||||||||||
February 2014 |
2,658,910 | 899 | 1,546,668 | 15.45 | ||||||||||||
March 2014 |
7,012,000 | 919 | 4,053,500 | 15.62 | ||||||||||||
April 2014 |
3,432,000 | 897 | 1,984,000 | 15.27 | ||||||||||||
May 2014 |
4,836,000 | 891 | 2,798,500 | 15.16 | ||||||||||||
June 2014 |
2,462,531 | 949 | 1,425,833 | 16.58 | ||||||||||||
July 2014 |
703,500 | 966 | 406,500 | 17.08 | ||||||||||||
August 2014 |
3,196,800 | 958 | 1,849,800 | 16.81 | ||||||||||||
September 2014 |
2,494,000 | 993 | 1,442,250 | 17.66 | ||||||||||||
October 2014 |
1,654,500 | 991 | 955,000 | 17.73 | ||||||||||||
November 2014 |
2,731,000 | 1,057 | 1,579,000 | 18.84 | ||||||||||||
December 2014 |
283,900 | 1,112 | 164,300 | 19.80 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
35,251,501 | 938 | 20,403,351 | 16.24 | |||||||||||||
|
|
|
|
|
|
|
|
All shares were purchased under programmes publicly announced on December 16, 2013, February 27, 2014 and July 24, 2014. All of these programmes were completed during 2014.
On December 14, 2014 Reed Elsevier PLC and Reed Elsevier NV announced a non-discretionary programme to repurchase further ordinary shares up to the value of £100 million. A further 4,815,950 Reed Elsevier PLC shares and
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2,787,800 Reed Elsevier NV ordinary shares have been repurchased in January and February 2015, under this programme. On February 26, 2015, Reed Elsevier PLC and Reed Elsevier NV announced their intention to repurchase further ordinary shares up to the value of £ 400 million in aggregate over the remainder of 2015.
During 2014 we also repurchased 107,901 Reed Elsevier NV R shares (equivalent to 1,079,010 Reed Elsevier NV ordinary shares).
During 2014 the Employee Benefit Trust (EBT) also purchased 757,781 Reed Elsevier PLC Shares and 1,989,279 Reed Elsevier NV Shares.
ITEM 16F: CHANGE IN REGISTRANTS CERTIFYING ACCOUNTANT
On February 16, 2015, the Audit Committee of Reed Elsevier NV approved for the purposes of the Annual Report on Form 20-F the selection of Deloitte LLP to serve as Reed Elsevier NVs independent registered public accounting firm, and the Audit Committees of Reed Elsevier PLC and Reed Elsevier NV approved for the purposes of Form 20-F the selection of Deloitte LLP to serve as the sole accounting firm of the combined businesses, which, for the fiscal year ended December 31, 2014, comprised Reed Elsevier PLC, Reed Elsevier NV, RELX Group plc (formerly Reed Elsevier Group plc), Elsevier Reed Finance BV and their respective subsidiaries, associates and joint ventures. Deloitte LLP was notified on February 16, 2015 of the change from being joint auditor to sole auditor for the fiscal year ended December 31, 2014. Accordingly the term of Deloitte Accountants B.V. as Reed Elsevier NVs independent registered public accounting firm for the Form 20-F has ended.
The audit reports of Deloitte Accountants B.V. on the consolidated financial statements of Reed Elsevier NV and its subsidiaries and on the combined financial statements of the combined businesses as of and for the years ended December 31, 2013 and 2012 did not contain any adverse opinion or disclaimer of opinion nor were they qualified or modified as to uncertainty, audit scope or accounting principles. The audit reports of Deloitte Accountants B.V. on the effectiveness of internal control over financial reporting of Reed Elsevier NV and the combined businesses as of December 31, 2013 and 2012 did not contain any adverse opinion or disclaimer of opinion, nor were they qualified or modified as to uncertainty, audit scope or accounting principles.
During the two fiscal years ended December 31, 2013 and 2012, there were no disagreements between Reed Elsevier NV, the combined businesses and Deloitte Accountants B.V. on any matter of accounting principles or practices, financial statement disclosure or auditing scope or procedures which, if not resolved to the satisfaction of Deloitte Accountants B.V., would have caused Deloitte Accountants B.V. to make reference thereto in their reports on the consolidated financial statements for such years.
Reed Elsevier NV and the combined businesses provided Deloitte Accountants B.V. with a copy of this disclosure, and requested them to furnish it with a letter addressed to the U.S. Securities and Exchange Commission stating whether it agrees with the above statements. A copy of such letter, dated February 25, 2015, is filed as Exhibit 16.1 to this Form 20-F.
ITEM 16G: CORPORATE GOVERNANCE
Details of our corporate governance practices are set out on pages 88 to 95 of Item 15: Controls and Procedures.
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The Registrants have responded to Item 18 in lieu of responding to this Item.
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Financial Statements filed as part of this annual report
The following financial statements and related schedules, together with reports of independent registered public accounting firms thereon, are filed as part of this annual report:
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F-4
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and members of Reed Elsevier PLC and to the Board of Directors and shareholders of Reed Elsevier NV:
We have audited the accompanying combined statements of financial position of Reed Elsevier PLC, Reed Elsevier NV, RELX Group plc (formerly Reed Elsevier Group plc) and Elsevier Reed Finance BV and their respective subsidiaries, associates and joint ventures (together the Combined Businesses) as at December 31, 2014, 2013 and 2012, and the related combined income statements and combined statements of comprehensive income, cash flows and changes in equity for each of the years then ended. These combined financial statements are the responsibility of the management of Reed Elsevier PLC and Reed Elsevier NV. Our responsibility is to express an opinion on the combined 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, such combined financial statements present fairly, in all material respects, the combined financial position of the Combined Businesses as at December 31, 2014, 2013 and 2012, and the combined results of their operations and their cash flows for each of the years then ended, in conformity with International Financial Reporting Standards as issued by the International Accounting Standards Board.
We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the Combined Businesses internal control over financial reporting as at December 31, 2014, based on the criteria established in Internal Control Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission and our report dated February 25, 2015 expressed an unqualified opinion on the Combined Businesses internal control over financial reporting.
/s/ DELOITTE LLP London, United Kingdom February 25, 2015 |
F-5
FOR THE YEAR ENDED DECEMBER 31, 2014
Note |
2014
£m |
2013
£m |
2012
£m |
|||||||||||||
Revenue |
3 | 5,773 | 6,035 | 6,116 | ||||||||||||
Cost of sales |
(2,006 | ) | (2,118 | ) | (2,139 | ) | ||||||||||
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|
|
|
|
|
|||||||||||
Gross profit |
3,767 | 3,917 | 3,977 | |||||||||||||
Selling and distribution costs |
|
(934
|
)
|
(1,005 | ) | (1,015 | ) | |||||||||
Administration and other expenses |
(1,467 | ) | (1,565 | ) | (1,653 | ) | ||||||||||
Share of results of joint ventures |
36 | 29 | 24 | |||||||||||||
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|
|
|
|
|
|||||||||||
Operating profit |
3, 4 | 1,402 | 1,376 | 1,333 | ||||||||||||
|
|
|
|
|
|
|||||||||||
Finance income |
8 | 7 | 10 | 16 | ||||||||||||
Finance costs |
8 | (169 | ) | (206 | ) | (243 | ) | |||||||||
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|
|
|
|
|||||||||||
Net finance costs |
(162 | ) | (196 | ) | (227 | ) | ||||||||||
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|
|||||||||||
Disposals and other non operating items |
9 | (11) | 16 | 45 | ||||||||||||
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|
|
|||||||||||
Profit before tax |
1,229 | 1,196 | 1,151 | |||||||||||||
|
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|
|
|
|
|||||||||||
Current tax |
(357 | ) | (352 | ) | (153 | ) | ||||||||||
Deferred tax |
88 | 271 | 51 | |||||||||||||
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|
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|
|||||||||||
Tax expense |
10 | (269 | ) | (81 | ) | (102 | ) | |||||||||
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|
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|
|
|||||||||||
Net profit for the year |
960 | 1,115 | 1,049 | |||||||||||||
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|
|
|||||||||||
Attributable to: |
||||||||||||||||
Parent companies shareholders |
955 | 1,110 | 1,044 | |||||||||||||
Non-controlling interests |
5 | 5 | 5 | |||||||||||||
|
|
|
|
|
|
|||||||||||
Net profit for the year |
960 | 1,115 | 1,049 | |||||||||||||
|
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|
|
|
COMBINED STATEMENT OF COMPREHENSIVE INCOME
FOR THE YEAR ENDED DECEMBER 31, 2014
Note |
2014
£m |
2013
£m |
2012
£m |
|||||||||||||
Net profit for the year |
960 | 1,115 | 1,049 | |||||||||||||
Items that will not be reclassified to profit or loss: |
||||||||||||||||
Actuarial (losses)/gains on defined benefit pension schemes |
6 | (266 | ) | 40 | (293 | ) | ||||||||||
Tax on items that will not be reclassified to profit or loss |
10 | 63 | (24 | ) | 96 | |||||||||||
|
|
|
|
|
|
|||||||||||
Total items that will not be reclassified to profit or loss |
(203 | ) | 16 | (197 | ) | |||||||||||
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|
|
|
|
|||||||||||
Items that may be reclassified subsequently to profit or loss: |
||||||||||||||||
Exchange differences on translation of foreign operations |
137 | (88 | ) | (136 | ) | |||||||||||
Transfer to net profit on disposal of available for sale investments |
| | 11 | |||||||||||||
Fair value movements on cash flow hedges |
18 | (81 | ) | 65 | 70 | |||||||||||
Transfer to net profit from cash flow hedge reserve |
18 | 19 | (3 | ) | 26 | |||||||||||
Tax on items that may be reclassified to profit or loss |
10 | 13 | (14 | ) | (24 | ) | ||||||||||
|
|
|
|
|
|
|||||||||||
Total item that may be reclassified to profit or loss |
88 | (40 | ) | (53 | ) | |||||||||||
|
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|
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|
|
|||||||||||
Other comprehensive loss for the year |
(115 | ) | (24 | ) | (250 | ) | ||||||||||
|
|
|
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|
|
|||||||||||
Total comprehensive income for the year |
845 | 1,091 | 799 | |||||||||||||
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|
|
|
|
|
|||||||||||
Attributable to: |
||||||||||||||||
Parent companies shareholders |
840 | 1,086 | 794 | |||||||||||||
Non-controlling interests |
5 | 5 | 5 | |||||||||||||
|
|
|
|
|
|
|||||||||||
Total comprehensive income for the year |
845 | 1,091 | 799 | |||||||||||||
|
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|
|
F-6
COMBINED STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 2014
Note |
2014
£m |
2013
£m |
2012
£m |
|||||||||||||
Cash flows from operating activities |
||||||||||||||||
Cash generated from operations |
11 | 1,851 | 1,943 | 1,847 | ||||||||||||
Interest paid |
(139 | ) | (200 | ) | (231 | ) | ||||||||||
Interest received |
13 | 5 | 7 | |||||||||||||
Tax paid (net) |
(348 | ) | (362 | ) | (216 | ) | ||||||||||
|
|
|
|
|
|
|||||||||||
Net cash from operating activities |
1,377 | 1,386 | 1,407 | |||||||||||||
|
|
|
|
|
|
|||||||||||
Cash flows from investing activities |
||||||||||||||||
Acquisitions |
11 | (396 | ) | (221 | ) | (316 | ) | |||||||||
Purchases of property, plant and equipment |
(67 | ) | (57 | ) | (70 | ) | ||||||||||
Expenditure on internally developed intangible assets |
(203 | ) | (251 | ) | (263 | ) | ||||||||||
Purchase of investments |
(6 | ) | (10 | ) | (7 | ) | ||||||||||
Proceeds from disposals of property, plant and equipment |
10 | 6 | 7 | |||||||||||||
Gross proceeds from business disposals |
78 | 311 | 235 | |||||||||||||
Payments on business disposals |
(25 | ) | (116 | ) | (82 | ) | ||||||||||
Dividends received from joint ventures |
44 | 22 | 20 | |||||||||||||
|
|
|
|
|
|
|||||||||||
Net cash used in investing activities |
(565 | ) | (316 | ) | (476 | ) | ||||||||||
|
|
|
|
|
|
|||||||||||
Cash flows from financing activities |
||||||||||||||||
Dividends paid to shareholders of the parent companies |
(565 | ) | (549 | ) | (521 | ) | ||||||||||
Distributions to non-controlling interests |
(7 | ) | (6 | ) | (4 | ) | ||||||||||
Increase/(decrease) in short term bank loans, overdrafts and commercial paper |
232 | 169 | (434 | ) | ||||||||||||
Issuance of term debt |
589 | 184 | 592 | |||||||||||||
Repayment of term debt |
(300 | ) | (915 | ) | (437 | ) | ||||||||||
Repayment of finance leases |
(10 | ) | (10 | ) | (4 | ) | ||||||||||
(Acquisition)/disposal of non-controlling interest |
(15 | ) | | 7 | ||||||||||||
Repurchase of ordinary shares |
(600 | ) | (600 | ) | (250 | ) | ||||||||||
Purchase of shares by employee benefit trust |
(39 | ) | | | ||||||||||||
Proceeds on issue of ordinary shares |
45 | 125 | 48 | |||||||||||||
|
|
|
|
|
|
|||||||||||
Net cash used in financing activities |
(670 | ) | (1,602 | ) | (1,003 | ) | ||||||||||
|
|
|
|
|
|
|||||||||||
Increase/(decrease) in cash and cash equivalents |
142 | (532 | ) | (72 | ) | |||||||||||
|
|
|
|
|
|
|||||||||||
Movement in cash and cash equivalents |
||||||||||||||||
At start of year |
132 | 641 | 726 | |||||||||||||
Increase/(decrease) in cash and cash equivalents |
142 | (532 | ) | (72 | ) | |||||||||||
Exchange translation differences |
2 | 23 | (13 | ) | ||||||||||||
|
|
|
|
|
|
|||||||||||
At end of year |
276 | 132 | 641 | |||||||||||||
|
|
|
|
|
|
F-7
COMBINED STATEMENT OF FINANCIAL POSITION
AS AT DECEMBER 31, 2014
Note |
2014
£m |
2013
£m |
2012
£m |
|||||||||||||
Non-current assets |
||||||||||||||||
Goodwill |
14 | 4,981 | 4,576 | 4,545 | ||||||||||||
Intangible assets |
15 | 3,164 | 3,124 | 3,275 | ||||||||||||
Investments in joint ventures |
16 | 125 | 125 | 100 | ||||||||||||
Other investments |
16 | 112 | 92 | 79 | ||||||||||||
Property, plant and equipment |
17 | 227 | 237 | 264 | ||||||||||||
Deferred tax assets |
19 | 464 | 442 | 79 | ||||||||||||
Derivative financial instruments |
18 | 78 | 64 | 138 | ||||||||||||
|
|
|
|
|
|
|||||||||||
9,151 | 8,660 | 8,480 | ||||||||||||||
|
|
|
|
|
|
|||||||||||
Current assets |
||||||||||||||||
Inventories and pre-publication costs |
20 | 142 | 142 | 159 | ||||||||||||
Trade and other receivables |
21 | 1,487 | 1,416 | 1,380 | ||||||||||||
Derivative financial instruments |
18 | 31 | 124 | 57 | ||||||||||||
Cash and cash equivalents |
276 | 132 | 641 | |||||||||||||
|
|
|
|
|
|
|||||||||||
1,936 | 1,814 | 2,237 | ||||||||||||||
|
|
|
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|
|
|||||||||||
Assets held for sale |
22 | | 21 | 297 | ||||||||||||
|
|
|
|
|
|
|||||||||||
Total assets |
11,087 | 10,495 | 11,014 | |||||||||||||
|
|
|
|
|
|
|||||||||||
Current liabilities |
||||||||||||||||
Trade and other payables |
23 | 2,636 | 2,595 | 2,544 | ||||||||||||
Derivative financial instruments |
18 | 23 | 4 | 11 | ||||||||||||
Borrowings |
24 | 676 | 648 | 730 | ||||||||||||
Taxation |
582 | 588 | 603 | |||||||||||||
Provisions |
26 | 19 | 17 | 30 | ||||||||||||
|
|
|
|
|
|
|||||||||||
3,936 | 3,852 | 3,918 | ||||||||||||||
|
|
|
|
|
|
|||||||||||
Non-current liabilities |
||||||||||||||||
Derivative financial instruments |
18 | 71 | 13 | | ||||||||||||
Borrowings |
24 | 3,149 | 2,633 | 3,162 | ||||||||||||
Deferred tax liabilities |
19 | 1,056 | 1,076 | 919 | ||||||||||||
Net pension obligations |
6 | 632 | 379 | 466 | ||||||||||||
Provisions |
26 | 104 | 116 | 139 | ||||||||||||
|
|
|
|
|
|
|||||||||||
5,012 | 4,217 | 4,686 | ||||||||||||||
|
|
|
|
|
|
|||||||||||
Liabilities associated with assets held for sale |
22 | 2 | 3 | 96 | ||||||||||||
|
|
|
|
|
|
|||||||||||
Total liabilities |
8,950 | 8,072 | 8,700 | |||||||||||||
|
|
|
|
|
|
|||||||||||
Net assets |
2,137 | 2,423 | 2,314 | |||||||||||||
|
|
|
|
|
|
|||||||||||
Capital and reserves |
||||||||||||||||
Combined share capitals |
27 | 212 | 224 | 223 | ||||||||||||
Combined share premiums |
27 | 2,820 | 2,887 | 2,727 | ||||||||||||
Combined shares held in treasury |
27 | (1,107 | ) | (1,464 | ) | (899 | ) | |||||||||
Translation reserve |
74 | (137 | ) | (23 | ) | |||||||||||
Other combined reserves |
28 | 107 | 880 | 252 | ||||||||||||
|
|
|
|
|
|
|||||||||||
Combined shareholders equity |
2,106 | 2,390 | 2,280 | |||||||||||||
Non-controlling interests |
31 | 33 | 34 | |||||||||||||
|
|
|
|
|
|
|||||||||||
Total equity |
2,137 | 2,423 | 2,314 | |||||||||||||
|
|
|
|
|
|
F-8
COMBINED STATEMENT OF CHANGES IN EQUITY
FOR THE YEAR ENDED DECEMBER 31, 2014
Note |
Combined
share capitals £m |
Combined
share premiums £m |
Combined
shares held in treasury £m |
Translation
reserve £m |
Other
combined reserves £m |
Combined
shareholders equity £m |
Non-
controlling interests £m |
Total
equity £m |
||||||||||||||||||||||||||||
Balance at January 1, 2014 |
224 | 2,887 | (1,464 | ) | (137 | ) | 880 | 2,390 | 33 | 2,423 | ||||||||||||||||||||||||||
Total comprehensive income for the year |
| | | 137 | 703 | 840 | 5 | 845 | ||||||||||||||||||||||||||||
Dividends paid |
13 | | | | | (565 | ) | (565 | ) | (7 | ) | (572 | ) | |||||||||||||||||||||||
Issue of ordinary shares, net of expenses |
2 | 43 | | | | 45 | | 45 | ||||||||||||||||||||||||||||
Repurchase of ordinary shares |
| | (639 | ) | | | (639 | ) | | (639 | ) | |||||||||||||||||||||||||
Cancellation of shares |
(11 | ) | | 930 | | (919 | ) | | | | ||||||||||||||||||||||||||
Increase in share based remuneration reserve (net of tax) |
| | | | 48 | 48 | | 48 | ||||||||||||||||||||||||||||
Settlement of share awards |
| | 27 | | (27 | ) | | | | |||||||||||||||||||||||||||
Acquisitions |
| | | | | | 1 | 1 | ||||||||||||||||||||||||||||
Acquisition of non-controlling interest |
| | | | (13 | ) | (13 | ) | (2 | ) | (15 | ) | ||||||||||||||||||||||||
Exchange differences on translation of capital and reserves |
(3 | ) | (110 | ) | 39 | 74 | | | 1 | 1 | ||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
Balance at December 31, 2014 |
212 | 2,820 | (1,107 | ) | 74 | 107 | 2,106 | 31 | 2,137 | |||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
Balance at January 1, 2013 |
223 | 2,727 | (899 | ) | (23 | ) | 252 | 2,280 | 34 | 2,314 | ||||||||||||||||||||||||||
Total comprehensive income for the year |
| | | (88 | ) | 1,174 | 1,086 | 5 | 1,091 | |||||||||||||||||||||||||||
Dividends paid |
13 | | | | | (549 | ) | (549 | ) | (6 | ) | (555 | ) | |||||||||||||||||||||||
Issue of ordinary shares, net of expenses |
1 | 124 | | | | 125 | | 125 | ||||||||||||||||||||||||||||
Repurchase of ordinary shares |
| | (600 | ) | | | (600 | ) | | (600 | ) | |||||||||||||||||||||||||
Increase in share based remuneration reserve (net of tax) |
| | | | 48 | 48 | | 48 | ||||||||||||||||||||||||||||
Settlement of share awards |
| | 40 | | (40 | ) | | | | |||||||||||||||||||||||||||
Exchange differences on translation of capital and reserves |
| 36 | (5 | ) | (26 | ) | (5 | ) | | | | |||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
Balance at December 31, 2013 |
224 | 2,887 | (1,464 | ) | (137 | ) | 880 | 2,390 | 33 | 2,423 | ||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
Balance at January 1, 2012 |
223 | 2,723 | (663 | ) | 88 | (199 | ) | 2,172 | 25 | 2,197 | ||||||||||||||||||||||||||
Total comprehensive income for the year |
| | | (136 | ) | 930 | 794 | 5 | 799 | |||||||||||||||||||||||||||
Dividends paid |
13 | | | | | (521 | ) | (521 | ) | (4 | ) | (525 | ) | |||||||||||||||||||||||
Issue of ordinary shares, net of expenses |
1 | 47 | | | | 48 | | 48 | ||||||||||||||||||||||||||||
Repurchase of ordinary shares |
| | (250 | ) | | | (250 | ) | | (250 | ) | |||||||||||||||||||||||||
Increase in share based remuneration reserve |
| | | | 31 | 31 | | 31 | ||||||||||||||||||||||||||||
Settlement of share awards |
| | 7 | | (7 | ) | | | | |||||||||||||||||||||||||||
Acquisitions |
| | | | | | 9 | 9 | ||||||||||||||||||||||||||||
Disposal of non-controlling interest |
| | | | 6 | 6 | 1 | 7 | ||||||||||||||||||||||||||||
Exchange differences on translation of capital and reserves |
(1 | ) | (43 | ) | 7 | 25 | 12 | | (2 | ) | (2 | ) | ||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
Balance at December 31, 2012 |
223 | 2,727 | (899 | ) | (23 | ) | 252 | 2,280 | 34 | 2,314 | ||||||||||||||||||||||||||
|
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F-9
NOTES TO THE COMBINED FINANCIAL STATEMENTS
1. | Basis of preparation |
The combined financial statements are prepared in accordance with International Financial Reporting Standards (IFRS) as issued by the International Accounting Standards Board (IASB) as adopted by the European Union.
As a consequence of the merger of their respective businesses, Reed Elsevier PLC and Reed Elsevier NV contributed their businesses to two jointly owned companies, Reed Elsevier Group plc and Elsevier Reed Finance BV. During 2014, Reed Elsevier Group plc, a company incorporated in England, owned the publishing and information businesses, and Elsevier Reed Finance BV, a company incorporated in the Netherlands, owned the financing and treasury companies. Reed Elsevier PLC and Reed Elsevier NV each held a 50% interest in Reed Elsevier Group plc. Until the end of 2014, Reed Elsevier PLC held a 39% interest in Elsevier Reed Finance BV and Reed Elsevier NV held a 61% interest. Reed Elsevier PLC additionally holds an indirect equity interest in Reed Elsevier NV, reflecting the arrangements entered into between Reed Elsevier PLC and Reed Elsevier NV at the time of the merger, which determined the equalisation ratio whereby one Reed Elsevier NV ordinary share is, in broad terms, intended to confer equivalent economic interests to 1.538 Reed Elsevier PLC ordinary shares.
The equalisation agreement between Reed Elsevier PLC and Reed Elsevier NV has the effect that their shareholders can be regarded as having the interests of a single economic group. For 2014 the Group combined financial statements (the combined financial Statements) represent the combined interests of both sets of shareholders and encompass the businesses of Reed Elsevier Group plc and Elsevier Reed Finance BV and their subsidiaries, associates and joint ventures, together with the two parent companies, Reed Elsevier PLC and Reed Elsevier NV (the combined businesses).
2. | Accounting policies |
The Group accounting policies are set out below:
Principles of combination
In preparing the combined financial statements, subsidiaries of Reed Elsevier Group plc and Elsevier Reed Finance BV are accounted for under the acquisition method and investments in associates and joint ventures are accounted for under the equity method. All transactions and balances between the combined businesses are eliminated.
On acquisition of a subsidiary, or interest in an associate or joint venture, fair values, reflecting conditions at the date of acquisition, are attributed to the net assets, including identifiable intangible assets acquired. This includes those adjustments made to bring accounting policies into line with those of the combined businesses. The results of subsidiaries sold or acquired are included in the combined financial statements up to or from the date that control passes from or to the combined businesses.
Non-controlling interests in the net assets of the combined businesses are identified separately from combined shareholders equity. Non-controlling interests consist of the amount of those interests at the date of the original acquisition and the non-controlling share of changes in equity since the date of acquisition.
Foreign exchange translation
The combined financial statements are presented in pounds sterling.
Transactions in foreign currencies are recorded at the rate of exchange prevailing on the date of the transaction. At each statement of financial position date, monetary assets and liabilities that are denominated in foreign currencies are retranslated at the rate prevailing on the statement of financial position date. Exchange differences arising are recorded in the income statement other than where hedge accounting applies as set out below.
Assets and liabilities of foreign operations are translated at exchange rates prevailing on the statement of financial position date. Income and expense items and cash flows of foreign operations are translated at the average exchange rate for the period. Significant individual items of income and expense and cash flows in foreign operations are translated at the rate prevailing on the date of transaction. Exchange differences arising are classified as equity and transferred to the translation reserve. When foreign operations are disposed of, the related cumulative translation differences are recognised within the income statement in the period.
The Group uses derivative financial instruments, primarily forward contracts, to hedge its exposure to certain foreign exchange risks. Details of the Groups accounting policies in respect of derivative financial instruments are set out below.
F-10
2. | Accounting policies (continued) |
Revenue
Revenue represents the invoiced value of sales less anticipated returns on transactions completed by performance, excluding customer sales taxes.
Revenues are recognised for the various categories as follows: subscriptions on periodic despatch of subscribed product or rateably over the period of the subscription where performance is not measurable by despatch; transactional on despatch or occurrence of the transaction and advertising on publication or over the period of online display.
Where sales consist of two or more independent components whose value can be reliably measured, revenue is recognised on each component as it is completed by performance, based on attribution of relative value.
Employee benefits
The expense of defined benefit pension schemes and other post-retirement employee benefits is determined using the projected unit credit method and charged in the income statement as an operating expense, based on actuarial assumptions reflecting market conditions at the beginning of the financial year. Actuarial gains and losses are recognised in full in the statement of comprehensive income in the period in which they occur.
Past service costs are recognised immediately at the earlier of when plan amendments or curtailments occur and when related restructuring costs or termination benefits are recognised. Settlements are recognised when they occur.
Net pension obligations in respect of defined benefit schemes are included in the statement of financial position at the present value of scheme liabilities, less the fair value of scheme assets. Where schemes are in surplus, i.e. assets exceed liabilities, the net pension assets are separately included in the statement of financial position. Any net pension asset is limited to the extent that the asset is recoverable through reductions in future contributions.
The expense of defined contribution pension schemes and other employee benefits is charged in the income statement as incurred.
Share based remuneration
The fair value of share based remuneration is determined at the date of grant and recognised as an expense in the income statement on a straight line basis over the vesting period, taking account of the estimated number of shares that are expected to vest. Market based performance criteria are taken into account when determining the fair value at the date of grant. Non-market based performance criteria are taken into account when estimating the number of shares expected to vest. The fair value of share based remuneration is determined by use of a binomial or Monte Carlo simulation model as appropriate. All the Groups share based remuneration is equity settled.
Borrowing costs
Borrowing costs that are directly attributable to the acquisition, construction or production of an asset that takes a substantial period of time to bring to use are capitalised. All other interest on borrowings is expensed as incurred. The cost of issuing borrowings is generally expensed over the period of borrowing so as to produce a constant periodic rate of charge.
Taxation
Tax expense comprises current and deferred tax. Current and deferred tax are charged or credited in the income statement except to the extent that the tax arises from a transaction or event which is recognised, in the same or a different period, outside profit or loss (either in other comprehensive income, directly in equity, or through a business combination) in which case the tax appears in the same statement as the transaction that gave rise to it.
Current tax is the amount of corporate income taxes payable or recoverable based on the profit for the period as adjusted for items that are not taxable or not deductible, and is calculated using tax rates and laws that were enacted or substantively enacted at the date of the statement of financial position. Management periodically evaluates positions taken in tax returns with respect to situations in which applicable tax regulation is subject to interpretation. Provisions are established where appropriate on the basis of amounts expected to be paid to the tax authorities.
Deferred tax is recognised on temporary differences arising between the tax bases of assets and liabilities and their carrying amounts in the statement of financial position. Deferred tax is calculated using tax rates and laws that have been enacted or substantively enacted at the end of the reporting period, and which are expected to apply when the related deferred tax asset is realised or the deferred tax liability is settled.
F-11
2. | Accounting policies (continued) |
Deferred tax liabilities are generally recognised for all taxable temporary differences but not recognised for taxable temporary differences arising on investments in subsidiaries, associates and joint ventures where the reversal of the temporary difference can be controlled and it is probable that the difference will not reverse in the foreseeable future. Deferred tax liabilities are not recognised on temporary differences that arise from goodwill which is not deductible for tax purposes.
Deferred tax assets are recognised to the extent it is probable that taxable profits will be available against which the deductible temporary differences can be utilised and are reviewed at the end of each reporting period and reduced to the extent that it is no longer probable that sufficient taxable profits will be available to allow all or part of the asset to be recovered.
Deferred tax assets and liabilities are not recognised in respect of temporary differences that arise on initial recognition of assets and liabilities acquired other than in a business combination. Deferred tax is not discounted.
Goodwill
On the acquisition of a subsidiary or business, the purchase consideration is allocated between the net tangible and intangible assets on a fair value basis, with any excess purchase consideration representing goodwill. Goodwill arising on acquisitions also includes amounts corresponding to deferred tax liabilities recognised in respect of acquired intangible assets.
Goodwill is recognised as an asset and reviewed for impairment when there is an indicator that the asset may be impaired and at least annually. Any impairment is recognised immediately in the income statement and not subsequently reversed.
On disposal of a subsidiary or business, the attributable amount of goodwill is included in the determination of the profit or loss on disposal.
Intangible assets
Intangible assets acquired as part of a business combination are stated in the statement of financial position at their fair value as at the date of acquisition, less accumulated amortisation. Internally generated intangible assets are stated in the statement of financial position at the directly attributable cost of creation of the asset, less accumulated amortisation.
Intangible assets acquired as part of business combinations comprise: market related assets (e.g. trademarks, imprints, brands); customer related assets (e.g. subscription bases, customer lists, customer relationships); editorial content; software and systems (e.g. application infrastructure, product delivery platforms, in-process research and development); contract based assets (e.g. publishing rights, exhibition rights, supply contracts); and other intangible assets. Internally generated intangible assets typically comprise software and systems development where an identifiable asset is created that is probable to generate future economic benefits.
Intangible assets, other than brands and imprints determined to have indefinite lives, are amortised on a straight line basis over their estimated useful lives. The estimated useful lives of intangible assets with finite lives are as follows: market and customer related assets 3 to 40 years; content, software and other acquired intangible assets 3 to 20 years; and internally developed intangible assets 3 to 10 years. Brands and imprints determined to have indefinite lives are not amortised and are subject to an impairment review at least annually.
Property, plant and equipment
Property, plant and equipment are stated in the statement of financial position at cost less accumulated depreciation. No depreciation is provided on freehold land. Freehold buildings and long leases are depreciated over their estimated useful lives up to a maximum of 50 years. Short leases are written off over the duration of the lease. Depreciation is provided on other assets on a straight line basis over their estimated useful lives as follows: leasehold improvements shorter of life of lease and 10 years; plant 3 to 20 years; office furniture, fixtures and fittings 5 to 10 years; computer systems, communication networks and equipment 3 to 7 years.
Investments
Investments, other than investments in joint arrangements and associates, are stated in the statement of financial position at fair value. Investments held as part of the venture capital portfolio are classified as held for trading, with changes in fair value reported in disposals and other non operating items in the income statement. All other investments are classified as available for sale with changes in fair value recognised directly in equity until the investment is disposed of or is determined to be impaired, at which time the cumulative gain or loss previously recognised in equity is brought into the net profit or loss for the period. All items recognised in the income statement relating to investments, other than investments in joint arrangements and associates, are reported as disposals and other non operating items.
F-12
2. | Accounting policies (continued) |
Available for sale investments and venture capital investments held for trading represent investments in listed and unlisted securities. The fair value of listed securities is determined based on quoted market prices, and of unlisted securities on managements estimate of fair value based on standard valuation techniques, including market comparisons and discounts of future cash flows, having regard to maximising the use of observable inputs and adjusting for risk. Advice from valuation experts is used as appropriate.
All joint arrangements are classified as joint ventures because the Group shares joint control and has rights to the net assets of the arrangements. Investments in joint ventures and associates are accounted for under the equity method and stated in the statement of financial position at cost as adjusted for post-acquisition changes in the Groups share of net assets, less any impairment in value.
Impairment
At each statement of financial position date, the carrying amounts of tangible and intangible assets and goodwill are reviewed to determine whether there is any indication that those assets have suffered an impairment loss. If any such indication exists, the recoverable amount, which is the higher of value in use and fair value less costs to sell, of the asset is estimated in order to determine the extent, if any, of the impairment loss. Where the asset does not generate cash flows that are independent from other assets, value in use estimates are made based on the cash flows of the cash generating unit to which the asset belongs. Intangible assets with an indefinite useful life are tested for impairment at least annually and whenever there is any indication that the asset may be impaired.
If the recoverable amount of an asset or cash generating unit is estimated to be less than its net carrying amount, the net carrying amount of the asset or cash generating unit is reduced to its recoverable amount. Impairment losses are recognised immediately in the income statement in administration and other expenses.
Inventories and pre-publication costs
Inventories and pre-publication costs are stated at the lower of cost, including appropriate attributable overhead, and estimated net realisable value. Pre-publication costs, representing costs incurred in the origination of content prior to publication, are expensed systematically reflecting the expected sales profile over the estimated economic lives of the related products, generally up to five years.
Leases
Assets held under leases which confer rights and obligations similar to those attaching to owned assets are classified as assets held under finance leases and capitalised within property, plant and equipment or software and the corresponding liability to pay rentals is shown net of interest in the statement of financial position as obligations under finance leases. The capitalised value of the assets is depreciated on a straight line basis over the shorter of the periods of the leases or the useful lives of the assets concerned. The interest element of the lease payments is allocated so as to produce a constant periodic rate of charge.
Operating lease rentals are charged to the income statement on a straight line basis over the period of the leases. Rental income from operating leases is recognised on a straight line basis over the term of the relevant lease.
Cash and cash equivalents
Cash and cash equivalents comprise cash balances, call deposits and other short term highly liquid investments and are held in the statement of financial position at fair value.
Assets held for sale
Assets of businesses that are available for immediate sale in their current condition and for which a sales process is considered highly probable to complete are classified as assets held for sale, and are carried at the lower of carrying value and fair value less costs to sell. Fair value is based on anticipated disposal proceeds, typically derived from firm or indicative offers from potential acquirers. Non-current assets are not amortised or depreciated following their classification as held for sale. Liabilities of businesses held for sale are also separately classified on the statement of financial position.
Financial instruments
Financial instruments comprise investments (other than investments in joint ventures or associates), trade receivables, cash and cash equivalents, payables and accruals, borrowings and derivative financial instruments.
F-13
2. | Accounting policies (continued) |
Investments (other than investments in joint ventures and associates) are classified as either held for trading or available for sale, as described above. (These investments are typically classified as either Level 1 or Level 2 in the IFRS13 fair value hierarchy.). The fair value of such investments is based on either quoted market prices or other observable market inputs.
Trade receivables are carried in the statement of financial position at invoiced value less allowance for estimated irrecoverable amounts. Irrecoverable amounts are estimated based on the ageing of trade receivables, experience and circumstance.
Borrowings and payables are recorded initially at fair value and subsequently carried at amortised cost (other than fixed rate borrowings in designated hedging relationships for which the carrying amount of the hedged portion of the borrowings is subsequently adjusted for the gain or loss attributable to the hedged risk).
Derivative financial instruments are used to hedge interest rate and foreign exchange risks. Changes in the fair value of derivative financial instruments that are designated and effective as hedges of future cash flows are recognised (net of tax) directly in equity in the hedge reserve. If a hedged firm commitment or forecasted transaction results in the recognition of a non financial asset or liability, then, at the time that the asset or liability is recognised, the associated gains or losses on the derivative that had previously been recognised in equity are included in the initial measurement of the asset or liability. For hedges that do not result in the recognition of an asset or a liability, amounts deferred in equity are recognised in the income statement in the same period in which the hedged item affects net profit or loss. Any ineffective portion of hedges is recognised immediately in the income statement.
Derivative financial instruments that are not designated as hedging instruments are classified as held for trading and recorded in the statement of financial position at fair value, with changes in fair value recognised in the income statement.
Where an effective hedge is in place against changes in the fair value of fixed rate borrowings, the hedged borrowings are adjusted for changes in fair value attributable to the risk being hedged with a corresponding income or expense included in the income statement within finance costs. The offsetting gains or losses from remeasuring the fair value of the related derivatives are also recognised in the income statement within finance costs. When the related derivative expires, is sold or terminated, or no longer qualifies for hedge accounting, the cumulative change in fair value of the hedged borrowing is amortised in the income statement over the period to maturity of the borrowing using the effective interest method.
The fair values of interest rate swaps, interest rate options, forward rate agreements and forward foreign exchange contracts represent the replacement costs calculated using observable market rates of interest and exchange. The fair value of long term borrowings is calculated by discounting expected future cash flows at observable market rates. (These instruments are accordingly classified as Level 2 in the IFRS13 fair value hierarchy.)
Cash flow hedge accounting is discontinued when a hedging instrument expires or is sold, terminated or exercised, or no longer qualifies for hedge accounting. At that time, any cumulative gain or loss on the hedging instrument recognised in equity is either retained in equity until the firm commitment or forecasted transaction occurs, or, where a hedged transaction is no longer expected to occur, is immediately credited or expensed in the income statement.
Provisions
Provisions are recognised when a present obligation exists as a result of a past event, the obligation is reasonably estimable, and it is probable that settlement will be required. Provisions are measured at the best estimate of the expenditure required to settle the obligation at the statement of financial position date.
Shares held in treasury
Shares of Reed Elsevier PLC and Reed Elsevier NV that are repurchased by the respective parent companies and not cancelled are classified as shares held in treasury. The consideration paid, including directly attributable costs, is recognised as a deduction from equity. Shares of the parent companies that are purchased by the Employee Benefit Trust are also classified as shares held in treasury, with the cost recognised as a deduction from equity.
Critical judgements and key sources of estimation uncertainty
The most significant accounting policies in determining the financial condition and results of the combined businesses, and those requiring the most subjective or complex judgement, relate to the valuation of goodwill and intangible assets, capitalisation of development spend, taxation and accounting for defined benefit pension schemes.
F-14
2. | Accounting policies (continued) |
Goodwill and acquired intangible assets
On acquisition of a subsidiary or business, the purchase consideration is allocated between the net tangible and intangible assets other than goodwill on a fair value basis, with any excess purchase consideration representing goodwill. The valuation of acquired intangible assets represents the estimated economic value in use, using standard valuation methodologies, including as appropriate, discounted cash flow, relief from royalty and comparable market transactions. Acquired intangible assets are capitalised and amortised systematically over their estimated useful lives, subject to impairment review.
Appropriate amortisation periods are selected based on assessments of the longevity of the brands and imprints, the strength and stability of customer relationships, the market positions of the acquired assets and the technological and competitive risks that they face. Certain intangible assets in relation to acquired science and medical publishing businesses have been determined to have indefinite lives. The longevity of these assets is evidenced by their long established and well regarded brands and imprints, and their characteristically stable market positions.
The carrying amounts of goodwill and indefinite lived intangible assets in each business are reviewed for impairment at least annually. The carrying amounts of all other intangible assets are reviewed where there are indications of possible impairment. An impairment review involves a comparison of the carrying value of the asset with estimated values in use based on the latest management cash flow projections approved by the board. Key areas of judgement in estimating the values in use of businesses are the growth in cash flows over a forecast period of up to five years, the long term growth rate assumed thereafter and the discount rate applied to the forecast cash flows. A description of the key assumptions and sensitivities is provided in note 14.
Development spend
Development spend embraces investment in new products and other initiatives, ranging from the building of online delivery platforms, to launch costs of new services, to building new infrastructure applications. Launch costs and other ongoing operating expenses of new products and services are expensed as incurred. The costs of building product applications, platforms and infrastructure are capitalised as intangible assets where the investment they represent has demonstrable value and technical and commercial feasibility is assured. Costs eligible for capitalisation must be incremental, clearly identified and directly attributable to a particular project. The resulting assets are amortised over their estimated useful lives. Impairment reviews are carried out at least annually. Judgement is required in the assessment of the potential value of a development project, the identification of costs eligible for capitalisation and the selection of appropriate asset lives.
Taxation
The Group is subject to tax in numerous jurisdictions, giving rise to complex tax issues that require management to exercise judgement in making tax determinations. While the Group is confident that tax returns are appropriately prepared and filed, amounts are provided in respect of uncertain tax positions that reflect the risk with respect to tax matters under active discussion with tax authorities, or which are otherwise considered to involve uncertainty. Amounts are provided using the best estimate of tax expected to be paid based on a qualitative assessment of all relevant factors. However, it is possible that at some future date liabilities may be adjusted as a result of audits by taxing authorities. Discussions with tax authorities relating to cross-border transactions and other matters are ongoing. Although the outcome of these discussions cannot be predicted, no significant impact on the financial position of the Group is expected.
In addition, estimation of income taxes includes assessments of the recoverability of deferred tax assets. Deferred tax assets are only recognized to the extent that they are considered recoverable based on existing tax laws and forecasts of future taxable profits against which the underlying tax deductions can be utilized. The recoverability of these assets is reassessed at the end of each reporting period, and changes in recognition of deferred tax assets will affect the tax liability in the period of that reassessment.
Pensions
The Group operates a number of defined benefit pension schemes across the world. The largest schemes are in the UK, the US and the Netherlands, as described in note 6 to the financial statements. These schemes require management to exercise judgement in estimating the ultimate cost of providing post-employment benefits, especially given the length of each schemes liabilities. The recognition of certain scheme liabilities is also subject to judgement. Accounting for defined benefit pension schemes involves judgement about uncertain events, including the life expectancy of the members, salary and pension increases, inflation, the future operation of each scheme and the rate at which the future pension payments are discounted. Estimates for these factors are used in determining the pension cost and liabilities reported in the financial statements. The estimates made around future developments of each of the critical assumptions are made in conjunction with independent actuaries. Each scheme is subject to a periodic review by independent actuaries. Information regarding some of the assumptions used for valuation is provided in note 6 to the financial statements, together with a sensitivity analysis.
F-15
2. | Accounting policies (continued) |
Other significant accounting policies
The accounting policies in respect of revenue recognition, pre-publication costs and property provisioning are also significant in determining the financial condition and results of the combined businesses, although the application of these policies is more straightforward.
Revenue recognition policies, while an area of management focus, are generally straightforward in application as the timing of product or service delivery and customer acceptance for the various revenue types can be readily determined. Allowances for product returns are deducted from revenues based on historical return rates. Where sales consist of two or more components that operate independently, revenue is recognised as each component is completed by performance, based on attribution of relative value.
Pre-publication costs incurred in the creation of content prior to production and publication are typically deferred and expensed over their estimated useful lives based on sales profiles. Such costs typically comprise direct internal labour costs and externally commissioned editorial and other fees. Estimated useful lives generally do not exceed five years. Annual reviews are carried out to assess the recoverability of carrying amounts.
The Group has exposures to sub lease shortfalls in respect of certain property leases for periods up to 2024. Provisions are recognised for net liabilities expected to arise on these exposures. Estimation of the provisions requires judgement in respect of future head lease costs, sub lease income and the length of vacancy periods. The charge for property provisions was nil (2013: nil; 2012: £62 million) relating to surplus property arising on the restructuring, sale and closure of Risk & Business Information businesses and includes expected losses on sub-leases entered into, an estimate of vacancy periods and future market conditions. Further information is provided in note 26 to the combined financial statements.
Standards and amendments effective for the year
The interpretations and amendments to IFRS effective for 2014 have not had a significant impact on the Groups accounting policies or reporting.
Standards, amendments and interpretations not yet effective
New accounting standards and amendments and their expected impact on the future accounting policies and reporting of the Group are set out below.
IFRS 15 Revenue from contracts with customers (effective for the 2017 financial year). The new standard provides a single point of reference for revenue recognition replacing a range of different revenue accounting standards, interpretations and guidance. The Group is in the process of assessing the impact of this standard.
IFRS9 Financial Instruments (effective for the 2018 financial year). The standard replaces the existing classification and measurement requirements in IAS39 for financial assets by requiring entities to classify them as being measured either at amortised cost or fair value depending on the business model and contractual cash flow characteristics of the asset. For financial liabilities, IFRS9 requires an entity choosing to measure a liability at fair value to present the portion of the change in its fair value due to changes in the entitys own credit risk in the other comprehensive income rather than the income statement. Adoption of the standard is not expected to have a significant impact on the measurement, presentation or disclosure of financial assets and liabilities in the combined financial statements.
Additionally, a number of amendments and interpretations have been issued which are not expected to have any significant impact on the Groups accounting policies and reporting.
F-16
3. | Segment analysis |
The Group is a leading provider of information solutions for professional customers across industries. We operate in four market segments: Scientific, Technical & Medical, providing information and tools to help its customers improve scientific and healthcare outcomes; Risk & Business Information, providing data services and tools that combine proprietary, public and third-party information, with technology and analytics to business and government customers; Legal, providing legal, tax, regulatory news and business information to legal, corporate, government and academic markets; and Exhibitions, organising exhibitions and conferences.
The Groups reported segments are based on the internal reporting structure and financial information provided to the Boards. During 2014, Risk Solutions and Business Information have been combined into one Business area, having previously operated separately. Accordingly, they are now presented as a single operating segment. Comparative figures have been presented as if the businesses had operated on a combined basis in the prior year.
Following a review of activities, assets and costs across the business, the Group introduced a new method for the allocation of corporate and shared costs from January 1, 2014. Previously unallocated items and costs relating to shared activities and resources have been attributed to the business segments on the basis of usage and benefits derived. This new allocation reflects an increased level of shared resources and capitalised costs. Comparative adjusted operating profit figures have been restated as if this allocation method had been used in the prior years. This reflects the presentation of financial information provided to the Boards.
Adjusted operating profit is the key segmental profit measure used by the Group in assessing performance. It is stated before amortisation of acquired intangible assets, the share of profit on disposals in joint ventures, acquisition related costs, and is grossed up to exclude the equity share of taxes in joint ventures.
Analysis by business segment
2014
£m |
2013
Restated £m |
2012
Restated £m |
||||||||||
Revenue |
||||||||||||
Scientific, Technical & Medical |
2,048 | 2,126 | 2,063 | |||||||||
Risk & Business Information |
1,439 | 1,480 | 1,589 | |||||||||
Legal |
1,396 | 1,567 | 1,610 | |||||||||
Exhibitions |
890 | 862 | 854 | |||||||||
|
|
|
|
|
|
|||||||
Total |
5,773 | 6,035 | 6,116 | |||||||||
|
|
|
|
|
|
|||||||
Adjusted operating profit |
||||||||||||
Scientific, Technical & Medical |
762 | 787 | 743 | |||||||||
Risk & Business Information |
506 | 507 | 498 | |||||||||
Legal |
260 | 250 | 244 | |||||||||
Exhibitions |
217 | 210 | 208 | |||||||||
|
|
|
|
|
|
|||||||
Sub-total |
1,745 | 1,754 | 1,693 | |||||||||
Corporate costs |
(6 | ) | (5 | ) | (5 | ) | ||||||
|
|
|
|
|
|
|||||||
Total |
1,739 | 1,749 | 1,688 | |||||||||
|
|
|
|
|
|
Analysis by geographical origin
2014
£m |
2013
£m |
2012
£m |
||||||||||
Revenue |
||||||||||||
North America |
2,884 | 3,103 | 3,122 | |||||||||
United Kingdom |
1,013 | 985 | 966 | |||||||||
The Netherlands |
636 | 656 | 611 | |||||||||
Rest of Europe |
686 | 698 | 788 | |||||||||
Rest of world |
554 | 593 | 629 | |||||||||
|
|
|
|
|
|
|||||||
Total |
5,773 | 6,035 | 6,116 | |||||||||
|
|
|
|
|
|
F-17
3. | Segment analysis (continued) |
Analysis by geographical market
2014
£m |
2013
£m |
2012
£m |
||||||||||
Revenue |
||||||||||||
North America |
2,878 | 3,082 | 3,154 | |||||||||
United Kingdom |
455 | 443 | 442 | |||||||||
The Netherlands |
153 | 166 | 165 | |||||||||
Rest of Europe |
1,053 | 1,074 | 1,176 | |||||||||
Rest of world |
1,234 | 1,270 | 1,179 | |||||||||
|
|
|
|
|
|
|||||||
Total |
5,773 | 6,035 | 6,116 | |||||||||
|
|
|
|
|
|
Analysis by format
2014
£m |
2013
£m |
2012
£m |
||||||||||
Revenue |
||||||||||||
Electronic |
3,839 | 3,971 | 3,896 | |||||||||
|
1,012 | 1,168 | 1,305 | |||||||||
Face to face |
922 | 896 | 915 | |||||||||
|
|
|
|
|
|
|||||||
Total |
5,773 | 6,035 | 6,116 | |||||||||
|
|
|
|
|
|
Analysis by type
2014
£m |
2013
£m |
2012
£m |
||||||||||
Revenue |
||||||||||||
Subscriptions |
2,966 | 3,112 | 2,978 | |||||||||
Transactional |
2,672 | 2,683 | 2,788 | |||||||||
Advertising |
135 | 240 | 350 | |||||||||
|
|
|
|
|
|
|||||||
Total |
5,773 | 6,035 | 6,116 | |||||||||
|
|
|
|
|
|
Share of post-tax results of joint ventures of £36 million (2013: £29 million; 2012: £24 million) included in operating profit comprises £16 million (2013: £6 million; 2012: £2 million) relating to Legal and £20 million (2013: £23 million; 2012: £22 million) relating to Exhibitions.
A reconciliation of operating profit to adjusted operating profit is provided below:
2014
£m |
2013
£m |
2012
£m |
||||||||||
Operating profit |
1,402 | 1,376 | 1,333 | |||||||||
Adjustments: |
||||||||||||
Amortisation of acquired intangible assets |
286 | 318 | 329 | |||||||||
Acquisition related costs |
30 | 43 | 21 | |||||||||
Reclassification of tax in joint ventures |
21 | 12 | 5 | |||||||||
|
|
|
|
|
|
|||||||
Adjusted operating profit |
1,739 | 1,749 | 1,688 | |||||||||
|
|
|
|
|
|
F-18
3. | Segment analysis (continued) |
Analysis by business segment
2014
£m |
2013
Restated £m |
2012
Restated £m |
||||||||||
Expenditure on acquired goodwill and intangible assets |
||||||||||||
Scientific, Technical & Medical |
25 | 50 | 120 | |||||||||
Risk & Business Information |
330 | 169 | 15 | |||||||||
Legal |
48 | 15 | 80 | |||||||||
Exhibitions |
23 | 56 | 178 | |||||||||
|
|
|
|
|
|
|||||||
Total |
426 | 290 | 393 | |||||||||
|
|
|
|
|
|
|||||||
Capital expenditure additions |
||||||||||||
Scientific, Technical & Medical |
56 | 93 | 106 | |||||||||
Risk & Business Information |
53 | 43 | 38 | |||||||||
Legal |
145 | 170 | 173 | |||||||||
Exhibitions |
27 | 15 | 25 | |||||||||
|
|
|
|
|
|
|||||||
Total |
281 | 321 | 342 | |||||||||
|
|
|
|
|
|
|||||||
Amortisation of acquired intangible assets |
||||||||||||
Scientific, Technical & Medical |
79 | 86 | 78 | |||||||||
Risk & Business Information |
116 | 128 | 146 | |||||||||
Legal |
57 | 64 | 73 | |||||||||
Exhibitions |
34 | 40 | 32 | |||||||||
|
|
|
|
|
|
|||||||
Total |
286 | 318 | 329 | |||||||||
|
|
|
|
|
|
|||||||
Depreciation and other amortisation |
||||||||||||
Scientific, Technical & Medical |
94 | 100 | 87 | |||||||||
Risk & Business Information |
34 | 33 | 38 | |||||||||
Legal |
94 | 101 | 85 | |||||||||
Exhibitions |
15 | 15 | 17 | |||||||||
|
|
|
|
|
|
|||||||
Total |
237 | 249 | 227 | |||||||||
|
|
|
|
|
|
Capital expenditure comprises additions to property, plant and equipment and internally developed intangible assets. Amortisation of acquired intangible assets includes amounts in respect of joint ventures of £1 million (2013: £1 million; 2012: £1 million) in Exhibitions and £3 million (2013: nil; 2012 nil) in Legal. Other than the depreciation and amortisation above, non cash items includes a £32 million charge (2013: £31 million charge; 2012: £31 million charge) relating to the recognition of share based remuneration, comprising £12 million (2013: £11 million; 2012: £11 million) in Scientific, Technical & Medical, £8 million (2013: £8 million; 2012: £7 million) in Risk & Business Information, £7 million (2013: £7 million; 2012: £8 million) in Legal and £5 million (2013: £5 million; 2012: £5 million) in Exhibitions.
Analysis by geographical location
2014
£m |
2013
£m |
2012
£m |
||||||||||
Non-current assets |
||||||||||||
North America |
6,569 | 6,291 | 6,514 | |||||||||
United Kingdom |
701 | 584 | 524 | |||||||||
The Netherlands |
109 | 125 | 120 | |||||||||
Rest of Europe |
816 | 753 | 729 | |||||||||
Rest of world |
414 | 401 | 376 | |||||||||
|
|
|
|
|
|
|||||||
Total |
8,609 | 8,154 | 8,263 | |||||||||
|
|
|
|
|
|
Non-current assets by geographical location exclude amounts relating to deferred tax and derivative financial instruments.
F-19
4. | Operating profit |
Operating profit is stated after charging/(crediting) the following:
Note |
2014
£m |
2013
£m |
2012
£m |
|||||||||||||
Staff costs |
||||||||||||||||
Wages and salaries |
1,415 | 1,508 | 1,543 | |||||||||||||
Social security costs |
167 | 175 | 187 | |||||||||||||
Pensions |
6 | 95 | 61 | 89 | ||||||||||||
Share based and related remuneration |
32 | 31 | 26 | |||||||||||||
|
|
|
|
|
|
|||||||||||
Total staff costs |
1,709 | 1,775 | 1,845 | |||||||||||||
|
|
|
|
|
|
|||||||||||
Depreciation and amortisation |
||||||||||||||||
Amortisation of acquired intangible assets |
15 | 282 | 317 | 328 | ||||||||||||
Share of joint ventures amortisation of acquired intangible assets |
4 | 1 | 1 | |||||||||||||
Amortisation of internally developed intangible assets |
15 | 158 | 160 | 151 | ||||||||||||
Depreciation of property, plant and equipment |
17 | 79 | 89 | 76 | ||||||||||||
|
|
|
|
|
|
|||||||||||
Total depreciation and amortisation |
523 | 567 | 556 | |||||||||||||
|
|
|
|
|
|
|||||||||||
Other expenses and income |
||||||||||||||||
Pre-publication costs, inventory expenses and other cost of sales |
2,006 | 2,118 | 2,139 | |||||||||||||
Operating lease rentals expense |
91 | 108 | 112 | |||||||||||||
Operating lease rentals income |
(8 | ) | (10 | ) | (10 | ) | ||||||||||
|
|
|
|
|
|
The amortisation of acquired intangible assets is included within administration and other expenses.
5. | Personnel |
Number of people employed: full time equivalents
At December 31 | Average during the year | |||||||||||||||||||
2014 | 2013 | 2014 | 2013 | 2012 | ||||||||||||||||
Business segment |
||||||||||||||||||||
Scientific, Technical & Medical |
7,000 | 6,700 | 6,900 | 6,900 | 7,000 | |||||||||||||||
Risk & Business Information |
7,400 | 7,200 | 7,300 | 7,700 | 9,200 | |||||||||||||||
Legal |
9,500 | 10,000 | 9,600 | 10,400 | 10,400 | |||||||||||||||
Exhibitions |
3,700 | 3,400 | 3,500 | 3,300 | 3,000 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Sub-total |
27,600 | 27,300 | 27,300 | 28,300 | 29,600 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Corporate/shared functions |
900 | 900 | 900 | 900 | 900 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total |
28,500 | 28,200 | 28,200 | 29,200 | 30,500 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Geographical location |
||||||||||||||||||||
North America |
13,300 | 13,900 | 13,400 | 14,800 | 15,900 | |||||||||||||||
United Kingdom |
4,300 | 4,100 | 4,200 | 4,100 | 4,200 | |||||||||||||||
The Netherlands |
1,600 | 1,600 | 1,600 | 1,600 | 1,600 | |||||||||||||||
Rest of Europe |
2,800 | 2,800 | 2,800 | 3,100 | 3,700 | |||||||||||||||
Rest of world |
6,500 | 5,800 | 6,200 | 5,600 | 5,100 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total |
28,500 | 28,200 | 28,200 | 29,200 | 30,500 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
F-20
6. | Pension schemes |
A number of pension schemes are operated around the world. Historically, the largest schemes have been local versions of the defined benefit type with assets held in separate trustee administered funds. The largest defined benefit schemes are in the UK, the US and the Netherlands.
The UK scheme is a final salary scheme and is closed to new hires. Members accrue a portion of their final pensionable earnings based on the number of years of service. The US scheme is a cash balance scheme and is closed to new hires. Members earn pay credits dependent on age and years of service up to certain limits which are added to an account balance that accrues interest at specified minimum rates. The Netherlands scheme is a career average salary scheme and remains open to new hires. Members accrue a portion of their current salary at a rate calculated to enable them to reach a pension level based on their average salary.
Each of the major defined benefit schemes is administered by a separate fund that is legally separated from the Group. The trustees of the pension funds in the UK and the Netherlands and plan fiduciaries of the US scheme are required by law to act in the interest of the funds beneficiaries. In the UK and in the Netherlands the trustees of the pension fund are responsible for the investment policy with regard to the assets of the fund. The boards of trustees consist of an equal number of Group appointed and member nominated directors. In the US, the fiduciary duties for the scheme are allocated between committees which are staffed by senior employees of the Group; the investment committee has the primary responsibility for the investment and management of plan assets.
The funding of the Groups major schemes reflects the different rules within each jurisdiction.
In the UK the level of funding is determined by statutory triennial actuarial valuations in accordance with pensions legislation. Where the scheme falls below 100% funded status, the Group and the scheme trustees must agree on how the deficit is to be remedied. The UK Pensions Regulator has significant powers and sets out in codes and guidance the parameters for scheme funding.
The US scheme has an annual statutory valuation which forms the basis for establishing the employer contribution each year (subject to ERISA and IRS minimums). Should the statutory funded status fall to below 100%, the US Pensions Protection Act requires the deficit to be rectified with additional contributions over a 7 year period.
In the Netherlands, on a regulatory basis, with effect from January 1, 2015 the scheme funding level is determined by the new Financial Assessment Framework (nFTK). The nFTK introduces, inter alia, a twelve-month average funding ratio, higher buffer requirements and stricter indexation than under previous legislation, and a 10 year recovery plan in the event of funding shortfalls. In case of a shortfall in the funding level, the first recovery plans are required to be filed with the Dutch Central Bank on July 1, 2015. On a contractual basis, the employer contribution is capped at 11.9% of salary.
Total regular employer contributions to defined benefit pension schemes in respect of 2015 are expected to be approximately £65 million.
The pension expense recognised within operating expense is:
2014
£m |
2013
£m |
2012
£m |
||||||||||
Defined benefit pension expense |
48 | 14 | 43 | |||||||||
Defined contribution pension expense |
47 | 47 | 46 | |||||||||
|
|
|
|
|
|
|||||||
Total |
95 | 61 | 89 | |||||||||
|
|
|
|
|
|
The amounts recognised in the income statement in respect of defined benefit pension schemes during the year are presented by major scheme as follows:
2014 | 2013 | 2012 | ||||||||||||||||||||||||||||||||||||||||||||||
UK
£m |
US
£m |
NL
£m |
Total
£m |
UK
£m |
US
£m |
NL
£m |
Total
£m |
UK
£m |
US
£m |
NL
£m |
Total
£m |
|||||||||||||||||||||||||||||||||||||
Service cost |
31 | 18 | 14 | 63 | 29 | 29 | 15 | 73 | 27 | 28 | 8 | 63 | ||||||||||||||||||||||||||||||||||||
Settlements and past service credits |
| | (15 | ) | (15 | ) | | (51 | ) | (8 | ) | (59 | ) | (1 | ) | (19 | ) | | (20 | ) | ||||||||||||||||||||||||||||
|
|
|
|
|
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||||||
Defined benefit pension expense |
31 | 18 | (1 | ) | 48 | 29 | (22 | ) | 7 | 14 | 26 | 9 | 8 | 43 | ||||||||||||||||||||||||||||||||||
Net interest on net defined benefit obligation |
8 | 4 | 3 | 15 | 6 | 9 | 4 | 19 | 5 | 7 | (1 | ) | 11 | |||||||||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||||||
Net defined benefit pension expense |
39 | 22 | 2 | 63 | 35 | (13 | ) | 11 | 33 | 31 | 16 | 7 | 54 | |||||||||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net interest on defined benefit pension scheme liabilities is presented within net finance costs in the income statement. Service cost, including settlements and past service credits is presented within operating expenses.
F-21
6. | Pension schemes (continued) |
Settlements and past service credits in 2014 relate to plan design changes and a reduction in accrued benefits in respect of the scheme in the Netherlands. Settlements and past service credits recognised in 2013 and 2012 principally relate to plan design changes and the transfer out of certain deferred members in the US scheme and a reduction in accrued benefits in respect of the scheme in the Netherlands.
The significant valuation assumptions, determined for each major scheme in conjunction with the respective independent actuaries are presented below. The net defined benefit pension expense for each year is based on the assumptions and scheme valuations set at December 31, of the prior year.
2014 | 2013 | 2012 | ||||||||||||||||||||||||||||||||||
As at December 31, |
UK | US | NL | UK | US | NL | UK | US | NL | |||||||||||||||||||||||||||
Discount rate |
3.75 | % | 4.25 | % | 2.30 | % | 4.60 | % | 5.05 | % | 3.60 | % | 4.65 | % | 4.25 | % | 3.50 | % | ||||||||||||||||||
Inflation |
2.90 | % | 2.50 | % | 2.00 | % | 3.25 | % | 3.00 | % | 2.00 | % | 2.85 | % | 3.00 | % | 2.00 | % |
Discount rates are set by reference to high quality corporate bond yields.
Mortality assumptions make allowance for future improvements in longevity and have been determined by reference to applicable mortality statistics. The average life expectancy assumptions are set out below:
2014 | 2013 | 2012 | ||||||||||||||||||||||||||||||||||
Male average life expectancy (as
|
UK | US | NL | UK | US | NL | UK | US | NL | |||||||||||||||||||||||||||
Member currently aged 60 |
90 | 87 | 86 | 90 | 84 | 86 | 90 | 84 | 86 | |||||||||||||||||||||||||||
Member currently aged 45 |
92 | 87 | 87 | 92 | 83 | 87 | 92 | 83 | 87 | |||||||||||||||||||||||||||
2014 | 2013 | 2012 | ||||||||||||||||||||||||||||||||||
Female average life expectancy (as
|
UK | US | NL | UK | US | NL | UK | US | NL | |||||||||||||||||||||||||||
Member currently aged 60 |
89 | 89 | 89 | 89 | 86 | 89 | 89 | 86 | 89 | |||||||||||||||||||||||||||
Member currently aged 45 |
91 | 90 | 90 | 91 | 85 | 89 | 91 | 85 | 89 |
The amount recognised in the statement of financial position in respect of defined benefit pension schemes at the start and end of the year and the movements during the year were as follows:
2014 | 2013 | 2012 | ||||||||||||||||||||||||||||||||||||||||||||||
UK
£m |
US
£m |
NL
£m |
Total
£m |
UK
£m |
US
£m |
NL
£m |
Total
£m |
UK
£m |
US
£m |
NL
£m |
Total
£m |
|||||||||||||||||||||||||||||||||||||
Defined benefit obligation |
||||||||||||||||||||||||||||||||||||||||||||||||
At start of year |
(2,882 | ) | (762 | ) | (716 | ) | (4,360 | ) | (2,654 | ) | (922 | ) | (696 | ) | (4,272 | ) | (2,479 | ) | (858 | ) | (539 | ) | (3,876 | ) | ||||||||||||||||||||||||
Service cost |
(31 | ) | (18 | ) | (14 | ) | (63 | ) | (29 | ) | (29 | ) | (15 | ) | (73 | ) | (27 | ) | (28 | ) | (8 | ) | (63 | ) | ||||||||||||||||||||||||
Settlements and past service credits |
| | 15 | 15 | | 51 | 8 | 59 | 1 | 19 | | 20 | ||||||||||||||||||||||||||||||||||||
Interest on pension scheme liabilities |
(130 | ) | (39 | ) | (25 | ) | (194 | ) | (122 | ) | (41 | ) | (25 | ) | (188 | ) | (124 | ) | (44 | ) | (30 | ) | (198 | ) | ||||||||||||||||||||||||
Actuarial (loss)/gain on financial assumptions |
(339 | ) | (107 | ) | (120 | ) | (566 | ) | (173 | ) | 86 | 18 | (69 | ) | (92 | ) | (145 | ) | (145 | ) | (382 | ) | ||||||||||||||||||||||||||
Actuarial gain/(loss) arising from experience assumptions |
26 | (3 | ) | 5 | 28 | 8 | (10 | ) | (3 | ) | (5 | ) | (15 | ) | (18 | ) | 1 | (32 | ) | |||||||||||||||||||||||||||||
Contributions by employees |
(7 | ) | | (5 | ) | (12 | ) | (6 | ) | | (5 | ) | (11 | ) | (7 | ) | | (4 | ) | (11 | ) | |||||||||||||||||||||||||||
Benefits paid* |
96 | 52 | 27 | 175 | 94 | 93 | 19 | 206 | 89 | 112 | 15 | 216 | ||||||||||||||||||||||||||||||||||||
Exchange translation differences |
| (55 | ) | 55 | | | 10 | (17 | ) | (7 | ) | | 40 | 14 | 54 | |||||||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||||||
At end of year |
(3,267 | ) | (932 | ) | (778 | ) | (4,977 | ) | (2,882 | ) | (762 | ) | (716 | ) | (4,360 | ) | (2,654 | ) | (922 | ) | (696 | ) | (4,272 | ) | ||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
F-22
6. | Pension schemes (continued) |
2014 | 2013 | 2012 | ||||||||||||||||||||||||||||||||||||||||||||||
UK
£m |
US
£m |
NL
£m |
Total
£m |
UK
£m |
US
£m |
NL
£m |
Total
£m |
UK
£m |
US
£m |
NL
£m |
Total
£m |
|||||||||||||||||||||||||||||||||||||
Fair value of scheme assets |
||||||||||||||||||||||||||||||||||||||||||||||||
At start of year |
2,691 | 676 | 614 | 3,981 | 2,516 | 710 | 580 | 3,806 | 2,371 | 726 | 537 | 3,634 | ||||||||||||||||||||||||||||||||||||
Interest income on plan assets |
122 | 35 | 22 | 179 | 116 | 32 | 21 | 169 | 119 | 37 | 31 | 187 | ||||||||||||||||||||||||||||||||||||
Return on assets excluding amounts included in interest income |
110 | 72 | 90 | 272 | 111 | 4 | (1 | ) | 114 | 45 | 53 | 23 | 121 | |||||||||||||||||||||||||||||||||||
Contributions by employer |
36 | 31 | 9 | 76 | 36 | 33 | 14 | 83 | 63 | 38 | 15 | 116 | ||||||||||||||||||||||||||||||||||||
Contributions by employees |
7 | | 5 | 12 | 6 | | 5 | 11 | 7 | | 4 | 11 | ||||||||||||||||||||||||||||||||||||
Benefits paid* |
(96 | ) | (52 | ) | (27 | ) | (175 | ) | (94 | ) | (93 | ) | (19 | ) | (206 | ) | (89 | ) | (112 | ) | (15 | ) | (216 | ) | ||||||||||||||||||||||||
Exchange translation differences |
| 48 | (48 | ) | | | (10 | ) | 14 | 4 | | (32 | ) | (15 | ) | (47 | ) | |||||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||||||
At end of year |
2,870 | 810 | 665 | 4,345 | 2,691 | 676 | 614 | 3,981 | 2,516 | 710 | 580 | 3,806 | ||||||||||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||||||
Net defined benefit obligation |
(397 | ) | (122 | ) | (113 | ) | (632 | ) | (191 | ) | (86 | ) | (102 | ) | (379 | ) | (138 | ) | (212 | ) | (116 | ) | (466 | ) | ||||||||||||||||||||||||
|
|
|
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|
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|
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|
|
|
|
|
|
|
|
|
|
* | Included in benefits paid are settlements of nil (2013: £52 million; 2012: £75 million). |
As at December 31, 2014 the defined benefit obligations comprise £4,784 million (2013: £4,200 million; 2012: £4,112 million) in relation to funded schemes and £193 million (2013: £160 million; 2012: £160 million) in relation to unfunded schemes.
The weighted average duration of defined benefit scheme liabilities is 19 years in the UK (2013: 19 years; 2012: 19 years), 15 years in the US (2013: 16 years; 2012: 16 years) and 24 years in the Netherlands (2013: 21 years; 2012: 21 years). Deferred tax assets of £161 million (2013: £104 million; 2012: £153 million) are recognised in respect of the pension scheme deficits.
Amounts recognised in the statement of comprehensive income are set out below:
2014
£m |
2013
£m |
2012
£m |
||||||||||
Gains and losses arising during the year |
||||||||||||
Experience losses on scheme liabilities |
28 | (5 | ) | (32 | ) | |||||||
Experience gains on scheme assets |
272 | 114 | 121 | |||||||||
Actuarial (losses)/gains arising on the present value of scheme liabilities due to changes in: |
||||||||||||
discount rates |
(773 | ) | 78 | (552 | ) | |||||||
inflation |
159 | (171 | ) | 74 | ||||||||
other actuarial assumptions |
48 | 24 | 96 | |||||||||
|
|
|
|
|
|
|||||||
(266 | ) | 40 | (293 | ) | ||||||||
Net cumulative losses at start of year |
(475 | ) | (515 | ) | (222 | ) | ||||||
|
|
|
|
|
|
|||||||
Net cumulative losses at end of year |
(741 | ) | (475 | ) | (515 | ) | ||||||
|
|
|
|
|
|
The major categories and fair values of scheme assets at the end of the reporting period are as follows:
2014 | 2013 | 2012 | ||||||||||||||||||||||||||||||||||||||||||||||
UK
£m |
US
£m |
NL
£m |
Total
£m |
UK
£m |
US
£m |
NL
£m |
Total
£m |
UK
£m |
US
£m |
NL
£m |
Total
£m |
|||||||||||||||||||||||||||||||||||||
Equities |
1,260 | 263 | 226 | 1,749 | 1,351 | 174 | 223 | 1,748 | 1,207 | 409 | 167 | 1,783 | ||||||||||||||||||||||||||||||||||||
Government bonds |
1,249 | 70 | 261 | 1,580 | 1,089 | 68 | 261 | 1,418 | 1,088 | 164 | 71 | 1,323 | ||||||||||||||||||||||||||||||||||||
Corporate bonds |
| 455 | 143 | 598 | | 411 | 93 | 504 | | 88 | 304 | 392 | ||||||||||||||||||||||||||||||||||||
Property funds |
270 | | 30 | 300 | 147 | | 34 | 181 | 85 | 29 | 35 | 149 | ||||||||||||||||||||||||||||||||||||
Cash |
74 | 2 | 5 | 81 | 87 | 4 | 3 | 94 | 106 | 1 | 3 | 110 | ||||||||||||||||||||||||||||||||||||
Other |
17 | 20 | | 37 | 17 | 19 | | 36 | 30 | 19 | | 49 | ||||||||||||||||||||||||||||||||||||
|
|
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|
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||||||
Total |
2,870 | 810 | 665 | 4,345 | 2,691 | 676 | 614 | 3,981 | 2,516 | 710 | 580 | 3,806 | ||||||||||||||||||||||||||||||||||||
|
|
|
|
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|
|
|
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|
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|
|
|
|
|
|
|
|
|
|
|
|
The actual return on scheme assets for the year ended December 31, 2014 was £451 million (2013: £283 million; 2012: £308 million).
F-23
6. | Pension schemes (continued) |
Assets and obligations associated with the schemes are sensitive to changes in the market values of assets and the market related assumptions used to value scheme liabilities. In particular, adverse changes to asset values, discount rates or inflation could increase future pension costs and funding requirements.
Typically the Groups schemes are exposed to: investment risks, whereby actual rates of return on plan assets may be below those rates used to determine the defined benefit obligations and interest rate risks, whereby scheme deficits may increase if bond yields in the UK, US and the Netherlands decline and are not offset by returns in government and corporate bond portfolios. The schemes are also exposed to other risks such as unanticipated future increases in: member mortality patterns; inflation; and future salaries, all potentially leading to an increase in scheme liabilities (particularly in the Netherlands which is the only major scheme which remains open to new members).
Investment policies of each scheme are intended to ensure continuous payment of defined benefit pensions in the short term and long term. Efforts are made to limit risks on marketable securities by adopting investment policies that diversify assets across geographies and among equities, government and corporate bonds, property funds and cash. Asset allocations are dependent on a variety of factors including the duration of scheme liabilities and the statutory funded status of the plan.
All equities and government and corporate bonds have quoted prices in active markets.
Sensitivity analysis
The valuation of the Groups pension scheme liabilities involves significant actuarial assumptions, being the life expectancy of the members, inflation and the rate at which the future pension payments are discounted. Differences arising from actual experience or future changes in assumptions may materially affect future pension charges. In particular, changes in assumptions for discount rates, inflation and life expectancies that are reasonably possible would have the following approximate effects on the defined benefit pension obligations:
£m | ||||
Increase/decrease of 0.25% in discount rate: |
233 | |||
Increase/decrease of 0.25% in the expected inflation rate |
121 | |||
Increase/decrease of one year in assumed life expectancy |
131 |
The above analysis has been calculated on the same basis used to determine the defined benefit obligation recognised in the statement of financial position. There has been no change in the methods used to prepare the analysis compared with prior years. This sensitivity analysis may not be representative of the actual change in the defined benefit obligation as it is unlikely that the change in the above assumptions would occur in isolation of one another as some of the assumptions may be correlated.
7. | Share based remuneration |
The Group provides a number of share based remuneration schemes to Directors and employees. The principal share based remuneration schemes are the Executive Share Option Schemes (ESOS), the Long Term Incentive Plan (LTIP), the Reed Elsevier Growth Plan (REGP) (discontinued after 2014), the Retention Share Plan (RSP) and the Bonus Investment Plan (BIP). Share options granted under ESOS and LTIP are exercisable after three years and up to ten years from the date of grant at a price equivalent to the market value of the respective shares at the date of grant. Conditional shares granted under ESOS, LTIP, RSP and BIP are exercisable after three years for nil consideration if conditions are met. Conditional shares granted under REGP are exercisable for nil consideration if conditions are met after three and five years. Other awards principally relate to all employee share based saving schemes in the UK and the Netherlands.
Share based remuneration awards are, other than upon retirement or in exceptional circumstances, subject to the condition that the employee remains in employment at the time of exercise.
Conditional shares granted under LTIP, REGP, RSP and BIP between 2011 and 2014 are subject to the achievement of growth targets of Reed Elsevier PLC and Reed Elsevier NV adjusted earnings per share measured at constant exchange rates as well as the achievement of a targeted percentage return on invested capital of Reed Elsevier PLC and Reed Elsevier NV. LTIP grants between 2011 and 2014 and REGP grants in 2013 are also variable subject to the achievement of a total shareholder return performance target.
The weighted average fair value per award is based on full vesting on achievement of non market related performance conditions and stochastic models for market related components. The conditional shares and option awards are recognised in the income statement over the vesting period, being between three and five years, on the basis of expected performance against the non market related conditions, with the fair value related to market related components unchanging.
F-24
7. | Share based remuneration (continued) |
2014 grants
In respect of Reed Elsevier PLC
ordinary shares |
In respect of Reed Elsevier NV
ordinary shares |
|||||||||||||||
Number
of shares 000 |
Weighted
average fair value per award £ |
Number
of shares 000 |
Weighted
average fair value per award £ |
|||||||||||||
Share options |
||||||||||||||||
ESOS |
1,221 | 0.98 | 863 | 1.13 | ||||||||||||
Other |
1,064 | 1.31 | 314 | 0.90 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total share options |
2,285 | 1.13 | 1,177 | 1.07 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Conditional shares |
||||||||||||||||
ESOS |
365 | 8.27 | 258 | 11.24 | ||||||||||||
LTIP |
1,031 | 7.81 | 729 | 10.85 | ||||||||||||
RSP |
131 | 9.90 | 94 | 14.18 | ||||||||||||
BIP |
769 | 9.23 | 483 | 12.88 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total conditional shares |
2,296 | 8.48 | 1,564 | 11.74 | ||||||||||||
|
|
|
|
|
|
|
|
2013 grants
In respect of Reed Elsevier PLC
ordinary shares |
In respect of Reed Elsevier NV
ordinary shares |
|||||||||||||||
Number
of shares 000 |
Weighted
average fair value per award £ |
Number
of shares 000 |
Weighted
average fair value per award £ |
|||||||||||||
Share options |
||||||||||||||||
ESOS |
1,521 | 1.12 | 1,058 | 1.52 | ||||||||||||
Other |
645 | 1.29 | 257 | 1.10 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total share options |
2,166 | 1.17 | 1,315 | 1.44 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Conditional shares |
||||||||||||||||
ESOS |
524 | 6.51 | 365 | 9.28 | ||||||||||||
LTIP |
1,338 | 6.14 | 930 | 8.90 | ||||||||||||
REGP |
322 | 6.49 | 450 | 9.34 | ||||||||||||
RSP |
10 | 7.35 | 7 | 10.65 | ||||||||||||
BIP |
987 | 7.40 | 615 | 10.69 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total conditional shares |
3,181 | 6.63 | 2,367 | 9.51 | ||||||||||||
|
|
|
|
|
|
|
|
F-25
7. | Share based remuneration (continued) |
2012 grants
In respect of Reed Elsevier PLC
ordinary shares |
In respect of Reed Elsevier NV
ordinary shares |
|||||||||||||||
Number
of shares 000 |
Weighted
average fair value per award £ |
Number
of shares 000 |
Weighted
average fair value per award £ |
|||||||||||||
Share options |
||||||||||||||||
ESOS |
1,801 | 0.90 | 1,263 | 1.20 | ||||||||||||
Other |
702 | 1.04 | 293 | 0.95 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total share options |
2,503 | 0.94 | 1,556 | 1.15 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Conditional shares |
||||||||||||||||
ESOS |
797 | 4.60 | 560 | 6.41 | ||||||||||||
LTIP |
1,807 | 4.45 | 1,144 | 6.13 | ||||||||||||
RSP |
256 | 6.00 | 5 | 7.82 | ||||||||||||
BIP |
1,542 | 5.20 | 696 | 7.41 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total conditional shares |
4,402 | 4.83 | 2,405 | 6.57 | ||||||||||||
|
|
|
|
|
|
|
|
The main assumptions used to determine the fair values are set out below:
Assumptions for grants made during the year
In respect of Reed Elsevier PLC
ordinary shares |
In respect of Reed Elsevier NV
ordinary shares |
|||||||||||||||||||||||
2014 | 2013 | 2012 | 2014 | 2013 | 2012 | |||||||||||||||||||
Weighted average share price at date of grant |
||||||||||||||||||||||||
ESOS |
£ | 9.28 | £ | 7.35 | £ | 5.19 | | 15.92 | | 12.53 | | 9.07 | ||||||||||||
LTIP |
£ | 9.29 | £ | 7.35 | £ | 5.25 | | 15.94 | | 12.54 | | 8.91 | ||||||||||||
REGP |
| £ | 7.76 | | | | 13.15 | | ||||||||||||||||
RSP |
£ | 9.90 | £ | 7.35 | £ | 6.00 | | 17.50 | | 12.53 | | 9.65 | ||||||||||||
BIP |
£ | 9.23 | £ | 7.39 | £ | 5.20 | | 15.90 | | 12.53 | | 9.15 | ||||||||||||
Other |
£ | 8.86 | £ | 7.45 | £ | 5.49 | | 15.63 | | 11.89 | | 9.63 | ||||||||||||
Expected share price volatility |
19 | % | 28 | % | 30 | % | 19 | % | 28 | % | 30 | % | ||||||||||||
Expected option life |
4 years | 4 years | 4 years | 4 years | 4 years | 4 years | ||||||||||||||||||
Expected dividend yield |
3.8 | % | 4.1 | % | 3.9 | % | 4.5 | % | 4.7 | % | 4.5 | % | ||||||||||||
Risk free interest rate |
1.5 | % | 0.5 | % | 0.8 | % | 0.6 | % | 0.4 | % | 0.9 | % | ||||||||||||
Expected lapse rate |
2-5 | % | 2-5 | % | 2-5 | % | 2-4 | % | 2-4 | % | 2-4 | % |
Expected share price volatility has been estimated based on relevant historic data in respect of the Reed Elsevier PLC and Reed Elsevier NV ordinary share prices. Expected share option life has been estimated based on historical exercise patterns in respect of Reed Elsevier PLC and Reed Elsevier NV share options.
F-26
7. | Share based remuneration (continued) |
The share based remuneration awards outstanding as at December 31, 2014 in respect of both Reed Elsevier PLC and Reed Elsevier NV ordinary shares are set out below:
In respect of Reed
Elsevier PLC ordinary shares |
In respect of Reed
Elsevier NV ordinary shares |
|||||||||||||||
Number
of shares under option 000 |
Weighted
average exercise price (pence) |
Number
of shares under option 000 |
Weighted
average exercise price () |
|||||||||||||
Share options |
||||||||||||||||
Outstanding at January 1, 2012 |
29,540 | 534 | 21,641 | 10.99 | ||||||||||||
Granted |
2,503 | 497 | 1,556 | 9.19 | ||||||||||||
Exercised |
(6,694 | ) | 497 | (1,913 | ) | 9.36 | ||||||||||
Forfeited |
(1,022 | ) | 498 | (581 | ) | 9.33 | ||||||||||
Expired |
(4,992 | ) | 592 | (5,121 | ) | 12.34 | ||||||||||
|
|
|
|
|
|
|
|
|||||||||
Outstanding at January 1, 2013 |
19,335 | 529 | 15,582 | 10.63 | ||||||||||||
Granted |
2,166 | 694 | 1,315 | 12.41 | ||||||||||||
Exercised |
(9,102 | ) | 542 | (7,628 | ) | 10.72 | ||||||||||
Forfeited |
(112 | ) | 535 | (167 | ) | 11.30 | ||||||||||
Expired |
(560 | ) | 537 | (462 | ) | 11.30 | ||||||||||
|
|
|
|
|
|
|
|
|||||||||
Outstanding at January 1, 2014 |
11,727 | 549 | 8,640 | 10.77 | ||||||||||||
Granted |
2,285 | 827 | 1,177 | 15.86 | ||||||||||||
Exercised |
(3,318 | ) | 520 | (2,740 | ) | 11.13 | ||||||||||
Forfeited |
(832 | ) | 514 | (348 | ) | 10.28 | ||||||||||
Expired |
(535 | ) | 577 | (573 | ) | 10.28 | ||||||||||
|
|
|
|
|
|
|
|
|||||||||
Outstanding at December 31, 2014 |
9,327 | 629 | 6,156 | 11.66 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Exercisable at December 31, 2012 |
12,573 | 553 | 12,329 | 11.12 | ||||||||||||
Exercisable at December 31, 2013 |
5,150 | 537 | 5,535 | 11.09 | ||||||||||||
Exercisable at December 31, 2014 |
3,163 | 550 | 3,480 | 11.11 | ||||||||||||
|
|
|
|
|
|
|
|
Number of Reed
Elsevier PLC ordinary shares 000 |
Number of Reed
Elsevier NV ordinary shares 000 |
|||||||
Conditional shares |
||||||||
Outstanding at January 1, 2012 |
13,896 | 8,267 | ||||||
Granted |
4,402 | 2,405 | ||||||
Vested |
(601 | ) | (391 | ) | ||||
Forfeited/lapsed |
(5,885 | ) | (3,575 | ) | ||||
|
|
|
|
|||||
Outstanding at January 1, 2013 |
11,812 | 6,706 | ||||||
Granted |
3,181 | 2,367 | ||||||
Vested |
(3,256 | ) | (1,966 | ) | ||||
Forfeited/lapsed |
(1,395 | ) | (923 | ) | ||||
|
|
|
|
|||||
Outstanding at January 1, 2014 |
10,342 | 6,184 | ||||||
Granted |
2,296 | 1,564 | ||||||
Vested |
(2,772 | ) | (1,591 | ) | ||||
Forfeited/lapsed |
(1,236 | ) | (622 | ) | ||||
|
|
|
|
|||||
Outstanding at December 31, 2014 |
8,630 | 5,535 | ||||||
|
|
|
|
F-27
7. | Share based remuneration (continued) |
The weighted average share price at the date of exercise of share options and vesting of conditional shares during 2014 was 885p (2013: 761p; 2012: 593p) for Reed Elsevier PLC ordinary shares and 15.03 (2013: 13.15; 2012: 10.43) for Reed Elsevier NV ordinary shares.
Range of exercise prices for outstanding share options
2014 | 2013 | 2012 | ||||||||||||||||||||||
Number of
shares under option 000 |
Weighted
average remaining period until expiry (years) |
Number of
shares under option 000 |
Weighted
average remaining period until expiry (years) |
Number of
shares under option 000 |
Weighted
average remaining period until expiry (years) |
|||||||||||||||||||
Reed Elsevier PLC ordinary shares (pence) |
||||||||||||||||||||||||
401-450 |
834 | 1.6 | 1,772 | 1.9 | 1,925 | 2.8 | ||||||||||||||||||
451-500 |
451 | 5.4 | 1,161 | 4.2 | 4,415 | 3.5 | ||||||||||||||||||
501-550 |
3,184 | 5.5 | 5,284 | 5.6 | 8,981 | 5.7 | ||||||||||||||||||
551-600 |
576 | 2.8 | 695 | 3.9 | 189 | 5.4 | ||||||||||||||||||
601-650 |
788 | 2.8 | 1,338 | 4.0 | 3,825 | 4.8 | ||||||||||||||||||
651-700 |
| | | | | | ||||||||||||||||||
701-750 |
2,301 | 6.3 | 1,462 | 9.4 | | | ||||||||||||||||||
801-850 |
10 | 8.6 | 10 | 9.6 | | | ||||||||||||||||||
851-900 |
2 | 8.9 | 2 | 9.9 | | | ||||||||||||||||||
901-950 |
1,088 | 9.3 | 3 | 9.0 | | | ||||||||||||||||||
951-1000 |
93 | 9.7 | | | | | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total |
9,327 | 5.4 | 11,727 | 5.1 | 19,335 | 4.7 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Reed Elsevier NV ordinary shares (euro) |
||||||||||||||||||||||||
7.01-8.00 |
24 | 4.0 | 41 | 5.0 | 58 | 6.1 | ||||||||||||||||||
8.01-9.00 |
1,024 | 5.7 | 1,834 | 6.8 | 2,736 | 7.7 | ||||||||||||||||||
9.01-10.00 |
1,459 | 6.4 | 1,813 | 7.2 | 3,142 | 6.9 | ||||||||||||||||||
10.01-11.00 |
60 | 2.8 | 619 | 1.4 | 2,697 | 1.6 | ||||||||||||||||||
11.01-12.00 |
587 | 1.6 | 1,670 | 2.3 | 3,982 | 2.6 | ||||||||||||||||||
12.01-13.00 |
1,424 | 6.5 | 1,864 | 7.1 | 1,806 | 5.1 | ||||||||||||||||||
13.01-14.00 |
87 | 3.7 | 134 | 4.7 | 118 | 4.1 | ||||||||||||||||||
14.01-15.00 |
406 | 3.0 | 663 | 3.1 | 1,043 | 4.1 | ||||||||||||||||||
15.01-16.00 |
976 | 9.2 | 2 | 9.9 | | | ||||||||||||||||||
16.01-17.00 |
15 | 9.0 | | | | | ||||||||||||||||||
17.01-18.00 |
94 | 9.5 | | | | | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total |
6,156 | 6.0 | 8,640 | 5.4 | 15,582 | 4.6 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
Share options are expected, upon exercise, to be met principally by the issue of new ordinary shares but may also be met from shares held by the Employee Benefit Trust (EBT) (see note 27). Conditional shares will be met from shares held by the EBT.
F-28
8. | Net finance costs |
2014
£m |
2013
£m |
2012
£m |
||||||||||
Interest on short term bank loans, overdrafts and commercial paper |
(13 | ) | (11 | ) | (27 | ) | ||||||
Interest on term debt |
(134 | ) | (168 | ) | (196 | ) | ||||||
Interest on obligations under finance leases |
| (1 | ) | (1 | ) | |||||||
|
|
|
|
|
|
|||||||
Total borrowing costs |
(147 | ) | (180 | ) | (224 | ) | ||||||
Losses on loans and derivatives not designated as hedges |
(7 | ) | (7 | ) | (8 | ) | ||||||
Net financing charge on defined benefit pension schemes |
(15 | ) | (19 | ) | (11 | ) | ||||||
|
|
|
|
|
|
|||||||
Finance costs |
(169 | ) | (206 | ) | (243 | ) | ||||||
|
|
|
|
|
|
|||||||
Interest on bank deposits |
7 | 4 | 7 | |||||||||
Gains on loans and derivatives not designated as hedges |
| 6 | 9 | |||||||||
|
|
|
|
|
|
|||||||
Finance income |
7 | 10 | 16 | |||||||||
|
|
|
|
|
|
|||||||
Net finance costs |
(162 | ) | (196 | ) | (227 | ) | ||||||
|
|
|
|
|
|
A net loss of £52 million (2013: £1 million gain; 2012: £2 million loss) on interest rate derivatives designated as cash flow hedges was recognised directly in equity. This included losses of £54 million (2013: nil; 2012: nil) related to foreign exchange movements on debt hedges, which were reclassified immediately to the income statement and offset £54 million (2013: nil; 2012: nil) of foreign exchange gains on the related debt. The remaining gain of £2 million (2013: £1 million gain; 2012: £2 million loss) recognised in equity may be reclassified to the income statement in future periods. Including the £54 million (2013: nil; 2012: nil) of foreign exchange losses, losses of £56 million (2013: £3 million; 2012: £16 million) in total were transferred from the hedge reserve in the period.
9. | Disposals and other non operating items |
2014
£m |
2013
£m |
2012
£m |
||||||||||
Revaluation of held for trading investments |
8 | 5 | 19 | |||||||||
Property provisions on disposed businesses |
| | (60 | ) | ||||||||
(Loss)/gain on disposal of businesses and assets held for sale |
(19 | ) | 11 | 86 | ||||||||
|
|
|
|
|
|
|||||||
Net (loss)/gain on disposals and other non operating items |
(11 | ) | 16 | 45 | ||||||||
|
|
|
|
|
|
10. | Taxation |
2014
£m |
2013
£m |
2012
£m |
||||||||||
Current tax |
||||||||||||
United Kingdom |
(36 | ) | (50 | ) | (73 | ) | ||||||
The Netherlands |
(93 | ) | (80 | ) | (68 | ) | ||||||
Rest of world |
(228 | ) | (222 | ) | (12 | ) | ||||||
|
|
|
|
|
|
|||||||
Total current tax charge |
(357 | ) | (352 | ) | (153 | ) | ||||||
Deferred tax |
88 | 271 | 51 | |||||||||
|
|
|
|
|
|
|||||||
Tax expense |
(269 | ) | (81 | ) | (102 | ) | ||||||
|
|
|
|
|
|
The decrease in the UK current tax charge over the period reflects the reductions in the UK statutory rate of tax, and the settlement of prior year tax matters.
F-29
10. | Taxation (continued) |
The net tax expense charged on profit before tax differs from the theoretical amount that would arise using the weighted average of tax rates applicable to accounting profits and losses of the consolidated entities, as follows:
2014
£m |
2013
£m |
2012
£m |
||||||||||
Profit before tax |
1,229 | 1,196 | 1,151 | |||||||||
|
|
|
|
|
|
|||||||
Tax at average applicable rates |
(292 | ) | (280 | ) | (244 | ) | ||||||
Tax on share of results of joint ventures |
21 | 10 | 7 | |||||||||
Expenses not deductible for tax purposes and US state taxes |
(26 | ) | (38 | ) | (30 | ) | ||||||
Non-taxable costs of share based remuneration |
| 3 | 3 | |||||||||
(Non-deductible)/non-taxable disposal related gains and losses |
(22 | ) | (22 | ) | 69 | |||||||
Tax losses of the period not recognised |
(4 | ) | (4 | ) | (6 | ) | ||||||
Recognition and utilization of tax losses that arose in prior years |
4 | 9 | 6 | |||||||||
Exceptional prior year tax credit |
| | 96 | |||||||||
Deferred tax credit on the alignment of business assets |
| 221 | | |||||||||
Other adjustments in respect of prior periods |
50 | 24 | (2 | ) | ||||||||
Deferred tax effect of changes in tax rates |
| (4 | ) | (1 | ) | |||||||
|
|
|
|
|
|
|||||||
Tax expense |
(269 | ) | (81 | ) | (102 | ) | ||||||
|
|
|
|
|
|
|||||||
Tax expense as a percentage of profit before tax |
22 | % | 7 | % | 9 | % | ||||||
|
|
|
|
|
|
The weighted average applicable tax rate for the year was 23.7% (2013: 23.4%, 2012: 21.2%). This increase is caused by a change in the relative profitability of entities in the countries in which they operate, partially offset by the impact of the reduction in the tax rate of the United Kingdom (see below).
During 2013, the Group aligned certain business assets with their global management structure. As a result of this alignment the tax deductible value of these assets was updated to market value. This results in a deferred tax credit of £221 million which was excluded from adjusted earnings along with other deferred tax assets from intangible assets.
During 2012, the Group resolved a number of significant prior year tax matters and reassessed its exposure to other tax matters across the jurisdictions in which the Group operates. As a result of this reassessment, current tax liabilities were reduced by £96 million to reflect the lower cash tax expected to be payable.
The following tax has been recognised directly in other comprehensive income or equity during the year:
2014
£m |
2013
£m |
2012
£m |
||||||||||
Tax on items that will not be reclassified to profit or loss |
||||||||||||
Tax on actuarial movements on defined benefit pension schemes |
63 | (24 | ) | 91 | ||||||||
Tax credit on other items |
| | 5 | |||||||||
|
|
|
|
|
|
|||||||
63 | (24 | ) | 96 | |||||||||
|
|
|
|
|
|
|||||||
Tax on items that may be reclassified to profit or loss |
||||||||||||
Tax on fair value movements on cash flow hedges |
13 | (14 | ) | (24 | ) | |||||||
|
|
|
|
|
|
|||||||
13 | (14 | ) | (24 | ) | ||||||||
|
|
|
|
|
|
|||||||
Net tax credit/(debit) recognised in other comprehensive income |
76 | (38 | ) | 72 | ||||||||
|
|
|
|
|
|
|||||||
Tax credit on share based remuneration recognised directly in equity |
20 | 20 | | |||||||||
|
|
|
|
|
|
A number of changes to the UK corporation tax system, including reductions of the main rate of corporation tax from 23% to 21% with effect from April 1, 2014, and from 21% to 20% with effect from April 1, 2015, were substantively enacted on July 2, 2013. The Group has measured its UK deferred tax assets and liabilities at the end of the reporting period at 20% (2013: 20%; 2012: 23%).
F-30
11. | Statement of cash flows |
Reconciliation of profit before tax to cash generated from operations
2014
£m |
2013
£m |
2012
£m |
||||||||||
Profit before tax |
1,229 | 1,196 | 1,151 | |||||||||
Disposals and other non operating items |
11 | (16 | ) | (45 | ) | |||||||
Net finance costs |
162 | 196 | 227 | |||||||||
Share of results of joint ventures |
(36 | ) | (29 | ) | (24 | ) | ||||||
|
|
|
|
|
|
|||||||
Operating profit before joint ventures |
1,366 | 1,347 | 1,309 | |||||||||
|
|
|
|
|
|
|||||||
Amortisation of acquired intangible assets |
282 | 317 | 328 | |||||||||
Amortisation of internally developed intangible assets |
158 | 160 | 151 | |||||||||
Depreciation of property, plant and equipment |
79 | 89 | 76 | |||||||||
Share based remuneration |
32 | 31 | 31 | |||||||||
|
|
|
|
|
|
|||||||
Total non cash items |
551 | 597 | 586 | |||||||||
|
|
|
|
|
|
|||||||
Decrease in inventories and pre-publication costs |
3 | 10 | 21 | |||||||||
(Increase)/decrease in receivables |
(66 | ) | 5 | 4 | ||||||||
Decrease in payables |
(3 | ) | (16 | ) | (73 | ) | ||||||
|
|
|
|
|
|
|||||||
Increase in working capital |
(66 | ) | (1 | ) | (48 | ) | ||||||
|
|
|
|
|
|
|||||||
Cash generated from operations |
1,851 | 1,943 | 1,847 | |||||||||
|
|
|
|
|
|
Cash flow on acquisitions
Note |
2014
£m |
2013
£m |
2012
£m |
|||||||||||||
Purchase of businesses |
12 | (347 | ) | (194 | ) | (276 | ) | |||||||||
Investment in joint ventures |
(15 | ) | (6 | ) | (10 | ) | ||||||||||
Deferred payments relating to prior year acquisitions |
(34 | ) | (21 | ) | (30 | ) | ||||||||||
|
|
|
|
|
|
|||||||||||
Total |
(396 | ) | (221 | ) | (316 | ) | ||||||||||
|
|
|
|
|
|
12. | Acquisitions |
Acquisitions in 2014
During the year a number of acquisitions were made for a total consideration of £356 million, after taking account of net cash acquired of £9 million. The net assets of the businesses acquired are incorporated at their fair value to the combined businesses. Provisional fair values of the consideration given and of the assets and liabilities acquired are summarised below:
Fair value
£m |
||||
Goodwill |
240 | |||
Intangible assets |
187 | |||
Property, plant and equipment |
3 | |||
Current assets |
21 | |||
Current liabilities |
(39 | ) | ||
Borrowings |
(20 | ) | ||
Deferred tax |
(36 | ) | ||
|
|
|||
Net assets acquired |
356 | |||
|
|
|||
Consideration (after taking account of £9 million net cash acquired) |
356 | |||
Less: consideration deferred to future years |
(8 | ) | ||
Less: acquisition date fair value of equity interest |
(1 | ) | ||
|
|
|||
Net cash flow |
347 | |||
|
|
F-31
12. | Acquisitions (continued) |
Goodwill, being the excess of the consideration over the net tangible and intangible assets acquired, represents benefits which do not qualify for recognition as intangible assets, including the ability of the business to generate higher returns than individual assets, skilled workforces, and acquisition synergies that are specific to the Group. In addition, goodwill arises on the recognition of deferred tax liabilities in respect of intangible assets, for which amortisation does not qualify for tax deductions.
The fair value of the assets and liabilities acquired are provisional pending the completion of the valuation exercises. Final fair values will be incorporated in the 2015 combined financial statements. There were no significant adjustments to the provisional fair values of prior year acquisitions established in 2013.
The businesses acquired in 2014 contributed £37 million to revenue, decreased net profit by £6 million and contributed a net cash inflow of £3 million from operating activities for the part year under the Groups ownership and before taking account of acquisition financing costs. Had the businesses been acquired at the beginning of the year, on a proforma basis the the Group revenues and net profit attributable to parent companies shareholders for the year would have been £5,840 million and £957 million respectively, before taking account of acquisition financing costs.
Acquisitions in 2013
During the year a number of acquisitions were made for a total consideration of £239 million, after taking account of net cash acquired of £14 million. The net assets of the businesses acquired are incorporated at their fair value to the combined businesses. Fair values of the consideration given and of the assets and liabilities acquired are summarised below:
Fair value
£m |
||||
Goodwill |
157 | |||
Intangible assets |
133 | |||
Current assets |
9 | |||
Current liabilities |
(21 | ) | ||
Deferred tax |
(39 | ) | ||
|
|
|||
Net assets acquired |
239 | |||
|
|
|||
Consideration (after taking account of £14 million net cash acquired) |
239 | |||
Less: consideration deferred to future years |
(36 | ) | ||
Less: acquisition date fair value of equity interest |
(9 | ) | ||
|
|
|||
Net cash flow |
194 | |||
|
|
Goodwill, being the excess of the consideration over the net tangible and intangible assets acquired, represents benefits which do not qualify for recognition as intangible assets, including the ability of the business to generate higher returns than individual assets, skilled workforces, and acquisition synergies that are specific to the Group. In addition, goodwill arises on the recognition of deferred tax liabilities in respect of intangible assets, for which amortisation does not qualify for tax deductions.
In 2013, there were no significant adjustments to the provisional fair values of prior year acquisitions established in 2012.
The businesses acquired in 2013 contributed £27 million to revenue, decreased net profit by £1 million and contributed a net cash outflow of £3 million from operating activities for the part year under the Groups ownership and before taking account of acquisition financing costs. Had the businesses been acquired at the beginning of the year, on a proforma basis the the Group revenues and net profit attributable to parent companies shareholders for the year would have been £6,067 million and £1,112 million respectively, before taking account of acquisition financing costs.
F-32
12. | Acquisitions (continued) |
Acquisitions in 2012
During the year a number of acquisitions were made for a total consideration of £341 million, after taking account of net cash acquired of £12 million. The net assets of the businesses acquired are incorporated at their fair value to the combined businesses. The fair values of the consideration given and of the assets and liabilities acquired are summarised below:
Fair value
£m |
||||
Goodwill |
165 | |||
Intangible assets |
229 | |||
Property, plant and equipment |
1 | |||
Current assets |
21 | |||
Current liabilities |
(61 | ) | ||
Current tax |
2 | |||
Deferred tax |
(16 | ) | ||
|
|
|||
Net assets acquired |
341 | |||
|
|
|||
Consideration (after taking account of £12 million net cash acquired) |
341 | |||
Less: consideration deferred to future years |
(23 | ) | ||
Less: acquisition date fair value of equity interest |
(42 | ) | ||
|
|
|||
Net cash flow |
276 | |||
|
|
Goodwill, being the excess of the consideration over the net tangible and intangible assets acquired, represents benefits which do not qualify for recognition as intangible assets, including the ability of the business to generate higher returns than individual assets, skilled workforces, and acquisition synergies that are specific to the Group. In addition, goodwill arises on the recognition of deferred tax liabilities in respect of intangible assets, for which amortisation does not qualify for tax deductions.
In 2012, there were no significant adjustments to the provisional fair values of prior year acquisitions established in 2011.
The businesses acquired in 2012 contributed £73 million to revenue, decreased net profit by £10 million and contributed £2 million to net cash inflow from operating activities for the part year under the Groups ownership and before taking account of acquisition financing costs. Had the businesses been acquired at the beginning of the year, on a proforma basis the the Group revenues and net profit attributable to parent companies shareholders for the year would have been £6,153 million and £1,048 million respectively, before taking account of acquisition financing costs.
13. | Equity dividends |
Ordinary dividends paid in the year
2014
£m |
2013
£m |
2012
£m |
||||||||||
Reed Elsevier PLC |
285 | 278 | 264 | |||||||||
Reed Elsevier NV |
281 | 273 | 259 | |||||||||
|
|
|
|
|
|
|||||||
Total |
566 | 551 | 523 | |||||||||
|
|
|
|
|
|
Ordinary dividends paid in the year, in amounts per ordinary share, comprise: a 2013 final dividend of 17.95p and a 2014 interim dividend of 7p giving a total of 24.95p (2013: 23.65p; 2012: 21.9p) for Reed Elsevier PLC; and a 2013 final dividend of 0.374 and a 2014 interim dividend of 0.151 giving a total of 0.525 (2013: 0.469; 2012: 0.456) for Reed Elsevier NV.
The directors of Reed Elsevier PLC have proposed a final dividend of 19.0p (2013: 17.95p; 2012: 17.0p). The directors of Reed Elsevier NV have proposed a final dividend of 0.438 (2013: 0.374; 2012: 0.337). The total cost of funding the proposed final dividends is expected to be £445 million, for which no liability has been recognised at the statement of financial position date.
F-33
13. | Equity dividends (continued) |
Ordinary dividends paid and proposed relating to the financial year
2014
£m |
2013
£m |
2012
£m |
||||||||||
Reed Elsevier PLC |
294 | 283 | 273 | |||||||||
Reed Elsevier NV |
312 | 288 | 262 | |||||||||
|
|
|
|
|
|
|||||||
Total |
606 | 571 | 535 | |||||||||
|
|
|
|
|
|
Dividends paid to Reed Elsevier PLC and Reed Elsevier NV shareholders are, other than in special circumstances, equalised at the gross level inclusive of the UK tax credit of 10% available to certain Reed Elsevier PLC shareholders.
14. | Goodwill |
2014
£m |
2013
£m |
2012
£m |
||||||||||
At January 1 |
4,576 | 4,545 | 4,729 | |||||||||
Acquisitions |
240 | 157 | 165 | |||||||||
Disposals/reclassified as held for sale |
(34 | ) | (46 | ) | (152 | ) | ||||||
Exchange translation differences |
199 | (80 | ) | (197 | ) | |||||||
|
|
|
|
|
|
|||||||
At December 31 |
4,981 | 4,576 | 4,545 | |||||||||
|
|
|
|
|
|
The carrying amount of goodwill is after cumulative amortisation of £1,106 million (2013: £1,154 million; 2012: £1,180 million) which was charged prior to the adoption of IFRS and £9 million (2013: £9 million; 2012: £20 million) of subsequent impairment charges recorded in prior years.
Impairment review
Impairment testing of goodwill and indefinite lived intangible assets is performed at least annually in accordance with the methodology described within critical judgements and key sources of estimation uncertainty on page F-15. There were no charges for impairment of goodwill in 2014 (2013: nil; 2012: nil).
Goodwill is compiled and assessed among groups of cash generating units (CGUs) which represent the lowest level at which goodwill is monitored by management. Typically, acquisitions are integrated into existing business units, and the goodwill arising is allocated to the groups of CGUs that are expected to benefit from the synergies of the acquisition. As the business areas have become increasingly integrated and globalised, management has reviewed the allocation of goodwill to groups of CGUs. In order to reflect the global leverage of assets, skills, knowledge and technology platforms, and consequential changes to the monitoring of goodwill by management, the number of groups of CGUs to which goodwill is allocated has been reduced from 25 in 2013 to 5 in 2014 (2012: 22). Reducing the number of groups of CGUs had no impact on the carrying values of goodwill, which are set out below:
2014
£m |
2013
£m |
2012
£m |
||||||||||
Scientific, Technical & Medical |
1,109 | 1,051 | 1,026 | |||||||||
Risk Solutions |
1,779 | 1,604 | 1,559 | |||||||||
Business Information |
480 | 374 | 408 | |||||||||
Legal |
1,199 | 1,121 | 1,150 | |||||||||
Exhibitions |
414 | 426 | 402 | |||||||||
|
|
|
|
|
|
|||||||
Total |
4,981 | 4,576 | 4,545 | |||||||||
|
|
|
|
|
|
The key assumptions for each group of CGUs are disclosed below:
Key Assumptions |
Pre-tax
discount rate |
Nominal long
term market growth rate |
||
Scientific, Technical & Medical |
10.4% | 3.0% | ||
Risk Solutions |
11.5% | 3.0% | ||
Business Information |
11.7% | 3.0% | ||
Legal |
11.5% | 2.0% | ||
Exhibitions |
11.7% | 3.0% | ||
|
|
F-34
14. | Goodwill (continued) |
The pre-tax discount rates used are based on the Groups weighted average cost of capital, adjusted to reflect a risk premium specific to each business. Nominal long-term market growth rates do not exceed the long term average growth prospects for the sectors and territories in which the businesses operate.
A sensitivity analysis has been performed based on changes in key assumptions considered to be reasonably possible by management: an increase in the discount rate of 0.5%; a decrease in the compound annual growth rate for adjusted cash flow in the five-year forecast period of 2.0%; and a decrease in the nominal long term market growth rates of 0.5%. The sensitivity analysis shows that no impairment charges would result from these scenarios.
15. | Intangible assets |
Market
and customer related £m |
Content,
software and other £m |
Total
acquired intangible assets £m |
Internally
developed intangible assets £m |
Total
£m |
||||||||||||||||
Cost |
||||||||||||||||||||
At January 1, 2012 |
2,802 | 3,263 | 6,065 | 1,422 | 7,487 | |||||||||||||||
Acquisitions |
201 | 27 | 228 | 1 | 229 | |||||||||||||||
Additions |
| | | 261 | 261 | |||||||||||||||
Disposals/reclassified as held for sale |
(56 | ) | (97 | ) | (153 | ) | (114 | ) | (267 | ) | ||||||||||
Exchange translation differences |
(131 | ) | (103 | ) | (234 | ) | (53 | ) | (287 | ) | ||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
At January 1, 2013 |
2,816 | 3,090 | 5,906 | 1,517 | 7,423 | |||||||||||||||
Acquisitions |
49 | 84 | 133 | | 133 | |||||||||||||||
Additions |
| | | 251 | 251 | |||||||||||||||
Disposals/reclassified as held for sale |
(55 | ) | (216 | ) | (271 | ) | (27 | ) | (298 | ) | ||||||||||
Exchange translation differences |
(65 | ) | (16 | ) | (81 | ) | (24 | ) | (105 | ) | ||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
At January 1, 2014 |
2,745 | 2,942 | 5,687 | 1,717 | 7,404 | |||||||||||||||
Acquisitions |
69 | 117 | 186 | 1 | 187 | |||||||||||||||
Additions |
| | | 207 | 207 | |||||||||||||||
Disposals/reclassified as held for sale |
| (62 | ) | (62 | ) | (73 | ) | (135 | ) | |||||||||||
Exchange translation differences |
151 | 44 | 195 | 32 | 227 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
At December 31, 2014 |
2,965 | 3,041 | 6,006 | 1,884 | 7,890 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Accumulated amortisation and impairment |
||||||||||||||||||||
At January 1, 2012 |
744 | 2,422 | 3,166 | 827 | 3,993 | |||||||||||||||
Charge for the year |
173 | 155 | 328 | 151 | 479 | |||||||||||||||
Disposals/reclassified as held for sale |
(11 | ) | (89 | ) | (100 | ) | (79 | ) | (179 | ) | ||||||||||
Exchange translation differences |
(36 | ) | (80 | ) | (116 | ) | (29 | ) | (145 | ) | ||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
At January 1, 2013 |
870 | 2,408 | 3,278 | 870 | 4,148 | |||||||||||||||
Charge for the year |
178 | 139 | 317 | 160 | 477 | |||||||||||||||
Disposals |
(55 | ) | (216 | ) | (271 | ) | (22 | ) | (293 | ) | ||||||||||
Exchange translation differences |
(26 | ) | (15 | ) | (41 | ) | (11 | ) | (52 | ) | ||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
At January 1, 2014 |
967 | 2,316 | 3,283 | 997 | 4,280 | |||||||||||||||
Charge for the year |
154 | 128 | 282 | 158 | 440 | |||||||||||||||
Disposals |
| (44 | ) | (44 | ) | (64 | ) | (108 | ) | |||||||||||
Exchange translation differences |
58 | 43 | 101 | 13 | 114 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
At December 31, 2014 |
1,179 | 2,443 | 3,622 | 1,104 | 4,726 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Net book amount |
||||||||||||||||||||
At December 31, 2012 |
1,946 | 682 | 2,628 | 647 | 3,275 | |||||||||||||||
At December 31, 2013 |
1,778 | 626 | 2,404 | 720 | 3,124 | |||||||||||||||
At December 31, 2014 |
1,786 | 598 | 2,384 | 780 | 3,164 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
F-35
15. | Intangible assets (continued) |
Intangible assets acquired as part of business combinations comprise: market related assets (e.g. trademarks, imprints, brands); customer related assets (e.g. subscription bases, customer lists, customer relationships); and content, software and other intangible assets (e.g. editorial content, software and product delivery systems, other publishing rights, exhibition rights and supply contracts). Included in content, software and other acquired intangible assets are assets with a net book value of £265 million (2013: £353 million; 2012: £431 million) that arose on acquisitions completed prior to the adoption of IFRS that have not been allocated to specific categories of intangible assets. Internally developed intangible assets typically comprise software and systems development where an identifiable asset is created that is expected to generate future economic benefits.
Included in market and customer related intangible assets are £369 million (2013: £347 million; 2012: £354 million) of brands and imprints relating to Scientific, Technical & Medical determined to have indefinite lives based on an assessment of their historical longevity and stable market positions. Indefinite lived intangibles are tested for impairment at least annually using the same value in use assumptions as set out in critical judgements and key sources of estimation uncertainty on pages F-14 to F-15.
16. | Investments |
2014
£m |
2013
£m |
2012
£m |
||||||||||
Investments in joint ventures |
125 | 125 | 100 | |||||||||
Available for sale investments |
2 | 2 | 3 | |||||||||
Venture capital investments held for trading |
110 | 90 | 76 | |||||||||
|
|
|
|
|
|
|||||||
Total |
237 | 217 | 179 | |||||||||
|
|
|
|
|
|
The value of venture capital investments held for trading, determined by reference to quoted market prices, amounted to nil (2013: £12 million; 2012: £27 million). The value of other venture capital investments and available for sale investments has been determined by reference to other observable market inputs. Gains and losses included in the combined income statement are set out in note 9.
An analysis of changes in the carrying value of investments in joint ventures is set out below:
2014
£m |
2013
£m |
2012
£m |
||||||||||
At January 1 |
125 | 100 | 124 | |||||||||
Share of results of joint ventures |
36 | 29 | 24 | |||||||||
Dividends received from joint ventures |
(44 | ) | (22 | ) | (20 | ) | ||||||
Disposals and transfers |
(1 | ) | (3 | ) | (33 | ) | ||||||
Additions |
15 | 21 | 10 | |||||||||
Exchange translation differences |
(6 | ) | | (5 | ) | |||||||
|
|
|
|
|
|
|||||||
At December 31 |
125 | 125 | 100 | |||||||||
|
|
|
|
|
|
The principal joint ventures at December 31, 2014 are exhibition joint ventures within Exhibitions and Giuffrè and Martindale within Legal.
Summarised aggregate information in respect of joint ventures and the Groups share is set out below:
Total joint ventures | The Groups share | |||||||||||||||||||||||
2014
£m |
2013
£m |
2012
£m |
2014
£m |
2013
£m |
2012
£m |
|||||||||||||||||||
Revenue |
284 | 225 | 187 | 153 | 110 | 91 | ||||||||||||||||||
Net profit for the year |
69 | 57 | 45 | 36 | 29 | 24 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total assets |
285 | 246 | 227 | 138 | 117 | 104 | ||||||||||||||||||
Total liabilities |
(181 | ) | (134 | ) | (126 | ) | (91 | ) | (64 | ) | (59 | ) | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Net assets |
104 | 112 | 101 | 47 | 53 | 45 | ||||||||||||||||||
|
|
|
|
|
|
|||||||||||||||||||
Goodwill |
78 | 72 | 55 | |||||||||||||||||||||
|
|
|
|
|
|
|||||||||||||||||||
Total |
125 | 125 | 100 | |||||||||||||||||||||
|
|
|
|
|
|
The Groups combined other comprehensive income includes nil relating to joint ventures (2013: nil; 2012: nil).
F-36
17. | Property, plant and equipment |
2014 | 2013 | 2012 | ||||||||||||||||||||||||||||||||||
Land
and buildings £m |
Fixtures
and equipment £m |
Total
£m |
Land
and buildings £m |
Fixtures
and equipment £m |
Total
£m |
Land
and buildings £m |
Fixtures
and equipment £m |
Total
£m |
||||||||||||||||||||||||||||
Cost |
||||||||||||||||||||||||||||||||||||
At January 1 |
210 | 558 | 768 | 218 | 537 | 755 | 238 | 582 | 820 | |||||||||||||||||||||||||||
Acquisitions |
| 3 | 3 | | | | | 1 | 1 | |||||||||||||||||||||||||||
Capital expenditure |
9 | 61 | 70 | 4 | 66 | 70 | 10 | 70 | 80 | |||||||||||||||||||||||||||
Disposals/reclassified as held for sale |
(25 | ) | (40 | ) | (65 | ) | (8 | ) | (34 | ) | (42 | ) | (21 | ) | (97 | ) | (118 | ) | ||||||||||||||||||
Exchange translation differences |
7 | 18 | 25 | (4 | ) | (11 | ) | (15 | ) | (9 | ) | (19 | ) | (28 | ) | |||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
At December 31 | 201 | 600 | 801 | 210 | 558 | 768 | 218 | 537 | 755 | |||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
Accumulated depreciation |
||||||||||||||||||||||||||||||||||||
At January 1 |
117 | 414 | 531 | 116 | 375 | 491 | 118 | 414 | 532 | |||||||||||||||||||||||||||
Disposals/reclassified as held for sale |
(16 | ) | (38 | ) | (54 | ) | (6 | ) | (32 | ) | (38 | ) | (5 | ) | (94 | ) | (99 | ) | ||||||||||||||||||
Charge for the year |
9 | 70 | 79 | 9 | 80 | 89 | 8 | 68 | 76 | |||||||||||||||||||||||||||
Exchange translation differences |
4 | 14 | 18 | (2 | ) | (9 | ) | (11 | ) | (5 | ) | (13 | ) | (18 | ) | |||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
At December 31 |
114 | 460 | 574 | 117 | 414 | 531 | 116 | 375 | 491 | |||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
Net book amount |
87 | 140 | 227 | 93 | 144 | 237 | 102 | 162 | 264 | |||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
No depreciation is provided on freehold land of £14 million (2013: £14 million; 2012: £15 million). The net book amount of property, plant and equipment at December 31, 2014 includes £13 million (2013: £17 million; 2012: £11 million) in respect of assets held under finance leases relating to fixtures and equipment.
18. | Financial instruments |
The main financial risks faced by the Group are liquidity risk, market risk comprising interest rate risk and foreign exchange risk and credit risk. Financial instruments are used to finance the Groups businesses and to hedge interest rate and foreign exchange risks. The Groups businesses do not enter into speculative derivative transactions. Details of financial instruments subject to liquidity, market and credit risks are described below.
Liquidity risk
The Group maintains a range of borrowing facilities and debt programmes to fund its requirements, at short notice and at competitive rates.
The balance of long-term debt, short-term debt and committed bank facilities is managed to provide security of funding, taking into account the cash generation cycle of the business and the uncertain size and timing of acquisition spend. To accommodate the significant free cash flow generated by the Group and to capitalise on an inexpensive source of funding, a meaningful portion of the overall debt portfolio is typically kept short term as long as there exists acceptable liquidity in the commercial paper markets and sufficient capacity under committed credit lines. The treasury policies ensure adequate liquidity by requiring (a) that no more than $1.5 billion of term debt matures in any 12-month period, (b) that the sum of term debt maturing over the ensuing 12 months plus commercial paper is less than the sum of available cash plus committed facilities and (c) minimum levels of borrowing with maturities over three and five years are maintained.
The treasury policies ensure debt efficiency by (a) targeting certain levels of commercial paper across a given year, (b) maintaining a weighted average maturity of the gross debt portfolio of approximately 5 years and (c) minimising surplus cash balances. From time to time, based on cash flow and market conditions, the Group may redeem term debt early or
F-37
18. | Financial instruments (continued) |
repurchase outstanding debt in the open market. Debt is issued to meet the funding requirements of various jurisdictions and in the currency that is needed. It is recognised that debt can act as a natural translation hedge of earnings and net assets in currencies other than the reporting currencies. For this reason, a significant proportion of our net debt has historically been denominated in US dollars, reflecting the size and importance of the US businesses.
There were no changes to the Groups long-term approach to capital and liquidity management during the year.
The remaining contractual maturities for borrowings and derivative financial instruments are shown in the table below. The table shows undiscounted principal and interest cash flows and includes contractual gross cash flows to be exchanged as part of cross currency interest rate swaps and forward foreign exchange contracts where there is a legal right of set-off.
Contractual cash flow | ||||||||||||||||||||||||||||||||
At December 31, 2014 |
Carrying
amount £m |
Within
1 year £m |
1-2 Years
£m |
2-3 Years
£m |
3-4 Years
£m |
4-5 Years
£m |
More
than 5 Years £m |
Total
£m |
||||||||||||||||||||||||
Borrowings |
||||||||||||||||||||||||||||||||
Fixed rate borrowings |
(2,937 | ) | (263 | ) | (536 | ) | (432 | ) | (265 | ) | (632 | ) | (1,631 | ) | (3,759 | ) | ||||||||||||||||
Floating rate borrowings |
(888 | ) | (551 | ) | (3 | ) | (275 | ) | (65 | ) | | (2 | ) | (896 | ) | |||||||||||||||||
Derivative financial liabilities |
||||||||||||||||||||||||||||||||
Interest rate derivatives |
| | | | | | | | ||||||||||||||||||||||||
Cross currency interest rate swaps |
(47 | ) | (11 | ) | (10 | ) | (318 | ) | (188 | ) | | | (527 | ) | ||||||||||||||||||
Forward foreign exchange contracts |
(47 | ) | (1,288 | ) | (474 | ) | (150 | ) | (58 | ) | | | (1,970 | ) | ||||||||||||||||||
Derivative financial assets |
||||||||||||||||||||||||||||||||
Interest rate derivatives |
46 | 14 | 13 | 11 | 4 | 4 | 5 | 51 | ||||||||||||||||||||||||
Cross currency interest rate swaps |
6 | 3 | 3 | 275 | 181 | | | 462 | ||||||||||||||||||||||||
Forward foreign exchange contracts |
57 | 1,293 | 475 | 150 | 62 | | | 1,980 | ||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Total |
(3,810 | ) | (803 | ) | (532 | ) | (739 | ) | (329 | ) | (628 | ) | (1,628 | ) | (4,659 | ) | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Contractual cash flow | ||||||||||||||||||||||||||||||||
At December 31, 2013 |
Carrying
amount £m |
Within
1 year £m |
1-2 Years
£m |
2-3 Years
£m |
3-4 Years
£m |
4-5 Years
£m |
More
than 5 Years £m |
Total
£m |
||||||||||||||||||||||||
Borrowings |
||||||||||||||||||||||||||||||||
Fixed rate borrowings |
(2,931 | ) | (497 | ) | (243 | ) | (524 | ) | (420 | ) | (264 | ) | (1,909 | ) | (3,857 | ) | ||||||||||||||||
Floating rate borrowings |
(350 | ) | (288 | ) | (61 | ) | | (1 | ) | | (2 | ) | (352 | ) | ||||||||||||||||||
Derivative financial liabilities |
||||||||||||||||||||||||||||||||
Interest rate derivatives |
(4 | ) | | | | (1 | ) | (4 | ) | (7 | ) | (12 | ) | |||||||||||||||||||
Cross currency interest rate swaps |
(6 | ) | (180 | ) | (3 | ) | (5 | ) | (7 | ) | (193 | ) | | (388 | ) | |||||||||||||||||
Forward foreign exchange contracts |
(7 | ) | (1,031 | ) | (402 | ) | (222 | ) | | | | (1,655 | ) | |||||||||||||||||||
Derivative financial assets |
||||||||||||||||||||||||||||||||
Interest rate derivatives |
19 | 13 | 11 | 6 | 1 | | | 31 | ||||||||||||||||||||||||
Cross currency interest rate swaps |
70 | 247 | 2 | 2 | 3 | 189 | | 443 | ||||||||||||||||||||||||
Forward foreign exchange contracts |
99 | 1,082 | 431 | 233 | | | | 1,746 | ||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Total |
(3,110 | ) | (654 | ) | (265 | ) | (510 | ) | (425 | ) | (272 | ) | (1,918 | ) | (4,044 | ) | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
F-38
18. | Financial instruments (continued) |
Contractual cash flow | ||||||||||||||||||||||||||||||||
At December 31, 2012 |
Carrying
amount £m |
Within
1 year £m |
1-2 Years
£m |
2-3 Years
£m |
3-4 Years
£m |
4-5 Years
£m |
More
than 5 Years £m |
Total
£m |
||||||||||||||||||||||||
Borrowings |
||||||||||||||||||||||||||||||||
Fixed rate borrowings |
(3,695 | ) | (803 | ) | (797 | ) | (251 | ) | (530 | ) | (428 | ) | (1,940 | ) | (4,749 | ) | ||||||||||||||||
Floating rate borrowings |
(197 | ) | (132 | ) | (1 | ) | (63 | ) | | (1 | ) | (3 | ) | (200 | ) | |||||||||||||||||
Derivative financial liabilities |
||||||||||||||||||||||||||||||||
Interest rate derivatives |
(2 | ) | (3 | ) | | | | | (5 | ) | (8 | ) | ||||||||||||||||||||
Cross currency interest rate swaps |
| (166 | ) | (180 | ) | | | | | (346 | ) | |||||||||||||||||||||
Forward foreign exchange contracts |
(9 | ) | (1,382 | ) | (442 | ) | (194 | ) | | | | (2,018 | ) | |||||||||||||||||||
Derivative financial assets |
||||||||||||||||||||||||||||||||
Interest rate derivatives |
47 | 35 | 13 | 12 | 9 | 6 | | 75 | ||||||||||||||||||||||||
Cross currency interest rate swaps |
93 | 202 | 243 | | | | | 445 | ||||||||||||||||||||||||
Forward foreign exchange contracts |
55 | 1,400 | 460 | 202 | | | | 2,062 | ||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Total |
(3,708 | ) | (849 | ) | (704 | ) | (294 | ) | (521 | ) | (423 | ) | (1,948 | ) | (4,739 | ) | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The carrying amount of derivative financial liabilities comprises £3 million (2013: £10 million; 2012: nil) in relation to fair value hedges, £78 million (2013: £7 million; 2012: £7 million) in relation to cash flow hedges and £9 million (2013: nil; 2012: £4 million) not designated as hedging instruments, plus £4 million of cash collateral received from swap counterparties which has been added to the related derivative financial liabilities (2013: £13 million which has been offset against the related derivative financial assets; 2012: nil) (see Credit risk below). The carrying amount of derivative financial assets comprises £46 million (2013: £84 million; 2012: £124 million) in relation to fair value hedges, £60 million (2013: £88 million; 2012: £46 million) in relation to cash flow hedges and £3 million (2013: £29 million; 2012: £25 million) not designated as hedging instruments. The expected cash flows in respect of the cash collateral have been included in the tables above together with the cash flows for the related cross currency interest rate swaps.
At December 31, 2014, the Group had access to a $2,000 million committed bank facility maturing in July 2019, which was undrawn. This facility backs up short term borrowings. All borrowings that mature within the next two years can be covered by the facility and by utilising available cash resources.
The committed bank facility, together with certain private placements, are subject to financial covenants typical to the Groups size and financial strength. The Group had significant headroom within these covenants for the year ended December 31, 2014. There are no financial covenants in any outstanding public bonds.
Market Risk
The Groups primary market risks are to interest rate fluctuations and exchange rate movements. Derivatives are used to hedge or reduce the risks of interest rate and exchange rate movements and are not entered into unless such risks exist. Derivatives used by the Group for hedging a particular risk are not specialised and are generally available from numerous sources. The impact of market risks on net post employment benefit obligations and taxation is excluded from the following market risk sensitivity analysis.
Interest rate exposure management
The Groups interest rate exposure management policy aims to reduce the exposure of the combined businesses to changes in interest rates at efficient cost. To achieve this we use fixed rate term debt, interest rate swaps, forward rate agreements and interest rate options. Interest rate derivatives are used only to hedge an underlying risk and no net market positions are held.
At December 31, 2014, 52% of gross borrowings were either fixed rate or had been fixed through the use of interest rate swaps, forward rate agreements and options. A 100 basis point reduction in interest rates would result in an estimated decrease in net finance costs of £16 million (2013: £12 million; 2012: £8 million), based on the composition of financial instruments including cash, cash equivalents, bank loans and commercial paper borrowings at December 31, 2014. A 100 basis point rise in interest rates would result in an estimated increase in net finance costs of £16 million (2013: £12 million; 2012: £8 million).
F-39
18. | Financial instruments (continued) |
The impact on net equity of a theoretical change in interest rates as at December 31, 2014 is restricted to the change in carrying value of floating rate to fixed rate interest rate derivatives in a designated cash flow hedge relationship and undesignated interest rate derivatives, of which there were none in the Group as at December 31, 2014. A 100 basis point reduction in interest rates would therefore result in a reduction in net equity of nil (2013: nil; 2012: £1 million) and a 100 basis point increase in interest rates would increase net equity by nil (2013: £1 million; 2012: £2 million). The impact of a change in interest rates on the carrying value of fixed rate borrowings in a designated fair value hedge relationship would be offset by the change in carrying value of the related interest rate derivative. Fixed rate borrowings not in a designated hedging relationship are carried at amortised cost.
Foreign currency exposure management
Translation exposures arise on the earnings and net assets of business operations in countries other than those of each parent company. Some of these exposures are offset by denominating borrowings in US dollars. Currency exposures on transactions denominated in a foreign currency are generally hedged using forward contracts. In addition, recurring transactions and future investment exposures may be hedged, in advance of becoming contractual. The precise policy differs according to the specific circumstances of the individual businesses. Highly predictable future cash flows may be covered for transactions expected to occur during the next 24 months (50 months for the Scientific, Technical & Medical subscription businesses) within limits defined according to the period before the transaction is expected to become contractual. Cover takes the form of foreign exchange forward contracts.
As at December 31, 2014, the amount of outstanding foreign exchange cover against future transactions was £1.4 billion (2013: £1.3 billion; 2012: £1.2 billion).
A theoretical weakening of all currencies by 10% against sterling at December 31, 2014 would decrease the carrying value of net assets, excluding net borrowings, by £524 million (2013: £500 million; 2012: £495 million). This would be offset to a degree by a decrease in net borrowings of £255 million (2013: £246 million; 2012: £286 million). A strengthening of all currencies by 10% against sterling at December 31, 2014 would increase the carrying value of net assets, excluding net borrowings, by £524 million (2013: £500 million; 2012: £495 million) and increase net borrowings by £255 million (2013: £246 million; 2012: £286 million).
A retranslation of the combined businesses net profit for the year assuming a 10% weakening of all foreign currencies against sterling but excluding transactional exposures would reduce net profit by £80 million (2013: £92 million; 2012: £80 million). A 10% strengthening of all foreign currencies against sterling on this basis would increase net profit for the year by £80 million (2013: £92 million; 2012: £80 million).
Credit risk
The Group seeks to limit interest rate and foreign exchange risks described above by the use of financial instruments and as a result has a credit risk from the potential non performance by the counterparties to these financial instruments, which are unsecured. The amount of this credit risk is normally restricted to the amounts of any hedge gain and not the principal amount being hedged. The Group also has a credit exposure to counterparties for the full principal amount of cash and cash equivalents. Credit risks are controlled by monitoring the credit quality of these counterparties, principally licensed commercial banks and investment banks with strong long term credit ratings, and the amounts outstanding with each of them.
In certain situations, the Group enters into credit support arrangements with derivative counterparties to mitigate the credit exposures arising from hedge gains on the related financial instruments. Under these arrangements, the Group receives (or pays) cash collateral equal to the mark to market valuation of the related derivative asset (or liability) on monthly settlement dates. At December 31, 2014, £4 million (2013: £13 million; 2012: nil) of cash collateral had been received, and the resulting payable balance was added to the related derivative liabilities of £1 million (2013: £13 million offset against the related derivative assets of £12 million; 2012: nil) in the statement of financial position.
The Group has treasury policies in place which do not allow concentrations of risk with individual counterparties and do not allow significant treasury exposures with counterparties which are rated lower than A-/A3 by Standard & Poors, Moodys and Fitch. At December 31, 2014, cash and cash equivalents totalled £276 million (2013: £132 million; 2012: £641 million), of which 96% (2013: 90%; 2012: 98%) was held with banks rated A-/A3 or better.
The Group also has credit risk with respect to trade receivables due from its customers that include national and state governments, academic institutions and large and small enterprises including law firms, book stores and wholesalers. The
F-40
18. | Financial instruments (continued) |
concentration of credit risk from trade receivables is limited due to the large and broad customer base. Trade receivable exposures are managed locally in the business units where they arise. Where appropriate, business units seek to minimise this exposure by taking payment in advance and through management of credit terms. Allowance is made for bad and doubtful debts based on managements assessment of the risk taking into account the ageing profile, experience and circumstance. The maximum exposure to credit risk is represented by the carrying amount of each financial asset, including derivative financial instruments, recorded in the statement of financial position.
Included within trade receivables are the following amounts which are past due but for which no allowance has been made. Past due up to one month £136 million (2013: £156 million; 2012: £148 million); past due two to three months £66 million (2013: £76 million; 2012: £58 million); past due four to six months £30 million (2013: £26 million; 2012: £14 million); and past due greater than six months £7 million (2013: £7 million; 2012: £1 million). Examples of trade receivables which are past due but for which no allowance has been made include those receivables where there is no concern over the creditworthiness of the customer and where the history of dealings with the customer indicate the amount will be settled.
Hedge accounting
The hedging relationships that are designated under IAS39 Financial Instruments are described below:
Fair value hedges
The Group has entered into interest rate swaps and cross currency interest rate swaps to hedge the exposure to changes in the fair value of fixed rate borrowings due to interest rate and foreign currency movements which could affect the income statement. Interest rate derivatives (including cross currency interest rate swaps) with a principal amount of £908 million were in place at December 31, 2014, swapping fixed rate term debt issues denominated in US dollars (USD), sterling and euros to floating rate USD, sterling and euro debt respectively for the whole or part of their term (2013: £1,104 million swapping fixed rate term debt issues denominated in USD, sterling, euros and Swiss francs (CHF) to floating rate USD, sterling, euro and USD debt respectively for the whole or part of their term; 2012: £1,502 million swapping fixed rate term debt issues denominated in sterling, euros and Swiss francs (CHF) to floating rate sterling, euros and US dollar (USD) debt respectively for the whole of their term).
The gains and losses on the borrowings and related derivatives designated as fair value hedges, which are included in the income statement, for the three years ended December 31, 2014 were as follows:
Gains/(losses) on borrowings and related derivatives
January 1,
2012 £m |
Fair value
movement gain/(loss) £m |
De-designated
£m |
Exchange
gain/(loss) £m |
December 31,
2012 £m |
||||||||||||||||
GBP debt |
(30 | ) | (6 | ) | | | (36 | ) | ||||||||||||
Related interest rate swaps |
30 | 6 | | | 36 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
| | | | | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
EUR debt |
(9 | ) | (8 | ) | 9 | | (8 | ) | ||||||||||||
Related interest rate swaps |
9 | 8 | (9 | ) | | 8 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
| | | | | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
CHF debt |
(84 | ) | | | 4 | (80 | ) | |||||||||||||
Related CHF to USD cross currency interest rate swaps |
84 | | | (4 | ) | 80 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
| | | | | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total relating to GBP, EUR and CHF debt |
(123 | ) | (14 | ) | 9 | 4 | (124 | ) | ||||||||||||
Total related interest rate derivatives |
123 | 14 | (9 | ) | (4 | ) | 124 | |||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Net gain |
| | | | | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
F-41
18. | Financial instruments (continued) |
January 1,
2013 £m |
Fair value
movement gain/(loss) £m |
Exchange
gain/(loss) £m |
December 31,
2013 £m |
|||||||||||||
USD debt |
| 6 | | 6 | ||||||||||||
Related interest rate swap |
| (6 | ) | | (6 | ) | ||||||||||
|
|
|
|
|
|
|
|
|||||||||
| | | | |||||||||||||
|
|
|
|
|
|
|
|
|||||||||
GBP debt |
(36 | ) | 17 | | (19 | ) | ||||||||||
Related interest rate swaps |
36 | (17 | ) | | 19 | |||||||||||
|
|
|
|
|
|
|
|
|||||||||
| | | | |||||||||||||
|
|
|
|
|
|
|
|
|||||||||
EUR debt |
(8 | ) | 13 | (1 | ) | 4 | ||||||||||
Related interest rate swaps |
8 | (13 | ) | 1 | (4 | ) | ||||||||||
|
|
|
|
|
|
|
|
|||||||||
| | | | |||||||||||||
|
|
|
|
|
|
|
|
|||||||||
CHF debt |
(80 | ) | 14 | 1 | (65 | ) | ||||||||||
Related CHF to USD cross currency interest rate swaps |
80 | (14 | ) | (1 | ) | 65 | ||||||||||
|
|
|
|
|
|
|
|
|||||||||
| | | | |||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total USD, GBP, EUR and CHF debt |
(124 | ) | 50 | | (74 | ) | ||||||||||
Total related interest rate derivatives |
124 | (50 | ) | | 74 | |||||||||||
|
|
|
|
|
|
|
|
|||||||||
Net gain |
| | | | ||||||||||||
|
|
|
|
|
|
|
|
January 1,
2014 £m |
Fair value
movement gain/(loss) £m |
Exchange
gain/(loss) £m |
December 31,
2014 £m |
|||||||||||||
USD debt |
6 | (3 | ) | | 3 | |||||||||||
Related interest rate swap |
(6 | ) | 3 | | (3 | ) | ||||||||||
|
|
|
|
|
|
|
|
|||||||||
| | | | |||||||||||||
|
|
|
|
|
|
|
|
|||||||||
GBP debt |
(19 | ) | (1 | ) | | (20 | ) | |||||||||
Related interest rate swaps |
19 | 1 | | 20 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
| | | | |||||||||||||
|
|
|
|
|
|
|
|
|||||||||
EUR debt |
4 | (31 | ) | 1 | (26 | ) | ||||||||||
Related interest rate swaps |
(4 | ) | 31 | (1 | ) | 26 | ||||||||||
|
|
|
|
|
|
|
|
|||||||||
| | | | |||||||||||||
|
|
|
|
|
|
|
|
|||||||||
CHF debt |
(65 | ) | 65 | | | |||||||||||
Related CHF to USD cross currency interest rate swaps |
65 | (65 | ) | | | |||||||||||
|
|
|
|
|
|
|
|
|||||||||
| | | | |||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total USD, GBP, EUR and CHF debt |
(74 | ) | 30 | 1 | (43 | ) | ||||||||||
Total related interest rate derivatives |
74 | (30 | ) | (1 | ) | 43 | ||||||||||
|
|
|
|
|
|
|
|
|||||||||
Net gain |
| | | | ||||||||||||
|
|
|
|
|
|
|
|
All fair value hedges were highly effective throughout the three years ended December 31, 2014.
Gross borrowings as at December 31, 2014 included £29 million (2013: £31 million; 2012: £37 million) in relation to fair value adjustments to borrowings previously designated in a fair value hedge relationship which were de-designated in 2008. The related derivatives were closed out on de-designation with a cash inflow of £62 million. £4 million (2013: £5 million; 2012: £5 million ) of these fair value adjustments were amortised in the year as a reduction to finance costs.
F-42
18. | Financial instruments (continued) |
Cash flow hedges
The Group enters into two types of cash flow hedge:
(1) | Debt hedges comprising interest rate derivatives which fix the interest expense on a portion of forecast floating rate debt (including commercial paper, short term bank loans and floating rate term debt), and cross currency interest rate derivatives which hedge the cash flow exposure arising from foreign currency denominated debt. |
(2) | Revenue hedges comprising forward foreign exchange contracts which fix the exchange rate on a portion of future foreign currency subscription revenues forecast by the Scientific, Technical & Medical businesses for up to 50 months. |
Movements in the hedge reserve in 2014, 2013 and 2012, including gains and losses on cash flow hedging instruments, were as follows:
Debt
hedges £m |
Revenue
hedges £m |
Total
hedge reserve pre-tax £m |
||||||||||
Hedge reserve at January 1, 2012: losses deferred |
(17 | ) | (46 | ) | (63 | ) | ||||||
(Losses)/gains arising in 2012 |
(2 | ) | 72 | 70 | ||||||||
Amounts recognised in income statement |
16 | 10 | 26 | |||||||||
Exchange translation differences |
1 | 1 | 2 | |||||||||
|
|
|
|
|
|
|||||||
Hedge reserve at January 1, 2013: (losses)/gains deferred |
(2 | ) | 37 | 35 | ||||||||
Gains arising in 2013 |
1 | 64 | 65 | |||||||||
Amounts recognised in income statement |
3 | (6 | ) | (3 | ) | |||||||
Exchange translation differences |
| (1 | ) | (1 | ) | |||||||
|
|
|
|
|
|
|||||||
Hedge reserve at January 1, 2014: gains deferred |
2 | 94 | 96 | |||||||||
Losses arising in 2014 |
(52 | ) | (29) | (81 | ) | |||||||
Amounts recognised in income statement |
56 | (37) | 19 | |||||||||
Exchange translation differences |
| 1 | 1 | |||||||||
|
|
|
|
|
|
|||||||
Hedge reserve at December 31, 2014: gains deferred |
6 | 29 | 35 | |||||||||
|
|
|
|
|
|
All cash flow hedges were highly effective throughout the three years ended December 31, 2014.
A tax charge of £10 million (2013: £23 million; 2012: £9 million) in respect of the above gains and losses at December 31, 2014 was also deferred in the hedge reserve.
Of the amounts recognised in the income statement in the year, gains of £37 million (2013: £6 million gain; 2012: £10 million loss) were recognised in revenue, and losses of £56 million (2013: £3 million; 2012: £16 million) were recognised in finance costs. A tax charge of £9 million (2013: £1 million charge; 2012: £5 million credit) was recognised in relation to these items.
F-43
18. | Financial instruments (continued) |
The deferred gains and losses on cash flow hedges at December 31, 2014 are currently expected to be recognised in the income statement in future years as follows:
Debt
hedges £m |
Revenue
hedges £m |
Total
hedge reserve pre-tax £m |
||||||||||
2015 |
(1) | 24 | 23 | |||||||||
2016 |
| 6 | 6 | |||||||||
2017 |
2 | (2 | ) | | ||||||||
2018 |
5 | 1 | 6 | |||||||||
2019 |
| | | |||||||||
|
|
|
|
|
|
|||||||
Gains deferred in hedge reserve at end of year |
6 | 29 | 35 | |||||||||
|
|
|
|
|
|
The cash flows for these hedges are expected to occur in line with the recognition of the gain and losses in the income statement, other than in respect of certain forward foreign exchange hedges on subscriptions, where cash flows may occur in advance of the subscription year.
F-44
19. | Deferred tax |
2014
£m |
2013
£m |
2012
£m |
||||||||||
Deferred tax assets |
464 | 442 | 79 | |||||||||
Deferred tax liabilities |
(1,056 | ) | (1,076 | ) | (919 | ) | ||||||
|
|
|
|
|
|
|||||||
Total |
(592 | ) | (634 | ) | (840 | ) | ||||||
|
|
|
|
|
|
Movements in deferred tax liabilities and assets (before taking into consideration the offsetting of balances within the same jurisdiction) are summarised as follows:
Deferred tax liabilities | Deferred tax assets | |||||||||||||||||||||||||||||||
Excess of
tax allowances over amortisation £m |
Acquired
intangible assets £m |
Other
temporary differences £m |
Excess of
amortisation over tax allowances £m |
Tax losses
carried forward £m |
Pensions
liabilities £m |
Other
temporary differences £m |
Total
£m |
|||||||||||||||||||||||||
Deferred tax (liability)/asset at January 1, 2012 |
(231 | ) | (900 | ) | (105 | ) | 16 | 48 | 86 | 62 | (1,024 | ) | ||||||||||||||||||||
(Charge)/credit to profit |
(5 | ) | 85 | (9 | ) | (3 | ) | (19 | ) | (32 | ) | 23 | 40 | |||||||||||||||||||
(Charge)/credit to equity/other comprehensive income |
| | (3 | ) | | | 102 | (6 | ) | 93 | ||||||||||||||||||||||
Acquisitions |
1 | (10 | ) | | (3 | ) | (2 | ) | | (2 | ) | (16 | ) | |||||||||||||||||||
Disposals/reclassified as held for sale |
2 | 18 | 7 | | (1 | ) | | (1 | ) | 25 | ||||||||||||||||||||||
Exchange translation differences |
10 | 35 | 2 | (1 | ) | (3 | ) | (3 | ) | 2 | 42 | |||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Deferred tax (liability)/asset at January 1, 2013 |
(223 | ) | (772 | ) | (108 | ) | 9 | 23 | 153 | 78 | (840 | ) | ||||||||||||||||||||
(Charge)/credit to profit |
(138 | ) | 98 | (106 | ) | 346 | (8 | ) | (26 | ) | 105 | 271 | ||||||||||||||||||||
(Charge)/credit to equity/other comprehensive income |
| | (6 | ) | | | (24 | ) | 12 | (18 | ) | |||||||||||||||||||||
Acquisitions |
| (39 | ) | | | | | | (39 | ) | ||||||||||||||||||||||
Disposals/reclassified as held for sale |
(3 | ) | (18 | ) | (9 | ) | | | | | (30 | ) | ||||||||||||||||||||
Exchange translation differences |
13 | 13 | 4 | (6 | ) | (1 | ) | 1 | (2 | ) | 22 | |||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Deferred tax (liability)/asset at January 1, 2014 |
(351 | ) | (718 | ) | (225 | ) | 349 | 14 | 104 | 193 | (634 | ) | ||||||||||||||||||||
Credit/(charge) to profit |
11 | 71 | (18 | ) | (4 | ) | 5 | (6 | ) | 29 | 88 | |||||||||||||||||||||
(Charge)/credit to equity/other comprehensive income |
| | (8 | ) | | | 63 | 15 | 70 | |||||||||||||||||||||||
Acquisitions |
| (53 | ) | | | 17 | | | (36 | ) | ||||||||||||||||||||||
Disposals/reclassified as held for sale |
| | | | | | | | ||||||||||||||||||||||||
Exchange translation differences |
(21 | ) | (34 | ) | 10 | (22 | ) | | | (13 | ) | (80 | ) | |||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Deferred tax (liability)/asset at December 31, 2014 |
(361 | ) | (734 | ) | (241 | ) | 323 | 36 | 161 | 224 | (592 | ) | ||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
F-45
19. | Deferred tax (continued) |
Other deferred tax liabilities includes temporary differences in respect of plant, property and equipment, capitalised development spend and financial instruments. Other deferred tax assets includes temporary differences in respect of share based remuneration, provisions and financial instruments.
Deferred tax assets in respect of tax losses and other deductible temporary differences have only been recognised to the extent that it is more likely than not that sufficient taxable profits will be available to allow the asset to be recovered. Accordingly, no deferred tax asset has been recognised in respect of unused trading losses of approximately £80 million (2013: £84 million; 2012: £129 million) carried forward at year end. The deferred tax asset not recognised in respect of these losses is approximately £19 million (2013: £20 million; 2012: £34 million). Of the unrecognised losses, £49 million (2013: £56 million; 2012: £47 million) will expire if not utilised within 10 years, and £31 million (2013: £28 million; 2012: £82 million) will expire after more than 10 years.
Deferred tax assets of approximately £13 million (2013: £14 million; 2012: £9 million) have not been recognised in respect of tax losses and other temporary differences carried forward of £65 million (2013: £69 million; 2012: £41 million) which can only be used to offset future capital gains.
20. | Inventories and pre-publication costs |
2014
£m |
2013
£m |
2012
£m |
||||||||||
Raw materials |
2 | 3 | 3 | |||||||||
Pre-publication costs |
92 | 90 | 101 | |||||||||
Finished goods |
48 | 49 | 55 | |||||||||
|
|
|
|
|
|
|||||||
Total |
142 | 142 | 159 | |||||||||
|
|
|
|
|
|
21. | Trade and other receivables |
2014
£m |
2013
£m |
2012
£m |
||||||||||
Trade receivables |
1,361 | 1,299 | 1,256 | |||||||||
Allowance for doubtful debts |
(50 | ) | (57 | ) | (51 | ) | ||||||
|
|
|
|
|
|
|||||||
1,311 | 1,242 | 1,205 | ||||||||||
Prepayments and accrued income |
176 | 174 | 175 | |||||||||
|
|
|
|
|
|
|||||||
Total |
1,487 | 1,416 | 1,380 | |||||||||
|
|
|
|
|
|
Trade receivables are predominantly non-interest bearing and their carrying amounts approximate to their fair value.
Trade receivables are stated net of allowances for bad and doubtful debts. The movements in the provision during the year were as follows:
2014
£m |
2013
£m |
2012
£m |
||||||||||
At January 1 |
57 | 51 | 63 | |||||||||
Charge for the year |
8 | 17 | 13 | |||||||||
Trade receivables written off |
(14 | ) | (11 | ) | (18 | ) | ||||||
Disposals |
| | (6 | ) | ||||||||
Exchange translation differences |
(1 | ) | | (1 | ) | |||||||
|
|
|
|
|
|
|||||||
At December 31 |
50 | 57 | 51 | |||||||||
|
|
|
|
|
|
F-46
22. | Assets and liabilities held for sale |
The major classes of assets and liabilities of operations classified as held for sale are as follows:
2014
£m |
2013
£m |
2012
£m |
||||||||||
Goodwill |
| 16 | 134 | |||||||||
Intangible assets |
| | 84 | |||||||||
Property, plant and equipment |
| | 3 | |||||||||
Deferred tax assets |
| | 4 | |||||||||
Inventories |
| | 1 | |||||||||
Trade and other receivables |
| 5 | 71 | |||||||||
|
|
|
|
|
|
|||||||
Total assets held for sale |
| 21 | 297 | |||||||||
|
|
|
|
|
|
|||||||
Trade and other payables |
2 | 3 | 69 | |||||||||
Deferred tax liabilities |
| | 27 | |||||||||
|
|
|
|
|
|
|||||||
Total liabilities associated with assets held for sale |
2 | 3 | 96 | |||||||||
|
|
|
|
|
|
23. | Trade and other payables |
2014
£m |
2013
£m |
2012
£m |
||||||||||
Payables |
333 | 330 | 303 | |||||||||
Accruals |
462 | 443 | 420 | |||||||||
Social security and other taxes |
88 | 88 | 85 | |||||||||
Other payables |
300 | 331 | 342 | |||||||||
Deferred income |
1,453 | 1,403 | 1,394 | |||||||||
|
|
|
|
|
|
|||||||
Total |
2,636 | 2,595 | 2,544 | |||||||||
|
|
|
|
|
|
Trade and other payables are predominately non-interest bearing and their carrying amounts approximate to their fair value.
24. | Borrowings |
2014 | 2013 | 2012 | ||||||||||||||||||||||||||||||||||
Falling
due within 1 year £m |
Falling
due in more than 1 year £m |
Total
£m |
Falling
due within 1 year £m |
Falling
due in more than 1 year £m |
Total
£m |
Falling
due within 1 year £m |
Falling
due in more than 1 year £m |
Total
£m |
||||||||||||||||||||||||||||
Financial liabilities measured at amortised cost: |
||||||||||||||||||||||||||||||||||||
Short term bank loans, overdrafts and commercial paper |
548 | | 548 | 287 | | 287 | 131 | | 131 | |||||||||||||||||||||||||||
Term debt |
| 1,823 | 1,823 | | 1,223 | 1,223 | | 1,526 | 1,526 | |||||||||||||||||||||||||||
Finance leases |
7 | 5 | 12 | 9 | 8 | 17 | 7 | 9 | 16 | |||||||||||||||||||||||||||
Term debt in fair value hedging relationships |
| 951 | 951 | 240 | 938 | 1,178 | 102 | 1,036 | 1,138 | |||||||||||||||||||||||||||
Term debt previously in fair value hedging relationships |
121 | 370 | 491 | 112 | 464 | 576 | 490 | 591 | 1,081 | |||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
Total |
676 | 3,149 | 3,825 | 648 | 2,633 | 3,281 | 730 | 3,162 | 3,892 | |||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The total fair value of financial liabilities measured at amortised cost is £2,597 million (2013: £1,709 million; 2012: £1,996 million). The total fair value of term debt in fair value hedging relationships is £1,045 million (2013: £1,288 million; 2012: £1,177 million). The total fair value of term debt previously in fair value hedging relationships is £588 million (2013: £650 million; 2012: £1,189 million).
F-47
24. | Borrowings (continued) |
In 2013, £186 million principal amount of term debt maturing in 2019 was exchanged for £235 million principal amount of term debt maturing in 2022 and cash. The exchange is treated as a debt modification for accounting purposes. The premium arising is offset against the carrying amount of the newly issued term debt maturing in 2022 and will be amortised over its life.
Term debt includes term debt issued by Reed Elsevier Capital Inc., a 100% owned finance subsidiary of RELX Group plc. The parent companies have fully and unconditionally guaranteed these securities. No other subsidiary of the parent companies or RELX Group plc guarantees the securities.
Analysis by year of repayment
2014 | 2013 | 2012 | ||||||||||||||||||||||||||||||||||||||||||||||
Short term
bank loans, overdrafts and commercial paper £m |
Term
debt £m |
Finance
leases £m |
Total
£m |
Short term
bank loans, overdrafts and commercial paper £m |
Term
debt £m |
Finance
leases £m |
Total
£m |
Short term
bank loans, overdrafts and commercial paper £m |
Term
debt £m |
Finance
leases £m |
Total
£m |
|||||||||||||||||||||||||||||||||||||
Within 1 year |
548 | 121 | 7 | 676 | 287 | 352 | 9 | 648 | 131 | 592 | 7 | 730 | ||||||||||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||||||
Within 1 to 2 years |
| 400 | 4 | 404 | | 174 | 5 | 179 | | 644 | 6 | 650 | ||||||||||||||||||||||||||||||||||||
Within 2 to 3 years |
| 615 | 1 | 616 | | 400 | 3 | 403 | | 178 | 3 | 181 | ||||||||||||||||||||||||||||||||||||
Within 3 to 4 years |
| 242 | | 242 | | 341 | | 341 | | 400 | | 400 | ||||||||||||||||||||||||||||||||||||
Within 4 to 5 years |
| 553 | | 553 | | 181 | | 181 | | 359 | | 359 | ||||||||||||||||||||||||||||||||||||
After 5 years |
| 1,334 | | 1,334 | | 1,529 | | 1,529 | | 1,572 | | 1,572 | ||||||||||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||||||
After 1 year |
| 3,144 | 5 | 3,149 | | 2,625 | 8 | 2,633 | | 3,153 | 9 | 3,162 | ||||||||||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||||||
Total |
548 | 3,265 | 12 | 3,825 | 287 | 2,977 | 17 | 3,281 | 131 | 3,745 | 16 | 3,892 | ||||||||||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Short term bank loans, overdrafts and commercial paper were backed up at December 31, 2014 by a $2,000 million (£1,284 million) committed bank facility maturing in July 2019, which was undrawn.
Analysis by currency
2014 | 2013 | 2012 | ||||||||||||||||||||||||||||||||||||||||||||||
Short
term
bank loans, overdrafts and commercial paper £m |
Term
debt £m |
Finance
leases £m |
Total
£m |
Short
term
bank loans, overdrafts and commercial paper £m |
Term
debt £m |
Finance
leases £m |
Total
£m |
Short term
bank loans, overdrafts and commercial paper £m |
Term
debt £m |
Finance
leases £m |
Total
£m |
|||||||||||||||||||||||||||||||||||||
US dollars |
254 | 1,788 | 12 | 2,054 | 87 | 1,800 | 17 | 1,904 | 25 | 2,059 | 16 | 2,100 | ||||||||||||||||||||||||||||||||||||
£ sterling |
69 | 1,020 | | 1,089 | 27 | 719 | | 746 | | 736 | | 736 | ||||||||||||||||||||||||||||||||||||
Euro |
224 | 457 | | 681 | 167 | 458 | | 625 | 103 | 950 | | 1,053 | ||||||||||||||||||||||||||||||||||||
Other currencies |
1 | | | 1 | 6 | | | 6 | 3 | | | 3 | ||||||||||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||||||
Total |
548 | 3,265 | 12 | 3,825 | 287 | 2,977 | 17 | 3,281 | 131 | 3,745 | 16 | 3,892 | ||||||||||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Included in the US dollar amounts for term debt above is £449 million (2013: £427 million; 2012: £347 million) of debt denominated in euros (350 million; 2013: nil; 2012: nil) and Swiss francs (CHF 275 million; 2013: CHF 625 million; 2012: CHF 500 million) that was swapped into US dollars on issuance and against which there are related derivative financial instruments, which, as at December 31, 2014, had a fair value of £40 million (2013: £81 million; 2012: £80 million).
F-48
25. | Lease arrangements |
Finance leases
At December 31, 2014 future finance lease obligations fall due as follows:
2014
£m |
2013
£m |
2012
£m |
||||||||||
Within one year |
7 | 9 | 7 | |||||||||
In the second to fifth years inclusive |
5 | 8 | 9 | |||||||||
|
|
|
|
|
|
|||||||
12 | 17 | 16 | ||||||||||
Less future finance charges |
| | | |||||||||
|
|
|
|
|
|
|||||||
Total |
12 | 17 | 16 | |||||||||
|
|
|
|
|
|
|||||||
Present value of future finance lease obligations payable: |
||||||||||||
Within one year |
7 | 9 | 7 | |||||||||
In the second to fifth years inclusive |
5 | 8 | 9 | |||||||||
|
|
|
|
|
|
|||||||
Total |
12 | 17 | 16 | |||||||||
|
|
|
|
|
|
The fair value of the lease obligations approximates to their carrying amount.
Operating leases
The Group leases various properties, principally offices and warehouses, which have varying terms and renewal rights that are typical to the territory in which they are located.
At December 31, 2014 outstanding commitments under non-cancellable operating leases fall due as follows:
2014
£m |
2013
£m |
2012
£m |
||||||||||
Within one year |
96 | 103 | 117 | |||||||||
In the second to fifth years inclusive |
279 | 275 | 309 | |||||||||
After five years |
148 | 169 | 184 | |||||||||
|
|
|
|
|
|
|||||||
Total |
523 | 547 | 610 | |||||||||
|
|
|
|
|
|
Of the above outstanding commitments, £509 million (2013: £528 million; 2012: £577 million) relate to land and buildings.
The Group has a number of properties that are sub-leased. The future lease receivables contracted with sub-tenants fall due as follows:
2014
£m |
2013
£m |
2012
£m |
||||||||||
Within one year |
15 | 16 | 16 | |||||||||
In the second to fifth years inclusive |
46 | 43 | 33 | |||||||||
After five years |
21 | 25 | 17 | |||||||||
|
|
|
|
|
|
|||||||
Total |
82 | 84 | 66 | |||||||||
|
|
|
|
|
|
F-49
26. | Provisions |
2014 | 2013 | 2012 | ||||||||||
£m | £m | £m | ||||||||||
At January 1 |
133 | 169 | 126 | |||||||||
Transfer |
| | 22 | |||||||||
Charged |
| | 62 | |||||||||
Utilised |
(16 | ) | (35 | ) | (36 | ) | ||||||
Exchange translation differences |
6 | (1 | ) | (5 | ) | |||||||
|
|
|
|
|
|
|||||||
At December 31 |
123 | 133 | 169 | |||||||||
|
|
|
|
|
|
Provisions principally relate to leasehold properties, including sub-lease shortfalls and guarantees given in respect of certain property leases for various periods up to 2024.
At December 31, 2014, provisions are included within current and non-current liabilities as follows:
2014
£m |
2013
£m |
2012
£m |
||||||||||
Current liabilities |
19 | 17 | 30 | |||||||||
Non-current liabilities |
104 | 116 | 139 | |||||||||
|
|
|
|
|
|
|||||||
Total |
123 | 133 | 169 | |||||||||
|
|
|
|
|
|
27. | Combined share capitals, share premiums and shares held in treasury |
Combined share capitals exclude the shares of Reed Elsevier NV held by a subsidiary of Reed Elsevier PLC. Disclosures in respect of share capital are given in note 12 to the Reed Elsevier PLC consolidated financial statements and note 13 to the Reed Elsevier NV consolidated financial statements. Combined share premiums exclude the share premium in respect of shares of Reed Elsevier NV held by a subsidiary of Reed Elsevier PLC.
During the year, Reed Elsevier PLC repurchased 35.2 million Reed Elsevier PLC ordinary shares and Reed Elsevier NV repurchased 20.4 million Reed Elsevier NV ordinary shares for consideration of £600 million. These shares are held in treasury. In addition, Reed Elsevier NV repurchased 107,901 R shares. During the year 65 million Reed Elsevier PLC and 40 million Reed Elsevier NV shares held in treasury were cancelled.
The Employee Benefit Trust (EBT) purchases Reed Elsevier PLC and Reed Elsevier NV shares which, at the trustees discretion, can be used in respect of the exercise of share options and to meet commitments under conditional share awards. During the year the EBT purchased 0.8 million Reed Elsevier PLC shares and 2.0 million Reed Elsevier NV shares for a total cost of £39 million (2013: nil; 2012: nil). At 31 December 2014, shares held by the EBT were £117 million (2013: £112 million; 2012: £152 million) at cost.
Details of the shares held in treasury are provided in note 12 of the Reed Elsevier PLC consolidated financial statements and note 13 of the Reed Elsevier NV consolidated financial statements.
F-50
28. | Other combined reserves |
2014 | 2013 | 2012 | ||||||||||||||||||
Hedge
reserve £m |
Other
reserves £m |
Total
£m |
Total
£m |
Total
£m |
||||||||||||||||
At January 1 |
73 | 807 | 880 | 252 | (199 | ) | ||||||||||||||
Profit attributable to parent companies shareholders |
| 955 | 955 | 1,110 | 1,044 | |||||||||||||||
Dividends paid |
| (565 | ) | (565 | ) | (549 | ) | (521 | ) | |||||||||||
Actuarial (losses)/gains on defined benefit pension schemes |
| (266 | ) | (266 | ) | 40 | (293 | ) | ||||||||||||
Transfer to net profit on disposal of available for sale investments |
| | | | 11 | |||||||||||||||
Fair value movements on cash flow hedges |
(81 | ) | | (81 | ) | 65 | 70 | |||||||||||||
Transfer to net profit from cash flow hedge reserve |
19 | | 19 | (3 | ) | 26 | ||||||||||||||
Tax recognised in other comprehensive income |
13 | 63 | 76 | (38 | ) | 72 | ||||||||||||||
Increase in share based remuneration reserve (net of tax) |
| 48 | 48 | 48 | 31 | |||||||||||||||
Cancellation of shares |
| (919 | ) | (919 | ) | | | |||||||||||||
Settlement of share awards |
| (27 | ) | (27 | ) | (40 | ) | (7 | ) | |||||||||||
Acquisition of non-controlling interests |
| (13 | ) | (13 | ) | | 6 | |||||||||||||
Exchange translation differences |
1 | (1 | ) | | (5 | ) | 12 | |||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
At December 31 |
25 | 82 | 107 | 880 | 252 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
Other reserves principally comprise retained earnings and the share based remuneration reserve.
29. | Related party transactions |
Transactions between the combined businesses have been eliminated within the combined financial statements. Transactions with joint ventures were made on normal market terms of trading and comprise sales of goods and services of nil (2013: £1 million; 2012: £1 million). As at December 31, 2014 amounts owed by joint ventures were £1 million (2013: £7 million; 2012: £1 million) and amounts due to joint ventures were £6 million (2013: £6 million; 2012: £1 million).
Key management personnel remuneration is set out below. Key Management personnel are also related parties as defined by IAS 24 Related Party Disclosures and comprise the Executive and Non-Executive Directors of Reed Elsevier PLC and Reed Elsevier NV. For reporting purposes, salary, benefits and annual incentive payments are considered short term employee benefits.
Key Management personnel remuneration
2014
£m |
2013
£m |
2012
£m |
||||||||||
Salaries and other short term employee benefits and Non-Executive fees |
5 | 4 | 5 | |||||||||
Post employment benefits* |
1 | 1 | 1 | |||||||||
Share based remuneration** |
5 | 4 | 5 | |||||||||
|
|
|
|
|
|
|||||||
Total |
11 | 9 | 11 | |||||||||
|
|
|
|
|
|
* | Post employment benefits comprises the transfer value of the increase in accrued pension during the year (net of inflation, Directors contributions and participation fee) for defined benefit schemes and payments made to defined contribution schemes or in lieu of pension. |
** | The share based remuneration charge comprises the multi-year incentive scheme charges in accordance with IFRS2 Share Based Payment. These IFRS 2 charges do not reflect the actual value received on vesting. |
Termination benefits of £238,023 were paid to directors during 2014 (2013: nil; 2012: nil) further details are shown on page 46. No loans, advances or guarantees have been provided on behalf of any Director. The aggregate gain made by Executive Directors on the exercise of options during 2014 were £1,101,114 (2013: £2,526,305). The current Executive Directors did not exercise any options during 2012.
30. | Approval of financial statements |
The combined financial statements were approved by the Boards of directors of Reed Elsevier PLC and Reed Elsevier NV on February 25, 2015.
F-51
THIS PAGE INTENTIONALLY BLANK
F-52
CONSOLIDATED FINANCIAL STATEMENTS
F-53
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and members of Reed Elsevier PLC:
We have audited the accompanying consolidated statements of financial position of Reed Elsevier PLC and its subsidiaries (the Company) as at December 31, 2014, 2013 and 2012, and the related consolidated income statements, and consolidated statements of comprehensive income, cash flows and changes in equity for each of the years then ended. These consolidated financial statements are the responsibility of the Companys management. Our responsibility is to express an opinion on the 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, such consolidated financial statements present fairly, in all material respects, the financial position of Reed Elsevier PLC and its subsidiaries as at December 31, 2014, 2013 and 2012, and the results of their operations and their cash flows for each of the years then ended, in conformity with International Financial Reporting Standards as issued by the International Accounting Standards Board.
We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the Companys internal control over financial reporting as at December 31, 2014, based on the criteria established in Internal Control Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission and our report dated February 25, 2015 expressed an unqualified opinion on the Companys internal control over financial reporting.
/s/ DELOITTE LLP
London, United Kingdom
February 25, 2015
F-54
REED ELSEVIER PLC
FOR THE YEAR ENDED DECEMBER 31, 2014
Note |
2014
£m |
2013
£m |
2012
£m |
|||||||||||||
Administrative expenses |
3 | (2 | ) | (2 | ) | (2 | ) | |||||||||
Effect of tax credit equalisation on distributed earnings |
4 | (15 | ) | (15 | ) | (14 | ) | |||||||||
Share of results of joint ventures |
11 | 495 | 583 | 547 | ||||||||||||
|
|
|
|
|
|
|||||||||||
Operating profit |
478 | 566 | 531 | |||||||||||||
Finance income |
6 | 15 | 10 | 1 | ||||||||||||
|
|
|
|
|
|
|||||||||||
Profit before tax |
493 | 576 | 532 | |||||||||||||
Tax (expense)/credit |
7 | (3 | ) | (4 | ) | 6 | ||||||||||
|
|
|
|
|
|
|||||||||||
Profit attributable to ordinary shareholders |
490 | 572 | 538 | |||||||||||||
|
|
|
|
|
|
REED ELSEVIER PLC
CONSOLIDATED STATEMENT OF COMPREHENSIVE INCOME
FOR THE YEAR ENDED DECEMBER 31, 2014
2014
£m |
2013
£m |
2012
£m |
||||||||||
Profit attributable to ordinary shareholders |
490 | 572 | 538 | |||||||||
Share of joint ventures other comprehensive loss for the year |
(61 | ) | (13 | ) | (132 | ) | ||||||
|
|
|
|
|
|
|||||||
Total comprehensive income for the year |
429 | 559 | 406 | |||||||||
|
|
|
|
|
|
Note |
2014
pence |
2013
pence |
2012
pence |
|||||||||||||
Earnings per ordinary share (EPS) |
||||||||||||||||
Basic earnings per share |
9 | 43.0p | 48.8 p | 44.8 p | ||||||||||||
Diluted earnings per share |
9 | 42.5p | 48.2 p | 44.3 p |
F-55
REED ELSEVIER PLC
CONSOLIDATED STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 2014
Note |
2014
£m |
2013
£m |
2012
£m |
|||||||||||||
Cash flows from operating activities |
||||||||||||||||
Cash used by operations |
10 | (2 | ) | (2 | ) | (2 | ) | |||||||||
Interest received |
15 | 10 | 1 | |||||||||||||
Tax paid |
(4 | ) | (3 | ) | (2 | ) | ||||||||||
|
|
|
|
|
|
|||||||||||
Net cash from/(used in) operating activities |
9 | 5 | (3 | ) | ||||||||||||
|
|
|
|
|
|
|||||||||||
Cash flows from investing activities |
||||||||||||||||
Dividends received from joint ventures |
11 | 618 | 102 | 694 | ||||||||||||
|
|
|
|
|
|
|||||||||||
Net cash received from investing activities |
618 | 102 | 694 | |||||||||||||
|
|
|
|
|
|
|||||||||||
Cash flows from financing activities |
||||||||||||||||
Equity dividends paid |
8 | (285 | ) | (278 | ) | (264 | ) | |||||||||
Repurchase of ordinary shares |
(333 | ) | (326 | ) | (143 | ) | ||||||||||
Proceeds on issue of ordinary shares |
18 | 50 | 33 | |||||||||||||
(Increase)/decrease in net funding balances due from joint ventures |
10 | (27 | ) | 447 | (317 | ) | ||||||||||
|
|
|
|
|
|
|||||||||||
Net cash used in financing activities |
(627 | ) | (107 | ) | (691 | ) | ||||||||||
|
|
|
|
|
|
|||||||||||
Movement in cash and cash equivalents |
| | | |||||||||||||
|
|
|
|
|
|
F-56
REED ELSEVIER PLC
CONSOLIDATED STATEMENT OF FINANCIAL POSITION
AS AT DECEMBER 31, 2014
Note |
2014
£m |
2013
£m |
2012
£m |
|||||||||||||
Non-current assets |
||||||||||||||||
Investments in joint ventures |
11 | 1,117 | 1,266 | 1,207 | ||||||||||||
|
|
|
|
|
|
|||||||||||
Total assets |
1,117 | 1,266 | 1,207 | |||||||||||||
|
|
|
|
|
|
|||||||||||
Current liabilities |
||||||||||||||||
Taxation |
1 | 2 | 1 | |||||||||||||
|
|
|
|
|
|
|||||||||||
Total liabilities |
1 | 2 | 1 | |||||||||||||
|
|
|
|
|
|
|||||||||||
Net assets |
1,116 | 1,264 | 1,206 | |||||||||||||
|
|
|
|
|
|
|||||||||||
Capital and reserves |
||||||||||||||||
Called up share capital |
12 | 174 | 182 | 181 | ||||||||||||
Share premium account |
1,274 | 1,257 | 1,208 | |||||||||||||
Shares held in treasury (including in joint ventures) |
(593 | ) | (752 | ) | (447 | ) | ||||||||||
Capital redemption reserve |
13 | 4 | 4 | |||||||||||||
Translation reserve |
112 | 40 | 87 | |||||||||||||
Other reserves |
13 | 136 | 533 | 173 | ||||||||||||
|
|
|
|
|
|
|||||||||||
Total equity |
1,116 | 1,264 | 1,206 | |||||||||||||
|
|
|
|
|
|
F-57
REED ELSEVIER PLC
CONSOLIDATED STATEMENT OF CHANGES IN EQUITY
FOR THE YEAR ENDED DECEMBER 31, 2014
Note |
Share
capital £m |
Share
premium £m |
Shares
held in treasury £m |
Capital
redemption reserve £m |
Translation
reserve £m |
Other
reserves £m |
Total
equity £m |
|||||||||||||||||||||||||
Balance 2014 |
||||||||||||||||||||||||||||||||
Balance at January 1, 2014 |
182 | 1,257 | (752 | ) | 4 | 40 | 533 | 1,264 | ||||||||||||||||||||||||
Total comprehensive income for the year |
| | | | 72 | 357 | 429 | |||||||||||||||||||||||||
Equity dividends paid |
8 | | | | | | (285) | (285 | ) | |||||||||||||||||||||||
Issue of ordinary shares, net of expenses |
1 | 17 | | | | | 18 | |||||||||||||||||||||||||
Repurchase of ordinary shares |
| | (350 | ) | | | | (350 | ) | |||||||||||||||||||||||
Cancellation of shares |
(9 | ) | | 495 | 9 | | (495 | ) | | |||||||||||||||||||||||
Share of joint ventures increase in share based remuneration reserve (net of tax) |
| | | | | 25 | 25 | |||||||||||||||||||||||||
Share of joint ventures settlement of share awards by the employee benefit trust |
| | 14 | | | (14 | ) | | ||||||||||||||||||||||||
Share of joint ventures acquisition of non controlling interest |
| | | | | (7 | ) | (7 | ) | |||||||||||||||||||||||
Equalisation adjustments |
| | | | | 22 | 22 | |||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
Balance at December 31, 2014 |
174 | 1,274 | (593 | ) | 13 | 112 | 136 | 1,116 | ||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
Balance at January 1, 2013 |
181 | 1,208 | (447 | ) | 4 | 87 | 173 | 1,206 | ||||||||||||||||||||||||
Total comprehensive income for the year |
| | | | (47 | ) | 606 | 559 | ||||||||||||||||||||||||
Equity dividends paid |
8 | | | | | | (278) | (278 | ) | |||||||||||||||||||||||
Issue of ordinary shares, net of expenses |
1 | 49 | | | | | 50 | |||||||||||||||||||||||||
Repurchase of ordinary shares |
| | (326 | ) | | | | (326 | ) | |||||||||||||||||||||||
Share of joint ventures increase in share based remuneration reserve (net of tax) |
| | | | | 25 | 25 | |||||||||||||||||||||||||
Share of joint ventures settlement of share awards by the employee benefit trust |
| | 21 | | | (21 | ) | | ||||||||||||||||||||||||
Equalisation adjustments |
| | | | | 28 | 28 | |||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
Balance at December 31, 2013 |
182 | 1,257 | (752 | ) | 4 | 40 | 533 | 1,264 | ||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
Balance at January 1, 2012 |
180 | 1,176 | (308 | ) | 4 | 159 | (62 | ) | 1,149 | |||||||||||||||||||||||
Total comprehensive income for the year |
| | | | (72 | ) | 478 | 406 | ||||||||||||||||||||||||
Equity dividends paid |
8 | | | | | | (264 | ) | (264 | ) | ||||||||||||||||||||||
Issue of ordinary shares, net of expenses |
1 | 32 | | | | | 33 | |||||||||||||||||||||||||
Repurchase of ordinary shares |
| | (143 | ) | | | | (143 | ) | |||||||||||||||||||||||
Share of joint ventures increase in share based remuneration reserve |
| | | | | 16 | 16 | |||||||||||||||||||||||||
Share of joint ventures settlement of share awards by the employee benefit trust |
| | 4 | | | (4 | ) | | ||||||||||||||||||||||||
Share of joint ventures disposal of non-controlling interests |
| | | | | 3 | 3 | |||||||||||||||||||||||||
Equalisation adjustments |
| | | | | 6 | 6 | |||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
Balance at December 31, 2012 |
181 | 1,208 | (447 | ) | 4 | 87 | 173 | 1,206 | ||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
F-58
REED ELSEVIER PLC
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
1. | Basis of financial statements |
As a consequence of the merger of their respective businesses, Reed Elsevier PLC and Reed Elsevier NV contributed their businesses to two jointly owned companies, Reed Elsevier Group plc and Elsevier Reed Finance BV. During 2014, Reed Elsevier Group plc, a company incorporated in England, owned the publishing and information businesses, and Elsevier Reed Finance BV, a company incorporated in the Netherlands, owned the financing and treasury companies. Reed Elsevier PLC and Reed Elsevier NV each held a 50% interest in Reed Elsevier Group plc. Until the end of 2014, Reed Elsevier PLC held a 39% interest in Elsevier Reed Finance BV and Reed Elsevier NV held a 61% interest. Reed Elsevier PLC additionally holds an indirect equity interest in Reed Elsevier NV, reflecting the arrangements entered into between Reed Elsevier PLC and Reed Elsevier NV at the time of the merger, which determined the equalisation ratio whereby one Reed Elsevier NV ordinary share is, in broad terms, intended to confer equivalent economic interests to 1.538 Reed Elsevier PLC ordinary shares.
The equalisation agreement between Reed Elsevier PLC and Reed Elsevier NV has the effect that their shareholders can be regarded as having the interests of a single economic group. For 2014 the Group combined financial statements (the combined financial Statements) represent the combined interests of both sets of shareholders and encompass the businesses of Reed Elsevier Group plc and Elsevier Reed Finance BV and their subsidiaries, associates and joint ventures, together with the two parent companies, Reed Elsevier PLC and Reed Elsevier NV (the combined businesses).
The combined financial statements on pages F-3 to F-51 form an integral part of the notes to Reed Elsevier PLCs consolidated financial statements. The combined financial statements (the combined financial statements) represent the combined interests of both sets of shareholders and encompass the businesses of Reed Elsevier Group plc and Elsevier Reed Finance BV and their subsidiaries, associates and joint ventures, together with the two parent companies, Reed Elsevier PLC and Reed Elsevier NV (the combined businesses).
2. | Accounting policies |
Basis of preparation
These consolidated financial statements, which have been prepared under the historical cost convention, report the consolidated statements of income, comprehensive income, cash flow, financial position and changes in equity of Reed Elsevier PLC (incorporated and domiciled in the United Kingdom), and have been prepared in accordance with accounting policies that are in conformity with International Financial Reporting Standards (IFRS) as issued by the International Accounting Standards Board (IASB) and as adopted by the European Union.
Unless otherwise indicated, all amounts shown in the financial statements are in pounds sterling (£).
The combined financial statements presented in pounds sterling on pages F-3 to F-51 form an integral part of the notes to Reed Elsevier PLCs statutory financial statements. The accounting policies adopted in the preparation of the combined financial statements are set out on pages F-53 to F-65.
Determination of profit
The Reed Elsevier PLC share of the combined results has been calculated on the basis of the 52.9% economic interest of the Reed Elsevier PLC shareholders in the combined businesses, after taking account of results arising in Reed Elsevier PLC and its subsidiaries. Dividends paid to Reed Elsevier PLC and Reed Elsevier NV shareholders are, other than in special circumstances, equalised at the gross level inclusive of the UK tax credit available to certain Reed Elsevier PLC shareholders. In Reed Elsevier PLCs consolidated financial statements, an adjustment is required to equalise the benefit of the tax credit between the two sets of shareholders in accordance with the equalisation agreement. This equalisation adjustment arises on dividends paid by Reed Elsevier PLC to its shareholders and reduces the consolidated attributable earnings by 47.1% of the total amount of the tax credit.
Investments
Reed Elsevier PLCs economic interest in the net assets of the combined businesses has been shown on the statement of financial position as investments in joint ventures, net of the assets and liabilities reported as part of Reed Elsevier PLC and its subsidiaries. Investments in joint ventures are accounted for using the equity method.
F-59
2. | Accounting policies (continued) |
Foreign exchange translation
Transactions in foreign currencies are recorded at the rate of exchange prevailing on the date of the transaction. At each statement of financial position date, monetary assets and liabilities that are denominated in foreign currencies are retranslated at the rate prevailing on the statement of financial position date. Exchange differences arising are recorded in the income statement. The exchange gains or losses relating to the retranslation of Reed Elsevier PLCs economic interest in the net assets of the combined businesses are classified as equity and transferred to the translation reserve.
When foreign operations are disposed of, the related cumulative translation differences are recognised within the income statement in the period.
Taxation
Tax expense comprises current and deferred tax. Current and deferred tax are charged or credited in the income statement except to the extent that the tax arises from a transaction or event which is recognised, in the same or a different period, outside profit or loss (either in other comprehensive income, directly in equity, or through a business combination) in which case the tax appears in the same statement as the transaction that gave rise to it.
Current tax is the amount of corporate income taxes payable or recoverable based on the profit for the period as adjusted for items that are not taxable or not deductible, and is calculated using tax rates and laws that were enacted or substantively enacted at the date of the statement of financial position. Management periodically evaluates positions taken in tax returns with respect to situations in which applicable tax regulation is subject to interpretation. Provisions are established where appropriate on the basis of amounts expected to be paid to the tax authorities.
Deferred tax is recognised on temporary differences arising between the tax bases of assets and liabilities and their carrying amounts in the statement of financial position. Deferred tax is calculated using tax rates and laws that have been enacted or substantively enacted at the end of the reporting period, and which are expected to apply when the related deferred tax asset is realised or the deferred tax liability is settled.
Deferred tax liabilities are generally recognised for all taxable temporary differences but not recognised for taxable temporary differences arising on investments in subsidiaries, associates and joint ventures where the reversal of the temporary difference can be controlled and it is probable that the difference will not reverse in the foreseeable future. Deferred tax liabilities are not recognised on temporary differences that arise from goodwill which is not deductible for tax purposes.
Deferred tax assets are recognised to the extent it is probable that taxable profits will be available against which the deductible temporary differences can be utilised, and reviewed at the end of each reporting period and reduced to the extent that it is no longer probable that sufficient taxable profits will be available to allow all or part of the asset to be recovered.
Deferred tax assets and liabilities are not recognised in respect of temporary differences that arise on initial recognition of assets and liabilities acquired other than in a business combination. Deferred tax is not discounted.
Critical judgements and key sources of estimation uncertainty
Critical judgments in the preparation of the combined financial statements are set out on pages F-14 to F-15.
Standards and amendments effective for the year
The interpretations and amendments to IFRS effective for 2014 have not had a significant impact on Reed Elsevier PLCs policies or reporting.
Standards, amendments and interpretations not yet effective
Recently issued standards, amendments and interpretations and their impact on future accounting policies and reporting have been considered on page F-16 of the combined financial statements.
3. | Administrative expenses |
Administrative expenses include £1,371,000 (2013: £972,000; 2012: £877,000) paid in the year to Reed Elsevier Group plc under a contract for the services of Directors and administrative support. Reed Elsevier PLC has no employees (2013: nil; 2012: nil).
4. | Effect of tax credit equalisation on distributed earnings |
The tax credit equalisation adjustment arises on ordinary dividends paid by Reed Elsevier PLC to its shareholders and reduces the consolidated profit attributable to ordinary shareholders by 47.1% of the total amount of the tax credit, as set out in the accounting policies in note 2.
F-60
5. | Related party transactions |
All transactions with joint ventures, which are related parties of Reed Elsevier PLC, are reflected in these financial statements. Key management personnel are also related parties and comprise the Executive Directors of Reed Elsevier PLC. Transactions with key management personnel are set out in note 3 and in note 29 to the combined financial statements.
6. | Finance income |
2014
£m |
2013
£m |
2012
£m |
||||||||||
Finance income from joint ventures |
15 | 10 | 1 | |||||||||
|
|
|
|
|
|
7. | Taxation |
8. | Equity dividends |
Ordinary dividends declared and paid in
the year |
2014
pence |
2013
pence |
2012
pence |
2014
£m |
2013
£m |
2012
£m |
||||||||||||||||||
Ordinary shares |
||||||||||||||||||||||||
Final for prior financial year |
17.95p | 17.00p | 15.90p | 205 | 200 | 191 | ||||||||||||||||||
Interim for financial year |
7.00p | 6.65p | 6.00p | 80 | 78 | 73 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total |
24.95p | 23.65p | 21.90p | 285 | 278 | 264 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
The directors of Reed Elsevier PLC have proposed a final dividend of 19.0p (2013: 17.95p; 2012: 17.0p). The cost of funding the proposed final dividend is expected to be £214 million. No liability has been recognised at the statement of financial position date.
Ordinary dividends paid and proposed
relating to the financial year |
2014
pence |
2013
pence |
2012
pence |
|||||||||||||||
Ordinary shares |
||||||||||||||||||
Interim (paid) |
7.00p | 6.65p | 6.00p | |||||||||||||||
Final (proposed) |
19.00p | 17.95p | 17.00p | |||||||||||||||
|
|
|
|
|
|
|||||||||||||
Total |
26.00p | 24.60p | 23.00p | |||||||||||||||
|
|
|
|
|
|
F-61
9. | Earnings per ordinary share (EPS) |
2014 | ||||||||||||
Weighted
average number of shares (millions) |
Earnings
£m |
EPS
pence |
||||||||||
Basic EPS |
1,140.2 | 490 | 43.0p | |||||||||
|
|
|
|
|
|
|||||||
Diluted EPS |
1,152.7 | 490 | 42.5p | |||||||||
|
|
|
|
|
|
|||||||
2013 | ||||||||||||
Weighted
average number of shares (millions) |
Earnings
£m |
EPS
pence |
||||||||||
Basic EPS |
1,172.2 | 572 | 48.8p | |||||||||
|
|
|
|
|
|
|||||||
Diluted EPS |
1,187.2 | 572 | 48.2p | |||||||||
|
|
|
|
|
|
|||||||
2012 | ||||||||||||
Weighted
average number of shares (millions) |
Earnings
£m |
EPS
pence |
||||||||||
Basic EPS |
1,200.6 | 538 | 44.8p | |||||||||
|
|
|
|
|
|
|||||||
Diluted EPS |
1,215.1 | 538 | 44.3p | |||||||||
|
|
|
|
|
|
The diluted EPS figures are calculated after taking account of the effect of potential additional ordinary shares arising from share options and conditional shares.
The weighted average number of shares is after deducting shares held in treasury. Movements in the number of shares in issue net of treasury shares for the year ended December 31, 2014 are shown in note 12.
The weighted average number of shares used in the diluted EPS calculations above is after deducting shares held in treasury and is derived as follows:
2014
(millions) |
2013
(millions) |
2012
(millions) |
||||||||||
Weighted average number of shares Basic |
1,140.2 | 1,172.2 | 1,200.6 | |||||||||
Weighted average number of dilutive shares under option |
12.5 | 15.0 | 14.5 | |||||||||
|
|
|
|
|
|
|||||||
Weighted average number of shares Diluted |
1,152.7 | 1,187.2 | 1,215.1 | |||||||||
|
|
|
|
|
|
10. | Statement of cash flows |
Reconciliation of profit before tax to cash used by operations
2014
£m |
2013
£m |
2012
£m |
||||||||||
Profit before tax |
493 | 576 | 532 | |||||||||
Effect of tax credit equalisation on distributed earnings |
15 | 15 | 14 | |||||||||
Net finance income |
(15 | ) | (10 | ) | (1 | ) | ||||||
Share of results of joint ventures |
(495 | ) | (583 | ) | (547 | ) | ||||||
|
|
|
|
|
|
|||||||
Cash used by operations |
(2 | ) | (2 | ) | (2 | ) | ||||||
|
|
|
|
|
|
F-62
Reconciliation of net funding balances due from joint ventures
2014
£m |
2013
£m |
2012
£m |
||||||||||
At January 1 |
502 | 949 | 632 | |||||||||
Cash flow |
27 | (447 | ) | 317 | ||||||||
|
|
|
|
|
|
|||||||
At December 31 |
529 | 502 | 949 | |||||||||
|
|
|
|
|
|
11. | Investments in joint ventures |
2014
£m |
2013
£m |
2012
£m |
||||||||||
Share of results of joint ventures |
495 | 583 | 547 | |||||||||
Share of joint ventures: |
||||||||||||
Other comprehensive loss |
(61 | ) | (13 | ) | (132 | ) | ||||||
(Acquisition)/disposal of non-controlling interests |
(7 | ) | | 3 | ||||||||
Increase in share based remuneration reserve (net of tax) |
25 | 25 | 16 | |||||||||
Share of joint ventures purchase of treasury shares by employee benefit trust |
(17 | ) | | | ||||||||
Equalisation adjustments |
7 | 13 | (8 | ) | ||||||||
Dividends received from joint ventures |
(618 | ) | (102 | ) | (694 | ) | ||||||
Increase/(decrease) in net funding balances due from joint ventures |
27 | (447 | ) | 317 | ||||||||
|
|
|
|
|
|
|||||||
Net movement in the year |
(149 | ) | 59 | 49 | ||||||||
At January 1 |
1,266 | 1,207 | 1,158 | |||||||||
|
|
|
|
|
|
|||||||
At December 31 |
1,117 | 1,266 | 1,207 | |||||||||
|
|
|
|
|
|
During the year Reed Elsevier PLC received dividends of £118 million (2013: £102 million; 2012: £394 million) from Elsevier Reed Finance BV and £500 million from RELX Group plc (2013: nil; 2012: £300 million).
Summarised information showing total amounts in respect of joint ventures and Reed Elsevier PLC shareholders share is set out below.
Total joint ventures | Reed Elsevier PLC shareholders share | |||||||||||||||||||||||
2014
£m |
2013
£m |
2012
£m |
2014
£m |
2013
£m |
2012
£m |
|||||||||||||||||||
Revenue |
5,773 | 6,035 | 6,116 | 3,054 | 3,193 | 3,235 | ||||||||||||||||||
Net profit for the year |
960 | 1,115 | 1,049 | 495 | 583 | 547 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
Reed Elsevier PLCs share of joint ventures net profit attributable to parent company shareholders for the year excludes the net profit that arose directly in Reed Elsevier PLC of £10 million (2013: £4 million; 2012: £5 million loss).
Reed Elsevier PLCs other comprehensive income includes a loss of £61 million (2013: £13 million; 2012: £132 million) relating to joint ventures.
Total joint ventures |
Reed Elsevier PLC
shareholders
share |
|||||||||||||||||||||||
2014
£m |
2013
£m |
2012
£m |
2014
£m |
2013
£m |
2012
£m |
|||||||||||||||||||
Total assets |
11,087 | 10,495 | 11,014 | 5,876 | 5,552 | 5,826 | ||||||||||||||||||
Total liabilities |
(8,950 | ) | (8,072 | ) | (8,700 | ) | (5,288 | ) | (4,788 | ) | (5,568 | ) | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Net assets |
2,137 | 2,423 | 2,314 | 588 | 764 | 258 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Attributable to: |
||||||||||||||||||||||||
Joint ventures |
2,106 | 2,390 | 2,280 | 588 | 764 | 258 | ||||||||||||||||||
Non-controlling interests |
31 | 33 | 34 | | | | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
2,137 | 2,423 | 2,314 | 588 | 764 | 258 | |||||||||||||||||||
|
|
|
|
|
|
|||||||||||||||||||
Funding balances due from joint ventures |
529 | 502 | 949 | |||||||||||||||||||||
|
|
|
|
|
|
|||||||||||||||||||
Total |
1,117 | 1,266 | 1,207 | |||||||||||||||||||||
|
|
|
|
|
|
F-63
10. | Statement of cash flows (continued) |
11. | Investments in joint ventures (continued) |
The above amounts for Reed Elsevier PLCs shareholders share of total assets and total liabilities exclude assets and liabilities held directly by Reed Elsevier PLC, but include the counterparty balances of amounts owed to and by other Group businesses. Included within Reed Elsevier PLCs share of assets and liabilities are cash and cash equivalents of £146 million (2013: £70 million; 2012: £339 million) and borrowings of £2,027 million (2013: £1,736 million; 2012: £2,059 million) respectively.
12. | Share capital |
Called up share capital issued and fully paid
2014 | 2013 | 2012 | ||||||||||||||||||||||
No. of shares | £m | No. of shares | £m | No. of shares | £m | |||||||||||||||||||
At January 1 |
1,267,036,696 | 182 | 1,257,597,977 | 181 | 1,250,913,565 | 180 | ||||||||||||||||||
Issue of ordinary shares |
3,360,624 | 1 | 9,438,719 | 1 | 6,684,412 | 1 | ||||||||||||||||||
Shares cancelled |
(65,000,000 | ) | (9 | ) | | | | | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
At December 31 |
1,205,397,320 | 174 | 1,267,036,696 | 182 | 1,257,597,977 | 181 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
The issue of ordinary shares relates to the exercise of share options. Details of share option and conditional share schemes are set out in note 7 to the combined financial statements.
Year Ended December 31, | ||||||||||||||||||||
Shares in
issue (millions) |
Treasury
shares (millions) |
2014
Shares in issue net of treasury shares (millions) |
2013
Shares in issue net of treasury shares (millions) |
2012
Shares in issue net of treasury shares (millions) |
||||||||||||||||
Number of ordinary shares |
||||||||||||||||||||
At January 1 |
1,267.0 | (109.6 | ) | 1,157.4 | 1,186.6 | 1,202.6 | ||||||||||||||
Issue of ordinary shares |
3.4 | | 3.4 | 9.4 | 6.7 | |||||||||||||||
Repurchase of ordinary shares |
| (35.2 | ) | (35.2 | ) | (41.9 | ) | (23.3 | ) | |||||||||||
Net release of shares by the employee benefit trust |
| 2.1 | 2.1 | 3.3 | 0.6 | |||||||||||||||
Shares cancelled |
(65.0 | ) | 65.0 | | | | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
At December 31 |
1,205.4 | (77.7 | ) | 1,127.7 | 1,157.4 | 1,186.6 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Weighted average number of equivalent ordinary shares during the year |
1,140.2 | 1,172.2 | 1,200.6 | |||||||||||||||||
|
|
|
|
|
|
All of the ordinary shares rank equally with respect to voting rights and rights to receive dividends, except for shares held in treasury by the parent company, which do not attract voting or dividend rights. The Employee Benefit Trust (EBT) has waived the right to receive dividends on Reed Elsevier PLC shares. There are no restrictions on the rights to transfer shares.
At December 31, 2014, shares held in treasury related to 8,032,643 (2013: 10,120,537; 2012: 13,451,468) Reed Elsevier PLC ordinary shares held by the EBT; and 69,698,335 (2013: 99,446,834; 2012: 57,484,914) Reed Elsevier PLC ordinary shares held by the parent company. The EBT purchases Reed Elsevier PLC shares which, at the Trustees discretion, can be used in respect of the exercise of share options and to meet commitments under conditional shares awards. At December 31, 2014, Reed Elsevier PLC shares held by the EBT were £54 million (2013: £64 million; 2012: £84 million) at cost. During December 2014, 65,000,000 Reed Elsevier PLC ordinary shares held in treasury were cancelled.
F-64
13. | Other reserves |
2014
£m |
2013
£m |
2012
£m |
||||||||||
At January 1 |
533 | 173 | (62 | ) | ||||||||
Profit attributable to ordinary shareholders |
490 | 572 | 538 | |||||||||
Cancellation of shares |
(495 | ) | | | ||||||||
Share of joint ventures: |
||||||||||||
Actuarial (losses)/gains on defined benefit pension schemes |
(140 | ) | 21 | (155 | ) | |||||||
Transfer to net profit on disposal of available for sale investments |
| | 6 | |||||||||
Fair value movements on cash flow hedges |
(43 | ) | 34 | 37 | ||||||||
Transfer to net profit from cash flow hedge reserve |
10 | (2 | ) | 14 | ||||||||
Tax recognised in other comprehensive income |
40 | (19 | ) | 38 | ||||||||
Increase in share based remuneration reserve (net of tax) |
25 | 25 | 16 | |||||||||
Settlement of share awards |
(14 | ) | (21 | ) | (4 | ) | ||||||
(Acquisition)/disposal of non-controlling interest |
(7 | ) | | 3 | ||||||||
Equalisation adjustments |
22 | 28 | 6 | |||||||||
Equity dividends paid |
(285 | ) | (278 | ) | (264 | ) | ||||||
|
|
|
|
|
|
|||||||
At December 31 |
136 | 533 | 173 | |||||||||
|
|
|
|
|
|
14. | Contingent liabilities |
There are contingent liabilities in respect of borrowings of joint ventures guaranteed by Reed Elsevier PLC as follows:
2014
£m |
2013
£m |
2012
£m |
||||||||||
Guaranteed jointly and severally with Reed Elsevier NV |
3,607 | 3,063 | 3,595 | |||||||||
|
|
|
|
|
|
Financial instruments disclosures in respect of the borrowings covered by the above guarantees are given in note 18 to the combined financial statements.
15. | Events after the balance sheet data |
Effective February 25, 2015, Reed Elsevier PLC transferred its direct ownership interest in Elsevier Reed Finance BV to its jointly-owned company Reed Elsevier Group plc, for consideration of 31,613 ordinary voting shares in Reed Elsevier Group plc. Simultaneously, Reed Elsevier NV transferred its direct ownership interest in Elsevier Reed Finance BV to Reed Elsevier Group plc, for consideration of 31,613 ordinary voting shares in Reed Elsevier Group plc. This newly-combined single group entity was named RELX Group plc. The R shares and E shares of RELX Group plc held by Reed Elsevier PLC and Reed Elsevier NV respectively were converted into non-voting shares.
Reed Elsevier PLC has retained its 52.9% economic interest in the combined businesses, and no gain or loss was recorded on the transaction. As Reed Elsevier PLC and Reed Elsevier NV each hold 50% of the voting shares in issue, joint control of RELX Group plc is retained and their respective interests will continue to be accounted for under the equity method, as described in the accounting policies on page F-59.
Subsequently, Reed Elsevier PLC transferred non-interest bearing, payable-on-demand receivables of £475 million to RELX Group plc for consideration of 2 ordinary non-voting R shares. As these R shares do not have voting rights, this transaction did not impact the joint-control of RELX Group plc.
16. | Approval of financial statements |
The consolidated financial statements were approved by the Board of directors on February 25, 2015.
F-65
THIS PAGE INTENTIONALLY BLANK
F-66
CONSOLIDATED FINANCIAL STATEMENTS
F-67
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and shareholders of Reed Elsevier NV:
We have audited the accompanying consolidated statements of financial position of Reed Elsevier NV and its subsidiaries (the Company) as at December 31, 2014, 2013 and 2012, and the related consolidated income statements, and consolidated statements of comprehensive income, cash flows and changes in equity for each of the years then ended. These consolidated financial statements are the responsibility of the Companys management. Our responsibility is to express an opinion on the 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, such consolidated financial statements present fairly, in all material respects, the financial position of Reed Elsevier NV and its subsidiaries as at December 31, 2014, 2013 and 2012, and the results of their operations and their cash flows for each of the years then ended, in conformity with International Financial Reporting Standards as issued by the International Accounting Standards Board.
We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the Companys internal control over financial reporting as at December 31, 2014, based on the criteria established in Internal Control Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission and our report dated February 25, 2015 expressed an unqualified opinion on the Companys internal control over financial reporting.
/s/ DELOITTE LLP
London, United Kingdom
February 25, 2015
F-68
REED ELSEVIER NV
FOR THE YEAR ENDED DECEMBER 31, 2014
Note |
2014
m |
2013
m |
2012
m |
|||||||||||||
Administrative expenses |
4 | (3 | ) | (2 | ) | (2 | ) | |||||||||
Share of results of joint ventures |
11 | 575 | 642 | 638 | ||||||||||||
|
|
|
|
|
|
|||||||||||
Operating profit |
572 | 640 | 636 | |||||||||||||
Finance income |
6 | 25 | 19 | 8 | ||||||||||||
|
|
|
|
|
|
|||||||||||
Profit before tax |
597 | 659 | 644 | |||||||||||||
Tax expense |
7 | (5 | ) | (4 | ) | (2 | ) | |||||||||
|
|
|
|
|
|
|||||||||||
Profit attributable to shareholders |
592 | 655 | 642 | |||||||||||||
|
|
|
|
|
|
REED ELSEVIER NV
CONSOLIDATED STATEMENT OF COMPREHENSIVE INCOME
FOR THE YEAR ENDED DECEMBER 31, 2014
2014
m |
2013
m |
2012
m |
||||||||||
Profit attributable to shareholders |
592 | 655 | 642 | |||||||||
Share of joint ventures other comprehensive income/(loss) for the year |
29 | (48 | ) | (121 | ) | |||||||
|
|
|
|
|
|
|||||||
Total comprehensive income for the year |
621 | 607 | 521 | |||||||||
|
|
|
|
|
|
Note |
2014
m |
2013
m |
2012
m |
|||||||||||||
Earnings per share (EPS) |
||||||||||||||||
Basic earnings per share |
9 | | 0.85 | | 0.91 | | 0.87 | |||||||||
Diluted earnings per share |
9 | | 0.84 | | 0.90 | | 0.87 |
F-69
REED ELSEVIER NV
CONSOLIDATED STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 2014
Note |
2014
m |
2013
m |
2012
m |
|||||||||||||
Cash flows from operating activities |
||||||||||||||||
Cash used by operations |
10 | (3 | ) | (3 | ) | (5 | ) | |||||||||
Interest received |
26 | 19 | 6 | |||||||||||||
Tax paid |
(3 | ) | (1 | ) | (2 | ) | ||||||||||
|
|
|
|
|
|
|||||||||||
Net cash from/(used in) operating activities |
20 | 15 | (1 | ) | ||||||||||||
|
|
|
|
|
|
|||||||||||
Cash flows from investing activities |
||||||||||||||||
Dividends received from joint ventures |
11 | 520 | 186 | 754 | ||||||||||||
|
|
|
|
|
|
|||||||||||
Net cash from investing activities |
520 | 186 | 754 | |||||||||||||
|
|
|
|
|
|
|||||||||||
Cash flows from financing activities |
||||||||||||||||
Equity dividends paid |
8 | (349 | ) | (321 | ) | (319 | ) | |||||||||
Repurchase of shares |
(361 | ) | (337 | ) | (141 | ) | ||||||||||
Proceeds on issue of ordinary shares |
33 | 88 | 18 | |||||||||||||
Decrease/(increase) in net funding balances due from joint ventures |
10 | 141 | 370 | (313 | ) | |||||||||||
|
|
|
|
|
|
|||||||||||
Net cash used in financing activities |
(536 | ) | (200 | ) | (755 | ) | ||||||||||
|
|
|
|
|
|
|||||||||||
Net increase/(decrease) in cash and cash equivalents |
4 | 1 | (2 | ) | ||||||||||||
|
|
|
|
|
|
F-70
REED ELSEVIER NV
CONSOLIDATED STATEMENT OF FINANCIAL POSITION
AS AT DECEMBER 31, 2014
Note |
2014
m |
2013
m |
2012
m |
|||||||||||||
Non-current assets |
||||||||||||||||
Investments in joint ventures |
11 | 1,412 | 1,488 | 1,455 | ||||||||||||
Current assets |
||||||||||||||||
Amounts due from joint ventures |
3 | 4 | 4 | |||||||||||||
Cash and cash equivalents |
6 | 2 | 1 | |||||||||||||
|
|
|
|
|
|
|||||||||||
9 | 6 | 5 | ||||||||||||||
|
|
|
|
|
|
|||||||||||
Total assets |
1,421 | 1,494 | 1,460 | |||||||||||||
|
|
|
|
|
|
|||||||||||
Current liabilities |
||||||||||||||||
Payables |
12 | 6 | 6 | 7 | ||||||||||||
Taxation |
56 | 54 | 51 | |||||||||||||
|
|
|
|
|
|
|||||||||||
Total liabilities |
62 | 60 | 58 | |||||||||||||
|
|
|
|
|
|
|||||||||||
Net assets |
1,359 | 1,434 | 1,402 | |||||||||||||
|
|
|
|
|
|
|||||||||||
Capital and reserves |
||||||||||||||||
Share capital issued |
13 | 52 | 55 | 54 | ||||||||||||
Paid-in surplus |
2,309 | 2,276 | 2,189 | |||||||||||||
Shares held in treasury (including in joint ventures) |
(711 | ) | (881 | ) | (571 | ) | ||||||||||
Translation reserve |
60 | (131 | ) | (42 | ) | |||||||||||
Other reserves |
14 | (351 | ) | 115 | (228 | ) | ||||||||||
|
|
|
|
|
|
|||||||||||
Total equity |
1,359 | 1,434 | 1,402 | |||||||||||||
|
|
|
|
|
|
F-71
REED ELSEVIER NV
CONSOLIDATED STATEMENT OF CHANGES IN EQUITY
FOR THE YEAR ENDED DECEMBER 31, 2014
Note |
Share
capital m |
Paid-in
surplus m |
Shares
held in treasury m |
Translation
reserve m |
Other
reserves m |
Total
equity m |
||||||||||||||||||||||
Balance at January 1, 2014 |
55 | 2,276 | (881 | ) | (131 | ) | 115 | 1,434 | ||||||||||||||||||||
Total comprehensive income for the year |
| | | 185 | 436 | 621 | ||||||||||||||||||||||
Equity dividends paid |
8 | | | | | (349 | ) | (349 | ) | |||||||||||||||||||
Issue of ordinary shares, net of expenses |
| 33 | | | | 33 | ||||||||||||||||||||||
Repurchase of shares |
| | (381 | ) | | | (381 | ) | ||||||||||||||||||||
Cancellation of shares |
(3 | ) | | 540 | | (537 | ) | | ||||||||||||||||||||
Share of joint ventures increase in share based remuneration reserve (net of tax) |
| | | | 30 | 30 | ||||||||||||||||||||||
Share of joint ventures settlement of share awards by the employee benefit trust |
| | 17 | | (17 | ) | | |||||||||||||||||||||
Share of joint ventures acquisition of non-controlling interest |
| | | | (9 | ) | (9 | ) | ||||||||||||||||||||
Equalisation adjustments |
| | | (20 | ) | (20 | ) | |||||||||||||||||||||
Exchange translation differences |
| | (6) | 6 | | | ||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Balance at December 31, 2014 |
52 | 2,309 | (711 | ) | 60 | (351 | ) | 1,359 | ||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Balance at January 1, 2013 |
54 | 2,189 | (571 | ) | (42 | ) | (228 | ) | 1,402 | |||||||||||||||||||
Total comprehensive income for the year |
| | | (86 | ) | 693 | 607 | |||||||||||||||||||||
Equity dividends paid |
8 | | | | | (321 | ) | (321 | ) | |||||||||||||||||||
Issue of ordinary shares, net of expenses |
1 | 87 | | | | 88 | ||||||||||||||||||||||
Repurchase of shares |
| | (337 | ) | | | (337 | ) | ||||||||||||||||||||
Share of joint ventures increase in share based remuneration reserve (net of tax) |
| | | | 29 | 29 | ||||||||||||||||||||||
Share of joint ventures settlement of share awards by the employee benefit trust |
| | 24 | | (24 | ) | | |||||||||||||||||||||
Equalisation adjustments |
| | | | (34 | ) | (34 | ) | ||||||||||||||||||||
Exchange translation differences |
| | 3 | (3 | ) | | | |||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Balance at December 31, 2013 |
55 | 2,276 | (881) | (131) | 115 | 1,434 | ||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Balance at January 1, 2012 |
54 | 2,171 | (432 | ) | 6 | (496 | ) | 1,303 | ||||||||||||||||||||
Total comprehensive income for the year |
| | | (51 | ) | 572 | 521 | |||||||||||||||||||||
Equity dividends paid |
8 | | | | | (319 | ) | (319 | ) | |||||||||||||||||||
Issue of ordinary shares, net of expenses |
| 18 | | | | 18 | ||||||||||||||||||||||
Repurchase of shares |
| | (141 | ) | | | (141 | ) | ||||||||||||||||||||
Share of joint ventures increase in share based remuneration reserve |
| | | | 19 | 19 | ||||||||||||||||||||||
Share of joint ventures settlement of share awards by the employee benefit trust |
| | 5 | | (5 | ) | | |||||||||||||||||||||
Share of joint ventures acquisition of non-controlling interest |
| | | | 4 | 4 | ||||||||||||||||||||||
Equalisation adjustments |
| | | | (3 | ) | (3 | ) | ||||||||||||||||||||
Exchange translation differences |
| | (3 | ) | 3 | | | |||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Balance at December 31, 2012 |
54 | 2,189 | (571 | ) | (42 | ) | (228 | ) | 1,402 | |||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
F-72
REED ELSEVIER NV
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
1. | Basis of financial statements |
As a consequence of the merger of their respective businesses, Reed Elsevier PLC and Reed Elsevier NV contributed their businesses to two jointly owned companies, Reed Elsevier Group plc and Elsevier Reed Finance BV. During 2014, Reed Elsevier Group plc, a company incorporated in England, owned the publishing and information businesses, and Elsevier Reed Finance BV, a company incorporated in the Netherlands, owned the financing and treasury companies. Reed Elsevier PLC and Reed Elsevier NV each held a 50% interest in Reed Elsevier Group plc. Until the end of 2014, Reed Elsevier PLC held a 39% interest in Elsevier Reed Finance BV and Reed Elsevier NV held a 61% interest. Reed Elsevier PLC additionally holds an indirect equity interest in Reed Elsevier NV, reflecting the arrangements entered into between Reed Elsevier PLC and Reed Elsevier NV at the time of the merger, which determined the equalisation ratio whereby one Reed Elsevier NV ordinary share is, in broad terms, intended to confer equivalent economic interests to 1.538 Reed Elsevier PLC ordinary shares.
Unless otherwise indicated, all amounts shown in the consolidated financial statements are stated in euros (). Certain disclosures required to comply with Dutch statutory reporting requirements have been omitted.
The combined financial statements on pages F-3 to F-51 form an integral part of the notes to Reed Elsevier NVs consolidated financial statements. The combined financial statements (the combined financial statements) represent the combined interests of both sets of shareholders and encompass the businesses of Reed Elsevier Group plc and Elsevier Reed Finance BV and their subsidiaries, associates and joint ventures, together with the two parent companies, Reed Elsevier PLC and Reed Elsevier NV (the combined businesses).
2. | Accounting policies |
Basis of Preparation
These consolidated financial statements, which have been prepared under the historical cost convention, report the consolidated statements of income, comprehensive income, cash flow, financial position and changes in equity of Reed Elsevier NV (incorporated and domiciled in the Netherlands), and have been prepared in accordance with accounting policies that are in conformity with International Financial Reporting Standards (IFRS) as issued by the International Accounting Standards Board (IASB) and as adopted by the European Union.
Unless otherwise indicated, all amounts shown in the financial statements are in euros ().
As a consequence of the merger of the companys businesses with those of Reed Elsevier PLC, the shareholders of Reed Elsevier NV and Reed Elsevier PLC can be regarded as having the interests of a single economic group, enjoying substantially equivalent ordinary dividend and capital rights in the earnings and net assets of the combined businesses. The combined businesses are composed of Reed Elsevier Group plc and Elsevier Reed Finance BV and their respective subsidiaries and joint ventures, together with the two parent companies, Reed Elsevier NV and Reed Elsevier PLC. The combined businesses are jointly controlled by Reed Elsevier NV and Reed Elsevier PLC.
The Reed Elsevier NV consolidated financial statements are presented incorporating Reed Elsevier NVs investments in the combined businesses accounted for using the equity method, as adjusted for the effects of the equalisation arrangement between Reed Elsevier NV and Reed Elsevier PLC. The arrangement lays down the distribution of dividends and net assets in such a way that Reed Elsevier N.Vs share in the profit and net assets of the combined businesses equals 50%, with all settlements accruing to shareholders from the equalisation arrangements taken directly to reserves.
Because the dividend paid to shareholders by Reed Elsevier NV is, other than in special circumstances, equivalent to the Reed Elsevier PLC dividend plus the UK tax credit available to certain Reed Elsevier PLC shareholders, Reed Elsevier NV normally distributes a higher proportion of the combined profit attributable than Reed Elsevier PLC. Reed Elsevier PLCs share in this difference in dividend distributions is settled with Reed Elsevier NV and is credited directly to consolidated reserves under equalisation. Reed Elsevier NV can pay a nominal dividend on its R shares held by a subsidiary of Reed Elsevier PLC that is lower than the dividend on the ordinary shares. Equally, Reed Elsevier NV has the possibility to receive dividends directly from Dutch affiliates. During 2014, Reed Elsevier PLC was compensated by direct dividend payments by Reed Elsevier Group plc. The settlements flowing from these arrangements are also taken directly to consolidated reserves under equalisation.
Combined financial statements
The accounting policies adopted in the preparation of the combined financial statements are set out on pages F-10 to F-16.
F-73
2. | Accounting policies (continued) |
Basis of valuation of assets and liabilities
Reed Elsevier NVs 50% economic interest in the net assets of the combined businesses has been shown on the consolidated statement of financial position as investments in joint ventures, net of the assets and liabilities reported as part of Reed Elsevier NV. Joint ventures are accounted for using the equity method.
Assets and liabilities are stated at historical cost, less provision, if appropriate, for any impairment in value.
Foreign exchange translation
Transactions in foreign currencies are recorded at the rate of exchange prevailing on the date of the transaction. At each statement of financial position date, monetary assets and liabilities that are denominated in foreign currencies are retranslated at the rate prevailing on the statement of financial position date. Exchange differences arising are recorded in the income statement. The gains or losses relating to the retranslation of Reed Elsevier NVs 50% interest in the net assets of the combined businesses are classified as equity and transferred to the translation reserve.
When foreign operations are disposed of, the related cumulative translation differences are recognised within the income statement in the period.
Taxation
Tax expense comprises current and deferred tax. Current and deferred tax are charged or credited in the income statement except to the extent that the tax arises from a transaction or event which is recognised, in the same or a different period, outside profit or loss (either in other comprehensive income, directly in equity, or through a business combination) in which case the tax appears in the same statement as the transaction that gave rise to it.
Current tax is the amount of corporate income taxes payable or recoverable based on the profit for the period as adjusted for items that are not taxable or not deductible, and is calculated using tax rates and laws that were enacted or substantively enacted at the date of the statement of financial position. Management periodically evaluates positions taken in tax returns with respect to situations in which applicable tax regulation is subject to interpretation. Provisions are established where appropriate on the basis of amounts expected to be paid to the tax authorities.
Deferred tax is recognised on temporary differences arising between the tax bases of assets and liabilities and their carrying amounts in the statement of financial position. Deferred tax is calculated using tax rates and laws that have been enacted or substantively enacted at the end of the reporting period, and which are expected to apply when the related deferred tax asset is realised or the deferred tax liability is settled.
Deferred tax liabilities are generally recognised for all taxable temporary differences but not recognised for taxable temporary differences arising on investments in subsidiaries, associates and joint ventures where the reversal of the temporary difference can be controlled and it is probable that the difference will not reverse in the foreseeable future. Deferred tax liabilities are not recognised on temporary differences that arise from goodwill which is not deductible for tax purposes.
Deferred tax assets are recognised to the extent it is probable that taxable profits will be available against which the deductible temporary differences can be utilised, and reviewed at the end of each reporting period and reduced to the extent that it is no longer probable that sufficient taxable profits will be available to allow all or part of the asset to be recovered.
Deferred tax assets and liabilities are not recognised in respect of temporary differences that arise on initial recognition of assets and liabilities acquired other than in a business combination. Deferred tax is not discounted.
Critical judgements and key sources of estimation uncertainty
Critical judgments in the preparation of the combined financial statements are set out on pages F-14 to F-15.
Standards and amendments effective for the year
The interpretations and amendments to IFRS effective for 2014 have not had a significant impact on Reed Elsevier NVs accounting policies or reporting.
F-74
2. | Accounting policies (continued) |
Standards, amendments and interpretations not yet effective
Recently issued standards, amendments and interpretations and their impact on future accounting policies and reporting have been considered on page F-16 of the combined financial statements.
3. | Basis of preparation |
The consolidated financial statements of Reed Elsevier NV reflect the 50% economic interest that its shareholders have under the equalisation arrangements in the combined businesses, accounted for on an equity basis.
The combined financial statements are presented in pounds sterling, which is the functional currency of the Group. The following analysis presents how the consolidated financial statements of Reed Elsevier NV, presented in euros, are derived from the combined financial statements.
Reed Elsevier NV consolidated profit attributable to shareholders |
2014 | 2013 | 2012 | |||||||||
Combined businesses net profit attributable to parent company shareholders in pounds sterling |
£ | 955m | £ | 1,110m | £ | 1,044m | ||||||
Combined businesses net profit attributable to parent company shareholders translated into euros at year end exchange rates (2014: 1.24 to £1.00; 2013: 1.18 to £1.00; 2012: 1.23 to £1.000) |
| 1,184m | | 1,310m | | 1,284m | ||||||
Reed Elsevier NVs 50% share of combined net profit attributable to shareholders |
| 592m | | 655m | | 642m | ||||||
|
|
|
|
|
|
Reed Elsevier NV consolidated total equity |
2014 | 2013 | 2012 | |||||||||
Combined shareholders equity in pounds sterling |
£ | 2,106m | £ | 2,390m | £ | 2,280m | ||||||
Combined shareholders equity in pounds sterling translated into euros at year end exchange rates (2014: 1.29 to £1.00; 2013: 1.20 to £1.00; 2012: 1.23 to £1.00) |
| 2,717m | | 2,868m | | 2,804m | ||||||
Reed Elsevier NVs 50% share of combined equity |
| 1,359m | | 1,434m | | 1,402m | ||||||
|
|
|
|
|
|
4. | Administrative expenses |
Administrative expenses include the remuneration for present and former Executive and Non-Executive Directors of Reed Elsevier NV in respect of services rendered to Reed Elsevier NV and the combined businesses. Fees for Non-Executive Directors of Reed Elsevier NV of 0.3 million (2013: 0.3 million; 2012: 0.3 million) are included in remuneration. Insofar as remuneration during 2014 was related to services rendered to Reed Elsevier Group plc and Elsevier Reed Finance BV group, it was borne by these groups. Reed Elsevier NV has no employees (2013: nil; 2012: nil).
5. | Related party transactions |
All transactions with joint ventures, which are related parties of Reed Elsevier NV, are reflected in these financial statements. Key management personnel are also related parties and comprise the Directors of Reed Elsevier NV. Transactions with key management personnel are set out in note 4 and in note 29 to the combined financial statements.
6. | Finance income |
2014
m |
2013
m |
2012
m |
||||||||||
Finance income from joint ventures |
25 | 19 | 8 | |||||||||
|
|
|
|
|
|
F-75
7. | Taxation |
A reconciliation of the notional tax charge based on the applicable rate of tax to the actual total tax expense is set out below.
2014
m |
2013
m |
2012
m |
||||||||||
Profit before tax |
597 | 659 | 644 | |||||||||
|
|
|
|
|
|
|||||||
Tax at applicable rate 25.0% (2013: 25.0%; 2012: 25.0%) |
(149 | ) | (165 | ) | (161 | ) | ||||||
Tax at applicable rate on share of results of joint ventures |
144 | 161 | 159 | |||||||||
|
|
|
|
|
|
|||||||
Tax expense |
(5 | ) | (4 | ) | (2 | ) | ||||||
|
|
|
|
|
|
8. | Equity dividends |
Dividends declared and paid in the year |
2014
|
2013
|
2012
|
2014
m |
2013
m |
2012
m |
||||||||||||||||||
Ordinary shares |
||||||||||||||||||||||||
Final for prior financial year |
| 0.374 | | 0.337 | | 0.326 | 249 | 230 | 228 | |||||||||||||||
Interim for financial year |
| 0.151 | | 0.132 | | 0.130 | 100 | 91 | 91 | |||||||||||||||
R shares |
| | | | | | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total |
| 0.525 | | 0.469 | | 0.456 | 349 | 321 | 319 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
The directors of Reed Elsevier NV have proposed a final dividend of 0.438 (2013: 0.374; 2012: 0.337). The cost of funding the proposed final dividend is expected to be 287 million. No liability has been recognised at the statement of financial position date.
Dividends paid and proposed relating to the financial year |
2014
|
2013
|
2012
|
|||||||||
Ordinary shares |
||||||||||||
Interim (paid) |
| 0.151 | | 0.132 | | 0.130 | ||||||
Final (proposed) |
| 0.438 | | 0.374 | | 0.337 | ||||||
R shares |
| | | |||||||||
|
|
|
|
|
|
|||||||
Total |
| 0.589 | | 0.506 | | 0.467 | ||||||
|
|
|
|
|
|
9. | Earnings per share (EPS) |
2014 | ||||||||||||
Weighted
average number of shares (millions) |
Earnings
m |
EPS
|
||||||||||
Basic EPS |
700.1 | 592 | | 0.85 | ||||||||
|
|
|
|
|
|
|||||||
Diluted EPS |
708.3 | 592 | | 0.84 | ||||||||
|
|
|
|
|
|
2013 | ||||||||||||
Weighted
average number of shares (millions) |
Earnings
m |
EPS
|
||||||||||
Basic EPS |
717.6 | 655 | | 0.91 | ||||||||
|
|
|
|
|
|
|||||||
Diluted EPS |
726.9 | 655 | | 0.90 | ||||||||
|
|
|
|
|
|
F-76
9. | Earnings per share (EPS) (continued) |
2012 | ||||||||||||
Weighted
average number of shares (millions) |
Earnings
Restated m |
EPS
Restated |
||||||||||
Basic EPS |
734.0 | 642 | | 0.87 | ||||||||
|
|
|
|
|
|
|||||||
Diluted EPS |
742.1 | 642 | | 0.87 | ||||||||
|
|
|
|
|
|
The diluted EPS figures are calculated after taking account of the effect of potential additional ordinary shares arising from share options and conditional shares.
The weighted average number of shares reflects the equivalent ordinary shares amount taking into account R shares and is after deducting shares held in treasury. Movements in the number of ordinary shares or equivalents for the year ended December 31, 2014 are shown in note 13.
The average number of equivalent ordinary shares takes into account the R shares in Reed Elsevier NV held by a subsidiary of Reed Elsevier PLC, which represents a 5.8% interest in Reed Elsevier NVs share capital.
The weighted average number of shares used in the calculation of diluted EPS is after deducting shares held in treasury and is derived as follows:
2014
(millions) |
2013
(millions) |
2012
(millions) |
||||||||||
Weighted average number of shares Basic |
700.1 | 717.6 | 734.0 | |||||||||
Weighted average number of dilutive shares under options |
8.2 | 9.3 | 8.1 | |||||||||
|
|
|
|
|
|
|||||||
Weighted average number of shares Diluted |
708.3 | 726.9 | 742.1 | |||||||||
|
|
|
|
|
|
10. | Statement of cash flows |
Reconciliation of profit before tax to cash used by operations
2014
m |
2013
m |
2012
m |
||||||||||
Profit before tax |
597 | 659 | 644 | |||||||||
Finance income |
(25 | ) | (19 | ) | (8 | ) | ||||||
Share of results of joint ventures |
(575 | ) | (642 | ) | (638 | ) | ||||||
Decrease in payables |
| (1 | ) | (3 | ) | |||||||
|
|
|
|
|
|
|||||||
Cash used by operations |
(3 | ) | (3 | ) | (5 | ) | ||||||
|
|
|
|
|
|
Reconciliation of net funding balances due from joint ventures
2014
m |
2013
m |
2012
m |
||||||||||
At January 1 |
1,027 | 1,397 | 1,084 | |||||||||
Cash flow |
(141 | ) | (370 | ) | 313 | |||||||
|
|
|
|
|
|
|||||||
At December 31 |
886 | 1,027 | 1,397 | |||||||||
|
|
|
|
|
|
F-77
11. | Investments in joint ventures |
2014
m |
2013
m |
2012
m |
||||||||||
Share of results of joint ventures |
575 | 642 | 638 | |||||||||
Share of joint ventures: |
||||||||||||
Other comprehensive income/(loss) |
29 | (48 | ) | (121 | ) | |||||||
(Acquisition)/disposal of non-controlling interests |
(9 | ) | | 4 | ||||||||
Increase in share based remuneration reserve (net of tax) |
30 | 29 | 19 | |||||||||
Purchase of treasury shares by employee benefit trust |
(20 | ) | | | ||||||||
Equalisation adjustments |
(20 | ) | (34 | ) | (3 | ) | ||||||
Dividends received from joint ventures |
(520 | ) | (186 | ) | (754 | ) | ||||||
(Decrease)/increase in net funding balances due from joint ventures |
(141 | ) | (370 | ) | 313 | |||||||
|
|
|
|
|
|
|||||||
Net movement in the year |
(76 | ) | 33 | 96 | ||||||||
At January 1 |
1,488 | 1,455 | 1,359 | |||||||||
|
|
|
|
|
|
|||||||
At December 31 |
1,412 | 1,488 | 1,455 | |||||||||
|
|
|
|
|
|
During the year Reed Elsevier NV received dividends of 300 million from Reed Elsevier Overseas BV (2013: nil; 2012: nil) and 220 million from Elsevier Reed Finance BV (2013: 186 million; 2012: 394 million) and nil from RELX Group plc (2013: nil; 2012: 300 million).
Summarised information showing total amounts in respect of joint ventures and Reed Elsevier NV shareholders 50% share is set out below:
Total joint ventures | Reed Elsevier NV shareholders share | |||||||||||||||||||||||
2014
m |
2013
m |
2012
m |
2014
m |
2013
m |
2012
m |
|||||||||||||||||||
Revenue |
7,159 | 7,121 | 7,523 | 3,580 | 3,561 | 3,762 | ||||||||||||||||||
Net profit for the year |
1,190 | 1,316 | 1,290 | 575 | 642 | 638 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
Reed Elsevier NVs share of joint ventures net profit attributable to parent company shareholders for the year excludes the net profit that arose directly in Reed Elsevier NV of 17 million (2013: 13 million; 2012: 4 million).
Reed Elsevier NVs other comprehensive income includes income of 29 million (2013: 48 million loss; 2012: 21 million loss) relating to joint ventures.
Total joint ventures | Reed Elsevier NV shareholders share | |||||||||||||||||||||||
2014
m |
2013
m |
2012
m |
2014
m |
2013
m |
2012
m |
|||||||||||||||||||
Total assets |
14,302 | 12,594 | 13,547 | 7,145 | 6,295 | 6,773 | ||||||||||||||||||
Total liabilities |
(11,545 | ) | (9,686 | ) | (10,701 | ) | (6,619 | ) | (5,834 | ) | (6,715 | ) | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Net assets/(liabilities) |
2,757 | 2,908 | 2,846 | 526 | 461 | 58 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Attributable to: |
||||||||||||||||||||||||
Joint ventures |
2,717 | 2,868 | 2,804 | 526 | 461 | 58 | ||||||||||||||||||
Non-controlling interests |
40 | 40 | 42 | | | | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
2,757 | 2,908 | 2,846 | 526 | 461 | 58 | |||||||||||||||||||
|
|
|
|
|
|
|||||||||||||||||||
Net funding balances due from joint ventures |
886 | 1,027 | 1,397 | |||||||||||||||||||||
|
|
|
|
|
|
|||||||||||||||||||
Total |
1,412 | 1,488 | 1,455 | |||||||||||||||||||||
|
|
|
|
|
|
The above amounts for Reed Elsevier NVs shareholders share of total assets and total liabilities exclude assets and liabilities held directly by Reed Elsevier NV, but include the counterparty balances of amounts owed to and by other Group businesses. Included within Reed Elsevier NVs share of assets and liabilities are cash and cash equivalents of 172 million (2013: 77 million; 2012: 393 million) and borrowings of 2,467 million (2013: 1,963 million; 2012: 2,386 million) respectively.
F-78
12. | Payables |
Included within payables are employee convertible debenture loans of 4 million (2013: 5 million; 2012: 7 million) with a weighted average interest rate of 1.65% (2013: 1.95%; 2012: 2.56%). Depending on the conversion terms, the surrender of 200 par value debenture loans qualifies for 50 Reed Elsevier NV ordinary shares.
13. | Share capital |
Authorised
No. of shares | m | |||||||
Ordinary shares of 0.07 each |
1,800,000,000 | 126 | ||||||
R shares of 0.70 each |
26,000,000 | 18 | ||||||
|
|
|||||||
Total |
144 | |||||||
|
|
Issued and fully paid
R shares
Number |
Ordinary
shares Number |
R shares
m |
Ordinary
shares m |
Total
m |
||||||||||||||||
At January 1, 2012 |
4,303,179 | 724,077,755 | 3 | 51 | 54 | |||||||||||||||
Issue of ordinary shares |
| 1,906,470 | | | | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
At January 1, 2013 |
4,303,179 | 725,984,225 | 3 | 51 | 54 | |||||||||||||||
Issue of ordinary shares |
| 8,165,731 | | 1 | 1 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
At January 1, 2014 |
4,303,179 | 734,149,956 | 3 | 52 | 55 | |||||||||||||||
Issue of ordinary shares |
| 3,003,289 | | | | |||||||||||||||
Cancellation of shares |
| (40,000,000 | ) | | (3 | ) | (3 | ) | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
At December 31, 2014 |
4,303,179 | 697,153,245 | 3 | 49 | 52 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
The issue of shares relates to the exercise of share options. Details of share option and conditional share schemes are set out in note 7 to the combined financial statements.
Year Ended December 31, | ||||||||||||||||||||||||
Ordinary
shares in issue (millions) |
R share
in issue* (millions) |
Treasury
shares (millions) |
2014
Ordinary share equivalents net of treasury shares (millions) |
2013
Ordinary share equivalents net of treasury shares (millions) |
2012
Ordinary shares equivalents net of treasury shares (millions) |
|||||||||||||||||||
Number of ordinary shares or equivalents |
||||||||||||||||||||||||
Ordinary shares at January 1 |
734.1 | | (65.9 | ) | 668.2 | 682.4 | 692.8 | |||||||||||||||||
Issue of ordinary shares |
3.0 | | | 3.0 | 8.1 | 1.9 | ||||||||||||||||||
Repurchase of ordinary shares |
| | (20.4 | ) | (20.4 | ) | (24.3 | ) | (12.7 | ) | ||||||||||||||
Cancellation of shares |
(40.0 | ) | | 40.0 | | | | |||||||||||||||||
Net (purchase)/release of ordinary shares by the employee benefit trust |
| | (0.3 | ) | (0.3 | ) | 2.0 | 0.4 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Ordinary shares at December 31 |
697.1 | | (46.6 | ) | 650.5 | 668.2 | 682.4 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
R share equivalents at January 1 |
| 43.0 | (1.5 | ) | 41.5 | 42.4 | 43 | |||||||||||||||||
Repurchase of R share equivalents |
| | (l.1 | ) | (1.1 | ) | (0.9 | ) | (0.6 | ) | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
R share equivalents at December 31 |
| 43.0 | (2.6 | ) | 40.4 | 41.5 | 42.4 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total ordinary share equivalents at December 31 |
697.1 | 43.0 | (49.2 | ) | 690.9 | 709.7 | 724.8 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Weighted average number of equivalent ordinary shares during the year |
700.1 | 717.6 | 734.0 | |||||||||||||||||||||
|
|
|
|
|
|
* | Ordinary share equivalents |
F-79
13. | Share capital (continued) |
At December 31, 2014, 4,038,884 R shares (2013: 4,146,785; 2012: 4,240,838) were held by a subsidiary of Reed Elsevier PLC. The R shares are convertible at the election of the holders into ten ordinary shares each and each R share carries an entitlement to cast ten votes. They have otherwise the same rights as the ordinary shares, except that Reed Elsevier NV may pay a lower dividend on the R shares.
At December 31, 2014 shares held in treasury comprised 41,298,544 ordinary shares and 264,295 R shares (equivalent to 2,642,950 ordinary shares). In addition, 5,337,782 ordinary shares were held by the Employee Benefit Trust. At an extraordinary general meeting of shareholders of Reed Elsevier NV held in October 2014, the shareholders approved the reduction of the capital of the Reed Elsevier NV by the cancellation of up to 40,000,000 of its ordinary shares held in treasury. Following the shareholders meeting, the Board filed a declaration for the cancellation of 40,000,000 ordinary shares with the Trade Register at the Chamber of Commerce on October 22, 2014. The 40,000,000 ordinary shares of Reed Elsevier NV were subsequently cancelled with effect from December 24, 2014.
14. | Other reserves |
2014
m |
2013
m |
2012
m |
||||||||||
At January 1 |
115 | (228 | ) | (496 | ) | |||||||
Profit attributable to shareholders |
592 | 655 | 642 | |||||||||
Cancellation of shares |
(537 | ) | | | ||||||||
Share of joint ventures: |
||||||||||||
Actuarial (losses)/gains on defined benefit pension schemes |
(165 | ) | 24 | (180 | ) | |||||||
Transfer to net profit on disposal of available for sale investments |
| | 7 | |||||||||
Fair value movements on cash flow hedges |
(50 | ) | 38 | 43 | ||||||||
Transfer to net profit from cash flow hedge reserve |
12 | (2 | ) | 16 | ||||||||
Tax recognised in other comprehensive income |
47 | (22 | ) | 44 | ||||||||
Increase in share based remuneration reserve (net of tax) |
30 | 29 | 19 | |||||||||
Settlement of share awards |
(17 | ) | (24 | ) | (5 | ) | ||||||
(Acquisition)/disposal of non-controlling interests |
(9 | ) | | 4 | ||||||||
Equalisation adjustments |
(20 | ) | (34 | ) | (3 | ) | ||||||
Equity dividends paid |
(349 | ) | (321 | ) | (319 | ) | ||||||
|
|
|
|
|
|
|||||||
At December 31 |
(351 | ) | 115 | (228 | ) | |||||||
|
|
|
|
|
|
15. | Contingent liabilities |
There are contingent liabilities in respect of borrowings of joint ventures guaranteed by Reed Elsevier NV as follows:
2014
m |
2013
m |
2012
m |
||||||||||
Guaranteed jointly and severally with Reed Elsevier PLC |
4,653 | 3,676 | 4,422 | |||||||||
|
|
|
|
|
|
Financial instruments disclosures in respect of the borrowings covered by the above guarantees are given in note 18 to the combined financial statements.
16. | Events after the balance sheet data |
Effective February 25, 2015, Reed Elsevier NV transferred interest bearing receivables of 836 million to Elsevier Reed Finance BV for consideration of 1 ordinary voting E share. Subsequently, on February 25, 2015, Reed Elsevier NV transferred its direct ownership interest in Elsevier Reed Finance BV to its jointly-owned company Reed Elsevier Group plc, for consideration of 31,613 ordinary voting shares in Reed Elsevier Group plc. Simultaneously, Reed Elsevier PLC transferred its direct ownership interest in Elsevier Reed Finance BV to Reed Elsevier Group plc, for consideration of 31,613 ordinary voting shares in Reed Elsevier Group plc. This newly-combined single group entity was named RELX Group plc. The R shares and E shares of RELX Group plc held by Reed Elsevier PLC and Reed Elsevier NV respectively were converted into non-voting shares.
F-80
Reed Elsevier NV has retained its 50% economic interest in the combined businesses, and no gains or losses were recorded on the transactions. As Reed Elsevier NV and Reed Elsevier PLC each hold 50% of the voting shares in issue, joint control of RELX Group plc is retained and their respective interests will continue to be accounted for under the equity method, as described in the accounting policies on page F-73.
17. | Approval of financial statements |
The consolidated financial statements were approved by the Board of directors on February 25, 2015.
F-81
GLOSSARY OF TERMS
Terms used in Annual Report on Form 20-F |
US equivalent or brief description |
Accruals |
Accrued expenses |
Adjusted cash flow |
Cash generated from operations plus dividends from joint ventures less net capital expenditure on property, plant and equipment and internally developed intangible assets, and excluding payments in relation to exceptional restructuring and acquisition related costs |
Adjusted operating margin |
Adjusted operating profit expressed as a percentage of revenue. This is a key financial measure used by management to evaluate performance and allocate resources |
Adjusted operating profit |
Operating profit before amortisation of acquired intangible assets, exceptional restructuring and acquisition related costs, the share of profit on disposals in joint ventures, and grossed up to exclude the equity share of taxes in joint ventures. This is a key financial measure used by management to evaluate performance and allocate resources and is presented in accordance with IFRS8-Operating Segments |
Allotted |
Issued |
Associate |
An entity in which the Group has a participating interest and, in the opinion of the directors, can exercise significant influence on its management |
Bank borrowings |
Payable to banks |
Called up share capital |
Issued share capital |
Capital and reserves |
Shareholders equity |
Cash flow conversion |
The proportion of adjusted operating profits converted into cash |
Combined businesses |
Reed Elsevier PLC, Reed Elsevier NV and RELX Group plc and their respective subsidiaries, associates and joint ventures |
Current instalments of loans |
Long term debt due within one year |
Effective tax rate on adjusted operating profit |
Tax rate excluding movements on deferred tax balances not expected to crystallise in the near term, more closely aligning with cash taxes payable, and includes the benefit of deductible tax amortisation on acquired goodwill and intangible assets |
EPS |
Earnings per ordinary share |
Finance lease |
Capital lease |
Free cash flow |
Operating cash flow excluding the effects of interest, tax and dividends |
Invested capital |
Average capital employed in the year expressed at the average exchange rates for the year. Capital employed represents the net assets of the business before borrowings and derivative financial instruments and current and deferred taxes, after adding back the cumulative amortisation and impairment of acquired intangible assets and goodwill and deducting from goodwill the gross up in respect of deferred tax liabilities recognised on acquisition of intangible assets |
Investments |
Non-current investments |
Freehold |
Ownership with absolute rights in perpetuity |
Interest receivable |
Interest income |
Interest payable |
Interest expense |
Net borrowings |
Gross borrowings, less related derivative financial instrument assets and cash and cash equivalents |
Net cash acquired |
Cash less debt acquired with a business |
Operating costs |
Cost of sales plus selling and distribution costs plus administration and other expenses |
Prepayments |
Prepaid expenses |
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Profit |
Income |
Profit attributable |
Net income |
Share based remuneration |
Stock based compensation |
Share premium account |
Premiums paid in excess of par value of ordinary shares |
Return on invested capital |
Post tax adjusted operating profit expressed as a percentage of average capital employed. This is a key financial measure used by management |
Revenue |
Sales |
Underlying growth |
Underlying growth rates are calculated at constant currencies, and exclude the results of all acquisitions and disposals made in both the year and prior year and assets held for sale. Underlying revenue growth rates also exclude the effects of exhibition cycling. This is a key financial measure as it provides an assessment of year on year organic growth without distortion for part year contributions and the impact of changes in foreign exchange rates |
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Exhibits filed as part of this annual report
1.1 | Articles of Association of Reed Elsevier PLC (incorporated by reference from Exhibit 4.1 to the Registration Statement on Form S-8 (File No. 333-167058) filed with the SEC on May 25, 2010) | |
1.2 | Articles of Association of Reed Elsevier NV (as amended October 21, 2014) | |
1.3 | Governing Agreement, (as amended on July 17, 2013) between Reed Elsevier PLC and Reed Elsevier NV (incorporated by reference from Exhibit 1.3 to the 2013 Annual Report on Form 20-F filed with the SEC on March 11, 2014) | |
1.4 | RHBV Agreement, dated December 23, 1992 among Elsevier NV and Reed Holding B.V. (incorporated by reference from Exhibit 1.4 to the 2002 Annual Report on Form 20-F filed with the SEC on March 10, 2003) | |
2.1 | Amended and Restated Deposit Agreement, dated as of August 1, 2014, among Reed Elsevier PLC, Citibank, N.A. and the Holders and Beneficial Owners of American Depositary Shares Issued thereunder. | |
2.2 | Amended and Restated Deposit Agreement, dated as of August 1, 2014, among Reed Elsevier NV, Citibank, N.A. and the Holders and Beneficial Owners of American Depositary Shares Issued thereunder. | |
4.1 | RELX Group plc Share Option Scheme (incorporated by reference from Exhibit 4.3 to the 2003 Annual Report on Form 20-F filed with the SEC on March 15, 2004) | |
4.2 |
RELX Group plc Long-Term Incentive Share Option Scheme (incorporated by reference from Exhibit 4.3 to the 2003 Annual Report on Form 20-F filed with the SEC on March 15, 2004) |
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4.3 | RELX Group plc Retention Share Plan (as amended on March 13, 2006) (incorporated by reference from exhibit 4.9 on the 2006 Annual Report on Form 20-F filed with the SEC on March 22, 2007) | |
4.4 | RELX Group plc Long-Term Incentive Share Option Scheme (as restated for awards granted on or after April 19, 2006) (incorporated by reference from exhibit 4.11 to the 2006 Annual Report on Form 20-F filed with the SEC on March 22, 2007) | |
4.5 | RELX Group plc Bonus Investment Plan 2010 (incorporated by reference from Exhibit 4.3 to the Registration Statement on Form S-8 (File No. 333-167058) filed with the SEC on May 25, 2010) | |
4.6 | RELX Group plc Growth Plan (incorporated by reference from Exhibit 4.4 to the Registration Statement on Form S-8 (File No. 333-167058) filed with the SEC on May 25, 2010) | |
4.7 | RELX Group plc Long-Term Incentive Plan 2010 (incorporated by reference from Exhibit 4.6 to the Registration Statement on Form S-8 filed (File No. 333-167058) with the SEC on May 25, 2010) | |
4.8 | RELX Group plc Long-Term Incentive Plan 2013 (incorporated by reference from Exhibit 10.2 to the Registration Statement on Form S-8 (File No. 333-191419) filed with the SEC on September 27, 2013) | |
4.9 | RELX Group plc Executive Share Option Scheme 2013 (incorporated by reference from Exhibit 10.1 to the Registration Statement on Form S-8 (File No. 333-191419) filed with the SEC on September 27, 2013) | |
4.10 | RELX Group plc Restricted Share Plan 2014 (incorporate by reference from Exhibit 4.3 to the Registration Statement on Form S-8 (File No. 333-197580) filed with the SEC on July 23, 2014) | |
4.11 | Service Agreement between RELX Group plc and Erik Engstrom (dated March 14, 2011) (incorporated by reference from Exhibit 4.14 to the 2012 Annual Report on Form 20-F filed with the SEC on March 12, 2013) | |
4.12 | Service Agreement between RELX Group plc and Nick Luff (dated January 6, 2014) | |
4.13 | Letter between RELX Group plc and Nick Luff (dated January 6, 2014) | |
8.0 | List of significant subsidiaries, associates, joint ventures and business units | |
12.1 | Certification Pursuant to Section 302 of Sarbanes-Oxley Act of 2002, by the Chief Executive Officer of Reed Elsevier PLC | |
12.2 | Certification Pursuant to Section 302 of Sarbanes-Oxley Act of 2002, by the Chief Financial Officer of Reed Elsevier PLC | |
12.3 | Certification Pursuant to Section 302 of Sarbanes-Oxley Act of 2002, by the Chief Executive Officer of Reed Elsevier NV | |
12.4 | Certification Pursuant to Section 302 of Sarbanes-Oxley Act of 2002, by the Chief Financial Officer of Reed Elsevier NV | |
13.1 | Certification Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, by the Chief Executive Officer of Reed Elsevier PLC | |
13.2 | Certification Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, by the Chief Financial Officer of Reed Elsevier PLC | |
13.3 | Certification Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, by the Chief Executive Officer of Reed Elsevier NV |
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13.4 | Certification Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, by the Chief Financial Officer of Reed Elsevier NV | |
15.1 | Independent Registered Public Accounting Firms Consent Combined Financial Statements | |
15.2 | Independent Registered Public Accounting Firms Consent Reed Elsevier PLC Consolidated Financial Statements | |
15.3 | Independent Registered Public Accounting Firms Consent Reed Elsevier NV Consolidated Financial Statements | |
16.1 | Letter between Deloitte Accountants B.V. and SEC regarding the change in the registrants certifying accountant (dated February 25, 2015) |
The total amount of long term debt securities of the Group authorised under any single instrument does not exceed 10% of the combined total assets of the Group. The Registrants hereby agree to furnish to the Commission, upon its request, a copy of any instrument defining the rights of holders of long term debt of the Group or any of the combined businesses for which consolidated or unconsolidated financial statements are required to be filed.
The agreements and other documents filed as exhibits to this report are not intended to provide factual information or other disclosure other than the terms of the agreements or other documents themselves, and you should not rely on them for that purpose. In particular, any representation and warranties made by any of the registrants in there agreements or other documents were made solely within the specific context of the relevant agreement or document and may not describe the actual state of affairs at the date they were made or at any other time.
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SIGNATURES
Each of the Registrants hereby certifies that it meets all of the requirements for filing on Form 20-F and that it has duly caused and authorised the undersigned to sign this annual report on its behalf.
REED ELSEVIER PLC Registrant |
REED ELSEVIER NV Registrant |
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By: /s/ E ENGSTROM
E Engstrom Chief Executive Officer |
By: /s/ E ENGSTROM
E Engstrom Chief Executive Officer |
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By: /s/ N Luff
N Luff Chief Financial Officer |
By: /s/ N Luff
N Luff Chief Financial Officer |
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Dated: March 10, 2015 |
Dated: March 10, 2015 |
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Exhibit 1.2
Please note that this is an unofficial office translation, in which an attempt has been made to be as literal as possible without jeopardizing the overall continuity. Inevitably, differences may occur in translation, and if so, the Dutch text will by law govern.
Unofficial translation of the articles of association of: Reed Elsevier N.V. as they read after the amendment of these articles of association before Dirk-Jan Jeroen Smit, civil law notary in Amsterdam, the Netherlands, on 21 October 2014.
ARTICLES OF ASSOCIATION
DEFINITIONS
CHAPTER I.
Article 1. Definitions.
1.1 | In these Articles of Association the following words have the following meanings: |
Share means a Share in the capital of the Company; unless the contrary is apparent, this shall include each Ordinary Share and each class R Share; |
Shareholder means a holder of one or more Shares (including a Euroclear-participant); unless the contrary is apparent, this shall include each holder of Ordinary Shares (including a Euroclear-participant) and each holder of class R Shares; |
General Meeting or General Meeting of Shareholders means a duly convened meeting of Shareholders (or their representatives) and of other persons with meeting rights; |
Subsidiary means a subsidiary of the Company as referred to in Section 2:24a of the Dutch Civil Code; |
Euroclear Nederland means Nederlands Centraal Instituut voor Giraal Effectenverkeer B.V., trading under the name Euroclear Nederland, being the central depositary as referred to in the Security Depositary Act ( Wet giraal effectenverkeer ) or any institution taking its place; |
Euroclear-participant means a person who is entitled to a certain number of Ordinary Shares pursuant to the Dutch Security Depositary Act ( Wet giraal effectenverkeer ) through a securities account with an institution associated with Euroclear Nederland; |
Ordinary Shares means ordinary shares in the capital of the Company. |
Group Company means a group company of the Company as referred to in Section 2:24b of the Dutch Civil Code; |
Board means the corporate body of the Company consisting of the executive members of the board in office and the non-executive members of the board in office; |
in writing means by letter, by telecopier, by e-mail or by message which is transmitted via any other current means of communication and which can be received in the written form; |
Company Secretary means the person referred to as such in Article 27 (including his deputy, designated in accordance with the provisions of Article 27.4); |
1.2 | References to Articles refer to articles which are part of these Articles of Association, except where expressly indicated otherwise. | |
CHAPTER II. NAME, OFFICIAL SEAT AND OBJECTS. | ||
Article 2. Name and Official Seat. | ||
2.1 | The Companys name is: | |
Reed Elsevier N.V. | ||
2.2 | The official seat of the Company is in Amsterdam. | |
Article 3. Objects. | ||
The objects of the Company are to participate in and to administer, manage and finance companies, as well as to render services to enterprises, in particular insofar as these enterprises are carried out by Reed Elsevier Group plc and Elsevier Reed Finance B.V. and by companies with which these companies form a group, as well as the performance of obligations deriving from the Governing Agreement entered into between Reed Elsevier PLC having its registered office in London, and the Company, which first came into effect on the first day of January nineteen hundred and ninety-three and which was amended in April nineteen hundred and ninety-nine, with due observance of all changes which, since the last mentioned date, have been or will be made thereto, and from all agreements relating thereto and to which Reed Elsevier PLC and the Company are parties, or shall, from time to time, be parties. | ||
CHAPTER III. AUTHORIZED CAPITAL, SHARES, SHARE CERTIFICATES AND REGISTER OF SHAREHOLDERS. | ||
Article 4. Authorized Capital and Shares. | ||
4.1 | The authorized capital of the Company is one hundred and forty-four million two hundred thousand euro ( 144,200,000). | |
4.2 | It is divided into one billion eight hundred million (1,800,000,000) ordinary Shares with a nominal value of seven eurocent ( 0.07) each and twenty-six million (26,000,000) class R Shares with a nominal value of seventy eurocent ( 0.70) each, provided that at each time one or more class R Shares are, in accordance with the provisions of Article 4.4, converted into ordinary Shares, the number of ordinary Shares of the authorized capital shall be increased by ten times the number of converted class R Shares, decreasing at the same time the number of class R Shares of the authorized capital by such number of class R Shares as are converted. An alteration of the number of each class of Shares in which the authorized capital is divided shall be notified to the Commercial Register within eight days. |
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4.3 | The ordinary Shares and the class R Shares are registered in the name of the holders. No share certificates shall be issued. | |
4.4 | Each class R Share may at the option of the holder thereof be converted into ten ordinary Shares. The holder of a class R Share wishing to convert one or more of his class R Shares into ordinary Shares shall notify the Board in writing of his wish to do so. Such written notice shall state the number of class R Shares involved and the date per which the conversion is to become effective, being a date not earlier than seven business days after the date on which the written notice is received by the Board. At the request of the Shareholder concerned, the Board shall immediately acknowledge receipt of the written notice. The conversion of the class R Shares referred to in the written notice into ordinary Shares shall be effective by operation of law, as of the date specified in the written notice. As from the time of conversion, the ordinary Share into which the class R Shares are converted shall attribute the same rights as the other ordinary Shares. | |
4.5 | The Board may split Shares into sub shares, whereby each Share will be split in one thousand (1,000) sub shares of the class of the relevant Share which has been split. The provisions of these Articles of Association relating to Shares, share certificates and Shareholders shall also apply to sub shares, sub share certificates and holders of sub shares, save in so far as the contrary is expressed of follows from the meaning of the relevant provision. | |
4.6 | If the holder of a sub share of a particular class acquires such number of sub shares of the same class that he holds an aggregate number of one thousand (1,000) sub shares of such class, each number of one thousand (1,000) sub shares held by such Shareholder shall be converted into a Share of the relevant class by operation of law. | |
Article 5. Register of Shareholders. | ||
5.1 | The Board shall keep a register of Shareholders in which the names and addresses of all holders of Shares shall be recorded, indicating the class of Shares as well as the nominal value paid-in on each Share. The names and addresses of usufructuaries and pledgees of Shares shall also be entered in the register, specifying which of the rights attributable to the Shares accrue to them in accordance with Article 14.2. The register shall be accurately kept and maintained on a regular basis. Shares that are part of a collective deposit or a book-entry deposit of Ordinary Shares under the Dutch Security Depositary Act, may be recorded in the shareholders register of the Company in the name of the relevant institution associated with Euroclear Nederland or Euroclear Nederland itself, together with the date as per which they belong to the collective deposit or the book-entry deposit. | |
5.2 | Each holder of Shares, each usufructuary and each pledgee of Shares shall be obliged to notify his address to the Company in writing. |
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5.3 | The Board shall set rules with respect to the signing of registrations and entries in the register of Shareholders. | |
5.4 | On application by a Shareholder, a usufructuary or a pledgee, the Board shall furnish an extract from the register free of charge, in so far as it relates to his right to a registered Share. If a usufruct has been created in the Share or if the Share is pledged, the extract shall state who has the rights referred to in Article 14.2. | |
5.5 | The Board shall make the register available in the Companys office for the inspection of the Shareholders and the usufructuaries and pledgees of Shares to whom the voting rights accrue. The preceding sentence shall not apply to that part of the register which is kept outside the Netherlands in compliance with applicable legislation or pursuant to the rules of a stock exchange. | |
CHAPTER IV. ISSUANCE OF SHARES. | ||
Article 6. Resolution to Issue; Conditions of Issuance. | ||
6.1 | Shares may be issued pursuant to a resolution of the General Meeting. This competence shall concern all non-issued Shares of the Companys authorized capital, except insofar the competence to issue Shares accrues to the Board in accordance with Article 6.2. | |
6.2 | Shares may be issued pursuant to a resolution of the Board, if and insofar as that board is designated competent to do so by the General Meeting. Such designation can be made each time for a maximum period of five years and can be extended each time for a maximum period of five years. A resolution to make such designation must stipulate the aggregate nominal value up to which Shares may be issued pursuant to a resolution of the Board; this aggregate nominal value cannot exceed one-third of the sum of (i) the Companys issued capital at the time the resolution to make the designation is adopted and (ii) the aggregate nominal value of rights, outstanding at such time, granted by the Company to subscribe for Shares. A resolution of the General Meeting to designate the Board as a body of the Company competent to issue Shares cannot be withdrawn, unless provided otherwise in the resolution to make the designation. | |
6.3 | A resolution of the General Meeting to issue Shares or to designate another body of the Company competent to do so can only be adopted at the proposal of the Board. | |
6.4 | Within eight days after a resolution of the General Meeting to issue Shares or to designate another body of the Company competent to issue Shares, the complete text of the resolution concerned shall be deposited at the office of the Commercial Register. Each change to or withdrawal of the designation shall be notified to the Commercial Register. | |
6.5 | Within eight days after the end of a quarter of the financial year, the Company shall notify the Commercial Register of any issuance of Shares during such quarter, specifying the number and class of the Shares issued, |
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which obligation may be satisfied by a notification by the Company to the Authority Financial Markets ( Autoriteit Financiële Markten ) in accordance with Section 5:34 of the Act on financial supervision ( Wet op het financieel toezicht ). | ||
6.6 | The foregoing provisions of this Article 6 shall apply by analogy to the granting of rights to subscribe for Shares, but shall not apply (with the exception of Article 6.5) to the issuance of Shares to a person exercising a right to subscribe for Shares previously granted. | |
6.7 | The body of the Company resolving to issue Shares shall stipulate the issue price and the other conditions of issuance in the resolution to issue. | |
6.8 | If the aggregate nominal value of the Shares to be issued has been announced and subscriptions are made for a lower aggregate nominal value, issuance for such lower aggregate nominal value shall only be effected if the conditions of issuance expressly allow so. | |
Article 7. Pre-emptive Rights. | ||
7.1 | Upon the issuance of Shares, each holder of ordinary Shares and each holder of class R Shares shall have pre-emptive rights in proportion to the aggregate nominal value of his Shares. Shares issued to holders of ordinary Shares shall be ordinary Shares; Shares issued to holders of class R Shares shall be class R Shares. Insofar as holders of class R Shares do not make use of their pre-emptive rights, no class R Shares shall be issued. A Shareholder shall not have a pre-emptive right in respect of Shares issued against a non-cash contribution. He shall also not have a pre-emptive right in respect of Shares issued to employees of the Company or of a Group Company. | |
7.2 | The issuance of Shares with pre-emptive rights and the period during which such rights can be exercised shall be announced in the Dutch State Gazette ( Staatscourant ) and in a nationally distributed daily newspaper. | |
7.3 | Pre-emptive rights can be exercised during a period of at least two weeks from the day of announcement in the Dutch State Gazette ( Staatscourant ). | |
7.4 | Prior to each single issuance, the pre-emptive rights may be restricted or excluded by a resolution of the General Meeting. However, with respect to an issue of Shares pursuant to a resolution of the Board, the pre-emptive rights can be restricted or excluded pursuant to a resolution of the Board if and insofar as that board is designated competent to do so by the General Meeting. The provisions of Articles 6.1, 6.2 and 6.3 shall apply by analogy. Such competence of the Board shall end on the date on which its competence to issue Shares ends, whatever the circumstances. | |
7.5 | A resolution of the General Meeting to restrict or exclude the pre-emptive rights or to designate another body of the Company competent to do so can only be adopted at the proposal of the Board. |
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7.6 | If a proposal is made to the General Meeting to restrict or exclude the pre-emptive rights, the reason for the proposal and the choice of the intended issue price must be set forth in the proposal in writing. | |||
7.7 | A resolution of the General Meeting to restrict or to exclude the pre-emptive rights or to designate another body of the Company competent to do so shall require a majority of not less than two-thirds of the votes cast, if less than one-half of the Companys issued capital is represented at the meeting. Within eight days after adoption of the resolution, the complete text thereof must be deposited at the office of the Commercial Register. | |||
7.8 | When rights are granted to subscribe for Shares, the Shareholders shall have pre-emptive rights in respect thereof; the foregoing provisions of this Article 7 shall apply by analogy. Shareholders shall have no pre-emptive rights in respect of Shares issued to a person exercising a right to subscribe for Shares previously granted. | |||
Article 8. Payment on Shares.
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8.1 | Upon issuance of a Share, the full nominal value thereof must be paid-up, as well as the difference between the two amounts if the Share is subscribed for at a higher price, without prejudice to the provisions of Section 2:80, subsection 2, of the Dutch Civil Code. | |||
8.2 | Payment for a Share must be made in cash insofar as no non-cash contribution has been agreed on. | |||
8.3 | The Board shall be allowed to enter into legal acts relating to non-cash contributions and the other legal acts referred to in Section 2:94 of the Dutch Civil Code without the prior approval of the General Meeting. | |||
8.4 | Payments for Shares and non-cash contributions shall furthermore be subject to the provisions of Sections 2:80, 2:80a, 2:80b and 2:94b of the Dutch Civil Code. | |||
CHAPTER V. OWN SHARES; REDUCTION OF THE ISSUED CAPITAL.
|
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Article 9. Own Shares.
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9.1 | When issuing Shares, the Company may not subscribe for its own Shares. | |||
9.2 | The Company shall be entitled to acquire its own fully paid-up Shares or depositary receipts thereof, provided that either no valuable consideration is given or that: | |||
(a) | the Companys equity after the deduction of the acquisition price, is not less than the sum of the paid-up and called-up part of the issued capital and the reserves which must be maintained by virtue of the law, and | |||
(b) | the nominal value of the Shares or depositary receipts thereof, which the Company acquires, holds, holds in pledge or which are held by a Subsidiary, does not exceed half of the Companys issued capital. | |||
For the purpose of applying the provision under (a), the amount of equity shown in the last adopted balance sheet, reduced by the acquisition price of |
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Shares or depositary receipts thereof and further reduced by distributions of profits or at the expense of reserves to others, which have become due from the Company and its Subsidiaries after the balance sheet date, shall be decisive. An acquisition in accordance with this Article 9.2 shall not be permitted, if more than six months have elapsed after the end of a financial year without the annual accounts having been adopted. | ||
9.3 | Acquisition for valuable consideration shall be permitted only if the General Meeting has authorized the Board to do so. Such authorization shall be valid for a period not exceeding eighteen months. The General Meeting shall stipulate in the authorization the number of Shares or depositary receipts thereof which may be acquired, the manner in which they may be acquired and the limits within which the price must be set. Furthermore, the approval of the Board shall be required for such acquisition. | |
9.4 | The Company may, without authorization by the General Meeting, acquire its own Shares or depositary receipts thereof for the purpose of transferring such Shares or depositary receipts to employees of the Company or of a Group Company under a scheme applicable to such employees, provided such Shares or depositary receipts thereof are quoted on the price list of a stock exchange. | |
9.5 | Articles 9.2 and 9.3 do not apply to Shares or depositary receipts thereof which the Company acquires by universal succession in title. | |
9.6 | In the General Meeting no voting rights may be exercised for any Share held by the Company or by a Subsidiary, nor for any Share for which the Company or a Subsidiary holds the depositary receipts. However, usufructuaries and pledgees of Shares owned by the Company or a Subsidiary are not excluded from exercising the voting rights, if the usufruct or pledge was created before the Share was owned by the Company or a Subsidiary. The Company or a Subsidiary may not exercise voting rights for Shares in respect of which it holds a usufruct or pledge. | |
9.7 | Unless the Board determines otherwise, any Shares held by the Company or by a Subsidiary or any Shares for which the Company or a Subsidiary hold the depositary receipts, shall not be included for the computation of the allocation and distribution of profits. | |
9.8 | The Board shall be authorized to alienate Shares held by the Company or depositary receipts thereof. | |
9.9 | Own Shares and depositary receipts thereof shall furthermore be subject to the provisions of Sections 2:89a, 2:95, 2:98, 2:98a, 2:98b, 2:98c, 2:98d and 2:118 of the Dutch Civil Code. | |
Article 10. Financial Assistance. | ||
The Company may not give loans, give security, guarantee the price, or in any other way answer to or bind itself either severally or jointly for or on behalf of third parties, with a view to a subscription for or an acquisition of Shares or depositary |
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15.4 and 15.5 shall be made generally accessible through the Companys website. | ||
15.4 | When a proposal or recommendation for appointment of a person as an executive member of the Board is made, the following particulars shall be stated: his age and the position he holds or has held, insofar as these are relevant for the performance of the duties of an executive member of the Board. The proposal or recommendation must state the reasons on which it is based. | |
15.5 | When a proposal or recommendation for appointment of a person as a non-executive member of the Board is made, the following particulars shall be stated: his age, his profession, the number of Shares he holds and the positions he holds or has held, insofar as these are relevant for the performance of the duties of a non-executive member of the Board. Furthermore, the names of the legal entities of which he is already a supervisory board member or a non-executive member of the board shall be indicated; if those include legal entities which belong to the same group, a reference of that group will be sufficient. The proposal or recommendation must state the reasons on which it is based. | |
15.6 | Each member of the Board may be suspended or dismissed at any time by the General Meeting. | |
15.7 | Each executive member of the Board can, at any time, be suspended by the Board. Such suspension may be discontinued by the General Meeting at any time. | |
15.8 | Any suspension may be extended one or more times, but may not last longer than three months in the aggregate. If at the end of that period no decision has been taken on termination of the suspension, or on dismissal, the suspension shall end. | |
15.9 | A member of the Board shall retire not later than on the day on which the first General Meeting of Shareholders is held following the lapse of three years since his appointment. The member of the Board shall retire periodically in accordance with a rotation plan to be drawn up by the Board. A member of the Board retiring pursuant to this Article 15.9 may be re-appointed. | |
15.10 | The Company shall pursue a policy in the field of the remuneration of the executive members of the Board. This policy is determined by the General Meeting; the non-executive members of the Board shall make a proposal with respect thereto. The remuneration policy shall contain at least the subjects described in Sections 2:383c through 2:283e of the Dutch Civil Code, to the extent these subjects concern the executive members of the Board. | |
The non-executive members of the Board shall establish the remuneration and further conditions of employment for each executive member of the |
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16
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19
20
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23
24
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44.3 |
Assets which remain after payment of the debts shall be transferred to the holders of ordinary Shares and the holders of class R
Shares in proportion to the nominal value of their shareholdings. |
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Exhibit 2.1
AMENDED AND RESTATED DEPOSIT AGREEMENT
by and among
REED ELSEVIER PLC
AND
CITIBANK, N.A.,
as Depositary,
AND
THE HOLDERS AND BENEFICIAL OWNERS OF
AMERICAN DEPOSITARY SHARES
ISSUED HEREUNDER
Dated as of August 1, 2014
TABLE OF CONTENTS
Page | ||||||
ARTICLE I DEFINITIONS |
|
|||||
Section 1.1 | ADS Record Date | 1 | ||||
Section 1.2 | Affiliate | 1 | ||||
Section 1.3 | American Depositary Receipt(s), ADR(s) and Receipt(s) | 2 | ||||
Section 1.4 | American Depositary Share(s) and ADS(s) | 2 | ||||
Section 1.5 | Applicant | 2 | ||||
Section 1.6 | Beneficial Owner | 3 | ||||
Section 1.7 | Certificated ADS(s) | 3 | ||||
Section 1.8 | Commission | 3 | ||||
Section 1.9 | Company | 3 | ||||
Section 1.10 | Custodian | 3 | ||||
Section 1.11 | Deliver and Delivery | 3 | ||||
Section 1.12 | Deposit Agreement | 4 | ||||
Section 1.13 | Depositary | 4 | ||||
Section 1.14 | Deposited Property | 4 | ||||
Section 1.15 | Deposited Securities | 4 | ||||
Section 1.16 | Dollars and $ | 4 | ||||
Section 1.17 | DTC | 4 | ||||
Section 1.18 | DTC Participant | 4 | ||||
Section 1.19 | Euroclear UK & Ireland | 5 | ||||
Section 1.20 | Exchange Act | 5 | ||||
Section 1.21 | Foreign Currency | 5 | ||||
Section 1.22 | Full Entitlement ADR(s), Full Entitlement ADS(s) and Full Entitlement Share(s) | 5 | ||||
Section 1.23 | Holder(s) | 5 | ||||
Section 1.24 | Original Deposit Agreement | 5 | ||||
Section 1.25 | Original Depositary | 5 | ||||
Section 1.26 | Partial Entitlement ADR(s), Partial Entitlement ADS(s) and Partial Entitlement Share(s) | 5 | ||||
Section 1.27 | Pre-Release Transaction | 5 | ||||
Section 1.28 | Principal Office | 5 | ||||
Section 1.29 | Registrar | 5 | ||||
Section 1.30 | Restricted Securities | 6 | ||||
Section 1.31 | Restricted ADR(s), Restricted ADS(s) and Restricted Shares | 6 | ||||
Section 1.32 | Securities Act | 6 | ||||
Section 1.33 | Share Registrar | 6 | ||||
Section 1.34 | Shares | 6 | ||||
Section 1.35 | Uncertificated ADS(s) | 6 | ||||
Section 1.36 |
United States and U.S. | 6 |
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ARTICLE II APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS; DEPOSIT OF SHARES; EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS |
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Section 2.1 | Appointment of Depositary | 7 | ||||
Section 2.2 | Form and Transferability of ADSs | 7 | ||||
Section 2.3 | Deposit of Shares | 9 | ||||
Section 2.4 | Registration and Safekeeping of Deposited Securities | 10 | ||||
Section 2.5 | Issuance of ADSs | 11 | ||||
Section 2.6 | Transfer, Combination and Split-up of ADRs | 11 | ||||
Section 2.7 | Surrender of ADSs and Withdrawal of Deposited Securities | 12 | ||||
Section 2.8 | Limitations on Execution and Delivery, Transfer, etc. of ADSs; Suspension of Delivery, Transfer, etc | 13 | ||||
Section 2.9 | Lost ADRs, etc | 14 | ||||
Section 2.10 | Cancellation and Destruction of Surrendered ADRs; Maintenance of Records | 14 | ||||
Section 2.11 | Escheatment | 14 | ||||
Section 2.12 | Partial Entitlement ADSs | 15 | ||||
Section 2.13 | Certificated/Uncertificated ADSs | 15 | ||||
Section 2.14 | Restricted ADSs | 17 | ||||
ARTICLE III CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS OF ADSs |
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Section 3.1 | Proofs, Certificates and Other Information | 18 | ||||
Section 3.2 | Liability for Taxes and Other Charges | 19 | ||||
Section 3.3 | Representations and Warranties on Deposit of Shares | 19 | ||||
Section 3.4 | Compliance with Information Requests | 19 | ||||
Section 3.5 | Ownership Restrictions | 20 | ||||
Section 3.6 | Reporting Obligations and Regulatory Approvals | 20 | ||||
ARTICLE IV THE DEPOSITED SECURITIES |
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Section 4.1 | Cash Distributions | 20 | ||||
Section 4.2 | Distribution in Shares | 21 | ||||
Section 4.3 | Elective Distributions in Cash or Shares | 22 | ||||
Section 4.4 | Distribution of Rights to Purchase Additional ADSs | 23 | ||||
Section 4.5 | Distributions Other Than Cash, Shares or Rights to Purchase Shares | 25 | ||||
Section 4.6 | Distributions with Respect to Deposited Securities in Bearer Form | 25 | ||||
Section 4.7 | Redemption | 26 | ||||
Section 4.8 | Conversion of Foreign Currency | 26 | ||||
Section 4.9 | Fixing of ADS Record Date | 27 | ||||
Section 4.10 | Voting of Deposited Securities | 28 | ||||
Section 4.11 | Changes Affecting Deposited Securities | 30 | ||||
Section 4.12 | Available Information | 30 |
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Section 4.13 | Reports | 30 | ||||
Section 4.14 | List of Holders | 31 | ||||
Section 4.15 |
Taxation | 31 | ||||
ARTICLE V THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY |
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Section 5.1 | Maintenance of Office and Transfer Books by the Registrar | 32 | ||||
Section 5.2 | Exoneration | 32 | ||||
Section 5.3 | Standard of Care | 33 | ||||
Section 5.4 | Resignation and Removal of the Depositary; Appointment of Successor Depositary | 34 | ||||
Section 5.5 | The Custodian | 35 | ||||
Section 5.6 | Notices and Reports | 35 | ||||
Section 5.7 | Issuance of Additional Shares, ADSs, etc | 36 | ||||
Section 5.8 | Indemnification | 37 | ||||
Section 5.9 | ADS Fees and Charges | 38 | ||||
Section 5.10 | Pre-Release Transactions | 39 | ||||
Section 5.11 | Restricted Securities Owners | 40 | ||||
ARTICLE VI AMENDMENT AND TERMINATION |
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Section 6.1 | Amendment/Supplement | 40 | ||||
Section 6.2 | Termination | 41 | ||||
ARTICLE VII MISCELLANEOUS |
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Section 7.1 | Counterparts | 42 | ||||
Section 7.2 | No Third-Party Beneficiaries | 42 | ||||
Section 7.3 | Severability | 42 | ||||
Section 7.4 | Holders and Beneficial Owners as Parties; Binding Effect | 42 | ||||
Section 7.5 | Notices | 42 | ||||
Section 7.6 | Governing Law and Jurisdiction | 43 | ||||
Section 7.7 | Assignment | 45 | ||||
Section 7.8 | Compliance with U.S. Securities Laws | 45 | ||||
Section 7.9 | English Law References | 45 | ||||
Section 7.10 | Titles and References | 45 | ||||
Section 7.11 | Amendment and Restatement | 46 | ||||
EXHIBITS | ||||||
Form of ADR. | A-1 | |||||
Fee Schedule. | B-1 |
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AMENDED AND RESTATED DEPOSIT AGREEMENT
AMENDED AND RESTATED DEPOSIT AGREEMENT , dated as of August 1, 2014, by and among (i) REED ELSEVIER PLC, incorporated under the laws of England, and its successors (the Company), (ii) CITIBANK, N.A., a national banking association organized under the laws of the United States of America acting in its capacity as depositary, and any successor depositary hereunder (the Depositary), and (iii) all Holders and Beneficial Owners of American Depositary Shares issued hereunder (all such capitalized terms as hereinafter defined).
W I T N E S S E T H T H A T:
WHEREAS, the Company and The Bank of New York (the Original Depositary) previously entered into a Deposit Agreement, dated as of December 17, 2007 (the Original Deposit Agreement); and
WHEREAS, the Company desires to amend and restate the Original Deposit Agreement and to transfer to the Depositary the ADR facility currently existing under the Original Deposit Agreement; and
WHEREAS , the Depositary is willing to act as the Depositary for such ADR facility upon the terms set forth in the Deposit Agreement (as hereinafter defined); and
WHEREAS , any American Depositary Receipts issued pursuant to the terms of the Deposit Agreement are to be substantially in the form of Exhibit A attached hereto, with appropriate insertions, modifications and omissions, as hereinafter provided in the Deposit Agreement; and
WHEREAS, the Shares are listed on the London Stock Exchange and American Depositary Shares to be issued pursuant to the terms of the Deposit Agreement are to be listed for trading on The New York Stock Exchange, Inc.; and
NOW, THEREFORE , for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
All capitalized terms used, but not otherwise defined, herein shall have the meanings set forth below, unless otherwise clearly indicated:
Section 1.1 ADS Record Date shall have the meaning given to such term in Section 4.9.
Section 1.2 Affiliate shall have the meaning assigned to such term by the Commission (as hereinafter defined) under Regulation C promulgated under the Securities Act (as hereinafter defined), or under any successor regulation thereto.
Section 1.3 American Depositary Receipt(s) , ADR(s) and Receipt(s) shall mean the certificate(s) issued by the Depositary to evidence the American Depositary Shares issued under the terms of the Deposit Agreement in the form of Certificated ADS(s) (as hereinafter defined), as such ADRs may be amended from time to time in accordance with the provisions of the Deposit Agreement. An ADR may evidence any number of ADSs and may, in the case of ADSs held through a central depository such as DTC, be in the form of a Balance Certificate. Notwithstanding anything else contained herein or therein, the American depositary receipts issued and outstanding under the terms of the Original Deposit Agreement shall, from and after the date hereof, be treated as ADRs issued hereunder and shall, from and after the date hereof, be subject to the terms hereof in all respects.
Section 1.4 American Depositary Share(s) and ADS(s) shall mean the rights and interests in the Deposited Property (as hereinafter defined) granted to the Holders and Beneficial Owners pursuant to the terms and conditions of the Deposit Agreement and, if issued as Certificated ADS(s) (as hereinafter defined), the ADR(s) issued to evidence such ADSs. ADS(s) may be issued under the terms of the Deposit Agreement in the form of (a) Certificated ADS(s) (as hereinafter defined), in which case the ADS(s) are evidenced by ADR(s), or (b) Uncertificated ADS(s) (as hereinafter defined), in which case the ADS(s) are not evidenced by ADR(s) but are reflected on the direct registration system maintained by the Depositary for such purposes under the terms of Section 2.13. Unless otherwise specified in the Deposit Agreement or in any ADR, or unless the context otherwise requires, any reference to ADS(s) shall include Certificated ADS(s) and Uncertificated ADS(s), individually or collectively, as the context may require. Each ADS shall represent the right to receive, and to exercise the beneficial ownership interests in, the number of Shares specified in the form of ADR attached hereto as Exhibit A (as amended from time to time) that are on deposit with the Depositary and/or the Custodian, subject, in each case, to the terms and conditions of the Deposit Agreement and the applicable ADR (if issued as a Certificated ADS), until there shall occur a distribution upon Deposited Securities referred to in Section 4.2 or a change in Deposited Securities referred to in Section 4.11 with respect to which additional ADSs are not issued, and thereafter each ADS shall represent the right to receive, and to exercise the beneficial ownership interests in, the applicable Deposited Property on deposit with the Depositary and the Custodian determined in accordance with the terms of such Sections, subject, in each case, to the terms and conditions of the Deposit Agreement and the applicable ADR (if issued as a Certificated ADS). American depositary shares outstanding under the Original Deposit Agreement as of the date hereof shall, from and after the date hereof, for all purposes be treated as American Depositary Shares issued and outstanding hereunder and shall, from and after the date hereof, be subject to the terms and conditions of the Deposit Agreement in all respects, except that any amendment of the Original Deposit Agreement effected under the terms of the Deposit Agreement which prejudices any substantial existing right of Owners (as defined in the Original Deposit Agreement) or holders of American depositary shares shall not become effective as to Owners and holders of American depositary shares until the expiration of thirty (30) days after notice of the amendments effected by the Deposit Agreement shall have been given to the Owners of American depositary shares outstanding under the Original Deposit Agreement as of the date hereof.
Section 1.5 Applicant shall have the meaning given to such term in Section 5.10.
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Section 1.6 Beneficial Owner shall mean, as to any ADS, any person or entity having a beneficial interest deriving from the ownership of such ADS. Notwithstanding anything else contained in the Deposit Agreement, any ADR(s) or any other instruments or agreements relating to the ADSs and the corresponding Deposited Property, the Depositary, the Custodian and their respective nominees are intended to be, and shall at all times during the term of the Deposit Agreement be, the record holders only of the Deposited Property represented by the ADSs for the benefit of the Holders and Beneficial Owners of the corresponding ADSs. The Depositary, on its own behalf and on behalf of the Custodian and their respective nominees, disclaims any beneficial ownership interest in the Deposited Property held on behalf of the Holders and Beneficial Owners of ADSs. The beneficial ownership interests in the Deposited Property are intended to be, and shall at all times during the term of the Deposit Agreement continue to be, vested in the Beneficial Owners of the ADSs representing the Deposited Property. The beneficial ownership interests in the Deposited Property shall, unless otherwise agreed by the Depositary, be exercisable by the Beneficial Owners of the ADSs only through the Holders of such ADSs, by the Holders of the ADSs (on behalf of the applicable Beneficial Owners) only through the Depositary, and by the Depositary (on behalf of the Holders and Beneficial Owners of the corresponding ADSs) directly, or indirectly through the Custodian or their respective nominees, in each case upon the terms of the Deposit Agreement and, if applicable, the terms of the ADR(s) evidencing the ADSs. A Beneficial Owner of ADSs may or may not be the Holder of such ADSs. A Beneficial Owner shall be able to exercise any right or receive any benefit hereunder solely through the person who is the Holder of the ADSs owned by such Beneficial Owner. Unless otherwise identified to the Depositary, a Holder shall be deemed to be the Beneficial Owner of all the ADSs registered in his/her/its name. Persons who own beneficial interests in the American depositary shares issued under the terms of the Original Deposit Agreement and outstanding as of the date hereof shall, from and after the date hereof, be treated as Beneficial Owners of ADS(s) under the terms hereof.
Section 1.7 Certificated ADS(s) shall have the meaning set forth in Section 2.13.
Section 1.8 Commission shall mean the Securities and Exchange Commission of the United States or any successor governmental agency thereto in the United States.
Section 1.9 Company shall mean Reed Elsevier PLC, a company incorporated and existing under the laws of England, and its successors.
Section 1.10 Custodian shall mean (i) as of the date hereof, Citibank, N.A. - London, having its principal office at Citigroup Centre Canary Wharf, London, E14 5LB, as the custodian of Deposited Property for the purposes of the Deposit Agreement, (ii) Citibank, N.A., acting as custodian of Deposited Property pursuant to the Deposit Agreement, and (iii) any other entity that may be appointed by the Depositary pursuant to the terms of Section 5.5 as successor, substitute or additional custodian hereunder. The term Custodian shall mean any Custodian individually or all Custodians collectively, as the context requires.
Section 1.11 Deliver and Delivery shall mean (x) when used in respect of Shares and other Deposited Securities, either (i) the physical delivery of the certificate(s) representing such securities, or (ii) the book-entry transfer and recordation of such securities on the books of the Share Registrar (as hereinafter defined) or in the book-entry settlement of Euroclear UK &
3
Ireland, and (y) when used in respect of ADSs, either (i) the physical delivery of ADR(s) evidencing the ADSs, or (ii) the book-entry transfer and recordation of ADSs on the books of the Depositary or any book-entry settlement system in which the ADSs are settlement-eligible.
Section 1.12 Deposit Agreement shall mean this Amended and Restated Deposit Agreement and all exhibits hereto, as the same may from time to time be amended and supplemented from time to time in accordance with the terms of the Deposit Agreement.
Section 1.13 Depositary shall mean Citibank, N.A., a national banking association organized under the laws of the United States, in its capacity as depositary under the terms of the Deposit Agreement, and any successor depositary hereunder.
Section 1.14 Deposited Property shall mean the Deposited Securities and any cash and other property held on deposit by the Depositary and the Custodian in respect of the ADSs under the terms of the Deposit Agreement, subject, in the case of cash, to the provisions of Section 4.8. All Deposited Property shall be held by Custodian, the Depositary and their respective nominees for the benefit of the Holders and Beneficial Owners of the ADSs representing the Deposited Property. The Deposited Property is not intended to, and shall not, constitute proprietary assets of the Depositary, the Custodian or their nominees. Beneficial ownership in the Deposited Property is intended to be, and shall at all times during the term of the Deposit Agreement continue to be, vested in the Beneficial Owners of the ADSs representing the Deposited Property. Notwithstanding the foregoing, the collateral delivered in connection with Pre-Release Transactions described in Section 5.10 shall not constitute Deposited Property.
Notwithstanding anything else contained herein, the securities, cash and other property delivered to the Custodian and the Depositary in respect of American depositary shares outstanding as of the date hereof under the Original Deposit Agreement and defined as Deposited Securities thereunder shall, for all purposes from and after the date hereof, be considered to be, and treated as, Deposited Property hereunder in all respects.
Section 1.15 Deposited Securities shall mean the Shares and any other securities held on deposit by the Custodian from time to time in respect of the ADSs under the Deposit Agreement and constituting Deposited Property.
Section 1.16 Dollars and $ shall refer to the lawful currency of the United States.
Section 1.17 DTC shall mean The Depository Trust Company, a national clearinghouse and the central book-entry settlement system for securities traded in the United States and, as such, the custodian for the securities of DTC Participants (as hereinafter defined) maintained in DTC, and any successor thereto.
Section 1.18 DTC Participant shall mean any financial institution (or any nominee of such institution) having one or more participant accounts with DTC for receiving, holding and delivering the securities and cash held in DTC. A DTC Participant may or may not be a Beneficial Owner. If a DTC Participant is not the Beneficial Owner of the ADSs credited to its account at DTC, or of the ADSs in respect of which the DTC Participant is otherwise acting, such DTC Participant shall be deemed, for all purposes hereunder, to have all requisite authority to act on behalf of the Beneficial Owner(s) of the ADSs credited to its account at DTC or in respect of which the DTC Participant is so acting.
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Section 1.19 Euroclear UK & Ireland shall mean Euroclear UK & Ireland Limited, which provides the book entry settlement system for equity securities in England and Wales, and any successor entity thereto.
Section 1.20 Exchange Act shall mean the United States Securities Exchange Act of 1934, as amended from time to time.
Section 1.21 Foreign Currency shall mean any currency other than Dollars.
Section 1.22 Full Entitlement ADR(s) , Full Entitlement ADS(s) and Full Entitlement Share(s) shall have the respective meanings set forth in Section 2.12.
Section 1.23 Holder(s) shall mean the person(s) in whose name the ADSs are registered on the books of the Depositary (or the Registrar, if any) maintained for such purpose. A Holder may or may not be a Beneficial Owner. If a Holder is not the Beneficial Owner of the ADS(s) registered in its name, such person shall be deemed, for all purposes hereunder, to have all requisite authority to act on behalf of the Beneficial Owners of the ADSs registered in its name. The Owners (as defined in the Original Deposit Agreement) of American depositary shares issued under the terms of the Original Deposit Agreement and outstanding as of the date hereof shall from and after the date hereof, become Holders under the terms of the Deposit Agreement.
Section 1.24 Original Deposit Agreement shall have the meaning given to such term in the preambles to the Deposit Agreement.
Section 1.25 Original Depositary shall have the meaning given to such term in the preambles to the Deposit Agreement.
Section 1.26 Partial Entitlement ADR(s) , Partial Entitlement ADS(s) and Partial Entitlement Share(s) shall have the respective meanings set forth in Section 2.12.
Section 1.27 Pre-Release Transaction shall have the meaning set forth in Section 5.10.
Section 1.28 Principal Office shall mean, when used with respect to the Depositary, the principal office of the Depositary at which at any particular time its depositary receipts business shall be administered, which, at the date of the Deposit Agreement, is located at 388 Greenwich Street, New York, New York 10013, U.S.A.
Section 1.29 Registrar shall mean the Depositary or any bank or trust company having an office in the Borough of Manhattan, The City of New York, which shall be appointed by the Depositary to register issuances, transfers and cancellations of ADSs as herein provided, and shall include any co-registrar appointed by the Depositary for such purposes. Registrars (other than the Depositary) may be removed and substitutes appointed by the Depositary. Each Registrar (other than the Depositary) appointed pursuant to the Deposit Agreement shall be required to give notice in writing to the Depositary accepting such appointment and agreeing to be bound by the applicable terms of the Deposit Agreement.
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Section 1.30 Restricted Securities shall mean Shares, Deposited Securities or ADSs which (i) have been acquired directly or indirectly from the Company or any of its Affiliates in a transaction or chain of transactions not involving any public offering and are subject to resale limitations under the Securities Act or the rules issued thereunder, or (ii) are held by an executive officer or director (or persons performing similar functions) or other Affiliate of the Company, or (iii) are subject to other restrictions on sale or deposit under the laws of the United States, England, or under a shareholder agreement or the Articles of Association of the Company or under the regulations of an applicable securities exchange unless, in each case, such Shares, Deposited Securities or ADSs are being transferred or sold to persons other than an Affiliate of the Company in a transaction (a) covered by an effective resale registration statement, or (b) exempt from the registration requirements of the Securities Act (as hereinafter defined), and the Shares, Deposited Securities or ADSs are not, when held by such person(s), Restricted Securities.
Section 1.31 Restricted ADR(s) , Restricted ADS(s) and Restricted Shares shall have the respective meanings set forth in Section 2.14.
Section 1.32 Securities Act shall mean the United States Securities Act of 1933, as amended from time to time.
Section 1.33 Share Registrar shall mean Equiniti Limited or any other entity appointed by the Company to carry out the duties of registrar for the Shares, and any successor thereto.
Section 1.34 Shares shall mean the Companys ordinary shares, of 14 51/116 p each, validly issued and outstanding and fully paid and may, if the Depositary so agrees after consultation with the Company, include evidence of the right to receive Shares; provided that in no event shall Shares include evidence of the right to receive Shares with respect to which the full purchase price has not been paid or Shares as to which preemptive rights have theretofore not been validly waived or exercised; provided further , however , that , if there shall occur any change in nominal value, split-up, consolidation, reclassification, exchange, conversion or any other event described in Section 4.11 in respect of the Shares of the Company, the term Shares shall thereafter, to the maximum extent permitted by law, represent the successor securities resulting from such event.
Section 1.35 Uncertificated ADS(s) and Uncertificated Restricted ADS(s): shall have the meanings set forth in Section 2.13 and Section 2.14, respectively.
Section 1.36 United States and U.S. shall have the meaning assigned to it in Regulation S as promulgated by the Commission under the Securities Act.
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ARTICLE II
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT OF SHARES; EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
Section 2.1 Appointment of Depositary . The Company hereby appoints the Depositary as depositary for the Deposited Property and hereby authorizes and directs the Depositary to act in accordance with the terms and conditions set forth in the Deposit Agreement and the applicable ADRs. Each Holder and each Beneficial Owner, upon acceptance of any ADSs (or any interest therein) issued in accordance with the terms and conditions of the Deposit Agreement or by continuing to hold, from and after the date hereof any American depositary shares issued and outstanding under the Original Deposit Agreement, shall be deemed for all purposes to (a) be a party to and bound by the terms of the Deposit Agreement and the applicable ADR(s), and (b) appoint the Depositary its attorney-in-fact, with full power to delegate, to act on its behalf and to take any and all actions contemplated in the Deposit Agreement and the applicable ADR(s), to adopt any and all procedures necessary to comply with applicable law and to take such action as the Depositary in its sole discretion may deem necessary or appropriate to carry out the purposes of the Deposit Agreement and the applicable ADR(s), the taking of such actions to be the conclusive determinant of the necessity and appropriateness thereof.
Section 2.2 Form and Transferability of ADSs .
(a) Form . Certificated ADSs shall be evidenced by definitive ADRs which shall be engraved, printed, lithographed or produced in such other manner as may be agreed upon by the Company and the Depositary. ADRs may be issued under the Deposit Agreement in denominations of any whole number of ADSs. The ADRs shall be substantially in the form set forth in Exhibit A to the Deposit Agreement, with any appropriate insertions, modifications and omissions, in each case as otherwise contemplated in the Deposit Agreement or required by law. ADRs shall be (i) dated, (ii) signed by the manual or facsimile signature of a duly authorized signatory of the Depositary, (iii) countersigned by the manual or facsimile signature of a duly authorized signatory of the Registrar, and (iv) registered in the books maintained by the Registrar for the registration of issuances and transfers of ADSs. No ADR and no Certificated ADS evidenced thereby shall be entitled to any benefits under the Deposit Agreement or be valid or enforceable for any purpose against the Depositary or the Company, unless such ADR shall have been so dated, signed, countersigned and registered (other than an American depositary receipt issued and outstanding as of the date hereof under the terms of the Original Deposit Agreement which from and after the date hereof becomes subject to the terms of the Deposit Agreement in all respects). ADRs bearing the facsimile signature of a duly-authorized signatory of the Depositary or the Registrar, who at the time of signature was a duly-authorized signatory of the Depositary or the Registrar, as the case may be, shall bind the Depositary, notwithstanding the fact that such signatory has ceased to be so authorized prior to the delivery of such ADR by the Depositary. The ADRs shall bear a CUSIP number that is different from any CUSIP number that was, is or may be assigned to any depositary receipts previously or subsequently issued pursuant to any other arrangement between the Depositary (or any other depositary) and the Company and which are not ADRs outstanding hereunder.
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(b) Legends . The ADRs may be endorsed with, or have incorporated in the text thereof, such legends or recitals not inconsistent with the provisions of the Deposit Agreement as may be (i) necessary to enable the Depositary and the Company to perform their respective obligations hereunder, (ii) required to comply with any applicable laws or regulations, or with the rules and regulations of any securities exchange or market upon which ADSs may be traded, listed or quoted, or to conform with any usage with respect thereto, (iii) necessary to indicate any special limitations or restrictions to which any particular ADRs or ADSs are subject by reason of the date of issuance of the Deposited Securities or otherwise, or (iv) required by any book-entry system in which the ADSs are held. Holders and Beneficial Owners shall be deemed, for all purposes, to have notice of, and to be bound by, the terms and conditions of the legends set forth, in the case of Holders, on the ADR registered in the name of the applicable Holders or, in the case of Beneficial Owners, on the ADR representing the ADSs owned by such Beneficial Owners.
(c) Title . Subject to the limitations contained herein and in the ADR, title to an ADR (and to each Certificated ADS evidenced thereby) shall be transferable upon the same terms as a certificated security under the laws of the State of New York, provided that, in the case of Certificated ADSs, such ADR has been properly endorsed or is accompanied by proper instruments of transfer. Notwithstanding any notice to the contrary, the Depositary and the Company may deem and treat the Holder of an ADS (that is, the person in whose name an ADS is registered on the books of the Depositary) as the absolute owner thereof for all purposes. Neither the Depositary nor the Company shall have any obligation nor be subject to any liability under the Deposit Agreement or any ADR to any holder or any Beneficial Owner unless, in the case of a holder of ADSs, such holder is the Holder registered on the books of the Depositary or, in the case of a Beneficial Owner, such Beneficial Owner, or the Beneficial Owners representative, is the Holder registered on the books of the Depositary.
(d) Book-Entry Systems . The Depositary shall make arrangements for the acceptance of the ADSs into DTC. All ADSs held through DTC will be registered in the name of the nominee for DTC (currently Cede & Co.). As such, the nominee for DTC will be the only Holder of all ADSs held through DTC. Unless issued by the Depositary as Uncertificated ADSs, the ADSs registered in the name of Cede & Co. will be evidenced by one or more ADR(s) in the form of a Balance Certificate, which will provide that it represents the aggregate number of ADSs from time to time indicated in the records of the Depositary as being issued hereunder and that the aggregate number of ADSs represented thereby may from time to time be increased or decreased by making adjustments on such records of the Depositary and of DTC or its nominee as hereinafter provided. Citibank, N.A. (or such other entity as is appointed by DTC or its nominee) may hold the Balance Certificate as custodian for DTC. Each Beneficial Owner of ADSs held through DTC must rely upon the procedures of DTC and the DTC Participants to exercise or be entitled to any rights attributable to such ADSs. The DTC Participants shall for all purposes be deemed to have all requisite power and authority to act on behalf of the Beneficial Owners of the ADSs held in the DTC Participants respective accounts in DTC and the Depositary shall for all purposes be authorized to rely upon any instructions and information given to it by DTC Participants. So long as ADSs are held through DTC or unless otherwise required by law, ownership of beneficial interests in the ADSs registered in the name of the nominee for DTC will be shown on, and transfers of such ownership will be effected only through, records maintained by (i) DTC or its nominee (with respect to the interests of DTC Participants), or (ii) DTC Participants or their nominees (with respect to the interests of clients of DTC Participants).
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Section 2.3 Deposit of Shares . Subject to the terms and conditions of the Deposit Agreement and applicable law, Shares or evidence of rights to receive Shares (other than Restricted Securities) may be deposited by any person (including the Depositary in its individual capacity but subject, however, in the case of the Company or any Affiliate of the Company, to Section 5.7) at any time, whether or not the transfer books of the Company or the Share Registrar, if any, are closed, by Delivery of the Shares to the Custodian. Every deposit of Shares shall be accompanied by the following: (A) (i) in the case of Shares represented by certificates issued in registered form, appropriate instruments of transfer or endorsement, in a form satisfactory to the Custodian, (ii) in the case of Shares represented by certificates in bearer form. the requisite coupons and talons pertaining thereto, and (iii) in the case of Shares delivered by book-entry transfer and recordation, confirmation of such book-entry transfer and recordation in the books of the Share Registrar or of Euroclear UK & Ireland, as applicable, to the Custodian or that irrevocable instructions have been given to cause such Shares to be so transferred and recorded, (B) such certifications and payments (including, without limitation, the Depositarys fees and related charges) and evidence of such payments (including, without limitation, stamping or otherwise marking such Shares by way of receipt) as may be required by the Depositary or the Custodian in accordance with the provisions of the Deposit Agreement and applicable law, (C) if the Depositary so requires, a written order directing the Depositary to issue and deliver to, or upon the written order of, the person(s) stated in such order the number of ADSs representing the Shares so deposited, (D) evidence satisfactory to the Depositary (which may be an opinion of counsel) that all necessary approvals have been granted by, or there has been compliance with the rules and regulations of, any applicable governmental agency in England, and (E) if the Depositary so requires, (i) an agreement, assignment or instrument satisfactory to the Depositary or the Custodian which provides for the prompt transfer by any person in whose name the Shares are or have been recorded to the Custodian of any distribution, or right to subscribe for additional Shares or to receive other property in respect of any such deposited Shares or, in lieu thereof, such indemnity or other agreement as shall be satisfactory to the Depositary or the Custodian and (ii) if the Shares are registered in the name of the person on whose behalf they are presented for deposit, a proxy or proxies entitling the Custodian to exercise voting rights in respect of the Shares for any and all purposes until the Shares so deposited are registered in the name of the Depositary, the Custodian or any nominee.
Without limiting any other provision of the Deposit Agreement, the Depositary shall instruct the Custodian not to, and the Depositary shall not knowingly, accept for deposit (a) any Restricted Securities except as contemplated by Section 2.14) nor (b) any fractional Shares or fractional Deposited Securities nor (c) a number of Shares or Deposited Securities which upon application of the ADS to Shares ratio would give rise to fractional ADSs. No Shares shall be accepted for deposit unless accompanied by evidence, if any is required by the Depositary, that is reasonably satisfactory to the Depositary or the Custodian that all conditions to such deposit have been satisfied by the person depositing such Shares under the laws and regulations of England and any necessary approval has been granted by any applicable governmental body in England, if any. The Depositary may issue ADSs against evidence of rights to receive Shares from the Company, any agent of the Company or any custodian, registrar, transfer agent, clearing agency or other entity involved in ownership or transaction records in respect of the Shares. Such
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evidence of rights shall consist of written blanket or specific guarantees of ownership of Shares furnished by the Company or any such custodian, registrar, transfer agent, clearing agency or other entity involved in ownership or transaction records in respect of the Shares.
Without limitation of the foregoing, the Depositary shall not knowingly accept for deposit under the Deposit Agreement (A) any Shares or other securities required to be registered under the provisions of the Securities Act, unless (i) a registration statement is in effect as to such Shares or other securities or (ii) the deposit is made upon terms contemplated in Section 2.14, or (B) any Shares or other securities the deposit of which would violate any provisions of the Articles of Association of the Company. For purposes of the foregoing sentence, the Depositary shall be entitled to rely upon representations and warranties made or deemed made pursuant to the Deposit Agreement and shall not be required to make any further investigation. The Depositary will comply with written instructions of the Company (received by the Depositary reasonably in advance) not to accept for deposit hereunder any Shares identified in such instructions at such times and under such circumstances as may reasonably be specified in such instructions in order to facilitate the Companys compliance with the securities laws of the United States.
Section 2.4 Registration and Safekeeping of Deposited Securities . The Depositary shall instruct the Custodian upon each Delivery of Shares being deposited hereunder with the Custodian (or other Deposited Securities pursuant to Article IV hereof), together with the other documents above specified, to present such Shares, together with the appropriate instrument(s) of transfer or endorsement, duly stamped, to the Share Registrar for transfer and registration of the Shares (as soon as transfer and registration can be accomplished and at the expense of the person for whom the deposit is made) in the name of the Depositary, the Custodian or a nominee of either. Deposited Securities shall be held by the Depositary, or by a Custodian for the account and to the order of the Depositary or a nominee of the Depositary, in each case, on behalf of the Holders and Beneficial Owners, at such place(s) as the Depositary or the Custodian shall determine. Notwithstanding anything else contained in the Deposit Agreement, any ADR(s), or any other instruments or agreements relating to the ADSs and the corresponding Deposited Property, the registration of the Deposited Securities in the name of the Depositary, the Custodian or any of their respective nominees, shall, to the maximum extent permitted by applicable law, vest in the Depositary, the Custodian or the applicable nominee the record ownership in the applicable Deposited Securities with the beneficial ownership rights and interests in such Deposited Securities being at all times vested with the Beneficial Owners of the ADSs representing the Deposited Securities. Notwithstanding the foregoing, the Depositary, the Custodian and the applicable nominee shall at all times be entitled to exercise the beneficial ownership rights in all Deposited Property, in each case only on behalf of the Holders and Beneficial Owners of the ADSs representing the Deposited Property, upon the terms set forth in the Deposit Agreement and, if applicable, the ADR(s) representing the ADSs. The Depositary, the Custodian and their respective nominees shall for all purposes be deemed to have all requisite power and authority to act in respect of Deposited Property on behalf of the Holders and Beneficial Owners of ADSs representing the Deposited Property, and upon making payments to, or acting upon instructions from, or information provided by, the Depositary, the Custodian or their respective nominees all persons shall be authorized to rely upon such power and authority.
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Section 2.5 Issuance of ADSs . The Depositary has made arrangements with the Custodian for the Custodian to confirm to the Depositary upon receipt of a deposit of Shares (i) that a deposit of Shares has been made pursuant to Section 2.3, (ii) that such Deposited Securities have been recorded in the name of the Depositary, the Custodian or a nominee of either on the shareholders register maintained by or on behalf of the Company by the Share Registrar on the books of Euroclear UK & Ireland, (iii) that all required documents have been received, and (iv) the person(s) to whom or upon whose order ADSs are deliverable in respect thereof and the number of ADSs to be so delivered. Such notification may be made by letter, cable, telex, SWIFT message or, at the risk and expense of the person making the deposit, by facsimile or other means of electronic transmission. Upon receiving such notice from the Custodian, the Depositary, subject to the terms and conditions of the Deposit Agreement and applicable law, shall issue the ADSs representing the Shares so deposited to or upon the order of the person(s) named in the notice delivered to the Depositary and, if applicable, shall execute and deliver at its Principal Office Receipt(s) registered in the name(s) requested by such person(s) and evidencing the aggregate number of ADSs to which such person(s) are entitled, but, in each case, only upon payment to the Depositary of the charges of the Depositary for accepting a deposit, issuing ADSs (as set forth in Section 5.9 and Exhibit B hereto) and all taxes and governmental charges and fees payable in connection with such deposit and the transfer of the Shares and the issuance of the ADS(s). The Depositary shall only issue ADSs in whole numbers and deliver, if applicable, ADR(s) evidencing whole numbers of ADSs. Nothing herein shall prohibit any Pre-Release Transaction upon the terms set forth in the Deposit Agreement.
Section 2.6 Transfer, Combination and Split-up of ADRs .
(a) Transfer . The Registrar shall register the transfer of ADRs (and of the ADSs represented thereby) on the books maintained for such purpose and the Depositary shall (x) cancel such ADRs and execute new ADRs evidencing the same aggregate number of ADSs as those evidenced by the ADRs canceled by the Depositary, (y) cause the Registrar to countersign such new ADRs and (z) Deliver such new ADRs to or upon the order of the person entitled thereto, if each of the following conditions has been satisfied: (i) the ADRs have been duly Delivered by the Holder (or by a duly authorized attorney of the Holder) to the Depositary at its Principal Office for the purpose of effecting a transfer thereof, (ii) the surrendered ADRs have been properly endorsed or are accompanied by proper instruments of transfer (including signature guarantees in accordance with standard securities industry practice), (iii) the surrendered ADRs have been duly stamped (if required by the laws of the State of New York or of the United States), and (iv) all applicable fees and charges of, and expenses incurred by, the Depositary and all applicable taxes and governmental charges (as are set forth in Section 5.9 and Exhibit B hereto) have been paid, subject, however, in each case, to the terms and conditions of the applicable ADRs, of the Deposit Agreement and of applicable law, in each case as in effect at the time thereof.
(b) Combination & Split-Up . The Registrar shall register the split-up or combination of ADRs (and of the ADSs represented thereby) on the books maintained for such purpose and the Depositary shall (x) cancel such ADRs and execute new ADRs for the number of ADSs requested, but in the aggregate not exceeding the number of ADSs evidenced by the ADRs canceled by the Depositary, (y) cause the Registrar to countersign such new ADRs and (z) Deliver such new ADRs to or upon the order of the Holder thereof, if each of the following
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conditions has been satisfied: (i) the ADRs have been duly Delivered by the Holder (or by a duly authorized attorney of the Holder) to the Depositary at its Principal Office for the purpose of effecting a split-up or combination thereof, and (ii) all applicable fees and charges of, and expenses incurred by, the Depositary and all applicable taxes and governmental charges (as are set forth in Section 5.9 and Exhibit B hereto) have been paid, subject, however, in each case, to the terms and conditions of the applicable ADRs, of the Deposit Agreement and of applicable law, in each case as in effect at the time thereof.
(c) Co-Transfer Agents . The Depositary may appoint one or more co-transfer agents for the purpose of effecting transfers, combinations and split-ups of ADRs at designated transfer offices on behalf of the Depositary. In carrying out its functions, a co-transfer agent may require evidence of authority and compliance with applicable laws and other requirements by Holders or persons entitled to such ADRs and will be entitled to protection and indemnity to the same extent as the Depositary. Such co-transfer agents may be removed and substitutes appointed by the Depositary. Each co-transfer agent appointed under this Section 2.6 (other than the Depositary) shall give notice in writing to the Depositary accepting such appointment and agreeing to be bound by the applicable terms of the Deposit Agreement.
Section 2.7 Surrender of ADSs and Withdrawal of Deposited Securities . The Holder of ADSs shall be entitled to Delivery (at the Custodians designated office) of the Deposited Securities at the time represented by the ADSs upon satisfaction of each of the following conditions: (i) the Holder (or a duly-authorized attorney of the Holder) has duly Delivered ADSs to the Depositary at its Principal Office (and if applicable, the ADRs evidencing such ADSs) for the purpose of withdrawal of the Deposited Securities represented thereby, (ii) if applicable and so required by the Depositary, the ADRs Delivered to the Depositary for such purpose have been properly endorsed in blank or are accompanied by proper instruments of transfer in blank (including signature guarantees in accordance with standard securities industry practice), (iii) if so required by the Depositary, the Holder of the ADSs has executed and delivered to the Depositary a written order directing the Depositary to cause the Deposited Securities being withdrawn to be Delivered to or upon the written order of the person(s) designated in such order, and (iv) all applicable fees and charges of, and expenses incurred by, the Depositary and all applicable taxes and governmental charges (as are set forth in Section 5.9 and Exhibit B ) have been paid, subject, however, in each case , to the terms and conditions of the ADRs evidencing the surrendered ADSs, of the Deposit Agreement, of the Companys Articles of Association and of any applicable laws and the rules of Euroclear UK & Ireland, and to any provisions of or governing the Deposited Securities , in each case as in effect at the time thereof.
Upon satisfaction of each of the conditions specified above, the Depositary (i) shall cancel the ADSs Delivered to it (and, if applicable, the ADR(s) evidencing the ADSs so Delivered), (ii) shall direct the Registrar to record the cancellation of the ADSs so Delivered on the books maintained for such purpose, and (iii) shall direct the Custodian to Deliver, or cause the Delivery of, in each case, without unreasonable delay, the Deposited Securities represented by the ADSs so canceled together with any certificate or other document of title for the Deposited Securities, or evidence of the electronic transfer thereof (if available), as the case may be, to or upon the written order of the person(s) designated in the order delivered to the Depositary for such purpose, subject however, in each case, to the terms and conditions of the Deposit Agreement, of the ADRs evidencing the ADSs so canceled, of the Articles of
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Association of the Company, of any applicable laws and of the rules of Euroclear UK & Ireland, and to the terms and conditions of or governing the Deposited Securities, in each case as in effect at the time thereof.
The Depositary shall not accept for surrender ADSs representing less than one (1) Share. In the case of Delivery to it of ADSs representing a number other than a whole number of Shares, the Depositary shall cause ownership of the appropriate whole number of Shares to be Delivered in accordance with the terms hereof, and shall, at the discretion of the Depositary, either (i) return to the person surrendering such ADSs the number of ADSs representing any remaining fractional Share, or (ii) sell or cause to be sold the fractional Share represented by the ADSs so surrendered and remit the proceeds of such sale (net of (a) applicable fees and charges of, and expenses incurred by, the Depositary and (b) taxes withheld) to the person surrendering the ADSs.
Notwithstanding anything else contained in any ADR or the Deposit Agreement, the Depositary may make delivery at the Principal Office of the Depositary of Deposited Property consisting of (i) any cash dividends or cash distributions, or (ii) any proceeds from the sale of any non-cash distributions, which are at the time held by the Depositary in respect of the Deposited Securities represented by the ADSs surrendered for cancellation and withdrawal. At the request, risk and expense of any Holder so surrendering ADSs, and for the account of such Holder, the Depositary shall direct the Custodian to forward (to the extent permitted by law) any Deposited Property (other than Deposited Securities) held by the Custodian in respect of such ADSs to the Depositary for delivery at the Principal Office of the Depositary. Such direction shall be given by letter or, at the request, risk and expense of such Holder, by cable, telex or facsimile transmission.
Section 2.8 Limitations on Execution and Delivery, Transfer, etc. of ADSs; Suspension of Delivery, Transfer, etc.
(a) Additional Requirements . As a condition precedent to the execution and delivery, the registration of issuance, transfer, split-up, combination or surrender, of any ADS, the delivery of any distribution thereon, or the withdrawal of any Deposited Property, the Depositary or the Custodian may require (i) payment from the depositor of Shares or presenter of ADSs or of an ADR of a sum sufficient to reimburse it for any tax or other governmental charge and any stock transfer or registration fee with respect thereto (including any such tax or charge and fee with respect to Shares being deposited or withdrawn) and payment of any applicable fees and charges of the Depositary as provided in Section 5.9 and Exhibit B , (ii) the production of proof satisfactory to it as to the identity and genuineness of any signature or any other matter contemplated by Section 3.1, and (iii) compliance with (A) any laws or governmental regulations relating to the execution and delivery of ADRs or ADSs or to the withdrawal of Deposited Securities and (B) such reasonable regulations as the Depositary and the Company may establish consistent with the provisions of the representative ADR, if applicable, the Deposit Agreement and applicable law.
(b) Additional Limitations . The issuance of ADSs against deposits of Shares generally or against deposits of particular Shares may be suspended, or the deposit of particular Shares may be refused, or the registration of transfer of ADSs in particular instances may be
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refused, or the registration of transfers of ADSs generally may be suspended, during any period when the transfer books of the Company, the Depositary, a Registrar or the Share Registrar are closed or if any such action is deemed necessary or advisable by the Depositary or the Company, in good faith, at any time or from time to time because of any requirement of law or regulation, any government or governmental body or commission or any securities exchange on which the ADSs or Shares are listed, or under any provision of the Deposit Agreement or the representative ADR(s), if applicable, or under any provision of, or governing, the Deposited Securities, or because of a meeting of shareholders of the Company or for any other reason, subject, in all cases, to Section 7.8.
(c) Regulatory Restrictions . Notwithstanding any provision of the Deposit Agreement or any ADR(s) to the contrary, Holders are entitled to surrender outstanding ADSs to withdraw the Deposited Securities associated herewith at any time subject only to (i) temporary delays caused by closing the transfer books of the Depositary or the Company or the deposit of Shares in connection with voting at a shareholders meeting or the payment of dividends, (ii) the payment of fees, taxes and similar charges, (iii) compliance with any U.S. or foreign laws or governmental regulations relating to the ADSs or to the withdrawal of the Deposited Securities, and (iv) other circumstances specifically contemplated by Instruction I.A.(l) of the General Instructions to Form F-6 (as such General Instructions may be amended from time to time).
Section 2.9 Lost ADRs, etc. In case any ADR shall be mutilated, destroyed, lost, or stolen, the Depositary shall execute and deliver a new ADR of like tenor at the expense of the Holder (a) in the case of a mutilated ADR, in exchange of and substitution for such mutilated ADR upon cancellation thereof, or (b) in the case of a destroyed, lost or stolen ADR, in lieu of and in substitution for such destroyed, lost, or stolen ADR, after the Holder thereof (i) has submitted to the Depositary a written request for such exchange and substitution before the Depositary has notice that the ADR has been acquired by a bona fide purchaser, (ii) has provided such security or indemnity (including an indemnity bond) as may be required by the Depositary to save it and any of its agents harmless, and (iii) has satisfied any other reasonable requirements imposed by the Depositary, including, without limitation, evidence satisfactory to the Depositary of such destruction, loss or theft of such ADR, the authenticity thereof and the Holders ownership thereof.
Section 2.10 Cancellation and Destruction of Surrendered ADRs; Maintenance of Records . All ADRs surrendered to the Depositary shall be canceled by the Depositary. Canceled ADRs shall not be entitled to any benefits under the Deposit Agreement or be valid or enforceable against the Depositary for any purpose. The Depositary is authorized to destroy ADRs so canceled, provided the Depositary maintains a record of all destroyed ADRs. Any ADSs held in book-entry form ( i.e. , through accounts at DTC) shall be deemed canceled when the Depositary causes the number of ADSs evidenced by the Balance Certificate to be reduced by the number of ADSs surrendered (without the need to physically destroy the Balance Certificate). .
Section 2.11 Escheatment . In the event any unclaimed property relating to the ADSs, for any reason, is in the possession of Depositary and has not been claimed by the Holder thereof or cannot be delivered to the Holder thereof through usual channels, the Depositary shall, upon expiration of any applicable statutory period relating to abandoned property laws, escheat such unclaimed property to the relevant authorities in accordance with the laws of each of the relevant States of the United States.
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Section 2.12 Partial Entitlement ADSs . In the event any Shares are deposited which (i) entitle the holders thereof to receive a per-share distribution or other entitlement in an amount different from the Shares then on deposit or (ii) are not fully fungible (including, without limitation, as to settlement or trading) with the Shares then on deposit (the Shares then on deposit collectively, Full Entitlement Shares and the Shares with different entitlement, Partial Entitlement Shares ), the Depositary shall (i) cause the Custodian to hold Partial Entitlement Shares separate and distinct from Full Entitlement Shares, and (ii) subject to the terms of the Deposit Agreement, issue ADSs representing Partial Entitlement Shares which are separate and distinct from the ADSs representing Full Entitlement Shares, by means of separate CUSIP numbering and legending (if necessary) and, if applicable, by issuing ADRs evidencing such ADSs with applicable notations thereon ( Partial Entitlement ADSs/ADRs and Full Entitlement ADSs/ADRs , respectively). If and when Partial Entitlement Shares become Full Entitlement Shares, the Depositary shall (a) give notice thereof to Holders of Partial Entitlement ADSs and give Holders of Partial Entitlement ADRs the opportunity to exchange such Partial Entitlement ADRs for Full Entitlement ADRs, (b) cause the Custodian to transfer the Partial Entitlement Shares into the account of the Full Entitlement Shares, and (c) take such actions as are necessary to remove the distinctions between (i) the Partial Entitlement ADRs and ADSs, on the one hand, and (ii) the Full Entitlement ADRs and ADSs on the other. Holders and Beneficial Owners of Partial Entitlement ADSs shall only be entitled to the entitlements of Partial Entitlement Shares. Holders and Beneficial Owners of Full Entitlement ADSs shall be entitled only to the entitlements of Full Entitlement Shares. All provisions and conditions of the Deposit Agreement shall apply to Partial Entitlement ADRs and ADSs to the same extent as Full Entitlement ADRs and ADSs, except as contemplated by this Section 2.12. The Depositary is authorized to take any and all other actions as may be necessary (including, without limitation, making the necessary notations on ADRs) to give effect to the terms of this Section 2.12. The Company agrees to give timely written notice to the Depositary if any Shares issued or to be issued are Partial Entitlement Shares and shall assist the Depositary with the establishment of procedures enabling the identification of Partial Entitlement Shares upon Delivery to the Custodian.
Section 2.13 Certificated/Uncertificated ADSs . Notwithstanding any other provision of the Deposit Agreement, the Depositary may, at any time and from time to time, issue ADSs that are not evidenced by ADRs (such ADSs, the Uncertificated ADS(s) and the ADS(s) evidenced by ADR(s), the Certificated ADS(s) ). When issuing and maintaining Uncertificated ADS(s) under the Deposit Agreement, the Depositary shall at all times be subject to (i) the standards applicable to registrars and transfer agents maintaining direct registration systems for equity securities in New York and issuing uncertificated securities under New York law, and (ii) the terms of New York law applicable to uncertificated equity securities. Uncertificated ADSs shall not be represented by any instruments but shall be evidenced by registration in the books of the Depositary maintained for such purpose. Holders of Uncertificated ADSs, that are not subject to any registered pledges, liens, restrictions or adverse claims of which the Depositary has notice at such time, shall at all times have the right to exchange the Uncertificated ADS(s) for Certificated ADS(s) of the same type and class, subject in each case to applicable laws and any rules and regulations the Depositary may have established in respect of
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the Uncertificated ADSs. Holders of Certificated ADSs shall, if the Depositary maintains a direct registration system for the ADSs, have the right to exchange the Certificated ADSs for Uncertificated ADSs upon (i) the due surrender of the Certificated ADS(s) to the Depositary for such purpose and (ii) the presentation of a written request to that effect to the Depositary, subject in each case to (a) all liens and restrictions noted on the ADR evidencing the Certificated ADS(s) and all adverse claims of which the Depositary then has notice, (b) the terms of the Deposit Agreement and the rules and regulations that the Depositary may establish for such purposes hereunder, (c) applicable law, and (d) payment of the Depositary fees and expenses applicable to such exchange of Certificated ADS(s) for Uncertificated ADS(s). Uncertificated ADSs shall in all material respects be identical to Certificated ADS(s) of the same type and class, except that (i) no ADR(s) shall be, or shall need to be, issued to evidence Uncertificated ADS(s), (ii) Uncertificated ADS(s) shall, subject to the terms of the Deposit Agreement, be transferable upon the same terms and conditions as uncertificated securities under New York law, (iii) the ownership of Uncertificated ADS(s) shall be recorded on the books of the Depositary maintained for such purpose and evidence of such ownership shall be reflected in periodic statements provided by the Depositary to the Holder(s) in accordance with applicable New York law, (iv) the Depositary may from time to time, upon notice to the Holders of Uncertificated ADSs affected thereby, establish rules and regulations, and amend or supplement existing rules and regulations, as may be deemed reasonably necessary to maintain Uncertificated ADS(s) on behalf of Holders, provided that (a) such rules and regulations do not conflict with the terms of the Deposit Agreement and applicable law, and (b) the terms of such rules and regulations are readily available to Holders upon request, (v) the Uncertificated ADS(s) shall not be entitled to any benefits under the Deposit Agreement or be valid or enforceable for any purpose against the Depositary or the Company unless such Uncertificated ADS(s) is/are registered on the books of the Depositary maintained for such purpose, (vi) the Depositary may, in connection with any deposit of Shares resulting in the issuance of Uncertificated ADSs and with any transfer, pledge, release and cancellation of Uncertificated ADSs, require the prior receipt of such documentation as the Depositary may deem reasonably appropriate, and (vii) upon termination of the Deposit Agreement, the Depositary shall not require Holders of Uncertificated ADSs to affirmatively instruct the Depositary before remitting proceeds from the sale of the Deposited Property represented by such Holders Uncertificated ADSs under the terms of Section 6.2 of the Deposit Agreement. When issuing ADSs under the terms of the Deposit Agreement, including, without limitation, issuances pursuant to Sections 2.5, 4.2, 4.3, 4.4, 4.5 and 4.11, the Depositary may in its discretion determine to issue Uncertificated ADSs rather than Certificated ADSs, unless otherwise specifically instructed by the applicable Holder to issue Certificated ADSs. All provisions and conditions of the Deposit Agreement shall apply to Uncertificated ADSs to the same extent as to Certificated ADSs, except as contemplated by this Section 2.13. The Depositary is authorized and directed to take any and all actions and establish any and all procedures deemed reasonably necessary to give effect to the terms of this Section 2.13. Any references in the Deposit Agreement or any ADR(s) to the terms American Depositary Share(s) or ADS(s) shall, unless the context otherwise requires, include Certificated ADS(s) and Uncertificated ADS(s). Except as set forth in this Section 2.13 and except as required by applicable law, the Uncertificated ADSs shall be treated as ADSs issued and outstanding under the terms of the Deposit Agreement. In the event that, in determining the rights and obligations of parties hereto with respect to any Uncertificated ADSs, any conflict arises between (a) the terms of the Deposit Agreement (other than this Section 2.13) and (b) the terms of this Section 2.13, the terms and conditions set forth in this Section 2.13 shall be controlling and shall govern the rights and obligations of the parties to the Deposit Agreement pertaining to the Uncertificated ADSs.
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Section 2.14 Restricted ADSs . The Depositary shall, at the request and expense of the Company, establish procedures enabling the deposit hereunder of Shares that are Restricted Securities in order to enable the holder of such Shares to hold its ownership interests in such Restricted Shares in the form of ADSs issued under the terms hereof (such Shares, Restricted Shares ). Upon receipt of a written request from the Company to accept Restricted Shares for deposit hereunder, the Depositary agrees to establish procedures permitting the deposit of such Restricted Shares and the issuance of ADSs representing the right to receive, subject to the terms of the Deposit Agreement and the applicable ADR (if issued as a Certificated ADS), such deposited Restricted Shares (such ADSs, the Restricted ADSs , and the ADRs evidencing such Restricted ADSs, the Restricted ADRs ). Notwithstanding anything contained in this Section 2.14, the Depositary and the Company may, to the extent not prohibited by law, agree to issue the Restricted ADSs in uncertificated form ( Uncertificated Restricted ADSs ) upon such terms and conditions as the Company and the Depositary may deem necessary and appropriate. The Company shall assist the Depositary in the establishment of such procedures and agrees that it shall take all steps necessary and satisfactory to the Depositary to ensure that the establishment of such procedures does not violate the provisions of the Securities Act or any other applicable laws. The depositors of such Restricted Shares and the Holders of the Restricted ADSs may be required prior to the deposit of such Restricted Shares, the transfer of the Restricted ADRs and Restricted ADSs or the withdrawal of the Restricted Shares represented by Restricted ADSs to provide such written certifications or agreements as the Depositary or the Company may require. The Company shall provide to the Depositary in writing the legend(s) to be affixed to the Restricted ADRs (if the Restricted ADSs are to be issued as Certificated ADSs ) , or to be included in the statements issued from time to time to Holders of Uncertificated ADSs (if issued as Uncertificated Restricted ADSs), which legends shall (i) be in a form reasonably satisfactory to the Depositary and (ii) contain the specific circumstances under which the Restricted ADSs, and, if applicable, the Restricted ADRs evidencing the Restricted ADSs, may be transferred or the Restricted Shares withdrawn. The Restricted ADSs issued upon the deposit of Restricted Shares shall be separately identified on the books of the Depositary and the Restricted Shares so deposited shall, to the extent required by law, be held separate and distinct from the other Deposited Securities held hereunder. The Restricted Shares and the Restricted ADSs shall not be eligible for Pre-Release Transactions. The Restricted ADSs shall not be eligible for inclusion in any book-entry settlement system, including, without limitation, DTC, and shall not in any way be fungible with the ADSs issued under the terms hereof that are not Restricted ADSs. The Restricted ADSs, and, if applicable, the Restricted ADRs evidencing the Restricted ADSs, shall be transferable only by the Holder thereof upon delivery to the Depositary of (i) all documentation otherwise contemplated by the Deposit Agreement and (ii) an opinion of counsel satisfactory to the Depositary setting forth, inter alia , the conditions upon which the Restricted ADSs presented, and, if applicable, the Restricted ADRs evidencing the Restricted ADSs, are transferable by the Holder thereof under applicable securities laws and the transfer restrictions contained in the legend applicable to the Restricted ADSs presented for transfer. Except as set forth in this Section 2.14 and except as required by applicable law, the Restricted ADSs and the Restricted ADRs evidencing Restricted ADSs shall be treated as ADSs and ADRs issued and outstanding under the terms of the Deposit Agreement. In the event that, in determining the
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rights and obligations of parties hereto with respect to any Restricted ADSs, any conflict arises between (a) the terms of the Deposit Agreement (other than this Section 2.14) and (b) the terms of (i) this Section 2.14 or (ii) the applicable Restricted ADR, the terms and conditions set forth in this Section 2.14 and of the Restricted ADR shall be controlling and shall govern the rights and obligations of the parties to the Deposit Agreement pertaining to the deposited Restricted Shares, the Restricted ADSs and Restricted ADRs.
If the Restricted ADRs, the Restricted ADSs and the Restricted Shares cease to be Restricted Securities, the Depositary, upon receipt of (x) an opinion of counsel satisfactory to the Depositary setting forth, inter alia , that the Restricted ADRs, the Restricted ADSs and the Restricted Shares are not as of such time Restricted Securities, and (y) instructions from the Company to remove the restrictions applicable to the Restricted ADRs, the Restricted ADSs and the Restricted Shares, shall (i) eliminate the distinctions and separations that may have been established between the applicable Restricted Shares held on deposit under this Section 2.14 and the other Shares held on deposit under the terms of the Deposit Agreement that are not Restricted Shares, (ii) treat the newly unrestricted ADRs and ADSs on the same terms as, and fully fungible with, the other ADRs and ADSs issued and outstanding under the terms of the Deposit Agreement that are not Restricted ADRs or Restricted ADSs, (iii) take all actions necessary to remove any distinctions, limitations and restrictions previously existing under this Section 2.14 between the applicable Restricted ADRs and Restricted ADSs, respectively, on the one hand, and the other ADRs and ADSs that are not Restricted ADRs or Restricted ADSs, respectively, on the other hand, including, without limitation, by making the newly-unrestricted ADSs eligible for Pre-Release Transactions and for inclusion in the applicable book-entry settlement systems.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
AND BENEFICIAL OWNERS OF ADSs
Section 3.1 Proofs, Certificates and Other Information . Any person presenting Shares for deposit, any Holder and any Beneficial Owner may be required, and every Holder and Beneficial Owner agrees, from time to time to provide to the Depositary and the Custodian such proof of citizenship or residence, taxpayer status, payment of all applicable taxes or other governmental charges, exchange control approval, legal or beneficial ownership of ADSs and Deposited Property, compliance with applicable laws, the terms of the Deposit Agreement or the ADR(s) evidencing the ADSs and the provisions of, or governing, the Deposited Property, to execute such certifications and to make such representations and warranties, and to provide such other information and documentation (or, in the case of Shares in registered form presented for deposit, such information relating to the registration on the books of the Company or of the Share Registrar) as the Depositary or the Custodian may deem necessary or proper or as the Company may reasonably require by written request to the Depositary consistent with its obligations under the Deposit Agreement and the applicable ADR(s). The Depositary and the Registrar, as applicable, may withhold the execution or delivery or registration of transfer of any ADR or ADS or the distribution or sale of any dividend or distribution of rights or of the proceeds thereof or, to the extent not limited by the terms of Section 7.8, the delivery of any Deposited Property until such proof or other information is filed or such certifications are executed, or such representations and warranties are made, or such other documentation or
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information provided, in each case to the Depositarys, the Registrars and the Companys satisfaction. The Depositary shall provide the Company, in a timely manner, with copies or originals if necessary and appropriate of (i) any such proofs of citizenship or residence, taxpayer status, or exchange control approval or copies of written representations and warranties which it receives from Holders and Beneficial Owners, and (ii) any other information or documents which the Company may reasonably request and which the Depositary shall request and receive from any Holder or Beneficial Owner or any person presenting Shares for deposit or ADSs for cancellation, transfer or withdrawal. Nothing herein shall obligate the Depositary to (i) obtain any information for the Company if not provided by the Holders or Beneficial Owners, or (ii) verify or vouch for the accuracy of the information so provided by the Holders or Beneficial Owners.
Section 3.2 Liability for Taxes and Other Charges . Any tax or other governmental charge payable by the Custodian or by the Depositary with respect to any Deposited Property, ADSs or ADRs shall be payable by the Holders and Beneficial Owners to the Depositary. The Company, the Custodian and/or the Depositary may withhold or deduct from any distributions made in respect of Deposited Property, and may sell for the account of a Holder and/or Beneficial Owner any or all of the Deposited Property and apply such distributions and sale proceeds in payment of, any taxes (including applicable interest and penalties) or charges that are or may be payable by Holders or Beneficial Owners in respect of the ADSs, Deposited Property and ADRs, the Holder and the Beneficial Owner remaining liable for any deficiency. The Custodian may refuse the deposit of Shares and the Depositary may refuse to issue ADSs, to deliver ADRs, register the transfer of ADSs, register the split-up or combination of ADRs and (subject to Section 7.8) the withdrawal of Deposited Property until payment in full of such tax, charge, penalty or interest is received. Every Holder and Beneficial Owner agrees to indemnify the Depositary, the Company, the Custodian, and any of their agents, officers, employees and Affiliates for, and to hold each of them harmless from, any claims with respect to taxes (including applicable interest and penalties thereon) arising from any tax benefit obtained for such Holder and/or Beneficial Owner.
Section 3.3 Representations and Warranties on Deposit of Shares . Each person depositing Shares under the Deposit Agreement shall be deemed thereby to represent and warrant that (i) such Shares and the certificates therefor are duly authorized, validly issued, fully paid, non-assessable and legally obtained by such person, (ii) all preemptive (and similar) rights, if any, with respect to such Shares have been validly waived or exercised, (iii) the person making such deposit is duly authorized so to do, (iv) the Shares presented for deposit are free and clear of any lien, encumbrance, security interest, charge, mortgage or adverse claim, (v) the Shares presented for deposit are not, and the ADSs issuable upon such deposit will not be, Restricted Securities (except as contemplated in Section 2.14), and (vi) the Shares presented for deposit have not been stripped of any rights or entitlements. Such representations and warranties shall survive the deposit and withdrawal of Shares, the issuance and cancellation of ADSs in respect thereof and the transfer of such ADSs. If any such representations or warranties are false in any way, the Company and the Depositary shall be authorized, at the cost and expense of the person depositing Shares, to take any and all actions necessary to correct the consequences thereof.
Section 3.4 Compliance with Information Requests . Notwithstanding any other provision of the Deposit Agreement or any ADR(s), each Holder and Beneficial Owner agrees to
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comply with requests from the Company pursuant to applicable law, the rules and requirements of the London Stock Exchange, and any other stock exchange on which the Shares or ADSs are, or will be, registered, traded or listed or the Articles of Association of the Company, which are made to provide information, inter alia , as to the capacity in which such Holder or Beneficial Owner owns ADSs (and Shares as the case may be) and regarding the identity of any other person(s) interested in such ADSs and the nature of such interest and various other matters, whether or not they are Holders and/or Beneficial Owners at the time of such request. The Depositary agrees to use its reasonable efforts to forward, upon the request of the Company and at the Companys expense, any such request from the Company to the Holders and to forward to the Company any such responses to such requests received by the Depositary.
Section 3.5 Ownership Restrictions . Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may restrict transfers of the Shares where such transfer might result in ownership of Shares exceeding limits imposed by applicable law or the Articles of Association of the Company. The Company may also restrict, in such manner as it deems appropriate, transfers of the ADSs where such transfer may result in the total number of Shares represented by the ADSs owned by a single Holder or Beneficial Owner to exceed any such limits. The Company may, in its sole discretion but subject to applicable law, instruct the Depositary to take action with respect to the ownership interest of any Holder or Beneficial Owner in excess of the limits set forth in the preceding sentence, including, but not limited to, the imposition of restrictions on the transfer of ADSs, the removal or limitation of voting rights or mandatory sale or disposition on behalf of a Holder or Beneficial Owner of the Shares represented by the ADSs held by such Holder or Beneficial Owner in excess of such limitations, if and to the extent such disposition is permitted by applicable law and the Articles of Association of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance with the ownership restrictions described in this Section 3.5.
Section 3.6 Reporting Obligations and Regulatory Approvals . Applicable laws and regulations may require holders and beneficial owners of Shares, including the Holders and Beneficial Owners of ADSs, to satisfy reporting requirements and obtain regulatory approvals in certain circumstances. Holders and Beneficial Owners of ADSs are solely responsible for determining and complying with such reporting requirements and obtaining such approvals. Each Holder and each Beneficial Owner hereby agrees to make such determination, file such reports, and obtain such approvals to the extent and in the form required by applicable laws and regulations as in effect from time to time. Neither the Depositary, the Custodian, the Company or any of their respective agents or affiliates shall be required to take any actions whatsoever on behalf of Holders or Beneficial Owners to determine or satisfy such reporting requirements or obtain such regulatory approvals under applicable laws and regulations.
ARTICLE IV
THE DEPOSITED SECURITIES
Section 4.1 Cash Distributions . Whenever the Company intends to make a distribution of a cash dividend or other cash distribution in respect of any Deposited Securities, the Company shall give notice thereof to the Depositary at least fifteen (15) days prior to the proposed distribution specifying, inter alia , the record date applicable for determining the
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holders of Deposited Securities entitled to receive such distribution. Upon the timely receipt of such notice, the Depositary shall establish an ADS Record Date upon the terms described in Section 4.9. Upon receipt of confirmation from the Custodian of the receipt of any cash dividend or other cash distribution on any Deposited Securities, or upon receipt of proceeds from the sale of any Deposited Property held in respect of the ADSs under the terms hereof, the Depositary will (i) if at the time of receipt thereof any amounts received in a Foreign Currency can, in the judgment of the Depositary (pursuant to Section 4.8), be converted on a practicable basis into Dollars transferable to the United States, promptly convert or cause to be converted such cash dividend, distribution or proceeds into Dollars (on the terms described in Section 4.8), (ii) if applicable and unless previously established, establish the ADS Record Date upon the terms described in Section 4.9, and (iii) distribute promptly the amount thus received (net of (a) the applicable fees and charges of, and expenses incurred by, the Depositary and (b) taxes withheld) to the Holders entitled thereto as of the ADS Record Date in proportion to the number of ADSs held as of the ADS Record Date. The Depositary shall distribute only such amount, however, as can be distributed without attributing to any Holder a fraction of one cent, and any balance not so distributed shall be held by the Depositary (without liability for interest thereon) and shall be added to and become part of the next sum received by the Depositary for distribution to Holders of ADSs outstanding at the time of the next distribution. If the Company, the Custodian or the Depositary is required to withhold and does withhold from any cash dividend or other cash distribution in respect of any Deposited Securities, or from any cash proceeds from the sales of Deposited Property, an amount on account of taxes, duties or other governmental charges, the amount distributed to Holders on the ADSs shall be reduced accordingly. Such withheld amounts shall be forwarded by the Company, the Custodian or the Depositary to the relevant governmental authority. Evidence of payment thereof by the Company shall be forwarded by the Company to the Depositary upon request. The Depositary will hold any cash amounts it is unable to distribute in a non-interest bearing account for the benefit of the applicable Holders and Beneficial Owners of ADSs until the distribution can be effected or the funds that the Depositary holds must be escheated as unclaimed property in accordance with the laws of the relevant states of the United States. Notwithstanding anything contained in this Section 4.1 to the contrary, in the event the Company fails to give the Depositary timely notice of the proposed distribution provided for above, the Depositary agrees to use commercially reasonable efforts to perform the actions contemplated in this Section 4.1, and the Company, the Holders and the Beneficial Owners acknowledge that the Depositary shall have no liability for the Depositarys failure to perform the actions contemplated in this Section 4.1 where such notice has not been so timely given, other than its failure to use commercially reasonable efforts, as provided herein.
Section 4.2 Distribution in Shares . Whenever the Company intends to make a distribution that consists of a dividend in, or free distribution of, Shares, the Company shall give notice thereof to the Depositary at least fifteen (15) days prior to the proposed distribution, specifying, inter alia , the record date applicable to holders of Deposited Securities entitled to receive such distribution. Upon the timely receipt of such notice from the Company, the Depositary shall establish the ADS Record Date upon the terms described in Section 4.9. Upon receipt of confirmation from the Custodian of the receipt of the Shares so distributed by the Company, the Depositary shall either (i) subject to Section 5.9, distribute to the Holders as of the ADS Record Date in proportion to the number of ADSs held as of the ADS Record Date, additional ADSs, which represent in the aggregate the number of Shares received as such dividend, or free distribution, subject to the other terms of the Deposit Agreement (including,
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without limitation, (a) the applicable fees and charges of, and expenses incurred by, the Depositary and (b) taxes), or (ii) if additional ADSs are not so distributed, take all actions necessary so that each ADS issued and outstanding after the ADS Record Date shall, to the extent permissible by law, thenceforth also represent rights and interests in the additional integral number of Shares distributed upon the Deposited Securities represented thereby (net of (a) the applicable fees and charges of, and expenses incurred by, the Depositary and (b) taxes). In lieu of delivering fractional ADSs, the Depositary shall sell the number of Shares or ADSs, as the case may be, represented by the aggregate of such fractions and distribute the net proceeds upon the terms described in Section 4.1. In the event that the Depositary determines that any distribution in property (including Shares) is subject to any tax or other governmental charges which the Depositary is obligated to withhold, or, if the Company in the fulfillment of its obligation under Section 5.7, has furnished an opinion of U.S. counsel determining that Shares must be registered under the Securities Act or other laws in order to be distributed to Holders (and no such registration statement has been declared effective), the Depositary may dispose of all or a portion of such property (including Shares and rights to subscribe therefor) in such amounts and in such manner, including by public or private sale, as the Depositary deems necessary and practicable, and the Depositary shall distribute the net proceeds of any such sale (after deduction of (a) taxes and (b) fees and charges of, and expenses incurred by, the Depositary) to Holders entitled thereto upon the terms described in Section 4.1. The Depositary shall hold and/or distribute any unsold balance of such property in accordance with the provisions of the Deposit Agreement. Notwithstanding anything contained in this Section 4.2 to the contrary, in the event the Company fails to give the Depositary timely notice of the proposed distribution provided for above, the Depositary agrees to use commercially reasonable efforts to perform the actions contemplated in this Section 4.2, and the Company, the Holders and the Beneficial Owners acknowledge that the Depositary shall have no liability for the Depositarys failure to perform the actions contemplated in this Section 4.2 where such notice has not been so timely given, other than its failure to use commercially reasonable efforts, as provided herein.
Section 4.3 Elective Distributions in Cash or Shares . Whenever the Company intends to make a distribution payable at the election of the holders of Deposited Securities in cash or in additional Shares, the Company shall give notice thereof to the Depositary at least forty-five (45) days prior to the proposed distribution specifying, inter alia , the record date applicable to holders of Deposited Securities entitled to receive such elective distribution and whether or not it wishes such elective distribution to be made available to Holders of ADSs. Upon the timely receipt of a notice indicating that the Company wishes such elective distribution to be made available to Holders of ADSs, the Depositary shall consult with the Company to determine, and the Company shall assist the Depositary in its determination, whether it is lawful and reasonably practicable to make such elective distribution available to the Holders of ADSs. The Depositary shall make such elective distribution available to Holders only if (i) the Company shall have timely requested that the elective distribution be made available to Holders, (ii) the Depositary shall have determined that such distribution is reasonably practicable and (iii) the Depositary shall have received satisfactory documentation within the terms of Section 5.7. If the above conditions are not satisfied, the Depositary shall establish an ADS Record Date on the terms described in Section 4.9 and, to the extent permitted by law, distribute to the Holders, on the basis of the same determination as is made in England in respect of the Shares for which no election is made, either (X) cash upon the terms described in Section 4.1 or (Y) additional ADSs representing such additional Shares upon the terms described in Section 4.2. If the above
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conditions are satisfied, the Depositary shall establish an ADS Record Date on the terms described in Section 4.9 and establish procedures to enable Holders to elect the receipt of the proposed distribution in cash or in additional ADSs. The Company shall assist the Depositary in establishing such procedures to the extent necessary. If a Holder elects to receive the proposed distribution (X) in cash, the distribution shall be made upon the terms described in Section 4.1, or (Y) in ADSs, the distribution shall be made upon the terms described in Section 4.2. Nothing herein shall obligate the Depositary to make available to Holders a method to receive the elective distribution in Shares (rather than ADSs). There can be no assurance that Holders generally, or any Holder in particular, will be given the opportunity to receive elective distributions on the same terms and conditions as the holders of Shares. Notwithstanding anything contained in this Section 4.3 to the contrary, in the event the Company fails to give the Depositary timely notice of the proposed distribution provided for above, the Depositary agrees to use commercially reasonable efforts to perform the actions contemplated in this Section 4.3, and the Company, the Holders and the Beneficial Owners acknowledge that the Depositary shall have no liability for the Depositarys failure to perform the actions contemplated in this Section 4.3 where such notice has not been so timely given, other than its failure to use commercially reasonable efforts, as provided herein.
Section 4.4 Distribution of Rights to Purchase Additional ADSs .
(a) Distribution to ADS Holders . Whenever the Company intends to distribute to the holders of the Deposited Securities rights to subscribe for additional Shares, the Company shall give notice thereof to the Depositary at least forty-five (45) days prior to the proposed distribution specifying, inter alia , the record date applicable to holders of Deposited Securities entitled to receive such distribution and whether or not it wishes such rights to be made available to Holders of ADSs. Upon the timely receipt of a notice indicating that the Company wishes such rights to be made available to Holders of ADSs, the Depositary shall consult with the Company to determine, and the Company shall assist the Depositary in its determination, whether it is lawful and reasonably practicable to make such rights available to the Holders. The Depositary shall make such rights available to Holders only if (i) the Company shall have timely requested that such rights be made available to Holders, (ii) the Depositary shall have received satisfactory documentation within the terms of Section 5.7, and (iii) the Depositary shall have determined that such distribution of rights is reasonably practicable. In the event any of the conditions set forth above are not satisfied or if the Company requests that the rights not be made available to Holders of ADSs, the Depositary shall proceed with the sale of the rights as contemplated in Section 4.4(b) below. In the event all conditions set forth above are satisfied, the Depositary shall establish an ADS Record Date (upon the terms described in Section 4.9) and establish procedures to (x) distribute rights to purchase additional ADSs (by means of warrants or otherwise), (y) to enable the Holders to exercise such rights (upon payment of the subscription price and of the applicable (a) fees and charges of, and expenses incurred by, the Depositary and (b) taxes), and (z) to deliver ADSs upon the valid exercise of such rights. The Company shall assist the Depositary to the extent necessary in establishing such procedures. Nothing herein shall obligate the Depositary to make available to the Holders a method to exercise rights to subscribe for Shares (rather than ADSs).
(b) Sale of Rights . If (i) the Company does not timely request the Depositary to make the rights available to Holders or requests that the rights not be made available to Holders,
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(ii) the Depositary fails to receive satisfactory documentation within the terms of Section 5.7 or determines it is not reasonably practicable to make the rights available to Holders, or (iii) any rights made available are not exercised and appear to be about to lapse, the Depositary shall determine whether it is lawful and reasonably practicable to sell such rights, in a riskless principal capacity, at such place and upon such terms (including public or private sale) as it may deem practicable. The Company shall assist the Depositary to the extent necessary to determine such legality and practicability. The Depositary shall, upon such sale, convert and distribute proceeds of such sale (net of applicable (a) fees and charges of, and expenses incurred by, the Depositary and (b) taxes) upon the terms set forth in Section 4.1.
(c) Lapse of Rights . If the Depositary is unable to make any rights available to Holders upon the terms described in Section 4.4(a) or to arrange for the sale of the rights upon the terms described in Section 4.4(b), the Depositary shall allow such rights to lapse.
The Depositary shall not be responsible for (i) any failure to determine that it may be lawful or practicable to make such rights available to Holders in general or any Holders in particular, (ii) any foreign exchange exposure or loss incurred in connection with such sale, or exercise, or (iii) the content of any materials forwarded to the Holders on behalf of the Company in connection with the rights distribution.
Notwithstanding anything to the contrary in this Section 4.4, if registration (under the Securities Act or any other applicable law) of the rights or the securities to which any rights relate may be required in order for the Company to offer such rights or such securities to Holders and to sell the securities represented by such rights, the Depositary will not distribute such rights to the Holders (i) unless and until a registration statement under the Securities Act (or other applicable law) covering such offering is in effect or (ii) unless the Company furnishes the Depositary opinion(s) of counsel for the Company in the United States and counsel to the Company in any other applicable country in which rights would be distributed, in each case satisfactory to the Depositary, to the effect that the offering and sale of such securities to Holders and Beneficial Owners are exempt from, or do not require registration under, the provisions of the Securities Act or any other applicable laws.
In the event that the Company, the Depositary or the Custodian shall be required to withhold and does withhold from any distribution of Deposited Property (including rights) an amount on account of taxes or other governmental charges, the amount distributed to the Holders of ADSs shall be reduced accordingly. In the event that the Depositary determines that any distribution of Deposited Property (including Shares and rights to subscribe therefor) is subject to any tax or other governmental charges which the Depositary is obligated to withhold, the Depositary may dispose of all or a portion of such Deposited Property (including Shares and rights to subscribe therefor) in such amounts and in such manner, including by public or private sale, as the Depositary deems necessary and practicable to pay any such taxes or charges.
There can be no assurance that Holders generally, or any Holder in particular, will be given the opportunity to receive or exercise rights on the same terms and conditions as the holders of Shares or be able to exercise such rights. Nothing herein shall obligate the Company to file any registration statement in respect of any rights or Shares or other securities to be acquired upon the exercise of such rights.
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Section 4.5 Distributions Other Than Cash, Shares or Rights to Purchase Shares .
(a) Whenever the Company intends to distribute to the holders of Deposited Securities property other than cash, Shares or rights to purchase additional Shares, the Company shall give timely notice thereof to the Depositary and shall indicate whether or not it wishes such distribution to be made to Holders of ADSs. Upon receipt of a notice indicating that the Company wishes such distribution be made to Holders of ADSs, the Depositary shall consult with the Company, and the Company shall assist the Depositary, to determine whether such distribution to Holders is lawful and reasonably practicable. The Depositary shall not make such distribution unless (i) the Company shall have requested the Depositary to make such distribution to Holders, (ii) the Depositary shall have received satisfactory documentation within the terms of Section 5.7, and (iii) the Depositary shall have determined that such distribution is reasonably practicable.
(b) Upon receipt of satisfactory documentation and the request of the Company to distribute property to Holders of ADSs and after making the requisite determinations set forth in (a) above, the Depositary shall distribute the property so received to the Holders of record, as of the ADS Record Date, in proportion to the number of ADSs held by them respectively and in such manner as the Depositary may deem practicable for accomplishing such distribution (i) upon receipt of payment or net of the applicable fees and charges of, and expenses incurred by, the Depositary, and (ii) net of any taxes withheld. The Depositary may dispose of all or a portion of the property so distributed and deposited, in such amounts and in such manner (including public or private sale) as the Depositary may deem practicable or necessary to satisfy any taxes (including applicable interest and penalties) or other governmental charges applicable to the distribution.
(c) If (i) the Company does not request the Depositary to make such distribution to Holders or requests not to make such distribution to Holders, (ii) the Depositary does not receive satisfactory documentation within the terms of Section 5.7, or (iii) the Depositary determines that all or a portion of such distribution is not reasonably practicable, the Depositary shall sell or cause such property to be sold in a public or private sale, at such place or places and upon such terms as it may deem practicable and shall (i) cause the proceeds of such sale, if any, to be converted into Dollars and (ii) distribute the proceeds of such conversion received by the Depositary (net of applicable (a) fees and charges of, and expenses incurred by, the Depositary and (b) taxes) to the Holders as of the ADS Record Date upon the terms of Section 4.1. If the Depositary is unable to sell such property, the Depositary may dispose of such property for the account of the Holders in any way it deems reasonably practicable under the circumstances.
(d) Neither the Depositary nor the Company shall be responsible for (i) any failure to determine whether it is lawful or practicable to make the property described in this Section 4.5 available to Holders in general or any Holders in particular, nor (ii) any foreign exchange exposure or loss incurred in connection with the sale or disposal of such property.
Section 4.6 Distributions with Respect to Deposited Securities in Bearer Form . Subject to the terms of this Article IV, distributions in respect of Deposited Securities that are held by the Depositary in bearer form shall be made to the Depositary for the account of the respective Holders of ADS(s) with respect to which any such distribution is made upon due
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presentation by the Depositary or the Custodian to the Company of any relevant coupons, talons, or certificates. The Company shall promptly notify the Depositary of such distributions. The Depositary or the Custodian shall promptly present such coupons, talons or certificates, as the case may be, in connection with any such distribution.
Section 4.7 Redemption . If the Company intends to exercise any right of redemption in respect of any of the Deposited Securities, the Company shall give notice thereof to the Depositary at least sixty (60) days prior to the intended date of redemption which notice shall set forth the particulars of the proposed redemption. Upon timely receipt of (i) such notice and (ii) satisfactory documentation given by the Company to the Depositary within the terms of Section 5.7, and only if the Depositary shall have determined that such proposed redemption is practicable, the Depositary shall provide to each Holder a notice setting forth the intended exercise by the Company of the redemption rights and any other particulars set forth in the Companys notice to the Depositary. The Depositary shall instruct the Custodian to present to the Company the Deposited Securities in respect of which redemption rights are being exercised against payment of the applicable redemption price. Upon receipt of confirmation from the Custodian that the redemption has taken place and that funds representing the redemption price have been received, the Depositary shall convert, transfer, and distribute the proceeds (net of applicable (a) fees and charges of, and the expenses incurred by, the Depositary, and (b) taxes), retire ADSs and cancel ADRs , if applicable, upon delivery of such ADSs by Holders thereof and the terms set forth in Sections 4.1 and 6.2. If less than all outstanding Deposited Securities are redeemed, the ADSs to be retired will be selected by lot or on a pro rata basis, as may be determined by the Depositary. The redemption price per ADS shall be the dollar equivalent of the per share amount received by the Depositary (adjusted to reflect the ADS(s)-to-Share(s) ratio) upon the redemption of the Deposited Securities represented by ADSs (subject to the terms of Section 4.8 and the applicable fees and charges of, and expenses incurred by, the Depositary, and taxes) multiplied by the number of Deposited Securities represented by each ADS redeemed.
Notwithstanding anything contained in this Section 4.7 to the contrary, in the event the Company fails to give the Depositary timely notice of the proposed redemption provided for above, the Depositary agrees to use commercially reasonable efforts to perform the actions contemplated in this Section 4.7, and the Company, the Holders and the Beneficial Owners acknowledge that the Depositary shall have no liability for the Depositarys failure to perform the actions contemplated in this Section 4.7 where such notice has not been so timely given, other than its failure to use commercially reasonable efforts, as provided herein.
Section 4.8 Conversion of Foreign Currency . Whenever the Depositary or the Custodian shall receive Foreign Currency, by way of dividends or other distributions or the net proceeds from the sale of Deposited Property, which in the judgment of the Depositary can at such time be converted on a practicable basis, by sale or in any other manner that it may determine in accordance with applicable law, into Dollars transferable to the United States and distributable to the Holders entitled thereto, the Depositary shall convert or cause to be converted, by sale or in any other manner that it may determine, such Foreign Currency into Dollars, and shall distribute such Dollars (net of any applicable fees, any reasonable and customary expenses incurred in such conversion and any expenses incurred on behalf of the Holders in complying with currency exchange control or other governmental requirements) in accordance with the terms of the applicable sections of the Deposit Agreement. If the Depositary
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shall have distributed warrants or other instruments that entitle the holders thereof to such Dollars, the Depositary shall distribute such Dollars to the holders of such warrants and/or instruments upon surrender thereof for cancellation, in either case without liability for interest thereon. Such distribution may be made upon an averaged or other practicable basis without regard to any distinctions among Holders on account of any application of exchange restrictions or otherwise.
If such conversion or distribution generally or with regard to a particular Holder can be effected only with the approval or license of any government or agency thereof, the Depositary shall have authority to file such application for approval or license, if any, as it may deem desirable. In no event, however, shall the Depositary be obligated to make such a filing.
If at any time the Depositary shall determine that in its judgment the conversion of any Foreign Currency and the transfer and distribution of proceeds of such conversion received by the Depositary is not practicable or lawful, or if any approval or license of any governmental authority or agency thereof that is required for such conversion, transfer and distribution is denied or, in the opinion of the Depositary, not obtainable at a reasonable cost or within a reasonable period, the Depositary may, in its discretion, (i) make such conversion and distribution in Dollars to the Holders for whom such conversion, transfer and distribution is lawful and practicable, (ii) distribute the Foreign Currency (or an appropriate document evidencing the right to receive such Foreign Currency) to Holders for whom this is lawful and practicable, or (iii) hold (or cause the Custodian to hold) such Foreign Currency (without liability for interest thereon) for the respective accounts of the Holders entitled to receive the same.
Section 4.9 Fixing of ADS Record Date . Whenever the Depositary shall receive notice of the fixing of a record date by the Company for the determination of holders of Deposited Securities entitled to receive any distribution (whether in cash, Shares, rights, or other distribution), or whenever for any reason the Depositary causes a change in the number of Shares that are represented by each ADS, or whenever the Depositary shall receive notice of any meeting of, or solicitation of consents or proxies of, holders of Shares or other Deposited Securities, or whenever the Depositary shall find it necessary or convenient in connection with the giving of any notice, solicitation of any consent or any other matter, the Depositary shall fix a record date (the ADS Record Date ) for the determination of the Holders of ADS(s) who shall be entitled to receive such distribution, to give instructions for the exercise of voting rights at any such meeting, to give or withhold such consent, to receive such notice or solicitation or to otherwise take action, or to exercise the rights of Holders with respect to such changed number of Shares represented by each ADS. The Depositary shall make reasonable efforts to establish the ADS Record Date as closely as possible to the applicable record date for the Deposited Securities (if any) set by the Company in England and shall not announce the establishment of the ADS Record Date prior to the relevant corporate action having been made public by the Company (if such corporate action affects the Deposited Securities). Subject to applicable law and the provisions of Section 4.1 through 4.8 and to the other terms and conditions of the Deposit Agreement, only the Holders of ADSs at the close of business in New York on such ADS Record Date shall be entitled to receive such distribution, to give such voting instructions, to receive such notice or solicitation, or otherwise take action.
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Section 4.10 Voting of Deposited Securities . (a) ADS Voting Instructions . As soon as practicable after receipt of notice of (i) any meeting at which the holders of Deposited Securities are entitled to vote, or (ii) solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 hereof. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Companys expense and provided no U.S. legal prohibitions exist, distribute to Holders of record as of the ADS Record Date a notice which shall contain: (a) such information as is contained in such notice of meeting, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of this Deposit Agreement, the Articles of Association of the Company and the provisions of, or governing, the Deposited Securities (which provisions, if any, shall have been summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holders ADSs, and (c) a brief statement addressing the manner in which such instructions may be given (including an indication that instructions may be deemed to have been given in accordance with the last sentence of (b) below if no instructions are received by the Depositary prior to the deadline set for such purposes to the Depositary to give a discretionary proxy to a person designated by the Company). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities.
Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request ( i.e. , by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials).
The Depositary has been advised by the Company that under English law and the Articles of Association of the Company, voting at any meeting of shareholders of the Company is by show of hands unless a poll is demanded. Under the Articles of Association of the Company (in effect as of the date hereof), a poll may be demanded by the chairman of the meeting, by any shareholder or shareholders present in person or by proxy representing not less than 10% of the paid-up share capital of the Company, by any shareholder or shareholders present in person or by proxy representing not less than 10% of the total voting rights or by not less than five shareholders present in person or by proxy and entitled to vote. The Depositary will not join in demanding a poll, whether or not requested to do so by Holders of ADSs.
Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, Articles of Association of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holders ADSs as follows: (i) in the event voting takes place at a shareholders meeting by
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show of hands, the Depositary will instruct the Custodian to vote all Deposited Securities in accordance with the voting instructions received from a majority of Holders of ADSs who provided voting instructions, and (ii) in the event voting takes place at a shareholders meeting by poll, the Depositary will instruct the Custodian to vote the Deposited Securities in accordance with the voting instructions received from the Holders of ADSs.
Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders.
(b) Discretionary Proxy to Management . The Depositary agrees not to, and shall take reasonable steps to ensure that the Custodian and each of its nominees, if any, do not, vote the Deposited Securities represented by ADSs other than in accordance with the instructions of Holders as of the ADS Record Date or as provided below. Neither the Depositary nor the Custodian shall exercise any voting discretion over the Deposited Securities. If (i) the Company shall have timely requested that the Depositary distribute materials to the Holders in connection with a meeting at which the holders of Deposited Securities are entitled to vote, (ii) voting at such meeting takes place by poll, and (iii) (x) the Depositary does not receive timely instructions from a Holder on or before the date established by the Depositary for such purpose, or (y) the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holders ADSs, such Holder shall be deemed, and the Depositary shall deem such Holder, to have instructed the Depositary to give a discretionary proxy to a person designated by the Company to vote the Deposited Securities; provided, however, that no such discretionary proxy shall be given by the Depositary with respect to any matter to be voted upon as to which the Company informs the Depositary that (i) the Company does not wish such proxy to be given, (ii) substantial opposition exists, or (iii) the rights of holders of Deposited Securities may be adversely affected.
(c) Legal Prohibitions . Notwithstanding anything contained in this Deposit Agreement or any ADR to the contrary, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary, if requested by the Depositary, an opinion of U.S. counsel addressing any actions to be taken.
There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.
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Section 4.11 Changes Affecting Deposited Securities . Upon any change in nominal or par value, split-up, cancellation, consolidation or any other reclassification of Deposited Securities, or upon any recapitalization, reorganization, merger, consolidation or sale of assets affecting the Company or to which it is a party, any property which shall be received by the Depositary or the Custodian in exchange for, or in conversion of, or replacement of, or otherwise in respect of, such Deposited Securities shall, to the extent permitted by law, be treated as new Deposited Property under the Deposit Agreement, and the ADSs shall, subject to the provisions of the Deposit Agreement, any ADR(s) evidencing such ADSs and applicable law, represent the right to receive such additional or replacement Deposited Property. In giving effect to such change, split-up, cancellation, consolidation or other reclassification of Deposited Securities, recapitalization, reorganization, merger, consolidation or sale of assets, the Depositary may, with the Companys approval, and shall, if the Company shall so request, subject to the terms of the Deposit Agreement and receipt of an opinion of counsel to the Company satisfactory to the Depositary that such actions are not in violation of any applicable laws or regulations, (i) issue and deliver additional ADSs as in the case of a stock dividend on the Shares, (ii) amend the Deposit Agreement and the applicable ADRs, (iii) amend the applicable Registration Statement(s) on Form F-6 as filed with the Commission in respect of the ADSs, (iv) call for the surrender of outstanding ADRs to be exchanged for new ADRs, and (v) take such other actions as are appropriate to reflect the transaction with respect to the ADSs. The Company agrees to, jointly with the Depositary, amend the Registration Statement on Form F-6 as filed with the Commission to permit the issuance of such new form of ADRs. Notwithstanding the foregoing, in the event that any Deposited Property so received may not be lawfully distributed to some or all Holders, the Depositary may, with the Companys approval, and shall, if the Company requests, subject to receipt of an opinion of Companys counsel satisfactory to the Depositary that such action is not in violation of any applicable laws or regulations, sell such Deposited Property at public or private sale, at such place or places and upon such terms as it may deem proper and may allocate the net proceeds of such sales (net of (a) fees and charges of, and expenses incurred by, the Depositary and (b) taxes) for the account of the Holders otherwise entitled to such Deposited Property upon an averaged or other practicable basis without regard to any distinctions among such Holders and distribute the net proceeds so allocated to the extent practicable as in the case of a distribution received in cash pursuant to Section 4.1. The Depositary shall not be responsible for (i) any failure to determine that it may be lawful or practicable to make such Deposited Property available to Holders in general or to any Holder in particular, (ii) any foreign exchange exposure or loss incurred in connection with such sale, or (iii) any liability to the purchaser of such Deposited Property.
Section 4.12 Available Information . The Company is subject to the periodic reporting requirements of the Exchange Act and, accordingly, is required to file or submit certain reports with the Commission. These reports can be retrieved from the Commissions website ( www.sec.gov ) and can be inspected and copied at the public reference facilities maintained by the Commission located (as of the date of the Deposit Agreement) at 100 F Street, N.E., Washington D.C. 20549.
Section 4.13 Reports . The Depositary shall make available for inspection by Holders at its Principal Office any reports and communications, including any proxy soliciting materials, received from the Company which are both (a) received by the Depositary, the Custodian, or the nominee of either of them as the holder of the Deposited Property and (b) made generally
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available to the holders of such Deposited Property by the Company. The Depositary shall also provide or make available to Holders copies of such reports when furnished by the Company pursuant to Section 5.6.
Section 4.14 List of Holders . Promptly upon written request by the Company, the Depositary shall furnish to it a list, as of a recent date, of the names, addresses and holdings of ADSs of all Holders.
Section 4.15 Taxation . The Depositary will, and will instruct the Custodian to, forward to the Company or its agents such information from its records as the Company may reasonably request to enable the Company or its agents to file the necessary tax reports with governmental authorities or agencies. The Depositary, the Custodian or the Company and its agents may file such reports as are necessary to reduce or eliminate applicable taxes on dividends and on other distributions in respect of Deposited Property under applicable tax treaties or laws for the Holders and Beneficial Owners. In accordance with instructions from the Company and to the extent practicable, the Depositary or the Custodian will take reasonable administrative actions to obtain tax refunds, reduced withholding of tax at source on dividends and other benefits under applicable tax treaties or laws with respect to dividends and other distributions on the Deposited Property. As a condition to receiving such benefits, Holders and Beneficial Owners of ADSs may be required from time to time, and in a timely manner, to file such proof of taxpayer status, residence and beneficial ownership (as applicable), to execute such certificates and to make such representations and warranties, or to provide any other information or documents, as the Depositary or the Custodian may deem necessary or proper to fulfill the Depositarys or the Custodians obligations under applicable law. The Depositary and the Company shall have no obligation or liability to any person if any Holder or Beneficial Owner fails to provide such information or if such information does not reach the relevant tax authorities in time for any Holder or Beneficial Owner to obtain the benefits of any tax treatment. The Holders and Beneficial Owners shall indemnify the Depositary, the Company, the Custodian and any of their respective directors, employees, agents and Affiliates against, and hold each of them harmless from, any claims by any governmental authority with respect to taxes, additions to tax, penalties or interest arising out of any refund of taxes, reduced rate of withholding at source or other tax benefit obtained.
If the Company (or any of its agents) withholds from any distribution any amount on account of taxes or governmental charges, or pays any other tax in respect of such distribution (i.e., stamp duty tax, capital gains or other similar tax), the Company shall (and shall cause such agent to) remit promptly to the Depositary information about such taxes or governmental charges withheld or paid, and, if so requested, the tax receipt (or other proof of payment to the applicable governmental authority) therefor, in each case, in a form satisfactory to the Depositary. The Depositary shall, to the extent required by U.S. law, report to Holders any taxes withheld by it or the Custodian, and, if such information is provided to it by the Company, any taxes withheld by the Company. The Depositary and the Custodian shall not be required to provide the Holders with any evidence of the remittance by the Company (or its agents) of any taxes withheld, or of the payment of taxes by the Company, except to the extent the evidence is provided by the Company to the Depositary or the Custodian, as applicable. Neither the Depositary nor the Custodian shall be liable for the failure by any Holder or Beneficial Owner to obtain the benefits of credits on the basis of non-U.S. tax paid against such Holders or Beneficial Owners income tax liability.
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The Depositary is under no obligation to provide the Holders and Beneficial Owners with any information about the tax status of the Company. The Depositary shall not incur any liability for any tax consequences that may be incurred by Holders and Beneficial Owners on account of their ownership of the ADSs, including without limitation, tax consequences resulting from the Company (or any of its subsidiaries) being treated as a Passive Foreign Investment Company (in each case as defined in the U.S. Internal Revenue Code and the regulations issued thereunder) or otherwise.
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
Section 5.1 Maintenance of Office and Transfer Books by the Registrar . Until termination of the Deposit Agreement in accordance with its terms, the Registrar shall maintain in the Borough of Manhattan, the City of New York, an office and facilities for the issuance and delivery of ADSs, the acceptance for surrender of ADS(s) for the purpose of withdrawal of Deposited Securities, the registration of issuances, cancellations, transfers, combinations and split-ups of ADS(s) and, if applicable, to countersign ADRs evidencing the ADSs so issued, transferred, combined or split-up, in each case in accordance with the provisions of the Deposit Agreement.
The Registrar shall keep books for the registration of ADSs which at all reasonable times shall be open for inspection by the Company and by the Holders of such ADSs, provided that such inspection shall not be, to the Registrars knowledge, for the purpose of communicating with Holders of such ADSs in the interest of a business or object other than the business of the Company or other than a matter related to the Deposit Agreement or the ADSs.
The Registrar may close the transfer books with respect to the ADSs, at any time or from time to time, when deemed necessary or advisable by it in good faith in connection with the performance of its duties hereunder, or at the reasonable written request of the Company subject, in all cases, to Section 7.8.
If any ADSs are listed on one or more stock exchanges or automated quotation systems in the United States, the Depositary shall act as Registrar or appoint a Registrar or one or more co-registrars for registration of issuances, cancellations, transfers, combinations and split-ups of ADSs and, if applicable, to countersign ADRs evidencing the ADSs so issued, transferred, combined or split-up, in accordance with any requirements of such exchanges or systems. Such Registrar or co-registrars may be removed and a substitute or substitutes appointed by the Depositary.
Section 5.2 Exoneration . Notwithstanding anything contained in the Deposit Agreement or any ADR, neither the Depositary nor the Company shall be obligated to do or perform any act which is inconsistent with the provisions of the Deposit Agreement or incur any liability (i) if the Depositary or the Company shall be prevented or forbidden from, or delayed in,
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doing or performing any act or thing required by the terms of the Deposit Agreement, by reason of any provision of any present or future law or regulation of the United States, England or any other country, or of any other governmental authority or regulatory authority or stock exchange, or on account of the possible criminal or civil penalties or restraint, or by reason of any provision, present or future, of the Articles of Association of the Company or any provision of or governing any Deposited Securities, or by reason of any act of God or war or other circumstances beyond its control (including, without limitation, nationalization, expropriation, currency restrictions, work stoppage, strikes, civil unrest, acts of terrorism, revolutions, rebellions, explosions and computer failure), (ii) by reason of any exercise of, or failure to exercise, any discretion provided for in the Deposit Agreement or in the Articles of Association of the Company or provisions of or governing Deposited Securities, (iii) for any action or inaction in reliance upon the advice of or information from legal counsel, accountants, any person presenting Shares for deposit, any Holder, any Beneficial Owner or authorized representative thereof, or any other person believed by it in good faith to be competent to give such advice or information, (iv) for the inability by a Holder or Beneficial Owner to benefit from any distribution, offering, right or other benefit which is made available to holders of Deposited Securities but is not, under the terms of the Deposit Agreement, made available to Holders of ADSs, or (v) for any consequential or punitive damages (including lost profits) for any breach of the terms of the Deposit Agreement.
The Depositary, its controlling persons, its agents, any Custodian and the Company, its controlling persons and its agents may rely and shall be protected in acting upon any written notice, request or other document believed by it to be genuine and to have been signed or presented by the proper party or parties.
No disclaimer of liability under the Securities Act is intended by any provision of the Deposit Agreement.
Section 5.3 Standard of Care . The Company and the Depositary assume no obligation and shall not be subject to any liability under the Deposit Agreement or any ADRs to any Holder(s) or Beneficial Owner(s), except that the Company and the Depositary agree to perform their respective obligations specifically set forth in the Deposit Agreement or the applicable ADRs without negligence or bad faith.
Without limitation of the foregoing, neither the Depositary, nor the Company, nor any of their respective controlling persons, or agents, shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of any Deposited Property or in respect of the ADSs, which in its opinion may involve it in expense or liability, unless indemnity satisfactory to it against all expense (including fees and disbursements of counsel) and liability be furnished as often as may be required (and no Custodian shall be under any obligation whatsoever with respect to such proceedings, the responsibility of the Custodian being solely to the Depositary).
The Depositary and its agents shall not be liable for any failure to carry out any instructions to vote any of the Deposited Securities, or for the manner in which any vote is cast or the effect of any vote, provided that any such action or omission is in good faith and in accordance with the terms of the Deposit Agreement. The Depositary shall not incur any
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liability for any failure to determine that any distribution or action may be lawful or reasonably practicable, for the content of any information submitted to it by the Company for distribution to the Holders or for any inaccuracy of any translation thereof, for any investment risk associated with acquiring an interest in the Deposited Property, for the validity or worth of the Deposited Property or for any tax consequences that may result from the ownership of ADSs, Shares or other Deposited Property, for the credit-worthiness of any third party, for allowing any rights to lapse upon the terms of the Deposit Agreement, for the failure or timeliness of any notice from the Company, or for any action of or failure to act by, or any information provided or not provided by, DTC or any DTC Participant.
The Depositary shall not be liable for any acts or omissions made by a successor depositary whether in connection with a previous act or omission of the Depositary or in connection with any matter arising wholly after the removal or resignation of the Depositary, provided that in connection with the issue out of which such potential liability arises the Depositary performed its obligations without negligence or bad faith while it acted as Depositary.
The Depositary shall not be liable for any acts or omissions made by a predecessor depositary whether in connection with an act or omission of the Depositary or in connection with any matter arising wholly prior to the appointment of the Depositary or after the removal or resignation of the Depositary, provided that in connection with the issue out of which such potential liability arises the Depositary performed its obligations without negligence or bad faith while it acted as Depositary.
Section 5.4 Resignation and Removal of the Depositary; Appointment of Successor Depositary . The Depositary may at any time resign as Depositary hereunder by written notice of resignation delivered to the Company, such resignation to be effective on the earlier of (i) the 90th day after delivery thereof to the Company (whereupon the Depositary shall be entitled to take the actions contemplated in Section 6.2), or (ii) the appointment by the Company of a successor depositary and its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by written notice of such removal, which removal shall be effective on the later of (i) the 90th day after delivery thereof to the Depositary (whereupon the Depositary shall be entitled to take the actions contemplated in Section 6.2), or (ii) upon the appointment by the Company of a successor depositary and its acceptance of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be removed, the Company shall use its best efforts to appoint a successor depositary, which shall be a bank or trust company having an office in the Borough of Manhattan, the City of New York. Every successor depositary shall be required by the Company to execute and deliver to its predecessor and to the Company an instrument in writing accepting its appointment hereunder, and thereupon such successor depositary, without any further act or deed (except as required by applicable law), shall become fully vested with all the rights, powers, duties and obligations of its predecessor (other than as contemplated in Sections 5.8 and 5.9). The predecessor depositary, upon payment of all sums due it and on the written request of the Company, shall, (i) execute and deliver an
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instrument transferring to such successor all rights and powers of such predecessor hereunder (other than as contemplated in Sections 5.8 and 5.9), (ii) duly assign, transfer and deliver all of the Depositarys right, title and interest to the Deposited Property to such successor, and (iii) deliver to such successor a list of the Holders of all outstanding ADSs and such other information relating to ADSs and Holders thereof as the successor may reasonably request. Any such successor depositary shall promptly provide notice of its appointment to such Holders.
Any entity into or with which the Depositary may be merged or consolidated shall be the successor of the Depositary without the execution or filing of any document or any further act.
Section 5.5 The Custodian . The Depositary has initially appointed Citibank, N.A. - London as Custodian for the purpose of the Deposit Agreement. The Custodian or its successors in acting hereunder shall be subject at all times and in all respects to the direction of the Depositary for the Deposited Property for which the Custodian acts as custodian and shall be responsible solely to it. If any Custodian resigns or is discharged from its duties hereunder with respect to any Deposited Property and no other Custodian has previously been appointed hereunder, the Depositary shall promptly appoint a substitute custodian. The Depositary shall require such resigning or discharged Custodian to Deliver, or cause the Delivery of, the Deposited Property held by it, together with all such records maintained by it as Custodian with respect to such Deposited Property as the Depositary may request, to the Custodian designated by the Depositary. Whenever the Depositary determines, in its discretion, that it is appropriate to do so, it may appoint an additional custodian with respect to any Deposited Property, or discharge the Custodian with respect to any Deposited Property and appoint a substitute custodian, which shall thereafter be Custodian hereunder with respect to the Deposited Property. Immediately upon any such change, the Depositary shall give notice thereof in writing to all Holders of ADSs, each other Custodian and the Company.
Citibank, N.A. may at any time act as Custodian of the Deposited Property pursuant to the Deposit Agreement, in which case any reference to Custodian shall mean Citibank, N.A. solely in its capacity as Custodian pursuant to the Deposit Agreement. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary shall not be obligated to give notice to the Company, any Holders of ADSs or any other Custodian of its acting as Custodian pursuant to the Deposit Agreement.
Upon the appointment of any successor depositary, any Custodian then acting hereunder shall, unless otherwise instructed by the Depositary, continue to be the Custodian of the Deposited Property without any further act or writing, and shall be subject to the direction of the successor depositary. The successor depositary so appointed shall, nevertheless, on the written request of any Custodian, execute and deliver to such Custodian all such instruments as may be proper to give to such Custodian full and complete power and authority to act on the direction of such successor depositary.
Section 5.6 Notices and Reports . On or before the first date on which the Company gives notice, by publication or otherwise, of any meeting of holders of Shares or other Deposited Securities, or of any adjourned meeting of such holders, or of the taking of any action by such holders other than at a meeting, or of the taking of any action in respect of any cash or other distributions or the offering of any rights in respect of Deposited Securities, the Company shall
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transmit to the Depositary and the Custodian a copy of the notice thereof in the English language but otherwise in the form given or to be given to holders of Shares or other Deposited Securities. The Company shall also furnish to the Custodian and the Depositary a summary, in English, of any applicable provisions or proposed provisions of the Articles of Association of the Company that may be relevant or pertain to such notice of meeting or be the subject of a vote thereat.
The Company will also transmit to the Depositary (a) an English language version of the other notices, reports and communications which are made generally available by the Company to holders of its Shares or other Deposited Securities and (b) the English-language versions of the Companys annual reports prepared in accordance with the applicable requirements of the Commission. The Depositary shall arrange, at the request of the Company and at the Companys expense, to provide copies thereof to all Holders or make such notices, reports and other communications available to all Holders on a basis similar to that for holders of Shares or other Deposited Securities or on such other basis as the Company may advise the Depositary or as may be required by any applicable law, regulation or stock exchange requirement. The Company has delivered to the Depositary and the Custodian a copy of the Companys Articles of Association along with the provisions of or governing the Shares and any other Deposited Securities issued by the Company in connection with such Shares, and promptly upon any amendment thereto or change therein, the Company shall deliver to the Depositary and the Custodian a copy of such amendment thereto or change therein. The Depositary may rely upon such copy for all purposes of the Deposit Agreement.
The Depositary will, at the expense of the Company, make available a copy of any such notices, reports or communications issued by the Company and delivered to the Depositary for inspection by the Holders of the ADSs at the Depositarys Principal Office, at the office of the Custodian and at any other designated transfer office.
Section 5.7 Issuance of Additional Shares, ADSs, etc . The Company agrees that in the event it or any of its Affiliates proposes (i) an issuance, sale or distribution of additional Shares, (ii) an offering of rights to subscribe for Shares or other Deposited Securities, (iii) an issuance or assumption of securities convertible into or exchangeable for Shares, (iv) an issuance of rights to subscribe for securities convertible into or exchangeable for Shares, (v) an elective dividend of cash or Shares, (vi) a redemption of Deposited Securities, (vii) a meeting of holders of Deposited Securities, or solicitation of consents or proxies, relating to any reclassification of securities, merger or consolidation or transfer of assets, (viii) any assumption, reclassification, recapitalization, reorganization, merger, consolidation or sale of assets which affects the Deposited Securities, or (ix) a distribution of securities other than Shares, it will obtain U.S. legal advice and take all steps necessary to ensure that the proposed transaction does not violate the registration provisions of the Securities Act, or any other applicable laws (including, without limitation, the Investment Company Act of 1940, as amended, the Exchange Act and the securities laws of the states of the U.S.). In support of the foregoing, the Company will furnish to the Depositary (a) a written opinion of U.S. counsel (reasonably satisfactory to the Depositary) stating whether such transaction (1) requires a registration statement under the Securities Act to be in effect or (2) is exempt from the registration requirements of the Securities Act and (b) an opinion of English counsel stating that (1) making the transaction available to Holders and Beneficial Owners does not violate the laws or regulations of England and (2) all requisite regulatory consents and approvals have been obtained in England. If the filing of a registration
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statement is required, the Depositary shall not have any obligation to proceed with the transaction unless it shall have received evidence reasonably satisfactory to it that such registration statement has been declared effective. If, being advised by counsel, the Company determines that a transaction is required to be registered under the Securities Act, the Company will either (i) register such transaction to the extent necessary, (ii) alter the terms of the transaction to avoid the registration requirements of the Securities Act or (iii) direct the Depositary to take specific measures, in each case as contemplated in the Deposit Agreement, to prevent such transaction from violating the registration requirements of the Securities Act. The Company agrees with the Depositary that neither the Company nor any of its Affiliates will at any time (i) deposit any Shares or other Deposited Securities, either upon original issuance or upon a sale of Shares or other Deposited Securities previously issued and reacquired by the Company or by any such Affiliate, or (ii) issue additional Shares, rights to subscribe for such Shares, securities convertible into or exchangeable for Shares or rights to subscribe for such securities or distribute securities other than Shares, unless such transaction and the securities issuable in such transaction do not violate the registration provisions of the Securities Act, or any other applicable laws (including, without limitation, the Investment Company Act of 1940, as amended, the Exchange Act and the securities laws of the states of the U.S.).
Notwithstanding anything else contained in the Deposit Agreement, nothing in the Deposit Agreement shall be deemed to obligate the Company to file any registration statement in respect of any proposed transaction.
Section 5.8 Indemnification . The Depositary agrees to indemnify the Company and its directors, officers, employees, agents and Affiliates against, and hold each of them harmless from, any direct loss, liability, tax, charge or expense of any kind whatsoever (including, but not limited to, the reasonable fees and expenses of counsel) which may arise out of acts performed or omitted by the Depositary under the terms hereof due to the negligence or bad faith of the Depositary.
The Company agrees to indemnify the Depositary, the Custodian and any of their respective directors, officers, employees, agents and Affiliates against, and hold each of them harmless from, any direct loss, liability, tax, (other than tax levied on such person by any taxing authority on revenues generated as Depositary or Custodian) charge or expense of any kind whatsoever (including, but not limited to, the reasonable fees and expenses of counsel) that may arise (a) out of, or in connection with, any offer, issuance, sale, resale, transfer, deposit or withdrawal of ADRs, ADSs, the Shares, or other Deposited Securities, as the case may be, (b) out of, or as a result of, any offering documents in respect thereof or (c) out of acts performed or omitted, including, but not limited to, any delivery by the Depositary on behalf of the Company of information regarding the Company in connection with the Deposit Agreement, the ADRs, the ADSs, the Shares, or any Deposited Property, in any such case (i) by the Depositary, the Custodian or any of their respective directors, officers, employees, agents and Affiliates, except to the extent such loss, liability, tax, charge or expense is due to the negligence or bad faith of any of them, or (ii) by the Company or any of its directors, officers, employees, agents and Affiliates.
The obligations set forth in this Section shall survive the termination of the Deposit Agreement and the succession or substitution of any party hereto.
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Any person seeking indemnification hereunder (an indemnified person) shall notify the person from whom it is seeking indemnification (the indemnifying person) of the commencement of any indemnifiable action or claim promptly after such indemnified person becomes aware of such commencement (provided that the failure to make such notification shall not affect such indemnified persons rights to seek indemnification except to the extent the indemnifying person is materially prejudiced by such failure) and shall consult in good faith with the indemnifying person as to the conduct of the defense of such action or claim that may give rise to an indemnity hereunder, which defense shall be reasonable in the circumstances. No indemnified person shall compromise or settle any action or claim that may give rise to an indemnity hereunder without the consent of the indemnifying person, which consent shall not be unreasonably withheld.
Section 5.9 ADS Fees and Charges . The Company, the Holders, the Beneficial Owners, and persons depositing Shares for issuance of ADSs or surrendering ADSs for cancellation and withdrawal of Deposited Securities shall be required to pay the ADS fees and charges identified as payable by them respectively in the ADS fee schedule attached hereto as Exhibit B. All ADS fees and charges so payable may be deducted from distributions or must be remitted to the Depositary, or its designee, and may, at any time and from time to time, be changed by agreement between the Depositary and the Company, but, in the case of ADS fees and charges payable by Holders and Beneficial Owners, only in the manner contemplated in Section 6.1. The Depositary shall provide, without charge, a copy of its latest ADS fee schedule to anyone upon request.
ADS fees and charges payable upon (i) deposit of Shares against issuance of ADSs and (ii) surrender of ADSs for cancellation and withdrawal of Deposited Securities will be payable by the person to whom the ADSs so issued are delivered by the Depositary (in the case of ADS issuances) and by the person who delivers the ADSs for cancellation to the Depositary (in the case of ADS cancellations). In the case of ADSs issued by the Depositary into DTC or presented to the Depositary via DTC, the ADS issuance and cancellation fees and charges will be payable by the DTC Participant(s) receiving the ADSs from the Depositary or the DTC Participant(s) surrendering the ADSs to the Depositary for cancellation, as the case may be, on behalf of the Beneficial Owner(s) and will be charged by the DTC Participant(s) to the account(s) of the applicable Beneficial Owner(s) in accordance with the procedures and practices of the DTC participant(s) as in effect at the time. ADS fees and charges in respect of distributions and the ADS service fee are payable by Holders as of the applicable ADS Record Date established by the Depositary. In the case of distributions of cash, the amount of the applicable ADS fees and charges is deducted from the funds being distributed. In the case of (i) distributions other than cash and (ii) the ADS service fee, the applicable Holders as of the ADS Record Date established by the Depositary will be invoiced for the amount of the ADS fees and charges. For ADSs held through DTC, the ADS fees and charges for distributions other than cash and the ADS service fee are charged to the DTC Participants in accordance with the procedures and practices prescribed by DTC from time to time and the DTC Participants in turn charge the amount of such ADS fees and charges to the Beneficial Owners for whom they hold ADSs.
The Depositary may reimburse the Company for certain expenses incurred by the Company in respect of the ADR program established pursuant to the Deposit Agreement, by making available a portion of the ADS fees charged in respect of the ADR program or otherwise,
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upon such terms and conditions as the Company and the Depositary agree from time to time. The Company shall pay to the Depositary such fees and charges, and reimburse the Depositary for such out-of-pocket expenses, as the Depositary and the Company may agree from time to time. Responsibility for payment of such fees, charges and reimbursements may from time to time be changed by agreement between the Company and the Depositary. Unless otherwise agreed, the Depositary shall present its statement for such fees, charges and reimbursements to the Company once every three months. The charges and expenses of the Custodian are for the sole account of the Depositary.
The obligation of Holders and Beneficial Owners to pay ADS fees and charges shall survive the termination of the Deposit Agreement. As to any Depositary, upon the resignation or removal of such Depositary as described in Section 5.4, the right to collect ADS fees, charges and expenses shall extend for those ADS fees and charges incurred prior to the effectiveness of such resignation or removal.
Section 5.10 Pre-Release Transactions . Subject to the further terms and provisions of this Section 5.10, the Depositary, its Affiliates and their agents, on their own behalf, may own and deal in any class of securities of the Company and its Affiliates and in ADSs. In its capacity as Depositary, the Depositary shall not lend Shares or ADSs; provided, however, that the Depositary may (i) issue ADSs prior to the receipt of Shares pursuant to Section 2.3 and (ii) deliver Shares prior to the receipt of ADSs for withdrawal of Deposited Securities pursuant to Section 2.7, including ADSs which were issued under (i) above but for which Shares may not have been received (each such transaction a Pre-Release Transaction ). The Depositary may receive ADSs in lieu of Shares under (i) above and receive Shares in lieu of ADSs under (ii) above. Each such Pre-Release Transaction will be (a) subject to a written agreement whereby the person or entity (the Applicant ) to whom ADSs or Shares are to be delivered (w) represents that at the time of the Pre-Release Transaction the Applicant or its customer owns the Shares or ADSs that are to be delivered by the Applicant under such Pre-Release Transaction, (x) agrees to indicate the Depositary as owner of such Shares or ADSs in its records and to hold such Shares or ADSs in trust for the Depositary until such Shares or ADSs are delivered to the Depositary or the Custodian, (y) unconditionally guarantees to deliver to the Depositary or the Custodian, as applicable, such Shares or ADSs, and (z) agrees to any additional restrictions or requirements that the Depositary deems appropriate, (b) at all times fully collateralized with cash, U.S. government securities or such other collateral as the Depositary deems appropriate, (c) terminable by the Depositary on not more than five (5) business days notice and (d) subject to such further indemnities and credit regulations as the Depositary deems appropriate. The Depositary will normally limit the number of (x) ADSs involved in such Pre-Release Transactions at any one time to thirty percent (30%) of the ADSs outstanding (without giving effect to ADSs outstanding under (i) above) and (y) the number of Shares involved in such Pre-Release Transactions to thirty percent (30%) of the number of Shares deposited hereunder, respectively, provided, however, that the Depositary reserves the right to change or disregard such limit from time to time as it deems appropriate.
The Depositary may also set limits with respect to the number of ADSs and Shares involved in Pre-Release Transactions with any one person on a case-by-case basis as it deems appropriate. The Depositary may retain for its own account any compensation received by it in conjunction with the foregoing. Collateral provided pursuant to (b) above, but not the earnings thereon, shall be held for the benefit of the Holders (other than the Applicant).
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Section 5.11 Restricted Securities Owners . The Company agrees to advise in writing each of the persons or entities who, to the knowledge of the Company, holds Restricted Securities that such Restricted Securities are ineligible for deposit hereunder (except under the circumstances contemplated in Section 2.14) and, to the extent practicable, shall require each of such persons to represent in writing that such person will not deposit Restricted Securities hereunder (except under the circumstances contemplated in Section 2.14).
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.1 Amendment/Supplement . Subject to the terms and conditions of this Section 6.1 and applicable law, the ADRs outstanding at any time, the provisions of the Deposit Agreement and the form of ADR attached hereto and to be issued under the terms hereof may at any time and from time to time be amended or supplemented by written agreement between the Company and the Depositary in any respect which they may deem necessary or desirable without the prior written consent of the Holders or Beneficial Owners. Any amendment or supplement which shall impose or increase any fees or charges (other than charges in connection with foreign exchange control regulations, and taxes and other governmental charges, delivery and other such expenses), or which shall otherwise materially prejudice any substantial existing right of Holders or Beneficial Owners, shall not, however, become effective as to outstanding ADSs until the expiration of thirty (30) days after notice of such amendment or supplement shall have been given to the Holders of outstanding ADSs. Notice of any amendment to the Deposit Agreement or any ADR shall not need to describe in detail the specific amendments effectuated thereby, and failure to describe the specific amendments in any such notice shall not render such notice invalid, provided , however , that, in each such case, the notice given to the Holders identifies a means for Holders and Beneficial Owners to retrieve or receive the text of such amendment ( i.e. , upon retrieval from the Commissions, the Depositarys or the Companys website or upon request from the Depositary). The parties hereto agree that any amendments or supplements which (i) are reasonably necessary (as agreed by the Company and the Depositary) in order for (a) the ADSs to be registered on Form F-6 under the Securities Act or (b) the ADSs to be settled solely in electronic book-entry form and (ii) do not in either such case impose or increase any fees or charges to be borne by Holders, shall be deemed not to materially prejudice any substantial rights of Holders or Beneficial Owners. Every Holder and Beneficial Owner at the time any amendment or supplement so becomes effective shall be deemed, by continuing to hold such ADSs, to consent and agree to such amendment or supplement and to be bound by the Deposit Agreement and the ADR, if applicable, as amended or supplemented thereby. In no event shall any amendment or supplement impair the right of the Holder to surrender such ADS and receive therefor the Deposited Securities represented thereby, except in order to comply with mandatory provisions of applicable law. Notwithstanding the foregoing, if any governmental body should adopt new laws, rules or regulations which would require an amendment of, or supplement to, the Deposit Agreement to ensure compliance therewith, the Company and the Depositary may amend or supplement the Deposit Agreement and any ADRs at any time in accordance with such changed laws, rules or regulations. Such amendment or supplement to the
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Deposit Agreement and any ADRs in such circumstances may become effective before a notice of such amendment or supplement is given to Holders or within any other period of time as required for compliance with such laws, rules or regulations.
Section 6.2 Termination . The Depositary shall, at any time at the written direction of the Company, terminate the Deposit Agreement by distributing notice of such termination to the Holders of all ADSs then outstanding at least thirty (30) days prior to the date fixed in such notice for such termination. If ninety (90) days shall have expired after (i) the Depositary shall have delivered to the Company a written notice of its election to resign, or (ii) the Company shall have delivered to the Depositary a written notice of the removal of the Depositary, and, in either case, a successor depositary shall not have been appointed and accepted its appointment as provided in Section 5.4 of the Deposit Agreement, the Depositary may terminate the Deposit Agreement by distributing notice of such termination to the Holders of all ADSs then outstanding at least thirty (30) days prior to the date fixed in such notice for such termination. The date so fixed for termination of the Deposit Agreement in any termination notice so distributed by the Depositary to the Holders of ADSs is referred to as the Termination Date . Until the Termination Date, the Depositary shall continue to perform all of its obligations under the Deposit Agreement, and the Holders and Beneficial Owners will be entitled to all of their rights under the Deposit Agreement.
If any ADSs shall remain outstanding after the Termination Date, the Registrar and the Depositary shall not, after the Termination Date, have any obligation to perform any further acts under the Deposit Agreement, except that the Depositary shall, subject, in each case, to the terms and conditions of the Deposit Agreement, continue to (i) collect dividends and other distributions pertaining to Deposited Securities, (ii) sell Deposited Property received in respect of Deposited Securities, (iii) deliver Deposited Securities, together with any dividends or other distributions received with respect thereto and the net proceeds of the sale of any other Deposited Property, in exchange for ADSs surrendered to the Depositary (after deducting, or charging, as the case may be, in each case, the fees and charges of, and expenses incurred by, the Depositary, and all applicable taxes or governmental charges for the account of the Holders and Beneficial Owners, in each case upon the terms set forth in Section 5.9 of the Deposit Agreement), and (iv) take such actions as may be required under applicable law in connection with its role as Depositary under the Deposit Agreement.
At any time after the Termination Date, the Depositary may sell the Deposited Property then held under the Deposit Agreement and shall after such sale hold un-invested the net proceeds of such sale, together with any other cash then held by it under the Deposit Agreement, in an un-segregated account and without liability for interest, for the pro rata benefit of the Holders whose ADSs have not theretofore been surrendered. After making such sale, the Depositary shall be discharged from all obligations under the Deposit Agreement except (i) to account for such net proceeds and other cash (after deducting, or charging, as the case may be, in each case, the fees and charges of, and expenses incurred by, the Depositary, and all applicable taxes or governmental charges for the account of the Holders and Beneficial Owners, in each case upon the terms set forth in Section 5.9 of the Deposit Agreement), and (ii) as may be required at law in connection with the termination of the Deposit Agreement. After the Termination Date, the Company shall be discharged from all obligations under the Deposit Agreement, except for its obligations to the Depositary under Sections 5.8, 5.9 and 7.6 of the
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Deposit Agreement. The obligations under the terms of the Deposit Agreement of Holders and Beneficial Owners of ADSs outstanding as of the Termination Date shall survive the Termination Date and shall be discharged only when the applicable ADSs are presented by their Holders to the Depositary for cancellation under the terms of the Deposit Agreement.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Counterparts . The Deposit Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of such counterparts together shall constitute one and the same agreement. Copies of the Deposit Agreement shall be maintained with the Depositary and shall be open to inspection by any Holder during business hours.
Section 7.2 No Third-Party Beneficiaries . The Deposit Agreement is for the exclusive benefit of the parties hereto (and their successors) and shall not be deemed to give any legal or equitable right, remedy or claim whatsoever to any other person, except to the extent specifically set forth in the Deposit Agreement. Nothing in the Deposit Agreement shall be deemed to give rise to a partnership or joint venture among the parties nor establish a fiduciary or similar relationship among the parties. The parties hereto acknowledge and agree that (i) the Depositary and its Affiliates may at any time have multiple banking relationships with the Company and its Affiliates, (ii) the Depositary and its Affiliates may be engaged at any time in transactions in which parties adverse to the Company or the Holders or Beneficial Owners may have interests and (iii) nothing contained in the Deposit Agreement shall (a) preclude the Depositary or any of its Affiliates from engaging in such transactions or establishing or maintaining such relationships, and (b) obligate the Depositary or any of its Affiliates to disclose such transactions or relationships or to account for any profit made or payment received in such transactions or relationships.
Section 7.3 Severability . In case any one or more of the provisions contained in the Deposit Agreement or in the ADRs should be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein or therein shall in no way be affected, prejudiced or disturbed thereby.
Section 7.4 Holders and Beneficial Owners as Parties; Binding Effect . The Holders and Beneficial Owners from time to time of ADSs issued hereunder shall be parties to the Deposit Agreement and shall be bound by all of the terms and conditions hereof and of any ADR evidencing their ADSs by acceptance thereof or any beneficial interest therein.
Section 7.5 Notices . Any and all notices to be given to the Company shall be deemed to have been duly given if personally delivered or sent by mail, air courier or cable, telex or facsimile transmission, confirmed by letter personally delivered or sent by mail or air courier, addressed to Reed Elsevier PLC, 1-3 Strand, London, WC2N5JR, England, Attention : Company Secretary, or to any other address which the Company may specify in writing to the Depositary.
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Any and all notices to be given to the Depositary shall be deemed to have been duly given if personally delivered or sent by mail, air courier or cable, telex or facsimile transmission, confirmed by letter personally delivered or sent by mail or air courier, addressed to Citibank, N.A., 388 Greenwich Street, New York, New York 10013, U.S.A., Attention : Depositary Receipts Department, or to any other address which the Depositary may specify in writing to the Company.
Any and all notices to be given to any Holder shall be deemed to have been duly given if (a) personally delivered or sent by mail or cable, telex or facsimile transmission, confirmed by letter, addressed to such Holder at the address of such Holder as it appears on the books of the Depositary or, if such Holder shall have filed with the Depositary a request that notices intended for such Holder be mailed to some other address, at the address specified in such request, or (b) if a Holder shall have designated such means of notification as an acceptable means of notification under the terms of the Deposit Agreement, by means of electronic messaging addressed for delivery to the e-mail address designated by the Holder for such purpose. Notice to Holders shall be deemed to be notice to Beneficial Owners for all purposes of the Deposit Agreement. Failure to notify a Holder or any defect in the notification to a Holder shall not affect the sufficiency of notification to other Holders or to the Beneficial Owners of ADSs held by such other Holders.
Delivery of a notice sent by mail, air courier or cable, telex or facsimile transmission shall be deemed to be effective at the time when a duly addressed letter containing the same (or a confirmation thereof in the case of a cable, telex or facsimile transmission) is deposited, postage prepaid, in a post-office letter box or delivered to an air courier service, without regard for the actual receipt or time of actual receipt thereof by a Holder. The Depositary or the Company may, however, act upon any cable, telex or facsimile transmission received by it from any Holder, the Custodian, the Depositary, or the Company, notwithstanding that such cable, telex or facsimile transmission shall not be subsequently confirmed by letter.
Delivery of a notice by means of electronic messaging shall be deemed to be effective at the time of the initiation of the transmission by the sender (as shown on the senders records), notwithstanding that the intended recipient retrieves the message at a later date, fails to retrieve such message, or fails to receive such notice on account of its failure to maintain the designated e-mail address, its failure to designate a substitute e-mail address or for any other reason.
Section 7.6 Governing Law and Jurisdiction . The Deposit Agreement and the ADRs shall be interpreted in accordance with, and all rights hereunder and thereunder and provisions hereof and thereof shall be governed by, the laws of the State of New York. Notwithstanding anything contained in the Deposit Agreement, any ADR or any present or future provisions of the laws of the State of New York, the rights of holders of Shares and of any other Deposited Securities and the obligations and duties of the Company in respect of the holders of Shares and other Deposited Securities, as such, shall be governed by the laws of England (or, if applicable, such other laws as may govern the Deposited Securities).
Except as set forth in the following paragraph of this Section 7.6, the Company and the Depositary agree that the federal or state courts in the City of New York shall have jurisdiction to hear and determine any suit, action or proceeding and to settle any dispute between them that
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may arise out of or in connection with the Deposit Agreement and, for such purposes, each irrevocably submits to the non-exclusive jurisdiction of such courts. The Company hereby irrevocably designates, appoints and empowers Kenneth Thompson II (the Agent ) now at 9443 Springboro Pike, B4/F5/514, Miamisburg, Ohio, 45342 as its authorized agent to receive and accept for and on its behalf, and on behalf of its properties, assets and revenues, service by mail of any and all legal process, summons, notices and documents that may be served in any suit, action or proceeding brought against the Company in any federal or state court as described in the preceding sentence or in the next paragraph of this Section 7.6. If for any reason the Agent shall cease to be available to act as such, the Company agrees to designate a new agent in New York on the terms and for the purposes of this Section 7.6 reasonably satisfactory to the Depositary. The Company further hereby irrevocably consents and agrees to the service of any and all legal process, summons, notices and documents in any suit, action or proceeding against the Company, by service by mail of a copy thereof upon the Agent (whether or not the appointment of such Agent shall for any reason prove to be ineffective or such Agent shall fail to accept or acknowledge such service), with a copy mailed to the Company by registered or certified air mail, postage prepaid, to its address provided in Section 7.5. The Company agrees that the failure of the Agent to give any notice of such service to it shall not impair or affect in any way the validity of such service or any judgment rendered in any action or proceeding based thereon.
Notwithstanding the foregoing, the Depositary and the Company unconditionally agree that in the event that a Holder or Beneficial Owner brings a suit, action or proceeding against (a) the Company, (b) the Depositary in its capacity as Depositary under the Deposit Agreement or (c) against both the Company and the Depositary, in any such case, in any state or federal court of the United States, and the Depositary or the Company have any claim, for indemnification or otherwise, against each other arising out of the subject matter of such suit, action or proceeding, then the Company and the Depositary may pursue such claim against each other in the state or federal court in the United States in which such suit, action, or proceeding is pending and, for such purposes, the Company and the Depositary irrevocably submit to the non-exclusive jurisdiction of such courts. The Company agrees that service of process upon the Agent in the manner set forth in the preceding paragraph shall be effective service upon it for any suit, action or proceeding brought against it as described in this paragraph.
The Company irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of venue of any actions, suits or proceedings brought in any court as provided in this Section 7.6, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.
The Company irrevocably and unconditionally waives, to the fullest extent permitted by law, and agrees not to plead or claim, any right of immunity from legal action, suit or proceeding, from setoff or counterclaim, from the jurisdiction of any court, from service of process, from attachment upon or prior to judgment, from attachment in aid of execution or judgment, from execution of judgment, or from any other legal process or proceeding for the giving of any relief or for the enforcement of any judgment, and consents to such relief and enforcement against it, its assets and its revenues in any jurisdiction, in each case with respect to any matter arising out of, or in connection with, the Deposit Agreement, any ADR or the Deposited Property.
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No disclaimer of liability under the Securities Act is intended by any provision of the Deposit Agreement. The provisions of this Section 7.6 shall survive any termination of the Deposit Agreement, in whole or in part.
Section 7.7 Assignment . Subject to the provisions of Section 5.4, the Deposit Agreement may not be assigned by either the Company or the Depositary.
Section 7.8 Compliance with U.S. Securities Laws . Notwithstanding anything in the Deposit Agreement to the contrary, the withdrawal or delivery of Deposited Securities will not be suspended by the Company or the Depositary except as would be permitted by Instruction I.A.(1) of the General Instructions to Form F-6 Registration Statement, as amended from time to time, under the Securities Act.
Section 7.9 English Law References . Any summary of English laws and regulations and of the terms of the Companys Articles of Association set forth in the Deposit Agreement have been provided by the Company solely for the convenience of Holders, Beneficial Owners and the Depositary. While such summaries are believed by the Company to be accurate as of the date of the Deposit Agreement, (i) they are summaries and as such may not include all aspects of the materials summarized applicable to a Holder or Beneficial Owner, and (ii) these laws and regulations and the Companys Articles of Association may change after the date of the Deposit Agreement. Neither the Depositary nor the Company has any obligation under the terms of the Deposit Agreement to update any such summaries.
Section 7.10 Titles and References .
(a) Deposit Agreement . All references in the Deposit Agreement to exhibits, articles, sections, subsections, and other subdivisions refer to the exhibits, articles, sections, subsections and other subdivisions of the Deposit Agreement unless expressly provided otherwise. The words the Deposit Agreement, herein, hereof, hereby, hereunder, and words of similar import refer to the Deposit Agreement as a whole as in effect at the relevant time between the Company, the Depositary and the Holders and Beneficial Owners of ADSs and not to any particular subdivision unless expressly so limited. Pronouns in masculine, feminine and neuter gender shall be construed to include any other gender, and words in the singular form shall be construed to include the plural and vice versa unless the context otherwise requires. Titles to sections of the Deposit Agreement are included for convenience only and shall be disregarded in construing the language contained in the Deposit Agreement. References to applicable laws and regulations shall refer to laws and regulations applicable to ADRs, ADSs or Deposited Property as in effect at the relevant time of determination, unless otherwise required by law or regulation.
(b) ADRs . All references in any ADR(s) to paragraphs, exhibits, articles, sections, subsections, and other subdivisions refer to the paragraphs, exhibits, articles, sections, subsections and other subdivisions of the ADR(s) in question unless expressly provided otherwise. The words the Receipt, the ADR, herein, hereof, hereby, hereunder, and
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words of similar import used in any ADR refer to the ADR as a whole and as in effect at the relevant time, and not to any particular subdivision unless expressly so limited. Pronouns in masculine, feminine and neuter gender in any ADR shall be construed to include any other gender, and words in the singular form shall be construed to include the plural and vice versa unless the context otherwise requires. Titles to paragraphs of any ADR are included for convenience only and shall be disregarded in construing the language contained in the ADR. References to applicable laws and regulations shall refer to laws and regulations applicable to ADRs, ADSs or Deposited Property as in effect at the relevant time of determination, unless otherwise required by law or regulation.
Section 7.11 Amendment and Restatement . The Depositary shall arrange to have new ADRs printed that reflect the form of ADR attached to the Deposit Agreement. All ADRs issued hereunder after the date hereof, whether upon the deposit of Shares or other Deposited Securities or upon the transfer, combination or split-up of existing ADRs, shall be substantially in the form of the specimen ADR attached as Exhibit A hereto. However, American depositary receipts issued prior to the date hereof under the terms of the Original Deposit Agreement and outstanding as of the date hereof, which do not reflect the form of ADR attached hereto as Exhibit A , do not need to be called in for exchange and may remain outstanding until such time as the Holders thereof choose to surrender them for any reason under the Deposit Agreement. The Depositary is authorized and directed to take any and all actions deemed necessary to effect the foregoing.
The Company hereby instructs the Depositary to (i) promptly send notice of the execution of the Deposit Agreement to all holders of American depositary shares outstanding under the Original Deposit Agreement as of the date hereof and (ii) inform holders of American depositary shares issued as certificated American depositary shares and outstanding under the Original Deposit Agreement as of the date hereof that they have the opportunity, but are not required, to exchange their American depositary receipts for one or more ADR(s) issued pursuant to the Deposit Agreement.
Holders and Beneficial Owners of American depositary shares issued pursuant to the Original Deposit Agreement and outstanding as of the date hereof, shall, from and after the date hereof, be deemed Holders and Beneficial Owners of ADSs issued pursuant and be subject to all of the terms and conditions of the Deposit Agreement in all respects, provided, however, that any term of the Deposit Agreement that prejudices any substantial existing right of holders or beneficial owners of American depositary shares issued under the Original Deposit Agreement shall not become effective as to Holders and Beneficial Owners until thirty (30) days after notice of the amendments effectuated by the Deposit Agreement shall have been given to holders of ADSs outstanding as of the date hereof.
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IN WITNESS WHEREOF, REED ELSEVIER PLC and CITIBANK, N.A. have duly executed the Deposit Agreement as of the day and year first above set forth and all Holders and Beneficial Owners shall become parties hereto upon acceptance by them of ADSs issued in accordance with the terms hereof, or upon acquisition of any beneficial interest therein.
REED ELSEVIER PLC | ||
By: |
/s/ Alan McCulloch |
|
Name: | ||
Title: |
Deputy Secretary |
|
CITIBANK, N.A. | ||
By: |
/s/ Mark Gherzo |
|
Name: | ||
Title: |
Vice President |
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EXHIBIT A
[FORM OF ADR]
Number
|
CUSIP NUMBER: |
American Depositary Shares (each American Depositary Share representing the right to receive four (4) fully paid ordinary shares) |
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES
of
REED ELSEVIER PLC
(Incorporated under the laws of England)
CITIBANK, N.A., a national banking association organized and existing under the laws of the United States of America, as depositary (the Depositary), hereby certifies that is the owner of American Depositary Shares (hereinafter ADS) representing deposited ordinary shares, including evidence of rights to receive such ordinary shares (the Shares), of REED ELSEVIER PLC, a corporation incorporated under the laws of England (the Company). As of the date of the Deposit Agreement (as hereinafter defined), each ADS represents the right to receive four (4) Shares deposited under the Deposit Agreement with the Custodian, which at the date of execution of the Deposit Agreement is Citibank, N.A. - London (the Custodian). The ADS(s)-to-Share(s) ratio is subject to amendment as provided in Articles IV and VI of the Deposit Agreement. The Depositarys Principal Office is located at 388 Greenwich Street, New York, New York 10013, U.S.A.
(1) The Deposit Agreement . This American Depositary Receipt is one of an issue of American Depositary Receipts (ADRs), all issued and to be issued upon the terms and conditions set forth in the Amended and Restated Deposit Agreement, dated as of August 1, 2014 (as amended and supplemented from time to time, the Deposit Agreement), by and among the Company, the Depositary, and all Holders and Beneficial Owners from time to time of ADSs issued thereunder. The Deposit Agreement sets forth the rights and obligations of
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Holders and Beneficial Owners of ADSs and the rights and duties of the Depositary in respect of the Shares deposited thereunder and any and all other Deposited Property (as defined in the Deposit Agreement) from time to time received and held on deposit in respect of the ADSs. Copies of the Deposit Agreement are on file at the Principal Office of the Depositary and with the Custodian. Each Holder and each Beneficial Owner, upon acceptance of any ADSs (or any interest therein) issued in accordance with the terms and conditions of the Deposit Agreement, or by continuing to hold, from and after the date hereof any American depositary shares issued and outstanding under the Original Deposit Agreement, shall be deemed for all purposes to (a) be a party to and bound by the terms of the Deposit Agreement and the applicable ADR(s), and (b) appoint the Depositary its attorney-in-fact, with full power to delegate, to act on its behalf and to take any and all actions contemplated in the Deposit Agreement and the applicable ADR(s), to adopt any and all procedures necessary to comply with applicable law and to take such action as the Depositary in its sole discretion may deem necessary or appropriate to carry out the purposes of the Deposit Agreement and the applicable ADR(s), the taking of such actions to be the conclusive determinant of the necessity and appropriateness thereof.
The statements made on the face and reverse of this ADR are summaries of certain provisions of the Deposit Agreement and the Articles of Association of the Company (as in effect on the date of the signing of the Deposit Agreement) and are qualified by and subject to the detailed provisions of the Deposit Agreement and the Articles of Association, to which reference is hereby made.
All capitalized terms not defined herein shall have the meanings ascribed thereto in the Deposit Agreement.
The Depositary makes no representation or warranty as to the validity or worth of the Deposited Property. The Depositary has made arrangements for the acceptance of the ADSs into DTC. Each Beneficial Owner of ADSs held through DTC must rely on the procedures of DTC and the DTC Participants to exercise and be entitled to any rights attributable to such ADSs. The Depositary may issue Uncertificated ADSs subject, however, to the terms and conditions of Section 2.13 of the Deposit Agreement.
(2) Surrender of ADSs and Withdrawal of Deposited Securities . The Holder of this ADR (and of the ADSs evidenced hereby) shall be entitled to Delivery (at the Custodians designated office) of the Deposited Securities at the time represented by the ADSs evidenced hereby upon satisfaction of each of the following conditions: (i) the Holder (or a duly-authorized attorney of the Holder) has duly Delivered ADSs to the Depositary at its Principal Office (and, if applicable, this ADR evidencing such ADSs) for the purpose of withdrawal of the Deposited Securities represented thereby, (ii) if applicable and so required by the Depositary, this ADR Delivered to the Depositary for such purpose has been properly endorsed in blank or is accompanied by proper instruments of transfer in blank (including signature guarantees in accordance with standard securities industry practice), (iii) if so required by the Depositary, the Holder of the ADSs has executed and delivered to the Depositary a written order directing the Depositary to cause the Deposited Securities being withdrawn to be Delivered to or upon the written order of the person(s) designated in such order, and (iv) all applicable fees and charges of, and expenses incurred by, the Depositary and all applicable taxes and governmental charges (as are set forth in Section 5.9 of, and Exhibit B to, the Deposit Agreement) have been paid,
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subject, however, in each case , to the terms and conditions of this ADR evidencing the surrendered ADSs, of the Deposit Agreement, of the Companys Articles of Association and of any applicable laws and the rules of Euroclear UK & Ireland, and to any provisions of or governing the Deposited Securities, in each case as in effect at the time thereof.
Upon satisfaction of each of the conditions specified above, the Depositary (i) shall cancel the ADSs Delivered to it (and, if applicable, this ADR(s) evidencing the ADSs so Delivered), (ii) shall direct the Registrar to record the cancellation of the ADSs so Delivered on the books maintained for such purpose, and (iii) shall direct the Custodian to Deliver, or cause the Delivery of, in each case, without unreasonable delay, the Deposited Securities represented by the ADSs so canceled together with any certificate or other document of title for the Deposited Securities, or evidence of the electronic transfer thereof (if available), as the case may be, to or upon the written order of the person(s) designated in the order delivered to the Depositary for such purpose, subject however, in each case , to the terms and conditions of the Deposit Agreement, of this ADR evidencing the ADS so canceled, of the Articles of Association of the Company, of any applicable laws and of the rules of Euroclear UK & Ireland, and to the terms and conditions of or governing the Deposited Securities, in each case as in effect at the time thereof.
The Depositary shall not accept for surrender ADSs representing less than one (1) Share. In the case of Delivery to it of ADSs representing a number other than a whole number of Shares, the Depositary shall cause ownership of the appropriate whole number of Shares to be Delivered in accordance with the terms hereof, and shall, at the discretion of the Depositary, either (i) return to the person surrendering such ADSs the number of ADSs representing any remaining fractional Share, or (ii) sell or cause to be sold the fractional Share represented by the ADSs so surrendered and remit the proceeds of such sale (net of (a) applicable fees and charges of, and expenses incurred by, the Depositary and (b) taxes withheld) to the person surrendering the ADSs.
Notwithstanding anything else contained in this ADR or the Deposit Agreement, the Depositary may make delivery at the Principal Office of the Depositary of Deposited Property consisting of (i) any cash dividends or cash distributions, or (ii) any proceeds from the sale of any non-cash distributions, which are at the time held by the Depositary in respect of the Deposited Securities represented by the ADSs surrendered for cancellation and withdrawal. At the request, risk and expense of any Holder so surrendering ADSs represented by this ADR, and for the account of such Holder, the Depositary shall direct the Custodian to forward (to the extent permitted by law) any Deposited Property (other than Deposited Securities) held by the Custodian in respect of such ADSs to the Depositary for delivery at the Principal Office of the Depositary. Such direction shall be given by letter or, at the request, risk and expense of such Holder, by cable, telex or facsimile transmission.
(3) Transfer, Combination and Split-up of ADRs . The Registrar shall register the transfer of this ADR (and of the ADSs represented hereby) on the books maintained for such purpose and the Depositary shall (x) cancel this ADR and execute new ADRs evidencing the same aggregate number of ADSs as those evidenced by this ADR canceled by the Depositary, (y) cause the Registrar to countersign such new ADRs, and (z) Deliver such new ADRs to or upon the order of the person entitled thereto, if each of the following conditions has been
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satisfied: (i) this ADR has been duly Delivered by the Holder (or by a duly authorized attorney of the Holder) to the Depositary at its Principal Office for the purpose of effecting a transfer thereof, (ii) this surrendered ADR has been properly endorsed or is accompanied by proper instruments of transfer (including signature guarantees in accordance with standard securities industry practice), (iii) this surrendered ADR has been duly stamped (if required by the laws of the State of New York or of the United States), and (iv) all applicable fees and charges of, and expenses incurred by, the Depositary and all applicable taxes and governmental charges (as are set forth in Section 5.9 of, and Exhibit B to, the Deposit Agreement) have been paid, subject , however, in each case , to the terms and conditions of this ADR, of the Deposit Agreement and of applicable law, in each case as in effect at the time thereof.
The Registrar shall register the split-up or combination of this ADR (and of the ADSs represented hereby) on the books maintained for such purpose and the Depositary shall (x) cancel this ADR and execute new ADRs for the number of ADSs requested, but in the aggregate not exceeding the number of ADSs evidenced by this ADR canceled by the Depositary, (y) cause the Registrar to countersign such new ADRs, and (z) Deliver such new ADRs to or upon the order of the Holder thereof, if each of the following conditions has been satisfied: (i) this ADR has been duly Delivered by the Holder (or by a duly authorized attorney of the Holder) to the Depositary at its Principal Office for the purpose of effecting a split-up or combination hereof, and (ii) all applicable fees and charges of, and expenses incurred by, the Depositary and all applicable taxes and governmental charges (as are set forth in Section 5.9 of, and Exhibit B to, the Deposit Agreement) have been paid, subject, however, in each case , to the terms and conditions of this ADR, of the Deposit Agreement and of applicable law, in each case as in effect at the time thereof.
The Depositary may appoint one or more co-transfer agents for the purpose of effecting transfers, combinations and split-ups of ADRs at designated transfer offices on behalf of the Depositary. In carrying out its functions, a co-transfer agent may require evidence of authority and compliance with applicable laws and other requirements by Holders or persons entitled to such ADRs and will be entitled to protection and indemnity to the same extent as the Depositary. Such co-transfer agents may be removed and substitutes appointed by the Depositary. Each co-transfer agent appointed under Section 2.6 of the Deposit Agreement (other than the Depositary) shall give notice in writing to the Depositary accepting such appointment and agreeing to be bound by the applicable terms of the Deposit Agreement.
(4) Pre-Conditions to Registration, Transfer, Etc . As a condition precedent to the execution and delivery, the registration of issuance, transfer, split-up, combination or surrender, of any ADS, the delivery of any distribution thereon, or the withdrawal of any Deposited Property, the Depositary or the Custodian may require (i) payment from the depositor of Shares or presenter of ADSs or of this ADR of a sum sufficient to reimburse it for any tax or other governmental charge and any stock transfer or registration fee with respect thereto (including any such tax or charge and fee with respect to Shares being deposited or withdrawn) and payment of any applicable fees and charges of the Depositary as provided in Section 5.9 and Exhibit B to the Deposit Agreement and in this ADR, (ii) the production of proof satisfactory to it as to the identity and genuineness of any signature or any other matter contemplated by Section 3.1 of the Deposit Agreement, and (iii) compliance with (A) any laws or governmental regulations relating to the execution and delivery of this ADR or ADSs or to the withdrawal of
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Deposited Securities and (B) such reasonable regulations as the Depositary and the Company may establish consistent with the provisions of this ADR, if applicable, the Deposit Agreement and applicable law.
The issuance of ADSs against deposits of Shares generally or against deposits of particular Shares may be suspended, or the deposit of particular Shares may be refused, or the registration of transfer of ADSs in particular instances may be refused, or the registration of transfer of ADSs generally may be suspended, during any period when the transfer books of the Company, the Depositary, a Registrar or the Share Registrar are closed or if any such action is deemed necessary or advisable by the Depositary or the Company, in good faith, at any time or from time to time because of any requirement of applicable law or regulation, any government or governmental body or commission or any securities exchange on which the ADSs or Shares are listed, or under any provision of the Deposit Agreement or this ADR, or under any provision of, or governing, the Deposited Securities, or because of a meeting of shareholders of the Company or for any other reason, subject, in all cases to paragraph (25) of this ADR and Section 7.8 of the Deposit Agreement. Notwithstanding any provision of the Deposit Agreement or this ADR to the contrary, Holders are entitled to surrender outstanding ADSs to withdraw the Deposited Securities associated therewith at any time subject only to (i) temporary delays caused by closing the transfer books of the Depositary or the Company or the deposit of Shares in connection with voting at a shareholders meeting or the payment of dividends, (ii) the payment of fees, taxes and similar charges, (iii) compliance with any U.S. or foreign laws or governmental regulations relating to the ADSs or to the withdrawal of the Deposited Securities, and (iv) other circumstances specifically contemplated by Instruction I.A.(l) of the General Instructions to Form F-6 (as such General Instructions may be amended from time to time).
(5) Compliance With Information Requests . Notwithstanding any other provision of the Deposit Agreement or this ADR, each Holder and Beneficial Owner of the ADSs represented hereby agrees to comply with requests from the Company pursuant to applicable law, the rules and requirements of London Stock Exchange, and any other stock exchange on which the Shares or ADSs are, or will be, registered, traded or listed, or the Articles of Association of the Company, which are made to provide information, inter alia , as to the capacity in which such Holder or Beneficial Owner owns ADSs (and the Shares represented by such ADSs, as the case may be) and regarding the identity of any other person(s) interested in such ADSs (and the Shares represented by such ADSs, as the case may be) and the nature of such interest and various other matters, whether or not they are Holders and/or Beneficial Owners at the time of such request. The Depositary agrees to use its reasonable efforts to forward, upon the request of the Company and at the Companys expense, any such request from the Company to the Holders and to forward to the Company any such responses to such requests received by the Depositary.
(6) Ownership Restrictions . Notwithstanding any other provision of this ADR or of the Deposit Agreement, the Company may restrict transfers of the Shares where such transfer might result in ownership of Shares exceeding limits imposed by applicable law or the Articles of Association of the Company. The Company may also restrict, in such manner as it deems appropriate, transfers of the ADSs where such transfer may result in the total number of Shares represented by the ADSs owned by a single Holder or Beneficial Owner to exceed any such limits. The Company may, in its sole discretion but subject to applicable law, instruct the
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Depositary to take action with respect to the ownership interest of any Holder or Beneficial Owner in excess of the limits set forth in the preceding sentence, including but not limited to, the imposition of restrictions on the transfer of ADSs, the removal or limitation of voting rights or the mandatory sale or disposition on behalf of a Holder or Beneficial Owner of the Shares represented by the ADSs held by such Holder or Beneficial Owner in excess of such limitations, if and to the extent such disposition is permitted by applicable law and the Articles of Association of the Company. Nothing herein or in the Deposit Agreement shall be interpreted as obligating the Depositary or the Company to ensure compliance with the ownership restrictions described herein or in Section 3.5 of the Deposit Agreement.
(7) Reporting Obligations and Regulatory Approvals . Applicable laws and regulations may require holders and beneficial owners of Shares, including the Holders and Beneficial Owners of ADSs, to satisfy reporting requirements and obtain regulatory approvals in certain circumstances. Holders and Beneficial Owners of ADSs are solely responsible for determining and complying with such reporting requirements and for obtaining such approvals. Each Holder and each Beneficial Owner hereby agrees to make such determination, file such reports, and obtain such approvals to the extent and in the form required by applicable laws and regulations as in effect from time to time. Neither the Depositary, the Custodian, the Company or any of their respective agents or affiliates shall be required to take any actions whatsoever on behalf of Holders or Beneficial Owners to determine or satisfy such reporting requirements or obtain such regulatory approvals under applicable laws and regulations.
(8) Liability for Taxes and Other Charges . Any tax or other governmental charge payable by the Custodian or by the Depositary with respect to any Deposited Property, ADSs or this ADR shall be payable by the Holders and Beneficial Owners to the Depositary. The Company, the Custodian and/or the Depositary may withhold or deduct from any distributions made in respect of Deposited Property and may sell for the account of a Holder and/or Beneficial Owner any or all of the Deposited Property and apply such distributions and sale proceeds in payment of any taxes (including applicable interest and penalties) or charges that are or may be payable by Holders or Beneficial Owners in respect of the ADSs, Deposited Property and this ADR, the Holder and the Beneficial Owner hereof remaining liable for any deficiency. The Custodian may refuse the deposit of Shares and the Depositary may refuse to issue ADSs, to deliver ADRs, register the transfer of ADSs, register the split-up or combination of ADRs and (subject to paragraph (25) of this ADR and Section 7.8 of the Deposit Agreement) the withdrawal of Deposited Property until payment in full of such tax, charge, penalty or interest is received. Every Holder and Beneficial Owner agrees to indemnify the Depositary, the Company, the Custodian, and any of their agents, officers, employees and Affiliates for, and to hold each of them harmless from, any claims with respect to taxes (including applicable interest and penalties thereon) arising from any tax benefit obtained for such Holder and/or Beneficial Owner.
(9) Representations and Warranties of Depositors . Each person depositing Shares under the Deposit Agreement shall be deemed thereby to represent and warrant that (i) such Shares and the certificates therefor are duly authorized, validly issued, fully paid, non-assessable and legally obtained by such person, (ii) all preemptive (and similar) rights, if any, with respect to such Shares have been validly waived or exercised, (iii) the person making such deposit is duly authorized so to do, (iv) the Shares presented for deposit are free and clear of any lien, encumbrance, security interest, charge, mortgage or adverse claim, (v) the Shares presented for
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deposit are not, and the ADSs issuable upon such deposit will not be, Restricted Securities (except as contemplated in Section 2.14 of the Deposit Agreement), and (vi) the Shares presented for deposit have not been stripped of any rights or entitlements. Such representations and warranties shall survive the deposit and withdrawal of Shares, the issuance and cancellation of ADSs in respect thereof and the transfer of such ADSs. If any such representations or warranties are false in any way, the Company and the Depositary shall be authorized, at the cost and expense of the person depositing Shares, to take any and all actions necessary to correct the consequences thereof.
(10) Proofs, Certificates and Other Information . Any person presenting Shares for deposit, any Holder and any Beneficial Owner may be required, and every Holder and Beneficial Owner agrees, from time to time to provide to the Depositary and the Custodian such proof of citizenship or residence, taxpayer status, payment of all applicable taxes or other governmental charges, exchange control approval, legal or beneficial ownership of ADSs and Deposited Property, compliance with applicable laws, the terms of the Deposit Agreement or this ADR evidencing the ADSs and the provisions of, or governing, the Deposited Property, to execute such certifications and to make such representations and warranties, and to provide such other information and documentation (or, in the case of Shares in registered form presented for deposit, such information relating to the registration on the books of the Company or of the Share Registrar) as the Depositary or the Custodian may deem necessary or proper or as the Company may reasonably require by written request to the Depositary consistent with its obligations under the Deposit Agreement and this ADR. The Depositary and the Registrar, as applicable, may withhold the execution or delivery or registration of transfer of any ADR or ADS or the distribution or sale of any dividend or distribution of rights or of the proceeds thereof or, to the extent not limited by paragraph (25) and Section 7.8 of the Deposit Agreement, the delivery of any Deposited Property until such proof or other information is filed or such certifications are executed, or such representations and warranties are made, or such other documentation or information are provided, in each case to the Depositarys, the Registrars and the Companys satisfaction.
(1 1) ADS Fees and Charges . The following ADS fees are payable under the terms of the Deposit Agreement:
(i) | ADS Issuance Fee : by any person depositing Shares or to whom ADSs are issued upon the deposit of Shares (excluding issuances as a result of distributions described in paragraph (iv) below), a fee not in excess of U.S. $5.00 per 100 ADSs (or fraction thereof) so issued under the terms of the Deposit Agreement; |
(ii) | ADS Cancellation Fee : by any person surrendering ADSs for cancellation and withdrawal of Deposited Securities or by any person to whom Deposited Securities are delivered, a fee not in excess of U.S. $5.00 per 100 ADSs (or fraction thereof) surrendered; |
(iii) | Cash Distribution Fee : by any Holder of ADSs, a fee not in excess of U.S. $5.00 per 100 ADSs (or fraction thereof) held for the distribution of cash dividends or other cash distributions ( i.e. , sale of rights and other entitlements); |
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(iv) | Stock Distribution /Rights Exercise Fee : by any Holder of ADS(s), a fee not in excess of U.S. $5.00 per 100 ADSs (or fraction thereof) held for (a) the distribution of stock dividends or other free stock distributions, or (b) the exercise of rights to purchase additional ADSs; |
(v) | Other Distribution Fee : by any Holder of ADS(s), a fee not in excess of U.S. $5.00 per 100 ADSs (or fraction thereof) held for the distribution of securities other than ADSs or rights to purchase additional ADSs (i.e., spin-off shares); and |
(vi) | Depositary Services Fee : by any Holder of ADS(s), a fee not in excess of U.S. $5.00 per 100 ADSs (or fraction thereof) held on the applicable record date(s) established by the Depositary. |
Holders, Beneficial Owners, persons depositing Shares and persons surrendering ADSs for cancellation and for the purpose of withdrawing Deposited Securities shall be responsible for the following ADS charges under the terms of the Deposit Agreement:
(a) | taxes (including applicable interest and penalties) and other governmental charges; |
(b) | such registration fees as may from time to time be in effect for the registration of Shares or other Deposited Securities on the share register and applicable to transfers of Shares or other Deposited Securities to or from the name of the Custodian, the Depositary or any nominees upon the making of deposits and withdrawals, respectively; |
(c) | such cable, telex and facsimile transmission and delivery expenses as are expressly provided in the Deposit Agreement to be at the expense of the person depositing Shares or withdrawing Deposited Securities or of the Holders and Beneficial Owners of ADSs; |
(d) | the expenses and charges incurred by the Depositary in the conversion of foreign currency; |
(e) | such fees and expenses as are incurred by the Depositary in connection with compliance with exchange control regulations and other regulatory requirements applicable to Shares, Deposited Securities, ADSs and ADRs; and |
(f) | the fees and expenses incurred by the Depositary, the Custodian, or any nominee in connection with the servicing or delivery of Deposited Property. |
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All ADS fees and charges may, at any time and from time to time, be changed by agreement between the Depositary and Company but, in the case of ADS fees and charges payable by Holders and Beneficial Owners, only in the manner contemplated by paragraph (23) of this ADR and as contemplated in the Deposit Agreement. The Depositary shall provide, without charge, a copy of its latest ADS fee schedule to anyone upon request.
ADS fees and charges payable upon (i) deposit of Shares against issuance of ADSs and (ii) surrender of ADSs for cancellation and withdrawal of Deposited Securities will be payable by the person to whom the ADSs so issued are delivered by the Depositary (in the case of ADS issuances) and by the person who delivers the ADSs for cancellation to the Depositary (in the case of ADS cancellations). In the case of ADSs issued by the Depositary into DTC or presented to the Depositary via DTC, the ADS issuance and cancellation fees and charges will be payable by the DTC Participant(s) receiving the ADSs from the Depositary or the DTC Participant(s) surrendering the ADSs to the Depositary for cancellation, as the case may be, on behalf of the Beneficial Owner(s) and will be charged by the DTC Participant(s) to the account(s) of the applicable Beneficial Owner(s) in accordance with the procedures and practices of the DTC Participant(s) as in effect at the time. ADS fees and charges in respect of distributions and the ADS service fee are payable by Holders as of the applicable ADS Record Date established by the Depositary. In the case of distributions of cash, the amount of the applicable ADS fees and charges is deducted from the funds being distributed. In the case of (i) distributions other than cash and (ii) the ADS service fee, the applicable Holders as of the ADS Record Date established by the Depositary will be invoiced for the amount of the ADS fees and charges. For ADSs held through DTC, the ADS fees and charges for distributions other than cash and the ADS service fee are charged to the DTC Participants in accordance with the procedures and practices prescribed by DTC from time to time and the DTC Participants in turn charge the amount of such ADS fees and charges to the Beneficial Owners for whom they hold ADSs.
The Depositary may reimburse the Company for certain expenses incurred by the Company in respect of the ADR program established pursuant to the Deposit Agreement, by making available a portion of the ADS fees charged in respect of the ADR program or otherwise, upon such terms and conditions as the Company and the Depositary agree from time to time. The Company shall pay to the Depositary such fees and charges, and reimburse the Depositary for such out-of-pocket expenses, as the Depositary and the Company may agree from time to time. Responsibility for payment of such fees, charges and reimbursements may from time to time be changed by agreement between the Company and the Depositary. Unless otherwise agreed, the Depositary shall present its statement for such fees, charges and reimbursements to the Company once every three months. The charges and expenses of the Custodian are for the sole account of the Depositary.
The obligation of Holders and Beneficial Owners to pay ADS fees and charges shall survive the termination of the Deposit Agreement. As to any Depositary, upon the resignation or removal of such Depositary as described in Section 5.4 of the Deposit Agreement, the right to collect ADS fees, charges and expenses shall extend for those ADS fees and charges incurred prior to the effectiveness of such resignation or removal.
(12) Title to ADRs . Subject to the limitations contained in the Deposit Agreement and in this ADR, it is a condition of this ADR, and every successive Holder of this ADR by
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accepting or holding the same consents and agrees, that title to this ADR (and to each Certificated ADS evidenced hereby) shall be transferable upon the same terms as a certificated security under the laws of the State of New York, provided that, in the case of Certificated ADSs, this ADR has been properly endorsed or is accompanied by proper instruments of transfer. Notwithstanding any notice to the contrary, the Depositary and the Company may deem and treat the Holder of this ADR (that is, the person in whose name this ADR is registered on the books of the Depositary) as the absolute owner thereof for all purposes. Neither the Depositary nor the Company shall have any obligation nor be subject to any liability under the Deposit Agreement or this ADR to any holder of this ADR or any Beneficial Owner unless, in the case of a holder of ADSs, such holder is the Holder of this ADR registered on the books of the Depositary or, in the case of a Beneficial Owner, such Beneficial Owner, or the Beneficial Owners representative, is the Holder registered on the books of the Depositary.
(13) Validity of ADR . The Holder(s) of this ADR (and the ADSs represented hereby) shall not be entitled to any benefits under the Deposit Agreement or be valid or enforceable for any purpose against the Depositary or the Company unless this ADR has been (i) dated, (ii) signed by the manual or facsimile signature of a duly-authorized signatory of the Depositary, (iii) countersigned by the manual or facsimile signature of a duly-authorized signatory of the Registrar, and (iv) registered in the books maintained by the Registrar for the registration of issuances and transfers of ADRs. An ADR bearing the facsimile signature of a duly-authorized signatory of the Depositary or the Registrar, who at the time of signature was a duly authorized signatory of the Depositary or the Registrar, as the case may be, shall bind the Depositary, notwithstanding the fact that such signatory has ceased to be so authorized prior to the delivery of such ADR by the Depositary.
(14) Available Information; Reports; Inspection of Transfer Books . The Company is subject to the periodic reporting requirements of the Exchange Act and, accordingly, is required to file or submit certain reports with the Commission. These reports can be retrieved from the Commissions website ( www.sec.gov ) and can be inspected and copied at the public reference facilities maintained by the Commission located (as of the date of the Deposit Agreement) at 100 F Street, N.E., Washington D.C. 20549. The Depositary shall make available for inspection by Holders at its Principal Office any reports and communications, including any proxy soliciting materials, received from the Company which are both (a) received by the Depositary, the Custodian, or the nominee of either of them as the holder of the Deposited Property and (b) made generally available to the holders of such Deposited Property by the Company. The Depositary shall also provide or make available to Holders copies of such reports when furnished by the Company pursuant to Section 5.6 of the Deposit Agreement.
The Registrar shall keep books for the registration of ADSs which at all reasonable times shall be open for inspection by the Company and by the Holders of such ADSs, provided that such inspection shall not be, to the Registrars knowledge, for the purpose of communicating with Holders of such ADSs in the interest of a business or object other than the business of the Company or other than a matter related to the Deposit Agreement or the ADSs.
The Registrar may close the transfer books with respect to the ADSs, at any time or from time to time, when deemed necessary or advisable by it in good faith in connection with the
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performance of its duties hereunder, or at the reasonable written request of the Company subject, in all cases, to paragraph (25) and Section 7.8 of the Deposit Agreement.
Dated:
CITIBANK, N.A. Transfer Agent and Registrar |
CITIBANK, N.A. as Depositary |
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By: |
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By: |
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Authorized Signatory | Authorized Signatory |
The address of the Principal Office of the Depositary is 388 Greenwich Street, New York, New York 10013, U.S.A.
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[FORM OF REVERSE OF ADR]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(15) Dividends and Distributions in Cash, Shares, etc . (a) Cash Distribution: Upon the timely receipt by the Depositary of a notice from the Company that it intends to make a distribution of a cash dividend or other cash distribution, the Depositary shall establish an ADS Record Date upon the terms described in Section 4.9. Upon receipt of confirmation from the Custodian of receipt of any cash dividend or other cash distribution on any Deposited Securities, or upon receipt of proceeds from the sale of any Deposited Property held in respect of the ADSs under the terms of the Deposit Agreement, the Depositary will (i) if at the time of receipt thereof any amounts received in a Foreign Currency can, in the judgment of the Depositary (pursuant to Section 4.8 of the Deposit Agreement), be converted on a practicable basis into Dollars transferable to the United States, promptly convert or cause to be converted such cash dividend, distribution or proceeds into Dollars (on the terms described in Section 4.8 of the Deposit Agreement), (ii) if applicable and unless previously established, establish the ADS Record Date upon the terms described in Section 4.9 of the Deposit Agreement, and (iii) distribute promptly the amount thus received (net of (a) the applicable fees and charges of, and expenses incurred by, the Depositary and (b) taxes withheld) to the Holders entitled thereto as of the ADS Record Date in proportion to the number of ADSs held as of the ADS Record Date. The Depositary shall distribute only such amount, however, as can be distributed without attributing to any Holder a fraction of one cent, and any balance not so distributed shall be held by the Depositary (without liability for interest thereon) and shall be added to and become part of the next sum received by the Depositary for distribution to Holders of ADSs outstanding at the time of the next distribution. If the Company, the Custodian or the Depositary is required to withhold and does withhold from any cash dividend or other cash distribution in respect of any Deposited Securities, or from any cash proceeds from the sales of Deposited Property, an amount on account of taxes, duties or other governmental charges, the amount distributed to Holders on the ADSs shall be reduced accordingly. Such withheld amounts shall be forwarded by the Company, the Custodian or the Depositary to the relevant governmental authority. Evidence of payment thereof by the Company shall be forwarded by the Company to the Depositary upon request. The Depositary will hold any cash amounts it is unable to distribute in a non-interest bearing account for the benefit of the applicable Holders and Beneficial Owners of ADSs until the distribution can be effected or the funds that the Depositary holds must be escheated as unclaimed property in accordance with the laws of the relevant states of the United States. Notwithstanding anything contained in Section 4.1 of the Deposit Agreement to the contrary, in the event the Company fails to give the Depositary timely notice of the proposed distribution provided for above, the Depositary agrees to use commercially reasonable efforts to perform the actions contemplated in Section 4.1 of the Deposit Agreement, and the Company, the Holders and the Beneficial Owners acknowledge that the Depositary shall have no liability for the Depositarys failure to perform the actions contemplated in Section 4.1 of the Deposit Agreement where such notice has not been so timely given, other than its failure to use commercially reasonable efforts, as provided herein.
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(b) Share Distribution: Upon the timely receipt by the Depositary of a notice from the Company that it intends to make a distribution that consists of a dividend in, or free distribution of Shares, the Depositary shall establish the ADS Record Date upon the terms described in Section 4.9 of the Deposit Agreement. Upon receipt of confirmation from the Custodian of the receipt of the Shares so distributed by the Company, the Depositary shall either (i) subject to Section 5.9 of the Deposit Agreement, distribute to the Holders as of the ADS Record Date in proportion to the number of ADSs held as of the ADS Record Date, additional ADSs, which represent in the aggregate the number of Shares received as such dividend, or free distribution, subject to the other terms of the Deposit Agreement (including, without limitation, (a) the applicable fees and charges of, and expenses incurred by, the Depositary and (b) taxes), or (ii) if additional ADSs are not so distributed, take all actions necessary so that each ADS issued and outstanding after the ADS Record Date shall, to the extent permissible by law, thenceforth also represent rights and interests in the additional integral number of Shares distributed upon the Deposited Securities represented thereby (net of (a) the applicable fees and charges of, and expenses incurred by, the Depositary, and (b) taxes). In lieu of delivering fractional ADSs, the Depositary shall sell the number of Shares or ADSs, as the case may be, represented by the aggregate of such fractions and distribute the net proceeds upon the terms described in Section 4.1 of the Deposit Agreement.
In the event that the Depositary determines that any distribution in property (including Shares) is subject to any tax or other governmental charges which the Depositary is obligated to withhold, or, if the Company in the fulfillment of its obligations under Section 5.7 of the Deposit Agreement, has furnished an opinion of U.S. counsel determining that Shares must be registered under the Securities Act or other laws in order to be distributed to Holders (and no such registration statement has been declared effective), the Depositary may dispose of all or a portion of such property (including Shares and rights to subscribe therefor) in such amounts and in such manner, including by public or private sale, as the Depositary deems necessary and practicable, and the Depositary shall distribute the net proceeds of any such sale (after deduction of (a) taxes and (b) fees and charges of, and the expenses incurred by, the Depositary) to Holders entitled thereto upon the terms of Section 4.1 of the Deposit Agreement. The Depositary shall hold and/or distribute any unsold balance of such property in accordance with the provisions of the Deposit Agreement. Notwithstanding anything contained in Section 4.2 of the Deposit Agreement to the contrary, in the event the Company fails to give the Depositary timely notice of the proposed distribution provided for above, the Depositary agrees to use commercially reasonable efforts to perform the actions contemplated in Section 4.2 of the Deposit Agreement, and the Company, the Holders and the Beneficial Owners acknowledge that the Depositary shall have no liability for the Depositarys failure to perform the actions contemplated in Section 4.2 of the Deposit Agreement where such notice has not been so timely given, other than its failure to use commercially reasonable efforts, as provided herein.
(c) Elective Distributions in Cash or Shares: Upon the timely receipt of a notice indicating that the Company wishes an elective distribution in cash or Shares to be made available to Holders of ADSs upon the terms described in the Deposit Agreement, the Company and the Depositary shall determine in accordance with the Deposit Agreement whether such distribution is lawful and reasonably practicable. The Depositary shall make such elective distribution available to Holders only if (i) the Company shall have timely requested that the elective distribution be made available to Holders, (ii) the Depositary shall have determined that
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such distribution is reasonably practicable and (iii) the Depositary shall have received satisfactory documentation within the terms of Section 5.7 of the Deposit Agreement. If the above conditions are satisfied, the Depositary shall establish an ADS Record Date according to paragraph (16) and Section 4.9 of the Deposit Agreement and establish procedures to enable the Holder hereof to elect to receive the proposed distribution in cash or in additional ADSs. If a Holder elects to receive the distribution in cash, the distribution shall be made as in the case of a distribution in cash. If the Holder hereof elects to receive the distribution in additional ADSs, the distribution shall be made as in the case of a distribution in Shares upon the terms described in the Deposit Agreement. If such elective distribution is not reasonably practicable or if the Depositary did not receive satisfactory documentation set forth in the Deposit Agreement, the Depositary shall establish an ADS Record Date upon the terms of Section 4.9 of the Deposit Agreement and, to the extent permitted by law, distribute to Holders, on the basis of the same determination as is made in England in respect of the Shares for which no election is made, either (x) cash or (y) additional ADSs representing such additional Shares, in each case, upon the terms described in the Deposit Agreement. Nothing herein or in the Deposit Agreement shall obligate the Depositary to make available to the Holder hereof a method to receive the elective distribution in Shares (rather than ADSs). There can be no assurance that the Holder hereof will be given the opportunity to receive elective distributions on the same terms and conditions as the holders of Shares. Notwithstanding anything contained in Section 4.3 of the Deposit Agreement to the contrary, in the event the Company fails to give the Depositary timely notice of the proposed distribution provided for above, the Depositary agrees to use commercially reasonable efforts to perform the actions contemplated in Section 4.3 of the Deposit Agreement, and the Company, the Holders and the Beneficial Owners acknowledge that the Depositary shall have no liability for the Depositarys failure to perform the actions contemplated in Section 4.3 of the Deposit Agreement where such notice has not been so timely given, other than its failure to use commercially reasonable efforts, as provided herein.
(d) Distribution of Rights to Purchase Additional ADSs: Upon the timely receipt by the Depositary of a notice indicating that the Company wishes rights to subscribe for additional Shares to be made available to Holders of ADSs, the Depositary upon consultation with the Company, shall determine, whether it is lawful and reasonably practicable to make such rights available to the Holders. The Depositary shall make such rights available to any Holders only if (i) the Company shall have timely requested that such rights be made available to Holders, (ii) the Depositary shall have received the documentation contemplated in Section 5.7 of the Deposit Agreement, and (iii) the Depositary shall have determined that such distribution of rights is reasonably practicable. If such conditions are not satisfied or if the Company requests that the rights not be made available to Holders of ADSs, the Depositary shall sell the rights as described below. In the event all conditions set forth above are satisfied, the Depositary shall establish an ADS Record Date (upon the terms described in Section 4.9 of the Deposit Agreement) and establish procedures (x) to distribute rights to purchase additional ADSs (by means of warrants or otherwise), (y) to enable the Holders to exercise such rights (upon payment of the subscription price and of the applicable (a) fees and charges of, and expenses incurred by, the Depositary and (b) taxes), and (z) to deliver ADSs upon the valid exercise of such rights. The Company shall assist the Depositary to the extent necessary in establishing such procedures. Nothing herein or in the Deposit Agreement shall obligate the Depositary to make available to the Holders a method to exercise rights to subscribe for Shares (rather than ADSs). If (i) the Company does not timely request the Depositary to make the rights available to Holders or requests that the
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rights not be made available to Holders, (ii) the Depositary fails to receive satisfactory documentation within the terms of Section 5,7 of the Deposit Agreement or determines it is not reasonably practicable to make the rights available to Holders, or (iii) any rights made available are not exercised and appear to be about to lapse, the Depositary shall determine whether it is lawful and reasonably practicable to sell such rights, in a riskless principal capacity, at such place and upon such terms (including public and private sale) as it may deem practicable. The Company shall assist the Depositary to the extent necessary to determine such legality and practicability. The Depositary shall, upon such sale, convert and distribute proceeds of such sale (net of applicable (a) fees and charges of, and expenses incurred by, the Depositary and (b) taxes) upon the terms hereof and of Section 4.1 of the Deposit Agreement. If the Depositary is unable to make any rights available to Holders upon the terms described in Section 4.4(a) of the Deposit Agreement or to arrange for the sale of the rights upon the terms described in Section 4.4(b) of the Deposit Agreement, the Depositary shall allow such rights to lapse. The Depositary shall not be responsible for (i) any failure to determine that it may be lawful or practicable to make such rights available to Holders in general or any Holders in particular, (ii) any foreign exchange exposure or loss incurred in connection with such sale or exercise, or (iii) the content of any materials forwarded to the Holders on behalf of the Company in connection with the rights distribution.
Notwithstanding anything herein or in Section 4.4 of the Deposit Agreement to the contrary, if registration (under the Securities Act or any other applicable law) of the rights or the securities to which any rights relate may be required in order for the Company to offer such rights or such securities to Holders and to sell the securities represented by such rights, the Depositary will not distribute such rights to the Holders (i) unless and until a registration statement under the Securities Act (or other applicable law) covering such offering is in effect or (ii) unless the Company furnishes the Depositary opinion(s) of counsel for the Company in the United States and counsel to the Company in any other applicable country in which rights would be distributed, in each case satisfactory to the Depositary, to the effect that the offering and sale of such securities to Holders and Beneficial Owners are exempt from, or do not require registration under, the provisions of the Securities Act or any other applicable laws. In the event that the Company, the Depositary or the Custodian shall be required to withhold and does withhold from any distribution of Deposited Property (including rights) an amount on account of taxes or other governmental charges, the amount distributed to the Holders of ADSs shall be reduced accordingly. In the event that the Depositary determines that any distribution of Deposited Property (including Shares and rights to subscribe therefor) is subject to any tax or other governmental charges which the Depositary is obligated to withhold, the Depositary may dispose of all or a portion of such Deposited Property (including Shares and rights to subscribe therefor) in such amounts and in such manner, including by public or private sale, as the Depositary deems necessary and practicable to pay any such taxes or charges.
There can be no assurance that Holders generally, or any Holder in particular, will be given the opportunity to receive or exercise rights on the same terms and conditions as the holders of Shares or be able to exercise such rights. Nothing herein or in the Deposit Agreement shall obligate the Company to file any registration statement in respect of any rights or Shares or other securities to be acquired upon the exercise of such rights.
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(e) Distributions other than Cash, Shares or Rights to Purchase Shares. Upon receipt of a notice indicating that the Company wishes property other than cash, Shares or rights to purchase additional Shares, to be made to Holders of ADSs, the Depositary shall determine whether such distribution to Holders is lawful and reasonably practicable. The Depositary shall not make such distribution unless (i) the Company shall have requested the Depositary to make such distribution to Holders, (ii) the Depositary shall have received the documentation contemplated in the Deposit Agreement, and (iii) the Depositary shall have determined that such distribution is reasonably practicable. Upon satisfaction of such conditions, the Depositary shall distribute the property so received to the Holders of record, as of the ADS Record Date, in proportion to the number of ADSs held by them respectively and in such manner as the Depositary may deem practicable for accomplishing such distribution (i) upon receipt of payment or net of the applicable fees and charges of, and expenses incurred by, the Depositary, and (ii) net of any taxes withheld. The Depositary may dispose of all or a portion of the property so distributed and deposited, in such amounts and in such manner (including public or private sale) as the Depositary may deem practicable or necessary to satisfy any taxes (including applicable interest and penalties) or other governmental charges applicable to the distribution.
If the conditions above are not satisfied, the Depositary shall sell or cause such property to be sold in a public or private sale, at such place or places and upon such terms as it may deem practicable and shall (i) cause the proceeds of such sale, if any, to be converted into Dollars and (ii) distribute the proceeds of such conversion received by the Depositary (net of applicable (a) fees and charges of, and expenses incurred by, the Depositary and (b) taxes) to the Holders as of the ADS Record Date upon the terms hereof and of the Deposit Agreement. If the Depositary is unable to sell such property, the Depositary may dispose of such property for the account of the Holders in any way it deems reasonably practicable under the circumstances.
Neither the Depositary nor the Company shall be responsible for (i) any failure to determine whether it is lawful or practicable to make the property described in Section 4.5 of the Deposit Agreement available to Holders in general or any Holders in particular, nor (ii) any foreign exchange exposure or loss incurred in connection with the sale or disposal of such property.
(16) Redemption . Upon timely receipt of notice from the Company that it intends to exercise its right of redemption in respect of any of the Deposited Securities, and satisfactory documentation, and upon determining that such proposed redemption is practicable, the Depositary shall (to the extent practicable) provide to each Holder a notice setting forth the Companys intention to exercise the redemption rights and any other particulars set forth in the Companys notice to the Depositary. The Depositary shall instruct the Custodian to present to the Company the Deposited Securities in respect of which redemption rights are being exercised against payment of the applicable redemption price. Upon receipt of confirmation from the Custodian that the redemption has taken place and that funds representing the redemption price have been received, the Depositary shall convert, transfer, and distribute the proceeds (net of applicable (a) fees and charges of, and the expenses incurred by, the Depositary, and (b) taxes), retire ADSs and cancel ADRs, if applicable, upon delivery of such ADSs by Holders thereof and the terms set forth in Sections 4.1 and 6.2 of the Deposit Agreement. If less than all outstanding Deposited Securities are redeemed, the ADSs to be retired will be selected by lot or on a pro rata basis, as may be determined by the Depositary. The redemption price per ADS shall be the
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dollar equivalent of the per share amount received by the Depositary (adjusted to reflect the ADS(s)-to-Share(s) ratio) upon the redemption of the Deposited Securities represented by ADSs (subject to the terms of Section 4.8 of the Deposit Agreement and the applicable fees and charges of, and expenses incurred by, the Depositary, and taxes) multiplied by the number of Deposited Securities represented by each ADS redeemed. Notwithstanding anything contained in Section 4.7 of the Deposit Agreement to the contrary, in the event the Company fails to give the Depositary timely notice of the proposed redemption provided for above, the Depositary agrees to use commercially reasonable efforts to perform the actions contemplated in Section 4.7 of the Deposit Agreement, and the Company, the Holders and the Beneficial Owners acknowledge that the Depositary shall have no liability for the Depositarys failure to perform the actions contemplated in Section 4.7 of the Deposit Agreement where such notice has not been so timely given, other than its failure to use commercially reasonable efforts, as provided herein.
(17) Fixing of ADS Record Date . Whenever the Depositary shall receive notice of the fixing of a record date by the Company for the determination of holders of Deposited Securities entitled to receive any distribution (whether in cash, Shares, rights or other distribution), or whenever for any reason the Depositary causes a change in the number of Shares that are represented by each ADS, or whenever the Depositary shall receive notice of any meeting of, or solicitation of consents or proxies of, holders of Shares or other Deposited Securities, or whenever the Depositary shall find it necessary or convenient in connection with the giving of any notice, solicitation of any consent or any other matter, the Depositary shall fix a record date (the ADS Record Date ) for the determination of the Holders of ADS(s) who shall be entitled to receive such distribution, to give instructions for the exercise of voting rights at any such meeting, to give or withhold such consent, to receive such notice or solicitation or to otherwise take action, or to exercise the rights of Holders with respect to such changed number of Shares represented by each ADS. Subject to applicable law, the terms and conditions of this ADR and Sections 4.1 through 4.8 of the Deposit Agreement, only the Holders of ADSs at the close of business in New York on such ADS Record Date shall be entitled to receive such distribution, to give such voting instructions, to receive such notice or solicitation, or otherwise take action.
(18) Voting of Deposited Securities . (a) ADS Voting Instructions . As soon as practicable after receipt of notice of (i) any meeting at which the holders of Deposited Securities are entitled to vote, or (ii) solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Companys expense and provided no U.S. legal prohibitions exist, distribute to Holders of record as of the ADS Record Date a notice which shall contain: (a) such information as is contained in such notice of meeting, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Articles of Association of the Company and the provisions of, or governing, the Deposited Securities (which provisions, if any, shall have been summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holders ADSs, and (c) a brief statement
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addressing the manner in which such instructions may be given (including an indication that instructions may be deemed to have been given in accordance with the last sentence of (b) below if no instructions are received by the Depositary prior to the deadline set for such purposes to the Depositary to give a discretionary proxy to a person designated by the Company). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities.
Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (i.e., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials).
The Depositary has been advised by the Company that under English law and the Articles of Association of the Company, voting at any meeting of shareholders of the Company is by show of hands unless a poll is demanded. Under the Articles of Association of the Company (in effect as of the date hereof), a poll may be demanded by the chairman of the meeting, by any shareholder or shareholders present in person or by proxy representing not less than 10% of the paid-up share capital of the Company, by any shareholder or shareholders present in person or by proxy representing not less than 10% of the total voting rights or by not less than five shareholders present in person or by proxy and entitled to vote. The Depositary will not join in demanding a poll, whether or not requested to do so by Holders of ADSs.
Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, Articles of Association of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holders ADSs as follows: (i) in the event voting takes place at a shareholders meeting by show of hands, the Depositary will instruct the Custodian to vote all Deposited Securities in accordance with the voting instructions received from a majority of Holders of ADSs who provided voting instructions, and (ii) in the event voting takes place at a shareholders meeting by poll, the Depositary will instruct the Custodian to vote the Deposited Securities in accordance with the voting instructions received from the Holders of ADSs.
Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders.
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(b) Discretionary Proxy to Management . The Depositary agrees not to, and shall take reasonable steps to ensure that the Custodian and each of its nominees, if any, do not, vote the Deposited Securities represented by ADSs other than in accordance with the instructions of Holders as of the ADS Record Date or as provided below. Neither the Depositary nor the Custodian shall exercise any voting discretion over the Deposited Securities. If (i) the Company shall have timely requested that the Depositary distribute materials to the Holders in connection with a meeting at which the holders of Deposited Securities are entitled to vote, (ii) voting at such meeting takes place by poll, and (iii) (x) the Depositary does not receive timely instructions from a Holder on or before the date established by the Depositary for such purpose, or (y) the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holders ADSs, such Holder shall be deemed, and the Depositary shall deem such Holder, to have instructed the Depositary to give a discretionary proxy to a person designated by the Company to vote the Deposited Securities; provided, however, that no such discretionary proxy shall be given by the Depositary with respect to any matter to be voted upon as to which the Company informs the Depositary that (i) the Company does not wish such proxy to be given, (ii) substantial opposition exists, or (iii) the rights of holders of Deposited Securities may be adversely affected.
(c) Legal Prohibitions . Notwithstanding anything contained in the Deposit Agreement or any ADR to the contrary, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary, if requested by the Depositary, an opinion of U.S. counsel addressing any actions to be taken.
There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.
(19) Changes Affecting Deposited Securities . Upon any change in nominal or par value, split-up, cancellation, consolidation or any other reclassification of Deposited Securities, or upon any recapitalization, reorganization, merger, consolidation or sale of assets affecting the Company or to which it is a party, any property which shall be received by the Depositary or the Custodian in exchange for, or in conversion of, or replacement of, or otherwise in respect of, such Deposited Securities shall, to the extent permitted by law, be treated as new Deposited Property under the Deposit Agreement, and this ADR shall, subject to the provisions of the Deposit Agreement, this ADR evidencing such ADSs and applicable law, represent the right to receive such additional or replacement Deposited Property. In giving effect to such change, split-up, cancellation, consolidation or other reclassification of Deposited Securities, recapitalization, reorganization, merger, consolidation or sale of assets, the Depositary may, with the Companys approval, and shall, if the Company shall so request, subject to the terms of the Deposit Agreement and receipt of an opinion of counsel to the Company satisfactory to the Depositary that such actions are not in violation of any applicable laws or regulations, (i) issue and deliver additional ADSs as in the case of a stock dividend on the Shares, (ii) amend the Deposit Agreement and the applicable ADRs, (iii) amend the applicable Registration Statement(s) on Form F-6 as filed with the Commission in respect of the ADSs, (iv) call for the
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surrender of outstanding ADRs to be exchanged for new ADRs, and (v) take such other actions as are appropriate to reflect the transaction with respect to the ADSs. The Company agrees to, jointly with the Depositary, amend the Registration Statement on Form F-6 as filed with the Commission to permit the issuance of such new form of ADRs. Notwithstanding the foregoing, in the event that any Deposited Property so received may not be lawfully distributed to some or all Holders, the Depositary may, with the Companys approval, and shall, if the Company requests, subject to receipt of an opinion of Companys counsel satisfactory to the Depositary that such action is not in violation of any applicable laws or regulations, sell such Deposited Property at public or private sale, at such place or places and upon such terms as it may deem proper and may allocate the net proceeds of such sales (net of (a) fees and charges of, and expenses incurred by, the Depositary and (b) taxes) for the account of the Holders otherwise entitled to such Deposited Property upon an averaged or other practicable basis without regard to any distinctions among such Holders and distribute the net proceeds so allocated to the extent practicable as in the case of a distribution received in cash pursuant to Section 4.1 of the Deposit Agreement. The Depositary shall not be responsible for (i) any failure to determine that it may be lawful or practicable to make such Deposited Property available to Holders in general or to any Holder in particular, (ii) any foreign exchange exposure or loss incurred in connection with such sale, or (iii) any liability to the purchaser of such Deposited Property.
(20) Exoneration . Neither the Depositary nor the Company shall be obligated to do or perform any act which is inconsistent with the provisions of the Deposit Agreement or incur any liability (i) if the Depositary or the Company shall be prevented or forbidden from, or delayed in, doing or performing any act or thing required by the terms of the Deposit Agreement and this ADR, by reason of any provision of any present or future law or regulation of the United States, England or any other country, or of any other governmental authority or regulatory authority or stock exchange, or on account of the possible criminal or civil penalties or restraint, or by reason of any provision, present or future, of the Articles of Association of the Company or any provision of or governing any Deposited Securities, or by reason of any act of God or war or other circumstances beyond its control (including, without limitation, nationalization, expropriation, currency restrictions, work stoppage, strikes, civil unrest, acts of terrorism, revolutions, rebellions, explosions and computer failure), (ii) by reason of any exercise of, or failure to exercise, any discretion provided for in the Deposit Agreement or in the Articles of Association of the Company or provisions of or governing Deposited Securities, (iii) for any action or inaction in reliance upon the advice of or information from legal counsel, accountants, any person presenting Shares for deposit, any Holder, any Beneficial Owner or authorized representative thereof, or any other person believed by it in good faith to be competent to give such advice or information, (iv) for the inability by a Holder or Beneficial Owner to benefit from any distribution, offering, right or other benefit which is made available to holders of Deposited Securities but is not, under the terms of the Deposit Agreement, made available to Holders of ADSs, or (v) for any consequential or punitive damages (including lost profits) for any breach of the terms of the Deposit Agreement. The Depositary, its controlling persons, its agents, any Custodian and the Company, its controlling persons and its agents may rely and shall be protected in acting upon any written notice, request or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. No disclaimer of liability under the Securities Act is intended by any provision of the Deposit Agreement or this ADR.
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(21) Standard of Care . The Company and the Depositary assume no obligation and shall not be subject to any liability under the Deposit Agreement or this ADR to any Holder(s) or Beneficial Owner(s), except that the Company and the Depositary agree to perform their respective obligations specifically set forth in the Deposit Agreement or this ADR without negligence or bad faith. Without limitation of the foregoing, neither the Depositary, nor the Company, nor any of their respective controlling persons, or agents, shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of any Deposited Property or in respect of the ADSs, which in its opinion may involve it in expense or liability, unless indemnity satisfactory to it against all expense (including fees and disbursements of counsel) and liability be furnished as often as may be required (and no Custodian shall be under any obligation whatsoever with respect to such proceedings, the responsibility of the Custodian being solely to the Depositary).
The Depositary and its agents shall not be liable for any failure to carry out any instructions to vote any of the Deposited Securities, or for the manner in which any vote is cast or the effect of any vote, provided that any such action or omission is in good faith and in accordance with the terms of the Deposit Agreement. The Depositary shall not incur any liability for any failure to determine that any distribution or action may be lawful or reasonably practicable, for the content of any information submitted to it by the Company for distribution to the Holders or for any inaccuracy of any translation thereof, for any investment risk associated with acquiring an interest in the Deposited Property, for the validity or worth of the Deposited Property or for any tax consequences that may result from the ownership of ADSs, Shares or other Deposited Property, for the credit-worthiness of any third party, for allowing any rights to lapse upon the terms of the Deposit Agreement, for the failure or timeliness of any notice from the Company, or for any action of or failure to act by, or any information provided or not provided by, DTC or any DTC Participant.
The Depositary shall not be liable for any acts or omissions made by a successor depositary whether in connection with a previous act or omission of the Depositary or in connection with any matter arising wholly after the removal or resignation of the Depositary, provided that in connection with the issue out of which such potential liability arises the Depositary performed its obligations without negligence or bad faith while it acted as Depositary.
The Depositary shall not be liable for any acts or omissions made by a predecessor depositary whether in connection with an act or omission of the Depositary or in connection with any matter arising wholly prior to the appointment of the Depositary or after the removal or resignation of the Depositary, provided that in connection with the issue out of which such potential liability arises the Depositary performed its obligations without negligence or bad faith while it acted as Depositary.
(22) Resignation and Removal of the Depositary; Appointment of Successor Depositary . The Depositary may at any time resign as Depositary under the Deposit Agreement by written notice of resignation delivered to the Company, such resignation to be effective on the earlier of (i) the 90th day after delivery thereof to the Company (whereupon the Depositary shall be entitled to take the actions contemplated in Section 6.2 of the Deposit Agreement), or (ii) the appointment by the Company of a successor depositary and its acceptance of such appointment
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as provided in the Deposit Agreement. The Depositary may at any time be removed by the Company by written notice of such removal, which removal shall be effective on the later of (i) the 90th day after delivery thereof to the Depositary (whereupon the Depositary shall be entitled to take the actions contemplated in Section 6.2 of the Deposit Agreement), or (ii) upon the appointment by the Company of a successor depositary and its acceptance of such appointment as provided in the Deposit Agreement. In case at any time the Depositary acting hereunder shall resign or be removed, the Company shall use its best efforts to appoint a successor depositary, which shall be a bank or trust company having an office in the Borough of Manhattan, the City of New York. Every successor depositary shall be required by the Company to execute and deliver to its predecessor and to the Company an instrument in writing accepting its appointment hereunder, and thereupon such successor depositary, without any further act or deed (except as required by applicable law), shall become fully vested with all the rights, powers, duties and obligations of its predecessor (other than as contemplated in Sections 5.8 and 5.9 of the Deposit Agreement). The predecessor depositary, upon payment of all sums due it and on the written request of the Company shall (i) execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder (other than as contemplated in Sections 5.8 and 5.9 of the Deposit Agreement), (ii) duly assign, transfer and deliver all of the Depositarys right, title and interest to the Deposited Property to such successor, and (iii) deliver to such successor a list of the Holders of all outstanding ADSs and such other information relating to ADSs and Holders thereof as the successor may reasonably request. Any such successor depositary shall promptly provide notice of its appointment to such Holders. Any entity into or with which the Depositary may be merged or consolidated shall be the successor of the Depositary without the execution or filing of any document or any further act.
(23) Amendment/Supplement . Subject to the terms and conditions of this paragraph 23, Section 6.1 of the Deposit Agreement and applicable law, this ADR and any provisions of the Deposit Agreement may at any time and from time to time be amended or supplemented by written agreement between the Company and the Depositary in any respect which they may deem necessary or desirable without the prior written consent of the Holders or Beneficial Owners. Any amendment or supplement which shall impose or increase any fees or charges (other than charges in connection with foreign exchange control regulations, and taxes and other governmental charges, delivery and other such expenses), or which shall otherwise materially prejudice any substantial existing right of Holders or Beneficial Owners, shall not, however, become effective as to outstanding ADSs until the expiration of thirty (30) days after notice of such amendment or supplement shall have been given to the Holders of outstanding ADSs. Notice of any amendment to the Deposit Agreement or any ADR shall not need to describe in detail the specific amendments effectuated thereby, and failure to describe the specific amendments in any such notice shall not render such notice invalid, provided , however , that, in each such case, the notice given to the Holders identifies a means for Holders and Beneficial Owners to retrieve or receive the text of such amendment ( i.e. , upon retrieval from the Commissions, the Depositarys or the Companys website or upon request from the Depositary). The parties hereto agree that any amendments or supplements which (i) are reasonably necessary (as agreed by the Company and the Depositary) in order for (a) the ADSs to be registered on Form F-6 under the Securities Act or (b) the ADSs to be settled solely in electronic book-entry form and (ii) do not in either such case impose or increase any fees or charges to be borne by Holders, shall be deemed not to materially prejudice any substantial rights of Holders or Beneficial Owners. Every Holder and Beneficial Owner at the time any amendment or
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supplement so becomes effective shall be deemed, by continuing to hold such ADSs, to consent and agree to such amendment or supplement and to be bound by the Deposit Agreement and this ADR as amended or supplemented thereby. In no event shall any amendment or supplement impair the right of the Holder to surrender such ADS and receive therefor the Deposited Securities represented thereby, except in order to comply with mandatory provisions of applicable law. Notwithstanding the foregoing, if any governmental body should adopt new laws, rules or regulations which would require an amendment of, or supplement to, the Deposit Agreement to ensure compliance therewith, the Company and the Depositary may amend or supplement the Deposit Agreement and this ADR at any time in accordance with such changed laws, rules or regulations. Such amendment or supplement to the Deposit Agreement and this ADR in such circumstances may become effective before a notice of such amendment or supplement is given to Holders or within any other period of time as required for compliance with such laws, rules or regulations.
(24) Termination . The Depositary shall, at any time at the written direction of the Company, terminate the Deposit Agreement by distributing notice of such termination to the Holders of all ADSs then outstanding at least thirty (30) days prior to the date fixed in such notice for such termination. If ninety (90) days shall have expired after (i) the Depositary shall have delivered to the Company a written notice of its election to resign, or (ii) the Company shall have delivered to the Depositary a written notice of the removal of the Depositary, and, in either case, a successor depositary shall not have been appointed and accepted its appointment as provided in Section 5.4 of the Deposit Agreement, the Depositary may terminate the Deposit Agreement by distributing notice of such termination to the Holders of all ADSs then outstanding at least thirty (30) days prior to the date fixed in such notice for such termination. The date so fixed for termination of the Deposit Agreement in any termination notice so distributed by the Depositary to the Holders of ADSs is referred to as the Termination Date . Until the Termination Date, the Depositary shall continue to perform all of its obligations under the Deposit Agreement, and the Holders and Beneficial Owners will be entitled to all of their rights under the Deposit Agreement. If any ADSs shall remain outstanding after the Termination Date, the Registrar and the Depositary shall not, after the Termination Date, have any obligation to perform any further acts under the Deposit Agreement, except that the Depositary shall, subject, in each case, to the terms and conditions of the Deposit Agreement, continue to (i) collect dividends and other distributions pertaining to Deposited Securities, (ii) sell Deposited Property received in respect of Deposited Securities, (iii) deliver Deposited Securities, together with any dividends or other distributions received with respect thereto and the net proceeds of the sale of any other Deposited Property, in exchange for ADSs surrendered to the Depositary (after deducting, or charging, as the case may be, in each case, the fees and charges of, and expenses incurred by, the Depositary, and all applicable taxes or governmental charges for the account of the Holders and Beneficial Owners, in each case upon the terms set forth in Section 5.9 of the Deposit Agreement), and (iv) take such actions as may be required under applicable law in connection with its role as Depositary under the Deposit Agreement. At any time after the Termination Date, the Depositary may sell the Deposited Property then held under the Deposit Agreement and shall after such sale hold un-invested the net proceeds of such sale, together with any other cash then held by it under the Deposit Agreement, in an un-segregated account and without liability for interest, for the pro rata benefit of the Holders whose ADSs have not theretofore been surrendered. After making such sale, the Depositary shall be discharged from all obligations under the Deposit Agreement except (i) to account for such net proceeds and other
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cash (after deducting, or charging, as the case may be, in each case, the fees and charges of, and expenses incurred by, the Depositary, and all applicable taxes or governmental charges for the account of the Holders and Beneficial Owners, in each case upon the terms set forth in Section 5.9 of the Deposit Agreement), and (ii) as may be required at law in connection with the termination of the Deposit Agreement. After the Termination Date, the Company shall be discharged from all obligations under the Deposit Agreement, except for its obligations to the Depositary under Sections 5.8, 5.9 and 7.6 of the Deposit Agreement. The obligations under the terms of the Deposit Agreement of Holders and Beneficial Owners of ADSs outstanding as of the Termination Date shall survive the Termination Date and shall be discharged only when the applicable ADSs are presented by their Holders to the Depositary for cancellation under the terms of the Deposit Agreement.
(25) Compliance with U.S. Securities Laws . Notwithstanding any provisions in this ADR or the Deposit Agreement to the contrary, the withdrawal or delivery of Deposited Securities will not be suspended by the Company or the Depositary except as would be permitted by Instruction I.A.(1) of the General Instructions to the Form F-6 Registration Statement, as amended from time to time, under the Securities Act.
(26) Certain Rights of the Depositary; Limitations . Subject to the further terms and provisions of this paragraph (26) and Section 5.10 of the Deposit Agreement, the Depositary, its Affiliates and their agents, on their own behalf, may own and deal in any class of securities of the Company and its Affiliates and in ADSs. In its capacity as Depositary, the Depositary shall not lend Shares or ADSs; provided , however , that the Depositary may (i) issue ADSs prior to the receipt of Shares pursuant to Section 2.3 of the Deposit Agreement and (ii) deliver Shares prior to the receipt of ADSs for withdrawal of Deposited Securities pursuant to Section 2.7 of the Deposit Agreement, including ADSs which were issued under (i) above but for which Shares may not have been received (each such transaction a Pre-Release Transaction ). The Depositary may receive ADSs in lieu of Shares under (i) above and receive Shares in lieu of ADSs under (ii) above. Each such Pre-Release Transaction will be (a) subject to a written agreement whereby the person or entity (the Applicant ) to whom ADSs or Shares are to be delivered (w) represents that at the time of the Pre-Release Transaction the Applicant or its customer owns the Shares or ADSs that are to be delivered by the Applicant under such Pre-Release Transaction, (x) agrees to indicate the Depositary as owner of such Shares or ADSs in its records and to hold such Shares or ADSs in trust for the Depositary until such Shares or ADSs are delivered to the Depositary or the Custodian, (y) unconditionally guarantees to deliver to the Depositary or the Custodian, as applicable, such Shares or ADSs and (z) agrees to any additional restrictions or requirements that the Depositary deems appropriate, (b) at all times fully collateralized with cash, U.S. government securities or such other collateral as the Depositary deems appropriate, (c) terminable by the Depositary on not more than five (5) business days notice and (d) subject to such further indemnities and credit regulations as the Depositary deems appropriate. The Depositary will normally limit the number of (x) ADSs involved in such Pre-Release Transactions at any one time to thirty percent (30%) of the ADSs outstanding (without giving effect to ADSs outstanding under (i) above) and (y) the number of Shares involved in such Pre-Release Transactions to thirty percent (30%) of the number of Shares deposited hereunder, respectively, provided, however, that the Depositary reserves the right to change or disregard such limit from time to time as it deems appropriate. The Depositary may also set limits with respect to the number of ADSs and Shares involved in Pre-Release Transactions with
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any one person on a case-by-case basis as it deems appropriate. The Depositary may retain for its own account any compensation received by it in conjunction with the foregoing. Collateral provided pursuant to (b) above, but not the earnings thereon, shall be held for the benefit of the Holders (other than the Applicant).
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(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and transfer(s) unto whose taxpayer identification number is and whose address including postal zip code is , the within ADR and all rights thereunder, hereby irrevocably constituting and appointing attorney-in-fact to transfer said ADR on the books of the Depositary with full power of substitution in the premises.
Dated: | ||||||
By: |
|
|||||
Name: | ||||||
Title: | ||||||
NOTICE: The signature of the Holder to this assignment must correspond with the name as written upon the face of the within instrument in every particular, without alteration or enlargement or any change whatsoever. | ||||||
If the endorsement be executed by an attorney, executor, administrator, trustee or guardian, the person executing the endorsement must give his/her full title in such capacity and proper evidence of authority to act in such capacity, if not on file with the Depositary, must be forwarded with this ADR. | ||||||
SIGNATURE GUARANTEED |
||||||
All endorsements or assignments of ADRs must be guaranteed by a member of a Medallion Signature Program approved by the Securities Transfer Association, Inc. |
Legends
[The ADRs issued in respect of Partial Entitlement American Depositary Shares shall bear the following legend on the face of the ADR: This ADR evidences ADSs representing partial entitlement ordinary of Reed Elsevier plc and as such do not entitle the holders thereof to the same per-share entitlement as other ordinary Shares (which are full entitlement ordinary Shares) issued and outstanding at such time. The ADSs represented by this ADR shall entitle holders to distributions and entitlements identical to other ADSs when the ordinary Shares represented by such ADSs become full entitlement ordinary Shares.]
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EXHIBIT B
FEE SCHEDULE
ADS FEES AND RELATED CHARGES
All capitalized terms used but not otherwise defined herein shall have the meaning given to such terms in the Deposit Agreement.
I. | ADS Fees |
The following ADS fees are payable under the terms of the Deposit Agreement:
Service |
Rate |
By Whom Paid |
||
(1) Issuance of ADSs upon deposit of Shares (excluding issuances as a result of distributions described in paragraph (4) below). | Up to U.S. $5.00 per 100 ADSs (or fraction thereof) issued. | Person depositing Shares or person receiving ADSs. | ||
(2) Delivery of Deposited Securities against surrender of ADSs. | Up to U.S. $5.00 per 100 ADSs (or fraction thereof) surrendered. | Person surrendering ADSs for the purpose of withdrawal of Deposited Securities or person to whom Deposited Securities are delivered. | ||
(3) Distribution of cash dividends or other cash distributions ( i.e. , sale of rights and other entitlements). | Up to U.S. $5.00 per 100 ADSs (or fraction thereof) held. | Person to whom distribution is made. | ||
(4) Distribution of ADSs pursuant to (i) stock dividends or other free stock distributions, or (ii) exercise of rights to purchase additional ADSs. | Up to U.S. $5.00 per 100 ADSs (or fraction thereof) held. | Person to whom distribution is made. | ||
(5) Distribution of securities other than ADSs or rights to purchase additional ADSs ( i.e. , spin-off shares). | Up to U.S. $5.00 per 100 ADSs (or fraction thereof) held. | Person to whom distribution is made. |
B-1
Service |
Rate |
By Whom Paid |
||
6) ADS Services. | Up to U.S. $5.00 per 100 ADSs (or fraction thereof) held on the applicable record date(s) established by the Depositary. | Person holding ADSs on the applicable record date(s) established by the Depositary. |
II. | Charges |
Holders, Beneficial Owners, persons depositing Shares and persons surrendering ADSs for cancellation and for the purpose of withdrawing Deposited Securities shall be responsible for the following ADS charges under the terms of the Deposit Agreement:
(i) | taxes (including applicable interest and penalties) and other governmental charges; |
(ii) | such registration fees as may from time to time be in effect for the registration of Shares or other Deposited Securities on the share register and applicable to transfers of Shares or other Deposited Securities to or from the name of the Custodian, the Depositary or any nominees upon the making of deposits and withdrawals, respectively; |
(iii) | such cable, telex and facsimile transmission and delivery expenses as are expressly provided in the Deposit Agreement to be at the expense of the person depositing Shares or withdrawing Deposited Securities or of the Holders and Beneficial Owners of ADSs; |
(iv) | the expenses and charges incurred by the Depositary in the conversion of foreign currency; |
(v) | such fees and expenses as are incurred by the Depositary in connection with compliance with exchange control regulations and other regulatory requirements applicable to Shares, Deposited Securities, ADSs and ADRs; and |
(vi) | the fees and expenses incurred by the Depositary, the Custodian, or any nominee in connection with the servicing or delivery of Deposited Property. |
B-2
Exhibit 2.2
AMENDED AND RESTATED DEPOSIT AGREEMENT
by and among
REED ELSEVIER N.V.
AND
CITIBANK, N.A.,
as Depositary,
AND
THE HOLDERS AND BENEFICIAL OWNERS OF
AMERICAN DEPOSITARY SHARES
ISSUED HEREUNDER
Dated as of August 1, 2014
TABLE OF CONTENTS
Page | ||||||
ARTICLE I DEFINITIONS |
||||||
Section 1.1 |
ADS Record Date |
1 | ||||
Section 1.2 |
Affiliate |
1 | ||||
Section 1.3 |
American Depositary Receipt(s), ADR(s) and Receipt(s) |
2 | ||||
Section 1.4 |
American Depositary Share(s) and ADS(s) |
2 | ||||
Section 1.5 |
Applicant |
2 | ||||
Section 1.6 |
Beneficial Owner |
3 | ||||
Section 1.7 |
Certificated ADS(s) |
3 | ||||
Section 1.8 |
Commission |
3 | ||||
Section 1.9 |
Company |
3 | ||||
Section 1.10 |
Custodian |
3 | ||||
Section 1.11 |
Deliver and Delivery |
3 | ||||
Section 1.12 |
Deposit Agreement |
4 | ||||
Section 1.13 |
Depositary |
4 | ||||
Section 1.14 |
Deposited Property |
4 | ||||
Section 1.15 |
Deposited Securities |
4 | ||||
Section 1.16 |
Dollars and $ |
4 | ||||
Section 1.17 |
DTC |
4 | ||||
Section 1.18 |
DTC Participant |
4 | ||||
Section 1.19 |
Euroclear Nederland |
5 | ||||
Section 1.20 |
Exchange Act |
5 | ||||
Section 1.21 |
Foreign Currency |
5 | ||||
Section 1.22 |
Full Entitlement ADR(s), Full Entitlement ADS(s) and Full Entitlement Share(s) |
5 | ||||
Section 1.23 |
Holder(s) |
5 | ||||
Section 1.24 |
Netherlands or The Netherlands |
5 | ||||
Section 1.25 |
Original Deposit Agreement |
5 | ||||
Section 1.26 |
Original Depositary |
5 | ||||
Section 1.27 |
Partial Entitlement ADR(s), Partial Entitlement ADS(s) and Partial Entitlement Share(s) |
5 | ||||
Section 1.28 |
Pre-Release Transaction |
5 | ||||
Section 1.29 |
Principal Office |
5 | ||||
Section 1.30 |
Registrar |
5 | ||||
Section 1.31 |
Restricted Securities |
6 | ||||
Section 1.32 |
Restricted ADR(s), Restricted ADS(s) and Restricted Shares |
6 | ||||
Section 1.33 |
Securities Act |
6 | ||||
Section 1.34 |
[Reserved] |
6 | ||||
Section 1.35 |
Shares |
6 | ||||
Section 1.36 |
Uncertificated ADS(s) |
6 | ||||
Section 1.37 |
United States and U.S. |
6 |
i
ARTICLE II APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS; DEPOSIT OF SHARES; EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS |
||||||
Section 2.1 |
Appointment of Depositary |
7 | ||||
Section 2.2 |
Form and Transferability of ADSs |
7 | ||||
Section 2.3 |
Deposit of Shares |
9 | ||||
Section 2.4 |
Registration and Safekeeping of Deposited Securities |
10 | ||||
Section 2.5 |
Issuance of ADSs |
10 | ||||
Section 2.6 |
Transfer, Combination and Split-up of ADRs |
11 | ||||
Section 2.7 |
Surrender of ADSs and Withdrawal of Deposited Securities |
12 | ||||
Section 2.8 |
Limitations on Execution and Delivery, Transfer, etc. of ADSs; Suspension of Delivery, Transfer, etc |
13 | ||||
Section 2.9 |
Lost ADRs, etc |
14 | ||||
Section 2.10 |
Cancellation and Destruction of Surrendered ADRs; Maintenance of Records |
14 | ||||
Section 2.11 |
Escheatment |
14 | ||||
Section 2.12 |
Partial Entitlement ADSs |
15 | ||||
Section 2.13 |
Certificated/Uncertificated ADSs |
15 | ||||
Section 2.14 |
Restricted ADSs |
17 | ||||
ARTICLE III CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS OF ADSs |
||||||
Section 3.1 |
Proofs, Certificates and Other Information |
18 | ||||
Section 3.2 |
Liability for Taxes and Other Charges |
19 | ||||
Section 3.3 |
Representations and Warranties on Deposit of Shares |
19 | ||||
Section 3.4 |
Compliance with Information Requests |
19 | ||||
Section 3.5 |
Ownership Restrictions |
20 | ||||
Section 3.6 |
Reporting Obligations and Regulatory Approvals |
20 | ||||
ARTICLE IV THE DEPOSITED SECURITIES |
||||||
Section 4.1 |
Cash Distributions |
21 | ||||
Section 4.2 |
Distribution in Shares |
21 | ||||
Section 4.3 |
Elective Distributions in Cash or Shares |
22 | ||||
Section 4.4 |
Distribution of Rights to Purchase Additional ADSs |
23 | ||||
Section 4.5 |
Distributions Other Than Cash, Shares or Rights to Purchase Shares |
25 | ||||
Section 4.6 |
Distributions with Respect to Deposited Securities in Bearer Form |
26 | ||||
Section 4.7 |
Redemption |
26 | ||||
Section 4.8 |
Conversion of Foreign Currency |
26 | ||||
Section 4.9 |
Fixing of ADS Record Date |
27 | ||||
Section 4.10 |
Voting of Deposited Securities |
28 | ||||
Section 4.11 |
Changes Affecting Deposited Securities |
29 | ||||
Section 4.12 |
Available Information |
30 |
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Section 4.13 |
Reports |
30 | ||||
Section 4.14 |
List of Holders |
30 | ||||
Section 4.15 |
Taxation |
31 | ||||
ARTICLE V THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY |
||||||
Section 5.1 |
Maintenance of Office and Transfer Books by the Registrar | 32 | ||||
Section 5.2 |
Exoneration | 32 | ||||
Section 5.3 |
Standard of Care | 33 | ||||
Section 5.4 |
Resignation and Removal of the Depositary; Appointment of Successor Depositary | 34 | ||||
Section 5.5 |
The Custodian | 35 | ||||
Section 5.6 |
Notices and Reports | 35 | ||||
Section 5.7 |
Issuance of Additional Shares, ADSs, etc | 36 | ||||
Section 5.8 |
Indemnification | 37 | ||||
Section 5.9 |
ADS Fees and Charges | 38 | ||||
Section 5.10 |
Pre-Release Transactions | 39 | ||||
Section 5.11 |
Restricted Securities Owners | 39 | ||||
ARTICLE VI AMENDMENT AND TERMINATION |
||||||
Section 6.1 |
Amendment/Supplement | 40 | ||||
Section 6.2 |
Termination | 40 | ||||
ARTICLE VII MISCELLANEOUS |
||||||
Section 7.1 |
Counterparts | 42 | ||||
Section 7.2 |
No Third-Party Beneficiaries | 42 | ||||
Section 7.3 |
Severability | 42 | ||||
Section 7.4 |
Holders and Beneficial Owners as Parties; Binding Effect | 42 | ||||
Section 7.5 |
Notices | 42 | ||||
Section 7.6 |
Governing Law and Jurisdiction | 43 | ||||
Section 7.7 |
Assignment | 45 | ||||
Section 7.8 |
Compliance with U.S. Securities Laws | 45 | ||||
Section 7.9 |
Dutch Law References | 45 | ||||
Section 7.10 |
Titles and References | 45 | ||||
Section 7.11 |
Amendment and Restatement | 46 | ||||
EXHIBITS |
||||||
Form of ADR. | A-1 | |||||
Fee Schedule. | B-1 |
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AMENDED AND RESTATED DEPOSIT AGREEMENT
AMENDED AND RESTATED DEPOSIT AGREEMENT , dated as of August 1, 2014, by and among (i) REED ELSEVIER N.V., incorporated under the laws of The Netherlands, and its successors (the Company), (ii) CITIBANK, N.A., a national banking association organized under the laws of the United States of America acting in its capacity as depositary, and any successor depositary hereunder (the Depositary), and (iii) all Holders and Beneficial Owners of American Depositary Shares issued hereunder (all such capitalized terms as hereinafter defined).
W I T N E S S E T H T H A T:
WHEREAS , the Company and The Bank of New York (the Original Depositary) previously entered into a Deposit Agreement, dated as of December 17, 2007 (the Original Deposit Agreement); and
WHEREAS , the Company desires to amend and restate the Original Deposit Agreement and to transfer to the Depositary the ADR facility currently existing under the Original Deposit Agreement; and
WHEREAS , the Depositary is willing to act as the Depositary for such ADR facility upon the terms set forth in the Deposit Agreement (as hereinafter defined); and
WHEREAS , any American Depositary Receipts issued pursuant to the terms of the Deposit Agreement are to be substantially in the form of Exhibit A attached hereto, with appropriate insertions, modifications and omissions, as hereinafter provided in the Deposit Agreement; and
WHEREAS , the Shares are listed on the Euronext Stock Exchange and American Depositary Shares to be issued pursuant to the terms of the Deposit Agreement are to be listed for trading on The New York Stock Exchange, Inc.; and
NOW , THEREFORE , for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
All capitalized terms used, but not otherwise defined, herein shall have the meanings set forth below, unless otherwise clearly indicated:
Section 1.1 ADS Record Date shall have the meaning given to such term in Section 4.9.
Section 1.2 Affiliate shall have the meaning assigned to such term by the Commission (as hereinafter defined) under Regulation C promulgated under the Securities Act (as hereinafter defined), or under any successor regulation thereto.
Section 1.3 American Depositary Receipt(s) , ADR(s) and Receipt(s) shall mean the certificate(s) issued by the Depositary to evidence the American Depositary Shares issued under the terms of the Deposit Agreement in the form of Certificated ADS(s) (as hereinafter defined), as such ADRs may be amended from time to time in accordance with the provisions of the Deposit Agreement. An ADR may evidence any number of ADSs and may, in the case of ADSs held through a central depository such as DTC, be in the form of a Balance Certificate. Notwithstanding anything else contained herein or therein, the American depositary receipts issued and outstanding under the terms of the Original Deposit Agreement shall, from and after the date hereof, be treated as ADRs issued hereunder and shall, from and after the date hereof, be subject to the terms hereof in all respects.
Section 1.4 American Depositary Share(s) and ADS(s) shall mean the rights and interests in the Deposited Property (as hereinafter defined) granted to the Holders and Beneficial Owners pursuant to the terms and conditions of the Deposit Agreement and, if issued as Certificated ADS(s) (as hereinafter defined), the ADR(s) issued to evidence such ADSs. ADS(s) may be issued under the terms of the Deposit Agreement in the form of (a) Certificated ADS(s) (as hereinafter defined), in which case the ADS(s) are evidenced by ADR(s), or (b) Uncertificated ADS(s) (as hereinafter defined), in which case the ADS(s) are not evidenced by ADR(s) but are reflected on the direct registration system maintained by the Depositary for such purposes under the terms of Section 2.13. Unless otherwise specified in the Deposit Agreement or in any ADR, or unless the context otherwise requires, any reference to ADS(s) shall include Certificated ADS(s) and Uncertificated ADS(s), individually or collectively, as the context may require. Each ADS shall represent the right to receive, and to exercise the beneficial ownership interests in, the number of Shares specified in the form of ADR attached hereto as Exhibit A (as amended from time to time) that are on deposit with the Depositary and/or the Custodian, subject, in each case, to the terms and conditions of the Deposit Agreement and the applicable ADR (if issued as a Certificated ADS), until there shall occur a distribution upon Deposited Securities referred to in Section 4.2 or a change in Deposited Securities referred to in Section 4.11 with respect to which additional ADSs are not issued, and thereafter each ADS shall represent the right to receive, and to exercise the beneficial ownership interests in, the applicable Deposited Property on deposit with the Depositary and the Custodian determined in accordance with the terms of such Sections, subject, in each case, to the terms and conditions of the Deposit Agreement and the applicable ADR (if issued as a Certificated ADS). American depositary shares outstanding under the Original Deposit Agreement as of the date hereof shall, from and after the date hereof, for all purposes be treated as American Depositary Shares issued and outstanding hereunder and shall, from and after the date hereof, be subject to the terms and conditions of the Deposit Agreement in all respects, except that any amendment of the Original Deposit Agreement effected under the terms of the Deposit Agreement which prejudices any substantial existing right of Owners (as defined in the Original Deposit Agreement) or holders of American depositary shares shall not become effective as to Owners and holders of American depositary shares until the expiration of thirty (30) days after notice of the amendments effected by the Deposit Agreement shall have been given to the Owners of American depositary shares outstanding under the Original Deposit Agreement as of the date hereof.
Section 1.5 Applicant shall have the meaning given to such term in Section 5.10.
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Section 1.6 Beneficial Owner shall mean, as to any ADS, any person or entity having a beneficial interest deriving from the ownership of such ADS. Notwithstanding anything else contained in the Deposit Agreement, any ADR(s) or any other instruments or agreements relating to the ADSs and the corresponding Deposited Property, the Depositary, the Custodian and their respective nominees are intended to be, and shall at all times during the term of the Deposit Agreement be, the record holders only of the Deposited Property represented by the ADSs for the benefit of the Holders and Beneficial Owners of the corresponding ADSs. The Depositary, on its own behalf and on behalf of the Custodian and their respective nominees, disclaims any beneficial ownership interest in the Deposited Property held on behalf of the Holders and Beneficial Owners of ADSs. The beneficial ownership interests in the Deposited Property are intended to be, and shall at all times during the term of the Deposit Agreement continue to be, vested in the Beneficial Owners of the ADSs representing the Deposited Property. The beneficial ownership interests in the Deposited Property shall, unless otherwise agreed by the Depositary, be exercisable by the Beneficial Owners of the ADSs only through the Holders of such ADSs, by the Holders of the ADSs (on behalf of the applicable Beneficial Owners) only through the Depositary, and by the Depositary (on behalf of the Holders and Beneficial Owners of the corresponding ADSs) directly, or indirectly through the Custodian or their respective nominees, in each case upon the terms of the Deposit Agreement and, if applicable, the terms of the ADR(s) evidencing the ADSs. A Beneficial Owner of ADSs may or may not be the Holder of such ADSs. A Beneficial Owner shall be able to exercise any right or receive any benefit hereunder solely through the person who is the Holder of the ADSs owned by such Beneficial Owner. Unless otherwise identified to the Depositary, a Holder shall be deemed to be the Beneficial Owner of all the ADSs registered in his/her/its name. Persons who own beneficial interests in the American depositary shares issued under the terms of the Original Deposit Agreement and outstanding as of the date hereof shall, from and after the date hereof, be treated as Beneficial Owners of ADS(s) under the terms hereof.
Section 1.7 Certificated ADS(s) shall have the meaning set forth in Section 2.13.
Section 1.8 Commission shall mean the Securities and Exchange Commission of the United States or any successor governmental agency thereto in the United States.
Section 1.9 Company shall mean Reed Elsevier N.V., a company incorporated and existing under the laws of The Netherlands, and its successors.
Section 1.10 Custodian shall mean (i) as of the date hereof, Citibank International plc, having its principal office at EGSP 186, 1 North Wall Quay, Dublin 1 Ireland, as the custodian of Deposited Property for the purposes of the Deposit Agreement, (ii) Citibank, N.A., acting as custodian of Deposited Property pursuant to the Deposit Agreement, and (iii) any other entity that may be appointed by the Depositary pursuant to the terms of Section 5.5 as successor, substitute or additional custodian hereunder. The term Custodian shall mean any Custodian individually or all Custodians collectively, as the context requires.
Section 1.11 Deliver and Delivery shall mean (x) when used in respect of Shares and other Deposited Securities, either (i) the book-entry transfer and recordation of such securities on the books of the Company or in the book-entry settlement of Euroclear Nederland, and (y) when used in respect of ADSs, either (i) the physical delivery of ADR(s) evidencing the ADSs, or (ii) the book-entry transfer and recordation of ADSs on the books of the Depositary or any book-entry settlement system in which the ADSs are settlement-eligible.
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Section 1.12 Deposit Agreement shall mean this Amended and Restated Deposit Agreement and all exhibits hereto, as the same may from time to time be amended and supplemented from time to time in accordance with the terms of the Deposit Agreement.
Section 1.13 Depositary shall mean Citibank, N.A., a national banking association organized under the laws of the United States, in its capacity as depositary under the terms of the Deposit Agreement, and any successor depositary hereunder.
Section 1.14 Deposited Property shall mean the Deposited Securities and any cash and other property held on deposit by the Depositary and the Custodian in respect of the ADSs under the terms of the Deposit Agreement, subject, in the case of cash, to the provisions of Section 4.8. All Deposited Property shall be held by Custodian, the Depositary and their respective nominees for the benefit of the Holders and Beneficial Owners of the ADSs representing the Deposited Property. The Deposited Property is not intended to, and shall not, constitute proprietary assets of the Depositary, the Custodian or their nominees. Beneficial ownership in the Deposited Property is intended to be, and shall at all times during the term of the Deposit Agreement continue to be, vested in the Beneficial Owners of the ADSs representing the Deposited Property. Notwithstanding the foregoing, the collateral delivered in connection with Pre-Release Transactions described in Section 5.10 shall not constitute Deposited Property.
Notwithstanding anything else contained herein, the securities, cash and other property delivered to the Custodian and the Depositary in respect of American depositary shares outstanding as of the date hereof under the Original Deposit Agreement and defined as Deposited Securities thereunder shall, for all purposes from and after the date hereof, be considered to be, and treated as, Deposited Property hereunder in all respects.
Section 1.15 Deposited Securities shall mean the Shares and any other securities held on deposit by the Custodian from time to time in respect of the ADSs under the Deposit Agreement and constituting Deposited Property.
Section 1.16 Dollars and $ shall refer to the lawful currency of the United States.
Section 1.17 DTC shall mean The Depository Trust Company, a national clearinghouse and the central book-entry settlement system for securities traded in the United States and, as such, the custodian for the securities of DTC Participants (as hereinafter defined) maintained in DTC, and any successor thereto.
Section 1.18 DTC Participant shall mean any financial institution (or any nominee of such institution) having one or more participant accounts with DTC for receiving, holding and delivering the securities and cash held in DTC. A DTC Participant may or may not be a Beneficial Owner. If a DTC Participant is not the Beneficial Owner of the ADSs credited to its account at DTC, or of the ADSs in respect of which the DTC Participant is otherwise acting, such DTC Participant shall be deemed, for all purposes hereunder, to have all requisite authority to act on behalf of the Beneficial Owner(s) of the ADSs credited to its account at DTC or in respect of which the DTC Participant is so acting.
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Section 1.19 Euroclear Nederland shall mean Euroclear Nederland, the Dutch book-entry clearing and settlement system, previously known as NECIGEF (Nederlands Centraal Instituut voor Giraal Effectenverkeer B.V.), and any successor entity thereto.
Section 1.20 Exchange Act shall mean the United States Securities Exchange Act of 1934, as amended from time to time.
Section 1.21 Foreign Currency shall mean any currency other than Dollars.
Section 1.22 Full Entitlement ADR(s) , Full Entitlement ADS(s) and Full Entitlement Share(s) shall have the respective meanings set forth in Section 2.12.
Section 1.23 Holder(s) shall mean the person(s) in whose name the ADSs are registered on the books of the Depositary (or the Registrar, if any) maintained for such purpose. A Holder may or may not be a Beneficial Owner. If a Holder is not the Beneficial Owner of the ADS(s) registered in its name, such person shall be deemed, for all purposes hereunder, to have all requisite authority to act on behalf of the Beneficial Owners of the ADSs registered in its name. The Owners (as defined in the Original Deposit Agreement) of American depositary shares issued under the terms of the Original Deposit Agreement and outstanding as of the date hereof shall from and after the date hereof, become Holders under the terms of the Deposit Agreement.
Section 1.24 Netherlands or The Netherlands shall mean the Kingdom of The Netherlands.
Section 1.25 Original Deposit Agreement shall have the meaning given to such term in the preambles to the Deposit Agreement.
Section 1.26 Original Depositary shall have the meaning given to such term in the preambles to the Deposit Agreement.
Section 1.27 Partial Entitlement ADR(s) , Partial Entitlement ADS(s) and Partial Entitlement Share(s) shall have the respective meanings set forth in Section 2.12.
Section 1.28 Pre-Release Transaction shall have the meaning set forth in Section 5.10.
Section 1.29 Principal Office shall mean, when used with respect to the Depositary, the principal office of the Depositary at which at any particular time its depositary receipts business shall be administered, which, at the date of the Deposit Agreement, is located at 388 Greenwich Street, New York, New York 10013, U.S.A.
Section 1.30 Registrar shall mean the Depositary or any bank or trust company having an office in the Borough of Manhattan, The City of New York, which shall be appointed by the Depositary to register issuances, transfers and cancellations of ADSs as herein provided, and shall include any co-registrar appointed by the Depositary for such purposes. Registrars (other than the Depositary) may be removed and substitutes appointed by the Depositary. Each Registrar (other than the Depositary) appointed pursuant to the Deposit Agreement shall be required to give notice in writing to the Depositary accepting such appointment and agreeing to be bound by the applicable terms of the Deposit Agreement.
5
Section 1.31 Restricted Securities shall mean Shares, Deposited Securities or ADSs which (i) have been acquired directly or indirectly from the Company or any of its Affiliates in a transaction or chain of transactions not involving any public offering and are subject to resale limitations under the Securities Act or the rules issued thereunder, or (ii) are held by an executive officer or director (or persons performing similar functions) or other Affiliate of the Company, or (iii) are subject to other restrictions on sale or deposit under the laws of the United States, The Netherlands, or under a shareholder agreement or the Articles of Association of the Company or under the regulations of an applicable securities exchange unless, in each case, such Shares, Deposited Securities or ADSs are being transferred or sold to persons other than an Affiliate of the Company in a transaction (a) covered by an effective resale registration statement, or (b) exempt from the registration requirements of the Securities Act (as hereinafter defined), and the Shares, Deposited Securities or ADSs are not, when held by such person(s), Restricted Securities.
Section 1.32 Restricted ADR(s) , Restricted ADS(s) and Restricted Shares shall have the respective meanings set forth in Section 2.14.
Section 1.33 Securities Act shall mean the United States Securities Act of 1933, as amended from time to time.
Section 1.34 [RESERVED] .
Section 1.35 Shares shall mean the Companys shares, of 0.07 each, validly issued and outstanding and fully paid, and may, if the Depositary so agrees after consultation with the Company, include evidence of the right to receive Shares; provided that in no event shall Shares include evidence of the right to receive Shares with respect to which the full purchase price has not been paid or Shares as to which preemptive rights have theretofore not been validly waived or exercised; provided further , however , that , if there shall occur any change in nominal value, split-up, consolidation, reclassification, exchange, conversion or any other event described in Section 4.11 in respect of the Shares of the Company, the term Shares shall thereafter, to the maximum extent permitted by law, represent the successor securities resulting from such event.
Section 1.36 Uncertificated ADS(s) and Uncertificated Restricted ADS(s) shall have the meanings set forth in Section 2.13 and Section 2.14, respectively.
Section 1.37 United States and U.S. shall have the meaning assigned to it in Regulation S as promulgated by the Commission under the Securities Act.
6
ARTICLE II
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT OF SHARES; EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
Section 2.1 Appointment of Depositary . The Company hereby appoints the Depositary as depositary for the Deposited Property and hereby authorizes and directs the Depositary to act in accordance with the terms and conditions set forth in the Deposit Agreement and the applicable ADRs. Each Holder and each Beneficial Owner, upon acceptance of any ADSs (or any interest therein) issued in accordance with the terms and conditions of the Deposit Agreement or by continuing to hold, from and after the date hereof any American depositary shares issued and outstanding under the Original Deposit Agreement, shall be deemed for all purposes to (a) be a party to and bound by the terms of the Deposit Agreement and the applicable ADR(s), and (b) appoint the Depositary its attorney-in-fact, with full power to delegate, to act on its behalf and to take any and all actions contemplated in the Deposit Agreement and the applicable ADR(s), to adopt any and all procedures necessary to comply with applicable law and to take such action as the Depositary in its sole discretion may deem necessary or appropriate to carry out the purposes of the Deposit Agreement and the applicable ADR(s), the taking of such actions to be the conclusive determinant of the necessity and appropriateness thereof.
Section 2.2 Form and Transferability of ADSs .
(a) Form . Certificated ADSs shall be evidenced by definitive ADRs which shall be engraved, printed, lithographed or produced in such other manner as may be agreed upon by the Company and the Depositary. ADRs may be issued under the Deposit Agreement in denominations of any whole number of ADSs. The ADRs shall be substantially in the form set forth in Exhibit A to the Deposit Agreement, with any appropriate insertions, modifications and omissions, in each case as otherwise contemplated in the Deposit Agreement or required by law. ADRs shall be (i) dated, (ii) signed by the manual or facsimile signature of a duly authorized signatory of the Depositary, (iii) countersigned by the manual or facsimile signature of a duly authorized signatory of the Registrar, and (iv) registered in the books maintained by the Registrar for the registration of issuances and transfers of ADSs. No ADR and no Certificated ADS evidenced thereby shall be entitled to any benefits under the Deposit Agreement or be valid or enforceable for any purpose against the Depositary or the Company, unless such ADR shall have been so dated, signed, countersigned and registered (other than an American depositary receipt issued and outstanding as of the date hereof under the terms of the Original Deposit Agreement which from and after the date hereof becomes subject to the terms of the Deposit Agreement in all respects). ADRs bearing the facsimile signature of a duly-authorized signatory of the Depositary or the Registrar, who at the time of signature was a duly-authorized signatory of the Depositary or the Registrar, as the case may be, shall bind the Depositary, notwithstanding the fact that such signatory has ceased to be so authorized prior to the delivery of such ADR by the Depositary. The ADRs shall bear a CUSIP number that is different from any CUSIP number that was, is or may be assigned to any depositary receipts previously or subsequently issued pursuant to any other arrangement between the Depositary (or any other depositary) and the Company and which are not ADRs outstanding hereunder.
7
(b) Legends . The ADRs may be endorsed with, or have incorporated in the text thereof, such legends or recitals not inconsistent with the provisions of the Deposit Agreement as may be (i) necessary to enable the Depositary and the Company to perform their respective obligations hereunder, (ii) required to comply with any applicable laws or regulations, or with the rules and regulations of any securities exchange or market upon which ADSs may be traded, listed or quoted, or to conform with any usage with respect thereto, (iii) necessary to indicate any special limitations or restrictions to which any particular ADRs or ADSs are subject by reason of the date of issuance of the Deposited Securities or otherwise, or (iv) required by any book-entry system in which the ADSs are held. Holders and Beneficial Owners shall be deemed, for all purposes, to have notice of, and to be bound by, the terms and conditions of the legends set forth, in the case of Holders, on the ADR registered in the name of the applicable Holders or, in the case of Beneficial Owners, on the ADR representing the ADSs owned by such Beneficial Owners.
(c) Title . Subject to the limitations contained herein and in the ADR, title to an ADR (and to each Certificated ADS evidenced thereby) shall be transferable upon the same terms as a certificated security under the laws of the State of New York, provided that, in the case of Certificated ADSs, such ADR has been properly endorsed or is accompanied by proper instruments of transfer. Notwithstanding any notice to the contrary, the Depositary and the Company may deem and treat the Holder of an ADS (that is, the person in whose name an ADS is registered on the books of the Depositary) as the absolute owner thereof for all purposes. Neither the Depositary nor the Company shall have any obligation nor be subject to any liability under the Deposit Agreement or any ADR to any holder or any Beneficial Owner unless, in the case of a holder of ADSs, such holder is the Holder registered on the books of the Depositary or, in the case of a Beneficial Owner, such Beneficial Owner, or the Beneficial Owners representative, is the Holder registered on the books of the Depositary.
(d) Book-Entry Systems . The Depositary shall make arrangements for the acceptance of the ADSs into DTC. All ADSs held through DTC will be registered in the name of the nominee for DTC (currently Cede & Co.). As such, the nominee for DTC will be the only Holder of all ADSs held through DTC. Unless issued by the Depositary as Uncertificated ADSs, the ADSs registered in the name of Cede & Co. will be evidenced by one or more ADR(s) in the form of a Balance Certificate, which will provide that it represents the aggregate number of ADSs from time to time indicated in the records of the Depositary as being issued hereunder and that the aggregate number of ADSs represented thereby may from time to time be increased or decreased by making adjustments on such records of the Depositary and of DTC or its nominee as hereinafter provided. Citibank, N.A. (or such other entity as is appointed by DTC or its nominee) may hold the Balance Certificate as custodian for DTC. Each Beneficial Owner of ADSs held through DTC must rely upon the procedures of DTC and the DTC Participants to exercise or be entitled to any rights attributable to such ADSs. The DTC Participants shall for all purposes be deemed to have all requisite power and authority to act on behalf of the Beneficial Owners of the ADSs held in the DTC Participants respective accounts in DTC and the Depositary shall for all purposes be authorized to rely upon any instructions and information given to it by DTC Participants. So long as ADSs are held through DTC or unless otherwise required by law, ownership of beneficial interests in the ADSs registered in the name of the nominee for DTC will be shown on, and transfers of such ownership will be effected only through, records maintained by (i) DTC or its nominee (with respect to the interests of DTC Participants), or (ii) DTC Participants or their nominees (with respect to the interests of clients of DTC Participants).
8
Section 2.3 Deposit of Shares . Subject to the terms and conditions of the Deposit Agreement and applicable law, Shares or evidence of rights to receive Shares (other than Restricted Securities) may be deposited by any person (including the Depositary in its individual capacity but subject, however, in the case of the Company or any Affiliate of the Company, to Section 5.7) at any time, whether or not the transfer books of the Company are closed, by Delivery of the Shares to the Custodian. Every deposit of Shares shall be accompanied by the following: (A) confirmation of such book-entry transfer and recordation in the books of the Company or of Euroclear Nederland, as applicable, to the Custodian or that irrevocable instructions have been given to cause such Shares to be so transferred and recorded, (B) such certifications and payments (including, without limitation, the Depositarys fees and related charges) and evidence of such payments (including, without limitation, stamping or otherwise marking such Shares by way of receipt) as may be required by the Depositary or the Custodian in accordance with the provisions of the Deposit Agreement and applicable law, (C) if the Depositary so requires, a written order directing the Depositary to issue and deliver to, or upon the written order of, the person(s) stated in such order the number of ADSs representing the Shares so deposited, (D) evidence satisfactory to the Depositary (which may be an opinion of counsel) that all necessary approvals have been granted by, or there has been compliance with the rules and regulations of, any applicable governmental agency in The Netherlands, and (E) if the Depositary so requires, (i) an agreement, assignment or instrument satisfactory to the Depositary or the Custodian which provides for the prompt transfer by any person in whose name the Shares are or have been recorded to the Custodian of any distribution, or right to subscribe for additional Shares or to receive other property in respect of any such deposited Shares or, in lieu thereof, such indemnity or other agreement as shall be satisfactory to the Depositary or the Custodian and (ii) if the Shares are registered in the name of the person on whose behalf they are presented for deposit, a proxy or proxies entitling the Custodian to exercise voting rights in respect of the Shares for any and all purposes until the Shares so deposited are registered in the name of the Depositary, the Custodian or any nominee.
Without limiting any other provision of the Deposit Agreement, the Depositary shall instruct the Custodian not to, and the Depositary shall not knowingly, accept for deposit (a) any Restricted Securities except as contemplated by Section 2.14) nor (b) any fractional Shares or fractional Deposited Securities nor (c) a number of Shares or Deposited Securities which upon application of the ADS to Shares ratio would give rise to fractional ADSs. No Shares shall be accepted for deposit unless accompanied by evidence, if any is required by the Depositary, that is reasonably satisfactory to the Depositary or the Custodian that all conditions to such deposit have been satisfied by the person depositing such Shares under the laws and regulations of The Netherlands and any necessary approval has been granted by any applicable governmental body in The Netherlands, if any. The Depositary may issue ADSs against evidence of rights to receive Shares from the Company, any agent of the Company or any custodian, registrar, transfer agent, clearing agency or other entity involved in ownership or transaction records in respect of the Shares. Such evidence of rights shall consist of written blanket or specific guarantees of ownership of Shares furnished by the Company or any such custodian, registrar, transfer agent, clearing agency or other entity involved in ownership or transaction records in respect of the Shares.
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Without limitation of the foregoing, the Depositary shall not knowingly accept for deposit under the Deposit Agreement (A) any Shares or other securities required to be registered under the provisions of the Securities Act, unless (i) a registration statement is in effect as to such Shares or other securities or (ii) the deposit is made upon terms contemplated in Section 2.14, or (B) any Shares or other securities the deposit of which would violate any provisions of the Articles of Association of the Company. For purposes of the foregoing sentence, the Depositary shall be entitled to rely upon representations and warranties made or deemed made pursuant to the Deposit Agreement and shall not be required to make any further investigation. The Depositary will comply with written instructions of the Company (received by the Depositary reasonably in advance) not to accept for deposit hereunder any Shares identified in such instructions at such times and under such circumstances as may reasonably be specified in such instructions in order to facilitate the Companys compliance with the securities laws of the United States.
Section 2.4 Registration and Safekeeping of Deposited Securities . The Depositary shall instruct the Custodian upon each Delivery of Shares being deposited hereunder with the Custodian (or other Deposited Securities pursuant to Article IV hereof), together with the other documents above specified, to present such Shares, together with the appropriate instrument(s) of transfer or endorsement, duly stamped, to the Company or Euroclear Nederland, as applicable, for transfer and recordation of the Shares (as soon as transfer and recordation can be accomplished and at the expense of the person for whom the deposit is made) in the name of the Depositary, the Custodian or a nominee of either. Deposited Securities shall be held by the Depositary, or by a Custodian for the account and to the order of the Depositary or a nominee of the Depositary, in each case, on behalf of the Holders and Beneficial Owners, at such place(s) as the Depositary or the Custodian shall determine. Notwithstanding anything else contained in the Deposit Agreement, any ADR(s), or any other instruments or agreements relating to the ADSs and the corresponding Deposited Property, the registration of the Deposited Securities in the name of the Depositary, the Custodian or any of their respective nominees, shall, to the maximum extent permitted by applicable law, vest in the Depositary, the Custodian or the applicable nominee the record ownership in the applicable Deposited Securities with the beneficial ownership rights and interests in such Deposited Securities being at all times vested with the Beneficial Owners of the ADSs representing the Deposited Securities. Notwithstanding the foregoing, the Depositary, the Custodian and the applicable nominee shall at all times be entitled to exercise the beneficial ownership rights in all Deposited Property, in each case only on behalf of the Holders and Beneficial Owners of the ADSs representing the Deposited Property, upon the terms set forth in the Deposit Agreement and, if applicable, the ADR(s) representing the ADSs. The Depositary, the Custodian and their respective nominees shall for all purposes be deemed to have all requisite power and authority to act in respect of Deposited Property on behalf of the Holders and Beneficial Owners of ADSs representing the Deposited Property, and upon making payments to, or acting upon instructions from, or information provided by, the Depositary, the Custodian or their respective nominees all persons shall be authorized to rely upon such power and authority.
Section 2.5 Issuance of ADSs . The Depositary has made arrangements with the Custodian for the Custodian to confirm to the Depositary upon receipt of a deposit of Shares (i) that a deposit of Shares has been made pursuant to Section 2.3, (ii) that such Deposited Securities have been recorded in the name of the Depositary, the Custodian or a nominee of
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either on the shareholders register maintained by the Company or on the books of Euroclear Nederland, (iii) that all required documents have been received, and (iv) the person(s) to whom or upon whose order ADSs are deliverable in respect thereof and the number of ADSs to be so delivered. Such notification may be made by letter, cable, telex, SWIFT message or, at the risk and expense of the person making the deposit, by facsimile or other means of electronic transmission. Upon receiving such notice from the Custodian, the Depositary, subject to the terms and conditions of the Deposit Agreement and applicable law, shall issue the ADSs representing the Shares so deposited to or upon the order of the person(s) named in the notice delivered to the Depositary and, if applicable, shall execute and deliver at its Principal Office Receipt(s) registered in the name(s) requested by such person(s) and evidencing the aggregate number of ADSs to which such person(s) are entitled, but, in each case, only upon payment to the Depositary of the charges of the Depositary for accepting a deposit, issuing ADSs (as set forth in Section 5.9 and Exhibit B hereto) and all taxes and governmental charges and fees payable in connection with such deposit and the transfer of the Shares and the issuance of the ADS(s). The Depositary shall only issue ADSs in whole numbers and deliver, if applicable, ADR(s) evidencing whole numbers of ADSs. Nothing herein shall prohibit any Pre-Release Transaction upon the terms set forth in the Deposit Agreement.
Section 2.6 Transfer, Combination and Split-up of ADRs .
(a) Transfer . The Registrar shall register the transfer of ADRs (and of the ADSs represented thereby) on the books maintained for such purpose and the Depositary shall (x) cancel such ADRs and execute new ADRs evidencing the same aggregate number of ADSs as those evidenced by the ADRs canceled by the Depositary, (y) cause the Registrar to countersign such new ADRs and (z) Deliver such new ADRs to or upon the order of the person entitled thereto, if each of the following conditions has been satisfied: (i) the ADRs have been duly Delivered by the Holder (or by a duly authorized attorney of the Holder) to the Depositary at its Principal Office for the purpose of effecting a transfer thereof, (ii) the surrendered ADRs have been properly endorsed or are accompanied by proper instruments of transfer (including signature guarantees in accordance with standard securities industry practice), (iii) the surrendered ADRs have been duly stamped (if required by the laws of the State of New York or of the United States), and (iv) all applicable fees and charges of, and expenses incurred by, the Depositary and all applicable taxes and governmental charges (as are set forth in Section 5.9 and Exhibit B hereto) have been paid, subject, however, in each case , to the terms and conditions of the applicable ADRs, of the Deposit Agreement and of applicable law, in each case as in effect at the time thereof.
(b) Combination & Split-Up . The Registrar shall register the split-up or combination of ADRs (and of the ADSs represented thereby) on the books maintained for such purpose and the Depositary shall (x) cancel such ADRs and execute new ADRs for the number of ADSs requested, but in the aggregate not exceeding the number of ADSs evidenced by the ADRs canceled by the Depositary, (y) cause the Registrar to countersign such new ADRs and (z) Deliver such new ADRs to or upon the order of the Holder thereof, if each of the following conditions has been satisfied: (i) the ADRs have been duly Delivered by the Holder (or by a duly authorized attorney of the Holder) to the Depositary at its Principal Office for the purpose of effecting a split-up or combination thereof, and (ii) all applicable fees and charges of, and expenses incurred by, the Depositary and all applicable taxes and governmental charges (as are
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set forth in Section 5.9 and Exhibit B hereto) have been paid, subject, however, in each case , to the terms and conditions of the applicable ADRs, of the Deposit Agreement and of applicable law, in each case as in effect at the time thereof.
(c) Co-Transfer Agents . The Depositary may appoint one or more co-transfer agents for the purpose of effecting transfers, combinations and split-ups of ADRs at designated transfer offices on behalf of the Depositary. In carrying out its functions, a co-transfer agent may require evidence of authority and compliance with applicable laws and other requirements by Holders or persons entitled to such ADRs and will be entitled to protection and indemnity to the same extent as the Depositary. Such co-transfer agents may be removed and substitutes appointed by the Depositary. Each co-transfer agent appointed under this Section 2.6 (other than the Depositary) shall give notice in writing to the Depositary accepting such appointment and agreeing to be bound by the applicable terms of the Deposit Agreement.
Section 2.7 Surrender of ADSs and Withdrawal of Deposited Securities . The Holder of ADSs shall be entitled to Delivery (at the Custodians designated office) of the Deposited Securities at the time represented by the ADSs upon satisfaction of each of the following conditions: (i) the Holder (or a duly-authorized attorney of the Holder) has duly Delivered ADSs to the Depositary at its Principal Office (and if applicable, the ADRs evidencing such ADSs) for the purpose of withdrawal of the Deposited Securities represented thereby, (ii) if applicable and so required by the Depositary, the ADRs Delivered to the Depositary for such purpose have been properly endorsed in blank or are accompanied by proper instruments of transfer in blank (including signature guarantees in accordance with standard securities industry practice), (iii) if so required by the Depositary, the Holder of the ADSs has executed and delivered to the Depositary a written order directing the Depositary to cause the Deposited Securities being withdrawn to be Delivered to or upon the written order of the person(s) designated in such order, and (iv) all applicable fees and charges of, and expenses incurred by, the Depositary and all applicable taxes and governmental charges (as are set forth in Section 5.9 and Exhibit B ) have been paid, subject, however, in each case , to the terms and conditions of the ADRs evidencing the surrendered ADSs, of the Deposit Agreement, of the Companys Articles of Association and of any applicable laws and the rules of Euroclear Nederland, and to any provisions of or governing the Deposited Securities, in each case as in effect at the time thereof.
Upon satisfaction of each of the conditions specified above, the Depositary (i) shall cancel the ADSs Delivered to it (and, if applicable, the ADR(s) evidencing the ADSs so Delivered), (ii) shall direct the Registrar to record the cancellation of the ADSs so Delivered on the books maintained for such purpose, and (iii) shall direct the Custodian to Deliver, or cause the Delivery of, in each case, without unreasonable delay, the Deposited Securities represented by the ADSs so canceled together with any certificate or other document of title for the Deposited Securities, or evidence of the electronic transfer thereof (if available), as the case may be, to or upon the written order of the person(s) designated in the order delivered to the Depositary for such purpose, subject however, in each case, to the terms and conditions of the Deposit Agreement, of the ADRs evidencing the ADSs so canceled, of the Articles of Association of the Company, of any applicable laws and of the rules of Euroclear Nederland, and to the terms and conditions of or governing the Deposited Securities, in each case as in effect at the time thereof.
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The Depositary shall not accept for surrender ADSs representing less than one (1) Share. In the case of Delivery to it of ADSs representing a number other than a whole number of Shares, the Depositary shall cause ownership of the appropriate whole number of Shares to be Delivered in accordance with the terms hereof, and shall, at the discretion of the Depositary, either (i) return to the person surrendering such ADSs the number of ADSs representing any remaining fractional Share, or (ii) sell or cause to be sold the fractional Share represented by the ADSs so surrendered and remit the proceeds of such sale (net of (a) applicable fees and charges of, and expenses incurred by, the Depositary and (b) taxes withheld) to the person surrendering the ADSs.
Notwithstanding anything else contained in any ADR or the Deposit Agreement, the Depositary may make delivery at the Principal Office of the Depositary of Deposited Property consisting of (i) any cash dividends or cash distributions, or (ii) any proceeds from the sale of any non-cash distributions, which are at the time held by the Depositary in respect of the Deposited Securities represented by the ADSs surrendered for cancellation and withdrawal. At the request, risk and expense of any Holder so surrendering ADSs, and for the account of such Holder, the Depositary shall direct the Custodian to forward (to the extent permitted by law) any Deposited Property (other than Deposited Securities) held by the Custodian in respect of such ADSs to the Depositary for delivery at the Principal Office of the Depositary. Such direction shall be given by letter or, at the request, risk and expense of such Holder, by cable, telex or facsimile transmission.
Section 2.8 Limitations on Execution and Delivery, Transfer, etc. of ADSs; Suspension of Delivery, Transfer, etc.
(a) Additional Requirements . As a condition precedent to the execution and delivery, the registration of issuance, transfer, split-up, combination or surrender, of any ADS, the delivery of any distribution thereon, or the withdrawal of any Deposited Property, the Depositary or the Custodian may require (i) payment from the depositor of Shares or presenter of ADSs or of an ADR of a sum sufficient to reimburse it for any tax or other governmental charge and any stock transfer or registration fee with respect thereto (including any such tax or charge and fee with respect to Shares being deposited or withdrawn) and payment of any applicable fees and charges of the Depositary as provided in Section 5.9 and Exhibit B , (ii) the production of proof satisfactory to it as to the identity and genuineness of any signature or any other matter contemplated by Section 3.1, and (iii) compliance with (A) any laws or governmental regulations relating to the execution and delivery of ADRs or ADSs or to the withdrawal of Deposited Securities and (B) such reasonable regulations as the Depositary and the Company may establish consistent with the provisions of the representative ADR, if applicable, the Deposit Agreement and applicable law.
(b) Additional Limitations . The issuance of ADSs against deposits of Shares generally or against deposits of particular Shares may be suspended, or the deposit of particular Shares may be refused, or the registration of transfer of ADSs in particular instances may be refused, or the registration of transfers of ADSs generally may be suspended, during any period when the transfer books of the Company, the Depositary, or a Registrar are closed or if any such action is deemed necessary or advisable by the Depositary or the Company, in good faith, at any time or from time to time because of any requirement of law or regulation, any government or
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governmental body or commission or any securities exchange on which the ADSs or Shares are listed, or under any provision of the Deposit Agreement or the representative ADR(s), if applicable, or under any provision of, or governing, the Deposited Securities, or because of a meeting of shareholders of the Company or for any other reason, subject, in all cases, to Section 7.8.
(c) Regulatory Restrictions . Notwithstanding any provision of the Deposit Agreement or any ADR(s) to the contrary, Holders are entitled to surrender outstanding ADSs to withdraw the Deposited Securities associated herewith at any time subject only to (i) temporary delays caused by closing the transfer books of the Depositary or the Company or the deposit of Shares in connection with voting at a shareholders meeting or the payment of dividends, (ii) the payment of fees, taxes and similar charges, (iii) compliance with any U.S. or foreign laws or governmental regulations relating to the ADSs or to the withdrawal of the Deposited Securities, and (iv) other circumstances specifically contemplated by Instruction I.A.(l) of the General Instructions to Form F-6 (as such General Instructions may be amended from time to time).
Section 2.9 Lost ADRs, etc. In case any ADR shall be mutilated, destroyed, lost, or stolen, the Depositary shall execute and deliver a new ADR of like tenor at the expense of the Holder (a) in the case of a mutilated ADR, in exchange of and substitution for such mutilated ADR upon cancellation thereof, or (b) in the case of a destroyed, lost or stolen ADR, in lieu of and in substitution for such destroyed, lost, or stolen ADR, after the Holder thereof (i) has submitted to the Depositary a written request for such exchange and substitution before the Depositary has notice that the ADR has been acquired by a bona fide purchaser, (ii) has provided such security or indemnity (including an indemnity bond) as may be required by the Depositary to save it and any of its agents harmless, and (iii) has satisfied any other reasonable requirements imposed by the Depositary, including, without limitation, evidence satisfactory to the Depositary of such destruction, loss or theft of such ADR, the authenticity thereof and the Holders ownership thereof.
Section 2.10 Cancellation and Destruction of Surrendered ADRs; Maintenance of Records . All ADRs surrendered to the Depositary shall be canceled by the Depositary. Canceled ADRs shall not be entitled to any benefits under the Deposit Agreement or be valid or enforceable against the Depositary for any purpose. The Depositary is authorized to destroy ADRs so canceled, provided the Depositary maintains a record of all destroyed ADRs. Any ADSs held in book-entry form ( i.e. , through accounts at DTC) shall be deemed canceled when the Depositary causes the number of ADSs evidenced by the Balance Certificate to be reduced by the number of ADSs surrendered (without the need to physically destroy the Balance Certificate).
Section 2.11 Escheatment . In the event any unclaimed property relating to the ADSs, for any reason, is in the possession of Depositary and has not been claimed by the Holder thereof or cannot be delivered to the Holder thereof through usual channels, the Depositary shall, upon expiration of any applicable statutory period relating to abandoned property laws, escheat such unclaimed property to the relevant authorities in accordance with the laws of each of the relevant States of the United States.
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Section 2.12 Partial Entitlement ADSs . In the event any Shares are deposited which (i) entitle the holders thereof to receive a per-share distribution or other entitlement in an amount different from the Shares then on deposit or (ii) are not fully fungible (including, without limitation, as to settlement or trading) with the Shares then on deposit (the Shares then on deposit collectively, Full Entitlement Shares and the Shares with different entitlement, Partial Entitlement Shares ), the Depositary shall (i) cause the Custodian to hold Partial Entitlement Shares separate and distinct from Full Entitlement Shares, and (ii) subject to the terms of the Deposit Agreement, issue ADSs representing Partial Entitlement Shares which are separate and distinct from the ADSs representing Full Entitlement Shares, by means of separate CUSIP numbering and legending (if necessary) and, if applicable, by issuing ADRs evidencing such ADSs with applicable notations thereon ( Partial Entitlement ADSs/ADRs and Full Entitlement ADSs/ADRs , respectively). If and when Partial Entitlement Shares become Full Entitlement Shares, the Depositary shall (a) give notice thereof to Holders of Partial Entitlement ADSs and give Holders of Partial Entitlement ADRs the opportunity to exchange such Partial Entitlement ADRs for Full Entitlement ADRs, (b) cause the Custodian to transfer the Partial Entitlement Shares into the account of the Full Entitlement Shares, and (c) take such actions as are necessary to remove the distinctions between (i) the Partial Entitlement ADRs and ADSs, on the one hand, and (ii) the Full Entitlement ADRs and ADSs on the other. Holders and Beneficial Owners of Partial Entitlement ADSs shall only be entitled to the entitlements of Partial Entitlement Shares. Holders and Beneficial Owners of Full Entitlement ADSs shall be entitled only to the entitlements of Full Entitlement Shares. All provisions and conditions of the Deposit Agreement shall apply to Partial Entitlement ADRs and ADSs to the same extent as Full Entitlement ADRs and ADSs, except as contemplated by this Section 2.12. The Depositary is authorized to take any and all other actions as may be necessary (including, without limitation, making the necessary notations on ADRs) to give effect to the terms of this Section 2.12. The Company agrees to give timely written notice to the Depositary if any Shares issued or to be issued are Partial Entitlement Shares and shall assist the Depositary with the establishment of procedures enabling the identification of Partial Entitlement Shares upon Delivery to the Custodian.
Section 2.13 Certificated/Uncertificated ADSs . Notwithstanding any other provision of the Deposit Agreement, the Depositary may, at any time and from time to time, issue ADSs that are not evidenced by ADRs (such ADSs, the Uncertificated ADS(s) and the ADS(s) evidenced by ADR(s), the Certificated ADS(s) ). When issuing and maintaining Uncertificated ADS(s) under the Deposit Agreement, the Depositary shall at all times be subject to (i) the standards applicable to registrars and transfer agents maintaining direct registration systems for equity securities in New York and issuing uncertificated securities under New York law, and (ii) the terms of New York law applicable to uncertificated equity securities. Uncertificated ADSs shall not be represented by any instruments but shall be evidenced by registration in the books of the Depositary maintained for such purpose. Holders of Uncertificated ADSs, that are not subject to any registered pledges, liens, restrictions or adverse claims of which the Depositary has notice at such time, shall at all times have the right to exchange the Uncertificated ADS(s) for Certificated ADS(s) of the same type and class, subject in each case to applicable laws and any rules and regulations the Depositary may have established in respect of the Uncertificated ADSs. Holders of Certificated ADSs shall, if the Depositary maintains a direct registration system for the ADSs, have the right to exchange the Certificated ADSs for Uncertificated ADSs upon (i) the due surrender of the Certificated ADS(s) to the Depositary for
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such purpose and (ii) the presentation of a written request to that effect to the Depositary, subject in each case to (a) all liens and restrictions noted on the ADR evidencing the Certificated ADS(s) and all adverse claims of which the Depositary then has notice, (b) the terms of the Deposit Agreement and the rules and regulations that the Depositary may establish for such purposes hereunder, (c) applicable law, and (d) payment of the Depositary fees and expenses applicable to such exchange of Certificated ADS(s) for Uncertificated ADS(s). Uncertificated ADSs shall in all material respects be identical to Certificated ADS(s) of the same type and class, except that (i) no ADR(s) shall be, or shall need to be, issued to evidence Uncertificated ADS(s), (ii) Uncertificated ADS(s) shall, subject to the terms of the Deposit Agreement, be transferable upon the same terms and conditions as uncertificated securities under New York law, (iii) the ownership of Uncertificated ADS(s) shall be recorded on the books of the Depositary maintained for such purpose and evidence of such ownership shall be reflected in periodic statements provided by the Depositary to the Holder(s) in accordance with applicable New York law, (iv) the Depositary may from time to time, upon notice to the Holders of Uncertificated ADSs affected thereby, establish rules and regulations, and amend or supplement existing rules and regulations, as may be deemed reasonably necessary to maintain Uncertificated ADS(s) on behalf of Holders, provided that (a) such rules and regulations do not conflict with the terms of the Deposit Agreement and applicable law, and (b) the terms of such rules and regulations are readily available to Holders upon request, (v) the Uncertificated ADS(s) shall not be entitled to any benefits under the Deposit Agreement or be valid or enforceable for any purpose against the Depositary or the Company unless such Uncertificated ADS(s) is/are registered on the books of the Depositary maintained for such purpose, (vi) the Depositary may, in connection with any deposit of Shares resulting in the issuance of Uncertificated ADSs and with any transfer, pledge, release and cancellation of Uncertificated ADSs, require the prior receipt of such documentation as the Depositary may deem reasonably appropriate, and (vii) upon termination of the Deposit Agreement, the Depositary shall not require Holders of Uncertificated ADSs to affirmatively instruct the Depositary before remitting proceeds from the sale of the Deposited Property represented by such Holders Uncertificated ADSs under the terms of Section 6.2 of the Deposit Agreement. When issuing ADSs under the terms of the Deposit Agreement, including, without limitation, issuances pursuant to Sections 2.5, 4.2, 4.3, 4.4, 4.5 and 4.11, the Depositary may in its discretion determine to issue Uncertificated ADSs rather than Certificated ADSs, unless otherwise specifically instructed by the applicable Holder to issue Certificated ADSs. All provisions and conditions of the Deposit Agreement shall apply to Uncertificated ADSs to the same extent as to Certificated ADSs, except as contemplated by this Section 2.13. The Depositary is authorized and directed to take any and all actions and establish any and all procedures deemed reasonably necessary to give effect to the terms of this Section 2.13. Any references in the Deposit Agreement or any ADR(s) to the terms American Depositary Share(s) or ADS(s) shall, unless the context otherwise requires, include Certificated ADS(s) and Uncertificated ADS(s). Except as set forth in this Section 2.13 and except as required by applicable law, the Uncertificated ADSs shall be treated as ADSs issued and outstanding under the terms of the Deposit Agreement. In the event that, in determining the rights and obligations of parties hereto with respect to any Uncertificated ADSs, any conflict arises between (a) the terms of the Deposit Agreement (other than this Section 2.13) and (b) the terms of this Section 2.13, the terms and conditions set forth in this Section 2.13 shall be controlling and shall govern the rights and obligations of the parties to the Deposit Agreement pertaining to the Uncertificated ADSs.
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Section 2.14 Restricted ADSs . The Depositary shall, at the request and expense of the Company, establish procedures enabling the deposit hereunder of Shares that are Restricted Securities in order to enable the holder of such Shares to hold its ownership interests in such Restricted Shares in the form of ADSs issued under the terms hereof (such Shares, Restricted Shares ). Upon receipt of a written request from the Company to accept Restricted Shares for deposit hereunder, the Depositary agrees to establish procedures permitting the deposit of such Restricted Shares and the issuance of ADSs representing the right to receive, subject to the terms of the Deposit Agreement and the applicable ADR (if issued as a Certificated ADS), such deposited Restricted Shares (such ADSs, the Restricted ADSs , and the ADRs evidencing such Restricted ADSs, the Restricted ADRs ). Notwithstanding anything contained in this Section 2.14, the Depositary and the Company may, to the extent not prohibited by law, agree to issue the Restricted ADSs in uncertificated form ( Uncertificated Restricted ADSs ) upon such terms and conditions as the Company and the Depositary may deem necessary and appropriate. The Company shall assist the Depositary in the establishment of such procedures and agrees that it shall take all steps necessary and satisfactory to the Depositary to ensure that the establishment of such procedures does not violate the provisions of the Securities Act or any other applicable laws. The depositors of such Restricted Shares and the Holders of the Restricted ADSs may be required prior to the deposit of such Restricted Shares, the transfer of the Restricted ADRs and Restricted ADSs or the withdrawal of the Restricted Shares represented by Restricted ADSs to provide such written certifications or agreements as the Depositary or the Company may require. The Company shall provide to the Depositary in writing the legend(s) to be affixed to the Restricted ADRs (if the Restricted ADSs are to be issued as Certificated ADSs ) , or to be included in the statements issued from time to time to Holders of Uncertificated ADSs (if issued as Uncertificated Restricted ADSs), which legends shall (i) be in a form reasonably satisfactory to the Depositary and (ii) contain the specific circumstances under which the Restricted ADSs, and, if applicable, the Restricted ADRs evidencing the Restricted ADSs, may be transferred or the Restricted Shares withdrawn. The Restricted ADSs issued upon the deposit of Restricted Shares shall be separately identified on the books of the Depositary and the Restricted Shares so deposited shall, to the extent required by law, be held separate and distinct from the other Deposited Securities held hereunder. The Restricted Shares and the Restricted ADSs shall not be eligible for Pre-Release Transactions. The Restricted ADSs shall not be eligible for inclusion in any book-entry settlement system, including, without limitation, DTC, and shall not in any way be fungible with the ADSs issued under the terms hereof that are not Restricted ADSs. The Restricted ADSs, and, if applicable, the Restricted ADRs evidencing the Restricted ADSs, shall be transferable only by the Holder thereof upon delivery to the Depositary of (i) all documentation otherwise contemplated by the Deposit Agreement and (ii) an opinion of counsel satisfactory to the Depositary setting forth, inter alia , the conditions upon which the Restricted ADSs presented, and, if applicable, the Restricted ADRs evidencing the Restricted ADSs, are transferable by the Holder thereof under applicable securities laws and the transfer restrictions contained in the legend applicable to the Restricted ADSs presented for transfer. Except as set forth in this Section 2.14 and except as required by applicable law, the Restricted ADSs and the Restricted ADRs evidencing Restricted ADSs shall be treated as ADSs and ADRs issued and outstanding under the terms of the Deposit Agreement. In the event that, in determining the rights and obligations of parties hereto with respect to any Restricted ADSs, any conflict arises between (a) the terms of the Deposit Agreement (other than this Section 2.14) and (b) the terms of (i) this Section 2.14 or (ii) the applicable Restricted ADR, the terms and conditions set forth in
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this Section 2.14 and of the Restricted ADR shall be controlling and shall govern the rights and obligations of the parties to the Deposit Agreement pertaining to the deposited Restricted Shares, the Restricted ADSs and Restricted ADRs.
If the Restricted ADRs, the Restricted ADSs and the Restricted Shares cease to be Restricted Securities, the Depositary, upon receipt of (x) an opinion of counsel satisfactory to the Depositary setting forth, inter alia , that the Restricted ADRs, the Restricted ADSs and the Restricted Shares are not as of such time Restricted Securities, and (y) instructions from the Company to remove the restrictions applicable to the Restricted ADRs, the Restricted ADSs and the Restricted Shares, shall (i) eliminate the distinctions and separations that may have been established between the applicable Restricted Shares held on deposit under this Section 2.14 and the other Shares held on deposit under the terms of the Deposit Agreement that are not Restricted Shares, (ii) treat the newly unrestricted ADRs and ADSs on the same terms as, and fully fungible with, the other ADRs and ADSs issued and outstanding under the terms of the Deposit Agreement that are not Restricted ADRs or Restricted ADSs, (iii) take all actions necessary to remove any distinctions, limitations and restrictions previously existing under this Section 2.14 between the applicable Restricted ADRs and Restricted ADSs, respectively, on the one hand, and the other ADRs and ADSs that are not Restricted ADRs or Restricted ADSs, respectively, on the other hand, including, without limitation, by making the newly-unrestricted ADSs eligible for Pre-Release Transactions and for inclusion in the applicable book-entry settlement systems.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
AND BENEFICIAL OWNERS OF ADSs
Section 3.1 Proofs, Certificates and Other Information . Any person presenting Shares for deposit, any Holder and any Beneficial Owner may be required, and every Holder and Beneficial Owner agrees, from time to time to provide to the Depositary and the Custodian such proof of citizenship or residence, taxpayer status, payment of all applicable taxes or other governmental charges, exchange control approval, legal or beneficial ownership of ADSs and Deposited Property, compliance with applicable laws, the terms of the Deposit Agreement or the ADR(s) evidencing the ADSs and the provisions of, or governing, the Deposited Property, to execute such certifications and to make such representations and warranties, and to provide such other information and documentation as the Depositary or the Custodian may deem necessary or proper or as the Company may reasonably require by written request to the Depositary consistent with its obligations under the Deposit Agreement and the applicable ADR(s) or as may be required by Euroclear Nederland. The Depositary and the Registrar, as applicable, may withhold the execution or delivery or registration of transfer of any ADR or ADS or the distribution or sale of any dividend or distribution of rights or of the proceeds thereof or, to the extent not limited by the terms of Section 7.8, the delivery of any Deposited Property until such proof or other information is filed or such certifications are executed, or such representations and warranties are made, or such other documentation or information provided, in each case to the Depositarys, the Registrars and the Companys satisfaction. The Depositary shall provide the Company, in a timely manner, with copies or originals if necessary and appropriate of (i) any such proofs of citizenship or residence, taxpayer status, or exchange control approval or copies of written representations and warranties which it receives from Holders and Beneficial Owners,
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and (ii) any other information or documents which the Company may reasonably request and which the Depositary shall request and receive from any Holder or Beneficial Owner or any person presenting Shares for deposit or ADSs for cancellation, transfer or withdrawal. Nothing herein shall obligate the Depositary to (i) obtain any information for the Company if not provided by the Holders or Beneficial Owners, or (ii) verify or vouch for the accuracy of the information so provided by the Holders or Beneficial Owners.
Section 3.2 Liability for Taxes and Other Charges . Any tax or other governmental charge payable by the Custodian or by the Depositary with respect to any Deposited Property, ADSs or ADRs shall be payable by the Holders and Beneficial Owners to the Depositary. The Company, the Custodian and/or the Depositary may withhold or deduct from any distributions made in respect of Deposited Property, and may sell for the account of a Holder and/or Beneficial Owner any or all of the Deposited Property and apply such distributions and sale proceeds in payment of, any taxes (including applicable interest and penalties) or charges that are or may be payable by Holders or Beneficial Owners in respect of the ADSs, Deposited Property and ADRs, the Holder and the Beneficial Owner remaining liable for any deficiency. The Custodian may refuse the deposit of Shares and the Depositary may refuse to issue ADSs, to deliver ADRs, register the transfer of ADSs, register the split-up or combination of ADRs and (subject to Section 7.8) the withdrawal of Deposited Property until payment in full of such tax, charge, penalty or interest is received. Every Holder and Beneficial Owner agrees to indemnify the Depositary, the Company, the Custodian, and any of their agents, officers, employees and Affiliates for, and to hold each of them harmless from, any claims with respect to taxes (including applicable interest and penalties thereon) arising from any tax benefit obtained for such Holder and/or Beneficial Owner.
Section 3.3 Representations and Warranties on Deposit of Shares . Each person depositing Shares under the Deposit Agreement shall be deemed thereby to represent and warrant that (i) such Shares and the certificates therefor are duly authorized, validly issued, fully paid, non-assessable and legally obtained by such person, (ii) all preemptive (and similar) rights, if any, with respect to such Shares have been validly waived or exercised, (iii) the person making such deposit is duly authorized so to do, (iv) the Shares presented for deposit are free and clear of any lien, encumbrance, security interest, charge, mortgage or adverse claim, (v) the Shares presented for deposit are not, and the ADSs issuable upon such deposit will not be, Restricted Securities (except as contemplated in Section 2.14), and (vi) the Shares presented for deposit have not been stripped of any rights or entitlements. Such representations and warranties shall survive the deposit and withdrawal of Shares, the issuance and cancellation of ADSs in respect thereof and the transfer of such ADSs. If any such representations or warranties are false in any way, the Company and the Depositary shall be authorized, at the cost and expense of the person depositing Shares, to take any and all actions necessary to correct the consequences thereof.
Section 3.4 Compliance with Information Requests . Notwithstanding any other provision of the Deposit Agreement or any ADR(s), each Holder and Beneficial Owner agrees to comply with requests from the Company pursuant to applicable law, the rules and requirements of the Euronext Amsterdam N.V., and any other stock exchange on which the Shares or ADSs are, or will be, registered, traded or listed or the Articles of Association of the Company, which are made to provide information, inter alia , as to the capacity in which such Holder or Beneficial Owner owns ADSs (and Shares as the case may be) and regarding the identity of any other
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person(s) interested in such ADSs and the nature of such interest and various other matters, whether or not they are Holders and/or Beneficial Owners at the time of such request. The Depositary agrees to use its reasonable efforts to forward, upon the request of the Company and at the Companys expense, any such request from the Company to the Holders and to forward to the Company any such responses to such requests received by the Depositary.
Section 3.5 Ownership Restrictions . Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may restrict transfers of the Shares where such transfer might result in ownership of Shares exceeding limits imposed by applicable law or the Articles of Association of the Company. The Company may also restrict, in such manner as it deems appropriate, transfers of the ADSs where such transfer may result in the total number of Shares represented by the ADSs owned by a single Holder or Beneficial Owner to exceed any such limits. The Company may, in its sole discretion but subject to applicable law, instruct the Depositary to take action with respect to the ownership interest of any Holder or Beneficial Owner in excess of the limits set forth in the preceding sentence, including, but not limited to, the imposition of restrictions on the transfer of ADSs, the removal or limitation of voting rights or mandatory sale or disposition on behalf of a Holder or Beneficial Owner of the Shares represented by the ADSs held by such Holder or Beneficial Owner in excess of such limitations, if and to the extent such disposition is permitted by applicable law and the Articles of Association of the Company. Holders and Beneficial Owners acknowledge that, under the Dutch Act on the Disclosure of Holdings in Listed Companies, shareholders must promptly notify the Company and The Netherlands Securities Investment Board if their holding reaches, exceeds or falls below 3%, 5%, 10%, 15%, 20%, 25%, 30%, 40%, 50%, 60%, 75% or 95% of the capital interest and/or voting rights in the Company (whether due to an increase or decrease in the issued share capital of the Company or otherwise) and agree to comply with such notification requirements.
Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance with the ownership restrictions described in this Section 3.5.
Section 3.6 Reporting Obligations and Regulatory Approvals . Applicable laws and regulations may require holders and beneficial owners of Shares, including the Holders and Beneficial Owners of ADSs, to satisfy reporting requirements and obtain regulatory approvals in certain circumstances. Holders and Beneficial Owners of ADSs are solely responsible for determining and complying with such reporting requirements and obtaining such approvals. Each Holder and each Beneficial Owner hereby agrees to make such determination, file such reports, and obtain such approvals to the extent and in the form required by applicable laws and regulations as in effect from time to time. Neither the Depositary, the Custodian, the Company or any of their respective agents or affiliates shall be required to take any actions whatsoever on behalf of Holders or Beneficial Owners to determine or satisfy such reporting requirements or obtain such regulatory approvals under applicable laws and regulations.
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ARTICLE IV
THE DEPOSITED SECURITIES
Section 4.1 Cash Distributions . Whenever the Company intends to make a distribution of a cash dividend or other cash distribution in respect of any Deposited Securities, the Company shall give notice thereof to the Depositary at least fifteen (15) days prior to the proposed distribution specifying, inter alia , the record date applicable for determining the holders of Deposited Securities entitled to receive such distribution. Upon the timely receipt of such notice, the Depositary shall establish an ADS Record Date upon the terms described in Section 4.9. Upon receipt of confirmation from the Custodian of the receipt of any cash dividend or other cash distribution on any Deposited Securities, or upon receipt of proceeds from the sale of any Deposited Property held in respect of the ADSs under the terms hereof, the Depositary will (i) if at the time of receipt thereof any amounts received in a Foreign Currency can, in the judgment of the Depositary (pursuant to Section 4.8), be converted on a practicable basis into Dollars transferable to the United States, promptly convert or cause to be converted such cash dividend, distribution or proceeds into Dollars (on the terms described in Section 4.8), (ii) if applicable and unless previously established, establish the ADS Record Date upon the terms described in Section 4.9, and (iii) distribute promptly the amount thus received (net of (a) the applicable fees and charges of, and expenses incurred by, the Depositary and (b) taxes withheld) to the Holders entitled thereto as of the ADS Record Date in proportion to the number of ADSs held as of the ADS Record Date. The Depositary shall distribute only such amount, however, as can be distributed without attributing to any Holder a fraction of one cent, and any balance not so distributed shall be held by the Depositary (without liability for interest thereon) and shall be added to and become part of the next sum received by the Depositary for distribution to Holders of ADSs outstanding at the time of the next distribution. If the Company, the Custodian or the Depositary is required to withhold and does withhold from any cash dividend or other cash distribution in respect of any Deposited Securities, or from any cash proceeds from the sales of Deposited Property, an amount on account of taxes, duties or other governmental charges, the amount distributed to Holders on the ADSs shall be reduced accordingly. Such withheld amounts shall be forwarded by the Company, the Custodian or the Depositary to the relevant governmental authority. Evidence of payment thereof by the Company shall be forwarded by the Company to the Depositary upon request. The Depositary will hold any cash amounts it is unable to distribute in a non-interest bearing account for the benefit of the applicable Holders and Beneficial Owners of ADSs until the distribution can be effected or the funds that the Depositary holds must be escheated as unclaimed property in accordance with the laws of the relevant states of the United States. Notwithstanding anything contained in this Section 4.1 to the contrary, in the event the Company fails to give the Depositary timely notice of the proposed distribution provided for above, the Depositary agrees to use commercially reasonable efforts to perform the actions contemplated in this Section 4.1, and the Company, the Holders and the Beneficial Owners acknowledge that the Depositary shall have no liability for the Depositarys failure to perform the actions contemplated in this Section 4.1 where such notice has not been so timely given, other than its failure to use commercially reasonable efforts, as provided herein.
Section 4.2 Distribution in Shares . Whenever the Company intends to make a distribution that consists of a dividend in, or free distribution of, Shares, the Company shall give notice thereof to the Depositary at least fifteen (15) days prior to the proposed distribution,
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specifying, inter alia , the record date applicable to holders of Deposited Securities entitled to receive such distribution. Upon the timely receipt of such notice from the Company, the Depositary shall establish the ADS Record Date upon the terms described in Section 4.9. Upon receipt of confirmation from the Custodian of the receipt of the Shares so distributed by the Company, the Depositary shall either (i) subject to Section 5.9, distribute to the Holders as of the ADS Record Date in proportion to the number of ADSs held as of the ADS Record Date, additional ADSs, which represent in the aggregate the number of Shares received as such dividend, or free distribution, subject to the other terms of the Deposit Agreement (including, without limitation, (a) the applicable fees and charges of, and expenses incurred by, the Depositary and (b) taxes), or (ii) if additional ADSs are not so distributed, take all actions necessary so that each ADS issued and outstanding after the ADS Record Date shall, to the extent permissible by law, thenceforth also represent rights and interests in the additional integral number of Shares distributed upon the Deposited Securities represented thereby (net of (a) the applicable fees and charges of, and expenses incurred by, the Depositary and (b) taxes). In lieu of delivering fractional ADSs, the Depositary shall sell the number of Shares or ADSs, as the case may be, represented by the aggregate of such fractions and distribute the net proceeds upon the terms described in Section 4.1. In the event that the Depositary determines that any distribution in property (including Shares) is subject to any tax or other governmental charges which the Depositary is obligated to withhold, or, if the Company in the fulfillment of its obligation under Section 5.7, has furnished an opinion of U.S. counsel determining that Shares must be registered under the Securities Act or other laws in order to be distributed to Holders (and no such registration statement has been declared effective), the Depositary may dispose of all or a portion of such property (including Shares and rights to subscribe therefor) in such amounts and in such manner, including by public or private sale, as the Depositary deems necessary and practicable, and the Depositary shall distribute the net proceeds of any such sale (after deduction of (a) taxes and (b) fees and charges of, and expenses incurred by, the Depositary) to Holders entitled thereto upon the terms described in Section 4.1. The Depositary shall hold and/or distribute any unsold balance of such property in accordance with the provisions of the Deposit Agreement. Notwithstanding anything contained in this Section 4.2 to the contrary, in the event the Company fails to give the Depositary timely notice of the proposed distribution provided for above, the Depositary agrees to use commercially reasonable efforts to perform the actions contemplated in this Section 4.2, and the Company, the Holders and the Beneficial Owners acknowledge that the Depositary shall have no liability for the Depositarys failure to perform the actions contemplated in this Section 4.2 where such notice has not been so timely given, other than its failure to use commercially reasonable efforts, as provided herein.
Section 4.3 Elective Distributions in Cash or Shares . Whenever the Company intends to make a distribution payable at the election of the holders of Deposited Securities in cash or in additional Shares, the Company shall give notice thereof to the Depositary at least forty-five (45) days prior to the proposed distribution specifying, inter alia , the record date applicable to holders of Deposited Securities entitled to receive such elective distribution and whether or not it wishes such elective distribution to be made available to Holders of ADSs. Upon the timely receipt of a notice indicating that the Company wishes such elective distribution to be made available to Holders of ADSs, the Depositary shall consult with the Company to determine, and the Company shall assist the Depositary in its determination, whether it is lawful and reasonably practicable to make such elective distribution available to the Holders of ADSs. The Depositary shall make such elective distribution available to Holders only if (i) the
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Company shall have timely requested that the elective distribution be made available to Holders, (ii) the Depositary shall have determined that such distribution is reasonably practicable and (iii) the Depositary shall have received satisfactory documentation within the terms of Section 5.7. If the above conditions are not satisfied, the Depositary shall establish an ADS Record Date on the terms described in Section 4.9 and, to the extent permitted by law, distribute to the Holders, on the basis of the same determination as is made in The Netherlands in respect of the Shares for which no election is made, either (X) cash upon the terms described in Section 4.1 or (Y) additional ADSs representing such additional Shares upon the terms described in Section 4.2. If the above conditions are satisfied, the Depositary shall establish an ADS Record Date on the terms described in Section 4.9 and establish procedures to enable Holders to elect the receipt of the proposed distribution in cash or in additional ADSs. The Company shall assist the Depositary in establishing such procedures to the extent necessary. If a Holder elects to receive the proposed distribution (X) in cash, the distribution shall be made upon the terms described in Section 4.1, or (Y) in ADSs, the distribution shall be made upon the terms described in Section 4.2. Nothing herein shall obligate the Depositary to make available to Holders a method to receive the elective distribution in Shares (rather than ADSs). There can be no assurance that Holders generally, or any Holder in particular, will be given the opportunity to receive elective distributions on the same terms and conditions as the holders of Shares. Notwithstanding anything contained in this Section 4.3 to the contrary, in the event the Company fails to give the Depositary timely notice of the proposed distribution provided for above, the Depositary agrees to use commercially reasonable efforts to perform the actions contemplated in this Section 4.3, and the Company, the Holders and the Beneficial Owners acknowledge that the Depositary shall have no liability for the Depositarys failure to perform the actions contemplated in this Section 4.3 where such notice has not been so timely given, other than its failure to use commercially reasonable efforts, as provided herein.
Section 4.4 Distribution of Rights to Purchase Additional ADSs .
(a) Distribution to ADS Holders . Whenever the Company intends to distribute to the holders of the Deposited Securities rights to subscribe for additional Shares, the Company shall give notice thereof to the Depositary at least forty-five (45) days prior to the proposed distribution specifying, inter alia , the record date applicable to holders of Deposited Securities entitled to receive such distribution and whether or not it wishes such rights to be made available to Holders of ADSs. Upon the timely receipt of a notice indicating that the Company wishes such rights to be made available to Holders of ADSs, the Depositary shall consult with the Company to determine, and the Company shall assist the Depositary in its determination, whether it is lawful and reasonably practicable to make such rights available to the Holders. The Depositary shall make such rights available to Holders only if (i) the Company shall have timely requested that such rights be made available to Holders, (ii) the Depositary shall have received satisfactory documentation within the terms of Section 5.7, and (iii) the Depositary shall have determined that such distribution of rights is reasonably practicable. In the event any of the conditions set forth above are not satisfied or if the Company requests that the rights not be made available to Holders of ADSs, the Depositary shall proceed with the sale of the rights as contemplated in Section 4.4(b) below. In the event all conditions set forth above are satisfied, the Depositary shall establish an ADS Record Date (upon the terms described in Section 4.9) and establish procedures to (x) distribute rights to purchase additional ADSs (by means of warrants or otherwise), (y) to enable the Holders to exercise such rights (upon payment of the subscription
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price and of the applicable (a) fees and charges of, and expenses incurred by, the Depositary and (b) taxes), and (z) to deliver ADSs upon the valid exercise of such rights. The Company shall assist the Depositary to the extent necessary in establishing such procedures. Nothing herein shall obligate the Depositary to make available to the Holders a method to exercise rights to subscribe for Shares (rather than ADSs).
(b) Sale of Rights . If (i) the Company does not timely request the Depositary to make the rights available to Holders or requests that the rights not be made available to Holders, (ii) the Depositary fails to receive satisfactory documentation within the terms of Section 5.7 or determines it is not reasonably practicable to make the rights available to Holders, or (iii) any rights made available are not exercised and appear to be about to lapse, the Depositary shall determine whether it is lawful and reasonably practicable to sell such rights, in a riskless principal capacity, at such place and upon such terms (including public or private sale) as it may deem practicable. The Company shall assist the Depositary to the extent necessary to determine such legality and practicability. The Depositary shall, upon such sale, convert and distribute proceeds of such sale (net of applicable (a) fees and charges of, and expenses incurred by, the Depositary and (b) taxes) upon the terms set forth in Section 4.1.
(c) Lapse of Rights . If the Depositary is unable to make any rights available to Holders upon the terms described in Section 4.4(a) or to arrange for the sale of the rights upon the terms described in Section 4.4(b), the Depositary shall allow such rights to lapse.
The Depositary shall not be responsible for (i) any failure to determine that it may be lawful or practicable to make such rights available to Holders in general or any Holders in particular, (ii) any foreign exchange exposure or loss incurred in connection with such sale, or exercise, or (iii) the content of any materials forwarded to the Holders on behalf of the Company in connection with the rights distribution.
Notwithstanding anything to the contrary in this Section 4.4, if registration (under the Securities Act or any other applicable law) of the rights or the securities to which any rights relate may be required in order for the Company to offer such rights or such securities to Holders and to sell the securities represented by such rights, the Depositary will not distribute such rights to the Holders (i) unless and until a registration statement under the Securities Act (or other applicable law) covering such offering is in effect or (ii) unless the Company furnishes the Depositary opinion(s) of counsel for the Company in the United States and counsel to the Company in any other applicable country in which rights would be distributed, in each case satisfactory to the Depositary, to the effect that the offering and sale of such securities to Holders and Beneficial Owners are exempt from, or do not require registration under, the provisions of the Securities Act or any other applicable laws.
In the event that the Company, the Depositary or the Custodian shall be required to withhold and does withhold from any distribution of Deposited Property (including rights) an amount on account of taxes or other governmental charges, the amount distributed to the Holders of ADSs shall be reduced accordingly. In the event that the Depositary determines that any distribution of Deposited Property (including Shares and rights to subscribe therefor) is subject to any tax or other governmental charges which the Depositary is obligated to withhold, the Depositary may dispose of all or a portion of such Deposited Property (including Shares and rights to subscribe therefor) in such amounts and in such manner, including by public or private sale, as the Depositary deems necessary and practicable to pay any such taxes or charges.
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There can be no assurance that Holders generally, or any Holder in particular, will be given the opportunity to receive or exercise rights on the same terms and conditions as the holders of Shares or be able to exercise such rights. Nothing herein shall obligate the Company to file any registration statement in respect of any rights or Shares or other securities to be acquired upon the exercise of such rights.
Section 4.5 Distributions Other Than Cash, Shares or Rights to Purchase Shares .
(a) Whenever the Company intends to distribute to the holders of Deposited Securities property other than cash, Shares or rights to purchase additional Shares, the Company shall give timely notice thereof to the Depositary and shall indicate whether or not it wishes such distribution to be made to Holders of ADSs. Upon receipt of a notice indicating that the Company wishes such distribution be made to Holders of ADSs, the Depositary shall consult with the Company, and the Company shall assist the Depositary, to determine whether such distribution to Holders is lawful and reasonably practicable. The Depositary shall not make such distribution unless (i) the Company shall have requested the Depositary to make such distribution to Holders, (ii) the Depositary shall have received satisfactory documentation within the terms of Section 5.7, and (iii) the Depositary shall have determined that such distribution is reasonably practicable.
(b) Upon receipt of satisfactory documentation and the request of the Company to distribute property to Holders of ADSs and after making the requisite determinations set forth in (a) above, the Depositary shall distribute the property so received to the Holders of record, as of the ADS Record Date, in proportion to the number of ADSs held by them respectively and in such manner as the Depositary may deem practicable for accomplishing such distribution (i) upon receipt of payment or net of the applicable fees and charges of, and expenses incurred by, the Depositary, and (ii) net of any taxes withheld. The Depositary may dispose of all or a portion of the property so distributed and deposited, in such amounts and in such manner (including public or private sale) as the Depositary may deem practicable or necessary to satisfy any taxes (including applicable interest and penalties) or other governmental charges applicable to the distribution.
(c) If (i) the Company does not request the Depositary to make such distribution to Holders or requests not to make such distribution to Holders, (ii) the Depositary does not receive satisfactory documentation within the terms of Section 5.7, or (iii) the Depositary determines that all or a portion of such distribution is not reasonably practicable, the Depositary shall sell or cause such property to be sold in a public or private sale, at such place or places and upon such terms as it may deem practicable and shall (i) cause the proceeds of such sale, if any, to be converted into Dollars and (ii) distribute the proceeds of such conversion received by the Depositary (net of applicable (a) fees and charges of, and expenses incurred by, the Depositary and (b) taxes) to the Holders as of the ADS Record Date upon the terms of Section 4.1. If the Depositary is unable to sell such property, the Depositary may dispose of such property for the account of the Holders in any way it deems reasonably practicable under the circumstances.
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(d) Neither the Depositary nor the Company shall be responsible for (i) any failure to determine whether it is lawful or practicable to make the property described in this Section 4.5 available to Holders in general or any Holders in particular, nor (ii) any foreign exchange exposure or loss incurred in connection with the sale or disposal of such property.
Section 4.6 Distributions with Respect to Deposited Securities in Bearer Form . Subject to the terms of this Article IV, distributions in respect of Deposited Securities that are held by the Depositary in bearer form shall be made to the Depositary for the account of the respective Holders of ADS(s) with respect to which any such distribution is made upon due presentation by the Depositary or the Custodian to the Company of any relevant coupons, talons, or certificates. The Company shall promptly notify the Depositary of such distributions. The Depositary or the Custodian shall promptly present such coupons, talons or certificates, as the case may be, in connection with any such distribution.
Section 4.7 Redemption . If the Company intends to exercise any right of redemption in respect of any of the Deposited Securities, the Company shall give notice thereof to the Depositary at least sixty (60) days prior to the intended date of redemption which notice shall set forth the particulars of the proposed redemption. Upon timely receipt of (i) such notice and (ii) satisfactory documentation given by the Company to the Depositary within the terms of Section 5.7, and only if the Depositary shall have determined that such proposed redemption is practicable, the Depositary shall provide to each Holder a notice setting forth the intended exercise by the Company of the redemption rights and any other particulars set forth in the Companys notice to the Depositary. The Depositary shall instruct the Custodian to present to the Company the Deposited Securities in respect of which redemption rights are being exercised against payment of the applicable redemption price. Upon receipt of confirmation from the Custodian that the redemption has taken place and that funds representing the redemption price have been received, the Depositary shall convert, transfer, and distribute the proceeds (net of applicable (a) fees and charges of, and the expenses incurred by, the Depositary, and (b) taxes), retire ADSs and cancel ADRs, if applicable, upon delivery of such ADSs by Holders thereof and the terms set forth in Sections 4.1 and 6.2. If less than all outstanding Deposited Securities are redeemed, the ADSs to be retired will be selected by lot or on a pro rata basis, as may be determined by the Depositary. The redemption price per ADS shall be the dollar equivalent of the per share amount received by the Depositary (adjusted to reflect the ADS(s)-to-Share(s) ratio) upon the redemption of the Deposited Securities represented by ADSs (subject to the terms of Section 4.8 and the applicable fees and charges of, and expenses incurred by, the Depositary, and taxes) multiplied by the number of Deposited Securities represented by each ADS redeemed.
Notwithstanding anything contained in this Section 4.7 to the contrary, in the event the Company fails to give the Depositary timely notice of the proposed redemption provided for above, the Depositary agrees to use commercially reasonable efforts to perform the actions contemplated in this Section 4.7, and the Company, the Holders and the Beneficial Owners acknowledge that the Depositary shall have no liability for the Depositarys failure to perform the actions contemplated in this Section 4.7 where such notice has not been so timely given, other than its failure to use commercially reasonable efforts, as provided herein.
Section 4.8 Conversion of Foreign Currency . Whenever the Depositary or the Custodian shall receive Foreign Currency, by way of dividends or other distributions or the net
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proceeds from the sale of Deposited Property, which in the judgment of the Depositary can at such time be converted on a practicable basis, by sale or in any other manner that it may determine in accordance with applicable law, into Dollars transferable to the United States and distributable to the Holders entitled thereto, the Depositary shall convert or cause to be converted, by sale or in any other manner that it may determine, such Foreign Currency into Dollars, and shall distribute such Dollars (net of any applicable fees, any reasonable and customary expenses incurred in such conversion and any expenses incurred on behalf of the Holders in complying with currency exchange control or other governmental requirements) in accordance with the terms of the applicable sections of the Deposit Agreement. If the Depositary shall have distributed warrants or other instruments that entitle the holders thereof to such Dollars, the Depositary shall distribute such Dollars to the holders of such warrants and/or instruments upon surrender thereof for cancellation, in either case without liability for interest thereon. Such distribution may be made upon an averaged or other practicable basis without regard to any distinctions among Holders on account of any application of exchange restrictions or otherwise.
If such conversion or distribution generally or with regard to a particular Holder can be effected only with the approval or license of any government or agency thereof, the Depositary shall have authority to file such application for approval or license, if any, as it may deem desirable. In no event, however, shall the Depositary be obligated to make such a filing.
If at any time the Depositary shall determine that in its judgment the conversion of any Foreign Currency and the transfer and distribution of proceeds of such conversion received by the Depositary is not practicable or lawful, or if any approval or license of any governmental authority or agency thereof that is required for such conversion, transfer and distribution is denied or, in the opinion of the Depositary, not obtainable at a reasonable cost or within a reasonable period, the Depositary may, in its discretion, (i) make such conversion and distribution in Dollars to the Holders for whom such conversion, transfer and distribution is lawful and practicable, (ii) distribute the Foreign Currency (or an appropriate document evidencing the right to receive such Foreign Currency) to Holders for whom this is lawful and practicable, or (iii) hold (or cause the Custodian to hold) such Foreign Currency (without liability for interest thereon) for the respective accounts of the Holders entitled to receive the same.
Section 4.9 Fixing of ADS Record Date . Whenever the Depositary shall receive notice of the fixing of a record date by the Company for the determination of holders of Deposited Securities entitled to receive any distribution (whether in cash, Shares, rights, or other distribution), or whenever for any reason the Depositary causes a change in the number of Shares that are represented by each ADS, or whenever the Depositary shall receive notice of any meeting of, or solicitation of consents or proxies of, holders of Shares or other Deposited Securities, or whenever the Depositary shall find it necessary or convenient in connection with the giving of any notice, solicitation of any consent or any other matter, the Depositary shall fix a record date (the ADS Record Date ) for the determination of the Holders of ADS(s) who shall be entitled to receive such distribution, to give instructions for the exercise of voting rights at any such meeting, to give or withhold such consent, to receive such notice or solicitation or to otherwise take action, or to exercise the rights of Holders with respect to such changed number of Shares represented by each ADS. The Depositary shall make reasonable efforts to establish the ADS Record Date as closely as possible to the applicable record date for the Deposited
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Securities (if any) set by the Company in The Netherlands and shall not announce the establishment of the ADS Record Date prior to the relevant corporate action having been made public by the Company (if such corporate action affects the Deposited Securities). Subject to applicable law and the provisions of Section 4.1 through 4.8 and to the other terms and conditions of the Deposit Agreement, only the Holders of ADSs at the close of business in New York on such ADS Record Date shall be entitled to receive such distribution, to give such voting instructions, to receive such notice or solicitation, or otherwise take action.
Section 4.10 Voting of Deposited Securities . (a) ADS Voting Instructions . As soon as practicable after receipt of notice of (i) any meeting at which the holders of Deposited Securities are entitled to vote, or (ii) solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 hereof. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Companys expense and provided no U.S. legal prohibitions exist, distribute to Holders of record as of the ADS Record Date a notice which shall contain: (a) such information as is contained in such notice of meeting, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of this Deposit Agreement, the Articles of Association of the Company and the provisions of, or governing, the Deposited Securities (which provisions, if any, shall have been summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holders ADSs, and (c) a brief statement addressing the manner in which such instructions may be given (including an indication that instructions may be deemed to have been given in accordance with the last sentence of (b) below if no instructions are received by the Depositary prior to the deadline set for such purposes to the Depositary to give a discretionary proxy to a person designated by the Company). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities.
Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request ( i.e. , by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials).
Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of this Deposit Agreement, and the provisions of Articles of Association of the Company and the provisions of, or governing, the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holders ADSs in accordance with such voting instructions.
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Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders.
(b) Discretionary Proxy to Management . The Depositary agrees not to, and shall take reasonable steps to ensure that the Custodian and each of its nominees, if any, do not, vote the Deposited Securities represented by ADSs other than in accordance with the instructions of Holders as of the ADS Record Date or as provided below. The Depositary shall not exercise any voting discretion over the Deposited Securities. If (x) the Depositary does not receive instructions from a Holder as of the ADS Record Date on or before the date established by the Depositary for such purpose, or (y) the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holders ADSs, such Holder shall be deemed, and the Depositary shall deem such Holder, to have instructed the Depositary to give a discretionary proxy to a person designated by the Company to vote the Deposited Securities; provided, however, that no such discretionary proxy shall be given by the Depositary with respect to any matter to be voted upon as to which the Company informs the Depositary that (i) the Company does not wish such proxy to be given, (ii) substantial opposition exists, or (iii) the rights of holders of Deposited Securities may be adversely affected.
(c) Legal Prohibitions . Notwithstanding anything contained in this Deposit Agreement or any ADR to the contrary, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary, if requested by the Depositary, an opinion of U.S. counsel addressing any actions to be taken.
There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.
Section 4.11 Changes Affecting Deposited Securities . Upon any change in nominal or par value, split-up, cancellation, consolidation or any other reclassification of Deposited Securities, or upon any recapitalization, reorganization, merger, consolidation or sale of assets affecting the Company or to which it is a party, any property which shall be received by the Depositary or the Custodian in exchange for, or in conversion of, or replacement of, or otherwise in respect of, such Deposited Securities shall, to the extent permitted by law, be treated as new Deposited Property under the Deposit Agreement, and the ADSs shall, subject to the provisions of the Deposit Agreement, any ADR(s) evidencing such ADSs and applicable law, represent the right to receive such additional or replacement Deposited Property. In giving effect to such
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change, split-up, cancellation, consolidation or other reclassification of Deposited Securities, recapitalization, reorganization, merger, consolidation or sale of assets, the Depositary may, with the Companys approval, and shall, if the Company shall so request, subject to the terms of the Deposit Agreement and receipt of an opinion of counsel to the Company satisfactory to the Depositary that such actions are not in violation of any applicable laws or regulations, (i) issue and deliver additional ADSs as in the case of a stock dividend on the Shares, (ii) amend the Deposit Agreement and the applicable ADRs, (iii) amend the applicable Registration Statement(s) on Form F-6 as filed with the Commission in respect of the ADSs, (iv) call for the surrender of outstanding ADRs to be exchanged for new ADRs, and (v) take such other actions as are appropriate to reflect the transaction with respect to the ADSs. The Company agrees to, jointly with the Depositary, amend the Registration Statement on Form F-6 as filed with the Commission to permit the issuance of such new form of ADRs. Notwithstanding the foregoing, in the event that any Deposited Property so received may not be lawfully distributed to some or all Holders, the Depositary may, with the Companys approval, and shall, if the Company requests, subject to receipt of an opinion of Companys counsel satisfactory to the Depositary that such action is not in violation of any applicable laws or regulations, sell such Deposited Property at public or private sale, at such place or places and upon such terms as it may deem proper and may allocate the net proceeds of such sales (net of (a) fees and charges of, and expenses incurred by, the Depositary and (b) taxes) for the account of the Holders otherwise entitled to such Deposited Property upon an averaged or other practicable basis without regard to any distinctions among such Holders and distribute the net proceeds so allocated to the extent practicable as in the case of a distribution received in cash pursuant to Section 4.1. The Depositary shall not be responsible for (i) any failure to determine that it may be lawful or practicable to make such Deposited Property available to Holders in general or to any Holder in particular, (ii) any foreign exchange exposure or loss incurred in connection with such sale, or (iii) any liability to the purchaser of such Deposited Property.
Section 4.12 Available Information . The Company is subject to the periodic reporting requirements of the Exchange Act and, accordingly, is required to file or submit certain reports with the Commission. These reports can be retrieved from the Commissions website ( www.sec.gov ) and can be inspected and copied at the public reference facilities maintained by the Commission located (as of the date of the Deposit Agreement) at 100 F Street, N.E., Washington D.C. 20549.
Section 4.13 Reports . The Depositary shall make available for inspection by Holders at its Principal Office any reports and communications, including any proxy soliciting materials, received from the Company which are both (a) received by the Depositary, the Custodian, or the nominee of either of them as the holder of the Deposited Property and (b) made generally available to the holders of such Deposited Property by the Company. The Depositary shall also provide or make available to Holders copies of such reports when furnished by the Company pursuant to Section 5.6.
Section 4.14 List of Holders . Promptly upon written request by the Company, the Depositary shall furnish to it a list, as of a recent date, of the names, addresses and holdings of ADSs of all Holders.
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Section 4.15 Taxation . The Depositary will, and will instruct the Custodian to, forward to the Company or its agents such information from its records as the Company may reasonably request to enable the Company or its agents to file the necessary tax reports with governmental authorities or agencies. The Depositary, the Custodian or the Company and its agents may file such reports as are necessary to reduce or eliminate applicable taxes on dividends and on other distributions in respect of Deposited Property under applicable tax treaties or laws for the Holders and Beneficial Owners. In accordance with instructions from the Company and to the extent practicable, the Depositary or the Custodian will take reasonable administrative actions to obtain tax refunds, reduced withholding of tax at source on dividends and other benefits under applicable tax treaties or laws with respect to dividends and other distributions on the Deposited Property. As a condition to receiving such benefits, Holders and Beneficial Owners of ADSs may be required from time to time, and in a timely manner, to file such proof of taxpayer status, residence and beneficial ownership (as applicable), to execute such certificates and to make such representations and warranties, or to provide any other information or documents, as the Depositary or the Custodian may deem necessary or proper to fulfill the Depositarys or the Custodians obligations under applicable law. The Depositary and the Company shall have no obligation or liability to any person if any Holder or Beneficial Owner fails to provide such information or if such information does not reach the relevant tax authorities in time for any Holder or Beneficial Owner to obtain the benefits of any tax treatment. The Holders and Beneficial Owners shall indemnify the Depositary, the Company, the Custodian and any of their respective directors, employees, agents and Affiliates against, and hold each of them harmless from, any claims by any governmental authority with respect to taxes, additions to tax, penalties or interest arising out of any refund of taxes, reduced rate of withholding at source or other tax benefit obtained.
If the Company (or any of its agents) withholds from any distribution any amount on account of taxes or governmental charges, or pays any other tax in respect of such distribution ( i.e. , stamp duty tax, capital gains or other similar tax), the Company shall (and shall cause such agent to) remit promptly to the Depositary information about such taxes or governmental charges withheld or paid, and, if so requested, the tax receipt (or other proof of payment to the applicable governmental authority) therefor, in each case, in a form satisfactory to the Depositary. The Depositary shall, to the extent required by U.S. law, report to Holders any taxes withheld by it or the Custodian, and, if such information is provided to it by the Company, any taxes withheld by the Company. The Depositary and the Custodian shall not be required to provide the Holders with any evidence of the remittance by the Company (or its agents) of any taxes withheld, or of the payment of taxes by the Company, except to the extent the evidence is provided by the Company to the Depositary or the Custodian, as applicable. Neither the Depositary nor the Custodian shall be liable for the failure by any Holder or Beneficial Owner to obtain the benefits of credits on the basis of non-U.S. tax paid against such Holders or Beneficial Owners income tax liability.
The Depositary is under no obligation to provide the Holders and Beneficial Owners with any information about the tax status of the Company. The Depositary shall not incur any liability for any tax consequences that may be incurred by Holders and Beneficial Owners on account of their ownership of the ADSs, including without limitation, tax consequences resulting from the Company (or any of its subsidiaries) being treated as a Passive Foreign Investment Company (in each case as defined in the U.S. Internal Revenue Code and the regulations issued thereunder) or otherwise.
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ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
Section 5.1 Maintenance of Office and Transfer Books by the Registrar . Until termination of the Deposit Agreement in accordance with its terms, the Registrar shall maintain in the Borough of Manhattan, the City of New York, an office and facilities for the issuance and delivery of ADSs, the acceptance for surrender of ADS(s) for the purpose of withdrawal of Deposited Securities, the registration of issuances, cancellations, transfers, combinations and split-ups of ADS(s) and, if applicable, to countersign ADRs evidencing the ADSs so issued, transferred, combined or split-up, in each case in accordance with the provisions of the Deposit Agreement.
The Registrar shall keep books for the registration of ADSs which at all reasonable times shall be open for inspection by the Company and by the Holders of such ADSs, provided that such inspection shall not be, to the Registrars knowledge, for the purpose of communicating with Holders of such ADSs in the interest of a business or object other than the business of the Company or other than a matter related to the Deposit Agreement or the ADSs.
The Registrar may close the transfer books with respect to the ADSs, at any time or from time to time, when deemed necessary or advisable by it in good faith in connection with the performance of its duties hereunder, or at the reasonable written request of the Company subject, in all cases, to Section 7.8.
If any ADSs are listed on one or more stock exchanges or automated quotation systems in the United States, the Depositary shall act as Registrar or appoint a Registrar or one or more co-registrars for registration of issuances, cancellations, transfers, combinations and split-ups of ADSs and, if applicable, to countersign ADRs evidencing the ADSs so issued, transferred, combined or split-up, in accordance with any requirements of such exchanges or systems. Such Registrar or co-registrars may be removed and a substitute or substitutes appointed by the Depositary.
Section 5.2 Exoneration . Notwithstanding anything contained in the Deposit Agreement or any ADR, neither the Depositary nor the Company shall be obligated to do or perform any act which is inconsistent with the provisions of the Deposit Agreement or incur any liability (i) if the Depositary or the Company shall be prevented or forbidden from, or delayed in, doing or performing any act or thing required by the terms of the Deposit Agreement, by reason of any provision of any present or future law or regulation of the United States, The Netherlands or any other country, or of any other governmental authority or regulatory authority or stock exchange, or on account of the possible criminal or civil penalties or restraint, or by reason of any provision, present or future, of the Articles of Association of the Company or any provision of or governing any Deposited Securities, or by reason of any act of God or war or other circumstances beyond its control (including, without limitation, nationalization, expropriation, currency restrictions, work stoppage, strikes, civil unrest, acts of terrorism, revolutions,
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rebellions, explosions and computer failure), (ii) by reason of any exercise of, or failure to exercise, any discretion provided for in the Deposit Agreement or in the Articles of Association of the Company or provisions of or governing Deposited Securities, (iii) for any action or inaction in reliance upon the advice of or information from legal counsel, accountants, any person presenting Shares for deposit, any Holder, any Beneficial Owner or authorized representative thereof, or any other person believed by it in good faith to be competent to give such advice or information, (iv) for the inability by a Holder or Beneficial Owner to benefit from any distribution, offering, right or other benefit which is made available to holders of Deposited Securities but is not, under the terms of the Deposit Agreement, made available to Holders of ADSs, or (v) for any consequential or punitive damages (including lost profits) for any breach of the terms of the Deposit Agreement.
The Depositary, its controlling persons, its agents, any Custodian and the Company, its controlling persons and its agents may rely and shall be protected in acting upon any written notice, request or other document believed by it to be genuine and to have been signed or presented by the proper party or parties.
No disclaimer of liability under the Securities Act is intended by any provision of the Deposit Agreement.
Section 5.3 Standard of Care . The Company and the Depositary assume no obligation and shall not be subject to any liability under the Deposit Agreement or any ADRs to any Holder(s) or Beneficial Owner(s), except that the Company and the Depositary agree to perform their respective obligations specifically set forth in the Deposit Agreement or the applicable ADRs without negligence or bad faith.
Without limitation of the foregoing, neither the Depositary, nor the Company, nor any of their respective controlling persons, or agents, shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of any Deposited Property or in respect of the ADSs, which in its opinion may involve it in expense or liability, unless indemnity satisfactory to it against all expense (including fees and disbursements of counsel) and liability be furnished as often as may be required (and no Custodian shall be under any obligation whatsoever with respect to such proceedings, the responsibility of the Custodian being solely to the Depositary).
The Depositary and its agents shall not be liable for any failure to carry out any instructions to vote any of the Deposited Securities, or for the manner in which any vote is cast or the effect of any vote, provided that any such action or omission is in good faith and in accordance with the terms of the Deposit Agreement. The Depositary shall not incur any liability for any failure to determine that any distribution or action may be lawful or reasonably practicable, for the content of any information submitted to it by the Company for distribution to the Holders or for any inaccuracy of any translation thereof, for any investment risk associated with acquiring an interest in the Deposited Property, for the validity or worth of the Deposited Property or for any tax consequences that may result from the ownership of ADSs, Shares or other Deposited Property, for the credit-worthiness of any third party, for allowing any rights to lapse upon the terms of the Deposit Agreement, for the failure or timeliness of any notice from the Company, or for any action of or failure to act by, or any information provided or not provided by, DTC or any DTC Participant.
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The Depositary shall not be liable for any acts or omissions made by a successor depositary whether in connection with a previous act or omission of the Depositary or in connection with any matter arising wholly after the removal or resignation of the Depositary, provided that in connection with the issue out of which such potential liability arises the Depositary performed its obligations without negligence or bad faith while it acted as Depositary.
The Depositary shall not be liable for any acts or omissions made by a predecessor depositary whether in connection with an act or omission of the Depositary or in connection with any matter arising wholly prior to the appointment of the Depositary or after the removal or resignation of the Depositary, provided that in connection with the issue out of which such potential liability arises the Depositary performed its obligations without negligence or bad faith while it acted as Depositary.
Section 5.4 Resignation and Removal of the Depositary; Appointment of Successor Depositary . The Depositary may at any time resign as Depositary hereunder by written notice of resignation delivered to the Company, such resignation to be effective on the earlier of (i) the 90th day after delivery thereof to the Company (whereupon the Depositary shall be entitled to take the actions contemplated in Section 6.2), or (ii) the appointment by the Company of a successor depositary and its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by written notice of such removal, which removal shall be effective on the later of (i) the 90th day after delivery thereof to the Depositary (whereupon the Depositary shall be entitled to take the actions contemplated in Section 6.2), or (ii) upon the appointment by the Company of a successor depositary and its acceptance of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be removed, the Company shall use its best efforts to appoint a successor depositary, which shall be a bank or trust company having an office in the Borough of Manhattan, the City of New York. Every successor depositary shall be required by the Company to execute and deliver to its predecessor and to the Company an instrument in writing accepting its appointment hereunder, and thereupon such successor depositary, without any further act or deed (except as required by applicable law), shall become fully vested with all the rights, powers, duties and obligations of its predecessor (other than as contemplated in Sections 5.8 and 5.9). The predecessor depositary, upon payment of all sums due it and on the written request of the Company, shall, (i) execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder (other than as contemplated in Sections 5.8 and 5.9), (ii) duly assign, transfer and deliver all of the Depositarys right, title and interest to the Deposited Property to such successor, and (iii) deliver to such successor a list of the Holders of all outstanding ADSs and such other information relating to ADSs and Holders thereof as the successor may reasonably request. Any such successor depositary shall promptly provide notice of its appointment to such Holders.
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Any entity into or with which the Depositary may be merged or consolidated shall be the successor of the Depositary without the execution or filing of any document or any further act.
Section 5.5 The Custodian . The Depositary has initially appointed Citibank International plc as Custodian for the purpose of the Deposit Agreement. The Custodian or its successors in acting hereunder shall be subject at all times and in all respects to the direction of the Depositary for the Deposited Property for which the Custodian acts as custodian and shall be responsible solely to it. If any Custodian resigns or is discharged from its duties hereunder with respect to any Deposited Property and no other Custodian has previously been appointed hereunder, the Depositary shall promptly appoint a substitute custodian. The Depositary shall require such resigning or discharged Custodian to Deliver, or cause the Delivery of, the Deposited Property held by it, together with all such records maintained by it as Custodian with respect to such Deposited Property as the Depositary may request, to the Custodian designated by the Depositary. Whenever the Depositary determines, in its discretion, that it is appropriate to do so, it may appoint an additional custodian with respect to any Deposited Property, or discharge the Custodian with respect to any Deposited Property and appoint a substitute custodian, which shall thereafter be Custodian hereunder with respect to the Deposited Property. Immediately upon any such change, the Depositary shall give notice thereof in writing to all Holders of ADSs, each other Custodian and the Company.
Citibank, N.A. may at any time act as Custodian of the Deposited Property pursuant to the Deposit Agreement, in which case any reference to Custodian shall mean Citibank, N.A. solely in its capacity as Custodian pursuant to the Deposit Agreement. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary shall not be obligated to give notice to the Company, any Holders of ADSs or any other Custodian of its acting as Custodian pursuant to the Deposit Agreement.
Upon the appointment of any successor depositary, any Custodian then acting hereunder shall, unless otherwise instructed by the Depositary, continue to be the Custodian of the Deposited Property without any further act or writing, and shall be subject to the direction of the successor depositary. The successor depositary so appointed shall, nevertheless, on the written request of any Custodian, execute and deliver to such Custodian all such instruments as may be proper to give to such Custodian full and complete power and authority to act on the direction of such successor depositary.
Section 5.6 Notices and Reports . On or before the first date on which the Company gives notice, by publication or otherwise, of any meeting of holders of Shares or other Deposited Securities, or of any adjourned meeting of such holders, or of the taking of any action by such holders other than at a meeting, or of the taking of any action in respect of any cash or other distributions or the offering of any rights in respect of Deposited Securities, the Company shall transmit to the Depositary and the Custodian a copy of the notice thereof in the English language but otherwise in the form given or to be given to holders of Shares or other Deposited Securities. The Company shall also furnish to the Custodian and the Depositary a summary, in English, of any applicable provisions or proposed provisions of the Articles of Association of the Company that may be relevant or pertain to such notice of meeting or be the subject of a vote thereat.
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The Company will also transmit to the Depositary (a) an English language version of the other notices, reports and communications which are made generally available by the Company to holders of its Shares or other Deposited Securities and (b) copies of the Companys annual reports prepared in accordance with the applicable requirements of the Commission. The Depositary shall arrange, at the request of the Company and at the Companys expense, to provide copies thereof to all Holders or make such notices, reports and other communications available to all Holders on a basis similar to that for holders of Shares or other Deposited Securities or on such other basis as the Company may advise the Depositary or as may be required by any applicable law, regulation or stock exchange requirement. The Company has delivered to the Depositary and the Custodian a copy of the Companys Articles of Association along with the provisions of or governing the Shares and any other Deposited Securities issued by the Company in connection with such Shares, and promptly upon any amendment thereto or change therein, the Company shall deliver to the Depositary and the Custodian a copy of such amendment thereto or change therein. The Depositary may rely upon such copy for all purposes of the Deposit Agreement.
The Depositary will, at the expense of the Company, make available a copy of any such notices, reports or communications issued by the Company and delivered to the Depositary for inspection by the Holders of the ADSs at the Depositarys Principal Office, at the office of the Custodian and at any other designated transfer office.
Section 5.7 Issuance of Additional Shares, ADSs, etc. The Company agrees that in the event it or any of its Affiliates proposes (i) an issuance, sale or distribution of additional Shares, (ii) an offering of rights to subscribe for Shares or other Deposited Securities, (iii) an issuance or assumption of securities convertible into or exchangeable for Shares, (iv) an issuance of rights to subscribe for securities convertible into or exchangeable for Shares, (v) an elective dividend of cash or Shares, (vi) a redemption of Deposited Securities, (vii) a meeting of holders of Deposited Securities, or solicitation of consents or proxies, relating to any reclassification of securities, merger or consolidation or transfer of assets, (viii) any assumption, reclassification, recapitalization, reorganization, merger, consolidation or sale of assets which affects the Deposited Securities, or (ix) a distribution of securities other than Shares, it will obtain U.S. legal advice and take all steps necessary to ensure that the proposed transaction does not violate the registration provisions of the Securities Act, or any other applicable laws (including, without limitation, the Investment Company Act of 1940, as amended, the Exchange Act and the securities laws of the states of the U.S.). In support of the foregoing, the Company will furnish to the Depositary (a) a written opinion of U.S. counsel (reasonably satisfactory to the Depositary) stating whether such transaction (1) requires a registration statement under the Securities Act to be in effect or (2) is exempt from the registration requirements of the Securities Act and (b) an opinion of Dutch counsel stating that (1) making the transaction available to Holders and Beneficial Owners does not violate the laws or regulations of The Netherlands and (2) all requisite regulatory consents and approvals have been obtained in The Netherlands. If the filing of a registration statement is required, the Depositary shall not have any obligation to proceed with the transaction unless it shall have received evidence reasonably satisfactory to it that such registration statement has been declared effective. If, being advised by counsel, the Company determines that a transaction is required to be registered under the Securities Act, the Company will either (i) register such transaction to the extent necessary, (ii) alter the terms of the transaction to avoid the registration requirements of the Securities Act or (iii) direct the
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Depositary to take specific measures, in each case as contemplated in the Deposit Agreement, to prevent such transaction from violating the registration requirements of the Securities Act. The Company agrees with the Depositary that neither the Company nor any of its Affiliates will at any time (i) deposit any Shares or other Deposited Securities, either upon original issuance or upon a sale of Shares or other Deposited Securities previously issued and reacquired by the Company or by any such Affiliate, or (ii) issue additional Shares, rights to subscribe for such Shares, securities convertible into or exchangeable for Shares or rights to subscribe for such securities or distribute securities other than Shares, unless such transaction and the securities issuable in such transaction do not violate the registration provisions of the Securities Act, or any other applicable laws (including, without limitation, the Investment Company Act of 1940, as amended, the Exchange Act and the securities laws of the states of the U.S.).
Notwithstanding anything else contained in the Deposit Agreement, nothing in the Deposit Agreement shall be deemed to obligate the Company to file any registration statement in respect of any proposed transaction.
Section 5.8 Indemnification . The Depositary agrees to indemnify the Company and its directors, officers, employees, agents and Affiliates against, and hold each of them harmless from, any direct loss, liability, tax, charge or expense of any kind whatsoever (including, but not limited to, the reasonable fees and expenses of counsel) which may arise out of acts performed or omitted by the Depositary under the terms hereof due to the negligence or bad faith of the Depositary.
The Company agrees to indemnify the Depositary, the Custodian and any of their respective directors, officers, employees, agents and Affiliates against, and hold each of them harmless from, any direct loss, liability, tax, (other than tax levied on such person by any taxing authority on revenues generated as Depositary or Custodian) charge or expense of any kind whatsoever (including, but not limited to, the reasonable fees and expenses of counsel) that may arise (a) out of, or in connection with, any offer, issuance, sale, resale, transfer, deposit or withdrawal of ADRs, ADSs, the Shares, or other Deposited Securities, as the case may be, (b) out of, or as a result of, any offering documents in respect thereof or (c) out of acts performed or omitted, including, but not limited to, any delivery by the Depositary on behalf of the Company of information regarding the Company in connection with the Deposit Agreement, the ADRs, the ADSs, the Shares, or any Deposited Property, in any such case (i) by the Depositary, the Custodian or any of their respective directors, officers, employees, agents and Affiliates, except to the extent such loss, liability, tax, charge or expense is due to the negligence or bad faith of any of them, or (ii) by the Company or any of its directors, officers, employees, agents and Affiliates.
The obligations set forth in this Section shall survive the termination of the Deposit Agreement and the succession or substitution of any party hereto.
Any person seeking indemnification hereunder (an indemnified person) shall notify the person from whom it is seeking indemnification (the indemnifying person) of the commencement of any indemnifiable action or claim promptly after such indemnified person becomes aware of such commencement (provided that the failure to make such notification shall not affect such indemnified persons rights to seek indemnification except to the extent the
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indemnifying person is materially prejudiced by such failure) and shall consult in good faith with the indemnifying person as to the conduct of the defense of such action or claim that may give rise to an indemnity hereunder, which defense shall be reasonable in the circumstances. No indemnified person shall compromise or settle any action or claim that may give rise to an indemnity hereunder without the consent of the indemnifying person, which consent shall not be unreasonably withheld.
Section 5.9 ADS Fees and Charges . The Company, the Holders, the Beneficial Owners, and persons depositing Shares for issuance of ADSs or surrendering ADSs for cancellation and withdrawal of Deposited Securities shall be required to pay the ADS fees and charges identified as payable by them respectively in the ADS fee schedule attached hereto as Exhibit B. All ADS fees and charges so payable may be deducted from distributions or must be remitted to the Depositary, or its designee, and may, at any time and from time to time, be changed by agreement between the Depositary and the Company, but, in the case of ADS fees and charges payable by Holders and Beneficial Owners, only in the manner contemplated in Section 6.1. The Depositary shall provide, without charge, a copy of its latest ADS fee schedule to anyone upon request.
ADS fees and charges payable upon (i) deposit of Shares against issuance of ADSs and (ii) surrender of ADSs for cancellation and withdrawal of Deposited Securities will be payable by the person to whom the ADSs so issued are delivered by the Depositary (in the case of ADS issuances) and by the person who delivers the ADSs for cancellation to the Depositary (in the case of ADS cancellations). In the case of ADSs issued by the Depositary into DTC or presented to the Depositary via DTC, the ADS issuance and cancellation fees and charges will be payable by the DTC Participant(s) receiving the ADSs from the Depositary or the DTC Participant(s) surrendering the ADSs to the Depositary for cancellation, as the case may be, on behalf of the Beneficial Owner(s) and will be charged by the DTC Participant(s) to the account(s) of the applicable Beneficial Owner(s) in accordance with the procedures and practices of the DTC participant(s) as in effect at the time. ADS fees and charges in respect of distributions and the ADS service fee are payable by Holders as of the applicable ADS Record Date established by the Depositary. In the case of distributions of cash, the amount of the applicable ADS fees and charges is deducted from the funds being distributed. In the case of (i) distributions other than cash and (ii) the ADS service fee, the applicable Holders as of the ADS Record Date established by the Depositary will be invoiced for the amount of the ADS fees and charges. For ADSs held through DTC, the ADS fees and charges for distributions other than cash and the ADS service fee are charged to the DTC Participants in accordance with the procedures and practices prescribed by DTC from time to time and the DTC Participants in turn charge the amount of such ADS fees and charges to the Beneficial Owners for whom they hold ADSs.
The Depositary may reimburse the Company for certain expenses incurred by the Company in respect of the ADR program established pursuant to the Deposit Agreement, by making available a portion of the ADS fees charged in respect of the ADR program or otherwise, upon such terms and conditions as the Company and the Depositary agree from time to time. The Company shall pay to the Depositary such fees and charges, and reimburse the Depositary for such out-of-pocket expenses, as the Depositary and the Company may agree from time to time. Responsibility for payment of such fees, charges and reimbursements may from time to time be changed by agreement between the Company and the Depositary. Unless otherwise
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agreed, the Depositary shall present its statement for such fees, charges and reimbursements to the Company once every three months. The charges and expenses of the Custodian are for the sole account of the Depositary.
The obligation of Holders and Beneficial Owners to pay ADS fees and charges shall survive the termination of the Deposit Agreement. As to any Depositary, upon the resignation or removal of such Depositary as described in Section 5.4, the right to collect ADS fees, charges and expenses shall extend for those ADS fees and charges incurred prior to the effectiveness of such resignation or removal.
Section 5.10 Pre-Release Transactions . Subject to the further terms and provisions of this Section 5.10, the Depositary, its Affiliates and their agents, on their own behalf, may own and deal in any class of securities of the Company and its Affiliates and in ADSs. In its capacity as Depositary, the Depositary shall not lend Shares or ADSs; provided, however, that the Depositary may (i) issue ADSs prior to the receipt of Shares pursuant to Section 2.3 and (ii) deliver Shares prior to the receipt of ADSs for withdrawal of Deposited Securities pursuant to Section 2.7, including ADSs which were issued under (i) above but for which Shares may not have been received (each such transaction a Pre-Release Transaction ). The Depositary may receive ADSs in lieu of Shares under (i) above and receive Shares in lieu of ADSs under (ii) above. Each such Pre-Release Transaction will be (a) subject to a written agreement whereby the person or entity (the Applicant ) to whom ADSs or Shares are to be delivered (w) represents that at the time of the Pre-Release Transaction the Applicant or its customer owns the Shares or ADSs that are to be delivered by the Applicant under such Pre-Release Transaction, (x) agrees to indicate the Depositary as owner of such Shares or ADSs in its records and to hold such Shares or ADSs in trust for the Depositary until such Shares or ADSs are delivered to the Depositary or the Custodian, (y) unconditionally guarantees to deliver to the Depositary or the Custodian, as applicable, such Shares or ADSs, and (z) agrees to any additional restrictions or requirements that the Depositary deems appropriate, (b) at all times fully collateralized with cash, U.S. government securities or such other collateral as the Depositary deems appropriate, (c) terminable by the Depositary on not more than five (5) business days notice and (d) subject to such further indemnities and credit regulations as the Depositary deems appropriate. The Depositary will normally limit the number of (x) ADSs involved in such Pre-Release Transactions at any one time to thirty percent (30%) of the ADSs outstanding (without giving effect to ADSs outstanding under (i) above) and (y) the number of Shares involved in such Pre-Release Transactions to thirty percent (30%) of the number of Shares deposited hereunder, respectively, provided, however, that the Depositary reserves the right to change or disregard such limit from time to time as it deems appropriate.
The Depositary may also set limits with respect to the number of ADSs and Shares involved in Pre-Release Transactions with any one person on a case-by-case basis as it deems appropriate. The Depositary may retain for its own account any compensation received by it in conjunction with the foregoing. Collateral provided pursuant to (b) above, but not the earnings thereon, shall be held for the benefit of the Holders (other than the Applicant).
Section 5.11 Restricted Securities Owners . The Company agrees to advise in writing each of the persons or entities who, to the knowledge of the Company, holds Restricted Securities that such Restricted Securities are ineligible for deposit hereunder (except under the
39
circumstances contemplated in Section 2.14) and, to the extent practicable, shall require each of such persons to represent in writing that such person will not deposit Restricted Securities hereunder (except under the circumstances contemplated in Section 2.14).
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.1 Amendment/Supplement . Subject to the terms and conditions of this Section 6.1 and applicable law, the ADRs outstanding at any time, the provisions of the Deposit Agreement and the form of ADR attached hereto and to be issued under the terms hereof may at any time and from time to time be amended or supplemented by written agreement between the Company and the Depositary in any respect which they may deem necessary or desirable without the prior written consent of the Holders or Beneficial Owners. Any amendment or supplement which shall impose or increase any fees or charges (other than charges in connection with foreign exchange control regulations, and taxes and other governmental charges, delivery and other such expenses), or which shall otherwise materially prejudice any substantial existing right of Holders or Beneficial Owners, shall not, however, become effective as to outstanding ADSs until the expiration of thirty (30) days after notice of such amendment or supplement shall have been given to the Holders of outstanding ADSs. Notice of any amendment to the Deposit Agreement or any ADR shall not need to describe in detail the specific amendments effectuated thereby, and failure to describe the specific amendments in any such notice shall not render such notice invalid, provided , however , that, in each such case, the notice given to the Holders identifies a means for Holders and Beneficial Owners to retrieve or receive the text of such amendment ( i.e. , upon retrieval from the Commissions, the Depositarys or the Companys website or upon request from the Depositary). The parties hereto agree that any amendments or supplements which (i) are reasonably necessary (as agreed by the Company and the Depositary) in order for (a) the ADSs to be registered on Form F-6 under the Securities Act or (b) the ADSs to be settled solely in electronic book-entry form and (ii) do not in either such case impose or increase any fees or charges to be borne by Holders, shall be deemed not to materially prejudice any substantial rights of Holders or Beneficial Owners. Every Holder and Beneficial Owner at the time any amendment or supplement so becomes effective shall be deemed, by continuing to hold such ADSs, to consent and agree to such amendment or supplement and to be bound by the Deposit Agreement and the ADR, if applicable, as amended or supplemented thereby. In no event shall any amendment or supplement impair the right of the Holder to surrender such ADS and receive therefor the Deposited Securities represented thereby, except in order to comply with mandatory provisions of applicable law. Notwithstanding the foregoing, if any governmental body should adopt new laws, rules or regulations which would require an amendment of, or supplement to, the Deposit Agreement to ensure compliance therewith, the Company and the Depositary may amend or supplement the Deposit Agreement and any ADRs at any time in accordance with such changed laws, rules or regulations. Such amendment or supplement to the Deposit Agreement and any ADRs in such circumstances may become effective before a notice of such amendment or supplement is given to Holders or within any other period of time as required for compliance with such laws, rules or regulations.
Section 6.2 Termination . The Depositary shall, at any time at the written direction of the Company, terminate the Deposit Agreement by distributing notice of such termination to the
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Holders of all ADSs then outstanding at least thirty (30) days prior to the date fixed in such notice for such termination. If ninety (90) days shall have expired after (i) the Depositary shall have delivered to the Company a written notice of its election to resign, or (ii) the Company shall have delivered to the Depositary a written notice of the removal of the Depositary, and, in either case, a successor depositary shall not have been appointed and accepted its appointment as provided in Section 5.4 of the Deposit Agreement, the Depositary may terminate the Deposit Agreement by distributing notice of such termination to the Holders of all ADSs then outstanding at least thirty (30) days prior to the date fixed in such notice for such termination. The date so fixed for termination of the Deposit Agreement in any termination notice so distributed by the Depositary to the Holders of ADSs is referred to as the Termination Date . Until the Termination Date, the Depositary shall continue to perform all of its obligations under the Deposit Agreement, and the Holders and Beneficial Owners will be entitled to all of their rights under the Deposit Agreement.
If any ADSs shall remain outstanding after the Termination Date, the Registrar and the Depositary shall not, after the Termination Date, have any obligation to perform any further acts under the Deposit Agreement, except that the Depositary shall, subject, in each case, to the terms and conditions of the Deposit Agreement, continue to (i) collect dividends and other distributions pertaining to Deposited Securities, (ii) sell Deposited Property received in respect of Deposited Securities, (iii) deliver Deposited Securities, together with any dividends or other distributions received with respect thereto and the net proceeds of the sale of any other Deposited Property, in exchange for ADSs surrendered to the Depositary (after deducting, or charging, as the case may be, in each case, the fees and charges of, and expenses incurred by, the Depositary, and all applicable taxes or governmental charges for the account of the Holders and Beneficial Owners, in each case upon the terms set forth in Section 5.9 of the Deposit Agreement), and (iv) take such actions as may be required under applicable law in connection with its role as Depositary under the Deposit Agreement.
At any time after the Termination Date, the Depositary may sell the Deposited Property then held under the Deposit Agreement and shall after such sale hold un-invested the net proceeds of such sale, together with any other cash then held by it under the Deposit Agreement, in an un-segregated account and without liability for interest, for the pro rata benefit of the Holders whose ADSs have not theretofore been surrendered. After making such sale, the Depositary shall be discharged from all obligations under the Deposit Agreement except (i) to account for such net proceeds and other cash (after deducting, or charging, as the case may be, in each case, the fees and charges of, and expenses incurred by, the Depositary, and all applicable taxes or governmental charges for the account of the Holders and Beneficial Owners, in each case upon the terms set forth in Section 5.9 of the Deposit Agreement), and (ii) as may be required at law in connection with the termination of the Deposit Agreement. After the Termination Date, the Company shall be discharged from all obligations under the Deposit Agreement, except for its obligations to the Depositary under Sections 5.8, 5.9 and 7.6 of the Deposit Agreement. The obligations under the terms of the Deposit Agreement of Holders and Beneficial Owners of ADSs outstanding as of the Termination Date shall survive the Termination Date and shall be discharged only when the applicable ADSs are presented by their Holders to the Depositary for cancellation under the terms of the Deposit Agreement.
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ARTICLE VII
MISCELLANEOUS
Section 7.1 Counterparts . The Deposit Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of such counterparts together shall constitute one and the same agreement. Copies of the Deposit Agreement shall be maintained with the Depositary and shall be open to inspection by any Holder during business hours.
Section 7.2 No Third-Party Beneficiaries . The Deposit Agreement is for the exclusive benefit of the parties hereto (and their successors) and shall not be deemed to give any legal or equitable right, remedy or claim whatsoever to any other person, except to the extent specifically set forth in the Deposit Agreement. Nothing in the Deposit Agreement shall be deemed to give rise to a partnership or joint venture among the parties nor establish a fiduciary or similar relationship among the parties. The parties hereto acknowledge and agree that (i) the Depositary and its Affiliates may at any time have multiple banking relationships with the Company and its Affiliates, (ii) the Depositary and its Affiliates may be engaged at any time in transactions in which parties adverse to the Company or the Holders or Beneficial Owners may have interests and (iii) nothing contained in the Deposit Agreement shall (a) preclude the Depositary or any of its Affiliates from engaging in such transactions or establishing or maintaining such relationships, and (b) obligate the Depositary or any of its Affiliates to disclose such transactions or relationships or to account for any profit made or payment received in such transactions or relationships.
Section 7.3 Severability . In case any one or more of the provisions contained in the Deposit Agreement or in the ADRs should be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein or therein shall in no way be affected, prejudiced or disturbed thereby.
Section 7.4 Holders and Beneficial Owners as Parties; Binding Effect . The Holders and Beneficial Owners from time to time of ADSs issued hereunder shall be parties to the Deposit Agreement and shall be bound by all of the terms and conditions hereof and of any ADR evidencing their ADSs by acceptance thereof or any beneficial interest therein.
Section 7.5 Notices . Any and all notices to be given to the Company shall be deemed to have been duly given if personally delivered or sent by mail, air courier or cable, telex or facsimile transmission, confirmed by letter personally delivered or sent by mail or air courier, addressed to Reed Elsevier N.V., Radarweg 29, 1043 NX, Amsterdam, The Netherlands, Attention : Company Secretary, or to any other address which the Company may specify in writing to the Depositary.
Any and all notices to be given to the Depositary shall be deemed to have been duly given if personally delivered or sent by mail, air courier or cable, telex or facsimile transmission, confirmed by letter personally delivered or sent by mail or air courier, addressed to Citibank, N.A., 388 Greenwich Street, New York, New York 10013, U.S.A., Attention : Depositary Receipts Department, or to any other address which the Depositary may specify in writing to the Company.
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Any and all notices to be given to any Holder shall be deemed to have been duly given if (a) personally delivered or sent by mail or cable, telex or facsimile transmission, confirmed by letter, addressed to such Holder at the address of such Holder as it appears on the books of the Depositary or, if such Holder shall have filed with the Depositary a request that notices intended for such Holder be mailed to some other address, at the address specified in such request, or (b) if a Holder shall have designated such means of notification as an acceptable means of notification under the terms of the Deposit Agreement, by means of electronic messaging addressed for delivery to the e-mail address designated by the Holder for such purpose. Notice to Holders shall be deemed to be notice to Beneficial Owners for all purposes of the Deposit Agreement. Failure to notify a Holder or any defect in the notification to a Holder shall not affect the sufficiency of notification to other Holders or to the Beneficial Owners of ADSs held by such other Holders.
Delivery of a notice sent by mail, air courier or cable, telex or facsimile transmission shall be deemed to be effective at the time when a duly addressed letter containing the same (or a confirmation thereof in the case of a cable, telex or facsimile transmission) is deposited, postage prepaid, in a post-office letter box or delivered to an air courier service, without regard for the actual receipt or time of actual receipt thereof by a Holder. The Depositary or the Company may, however, act upon any cable, telex or facsimile transmission received by it from any Holder, the Custodian, the Depositary, or the Company, notwithstanding that such cable, telex or facsimile transmission shall not be subsequently confirmed by letter.
Delivery of a notice by means of electronic messaging shall be deemed to be effective at the time of the initiation of the transmission by the sender (as shown on the senders records), notwithstanding that the intended recipient retrieves the message at a later date, fails to retrieve such message, or fails to receive such notice on account of its failure to maintain the designated e-mail address, its failure to designate a substitute e-mail address or for any other reason.
Section 7.6 Governing Law and Jurisdiction . The Deposit Agreement and the ADRs shall be interpreted in accordance with, and all rights hereunder and thereunder and provisions hereof and thereof shall be governed by, the laws of the State of New York. Notwithstanding anything contained in the Deposit Agreement, any ADR or any present or future provisions of the laws of the State of New York, the rights of holders of Shares and of any other Deposited Securities and the obligations and duties of the Company in respect of the holders of Shares and other Deposited Securities, as such, shall be governed by the laws of The Netherlands (or, if applicable, such other laws as may govern the Deposited Securities).
Except as set forth in the following paragraph of this Section 7.6, the Company and the Depositary agree that the federal or state courts in the City of New York shall have jurisdiction to hear and determine any suit, action or proceeding and to settle any dispute between them that may arise out of or in connection with the Deposit Agreement and, for such purposes, each irrevocably submits to the non-exclusive jurisdiction of such courts. The Company hereby irrevocably designates, appoints and empowers Kenneth Thompson II (the Agent ) now at 9443 Springboro Pike, B4/F5/514, Miamisburg, Ohio, 45342 as its authorized agent to receive and
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accept for and on its behalf, and on behalf of its properties, assets and revenues, service by mail of any and all legal process, summons, notices and documents that may be served in any suit, action or proceeding brought against the Company in any federal or state court as described in the preceding sentence or in the next paragraph of this Section 7.6. If for any reason the Agent shall cease to be available to act as such, the Company agrees to designate a new agent in New York on the terms and for the purposes of this Section 7.6 reasonably satisfactory to the Depositary. The Company further hereby irrevocably consents and agrees to the service of any and all legal process, summons, notices and documents in any suit, action or proceeding against the Company, by service by mail of a copy thereof upon the Agent (whether or not the appointment of such Agent shall for any reason prove to be ineffective or such Agent shall fail to accept or acknowledge such service), with a copy mailed to the Company by registered or certified air mail, postage prepaid, to its address provided in Section 7.5. The Company agrees that the failure of the Agent to give any notice of such service to it shall not impair or affect in any way the validity of such service or any judgment rendered in any action or proceeding based thereon.
Notwithstanding the foregoing, the Depositary and the Company unconditionally agree that in the event that a Holder or Beneficial Owner brings a suit, action or proceeding against (a) the Company, (b) the Depositary in its capacity as Depositary under the Deposit Agreement or (c) against both the Company and the Depositary, in any such case, in any state or federal court of the United States, and the Depositary or the Company have any claim, for indemnification or otherwise, against each other arising out of the subject matter of such suit, action or proceeding, then the Company and the Depositary may pursue such claim against each other in the state or federal court in the United States in which such suit, action, or proceeding is pending and, for such purposes, the Company and the Depositary irrevocably submit to the non-exclusive jurisdiction of such courts. The Company agrees that service of process upon the Agent in the manner set forth in the preceding paragraph shall be effective service upon it for any suit, action or proceeding brought against it as described in this paragraph.
The Company irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of venue of any actions, suits or proceedings brought in any court as provided in this Section 7.6, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.
The Company irrevocably and unconditionally waives, to the fullest extent permitted by law, and agrees not to plead or claim, any right of immunity from legal action, suit or proceeding, from setoff or counterclaim, from the jurisdiction of any court, from service of process, from attachment upon or prior to judgment, from attachment in aid of execution or judgment, from execution of judgment, or from any other legal process or proceeding for the giving of any relief or for the enforcement of any judgment, and consents to such relief and enforcement against it, its assets and its revenues in any jurisdiction, in each case with respect to any matter arising out of, or in connection with, the Deposit Agreement, any ADR or the Deposited Property.
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No disclaimer of liability under the Securities Act is intended by any provision of the Deposit Agreement. The provisions of this Section 7.6 shall survive any termination of the Deposit Agreement, in whole or in part.
Section 7.7 Assignment . Subject to the provisions of Section 5.4, the Deposit Agreement may not be assigned by either the Company or the Depositary.
Section 7.8 Compliance with U.S. Securities Laws . Notwithstanding anything in the Deposit Agreement to the contrary, the withdrawal or delivery of Deposited Securities will not be suspended by the Company or the Depositary except as would be permitted by Instruction I.A.(1) of the General Instructions to Form F-6 Registration Statement, as amended from time to time, under the Securities Act.
Section 7.9 Dutch Law References . Any summary of Dutch laws and regulations and of the terms of the Companys Articles of Association set forth in the Deposit Agreement have been provided by the Company solely for the convenience of Holders, Beneficial Owners and the Depositary. While such summaries are believed by the Company to be accurate as of the date of the Deposit Agreement, (i) they are summaries and as such may not include all aspects of the materials summarized applicable to a Holder or Beneficial Owner, and (ii) these laws and regulations and the Companys Articles of Association may change after the date of the Deposit Agreement. Neither the Depositary nor the Company has any obligation under the terms of the Deposit Agreement to update any such summaries.
Section 7.10 Titles and References .
(a) Deposit Agreement . All references in the Deposit Agreement to exhibits, articles, sections, subsections, and other subdivisions refer to the exhibits, articles, sections, subsections and other subdivisions of the Deposit Agreement unless expressly provided otherwise. The words the Deposit Agreement, herein, hereof, hereby, hereunder, and words of similar import refer to the Deposit Agreement as a whole as in effect at the relevant time between the Company, the Depositary and the Holders and Beneficial Owners of ADSs and not to any particular subdivision unless expressly so limited. Pronouns in masculine, feminine and neuter gender shall be construed to include any other gender, and words in the singular form shall be construed to include the plural and vice versa unless the context otherwise requires. Titles to sections of the Deposit Agreement are included for convenience only and shall be disregarded in construing the language contained in the Deposit Agreement. References to applicable laws and regulations shall refer to laws and regulations applicable to ADRs, ADSs or Deposited Property as in effect at the relevant time of determination, unless otherwise required by law or regulation.
(b) ADRs . All references in any ADR(s) to paragraphs, exhibits, articles, sections, subsections, and other subdivisions refer to the paragraphs, exhibits, articles, sections, subsections and other subdivisions of the ADR(s) in question unless expressly provided otherwise. The words the Receipt, the ADR, herein, hereof, hereby, hereunder, and words of similar import used in any ADR refer to the ADR as a whole and as in effect at the relevant time, and not to any particular subdivision unless expressly so limited. Pronouns in masculine, feminine and neuter gender in any ADR shall be construed to include any other
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gender, and words in the singular form shall be construed to include the plural and vice versa unless the context otherwise requires. Titles to paragraphs of any ADR are included for convenience only and shall be disregarded in construing the language contained in the ADR. References to applicable laws and regulations shall refer to laws and regulations applicable to ADRs, ADSs or Deposited Property as in effect at the relevant time of determination, unless otherwise required by law or regulation.
Section 7.11 Amendment and Restatement . The Depositary shall arrange to have new ADRs printed that reflect the form of ADR attached to the Deposit Agreement. All ADRs issued hereunder after the date hereof, whether upon the deposit of Shares or other Deposited Securities or upon the transfer, combination or split-up of existing ADRs, shall be substantially in the form of the specimen ADR attached as Exhibit A hereto. However, American depositary receipts issued prior to the date hereof under the terms of the Original Deposit Agreement and outstanding as of the date hereof, which do not reflect the form of ADR attached hereto as Exhibit A , do not need to be called in for exchange and may remain outstanding until such time as the Holders thereof choose to surrender them for any reason under the Deposit Agreement. The Depositary is authorized and directed to take any and all actions deemed necessary to effect the foregoing.
The Company hereby instructs the Depositary to (i) promptly send notice of the execution of the Deposit Agreement to all holders of American depositary shares outstanding under the Original Deposit Agreement as of the date hereof and (ii) inform holders of American depositary shares issued as certificated American depositary shares and outstanding under the Original Deposit Agreement as of the date hereof that they have the opportunity, but are not required, to exchange their American depositary receipts for one or more ADR(s) issued pursuant to the Deposit Agreement.
Holders and Beneficial Owners of American depositary shares issued pursuant to the Original Deposit Agreement and outstanding as of the date hereof, shall, from and after the date hereof, be deemed Holders and Beneficial Owners of ADSs issued pursuant and be subject to all of the terms and conditions of the Deposit Agreement in all respects, provided, however, that any term of the Deposit Agreement that prejudices any substantial existing right of holders or beneficial owners of American depositary shares issued under the Original Deposit Agreement shall not become effective as to Holders and Beneficial Owners until thirty (30) days after notice of the amendments effectuated by the Deposit Agreement shall have been given to holders of ADSs outstanding as of the date hereof.
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IN WITNESS WHEREOF, REED ELSEVIER N.V. and CITIBANK, N.A. have duly executed the Deposit Agreement as of the day and year first above set forth and all Holders and Beneficial Owners shall become parties hereto upon acceptance by them of ADSs issued in accordance with the terms hereof, or upon acquisition of any beneficial interest therein.
REED ELSEVIER N.V. | ||
By: |
/s/ Jans van der Woude |
|
Name: | ||
Title: | Authorised Representative | |
CITIBANK, N.A. | ||
By: |
/s/ Mark Gherzo |
|
Name: | ||
Title: | Vice President |
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EXHIBIT A
[FORM OF ADR]
Number |
CUSIP NUMBER: | |||
American Depositary Shares (each American Depositary Share representing the right to receive two (2) fully paid ordinary shares) |
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES
of
REED ELSEVIER N.V.
(Incorporated under the laws of The Netherlands)
CITIBANK, N.A., a national banking association organized and existing under the laws of the United States of America, as depositary (the Depositary), hereby certifies that is the owner of American Depositary Shares (hereinafter ADS) representing deposited ordinary shares, including evidence of rights to receive such ordinary shares (the Shares), of REED ELSEVIER N.V., a corporation incorporated under the laws of The Netherlands (the Company). As of the date of the Deposit Agreement (as hereinafter defined), each ADS represents the right to receive two (2) Shares deposited under the Deposit Agreement with the Custodian, which at the date of execution of the Deposit Agreement is Citibank International plc (the Custodian). The ADS(s)-to-Share(s) ratio is subject to amendment as provided in Articles IV and VI of the Deposit Agreement. The Depositarys Principal Office is located at 388 Greenwich Street, New York, New York 10013, U.S.A.
(1) The Deposit Agreement . This American Depositary Receipt is one of an issue of American Depositary Receipts (ADRs), all issued and to be issued upon the terms and conditions set forth in the Amended and Restated Deposit Agreement, dated as of August 1, 2014 (as amended and supplemented from time to time, the Deposit Agreement), by and among the Company, the Depositary, and all Holders and Beneficial Owners from time to time of ADSs issued thereunder. The Deposit Agreement sets forth the rights and obligations of
A-1
Holders and Beneficial Owners of ADSs and the rights and duties of the Depositary in respect of the Shares deposited thereunder and any and all other Deposited Property (as defined in the Deposit Agreement) from time to time received and held on deposit in respect of the ADSs. Copies of the Deposit Agreement are on file at the Principal Office of the Depositary and with the Custodian. Each Holder and each Beneficial Owner, upon acceptance of any ADSs (or any interest therein) issued in accordance with the terms and conditions of the Deposit Agreement, or by continuing to hold, from and after the date hereof any American depositary shares issued and outstanding under the Original Deposit Agreement, shall be deemed for all purposes to (a) be a party to and bound by the terms of the Deposit Agreement and the applicable ADR(s), and (b) appoint the Depositary its attorney-in-fact, with full power to delegate, to act on its behalf and to take any and all actions contemplated in the Deposit Agreement and the applicable ADR(s), to adopt any and all procedures necessary to comply with applicable law and to take such action as the Depositary in its sole discretion may deem necessary or appropriate to carry out the purposes of the Deposit Agreement and the applicable ADR(s), the taking of such actions to be the conclusive determinant of the necessity and appropriateness thereof.
The statements made on the face and reverse of this ADR are summaries of certain provisions of the Deposit Agreement and the Articles of Association of the Company (as in effect on the date of the signing of the Deposit Agreement) and are qualified by and subject to the detailed provisions of the Deposit Agreement and the Articles of Association, to which reference is hereby made.
All capitalized terms not defined herein shall have the meanings ascribed thereto in the Deposit Agreement.
The Depositary makes no representation or warranty as to the validity or worth of the Deposited Property. The Depositary has made arrangements for the acceptance of the ADSs into DTC. Each Beneficial Owner of ADSs held through DTC must rely on the procedures of DTC and the DTC Participants to exercise and be entitled to any rights attributable to such ADSs. The Depositary may issue Uncertificated ADSs subject, however, to the terms and conditions of Section 2.13 of the Deposit Agreement.
(2) Surrender of ADSs and Withdrawal of Deposited Securities . The Holder of this ADR (and of the ADSs evidenced hereby) shall be entitled to Delivery (at the Custodians designated office) of the Deposited Securities at the time represented by the ADSs evidenced hereby upon satisfaction of each of the following conditions: (i) the Holder (or a duly-authorized attorney of the Holder) has duly Delivered ADSs to the Depositary at its Principal Office (and, if applicable, this ADR evidencing such ADSs) for the purpose of withdrawal of the Deposited Securities represented thereby, (ii) if applicable and so required by the Depositary, this ADR Delivered to the Depositary for such purpose has been properly endorsed in blank or is accompanied by proper instruments of transfer in blank (including signature guarantees in accordance with standard securities industry practice), (iii) if so required by the Depositary, the Holder of the ADSs has executed and delivered to the Depositary a written order directing the Depositary to cause the Deposited Securities being withdrawn to be Delivered to or upon the written order of the person(s) designated in such order, and (iv) all applicable fees and charges of, and expenses incurred by, the Depositary and all applicable taxes and governmental charges (as are set forth in Section 5.9 of, and Exhibit B to, the Deposit Agreement) have been paid,
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subject, however, in each case , to the terms and conditions of this ADR evidencing the surrendered ADSs, of the Deposit Agreement, of the Companys Articles of Association and of any applicable laws and the rules of Euroclear Nederland, and to any provisions of or governing the Deposited Securities, in each case as in effect at the time thereof.
Upon satisfaction of each of the conditions specified above, the Depositary (i) shall cancel the ADSs Delivered to it (and, if applicable, this ADR(s) evidencing the ADSs so Delivered), (ii) shall direct the Registrar to record the cancellation of the ADSs so Delivered on the books maintained for such purpose, and (iii) shall direct the Custodian to Deliver, or cause the Delivery of, in each case, without unreasonable delay, the Deposited Securities represented by the ADSs so canceled together with any certificate or other document of title for the Deposited Securities, or evidence of the electronic transfer thereof (if available), as the case may be, to or upon the written order of the person(s) designated in the order delivered to the Depositary for such purpose, subject however, in each case, to the terms and conditions of the Deposit Agreement, of this ADR evidencing the ADS so canceled, of the Articles of Association of the Company, of any applicable laws and of the rules of Euroclear Nederland, and to the terms and conditions of or governing the Deposited Securities, in each case as in effect at the time thereof.
The Depositary shall not accept for surrender ADSs representing less than one (1) Share. In the case of Delivery to it of ADSs representing a number other than a whole number of Shares, the Depositary shall cause ownership of the appropriate whole number of Shares to be Delivered in accordance with the terms hereof, and shall, at the discretion of the Depositary, either (i) return to the person surrendering such ADSs the number of ADSs representing any remaining fractional Share, or (ii) sell or cause to be sold the fractional Share represented by the ADSs so surrendered and remit the proceeds of such sale (net of (a) applicable fees and charges of, and expenses incurred by, the Depositary and (b) taxes withheld) to the person surrendering the ADSs.
Notwithstanding anything else contained in this ADR or the Deposit Agreement, the Depositary may make delivery at the Principal Office of the Depositary of Deposited Property consisting of (i) any cash dividends or cash distributions, or (ii) any proceeds from the sale of any non-cash distributions, which are at the time held by the Depositary in respect of the Deposited Securities represented by the ADSs surrendered for cancellation and withdrawal. At the request, risk and expense of any Holder so surrendering ADSs represented by this ADR, and for the account of such Holder, the Depositary shall direct the Custodian to forward (to the extent permitted by law) any Deposited Property (other than Deposited Securities) held by the Custodian in respect of such ADSs to the Depositary for delivery at the Principal Office of the Depositary. Such direction shall be given by letter or, at the request, risk and expense of such Holder, by cable, telex or facsimile transmission.
(3) Transfer, Combination and Split-up of ADRs . The Registrar shall register the transfer of this ADR (and of the ADSs represented hereby) on the books maintained for such purpose and the Depositary shall (x) cancel this ADR and execute new ADRs evidencing the same aggregate number of ADSs as those evidenced by this ADR canceled by the Depositary, (y) cause the Registrar to countersign such new ADRs, and (z) Deliver such new ADRs to or upon the order of the person entitled thereto, if each of the following conditions has been
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satisfied: (i) this ADR has been duly Delivered by the Holder (or by a duly authorized attorney of the Holder) to the Depositary at its Principal Office for the purpose of effecting a transfer thereof, (ii) this surrendered ADR has been properly endorsed or is accompanied by proper instruments of transfer (including signature guarantees in accordance with standard securities industry practice), (iii) this surrendered ADR has been duly stamped (if required by the laws of the State of New York or of the United States), and (iv) all applicable fees and charges of, and expenses incurred by, the Depositary and all applicable taxes and governmental charges (as are set forth in Section 5.9 of, and Exhibit B to, the Deposit Agreement) have been paid, subject, however, in each case, to the terms and conditions of this ADR, of the Deposit Agreement and of applicable law, in each case as in effect at the time thereof.
The Registrar shall register the split-up or combination of this ADR (and of the ADSs represented hereby) on the books maintained for such purpose and the Depositary shall (x) cancel this ADR and execute new ADRs for the number of ADSs requested, but in the aggregate not exceeding the number of ADSs evidenced by this ADR canceled by the Depositary, (y) cause the Registrar to countersign such new ADRs, and (z) Deliver such new ADRs to or upon the order of the Holder thereof, if each of the following conditions has been satisfied: (i) this ADR has been duly Delivered by the Holder (or by a duly authorized attorney of the Holder) to the Depositary at its Principal Office for the purpose of effecting a split-up or combination hereof, and (ii) all applicable fees and charges of, and expenses incurred by, the Depositary and all applicable taxes and governmental charges (as are set forth in Section 5.9 of, and Exhibit B to, the Deposit Agreement) have been paid, subject, however, in each case , to the terms and conditions of this ADR, of the Deposit Agreement and of applicable law, in each case as in effect at the time thereof.
The Depositary may appoint one or more co-transfer agents for the purpose of effecting transfers, combinations and split-ups of ADRs at designated transfer offices on behalf of the Depositary. In carrying out its functions, a co-transfer agent may require evidence of authority and compliance with applicable laws and other requirements by Holders or persons entitled to such ADRs and will be entitled to protection and indemnity to the same extent as the Depositary. Such co-transfer agents may be removed and substitutes appointed by the Depositary. Each co-transfer agent appointed under Section 2.6 of the Deposit Agreement (other than the Depositary) shall give notice in writing to the Depositary accepting such appointment and agreeing to be bound by the applicable terms of the Deposit Agreement.
(4) Pre-Conditions to Registration, Transfer, Etc . As a condition precedent to the execution and delivery, the registration of issuance, transfer, split-up, combination or surrender, of any ADS, the delivery of any distribution thereon, or the withdrawal of any Deposited Property, the Depositary or the Custodian may require (i) payment from the depositor of Shares or presenter of ADSs or of this ADR of a sum sufficient to reimburse it for any tax or other governmental charge and any stock transfer or registration fee with respect thereto (including any such tax or charge and fee with respect to Shares being deposited or withdrawn) and payment of any applicable fees and charges of the Depositary as provided in Section 5.9 and Exhibit B to the Deposit Agreement and in this ADR, (ii) the production of proof satisfactory to it as to the identity and genuineness of any signature or any other matter contemplated by Section 3.1 of the Deposit Agreement, and (iii) compliance with (A) any laws or governmental regulations relating to the execution and delivery of this ADR or ADSs or to the withdrawal of
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Deposited Securities and (B) such reasonable regulations as the Depositary and the Company may establish consistent with the provisions of this ADR, if applicable, the Deposit Agreement and applicable law.
The issuance of ADSs against deposits of Shares generally or against deposits of particular Shares may be suspended, or the deposit of particular Shares may be refused, or the registration of transfer of ADSs in particular instances may be refused, or the registration of transfer of ADSs generally may be suspended, during any period when the transfer books of the Company, the Depositary, or a Registrar are closed or if any such action is deemed necessary or advisable by the Depositary or the Company, in good faith, at any time or from time to time because of any requirement of applicable law or regulation, any government or governmental body or commission or any securities exchange on which the Shares or ADSs are listed, or under any provision of the Deposit Agreement or this ADR, or under any provision of, or governing, the Deposited Securities, or because of a meeting of shareholders of the Company or for any other reason, subject, in all cases to paragraph (25) of this ADR and Section 7.8 of the Deposit Agreement. Notwithstanding any provision of the Deposit Agreement or this ADR to the contrary, Holders are entitled to surrender outstanding ADSs to withdraw the Deposited Securities associated therewith at any time subject only to (i) temporary delays caused by closing the transfer books of the Depositary or the Company or the deposit of Shares in connection with voting at a shareholders meeting or the payment of dividends, (ii) the payment of fees, taxes and similar charges, (iii) compliance with any U.S. or foreign laws or governmental regulations relating to the ADSs or to the withdrawal of the Deposited Securities, and (iv) other circumstances specifically contemplated by Instruction I.A.(l) of the General Instructions to Form F-6 (as such General Instructions may be amended from time to time).
(5) Compliance With Information Requests . Notwithstanding any other provision of the Deposit Agreement or this ADR, each Holder and Beneficial Owner of the ADSs represented hereby agrees to comply with requests from the Company pursuant to applicable law, the rules and requirements of the Euronext Amsterdam N.V., and any other stock exchange on which the Shares or ADSs are, or will be, registered, traded or listed, or the Articles of Association of the Company, which are made to provide information, inter alia , as to the capacity in which such Holder or Beneficial Owner owns ADSs (and the Shares represented by such ADSs, as the case may be) and regarding the identity of any other person(s) interested in such ADSs (and the Shares represented by such ADSs, as the case may be) and the nature of such interest and various other matters, whether or not they are Holders and/or Beneficial Owners at the time of such request. The Depositary agrees to use its reasonable efforts to forward, upon the request of the Company and at the Companys expense, any such request from the Company to the Holders and to forward to the Company any such responses to such requests received by the Depositary.
(6) Ownership Restrictions . Notwithstanding any other provision of this ADR or of the Deposit Agreement, the Company may restrict transfers of the Shares where such transfer might result in ownership of Shares exceeding limits imposed by applicable law or the Articles of Association of the Company. The Company may also restrict, in such manner as it deems appropriate, transfers of the ADSs where such transfer may result in the total number of Shares represented by the ADSs owned by a single Holder or Beneficial Owner to exceed any such limits. The Company may, in its sole discretion but subject to applicable law, instruct the
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Depositary to take action with respect to the ownership interest of any Holder or Beneficial Owner in excess of the limits set forth in the preceding sentence, including, but not limited to, the imposition of restrictions on the transfer of ADSs, the removal or limitation of voting rights or mandatory sale or disposition on behalf of a Holder or Beneficial Owner of the Shares represented by the ADSs held by such Holder or Beneficial Owner in excess of such limitations, if and to the extent such disposition is permitted by applicable law and the Articles of Association of the Company. Holders and Beneficial Owners acknowledge that, under the Dutch Act on the Disclosure of Holdings in Listed Companies, shareholders must promptly notify the Company and The Netherlands Securities Investment Board if their holding reaches, exceeds or falls below 3%, 5%, 10%, 15%, 20%, 25%, 30%, 40%, 50%, 60%, 75% or 95% of the capital interest and/or voting rights in the Company (whether due to an increase or decrease in the issued share capital of the Company or otherwise) and agree to comply with such notification requirements. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance with the ownership restrictions described herein or in Section 3.5 of the Deposit Agreement.
(7) Reporting Obligations and Regulatory Approvals . Applicable laws and regulations may require holders and beneficial owners of Shares, including the Holders and Beneficial Owners of ADSs, to satisfy reporting requirements and obtain regulatory approvals in certain circumstances. Holders and Beneficial Owners of ADSs are solely responsible for determining and complying with such reporting requirements and for obtaining such approvals. Each Holder and each Beneficial Owner hereby agrees to make such determination, file such reports, and obtain such approvals to the extent and in the form required by applicable laws and regulations as in effect from time to time. Neither the Depositary, the Custodian, the Company or any of their respective agents or affiliates shall be required to take any actions whatsoever on behalf of Holders or Beneficial Owners to determine or satisfy such reporting requirements or obtain such regulatory approvals under applicable laws and regulations.
(8) Liability for Taxes and Other Charges . Any tax or other governmental charge payable by the Custodian or by the Depositary with respect to any Deposited Property, ADSs or this ADR shall be payable by the Holders and Beneficial Owners to the Depositary. The Company, the Custodian and/or the Depositary may withhold or deduct from any distributions made in respect of Deposited Property and may sell for the account of a Holder and/or Beneficial Owner any or all of the Deposited Property and apply such distributions and sale proceeds in payment of any taxes (including applicable interest and penalties) or charges that are or may be payable by Holders or Beneficial Owners in respect of the ADSs, Deposited Property and this ADR, the Holder and the Beneficial Owner hereof remaining liable for any deficiency. The Custodian may refuse the deposit of Shares and the Depositary may refuse to issue ADSs, to deliver ADRs, register the transfer of ADSs, register the split-up or combination of ADRs and (subject to paragraph (25) of this ADR and Section 7.8 of the Deposit Agreement) the withdrawal of Deposited Property until payment in full of such tax, charge, penalty or interest is received. Every Holder and Beneficial Owner agrees to indemnify the Depositary, the Company, the Custodian, and any of their agents, officers, employees and Affiliates for, and to hold each of them harmless from, any claims with respect to taxes (including applicable interest and penalties thereon) arising from any tax benefit obtained for such Holder and/or Beneficial Owner.
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(9) Representations and Warranties of Depositors . Each person depositing Shares under the Deposit Agreement shall be deemed thereby to represent and warrant that (i) such Shares and the certificates therefor are duly authorized, validly issued, fully paid, non-assessable and legally obtained by such person, (ii) all preemptive (and similar) rights, if any, with respect to such Shares have been validly waived or exercised, (iii) the person making such deposit is duly authorized so to do, (iv) the Shares presented for deposit are free and clear of any lien, encumbrance, security interest, charge, mortgage or adverse claim, (v) the Shares presented for deposit are not, and the ADSs issuable upon such deposit will not be, Restricted Securities (except as contemplated in Section 2.14 of the Deposit Agreement), and (vi) the Shares presented for deposit have not been stripped of any rights or entitlements. Such representations and warranties shall survive the deposit and withdrawal of Shares, the issuance and cancellation of ADSs in respect thereof and the transfer of such ADSs. If any such representations or warranties are false in any way, the Company and the Depositary shall be authorized, at the cost and expense of the person depositing Shares, to take any and all actions necessary to correct the consequences thereof.
(10) Proofs, Certificates and Other Information . Any person presenting Shares for deposit, any Holder and any Beneficial Owner may be required, and every Holder and Beneficial Owner agrees, from time to time to provide to the Depositary and the Custodian such proof of citizenship or residence, taxpayer status, payment of all applicable taxes or other governmental charges, exchange control approval, legal or beneficial ownership of ADSs and Deposited Property, compliance with applicable laws, the terms of the Deposit Agreement or this ADR evidencing the ADSs and the provisions of, or governing, the Deposited Property, to execute such certifications and to make such representations and warranties, and to provide such other information and documentation (or, in the case of Shares in registered form presented for deposit, such information relating to the registration on the books of the Company or of the Share Registrar) as the Depositary or the Custodian may deem necessary or proper or as the Company may reasonably require by written request to the Depositary consistent with its obligations under the Deposit Agreement and this ADR. The Depositary and the Registrar, as applicable, may withhold the execution or delivery or registration of transfer of any ADR or ADS or the distribution or sale of any dividend or distribution of rights or of the proceeds thereof or, to the extent not limited by paragraph (25) and Section 7.8 of the Deposit Agreement, the delivery of any Deposited Property until such proof or other information is filed or such certifications are executed, or such representations and warranties are made, or such other documentation or information are provided, in each case to the Depositarys, the Registrars and the Companys satisfaction.
(11) ADS Fees and Charges . The following ADS fees are payable under the terms of the Deposit Agreement:
(i) | ADS Issuance Fee : by any person depositing Shares or to whom ADSs are issued upon the deposit of Shares (excluding issuances as a result of distributions described in paragraph (iv) below), a fee not in excess of U.S. $5.00 per 100 ADSs (or fraction thereof) so issued under the terms of the Deposit Agreement; |
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(ii) | ADS Cancellation Fee : by any person surrendering ADSs for cancellation and withdrawal of Deposited Securities or by any person to whom Deposited Securities are delivered, a fee not in excess of U.S. $5.00 per 100 ADSs (or fraction thereof) surrendered; |
(iii) | Cash Distribution Fee : by any Holder of ADSs, a fee not in excess of U.S. $5.00 per 100 ADSs (or fraction thereof) held for the distribution of cash dividends or other cash distributions ( i.e. , sale of rights and other entitlements); |
(iv) | Stock Distribution /Rights Exercise Fee : by any Holder of ADS(s), a fee not in excess of U.S. $5.00 per 100 ADSs (or fraction thereof) held for (a) the distribution of stock dividends or other free stock distributions, or (b) the exercise of rights to purchase additional ADSs; |
(v) | Other Distribution Fee : by any Holder of ADS(s), a fee not in excess of U.S. $5.00 per 100 ADSs (or fraction thereof) held for the distribution of securities other than ADSs or rights to purchase additional ADSs (i.e., spin-off shares); and |
(vi) | Depositary Services Fee : by any Holder of ADS(s), a fee not in excess of U.S. $5.00 per 100 ADSs (or fraction thereof) held on the applicable record date(s) established by the Depositary. |
Holders, Beneficial Owners, persons depositing Shares and persons surrendering ADSs for cancellation and for the purpose of withdrawing Deposited Securities shall be responsible for the following ADS charges under the terms of the Deposit Agreement:
(a) | taxes (including applicable interest and penalties) and other governmental charges; |
(b) | such registration fees as may from time to time be in effect for the registration of Shares or other Deposited Securities on the share register and applicable to transfers of Shares or other Deposited Securities to or from the name of the Custodian, the Depositary or any nominees upon the making of deposits and withdrawals, respectively; |
(c) | such cable, telex and facsimile transmission and delivery expenses as are expressly provided in the Deposit Agreement to be at the expense of the person depositing Shares or withdrawing Deposited Securities or of the Holders and Beneficial Owners of ADSs; |
(d) | the expenses and charges incurred by the Depositary in the conversion of foreign currency; |
(e) | such fees and expenses as are incurred by the Depositary in connection with compliance with exchange control regulations and other regulatory requirements applicable to Shares, Deposited Securities, ADSs and ADRs; and |
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(f) | the fees and expenses incurred by the Depositary, the Custodian, or any nominee in connection with the servicing or delivery of Deposited Property. |
All ADS fees and charges may, at any time and from time to time, be changed by agreement between the Depositary and Company but, in the case of ADS fees and charges payable by Holders and Beneficial Owners, only in the manner contemplated by paragraph (23) of this ADR and as contemplated in the Deposit Agreement. The Depositary shall provide, without charge, a copy of its latest ADS fee schedule to anyone upon request.
ADS fees and charges payable upon (i) deposit of Shares against issuance of ADSs and (ii) surrender of ADSs for cancellation and withdrawal of Deposited Securities will be payable by the person to whom the ADSs so issued are delivered by the Depositary (in the case of ADS issuances) and by the person who delivers the ADSs for cancellation to the Depositary (in the case of ADS cancellations). In the case of ADSs issued by the Depositary into DTC or presented to the Depositary via DTC, the ADS issuance and cancellation fees and charges will be payable by the DTC Participant(s) receiving the ADSs from the Depositary or the DTC Participant(s) surrendering the ADSs to the Depositary for cancellation, as the case may be, on behalf of the Beneficial Owner(s) and will be charged by the DTC Participant(s) to the account(s) of the applicable Beneficial Owner(s) in accordance with the procedures and practices of the DTC Participant(s) as in effect at the time. ADS fees and charges in respect of distributions and the ADS service fee are payable by Holders as of the applicable ADS Record Date established by the Depositary. In the case of distributions of cash, the amount of the applicable ADS fees and charges is deducted from the funds being distributed. In the case of (i) distributions other than cash and (ii) the ADS service fee, the applicable Holders as of the ADS Record Date established by the Depositary will be invoiced for the amount of the ADS fees and charges. For ADSs held through DTC, the ADS fees and charges for distributions other than cash and the ADS service fee are charged to the DTC Participants in accordance with the procedures and practices prescribed by DTC from time to time and the DTC Participants in turn charge the amount of such ADS fees and charges to the Beneficial Owners for whom they hold ADSs.
The Depositary may reimburse the Company for certain expenses incurred by the Company in respect of the ADR program established pursuant to the Deposit Agreement, by making available a portion of the ADS fees charged in respect of the ADR program or otherwise, upon such terms and conditions as the Company and the Depositary agree from time to time. The Company shall pay to the Depositary such fees and charges, and reimburse the Depositary for such out-of-pocket expenses, as the Depositary and the Company may agree from time to time. Responsibility for payment of such fees, charges and reimbursements may from time to time be changed by agreement between the Company and the Depositary. Unless otherwise agreed, the Depositary shall present its statement for such fees, charges and reimbursements to the Company once every three months. The charges and expenses of the Custodian are for the sole account of the Depositary.
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The obligation of Holders and Beneficial Owners to pay ADS fees and charges shall survive the termination of the Deposit Agreement. As to any Depositary, upon the resignation or removal of such Depositary as described in Section 5.4 of the Deposit Agreement, the right to collect ADS fees, charges and expenses shall extend for those ADS fees and charges incurred prior to the effectiveness of such resignation or removal.
(12) Title to ADRs . Subject to the limitations contained in the Deposit Agreement and in this ADR, it is a condition of this ADR, and every successive Holder of this ADR by accepting or holding the same consents and agrees, that title to this ADR (and to each Certificated ADS evidenced hereby) shall be transferable upon the same terms as a certificated security under the laws of the State of New York, provided that, in the case of Certificated ADSs, this ADR has been properly endorsed or is accompanied by proper instruments of transfer. Notwithstanding any notice to the contrary, the Depositary and the Company may deem and treat the Holder of this ADR (that is, the person in whose name this ADR is registered on the books of the Depositary) as the absolute owner thereof for all purposes. Neither the Depositary nor the Company shall have any obligation nor be subject to any liability under the Deposit Agreement or this ADR to any holder of this ADR or any Beneficial Owner unless, in the case of a holder of ADSs, such holder is the Holder of this ADR registered on the books of the Depositary or, in the case of a Beneficial Owner, such Beneficial Owner, or the Beneficial Owners representative, is the Holder registered on the books of the Depositary.
(13) Validity of ADR . The Holder(s) of this ADR (and the ADSs represented hereby) shall not be entitled to any benefits under the Deposit Agreement or be valid or enforceable for any purpose against the Depositary or the Company unless this ADR has been (i) dated, (ii) signed by the manual or facsimile signature of a duly-authorized signatory of the Depositary, (iii) countersigned by the manual or facsimile signature of a duly-authorized signatory of the Registrar, and (iv) registered in the books maintained by the Registrar for the registration of issuances and transfers of ADRs. An ADR bearing the facsimile signature of a duly-authorized signatory of the Depositary or the Registrar, who at the time of signature was a duly authorized signatory of the Depositary or the Registrar, as the case may be, shall bind the Depositary, notwithstanding the fact that such signatory has ceased to be so authorized prior to the delivery of such ADR by the Depositary.
(14) Available Information; Reports; Inspection of Transfer Books . The Company is subject to the periodic reporting requirements of the Exchange Act and, accordingly, is required to file or submit certain reports with the Commission. These reports can be retrieved from the Commissions website ( www.sec.gov ) and can be inspected and copied at the public reference facilities maintained by the Commission located (as of the date of the Deposit Agreement) at 100 F Street, N.E., Washington D.C. 20549. The Depositary shall make available for inspection by Holders at its Principal Office any reports and communications, including any proxy soliciting materials, received from the Company which are both (a) received by the Depositary, the Custodian, or the nominee of either of them as the holder of the Deposited Property and (b) made generally available to the holders of such Deposited Property by the Company. The Depositary shall also provide or make available to Holders copies of such reports when furnished by the Company pursuant to Section 5.6 of the Deposit Agreement.
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The Registrar shall keep books for the registration of ADSs which at all reasonable times shall be open for inspection by the Company and by the Holders of such ADSs, provided that such inspection shall not be, to the Registrars knowledge, for the purpose of communicating with Holders of such ADSs in the interest of a business or object other than the business of the Company or other than a matter related to the Deposit Agreement or the ADSs.
The Registrar may close the transfer books with respect to the ADSs, at any time or from time to time, when deemed necessary or advisable by it in good faith in connection with the performance of its duties hereunder, or at the reasonable written request of the Company subject, in all cases, to paragraph (25) and Section 7.8 of the Deposit Agreement.
Dated:
CITIBANK, N.A. Transfer Agent and Registrar |
CITIBANK, N.A. as Depositary |
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By: |
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By: |
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Authorized Signatory | Authorized Signatory |
The address of the Principal Office of the Depositary is 388 Greenwich Street, New York, New York 10013, U.S.A.
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[FORM OF REVERSE OF ADR]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(15) Dividends and Distributions in Cash, Shares, etc . (a) Cash Distribution: Upon the timely receipt by the Depositary of a notice from the Company that it intends to make a distribution of a cash dividend or other cash distribution, the Depositary shall establish an ADS Record Date upon the terms described in Section 4.9. Upon receipt of confirmation from the Custodian of receipt of any cash dividend or other cash distribution on any Deposited Securities, or upon receipt of proceeds from the sale of any Deposited Property held in respect of the ADSs under the terms of the Deposit Agreement, the Depositary will (i) if at the time of receipt thereof any amounts received in a Foreign Currency can, in the judgment of the Depositary (pursuant to Section 4.8 of the Deposit Agreement), be converted on a practicable basis into Dollars transferable to the United States, promptly convert or cause to be converted such cash dividend, distribution or proceeds into Dollars (on the terms described in Section 4.8 of the Deposit Agreement), (ii) if applicable and unless previously established, establish the ADS Record Date upon the terms described in Section 4.9 of the Deposit Agreement, and (iii) distribute promptly the amount thus received (net of (a) the applicable fees and charges of, and expenses incurred by, the Depositary and (b) taxes withheld) to the Holders entitled thereto as of the ADS Record Date in proportion to the number of ADSs held as of the ADS Record Date. The Depositary shall distribute only such amount, however, as can be distributed without attributing to any Holder a fraction of one cent, and any balance not so distributed shall be held by the Depositary (without liability for interest thereon) and shall be added to and become part of the next sum received by the Depositary for distribution to Holders of ADSs outstanding at the time of the next distribution. If the Company, the Custodian or the Depositary is required to withhold and does withhold from any cash dividend or other cash distribution in respect of any Deposited Securities, or from any cash proceeds from the sales of Deposited Property, an amount on account of taxes, duties or other governmental charges, the amount distributed to Holders on the ADSs shall be reduced accordingly. Such withheld amounts shall be forwarded by the Company, the Custodian or the Depositary to the relevant governmental authority. Evidence of payment thereof by the Company shall be forwarded by the Company to the Depositary upon request. The Depositary will hold any cash amounts it is unable to distribute in a non-interest bearing account for the benefit of the applicable Holders and Beneficial Owners of ADSs until the distribution can be effected or the funds that the Depositary holds must be escheated as unclaimed property in accordance with the laws of the relevant states of the United States. Notwithstanding anything contained in Section 4.1 of the Deposit Agreement to the contrary, in the event the Company fails to give the Depositary timely notice of the proposed distribution provided for above, the Depositary agrees to use commercially reasonable efforts to perform the actions contemplated in Section 4.1 of the Deposit Agreement, and the Company, the Holders and the Beneficial Owners acknowledge that the Depositary shall have no liability for the Depositarys failure to perform the actions contemplated in Section 4.1 of the Deposit Agreement where such notice has not been so timely given, other than its failure to use commercially reasonable efforts, as provided herein.
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(b) Share Distribution: Upon the timely receipt by the Depositary of a notice from the Company that it intends to make a distribution that consists of a dividend in, or free distribution of Shares, the Depositary shall establish the ADS Record Date upon the terms described in Section 4.9 of the Deposit Agreement. Upon receipt of confirmation from the Custodian of the receipt of the Shares so distributed by the Company, the Depositary shall either (i) subject to Section 5.9 of the Deposit Agreement, distribute to the Holders as of the ADS Record Date in proportion to the number of ADSs held as of the ADS Record Date, additional ADSs, which represent in the aggregate the number of Shares received as such dividend, or free distribution, subject to the other terms of the Deposit Agreement (including, without limitation, (a) the applicable fees and charges of, and expenses incurred by, the Depositary and (b) taxes), or (ii) if additional ADSs are not so distributed, take all actions necessary so that each ADS issued and outstanding after the ADS Record Date shall, to the extent permissible by law, thenceforth also represent rights and interests in the additional integral number of Shares distributed upon the Deposited Securities represented thereby (net of (a) the applicable fees and charges of, and expenses incurred by, the Depositary, and (b) taxes). In lieu of delivering fractional ADSs, the Depositary shall sell the number of Shares or ADSs, as the case may be, represented by the aggregate of such fractions and distribute the net proceeds upon the terms described in Section 4.1 of the Deposit Agreement.
In the event that the Depositary determines that any distribution in property (including Shares) is subject to any tax or other governmental charges which the Depositary is obligated to withhold, or, if the Company in the fulfillment of its obligations under Section 5.7 of the Deposit Agreement, has furnished an opinion of U.S. counsel determining that Shares must be registered under the Securities Act or other laws in order to be distributed to Holders (and no such registration statement has been declared effective), the Depositary may dispose of all or a portion of such property (including Shares and rights to subscribe therefor) in such amounts and in such manner, including by public or private sale, as the Depositary deems necessary and practicable, and the Depositary shall distribute the net proceeds of any such sale (after deduction of (a) taxes and (b) fees and charges of, and the expenses incurred by, the Depositary) to Holders entitled thereto upon the terms of Section 4.1 of the Deposit Agreement. The Depositary shall hold and/or distribute any unsold balance of such property in accordance with the provisions of the Deposit Agreement. Notwithstanding anything contained in Section 4.2 of the Deposit Agreement to the contrary, in the event the Company fails to give the Depositary timely notice of the proposed distribution provided for above, the Depositary agrees to use commercially reasonable efforts to perform the actions contemplated in Section 4.2 of the Deposit Agreement, and the Company, the Holders and the Beneficial Owners acknowledge that the Depositary shall have no liability for the Depositarys failure to perform the actions contemplated in Section 4.2 of the Deposit Agreement where such notice has not been so timely given, other than its failure to use commercially reasonable efforts, as provided herein.
(c) Elective Distributions in Cash or Shares: Upon the timely receipt of a notice indicating that the Company wishes an elective distribution in cash or Shares to be made available to Holders of ADSs upon the terms described in the Deposit Agreement, the Company and the Depositary shall determine in accordance with the Deposit Agreement whether such distribution is lawful and reasonably practicable. The Depositary shall make such elective distribution available to Holders only if (i) the Company shall have timely requested that the elective distribution be made available to Holders, (ii) the Depositary shall have determined that
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such distribution is reasonably practicable and (iii) the Depositary shall have received satisfactory documentation within the terms of Section 5.7 of the Deposit Agreement. If the above conditions are satisfied, the Depositary shall establish an ADS Record Date according to paragraph (16) and Section 4.9 of the Deposit Agreement and establish procedures to enable the Holder hereof to elect to receive the proposed distribution in cash or in additional ADSs. If a Holder elects to receive the distribution in cash, the distribution shall be made as in the case of a distribution in cash. If the Holder hereof elects to receive the distribution in additional ADSs, the distribution shall be made as in the case of a distribution in Shares upon the terms described in the Deposit Agreement. If such elective distribution is not reasonably practicable or if the Depositary did not receive satisfactory documentation set forth in the Deposit Agreement, the Depositary shall establish an ADS Record Date upon the terms of Section 4.9 of the Deposit Agreement and, to the extent permitted by law, distribute to Holders, on the basis of the same determination as is made in The Netherlands in respect of the Shares for which no election is made, either (x) cash or (y) additional ADSs representing such additional Shares, in each case, upon the terms described in the Deposit Agreement. Nothing herein or in the Deposit Agreement shall obligate the Depositary to make available to the Holder hereof a method to receive the elective distribution in Shares (rather than ADSs). There can be no assurance that the Holder hereof will be given the opportunity to receive elective distributions on the same terms and conditions as the holders of Shares. Notwithstanding anything contained in Section 4.3 of the Deposit Agreement to the contrary, in the event the Company fails to give the Depositary timely notice of the proposed distribution provided for above, the Depositary agrees to use commercially reasonable efforts to perform the actions contemplated in Section 4.3 of the Deposit Agreement, and the Company, the Holders and the Beneficial Owners acknowledge that the Depositary shall have no liability for the Depositarys failure to perform the actions contemplated in Section 4.3 of the Deposit Agreement where such notice has not been so timely given, other than its failure to use commercially reasonable efforts, as provided herein.
(d) Distribution of Rights to Purchase Additional ADSs: Upon the timely receipt by the Depositary of a notice indicating that the Company wishes rights to subscribe for additional Shares to be made available to Holders of ADSs, the Depositary upon consultation with the Company, shall determine, whether it is lawful and reasonably practicable to make such rights available to the Holders. The Depositary shall make such rights available to any Holders only if (i) the Company shall have timely requested that such rights be made available to Holders, (ii) the Depositary shall have received the documentation contemplated in Section 5.7 of the Deposit Agreement, and (iii) the Depositary shall have determined that such distribution of rights is reasonably practicable. If such conditions are not satisfied or if the Company requests that the rights not be made available to Holders of ADSs, the Depositary shall sell the rights as described below. In the event all conditions set forth above are satisfied, the Depositary shall establish an ADS Record Date (upon the terms described in Section 4.9 of the Deposit Agreement) and establish procedures (x) to distribute rights to purchase additional ADSs (by means of warrants or otherwise), (y) to enable the Holders to exercise such rights (upon payment of the subscription price and of the applicable (a) fees and charges of, and expenses incurred by, the Depositary and (b) taxes), and (z) to deliver ADSs upon the valid exercise of such rights. The Company shall assist the Depositary to the extent necessary in establishing such procedures. Nothing herein or in the Deposit Agreement shall obligate the Depositary to make available to the Holders a method to exercise rights to subscribe for Shares (rather than ADSs). If (i) the Company does not timely request the Depositary to make the rights available to Holders or requests that the
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rights not be made available to Holders, (ii) the Depositary fails to receive satisfactory documentation within the terms of Section 5,7 of the Deposit Agreement or determines it is not reasonably practicable to make the rights available to Holders, or (iii) any rights made available are not exercised and appear to be about to lapse, the Depositary shall determine whether it is lawful and reasonably practicable to sell such rights, in a riskless principal capacity, at such place and upon such terms (including public and private sale) as it may deem practicable. The Company shall assist the Depositary to the extent necessary to determine such legality and practicability. The Depositary shall, upon such sale, convert and distribute proceeds of such sale (net of applicable (a) fees and charges of, and expenses incurred by, the Depositary and (b) taxes) upon the terms hereof and of Section 4.1 of the Deposit Agreement. If the Depositary is unable to make any rights available to Holders upon the terms described in Section 4.4(a) of the Deposit Agreement or to arrange for the sale of the rights upon the terms described in Section 4.4(b) of the Deposit Agreement, the Depositary shall allow such rights to lapse. The Depositary shall not be responsible for (i) any failure to determine that it may be lawful or practicable to make such rights available to Holders in general or any Holders in particular, (ii) any foreign exchange exposure or loss incurred in connection with such sale or exercise, or (iii) the content of any materials forwarded to the Holders on behalf of the Company in connection with the rights distribution.
Notwithstanding anything herein or in Section 4.4 of the Deposit Agreement to the contrary, if registration (under the Securities Act or any other applicable law) of the rights or the securities to which any rights relate may be required in order for the Company to offer such rights or such securities to Holders and to sell the securities represented by such rights, the Depositary will not distribute such rights to the Holders (i) unless and until a registration statement under the Securities Act (or other applicable law) covering such offering is in effect or (ii) unless the Company furnishes the Depositary opinion(s) of counsel for the Company in the United States and counsel to the Company in any other applicable country in which rights would be distributed, in each case satisfactory to the Depositary, to the effect that the offering and sale of such securities to Holders and Beneficial Owners are exempt from, or do not require registration under, the provisions of the Securities Act or any other applicable laws. In the event that the Company, the Depositary or the Custodian shall be required to withhold and does withhold from any distribution of Deposited Property (including rights) an amount on account of taxes or other governmental charges, the amount distributed to the Holders of ADSs shall be reduced accordingly. In the event that the Depositary determines that any distribution of Deposited Property (including Shares and rights to subscribe therefor) is subject to any tax or other governmental charges which the Depositary is obligated to withhold, the Depositary may dispose of all or a portion of such Deposited Property (including Shares and rights to subscribe therefor) in such amounts and in such manner, including by public or private sale, as the Depositary deems necessary and practicable to pay any such taxes or charges.
There can be no assurance that Holders generally, or any Holder in particular, will be given the opportunity to receive or exercise rights on the same terms and conditions as the holders of Shares or be able to exercise such rights. Nothing herein or in the Deposit Agreement shall obligate the Company to file any registration statement in respect of any rights or Shares or other securities to be acquired upon the exercise of such rights.
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(e) Distributions other than Cash, Shares or Rights to Purchase Shares. Upon receipt of a notice indicating that the Company wishes property other than cash, Shares or rights to purchase additional Shares, to be made to Holders of ADSs, the Depositary shall determine whether such distribution to Holders is lawful and reasonably practicable. The Depositary shall not make such distribution unless (i) the Company shall have requested the Depositary to make such distribution to Holders, (ii) the Depositary shall have received the documentation contemplated in the Deposit Agreement, and (iii) the Depositary shall have determined that such distribution is reasonably practicable. Upon satisfaction of such conditions, the Depositary shall distribute the property so received to the Holders of record, as of the ADS Record Date, in proportion to the number of ADSs held by them respectively and in such manner as the Depositary may deem practicable for accomplishing such distribution (i) upon receipt of payment or net of the applicable fees and charges of, and expenses incurred by, the Depositary, and (ii) net of any taxes withheld. The Depositary may dispose of all or a portion of the property so distributed and deposited, in such amounts and in such manner (including public or private sale) as the Depositary may deem practicable or necessary to satisfy any taxes (including applicable interest and penalties) or other governmental charges applicable to the distribution.
If the conditions above are not satisfied, the Depositary shall sell or cause such property to be sold in a public or private sale, at such place or places and upon such terms as it may deem practicable and shall (i) cause the proceeds of such sale, if any, to be converted into Dollars and (ii) distribute the proceeds of such conversion received by the Depositary (net of applicable (a) fees and charges of, and expenses incurred by, the Depositary and (b) taxes) to the Holders as of the ADS Record Date upon the terms hereof and of the Deposit Agreement. If the Depositary is unable to sell such property, the Depositary may dispose of such property for the account of the Holders in any way it deems reasonably practicable under the circumstances.
Neither the Depositary nor the Company shall be responsible for (i) any failure to determine whether it is lawful or practicable to make the property described in Section 4.5 of the Deposit Agreement available to Holders in general or any Holders in particular, nor (ii) any foreign exchange exposure or loss incurred in connection with the sale or disposal of such property.
(16) Redemption . Upon timely receipt of notice from the Company that it intends to exercise its right of redemption in respect of any of the Deposited Securities, and satisfactory documentation, and upon determining that such proposed redemption is practicable, the Depositary shall (to the extent practicable) provide to each Holder a notice setting forth the Companys intention to exercise the redemption rights and any other particulars set forth in the Companys notice to the Depositary. The Depositary shall instruct the Custodian to present to the Company the Deposited Securities in respect of which redemption rights are being exercised against payment of the applicable redemption price. Upon receipt of confirmation from the Custodian that the redemption has taken place and that funds representing the redemption price have been received, the Depositary shall convert, transfer, and distribute the proceeds (net of applicable (a) fees and charges of, and the expenses incurred by, the Depositary, and (b) taxes), retire ADSs and cancel ADRs, if applicable, upon delivery of such ADSs by Holders thereof and the terms set forth in Sections 4.1 and 6.2 of the Deposit Agreement. If less than all outstanding Deposited Securities are redeemed, the ADSs to be retired will be selected by lot or on a pro rata basis, as may be determined by the Depositary. The redemption price per ADS shall be the
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dollar equivalent of the per share amount received by the Depositary (adjusted to reflect the ADS(s)-to-Share(s) ratio) upon the redemption of the Deposited Securities represented by ADSs (subject to the terms of Section 4.8 of the Deposit Agreement and the applicable fees and charges of, and expenses incurred by, the Depositary, and taxes) multiplied by the number of Deposited Securities represented by each ADS redeemed. Notwithstanding anything contained in Section 4.7 of the Deposit Agreement to the contrary, in the event the Company fails to give the Depositary timely notice of the proposed redemption provided for above, the Depositary agrees to use commercially reasonable efforts to perform the actions contemplated in Section 4.7 of the Deposit Agreement, and the Company, the Holders and the Beneficial Owners acknowledge that the Depositary shall have no liability for the Depositarys failure to perform the actions contemplated in Section 4.7 of the Deposit Agreement where such notice has not been so timely given, other than its failure to use commercially reasonable efforts, as provided herein.
(17) Fixing of ADS Record Date . Whenever the Depositary shall receive notice of the fixing of a record date by the Company for the determination of holders of Deposited Securities entitled to receive any distribution (whether in cash, Shares, rights or other distribution), or whenever for any reason the Depositary causes a change in the number of Shares that are represented by each ADS, or whenever the Depositary shall receive notice of any meeting of, or solicitation of consents or proxies of, holders of Shares or other Deposited Securities, or whenever the Depositary shall find it necessary or convenient in connection with the giving of any notice, solicitation of any consent or any other matter, the Depositary shall fix a record date (the ADS Record Date ) for the determination of the Holders of ADS(s) who shall be entitled to receive such distribution, to give instructions for the exercise of voting rights at any such meeting, to give or withhold such consent, to receive such notice or solicitation or to otherwise take action, or to exercise the rights of Holders with respect to such changed number of Shares represented by each ADS. Subject to applicable law, the terms and conditions of this ADR and Sections 4.1 through 4.8 of the Deposit Agreement, only the Holders of ADSs at the close of business in New York on such ADS Record Date shall be entitled to receive such distribution, to give such voting instructions, to receive such notice or solicitation, or otherwise take action.
(18) Voting of Deposited Securities . (a) ADS Voting Instructions . As soon as practicable after receipt of notice of (i) any meeting at which the holders of Deposited Securities are entitled to vote, or (ii) solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Companys expense and provided no U.S. legal prohibitions exist, distribute to Holders of record as of the ADS Record Date a notice which shall contain: (a) such information as is contained in such notice of meeting, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Articles of Association of the Company and the provisions of, or governing, the Deposited Securities (which provisions, if any, shall have been summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holders ADSs, and (c) a brief statement
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addressing the manner in which such instructions may be given (including an indication that instructions may be deemed to have been given in accordance with the last sentence of (b) below if no instructions are received by the Depositary prior to the deadline set for such purposes to the Depositary to give a discretionary proxy to a person designated by the Company). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities.
Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (i.e., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials).
Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, and the provisions of Articles of Association of the Company and the provisions of, or governing, the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holders ADSs in accordance with such voting instructions.
Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders.
(b) Discretionary Proxy to Management . The Depositary agrees not to, and shall take reasonable steps to ensure that the Custodian and each of its nominees, if any, do not, vote the Deposited Securities represented by ADSs other than in accordance with the instructions of Holders as of the ADS Record Date or as provided below. The Depositary shall not exercise any voting discretion over the Deposited Securities. If (x) the Depositary does not receive instructions from a Holder as of the ADS Record Date on or before the date established by the Depositary for such purpose, or (y) the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holders ADSs, such Holder shall be deemed, and the Depositary shall deem such Holder, to have instructed the Depositary to give a discretionary proxy to a person designated by the Company to vote the Deposited Securities; provided, however, that no such discretionary proxy shall be given by the Depositary with respect to any matter to be voted upon as to which the Company informs the Depositary that (i) the Company does not wish such proxy to be given, (ii) substantial opposition exists, or (iii) the rights of holders of Deposited Securities may be adversely affected.
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(c) Legal Prohibitions . Notwithstanding anything contained in the Deposit Agreement or any ADR to the contrary, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary, if requested by the Depositary, an opinion of U.S. counsel addressing any actions to be taken.
There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.
(19) Changes Affecting Deposited Securities . Upon any change in nominal or par value, split-up, cancellation, consolidation or any other reclassification of Deposited Securities, or upon any recapitalization, reorganization, merger, consolidation or sale of assets affecting the Company or to which it is a party, any property which shall be received by the Depositary or the Custodian in exchange for, or in conversion of, or replacement of, or otherwise in respect of, such Deposited Securities shall, to the extent permitted by law, be treated as new Deposited Property under the Deposit Agreement, and this ADR shall, subject to the provisions of the Deposit Agreement, this ADR evidencing such ADSs and applicable law, represent the right to receive such additional or replacement Deposited Property. In giving effect to such change, split-up, cancellation, consolidation or other reclassification of Deposited Securities, recapitalization, reorganization, merger, consolidation or sale of assets, the Depositary may, with the Companys approval, and shall, if the Company shall so request, subject to the terms of the Deposit Agreement and receipt of an opinion of counsel to the Company satisfactory to the Depositary that such actions are not in violation of any applicable laws or regulations, (i) issue and deliver additional ADSs as in the case of a stock dividend on the Shares, (ii) amend the Deposit Agreement and the applicable ADRs, (iii) amend the applicable Registration Statement(s) on Form F-6 as filed with the Commission in respect of the ADSs, (iv) call for the surrender of outstanding ADRs to be exchanged for new ADRs, and (v) take such other actions as are appropriate to reflect the transaction with respect to the ADSs. The Company agrees to, jointly with the Depositary, amend the Registration Statement on Form F-6 as filed with the Commission to permit the issuance of such new form of ADRs. Notwithstanding the foregoing, in the event that any Deposited Property so received may not be lawfully distributed to some or all Holders, the Depositary may, with the Companys approval, and shall, if the Company requests, subject to receipt of an opinion of Companys counsel satisfactory to the Depositary that such action is not in violation of any applicable laws or regulations, sell such Deposited Property at public or private sale, at such place or places and upon such terms as it may deem proper and may allocate the net proceeds of such sales (net of (a) fees and charges of, and expenses incurred by, the Depositary and (b) taxes) for the account of the Holders otherwise entitled to such Deposited Property upon an averaged or other practicable basis without regard to any distinctions among such Holders and distribute the net proceeds so allocated to the extent practicable as in the case of a distribution received in cash pursuant to Section 4.1 of the Deposit Agreement. The Depositary shall not be responsible for (i) any failure to determine that it may
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be lawful or practicable to make such Deposited Property available to Holders in general or to any Holder in particular, (ii) any foreign exchange exposure or loss incurred in connection with such sale, or (iii) any liability to the purchaser of such Deposited Property.
(20) Exoneration . Neither the Depositary nor the Company shall be obligated to do or perform any act which is inconsistent with the provisions of the Deposit Agreement or incur any liability (i) if the Depositary or the Company shall be prevented or forbidden from, or delayed in, doing or performing any act or thing required by the terms of the Deposit Agreement and this ADR, by reason of any provision of any present or future law or regulation of the United States, The Netherlands or any other country, or of any other governmental authority or regulatory authority or stock exchange, or on account of the possible criminal or civil penalties or restraint, or by reason of any provision, present or future, of the Articles of Association of the Company or any provision of or governing any Deposited Securities, or by reason of any act of God or war or other circumstances beyond its control (including, without limitation, nationalization, expropriation, currency restrictions, work stoppage, strikes, civil unrest, acts of terrorism, revolutions, rebellions, explosions and computer failure), (ii) by reason of any exercise of, or failure to exercise, any discretion provided for in the Deposit Agreement or in the Articles of Association of the Company or provisions of or governing Deposited Securities, (iii) for any action or inaction in reliance upon the advice of or information from legal counsel, accountants, any person presenting Shares for deposit, any Holder, any Beneficial Owner or authorized representative thereof, or any other person believed by it in good faith to be competent to give such advice or information, (iv) for the inability by a Holder or Beneficial Owner to benefit from any distribution, offering, right or other benefit which is made available to holders of Deposited Securities but is not, under the terms of the Deposit Agreement, made available to Holders of ADSs, or (v) for any consequential or punitive damages (including lost profits) for any breach of the terms of the Deposit Agreement. The Depositary, its controlling persons, its agents, any Custodian and the Company, its controlling persons and its agents may rely and shall be protected in acting upon any written notice, request or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. No disclaimer of liability under the Securities Act is intended by any provision of the Deposit Agreement or this ADR.
(21) Standard of Care . The Company and the Depositary assume no obligation and shall not be subject to any liability under the Deposit Agreement or this ADR to any Holder(s) or Beneficial Owner(s), except that the Company and the Depositary agree to perform their respective obligations specifically set forth in the Deposit Agreement or this ADR without negligence or bad faith. Without limitation of the foregoing, neither the Depositary, nor the Company, nor any of their respective controlling persons, or agents, shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of any Deposited Property or in respect of the ADSs, which in its opinion may involve it in expense or liability, unless indemnity satisfactory to it against all expense (including fees and disbursements of counsel) and liability be furnished as often as may be required (and no Custodian shall be under any obligation whatsoever with respect to such proceedings, the responsibility of the Custodian being solely to the Depositary).
The Depositary and its agents shall not be liable for any failure to carry out any instructions to vote any of the Deposited Securities, or for the manner in which any vote is cast
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or the effect of any vote, provided that any such action or omission is in good faith and in accordance with the terms of the Deposit Agreement. The Depositary shall not incur any liability for any failure to determine that any distribution or action may be lawful or reasonably practicable, for the content of any information submitted to it by the Company for distribution to the Holders or for any inaccuracy of any translation thereof, for any investment risk associated with acquiring an interest in the Deposited Property, for the validity or worth of the Deposited Property or for any tax consequences that may result from the ownership of ADSs, Shares or other Deposited Property, for the credit-worthiness of any third party, for allowing any rights to lapse upon the terms of the Deposit Agreement, for the failure or timeliness of any notice from the Company, or for any action of or failure to act by, or any information provided or not provided by, DTC or any DTC Participant.
The Depositary shall not be liable for any acts or omissions made by a successor depositary whether in connection with a previous act or omission of the Depositary or in connection with any matter arising wholly after the removal or resignation of the Depositary, provided that in connection with the issue out of which such potential liability arises the Depositary performed its obligations without negligence or bad faith while it acted as Depositary.
The Depositary shall not be liable for any acts or omissions made by a predecessor depositary whether in connection with an act or omission of the Depositary or in connection with any matter arising wholly prior to the appointment of the Depositary or after the removal or resignation of the Depositary, provided that in connection with the issue out of which such potential liability arises the Depositary performed its obligations without negligence or bad faith while it acted as Depositary.
(22) Resignation and Removal of the Depositary; Appointment of Successor Depositary . The Depositary may at any time resign as Depositary under the Deposit Agreement by written notice of resignation delivered to the Company, such resignation to be effective on the earlier of (i) the 90th day after delivery thereof to the Company (whereupon the Depositary shall be entitled to take the actions contemplated in Section 6.2 of the Deposit Agreement), or (ii) the appointment by the Company of a successor depositary and its acceptance of such appointment as provided in the Deposit Agreement. The Depositary may at any time be removed by the Company by written notice of such removal, which removal shall be effective on the later of (i) the 90th day after delivery thereof to the Depositary (whereupon the Depositary shall be entitled to take the actions contemplated in Section 6.2 of the Deposit Agreement), or (ii) upon the appointment by the Company of a successor depositary and its acceptance of such appointment as provided in the Deposit Agreement. In case at any time the Depositary acting hereunder shall resign or be removed, the Company shall use its best efforts to appoint a successor depositary, which shall be a bank or trust company having an office in the Borough of Manhattan, the City of New York. Every successor depositary shall be required by the Company to execute and deliver to its predecessor and to the Company an instrument in writing accepting its appointment hereunder, and thereupon such successor depositary, without any further act or deed (except as required by applicable law), shall become fully vested with all the rights, powers, duties and obligations of its predecessor (other than as contemplated in Sections 5.8 and 5.9 of the Deposit Agreement). The predecessor depositary, upon payment of all sums due it and on the written request of the Company shall (i) execute and deliver an instrument transferring to
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such successor all rights and powers of such predecessor hereunder (other than as contemplated in Sections 5.8 and 5.9 of the Deposit Agreement), (ii) duly assign, transfer and deliver all of the Depositarys right, title and interest to the Deposited Property to such successor, and (iii) deliver to such successor a list of the Holders of all outstanding ADSs and such other information relating to ADSs and Holders thereof as the successor may reasonably request. Any such successor depositary shall promptly provide notice of its appointment to such Holders. Any entity into or with which the Depositary may be merged or consolidated shall be the successor of the Depositary without the execution or filing of any document or any further act.
(23) Amendment/Supplement . Subject to the terms and conditions of this paragraph 23, Section 6.1 of the Deposit Agreement and applicable law, this ADR and any provisions of the Deposit Agreement may at any time and from time to time be amended or supplemented by written agreement between the Company and the Depositary in any respect which they may deem necessary or desirable without the prior written consent of the Holders or Beneficial Owners. Any amendment or supplement which shall impose or increase any fees or charges (other than charges in connection with foreign exchange control regulations, and taxes and other governmental charges, delivery and other such expenses), or which shall otherwise materially prejudice any substantial existing right of Holders or Beneficial Owners, shall not, however, become effective as to outstanding ADSs until the expiration of thirty (30) days after notice of such amendment or supplement shall have been given to the Holders of outstanding ADSs. Notice of any amendment to the Deposit Agreement or any ADR shall not need to describe in detail the specific amendments effectuated thereby, and failure to describe the specific amendments in any such notice shall not render such notice invalid, provided , however , that, in each such case, the notice given to the Holders identifies a means for Holders and Beneficial Owners to retrieve or receive the text of such amendment ( i.e. , upon retrieval from the Commissions, the Depositarys or the Companys website or upon request from the Depositary). The parties hereto agree that any amendments or supplements which (i) are reasonably necessary (as agreed by the Company and the Depositary) in order for (a) the ADSs to be registered on Form F-6 under the Securities Act or (b) the ADSs to be settled solely in electronic book-entry form and (ii) do not in either such case impose or increase any fees or charges to be borne by Holders, shall be deemed not to materially prejudice any substantial rights of Holders or Beneficial Owners. Every Holder and Beneficial Owner at the time any amendment or supplement so becomes effective shall be deemed, by continuing to hold such ADSs, to consent and agree to such amendment or supplement and to be bound by the Deposit Agreement and this ADR as amended or supplemented thereby. In no event shall any amendment or supplement impair the right of the Holder to surrender such ADS and receive therefor the Deposited Securities represented thereby, except in order to comply with mandatory provisions of applicable law. Notwithstanding the foregoing, if any governmental body should adopt new laws, rules or regulations which would require an amendment of, or supplement to, the Deposit Agreement to ensure compliance therewith, the Company and the Depositary may amend or supplement the Deposit Agreement and this ADR at any time in accordance with such changed laws, rules or regulations. Such amendment or supplement to the Deposit Agreement and this ADR in such circumstances may become effective before a notice of such amendment or supplement is given to Holders or within any other period of time as required for compliance with such laws, rules or regulations.
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(24) Termination . The Depositary shall, at any time at the written direction of the Company, terminate the Deposit Agreement by distributing notice of such termination to the Holders of all ADSs then outstanding at least thirty (30) days prior to the date fixed in such notice for such termination. If ninety (90) days shall have expired after (i) the Depositary shall have delivered to the Company a written notice of its election to resign, or (ii) the Company shall have delivered to the Depositary a written notice of the removal of the Depositary, and, in either case, a successor depositary shall not have been appointed and accepted its appointment as provided in Section 5.4 of the Deposit Agreement, the Depositary may terminate the Deposit Agreement by distributing notice of such termination to the Holders of all ADSs then outstanding at least thirty (30) days prior to the date fixed in such notice for such termination. The date so fixed for termination of the Deposit Agreement in any termination notice so distributed by the Depositary to the Holders of ADSs is referred to as the Termination Date . Until the Termination Date, the Depositary shall continue to perform all of its obligations under the Deposit Agreement, and the Holders and Beneficial Owners will be entitled to all of their rights under the Deposit Agreement. If any ADSs shall remain outstanding after the Termination Date, the Registrar and the Depositary shall not, after the Termination Date, have any obligation to perform any further acts under the Deposit Agreement, except that the Depositary shall, subject, in each case, to the terms and conditions of the Deposit Agreement, continue to (i) collect dividends and other distributions pertaining to Deposited Securities, (ii) sell Deposited Property received in respect of Deposited Securities, (iii) deliver Deposited Securities, together with any dividends or other distributions received with respect thereto and the net proceeds of the sale of any other Deposited Property, in exchange for ADSs surrendered to the Depositary (after deducting, or charging, as the case may be, in each case, the fees and charges of, and expenses incurred by, the Depositary, and all applicable taxes or governmental charges for the account of the Holders and Beneficial Owners, in each case upon the terms set forth in Section 5.9 of the Deposit Agreement), and (iv) take such actions as may be required under applicable law in connection with its role as Depositary under the Deposit Agreement. At any time after the Termination Date, the Depositary may sell the Deposited Property then held under the Deposit Agreement and shall after such sale hold un-invested the net proceeds of such sale, together with any other cash then held by it under the Deposit Agreement, in an un-segregated account and without liability for interest, for the pro rata benefit of the Holders whose ADSs have not theretofore been surrendered. After making such sale, the Depositary shall be discharged from all obligations under the Deposit Agreement except (i) to account for such net proceeds and other cash (after deducting, or charging, as the case may be, in each case, the fees and charges of, and expenses incurred by, the Depositary, and all applicable taxes or governmental charges for the account of the Holders and Beneficial Owners, in each case upon the terms set forth in Section 5.9 of the Deposit Agreement), and (ii) as may be required at law in connection with the termination of the Deposit Agreement. After the Termination Date, the Company shall be discharged from all obligations under the Deposit Agreement, except for its obligations to the Depositary under Sections 5.8, 5.9 and 7.6 of the Deposit Agreement. The obligations under the terms of the Deposit Agreement of Holders and Beneficial Owners of ADSs outstanding as of the Termination Date shall survive the Termination Date and shall be discharged only when the applicable ADSs are presented by their Holders to the Depositary for cancellation under the terms of the Deposit Agreement.
(25) Compliance with U.S. Securities Laws . Notwithstanding any provisions in this ADR or the Deposit Agreement to the contrary, the withdrawal or delivery of Deposited
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Securities will not be suspended by the Company or the Depositary except as would be permitted by Instruction I.A.(1) of the General Instructions to the Form F-6 Registration Statement, as amended from time to time, under the Securities Act.
(26) Certain Rights of the Depositary; Limitations . Subject to the further terms and provisions of this paragraph (26) and Section 5.10 of the Deposit Agreement, the Depositary, its Affiliates and their agents, on their own behalf, may own and deal in any class of securities of the Company and its Affiliates and in ADSs. In its capacity as Depositary, the Depositary shall not lend Shares or ADSs; provided , however , that the Depositary may (i) issue ADSs prior to the receipt of Shares pursuant to Section 2.3 of the Deposit Agreement and (ii) deliver Shares prior to the receipt of ADSs for withdrawal of Deposited Securities pursuant to Section 2.7 of the Deposit Agreement, including ADSs which were issued under (i) above but for which Shares may not have been received (each such transaction a Pre-Release Transaction ). The Depositary may receive ADSs in lieu of Shares under (i) above and receive Shares in lieu of ADSs under (ii) above. Each such Pre-Release Transaction will be (a) subject to a written agreement whereby the person or entity (the Applicant ) to whom ADSs or Shares are to be delivered (w) represents that at the time of the Pre-Release Transaction the Applicant or its customer owns the Shares or ADSs that are to be delivered by the Applicant under such Pre-Release Transaction, (x) agrees to indicate the Depositary as owner of such Shares or ADSs in its records and to hold such Shares or ADSs in trust for the Depositary until such Shares or ADSs are delivered to the Depositary or the Custodian, (y) unconditionally guarantees to deliver to the Depositary or the Custodian, as applicable, such Shares or ADSs and (z) agrees to any additional restrictions or requirements that the Depositary deems appropriate, (b) at all times fully collateralized with cash, U.S. government securities or such other collateral as the Depositary deems appropriate, (c) terminable by the Depositary on not more than five (5) business days notice and (d) subject to such further indemnities and credit regulations as the Depositary deems appropriate. The Depositary will normally limit the number of (x) ADSs involved in such Pre-Release Transactions at any one time to thirty percent (30%) of the ADSs outstanding (without giving effect to ADSs outstanding under (i) above) and (y) the number of Shares involved in such Pre-Release Transactions to thirty percent (30%) of the number of Shares deposited hereunder, respectively, provided, however, that the Depositary reserves the right to change or disregard such limit from time to time as it deems appropriate. The Depositary may also set limits with respect to the number of ADSs and Shares involved in Pre-Release Transactions with any one person on a case-by-case basis as it deems appropriate. The Depositary may retain for its own account any compensation received by it in conjunction with the foregoing. Collateral provided pursuant to (b) above, but not the earnings thereon, shall be held for the benefit of the Holders (other than the Applicant).
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(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and transfer(s) unto whose taxpayer identification number is and whose address including postal zip code is , the within ADR and all rights thereunder, hereby irrevocably constituting and appointing attorney-in-fact to transfer said ADR on the books of the Depositary with full power of substitution in the premises.
Dated: | ||||||
By: |
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Name: | ||||||
Title: | ||||||
NOTICE: The signature of the Holder to this assignment must correspond with the name as written upon the face of the within instrument in every particular, without alteration or enlargement or any change whatsoever. |
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If the endorsement be executed by an attorney, executor, administrator, trustee or guardian, the person executing the endorsement must give his/her full title in such capacity and proper evidence of authority to act in such capacity, if not on file with the Depositary, must be forwarded with this ADR. |
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SIGNATURE GUARANTEED |
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All endorsements or assignments of ADRs must be guaranteed by a member of a Medallion Signature Program approved by the Securities Transfer Association, Inc. |
Legends
[The ADRs issued in respect of Partial Entitlement American Depositary Shares shall bear the following legend on the face of the ADR: This ADR evidences ADSs representing partial entitlement ordinary of Reed Elsevier N.V. and as such do not entitle the holders thereof to the same per-share entitlement as other ordinary Shares (which are full entitlement ordinary Shares) issued and outstanding at such time. The ADSs represented by this ADR shall entitle holders to distributions and entitlements identical to other ADSs when the ordinary Shares represented by such ADSs become full entitlement ordinary Shares.]
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EXHIBIT B
FEE SCHEDULE
ADS FEES AND RELATED CHARGES
All capitalized terms used but not otherwise defined herein shall have the meaning given to such terms in the Deposit Agreement.
I. | ADS Fees |
The following ADS fees are payable under the terms of the Deposit Agreement:
Service |
Rate |
By Whom Paid |
||
(1) Issuance of ADSs upon deposit of Shares (excluding issuances as a result of distributions described in paragraph (4) below). | Up to U.S. $5.00 per 100 ADSs (or fraction thereof) issued. | Person depositing Shares or person receiving ADSs. | ||
(2) Delivery of Deposited Securities against surrender of ADSs. | Up to U.S. $5.00 per 100 ADSs (or fraction thereof) surrendered. | Person surrendering ADSs for the purpose of withdrawal of Deposited Securities or person to whom Deposited Securities are delivered. | ||
(3) Distribution of cash dividends or other cash distributions ( i.e. , sale of rights and other entitlements). | Up to U.S. $5.00 per 100 ADSs (or fraction thereof) held. | Person to whom distribution is made. | ||
(4) Distribution of ADSs pursuant to (i) stock dividends or other free stock distributions, or (ii) exercise of rights to purchase additional ADSs. | Up to U.S. $5.00 per 100 ADSs (or fraction thereof) held. | Person to whom distribution is made. | ||
(5) Distribution of securities other than ADSs or rights to purchase additional ADSs ( i.e. , spin-off shares). | Up to U.S. $5.00 per 100 ADSs (or fraction thereof) held. | Person to whom distribution is made. |
B-1
Service |
Rate |
By Whom Paid |
||
6) ADS Services. | Up to U.S. $5.00 per 100 ADSs (or fraction thereof) held on the applicable record date(s) established by the Depositary. | Person holding ADSs on the applicable record date(s) established by the Depositary. |
II. | Charges |
Holders, Beneficial Owners, persons depositing Shares and persons surrendering ADSs for cancellation and for the purpose of withdrawing Deposited Securities shall be responsible for the following ADS charges under the terms of the Deposit Agreement:
(i) | taxes (including applicable interest and penalties) and other governmental charges; |
(ii) | such registration fees as may from time to time be in effect for the registration of Shares or other Deposited Securities on the share register and applicable to transfers of Shares or other Deposited Securities to or from the name of the Custodian, the Depositary or any nominees upon the making of deposits and withdrawals, respectively; |
(iii) | such cable, telex and facsimile transmission and delivery expenses as are expressly provided in the Deposit Agreement to be at the expense of the person depositing Shares or withdrawing Deposited Securities or of the Holders and Beneficial Owners of ADSs; |
(iv) | the expenses and charges incurred by the Depositary in the conversion of foreign currency; |
(v) | such fees and expenses as are incurred by the Depositary in connection with compliance with exchange control regulations and other regulatory requirements applicable to Shares, Deposited Securities, ADSs and ADRs; and |
(vi) | the fees and expenses incurred by the Depositary, the Custodian, or any nominee in connection with the servicing or delivery of Deposited Property. |
B-2
Exhibit 4.12
DECEMBER 2013
REED ELSEVIER GROUP PLC
NICHOLAS LUFF
SERVICE AGREEMENT
THIS AGREEMENT is made on 6 January 2014
BETWEEN
(1) | REED ELSEVIER GROUP PLC a company which has its registered office at 1-3 Strand, London, WC2N 5JR (the Company ); and |
(2) | NICHOLAS LUFF of 1-3 Strand, London WC2N 5JR (the Employee ). |
IT IS AGREED as follows:
1. | DEFINITIONS |
In this Agreement the following expressions have the following meanings:
Board means the board of directors of the Company or a duly constituted committee of the board of directors;
Confidential Information means any confidential information relating to the Company, or any Group Company received or acquired by the Employee from the Company or any Group Company in pursuance of his duties under this Agreement;
Effective Date means such date as may be agreed between the parties, being no later than three weeks after your employment with your prior employer, Centrica pic, ceases (and in any event no later than 15 December 2014);
Employment means the Employees employment in accordance with the terms and conditions of this Agreement;
Group Company means PLC, NV (each as defined in clause 2.1), Elsevier Reed Finance BV, the Company, any holding company, any associated company and any subsidiary of any of the above companies, and Group shall be construed accordingly;
Long-Term Incentive Plans means such share or share-related plans as the Company has in place from time to time pursuant to which performance is measured or vesting occurs over more than one financial year of the Group, including without limitation the Reed Elsevier Group pic Executive Share Option Scheme 2013, the Reed Elsevier Group pic Long-Term Incentive Plan 2013, the Reed Elsevier Group pic Bonus Investment Plan 2010 and any new multi-year plans;
Recognised Investment Exchange has the meaning given to it by section 285 of the Financial Services and Markets Act 2000;
Remuneration Committee means the remuneration committee of the board of directors of the Company;
Shares means an ordinary share in PLC and/or an ordinary share in NV or shares representing those shares following any capital reorganisation;
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Side-letter means the side-letter between the Company and the Employee, dated on the same date as this Agreement, setting out the terms on which the Employee will participate in one-off incentive arrangements to compensate him for incentives with his prior employer that have been forfeited as a result of agreeing to become employed by the Company;
Termination Date means the date of termination of the Employment; and
Working Hours has the meaning given in clause 3.2.
2. | TERM AND JOB DESCRIPTION |
2.1 This letter sets out the terms and conditions of the Employees employment with the Company as Chief Financial Officer. The Employee shall be an executive director of the Company, of Reed Elsevier PLC ( PLC ) and of Reed Elsevier NV ( NV ).
2.2 The Employment will begin on the Effective Date. The Employee agrees to use his reasonable endeavours to secure an early release from his employment with his prior employer, Centrica plc. so that the Effective Date is as soon as reasonably practicable after the date of this Agreement.
2.3 The Employees period of continuous employment for statutory purposes will also begin on the Effective Date.
2.4 Subject to clause 20, the Employment will continue until terminated by either party giving to the other 12 months written notice.
3. | DUTIES |
3.1 During the Employment, the Employee will:
(a) | diligently perform all such duties and exercise all such powers as are lawfully and properly assigned to him from time to time by the Board commensurate with his position, whether such duties or powers relate to the Company or any other Group Company; |
(b) | use his best endeavours to ensure that the Group complies with the provisions of the Governing Agreement between PLC and NV dated 14 February 2012; |
(c) | comply with all applicable laws and regulations and with all directions lawfully and properly given to him by the Boards of the Company, PLC and NV and of their respective shareholders; |
(d) |
unless prevented by sickness, injury or other incapacity, devote the whole of his time, attention and abilities during his Working Hours to the business of the Company or any other Group Company for which he is required to perform duties; and |
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(e) | promptly provide the Board with all such information as it may require in connection with the business or affairs of the Company and of any other Group Company for which he is required to perform duties. |
3.2 The Employees Working Hours shall be such hours as are required in the proper performance of his duties.
3.3 The Employee agrees, in accordance with Regulation 5 of the Working Time Regulations 1998 (the Regulations), that the provisions of Regulation 4(1) do not apply to the Employee, and that the Employee shall give the Company three months notice in writing if he wishes Regulation 4(1) to apply to him.
3.4 The Employees normal place of work is the Companys principal UK office from time to time.
3.5 The Employee agrees to travel and work (both within and outside the United Kingdom) as may be required for the proper performance of his duties under the Employment.
4. | SALARY |
4.1 From the Effective Date, the Employees salary under the Employment is
£650,000 per annum (less any required deductions). Salaries are subject to annual review. The Employees first salary review following the Effective Date will be on or about 1 January 2015. No salary review will be undertaken after notice has been given by either party to terminate the Employment. The Company is under no obligation to increase the Employees salary following a salary review, but will not decrease it.
4.2 The Employees salary will accrue on a daily basis, and will be payable in arrears in equal monthly instalments.
4.3 The Employees salary will be inclusive of all fees and other remuneration to which he may be or become entitled as an officer of the Company or of any other Group Company.
4.4 The Employee agrees that, pursuant to Part II of the Employment Rights Act
1996, the Company has the right to deduct from his salary and/or bonus any amount owed to the Company or any Group Company by the Employee.
5. | BONUS |
5.1 The Employee shall be eligible to participate in the Companys Annual Incentive Plan applicable to senior executives (or such replacement bonus arrangements as may from time to time apply) subject to and in accordance with the rules governing such plan as approved by the Remuneration Committee, including the right of the Remuneration Committee to make adjustments to performance measures as it considers appropriate to take account of any factors that are relevant in the opinion of the Remuneration Committee. Unless determined otherwise by the Remuneration Committee, the Employees annual target bonus opportunity shall be
100% of salary paid by the Company to the Employee during the relevant year.
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5.2 For the avoidance of doubt, bonus entitlement in respect of 2014 will not be pro-rated to reflect the Employees actual service during the Companys financial year ending 31 December 2014. However, any bonus payable in respect of 2014 will be reduced on a pound for pound basis by the amount of any bonus paid in respect of 2014 (or any part of it) by his prior employer, Centrica plc.
5.3 Any entitlement of the Employee in respect of bonus on termination of the Employment shall be determined subject to and in accordance with the rules governing the Annual Incentive Plan and the discretion of the Remuneration Committee.
6. | EXPENSES |
The Company will reimburse (or procure the reimbursement of) all out-of-pocket expenses properly and reasonably incurred by the Employee in the course of his Employment subject to production of receipts or other appropriate evidence of payment.
7. | TAX RETURNS |
7.1 The Companys tax consultants (currently PricewaterhouseCoopers) will support the Employee, and the Company will reimburse him for reasonable (as determined from time to time by the Remuneration Committee) tax filing costs insofar as, and limited to the extent that, such filings relate directly to income received from the Employment. The Employee will however be responsible for meeting all tax and employee social security liabilities payable in respect of his remuneration, subject, where applicable, to the PAYE system.
7.2 The Employee acknowledges that any tax advisory services received by the Employee in accordance with this clause 7 may give rise to a taxable benefit, and the Employee will be liable for any tax arising on such benefit.
8. | CAR ALLOWANCE |
During the Employment, the Employee will be entitled to a car allowance of an amount stipulated in accordance with the Companys policy from time to time in force. At the Effective Date, the annual car allowance applicable to the Employee is £12,500 (less required deductions). For the avoidance of doubt, car allowance does not form part of the Employees salary and is non-pensionable.
9. | PENSION AND LIFE ASSURANCE |
9.1 The Employee shall not be eligible to participate in any pension schemes or plans provided to directors, senior executives or employees of any Group Company. In these circumstances and at the Remuneration Committees discretion, during the Employment the Company will pay the Employee a cash allowance equal to 30% of the Employees salary directly to the Employee, subject to such deductions as are
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Required by law (the Pensions Allowance ). The Pensions Allowance will be paid in arrears in equal monthly instalments. For the avoidance of doubt, the Pensions Allowance does not form part of the Employees salary.
9.2 During the Employment, the Employee will be covered for Life Assurance of 4 times salary at the date of death. Life Assurance is provided through an external insurer and is subject to medical evidence for cover in excess of the free cover limit of £1,250,000. The Employee will only be covered for full Life Assurance once the Reed Elsevier Pensions Office is notified that underwriting has been completed and the terms accepted. Until this process is completed, the Employee will be covered for a maximum of £1,250,000.
10. | MEDICAL INSURANCE |
During the Employment, at the Remuneration Committees discretion, the Company will pay for the benefit of the Employee, his partner and dependent children subscriptions to the Companys UK private medical expenses insurance arrangements on the scale determined by the Remuneration Committee to be appropriate.
11. | HOLIDAY |
11.1 The Employee is entitled to 25 working days paid holiday per calendar year during his Employment (plus bank and public holidays in England), to be taken at a time or times convenient to the Company. The right to paid holiday will accrue pro-rata during each calendar year of the Employment and, where the Employment starts part-way through a calendar year, the Employees holiday entitlement will be calculated on a pro-rata basis. Unused holiday may not be carried forward from one calendar year to another (unless agreed by the Companys Chief Executive Officer).
11.2 On termination of the Employment, the Employees entitlement to accrued holiday pay shall be calculated on a pro-rata basis (which calculation shall be made on the basis that each day of paid holiday is equivalent to 1/260 of the Employees salary). If the Employee has taken more working days paid holiday than his accrued entitlement, the Company is authorised to deduct the appropriate amount from his final salary instalment (which deduction shall be made on the basis that each day of paid holiday is equivalent to 1/260 of the Employees salary).
12. | LONG-TERM INCENTIVE PLANS |
Bonus Investment Plan
12.1 The Employee will be eligible to participate in the Reed Elsevier Group pic Bonus Investment Plan 2010 (the BIP ), subject to and in accordance with the rules of the BIP in force from time to time. The Employees maximum investment opportunity for 2014 will be an amount equal to 100% of his target bonus opportunity net of tax. The Employees eligibility to participate in future cycles of the BIP is contingent upon the discretionary approval of the Remuneration Committee.
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Long-Term Incentive Plan
12.2 The Employee will be eligible to participate in the Reed Elsevier Group plc. Long-Term Incentive Plan 2013 (the LTIP ), subject to and in accordance with the rules of the LTIP in force from time to time. The Employees award with respect to the 2014-2016 cycle of the LTIP will be in respect of PLC and NV Shares with a market value at the date of grant of the award equal to 200% of salary. The Employees eligibility to participate in future cycles of the LTIP is contingent upon the discretionary approval of the Remuneration Committee.
Share Option Plan
12.3 The Employee will be eligible to participate in the Reed Elsevier Group pic Executive Share Option Scheme 2013 (the ESOS ), subject to and in accordance with the rules of the ESOS in force from time to time. The Employees award with respect to the 2014-2016 cycle of the ESOS will be in respect of PLC and NV Shares with a market value at the date of grant of the award equal to 200% of salary. The Employees eligibility to participate in future cycles of the ESOS is contingent upon the discretionary approval of the Remuneration Committee.
12.4 The Employee acknowledges that his participation in any Long-Term Incentive Plan and his rights with respect to options or awards granted under any such plan, are governed by the terms of the relevant plan rules. The Employee further acknowledges that:
(i) | should he breach any of his obligations under clauses 22 or 23 of this Agreement, any gains realised by him from exercise or vesting of options or awards granted under any such Long-Term Incentive Plan may be subject to claw-back in accordance with the terms of the relevant plan rules; and |
(ii) | if his employment ends because of, for example, the Employees resignation (other than in circumstances of constructive dismissal or circumstances that the Remuneration Committee determines in its discretion to constitute retirement) or his summary termination pursuant to clause 20.2, any rights he might otherwise have had to any options or awards under any such Long-Term Incentive Plan may be subject to lapse or forfeiture in accordance with the terms of the relevant plan rules. |
12.5 The Employee will also participate in the one-off incentive arrangements to compensate him for forfeited entitlements as described in the Side-Letter, on the terms and conditions set out in the Side-Letter.
13. | SHAREHOLDING REQUIREMENT |
The Employee agrees that he will have acquired, by no later than 31 December 2016, and will maintain for the balance of the Employment, an aggregate holding of Shares (which for this purpose shall include American Depositary Shares representing NV Shares or PLC Shares) with a market value of not less than 200% of his salary from Time to time. The Employees shareholding requirement is subject to review by the Remuneration Committee from time to time.
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14. | SICKNESS AND OTHER INCAPACITY |
Subject to the Employees compliance with the Companys policy on notification and certification of periods of absence from work, the Employee will continue to be paid his full salary during any period of absence from work due to ill health, accident or other similar cause, up to a maximum of 180 days in aggregate in any period of 12 consecutive calendar months. Such payment will be inclusive of any statutory sick pay payable in accordance with applicable legislation in force at the time of absence. The Company may deduct from the Employees remuneration during any period of absence due to ill-health, accident or other similar cause the amount of any social security benefits he may be entitled to receive.
15. | OTHER INTERESTS |
15.1 Subject to clause 15.2, during the Employment the Employee will not (without the Chairmans prior written consent) be directly or indirectly engaged, interested or concerned in any business or occupation other than the businesses of the Group.
15.2 It is confirmed that at the date of this Agreement, consent has been given to the Employee in respect of the following business interests:
(a) | his non-executive directorship (including his role as audit committee chairman) with Lloyds Banking Group plc; |
(b) | his directorship of Manor House Hotel (Castle Combe) Limited (on the basis that he will not be required to attend more than two board meetings per year); and |
(c) | his interest of up to 25% in Clearwell Mobility Limited. |
15.3 Notwithstanding clause 15.1, the Employee may hold for investment purposes an interest (as defined by sections 820-825 Companies Act 2006) of up to 5 per cent in nominal value or (in the case of securities not having a nominal value) in number or class of securities in any class of securities listed on or dealt in a Recognised Investment Exchange.
16. | SHARE DEALING AND OTHER CODES OF CONDUCT |
16.1 The Employee will comply with all codes of conduct adopted from time to time by the Board and with all applicable rules and regulations of the UK Listing Authority and any other relevant regulatory bodies, including the Model Code on dealings in securities. The Employee has agreed with the Company that his partner, Lesley Turner, will be treated as his connected person for all relevant purposes, including the Disclosure and Transparency Rules and the Model Code on dealings in securities. The Employee accordingly agrees to notify the Company of any dealings in PLC or NV Shares conducted by Ms Turner (and, where required, seek any necessary consent or clearance for dealing).
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16.2 Without prejudice to the generality of clause 16.1, the Employee is bound by:
(a) | the Reed Elsevier Code for Securities Transactions; |
(b) | the Reed Elsevier Code of Ethics and Business Conduct; and |
(c) | the Company rules as they affect directors with regard to: |
(i) | air travel; |
(ii) | holidays and overseas visits; |
(iii) | loans to directors; |
(iv) | non-Executive directorships; |
(v) | the Press; |
(vi) | reimbursed expenses; and |
such other rules as shall from time to time apply to the Employee as a director or otherwise, provided that none of these rules will have the effect of extending the circumstances in which the Employment may be terminated with immediate effect without compensation.
16.3 The Employee is required to observe Reed Elsevier (UK) Limiteds rules, practices and policies as set out in the policy section of the PeopleHub website as amended from time to time.
17. | INTELLECTUAL PROPERTY |
It shall be part of the Employees normal duties or other duties specifically assigned to him (whether or not during normal working hours and whether or not performed at the Employees normal place of work) at all times to consider in what manner and by what new methods or devices the products, services, processes, equipment or systems of the Company with which he is concerned or for which he is responsible might be improved and might, as part of such duties, originate designs (whether registrable or not) or patentable work or other work in which copyright, database rights or trade mark rights (together Employee Works ) may subsist. Accordingly:
(a) | the Employee shall forthwith disclose full details of any Employee Works in confidence to the Company and shall regard himself in relation to any Employee Works as a trustee for the Company; |
(b) | all intellectual property rights in any Employee Works shall vest absolutely in the Company which shall be entitled, so far as the law permits, to the exclusive use thereof; |
(c) |
notwithstanding sub-clause 17(b) above, the Employee assigns to the Company all right, title and interest, present and future, anywhere in the world, in copyright and in any other intellectual property rights in respect of |
Page 8
all Employee Works written, originated, conceived or made by the Employee (except only those Employee Works written, originated, conceived or made by the Employee wholly outside his normal working hours hereunder and wholly unconnected with the Employment) during the continuance of the Employment ; |
(d) | the Employee hereby waives all moral rights as author under the Copyright Designs and Patents Act 1988 or any equivalent laws in respect of any Employee Works; and |
(e) | the Employee agrees and undertakes that at any time during or after the termination of the Employment he will execute such deeds or documents and do all such acts and things as the Company may deem necessary or desirable to substantiate its rights in respect of the matters referred to above including for the purpose of obtaining letters patent or other privileges in all such countries as the Company may require. |
18. | DISCIPLINARY AND GRIEVANCE PROCEDURES |
18.1 If the Employee is dissatisfied with any disciplinary decision taken in relation to him he may appeal in writing to the Chairman of the Board within 7 days of that decision. The Chairmans decision shall be final.
18.2 If the Employee has any grievance in relation to the Employment he may raise it in writing with the Board whose decision shall be final.
19. | TERMINATION |
19.1 Either party may terminate the Employment in accordance with clause 2.4.
19.2 The Company may terminate the Employment immediately and with no liability to make any further payment to the Employee (other than in respect of amounts accrued due at the date of termination) if the Employee:
(a) | commits any serious or persistent breach or non-observance of any provisions contained in this Agreement after (where the breach or non-observance in question is capable of cure) being provided with written notice and a reasonable opportunity to cure such breach or non-observance; |
(b) | is guilty of any serious misconduct or wilful neglect in the discharge of the Employees executive duties; |
(c) | is guilty of any act of dishonesty or any breach of his fiduciary duties as a Director of the Company, PLC or NV or of conduct which brings into disrepute or affects prejudicially the interests of the Group; |
(d) | is convicted of any criminal offence (other than an offence which in the reasonable opinion of the Board does not affect his position as a Director of the Company); |
Page 9
(e) | is declared bankrupt or makes any arrangement with or for the benefit of his creditors or has an administration order made against him under the County Courts Act 1984; or |
(f) | is disqualified from being a director in accordance with the provision of paragraph (a) of Article 80 of the Companys Articles of Association or is disqualified for any reason from being a director of PLC or NV. |
Following such termination, the Employee will not be entitled to any further payment under this Agreement, save in respect of salary for the period up to the date on which the Employment terminates.
19.3 The Company may also terminate the Employment by giving summary notice in writing to the Employee if (a) the Employee is unable properly and effectively to perform his duties under this Agreement by reason of ill health, accident or other similar cause for a period or periods aggregating not less than 180 days in any period of 12 consecutive calendar months or (b) the Employee is suffering from mental disorder and satisfies one of the relevant conditions specified in paragraph (c) of Article 80 of the Companys Articles of Association causing the ipso facto vacation of his directorship, in which case the Employee will be entitled to be paid by way of compensation for termination of employment a sum equal to 12 months salary at the rate in force at the time such notice is given, plus any unpaid bonus then due to the Employee for any completed prior year of service. In addition, the Employee will be entitled to payment of 12 months Pensions Allowance. The treatment of vested and unvested options and unvested shares shall be governed by the terms of the relevant plan or, where relevant, the Side-Letter.
19.4 On termination of the Employment for whatever reason (and whether m breach of contract or otherwise) the Employee will:
(a) | immediately return any property or other materials or equipment, belonging to or controlled by the Company or any member of the Group which is in the Employees possession or under either his control or the control of a third party over which he has control; |
(b) | immediately resign from any office he holds with the Company or any other Group Company (and from any related trusteeships) without any compensation for loss of office. Should the Employee fail to do so he hereby irrevocably authorises the Company to appoint some person in his name and on his behalf to sign any documents and do any thing to give effect to his resignation from office; and |
(c) | immediately pay to the Company or, as the case may be, any other Group Company all outstanding loans or other amounts due or owed to the Company or any Group Company. The Employee confirms that, should he fail to do so, the Company is to be treated as authorised to deduct from any amounts due or owed to the Employee by the Company (or any other Group Company) a sum equal to liquidated amounts due or owed by the Employee to the Company or any Group Company. |
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19.5 The Employee will not at any time after termination of the Employment represent himself as being in any way concerned with or interested in the business of, or employed by, the Company or any other Group Company.
20. | SUSPENSION AND GARDENING LEAVE |
20.1 Where notice of termination has been served by either the Employee or the Company, the Company shall be under no obligation to provide work for or assign any duties to the Employee for the whole or any part of the relevant notice period and may require him:
(a) | not to attend any premises of the Company or any other Group Company; and/or |
(b) | to resign with immediate effect from any offices he holds with the Company or any other Group Company (and any related trusteeships); and/or |
(c) | to refrain from business contact with any customers, clients or employees of the Company or any Group Company; and/or |
(d) | to take any holiday which has accrued under clause 11 during any period of suspension under this clause 20.1. |
The provisions of clause 15.1 shall remain in full force and effect during any period of suspension under this clause 20.1. The Employee will also continue to be bound by duties of good faith and fidelity to the Company during any period of suspension under this clause 20.1.
Any suspension under this clause 201.1 shall be on full salary and benefits.
20.2 The Company may suspend the Employee from the Employment during any period in which the Company is carrying out a disciplinary investigation into any alleged acts or defaults of the Employee. Such suspension shall be on full salary and benefits (save that the Employee shall not be entitled to earn or be paid any bonus during any period of suspension, unless he is reinstated following such period of suspension).
21. | RESTRAINT ON ACTIVITIES OF CHIEF FINANCIAL OFFICER AND CONFIDENTIALITY |
The Employee will keep secret and will not at any time (whether during the Employment or thereafter) use for his own or anothers advantage, or reveal to any person, firm, company or organisation and shall use his best endeavours to prevent the publication or disclosure of any Confidential Information concerning the business or affairs of the Company or any Group Company or any of its or their customers.
The restrictions in this clause shall not apply:
(a) | to any disclosure of information which is already m the public domain otherwise than by breach of this Agreement; |
Page 11
(b) | To any disclosure of information which was known to, or in the possession of, the Employee prior to his receipt of such information from the Company or any Group Company whenever so received; |
(c) | to any disclosure of information which has been conceived or generated by the Employee independently of any information or materials received or acquired by the Employee from the Company or any Group Company; |
(d) | to any disclosure or use authorised by the Board or required by the Employment or by any applicable laws or regulations, including, without limitation, to any disclosure required for patent purposes provided that the Employee promptly notifies the Company when any such disclosure requirement arises to enable the Company to take such action as it deems necessary, including, without limitation, to seek an appropriate protective order and/or make known to the appropriate government or regulatory authority or court the proprietary nature of the Confidential Information and make any applicable claim of confidentiality with respect hereto; |
(e) | so as to prevent the Employee from using his own personal skill, experience and knowledge in any business in which he may be lawfully engaged after the Employment is ended; or |
(f) | to prevent the Employee from making a protected disclosure within the meaning of s43A of the Employment Rights Act 1996. |
22. | POST-TERMINATION COVENANTS |
22.1 The Employee will not during the 12-month period following the Termination Date directly or indirectly, on his own behalf or on behalf of or in conjunction with any person or any firm, company, or other entity, set up, join, become employed by, be engaged in, or provide any advice or services to, any enterprise (including, without limitation, any corporation, partnership, proprietorship, or other venture) which competes with:
(i) | any business of any Group Company with which he has been actively involved at any time during the 12-month period immediately preceding the Termination Date, or about which he has obtained or knew confidential information at any time during the 12-month period immediately preceding the Termination Date; or |
(ii) | any business that any Group Company can reasonably demonstrate was, at the Termination Date, being considered, being researched, or under development by any Group Company at any time during the 12- month period immediately preceding the Termination date (but only if the Employee obtained or knew confidential information about any such business at any time during the 12-month period immediately preceding the Termination Date). |
22.2 The Employee agrees that the business of the Group is conducted nationwide and worldwide, that the geographic scope of the restriction set forth in clause 22.1 is
Page 12
Therefore the United Kingdom and all countries in which any of the Group Companies do business, and that this geographic scope is both reasonable and necessary to protect one or more Group Companies from unfair competition.
22.3 The provisions of clause 22.1 shall not, at any time following the Termination Date, prevent the Employee from holding for investment purposes an interest (as defined by sections 820-825 Companies Act 2006) of up to 5 per cent in nominal value or (in the case of securities not having a nominal value) in number or class of securities in any class of securities listed on or dealt in a Recognised Investment Exchange, provided that the company which issued the securities does not carry on a business which is similar to or competitive with any business for the time being carried on by any Group Company.
22.4 The Employee will not during the 12 month period following the Termination Date directly or indirectly, on his own behalf or on behalf of or in conjunction with any person or any firm, company, or other entity:
(i) | recruit, solicit, hire or entice away, or attempt to recruit, solicit, or entice away, any individual who was employed by the Company or any Group Company at any time during the 12-month period immediately preceding the Termination Date and with whom the Employee had contact or business dealings at any time during the course of his employment in the 12-month period immediately preceding the Termination Date; |
(ii) | induce or solicit, or attempt to induce or solicit, any customer, supplier, distributor, licensee, licensor, author or other contributor, or other business relation of the Company or any Group Company with whom the Employee had contact or about whom he obtained or knew confidential information at any time during the 12-month period immediately preceding the Termination Date, to cease doing business, in whole or in part, with the Company or any Group Company; or |
(iii) | interfere with the relationship between, on the one hand, the Company or any Group Company and, on the other hand, any customer, supplier, distributor, licensee, licensor, author or other contributor, or other business relation of the Company or any Group Company, with whom the Employee had contact or about whom he obtained or knew confidential information at any time during the 12-month period immediately preceding the Termination Date. |
22.5 The period during which the restrictions referred to in clauses 22.1 and 22.4 shall apply following the Termination Date shall be reduced by the amount of time during which, if at all, the Employee is on garden leave pursuant to clause 20.
22.6 The Employee acknowledges and agrees that:
(a) | the restrictions contained in this clause 22 are reasonable (including, without limitation, with respect to the duration of the restrictive covenants, the geographic area, and the interests being protected by the restrictions); and |
Page 13
(b) | the Company has valid interests to protect pursuant to this clause 22 and the restrictions set forth in this clause 22 are reasonable and necessary to protect those interests. |
22.7 Each of the restrictions in this clause is intended to be separate and severable. If any of the restrictions shall be held to be void but would be valid if part of their wording were deleted, such restriction shall apply with such deletion as may be necessary to make it valid or effective.
23. | CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999 |
A person who is not a party to this Agreement shall have no right under the Contracts
(Rights of Third Parties) Act 1999 to enforce any of its terms.
24. | MISCELLANEOUS |
24.1 This Agreement, together with any other documents referred to in this Agreement and the Side-Letter, constitute the entire agreement and understanding between the parties, and supersede all other agreements both oral and in writing between the Company and the Employee (other than those expressly referred to herein).
24.2 Any notice to be given under this Agreement to the Employee may be served by being handed to him personally or by being sent by recorded delivery first class post to him at his usual or last known address; and any notice to be given to the Company may be served by being left at or by being sent by recorded delivery first class post to its registered office for the time being. Any notice served by post shall be deemed to have been served at the expiration of 48 hours following the date of posting and in proving such service it shall be sufficient proof that the envelope containing the notice was properly addressed and posted as a prepaid letter by recorded delivery first class post.
24.3 Any reference in this Agreement to an Act of Parliament shall be deemed to include any statutory modification or re-enactment thereof.
24.4 This Agreement is governed by, and shall be construed in accordance with, the laws of England.
24.5 Any changes to this Agreement shall be evidenced in writing and signed by the Chairman of the Remuneration Committee.
24.6 During the Employment, the Employee will be fully indemnified by the Company and, in relation to services provided to them, by other companies in the Group, to the maximum extent permitted by law and to the extent provided by the Companys Articles of Association (as amended from time to time) and the by-laws of any other company in the Group in relation to services provided to it, and the Employee will be covered (subject to and in accordance with the terms of the relevant arrangements) under all applicable directors and officers insurance in effect from time to time.
Page 14
SIGNED as a DEED and DELIVERED by the EMPLOYEE |
/s/ NL Luff |
in the presence of: |
Witness signature: | /s/ EUGENIA DUNN | |||||||
Witness name: | EUGENIA DUNN | |||||||
Witness occupation: | SOLICITOR OF ENGLAND AND WALES |
SIGNED for and on behalf of the COMPANY |
)
) |
|||||||
Page 15
Exhibit 4.13
Private & Confidential
1-3 Strand
London
WC2N 5JR
6 January 2014
Dear Nick,
Additional Terms of Employment
1. I am writing to confirm the following terms that will apply in relation to your recruitment by Reed Elsevier Group pic (the Company ) as Chief Financial Officer of the Group. The terms will apply in addition to the terms of the contract of employment between you and the Company entered into on the same date as this letter (the Service Agreement ). Where a defined term is not defined in this letter, it will have the same meaning as is given to it by the Service Agreement.
2. The additional terms that will apply are as follows:
Compensation for Forfeited Entitlements
3. In addition to participation in regular incentive arrangements, you will also be entitled to the one-off awards specified in paragraphs 4 and 9 below to compensate you for forfeited entitlements from your current employer. These are designed to facilitate your recruitment by the Company and the share awards will be satisfied using shares purchased on the market.
One-off Multi-Year Incentives
4. You will be granted the following multi-year incentives:
(a) | A performance share award over shares with a value of 200% of base salary. This award will vest in HI 2015 subject to the performance measures and targets outlined in Part A of Schedule 1 to this letter. |
(b) | A performance share award over shares with a value of 200% of base salary. This award will vest in H1 2016 subject to the performance measures and targets outlined in Part B of Schedule 1 to this letter. |
5. If, after the date of this letter, any long term incentives granted to you by Centrica plc at any time are awarded, vest or are preserved (other than you being permitted to retain your deferred shares, which will be dealt with in accordance with paragraph 9 below), then the Remuneration Committee will reduce the quantum of the performance share awards granted pursuant to paragraph 4 above to reflect the value of the Centrica plc long term incentives which are awarded, vest or are preserved (as applicable) on such basis as the Remuneration
Reed Elsevier Group pic |
1-3 Strand London WC2NSJR |
Telephone +44 (0)20 7930 7077 Fax +44 (0)20 7166 5799 www.reedelsevier.com |
Registered Office 1-3 Strand, London WC2N 5JR Registered in England number 2746616 |
Committee may reasonably determine. If the value of the One-off Multi-Year Incentives is insufficient for these purposes then the Remuneration Committee may reduce the value of the other long-term incentives to be granted to you in 2014.
6. If you resign or are dismissed under clause 19.2 of the Service Agreement or for any other reason justifying summary dismissal (a For Cause Reason ), these awards will lapse immediately (unless your resignation is in response to a repudiatory breach of contract).
7. If the Company terminates your employment for any reason other than (a) a For Cause Reason or (b) for injury, disability, ill-health, death or redundancy, then your award will be preserved until the original vesting date subject to the achievement of the performance targets. Where your employment is terminated for a reason falling within (b) above, your awards will be treated as if rule 8.2 of the Reed Elsevier Group plc Long-Term Incentive Plan 2013 applied to them.
8. These grants will be made on or shortly following the Effective Date (and by reference to the applicable share prices at that date) unless there are dealing restrictions in place at that time which would prohibit the grant in which case they will be made as soon as practicable once those dealing restrictions lift. It is Reed Elseviers intention that the value of each of these awards shall be split equally between Reed Elsevier PLC and Reed Elsevier NV shares. Grants over PLC shares can be made without prior shareholder approval in reliance on LR9.4.2R but prior shareholder approval is required for grants over NV shares. Therefore, if the requisite NV shareholder approval has not been obtained by the Effective Date, the grants will be made solely over PLC shares but on terms that 50% of the value of the grant will be satisfied with NV shares to the extent that shareholder approval has been obtained for that. The conversion from PLC to NV shares will be on the basis of the NV closing share price and Euro/Sterling exchange rate on the date of grant of your award of PLC shares.
One-off Cash Award
9. Reed Elsevier understands that by reason of your resignation from Centrica plc, you may forfeit deferred shares that have been awarded to you by Centrica plc. You will receive a one-off cash payment of £288,000 for these forfeited shares, payable within 30 days of the Effective Date subject to statutory deductions. If you do not forfeit all the deferred shares then the cash payment will be reduced to reflect the value of any shares that you do retain.
Clawback Arrangements
10. The Buy-Out Awards specified in paragraphs 4 and 9 above will be subject to claw-back arrangements if you resign (other than in response to a repudiatory breach of contract) in the two year period following the Effective Date as follows:
(a) | For any One-off Multi-Year Incentives that have already vested, you must pay to Reed Elsevier a cash amount equal to the value as at the date you give notice of the Clawback Proportion of the Net Shares; and |
(b) | For the One-off Cash Award, you must pay to Reed Elsevier a cash amount equal to the Clawback Proportion of the Net Award. |
Reed Elsevier Group pic |
1-3 Strand London WC2N5JR |
Telephone +44 (0)20 7930 7077 Fax +44 (0)20 7166 5799 www.reedelsevier.com |
Registered Office 1-3 Strand, London WC2N 5JR Registered in England number 2746616 |
For these purposes:
Net Shares means the number of shares that vested after the sale of sufficient shares to meet your income tax and national insurance liability;
Net Award means the cash amount of the One-off Cash Award after deduction of income tax and national insurance; and
Clawback Proportion is calculated as (24-A)/24, where A is the number of complete months between the Effective Date and the date you give notice.
11. In addition to the obligations under paragraph 10, you will be subject to the same provisions in relation to claw-back in respect of the Buy-Out Awards specified in paragraphs
4 and 9 above as for awards made to you in 2014 pursuant to the Reed Elsevier Group pic
Long-Term Incentive Plan 2013.
12. This letter, which forms part of the Service Agreement, will be governed by and construed in accordance with English law.
13. Please could you sign and date one copy of this letter and return it to me to signify your agreement to the terms set out above.
Yours sincerely |
For and on behalf of Reed Elsevier Group plc |
Accepted and agreed: |
/s/ NL Luff |
Dated: 6/1/14 |
Reed Elsevier Group pic |
1-3 Strand London WC2N5JR |
Telephone +44 (0)20 7930 7077 Fax +44 (0)20 7166 5799 www.reedelsevier.com |
Registered Office 1-3 Strand, London WC2N SJR Registered in England number 2746616 |
Schedule 1
Performance conditions
Part A
1. The award granted to you under paragraph 4(a) is granted subject to the following performance measures, which will be measured after the end of the 2014 financial year:-
EPS (2/3 of award)
Average EPS Growth in 2013
and 2014 |
||||||||
< 7% | > 7% | |||||||
% of award earned |
0 | % | 100 | % |
ROIC (1/3 of award)
ROIC in 2014 | ||||||||
< 10.7% | > 10.7% | |||||||
% of award earned |
0 | % | 100 | % |
The definitions of and calculation methodology for EPS and ROIC are the same as apply to matching awards granted to the CEO in 2013 under the Reed Elsevier Group plc Growth Plan and are set out in Schedule 1 to the rules of the Growth Plan.
Part B
The award granted to you under paragraph 4(b) is granted subject to the same performance measures and performance period which apply to the 2013-15 LTIP awards. These are set out in detail in the Appendix to the Reed Elsevier Group pic Long-term Incentive Plan 2013. In summary, the measures are as follows:-
ROIC(1/3 of award]
ROIC in 2015 | ||||||||||||||||||||||||||||||||
<11.2% | 11.2% | 11.45% | 11.7% | 11.95% | 12.2% | 12.45% | 12.7% | |||||||||||||||||||||||||
% of award earned |
0 | % | 33 | % | 52.5 | % | 65 | % | 75 | % | 85 | % | 92.5 | % | 100 | % | ||||||||||||||||
EPS (1/3 of award)
|
||||||||||||||||||||||||||||||||
Average EPS Growth over the three-year performance period | ||||||||||||||||||||||||||||||||
<5% | 5% | 6% | 7% | 8% | 9% | 10% | 11% | |||||||||||||||||||||||||
% of award earned |
0 | % | 33 | % | 52.5 | % | 65 | % | 75 | % | 85 | % | 92.5 | % | 100 | % |
Vesting is on a straight-line basis for performance between the stated percentages.
Reed Elsevier Group pic |
1-3 Strand London WC2N5JR |
Telephone +44 (0)20 7930 7077 Fax +44 (0)20 7166 5799 www.reedelsevier.com |
Registered Office 1-3 Strand, London WC2N 5JR Registered In England number 2746616 |
TSR (1/3 of award)
Percentile TSR rank achieved | ||||||||||||||||
% of award earned | <50 | 50 | 60 | > 75 | ||||||||||||
3y TSR sterling (PLC ords) |
0 | % | 30 | % | 58 | % | 100 | % | ||||||||
3y TSR EURO (NV ords) |
0 | % | 30 | % | 58 | % | 100 | % | ||||||||
3y TSR USD (PLC & NV ADRs) |
0 | % | 30 | % | 58 | % | 100 | % |
Vesting is on a straight-line for performance between the minimum and maximum threshold.
Reed Elsevier Group pic |
1-3 Strand London WC2N5JR |
Telephone +44 (0)20 7930 7077 Fax +44 (0)20 7166 5799 www.reedelsevier.com |
Registered Office 1-3 Strand, London WC2N 5JR Registered in England number 2746616 |
EXHIBIT 8
SIGNIFICANT SUBSIDIARIES, ASSOCIATES, JOINT VENTURES AND BUSINESS UNITS
Reed Elsevier PLC and Reed Elsevier NV conduct their business through two jointly owned companies, Reed Elsevier Group plc and Elsevier Reed Finance BV. Refer to Item 4: Information on the Group for further background.
The following table shows the significant subsidiaries, associates, joint ventures and business units of Reed Elsevier Group plc and of Elsevier Reed Finance BV by reference to business segment and geographical location. All businesses are 100% owned unless otherwise stated.
Business |
Geographical location |
|
Reed Elsevier Group plc |
United Kingdom | |
Holding companies |
||
Reed Elsevier (UK) Limited (1) |
United Kingdom | |
Reed Elsevier (Holdings) Limited (6) |
United Kingdom | |
Reed Elsevier (Investments) plc |
United Kingdom | |
Reed Elsevier Holdings B.V. |
The Netherlands | |
Reed Elsevier Nederland B.V. |
The Netherlands | |
Reed Elsevier Overseas B.V. |
The Netherlands | |
Reed Elsevier US Holdings Inc |
USA | |
Reed Elsevier Inc. (1) |
USA | |
Reed Elsevier Capital Inc. |
USA | |
Elsevier STM Inc. |
USA | |
Reed Elsevier Properties Inc. |
USA | |
Scientific, Technical & Medical |
||
Elsevier Limited |
United Kingdom | |
Elsevier B.V. |
The Netherlands | |
AGRM Solutions CV |
The Netherlands | |
Elsevier Inc. |
USA | |
Gold Standard Inc. |
USA |
Business |
Geographical location |
|
Elsevier Reed Finance B.V. |
The Netherlands | |
Elsevier Swiss Holdings SA |
Switzerland | |
Elsevier Finance SA |
Switzerland | |
Reed Elsevier Properties SA |
Switzerland | |
Elsevier Risks SA |
Switzerland |
(1) | Holding company, but also trades through one or more operating divisions |
(2) | Division of Elsevier Inc. |
(3) | Division of Reed Elsevier (UK) Limited |
(4) | Division of Reed Elsevier Inc. |
(5) | Division of Reed International Books Australia Pty Ltd |
(6) | Direct subsidiary undertaking of Reed Elsevier Group plc |
Exhibit 12.1
SECTION 302 CERTIFICATION
I, E Engstrom, certify that:
1. I have reviewed this annual report on Form 20-F of Reed Elsevier 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 companys other certifying officers 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 companys 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 companys internal control over financial reporting that occurred during the period covered by this annual report that has materially affected, or is reasonably likely to materially affect, the companys internal control over financial reporting; and
5. The companys other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the companys auditors and the audit committee of the companys 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 companys 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 companys internal control over financial reporting.
/s/ E Engstrom |
Chief Executive Officer |
Reed Elsevier PLC |
Dated: March 10, 2015 |
Exhibit 12.2
SECTION 302 CERTIFICATION
I, N L Luff, certify that:
1. I have reviewed this annual report on Form 20-F of Reed Elsevier 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 companys other certifying officers 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 companys 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 companys 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 companys internal control over financial reporting; and
5. The companys other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the companys auditors and the audit committee of the companys 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 companys 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 companys internal control over financial reporting.
/s/ N L Luff |
Chief Financial Officer |
Reed Elsevier PLC |
Dated: March 10, 2015 |
Exhibit 12.3
SECTION 302 CERTIFICATION
I, E Engstrom, certify that:
1. I have reviewed this annual report on Form 20-F of Reed Elsevier NV;
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 companys other certifying officers 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 companys 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 companys 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 companys internal control over financial reporting; and
5. The companys other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the companys auditors and the audit committee of the companys 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 companys 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 companys internal control over financial reporting.
/s/ E Engstrom |
Chief Executive Officer |
Reed Elsevier NV |
Dated: March 10, 2015 |
Exhibit 12.4
SECTION 302 CERTIFICATION
I, N L Luff, certify that:
1. I have reviewed this annual report on Form 20-F of Reed Elsevier NV;
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 companys other certifying officers 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 companys 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 companys 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 companys internal control over financial reporting; and
5. The companys other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the companys auditors and the audit committee of the companys 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 companys 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 companys internal control over financial reporting.
/s/ N L Luff |
Chief Financial Officer |
Reed Elsevier NV |
Dated: March 10, 2015 |
Exhibit 13.1
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Annual Report of Reed Elsevier PLC (the Company) on Form 20-F for the fiscal year ended December 31, 2014 as filed with the Securities and Exchange Commission on the date hereof (the Report), I, E Engstrom, Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
/s/ E Engstrom |
Chief Executive Officer |
Reed Elsevier PLC |
Dated: March 10, 2015 |
Exhibit 13.2
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Annual Report of Reed Elsevier PLC (the Company) on Form 20-F for the fiscal year ended December 31, 2014 as filed with the Securities and Exchange Commission on the date hereof (the Report), I, N L Luff, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
/s/ N L Luff |
Chief Financial Officer |
Reed Elsevier PLC |
Dated: March 10, 2015 |
Exhibit 13.3
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Annual Report of Reed Elsevier NV (the Company) on Form 20-F for the fiscal year ended December 31, 2014 as filed with the Securities and Exchange Commission on the date hereof (the Report), I, E Engstrom, Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
/s/ E Engstrom |
Chief Executive Officer |
Reed Elsevier NV |
Dated: March 10, 2015 |
Exhibit 13.4
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Annual Report of Reed Elsevier NV (the Company) on Form 20-F for the fiscal year ended December 31, 2014 as filed with the Securities and Exchange Commission on the date hereof (the Report), I, N L Luff, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and N L Luff
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
/s/ N L Luff |
Chief Financial Officer |
Reed Elsevier NV |
Dated: March 10, 2015 |
Exhibit 15.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
REED ELSEVIER COMBINED FINANCIAL STATEMENTS
We consent to the incorporation by reference in Registration Statement Nos. 333-197580, 333-191419, 333-167058 and 333-143605 on Form S-8 of our reports dated February 25, 2015, relating to the combined financial statements of Reed Elsevier PLC, Reed Elsevier NV, RELX Group plc (formerly Reed Elsevier Group plc) and Elsevier Reed Finance BV and their respective subsidiaries, associates and joint ventures (together the Combined Businesses)) and the effectiveness of the Combined Businesses internal control over financial reporting, appearing in this Annual Report on Form 20-F of Reed Elsevier PLC and Reed Elsevier NV for the year ended December 31, 2014.
/s/ Deloitte LLP |
London, United Kingdom March 10, 2015 |
Exhibit 15.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
REED ELSEVIER PLC CONSOLIDATED FINANCIAL STATEMENTS
We consent to the incorporation by reference in Registration Statement Nos. 333-197580, 333-191419, 333-167058 and 333-143605 on Form S-8 of our reports dated February 25, 2015 relating to the consolidated financial statements of Reed Elsevier PLC and the effectiveness of Reed Elsevier PLCs internal control over financial reporting appearing in this Annual Report on Form 20-F of Reed Elsevier PLC and Reed Elsevier NV for the year ended December 31, 2014.
/s/ Deloitte LLP |
London, United Kingdom |
March 10, 2015 |
Exhibit 15.3
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
REED ELSEVIER NV CONSOLIDATED FINANCIAL STATEMENTS
We consent to the incorporation by reference in Registration Statement Nos. 333-197580, 333-191419, 333-167058 and 333-143605 on Form S-8 of our reports dated February 25, 2015 relating to the consolidated financial statements of Reed Elsevier NV and the effectiveness of Reed Elsevier NVs internal control over financial reporting appearing in this Annual Report on Form 20-F of Reed Elsevier NV and Reed Elsevier PLC for the year ended December 31, 2014.
/s/ Deloitte LLP |
London, United Kingdom |
March 10, 2015 |
Exhibit 16.1
February 25, 2015
Securities and Exchange Commission
100 F Street, N.E.
Washington, D.C., USA
20549-7561
Dear Sirs/Madams:
We have read Item 16-F of the Form 20-F for Reed Elsevier plc, Reed Elsevier N.V. and the Combined Businesses dated February 25, 2015, and have the following comments:
1. | We agree with the statements made in paragraphs two, three and four in the section Change in Registrants Certifying Accountant. |
2. | We have no basis on which to agree or disagree with other statements of the registrant contained therein. |
Yours truly,
/s/ Deloitte Accountants B.V.
Independent Registered Public Accounting Firm