Marks and Spencer 2012 Annual Report Download - page 71

Governance Marks and Spencer Group plc Annual report and financial statements 2012 69
Overview Strategic review Financial review Governance Financial statements and other information
the Company’s website. As at 31 March 2012, the following
information has been received, in accordance with DTR5,
from holders of notifiable interests in the Company’s issued
share capital.
Ordinary shares % of capital Nature of holding
BlackRock 79,693,916 5.03% Indirect (4.51%) & CFD (0.52%)
Capital Research &
Management 77,589,854 4.85% Indirect interest
AXA S.A. 76,111,596 4.81% Direct & Indirect
Brandes Investment
Partners, L.P. 74,959,501 4.73% Indirect interest
Legal & General Group plc 63,188,326 3.99% Direct interest
The Wellcome Trust 47,464,282 3.01% Direct interest
No changes have been disclosed in accordance with DTR5 in
the period 31 March 2012 to 21 May 2012.
Deadlines for exercising voting rights
Votes are exercisable at a general meeting of the Company
in respect of which the business being voted upon is being
heard. Votes may be exercised in person, by proxy, or in
relation to corporate members, by corporate representatives.
The Articles provide a deadline for submission of proxy forms
of not than less than 48 hours before the time appointed for the
holding of the meeting or adjourned meeting. However, when
calculating the 48-hour period, the directors can, and have,
decided not to take account of any part of a day that is not a
working day.
Significant agreements – change of control
There are a number of agreements to which the Company
is party that take effect, alter or terminate upon a change
of control of the Company following a takeover bid. Details
of the significant agreements of this kind are as follows:
–the £267m Medium Term Notes issued by the Company on
28 March 2007, £400m Medium Term Notes issued by the
Company on 30 November 2009 and the £300m Medium
Term Notes issued by the company on the 6 December
2011 to various institutions (‘MTN’) and under the Group’s
£3bn Euro Medium Term Note (EMTN) programme contain
an option such that, upon a change of control event,
combined with a credit ratings downgrade to below
sub-investment level, any holder of an MTN may require
the Company to prepay the principal amount of that MTN;
–the £250m puttable callable reset notes issued by the
Company to various institutions on 11 December 2007
under the Group’s £3bn EMTN programme contain an
option such that, upon a change of control event, combined
with a credit ratings downgrade to below sub-investment
level, any holder of an MTN may require the Company to
prepay the principal amount of that MTN;
–the $500m US Notes issued by the Company to various
institutions on 6 December 2007 under section 144a of
the US Securities Act contain an option such that, upon
a change of control event, combined with a credit ratings
downgrade to below sub-investment level, any holder of
such a US Note may require the Company to prepay the
principal amount of that US Note;
–the $300m US Notes issued by the Company to various
institutions on 6 December 2007 under section 144a of
the US Securities Act contain an option such that, upon
a change of control event, combined with a credit ratings
downgrade to below sub-investment level, any holder of
such a US Note may require the Company to prepay the
principal amount of that US Note;
–the £1.325bn Credit Agreement dated 29 September 2011
between the Company and various banks contains a
provision such that, upon a change of control event, unless
new terms are agreed within 60 days, the facility under this
agreement will be cancelled with all outstanding amounts
becoming immediately payable with interest;
–the amended and restated Relationship Agreement dated
1 February 2012 (originally dated 9 November 2004 as
amended on 1 March 2005), between HSBC and the
Company and relating to M&S Money, contains certain
provisions which address a change of control of the Company.
Upon a change of control the existing rights and obligations of
the parties in respect of M&S Money continue and HSBC gains
certain limited additional rights in respect of existing customers
of the new controller of the Company. Where a third-party
arrangement is in place for the supply of financial services
products to existing customers of the new controller, the
Company is required to procure the termination of such
arrangement as soon as reasonably practicable (whilst not
being required to do anything that would breach any contract
in place in respect of such arrangement). Where a third-party
arrangement is so terminated, or does not exist, HSBC gains
certain exclusivity rights in respect of the sale of financial
services products to the existing customers of the new
controller. Where the Company undertakes a re-branding
exercise with the new controller following a change of control
(which includes using any M&S brand in respect of the new
controller’s business or vice versa), HSBC gains certain
termination rights (exercisable at its election) in respect of the
Relationship Agreement;
–the agreement between Marks and Spencer plc and
Marks and Spencer Pension Trust Limited (as trustee of
The Marks and Spencer Pension Scheme) (the ‘Pension
Fund’) dated 12 May 2010 relating to Marks and Spencer
Scottish Limited Partnership (the ‘Partnership’) contains a
clause such that, upon a change of control of the Company,
Marks and Spencer plc shall elect that the Partnership
either (i) surrenders its discretion over the payment of annual
distributions to the Pension Fund; or (ii) increases the rate
at which compensatory interest accrues on any annual
payments by the Partnership that Marks and Spencer plc
has elected (as general partner of the Partnership) to defer;
–the Company does not have agreements with any director
or employee that would provide compensation for loss of
office or employment resulting from a takeover except that
provisions of the Company’s share schemes and plans may
cause options and awards granted to employees under
such schemes and plans to vest on a takeover.
Board of directors
The membership of the Board and biographical details of the
directors are given on page 40 and 41 and are incorporated
into this report by reference. Details of directors’ beneficial
and non-beneficial interests in the shares of the Company are
shown on page 63. Options granted under the Save As You
Earn (SAYE) Share Option and Executive Share Option
Schemes are shown on pages 66 to 67. Further information
regarding employee share option schemes is given in note 13
to the financial statements.
Laura Wade-Gery joined the Board on 4 July 2011 as Executive
Director, Multi-channel E-commerce, Louise Patten did not
seek re-election at the 2011 AGM and stepped down from the
Board as a non-executive director on 13 July 2011, Vindi Banga
was appointed to the Board as a non-executive director on
1 September 2011. Miranda Curtis joined the Board as a