Share capital
As at 30 September 2009, the authorised share capital of the Company was divided into the following two classes of share: €200,000,000 divided into 2,000,000,000 ordinary shares of €0.10 each and £50,000 divided into 50,000 deferred shares of £1 each. The concept of authorised share capital was abolished from 1 October 2009, following the final implementation of the Companies Act 2006. Therefore, an ordinary resolution will be put to the Annual General Meeting (“AGM”) on 25 March 2010 removing the limit created by the statement of authorised share capital and other references in the Articles of Association. The ordinary shares carry the right to the profits of the Company available for distribution and to the return of capital on a winding up of the Company. The ordinary shares carry the right to attend and speak at general meetings of the Company; each share holds the right to one vote. The ordinary shares are admitted to trading on the Official List of the London Stock Exchange. The deferred shares carry no right to the profits of the Company. On a winding up, the holders of the deferred shares would be entitled to receive an amount equal to the capital paid up on each deferred share. The holders of the deferred shares are not entitled to receive notice, attend, speak or vote (whether on a show of hands or on a poll) at general meetings of the Company.
Authority to purchase shares
At the Extraordinary General Meeting held on 12 March 2008, the Company was authorised to make market purchases of ordinary shares up to a maximum number of 70,386,610 shares as part of a £290m (€375m) share buyback programme, announced on 30 January 2008. During the financial year ended 30 September 2009, the Company acquired:
- 6,102,962 ordinary shares through on-market purchases, the total consideration paid for these shares was £12.4m; and
- 6,831,425 ordinary shares through off-market purchases from Arcandor AG and KarstadtQuelle Freizeit GmbH, at a cost of £13.9m.
The above purchases concluded the share buyback programme.
Share transfer restrictions
The Articles of Association (the “Articles”) are designed to ensure that the number of the Company’s shares held by non-EEA nationals does not reach a level which could jeopardise the Company’s entitlement to continue to hold or enjoy the benefit of any authority, permission, licence or privilege which it, or any of its subsidiaries, holds or enjoys and which enables an air service to be operated (each an “Operating Right”). In particular, EC Council Regulation 1008/2008 on licensing of air carriers requires that an air carrier must be majority-owned and effectively controlled by EEA nationals.
The Articles allow the Directors, from time to time, to set a “Permitted Maximum” on the number of the Company’s shares which may be owned by non-EEA nationals at such level as they believe is in compliance with the Operating Rights, provided that the Permitted Maximum shall not be less than 40% of the total number of issued shares.
The Company maintains a separate register (the “Separate Register”) of shares in which non-EEA nationals, whether individuals, bodies corporate or other entities have an interest (such shares are referred to as “Relevant Shares” in the Articles). An interest in this context is widely defined (see below). The Directors may require relevant members or other persons to provide them with information to enable them to determine whether shares are, or are to be treated as, Relevant Shares. If such information is not provided then the Directors will be able, at their discretion, to determine that shares to which their enquiries relate be treated as Relevant Shares. Registered shareholders will also be obliged to notify the Company if they are aware either (a) that any share they hold ought to be treated as a Relevant Share for this purpose; or (b) that any share they hold which is treated as a Relevant Share should no longer be so treated. In this case, the Directors shall request such information and evidence as they require to satisfy themselves that the share should not be treated as a Relevant Share and, on receipt of such evidence, shall remove particulars of the share from the Separate Register. If the Directors determine that such action is necessary to protect any Operating Right due to the fact that an Intervening Act (an “Intervening Act” being the refusal, withholding, suspension or revocation of any Operating Right or the imposition of materially inhibiting conditions or limitations on any Operating Right in either case, by any state or regulatory authority) has taken place or is contemplated, threatened or intended, or the aggregate number of Relevant Shares is such that an Intervening Act may occur or the ownership or control of the Company is such that an Intervening Act may occur, the Directors may, among other things:
- identify those shares which give rise to the need to take action and treat such shares as affected shares (“Affected Shares”) (see below); or
- set a Permitted Maximum on the number of Relevant Shares which may subsist at any time (which may not, save in the circumstances referred to below, be lower than 40% of the total number of issued shares) and treat any Relevant Shares in excess of this Permitted Maximum as Affected Shares (see below). The Directors may serve a notice (an “Affected Share Notice”) in respect of any Affected Share. An Affected Share Notice can, if it so specifies, have the effect of depriving the registered holder of the right to attend, vote and speak at general meetings which he would otherwise have had as a consequence of holding such shares. Such an Affected Share Notice can, if it so specifies, also require the recipient to dispose of the Affected Shares (so that the Relevant Shares will then cease to be Affected Shares) within 21 days or such longer period as the Directors may determine. The Directors are also given the power to sell such Affected Shares themselves where there is non-compliance with an Affected Share Notice at the best price reasonably obtainable at the relevant time on behalf of the shareholder.
In deciding which shares are to be dealt with as Affected Shares the Directors, in their sole opinion, will determine which Relevant Shares may give rise to the fact of risk of an Intervening Act occurring and, subject to any such determination, will have regard to the chronological order in which particulars of Relevant Shares have been, or are to be, entered in the Separate Register unless to do so would in the sole opinion of the Directors be inequitable. If there is a change in any applicable law or the Company or any subsidiary receives any direction, notice or requirement from any state or regulatory authority, which, in either case, necessitates such action to overcome, prevent or avoid an Intervening Act, then the Directors may either:
- lower the Permitted Maximum to the minimum extent that they consider necessary to overcome, prevent or avoid an Intervening Act; or
- resolve that any Relevant Shares shall be treated as Affected Shares and the Conversion Permitted Maximum. The rights of the Directors referred to above apply until such time as the Directors resolve that grounds for the making of a determination have ceased to exist, whereupon the Directors must withdraw such determination. The Permitted Maximum is set at 40%. This Permitted Maximum may be varied by the Directors. If the Directors resolve to vary the Permitted Maximum to deal with shares as Affected Shares or relax the ownership limitations, they shall publish in at least one national newspaper in the United Kingdom (and in any other country in which the shares are listed) notice of the determination and of any Permitted Maximum.
The Directors shall publish, from time to time:
- information as to the number of shares particulars of which have been entered on the Separate Register; and
- any Permitted Maximum which has been specified.
As at 30 September 2009, 45,688 ordinary shares (0.005%) were held on the Separate Register.
The Directors may not register any person as a holder of shares unless such person has furnished to the Directors a declaration, together with such evidence as the Directors may require, stating (a) the name and nationality of any person who has an interest in any such share and, if the Directors require, the nature and extent of such interest; or (b) such other information as the Directors may from time to time determine. The Directors may decline to register any person as a shareholder if satisfactory evidence of information is not forthcoming.
Existing holders of Shares will be recorded on the Special Register unless and until they have certified, to the satisfaction of the Company, that they are EEA nationals.
A person shall be deemed to have an interest in relation to Thomas Cook Group plc shares if:
- such person has an interest which would (subject as provided below) be taken into account, or which he would be taken as having, in determining for the purposes of Part 22 of the Companies Act 2006 whether a person has a notifiable interest; or
- he has any such interest as is referred to in Part 22 of the Companies Act 2006 but shall not be deemed to have an interest in any shares in which his spouse or any infant, child or stepchild (or, in Scotland, pupil or minor) of his is interested by virtue of that relationship or which he holds as a bare or custodian trustee under the laws of England or as a simple trustee under the laws of Scotland, and interest shall be construed accordingly.
Agreements governing the transfer of shares
Under the Relationship Agreement, which was in force in the period to 10 September 2009, Arcandor AG had undertaken to give the Company written notice of any intention to dispose of any shares, and such disposal had to be carried out in consultation with the Board of the Company. Under the Relationship Agreement, Arcandor AG had agreed to certain restrictions on the ability of it and other members of the Arcandor group of companies to acquire further shares in the Company. Under these restrictions, members of the Arcandor Group could not, subject to certain exceptions, acquire further shares in the Company without the prior consent of the Board, provided that such consent would be given for a purchase of up to 5% of the Company’s issued share capital, unless such purchase would have prejudiced the Company’s ability to maintain the free float required by the Listing Rules, or result in the Company becoming a close company. The Relationship Agreement was automatically terminated on 10 September 2009, when Arcandor’s interest in the shares of the Company fell below 30%.
Provisions on change of control
The Company has a €1.8bn Group Facility Agreement (the “Agreement”) in place, which provides that, on any change of control of the Company, the Lenders under the Agreement are entitled to negotiate (for a period not exceeding 30 days) new terms for continuing the facilities but, where agreement on new terms cannot be reached, any such Lender is entitled to: (i) receive a repayment of amounts owing to such Lender; and (ii) cancel all commitments under the Agreement. The ceding of control by Arcandor of its former 52.7% interest and the placing of those shares by the mandated lead arranging banks did not constitute or give rise to a change of control.
Contractual arrangements
The Group has contractual arrangements with numerous third parties in support of its business activities. The disclosure in this report of information about any of those third parties is not considered necessary for an understanding of the development, performance or position of the Group’s businesses.
Political donations
The Company did not make any political donations during the financial year (2008: nil).
Charitable donations
The Company did not give money for charitable purposes within the United Kingdom during the financial year (2008: nil). However, the Company’s charitable activities are described in the Sustainability section.
Supplier payment policy
It is the Company’s policy to comply with the terms of payment agreed with its suppliers. Where payment terms are not negotiated, the Company endeavours to adhere to suppliers’ standard terms. As at 30 September 2009, the Company had no trade creditors (2008: nil).
Major shareholdings
As at 27 November 2009, the Company had been notified, in accordance with rule 5 of the Disclosure Rules and Transparency Rules of the UK Listing Authority, of the following major shareholdings in the ordinary share capital of the Company:
| Name | Number of shares held | Percentage of issued capital (%) |
|---|---|---|
| AXA S.A. | 137,403,567 | 16.01 |
| Lloyds Banking Group plc | 53,241,364 | 6.2 |
| Standard Life Investments Limited | 35,506,178 | 4.14 |
| Legal & General Group plc | 26,098,414 | 3.04 |
Auditors
PricewaterhouseCoopers LLP have expressed their willingness to be re-appointed as auditors of the Company. Upon the recommendation of the Audit Committee, resolutions to re-appoint them as the Company’s auditors and to authorise the Directors to determine their remuneration will be proposed to the Annual General Meeting.
Registered office
Following approval by the Board the Company’s registered office was changed from The Thomas Cook Business Park, Coningsby Road, Peterborough PE3 8SD to 6th Floor South, Brettenham House, Lancaster Place, London WC2E 7EN on 29 October 2009.
The Directors’ Report comprising the Overview, Business Review and Governance sections has been approved by the Board and signed on its behalf by:
Derek Woodward
Group Company Secretary
29 November 2009
Registered office
6th Floor South
Brettenham House
Lancaster Place
London WC2E 7EN
Registered number
6091951
