NOT FOR DISTRIBUTION IN OR INTO OR TO ANY PERSON LOCATED OR RESIDENT IN THE UNITED STATES OF AMERICA, ITS TERRITORIES AND POSSESSIONS OR TO ANY PERSON LOCATED OR RESIDENT IN THE REPUBLIC OF ITALY (See “Invitation Restrictions” below).
Marks and Spencer plc announces debt tender offer
London, 17 November 2009 - Marks and Spencer plc (the “Company”) announced today an invitation to holders of its outstanding GBP375,000,000 6.375 per cent. Notes due 2011 (the “2011 Notes”) and its outstanding GBP400,000,000 5.875 per cent. Notes due 2012 (the “2012 Notes” and together with the 2011 Notes, the “Notes”) to submit offers to sell to the Company for cash the Notes in accordance with a modified Dutch auction procedure for each series of Notes (the “Invitation”).
The Invitation is made on the terms and subject to the conditions contained in the Invitation for Offers dated 17 November 2009 (the “Invitation for Offers”) including the invitation and distribution restrictions contained therein and this announcement should be read in conjunction with the Invitation for Offers. Capitalised terms used but not otherwise defined in this announcement shall have the meaning given to them in the Invitation for Offers.
| Notes |
ISIN/Common Code |
Outstanding Principal Amount |
Maturity Date |
Reference Bond |
Maximum Spread |
Maximum Acceptance Amount |
| 2011 Notes |
XS0138137285
/013813728 |
£375,000,000 |
7 Nov 2011 |
4.25 per cent. U.K. Treasury Gilt due March 2011 |
225 bps |
£225,000,000 in aggregate principal amount outstanding |
| 2012 Notes |
XS0293893813
/029389381 |
£400,000,000 |
29 May 2012 |
5 per cent. U.K. Treasury Gilt due March 2012 |
200 bps |
Rationale for the Invitation
The purpose of the Invitation and the Company’s contemplated raising of new financing is to take advantage of current favourable market conditions in the debt capital markets and to extend the Company’s debt maturity profile.
Whether the Company will accept for purchase Notes validly tendered in the Invitation is subject, at the option of the Company, to the raising by the Company of new sterling-denominated bond financing, on terms satisfactory to the Company (in its sole discretion), in order to enable it to finance, in whole or in part, the aggregate Purchase Price and Accrued Interest for the Notes validly tendered in the Invitation.
Modified Dutch Auction Procedure
The Company proposes to accept for purchase Notes up to a maximum aggregate principal amount of GBP225,000,000 (the “Maximum Acceptance Amount”) across both series of Notes though the Company may, in its discretion, increase this amount.
Holders of Notes may submit competitive or non-competitive offers and instructions are irrevocable once submitted except in limited circumstances as detailed in the Invitation for Offers. If the aggregate principal amount of Notes validly tendered is greater than the Maximum Acceptance Amount, the Company will purchase the offers validly made pursuant to the Invitation on a pro rata basis as set out in the Invitation for Offers.
Subject to the applicable Minimum Denomination, the amount in cash in pounds sterling to be paid for each GBP1,000 principal amount of the 2011 Notes and the 2012 Notes accepted for purchase will be determined at or around 4.00 p.m. (London time) on 25 November 2009 in the manner described in the Invitation for Offers by reference to the sum of the Reference Yield and the Clearing Spread. The Company will determine a separate purchase price for each series of Notes that it will pay to Noteholders whose tenders of Notes are accepted pursuant to the Invitation via the modified Dutch auction procedure. The Company will also pay Accrued Interest on such Notes upon settlement.
Indicative Timetable
In order to be eligible to receive the Purchase Price, Noteholders must validly offer their Notes by 4.00 p.m. (London time) on 24 November 2009, by delivering, or arranging to have delivered on their behalf, a valid Electronic Offer Instruction that is received by the Tender Agent by the Expiration Deadline. The deadlines set by any intermediary or clearing system may be earlier than the deadline specified above.
Subject to applicable law and as provided in the Invitation for Offers, the Company may, in its sole discretion, extend, re-open, amend, waive any condition of or terminate the Invitation at any time.
The anticipated transaction timetable is summarised below:
| Indicative Timetable |
Event |
| 17 November 2009 |
Commencement of the Invitation |
| 4.00 p.m. (London time) on 24 November 2009 |
Expiration Deadline |
| At or around 9.00 a.m. (London time) on 25 November 2009 |
Announcement of Clearing Spread |
| At or around 4.00 p.m. (London time) on 25 November 2009 |
Pricing Date and Pricing Time |
| As soon as practicable after the Pricing Time on the Pricing Date |
Announcement of Pricing and Results |
| 2 December 2009 |
Settlement Date |
Citigroup Global Markets Limited, HSBC Bank plc, Morgan Stanley & Co. International plc and The Royal Bank of Scotland plc are acting as Dealer Managers for this Invitation. Citibank, N.A., London Branch is acting as Tender Agent. For detailed terms of the Invitation please refer to the Invitation for Offers which (subject to distribution restrictions) can be obtained from the Dealer Managers and the Tender Agent referred to below:
Dealer Managers:
Citigroup Global Markets Limited
Citigroup Centre
Canada Square
Canary Wharf
London E14 5LB
United Kingdom
Telephone: +44 20 7986 8969
Attention: Liability Management Group
Email: liabilitymanagement.europe@citi.com
HSBC Bank plc
8 Canada Square
London
E14 5HQ
Telephone: +44 20 7991 5874
Attention: Liability Management Group - Andrew Montgomery
Email: liability.management@hsbcib.com
Morgan Stanley & Co. International plc
25 Cabot Square
Canary Wharf
London E14 4QA
Telephone: +44 20 7677 5040
Attention: European Liability Management
Email: liabilitymanagementeurope@morganstanley.com
The Royal Bank of Scotland plc
135 Bishopsgate
London EC2M 3UR
Telephone: +44 20 7085 8056/3781
Attention: Andrew Burton/Gianmarco Deiana
Email: liabilitymanagement@rbs.com
Tender Agent:
Citibank, N.A., London Branch
Citigroup Centre
Canada Wharf
London E14 5LB
United Kingdom
Telephone: +44 20 7508 3867
Attention: Exchange Desk
Email: exchange.gats@citi.com
Disclaimer
This announcement must be read in conjunction with the Invitation for Offers. This announcement and the Invitation for Offers contain important information which should be read carefully before any decision is made with the respect to the Invitation. If you are in any doubt as to the action you should take, you are recommended to seek your own financial advice, including as to any tax consequences, from your stockbroker, bank manager, solicitor, accountant or other independent financial adviser. Any individual or company whose Notes are held on its behalf by a broker, dealer, bank, custodian, trust company or other nominee must contact such entity if it wishes to tender Notes in the Invitation. None of the Company, the Dealer Managers or the Tender Agent makes any recommendation whether Noteholders should tender Notes in the Invitation.
Invitation Restrictions
The distribution of this announcement and the Invitation for Offers in certain jurisdictions may be restricted by law.
Persons into whose possession this announcement and/or the Invitation for Offers comes are required by the Company and the Dealer Managers to inform themselves about and to observe any such restrictions. Neither this announcement nor the Invitation for Offers constitutes an offer to buy or a solicitation of an offer to sell the Notes, and tenders of Notes in the Invitation will not be accepted from Noteholders in any circumstances in which such invitation or solicitation is unlawful. In those jurisdictions where the securities, blue sky or other laws require the Invitation to be made by a licensed broker or dealer and either Dealer Manager or any of their respective affiliates is such a licensed broker or dealer in such jurisdictions, the Invitation shall be deemed to be made by such Dealer Manager or affiliate (as the case may be) on behalf of the Company in such jurisdictions.
United States. The Invitation is not being made, and will not be made, directly or indirectly, in or into, or by use of the mails of, or by any means or instrumentality of interstate or foreign commerce of, or of any facilities of a national securities exchange of, the United States. This includes, but is not limited to, facsimile transmission, electronic mail, telex, telephone, the internet and other forms of electronic communication. The Notes may not be tendered in the Invitation by any such use, means, instrumentality or facility from or within the United States or by persons located or resident in the United States. Accordingly, this announcement and copies of the Invitation for Offers and any other documents or materials relating to the Invitation are not being, and must not be, directly or indirectly mailed or otherwise transmitted, distributed or forwarded (including, without limitation, by custodians, nominees or trustees) in or into the United States or to persons located or resident in the United States. Any purported tender of Notes in the Invitation resulting directly or indirectly from a violation of these restrictions will be invalid and any purported tender of Notes made by a person located in the United States or any agent, fiduciary or other intermediary acting on a non-discretionary basis for a principal giving instructions from within the United States will not be accepted.
Each holder of Notes participating in the Invitation will represent that it is not located in the United States and is not participating in the Invitation from the United States or it is acting on a non-discretionary basis for a principal located outside the United States that is not giving an order to participate in the Invitation from the United States. For the purposes of this paragraph, “United States” means the United States of America, its territories and possessions (including Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands), any state of the United States of America and the District of Columbia.
Italy. The Invitation is not being made, directly or indirectly, in the Republic of Italy. The Invitation and the Invitation for Offers have not been submitted to the clearance procedure of the Commissione Nazionale per le Societa e la Borsa (CONSOB) pursuant to Italian laws and regulations. Accordingly, Noteholders are notified that, to the extent Noteholders are located or resident in Italy, the Invitation is not available to them and they may not tender Notes in the Invitation and, as such, any Electronic Offer Instructions received from such persons shall be ineffective and void, and neither the Invitation for Offers nor any other documents or materials relating to the Invitation or the Notes may be distributed or made available in Italy.
United Kingdom. The communication of the Invitation for Offers and any other documents or materials relating to the Invitation, including this announcement, is not being made, and such documents and/or materials have not been approved, by an authorised person for the purposes of section 21 of the Financial Services and Markets Act 2000. Accordingly, such documents and/or materials are not being distributed to, and must not be passed on to, the general public in the United Kingdom. The communication of such documents and/or materials as a financial promotion is only being made to those persons in the United Kingdom falling within the definition of investment professionals (as defined in Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (the “Financial Promotion Order”)) or persons who are within Article 43 of the Financial Promotion Order or any other persons to whom it may otherwise lawfully be made under the Financial Promotion Order.
Belgium. Neither the Invitation for Offers nor any other documents or materials relating to the Invitation including this announcement have been submitted to or will be submitted for approval or recognition to the Belgian Banking, Finance and Insurance Commission (Commission bancaire, financière et des assurances/Commissie voor het Bank-, Financie- en Assurantiewezen) and, accordingly, the Invitation may not be made in Belgium by way of a public offering, as defined in Article 3 of the Belgian Law of 1 April 2007 on public takeover bids or as defined in Article 3 of the Belgian Law of 16 June 2006 on the public offer of placement instruments and the admission to trading of placement instruments on regulated markets (together, the Belgian Public Offer Law), each as amended or replaced from time to time. Accordingly, the Invitation may not be advertised and the Invitation will not be extended, and neither the Invitation for Offers nor any other documents or materials relating to the Invitation (including any memorandum, information circular, brochure or any similar document) has been or shall be distributed or made available, directly or indirectly, to any person in Belgium other than "qualified investors" in the sense of Article 10 of the Belgian Public Offer Law (as amended from time to time), acting on their own account. Insofar as Belgium is concerned, the Invitation for Offers has been issued only for the personal use of the above qualified investors and exclusively for the purpose of the Invitation. Accordingly, the information contained in the Invitation for Offers and this announcement may not be used for any other purpose or disclosed to any other person in Belgium.
France. The Invitation is not being made, directly or indirectly, to the public in the Republic of France. Neither the Invitation for Offers nor any other document or material relating to the Invitation including this announcement has been or shall be distributed to the public in France and only (i) providers of investment services relating to portfolio management for the account of third parties (personnes fournissant le service d'investissement de gestion de portefeuille pour compte de tiers) and/or (ii) qualified investors (investisseurs qualifiés) other than individuals, all as defined in, and in accordance with, Articles L.411-1, L.411-2 and D.411-1 to D.411-3 of the French Code monétaire et financier, are eligible to participate in the Invitation. The Invitation for Offers has not been and will not be submitted for clearance to nor approved by the Autorité des Marchés Financiers.
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