Chapter 1 Chapter 1 The Takeover Panel
The Panel and its rules
1. The Panel(1) A takeover panel (the "Panel") shall be established for the purpose of carrying out the functions conferred on it by or under these Regulations.(2) The membership of Panel shall be determined by the Board from time to time.(3) The Panel shall be responsible for ensuring orderly conduct of takeover bids and merger transactions in accordance with these Regulations and the rules made by the Panel pursuant to these Regulations, including —(a) setting out general principles for the conduct of takeover bids and merger transactions,(b) ensuring that the Panel's powers are exercised in order to give effect to such principles,(c) giving rulings and directions on the application of these Regulations and the rules made by the Panel pursuant to these Regulations, and(d) the day to day supervision of takeover bids and merger transactions.(4) The Panel may do anything that it considers necessary or expedient for the purposes of, or in connection with, its functions.(5) The Panel may make arrangements for any of its functions to be discharged by —(a) a committee or sub-committee of the Panel,(b) an officer or member of staff of the Panel, or a person acting as such,(c) an officer or member of staff of the Financial Services Regulator, or a person acting as such, or(d) an officer or member of staff of the Registrar, or a person acting as such.
2. Rules(1) The Panel may make rules —(a) for or in connection with the regulation of takeover bids and merger transactions of relevant companies, however effected, including by means of contractual offer, statutory merger or scheme of arrangement and other transactions which have the objective or potential effect (directly or indirectly) of obtaining or consolidating control of relevant companies, as well as partial offers to shareholders for securities in relevant companies (a "takeover transaction"),(b) for or in connection with the regulation of things done in consequence of, or otherwise in relation to, any such bid or transaction, and(c) about cases where —(i) any such bid or transaction is, or has been, contemplated or apprehended, or(ii) an announcement is made denying that any such bid or transaction is intended.(2) A reference to rules in the following provisions of this Chapter is to rules under these Regulations.(3) Subject to sub-section (6), rules made under this Section apply in respect of the following persons in relation to takeover transactions —(a) any body corporate whose voting shares are, or have been in the 5 years prior to the relevant date, listed or admitted to trading on any recognised investment exchange within the Abu Dhabi Global Market, irrespective of their jurisdiction of incorporation,(b) any company registered in the Abu Dhabi Global Market (whether incorporated in or continued into the Abu Dhabi Global Market) as a public company at any time in the 5 years prior to the relevant date and having more than 50 shareholders except where, on the application of the company, the Panel rules otherwise,(c) any person making or contemplating making an offer to acquire securities in any of the foregoing,(d) directors, partners, officers, employees or representatives through whom any of the foregoing acts, and(e) professional advisers of the foregoing in so far as they are acting in relation to a takeover transaction.In the case of (a) and (b) above, the relevant date is the date on which an announcement is made of a proposed offer for the company or the date on which some other event occurs which has significance under rules made under this Section.(4) Bodies corporate who are subject to rules made under this Section —(a) are required to ensure that their directors and employees are provided with adequate guidance in respect of the application of rules made under this Section, and(b) shall be held responsible for the acts or omissions of their directors or employees.(5) In the event of uncertainty as to the application of rules made under this Section to any entity or person, clarification should be sought from the Panel.(6) Rules made under this Section shall not apply to companies established for the sole purpose of collective investment or to any protected cell company or incorporated cell company or any cell of such a company.
3. Further provisions about rules(1) Rules made by the Panel may —(a) make different provision for different purposes,(b) make provision subject to exceptions or exemptions,(c) make provision by reference to other rules made by the Panel, the Financial Services Regulator or any other person exercising a regulatory function within the Abu Dhabi Global Market, as those rules have effect from time to time,(d) may contain such incidental, supplemental, consequential and transitional provision as the Panel considers appropriate, and(e) authorise the Panel to dispense with or modify the application of rules in particular cases and by reference to any circumstances.Rules made by virtue of paragraph (e) must require the Panel to give reasons for acting as mentioned in that paragraph.(2) Any power conferred on the Panel to make rules is exercisable in writing.(3) A rule making instrument must be published by the Panel on the ADGM website.(4) A person is not to be taken to have contravened any rule made by the Panel if the person shows that at the time of the alleged contravention the rule making instrument concerned had not been published in accordance with subsection (3).
4. Consultation(1) Before the Panel makes, modifies or replaces rules, it must publish a draft of the rules on the ADGM website.(2) The draft must be accompanied by a notice that representations about the proposal may be made to the Panel within a specified time.(3) Before the Panel issues rules, it may have regard to any representations made to it in accordance with subsection (2) .(4) Subsections (1) to (3) do not apply if the Panel considers that there is an urgent need to publish the rules.(5) Subsection (2) does not apply in relation to rules issued by the Panel if it considers that the delay involved in complying with it would be prejudicial to its objectives.
5. Rulings(1) The Panel may give rulings on the interpretation, application or effect of rules.(2) To the extent and in the circumstances specified in rules, and subject to any review or appeal, a ruling has binding effect.
Rules may contain provision conferring power on the Panel to give any direction that appears to the Panel to be necessary in order —(a) to restrain a person from acting (or continuing to act) in breach of rules,(b) to restrain a person from doing (or continuing to do) a particular thing, pending determination of whether that or any other conduct of his is or would be a breach of rules, or(c) otherwise to secure compliance with rules.
7. Waiver or modification of rules(1) The Panel may, on the application or with the consent of a person who is subject to rules made by the Panel, direct that all or any of those rules —(a) are not to apply to that person, or(b) are to apply to that person with such modifications as may be specified in the direction.(2) An application must be made in such manner as the Panel may direct.(3) The Panel may not give a direction made pursuant to subsection (1) unless it is satisfied that —(a) compliance by the person with the rules, or with the rules as unmodified, would be unduly burdensome or would not achieve the purpose for which the rules were made, and(b) the direction would not adversely affect the advancement of any of the Abu Dhabi Global Market's objectives.(4) A direction may be given subject to conditions.(5) The Panel may —(a) revoke a direction made pursuant to subsection (1), or(b) vary it on the application, or with the consent, of the person to whom it relates.
8. Publication of waivers and modifications(1) Subject to subsection (2), a direction made pursuant to Section 7(1) must be published by the Panel on the ADGM website.(2) Subsection (1) does not apply if the Panel is satisfied that it is inappropriate or unnecessary to publish the direction.(3) In deciding whether it is satisfied as mentioned in subsection (2), the Panel must consider whether the failure to publish the direction would adversely affect the advancement of any of the Abu Dhabi Global Market's objectives.
9. Guidance(1) The Panel may give guidance with respect to —(a) the operation of any provision of these Regulations and of any rules,(b) any other matter relating to the functions and powers of the Panel, and(c) any other matter about which it appears to the Panel to be desirable to give guidance.(2) Guidance is indicative and non-binding and may comprise —(a) guidance made and issued by the Panel as notations to the rules, and(b) any guidance issued by the Panel which has not been incorporated into the rules.(3) Nothing shall constitute guidance unless it is published by the Panel on the ADGM website and indicates that it constitutes guidance.
10. Fees and charges
Rules made under Section 2(1) may provide for fees or charges to be payable to the Panel.
11. Power to require documents and information(1) Subject to Section 25, the Panel may by notice in writing require a person —(a) to produce any documents that are specified or described in the notice, and(b) to provide, in the form and manner specified in the notice, such information as may be specified or described in the notice.(2) A requirement under subsection (1) must be complied with —(a) at a place specified in the notice, and(b) before the end of such reasonable period as may be so specified.(3) This section applies only to documents and information reasonably required in connection with the exercise by the Panel of its functions.(4) The Panel may require —(a) any document produced to be authenticated, or(b) any information provided (whether in a document or otherwise) to be verified,in such manner as it may reasonably require.(5) The Panel may authorise a person to exercise any of the Panel's powers under this section.(6) A person exercising a power by virtue of subsection (5) must, if required to do so, produce evidence of his authority to exercise the power.(7) The production of a document in pursuance of this section does not affect any lien that a person has on the document.(8) The Panel may take copies of or extracts from a document produced in pursuance of this section.(9) A reference in this section to the production of a document includes a reference to the production of —(a) a hard copy of information recorded otherwise than in hard copy form, or(b) information in a form from which a hard copy can be readily obtained.
12. Restrictions on disclosure(1) In this Section and in Section 13 "Confidential Information" means information which, regardless of whether or not received by virtue of a requirement to provide it imposed by or under these Regulations —(a) relates to the business or other affairs of any person, and(b) was received by the Panel for the purposes of, or in the discharge of, any functions of the Panel under any rules made by or under these Regulations,unless —(i) the information has been made available to the public by virtue of being disclosed in any circumstances in which, or for any purposes for which, disclosure is not precluded by this section, or(ii) it is in the form of a summary or collection of information so framed that it is not possible to ascertain from it information relating to any particular person.(2) Confidential Information must not be disclosed by —(a) the Panel, or by any person obtaining the Confidential Information directly or indirectly from the Panel,(b) any person who is or has been employed by the Panel,(c) a person who is or has been engaged to provide services to the Panel, or(d) any expert instructed by the Panel,without the prior consent of —(i) the person from whom the Panel obtained the Confidential Information, and(ii) if different, the person to whom it relates.
13. Exceptions from Section 12(1) Section 11 does not prevent a disclosure of Confidential Information which is made for the purpose of facilitating the carrying out of the Panel's functions and is —(a) permitted or required under any enactment applicable to the Panel, including, for the avoidance of doubt, any applicable international obligations,(b) made to —(i) any regulatory authority or body in the Abu Dhabi Global Market (including the Registrar and the Financial Services Regulator),(ii) a governmental or regulatory authority exercising powers and performing functions relating to anti-money laundering, counter-terrorist financing or sanctions compliance, whether in the Abu Dhabi Global Market or otherwise,(iii) a self-regulatory body or organisation exercising and performing powers and functions in relation to financial services, whether in the Abu Dhabi Global Market or otherwise,(iv) a civil or criminal law enforcement agency, whether in the Abu Dhabi Global Market or otherwise,(v) any other governmental or other regulatory body or authority, whether in the Abu Dhabi Global Market or otherwise,for the purpose of assisting the performance by any such person of its functions and powers, or(c) made in good faith for the purposes of the exercise of the functions and powers of the Panel or in order to further the Panel's objectives.(2) Any disclosure by the Panel pursuant to subsection (1) may include, insofar as the Panel considers appropriate, provisions —(a) making any permission to disclose Confidential Information subject to conditions (which may relate to the obtaining of consents or any other matter), and(b) restricting the uses to which Confidential Information disclosed may be put.
14. Admissibility of statements made to the Panel(1) A statement made to the Panel by a person in compliance with Section 11 is admissible in evidence in any proceedings, so long as it also complies with any requirements governing the admissibility of evidence in the circumstances in question.(2) The Panel shall not disclose a statement made by a person in answer to any question asked pursuant to Section 11 to any law enforcement agency for the purpose of criminal proceedings against the person unless —(a) the person consents to the disclosure; or(b) the Panel is required by law or Court order to disclose the statement.
15. Panel's duty of co-operation(1) The Panel must take such steps as it considers appropriate to co-operate with —(a) any regulatory authority or body in the Abu Dhabi Global Market (including the Registrar and the Financial Services Regulator),(b) a governmental or regulatory authority exercising powers and performing functions relating to anti-money laundering, counter terrorist financing or sanctions compliance, whether in the Abu Dhabi Global Market or otherwise,(c) a self-regulatory body or organisation exercising and performing powers and functions in relation to financial services, whether in the Abu Dhabi Global Market or otherwise,(d) a civil or criminal law enforcement agency, whether in the Abu Dhabi Global Market or otherwise,(e) any other governmental or other regulatory body or authority, whether in the Abu Dhabi Global Market or otherwise,(2) Co-operation may include the sharing of information that the Panel is not prevented from disclosing.
16. Appeals(1) Any decision, order or direction made by the Panel in accordance with these Regulations or Rules made under section 2 may be appealed by the person against whom such decision, order or direction was made, to the Appeals Panel constituted under section 227 of the Financial Services and Markets Regulations 2015 (the "Appeals Panel") for a full merits review.(2) The Appeals Panel has jurisdiction to do as it deems necessary for, or in connection with, or reasonably incidental to, performing its functions and exercising its powers conferred for the purposes of these Regulations, including the giving of directions as to practice and procedure to be followed by the Appeals Panel in the hearing and/or determination of appeals of decisions, orders or directions of the Panel.(3) The President of the Appeals Panel may establish one or more sub panels to exercise the jurisdiction and perform the role of the Appeals Panel.(4) The President of the Appeals Panel, or the head of a sub panel established pursuant to subsection (3), may make any procedural order or order granting interim relief that the Appeals Panel has jurisdiction to make.(5) Notice of appeal against a decision or direction of the Panel must be given to the Appeals Panel within 28 days of the relevant decision or direction.(6) The provisions of sections 228(5) to (10), section 229 (but excluding subsection (1)(b)) and 230 of the Financial Services and Markets Regulations 2015 shall apply, mutatis mutandis, to appeals made under this Section 16 provided that for such purposes references in the Financial Services and Markets Regulations 2015 to:(a) the "Regulator" and the "Chief Executive" shall be construed as references to the "Panel",(b) the "Regulatory Committee" should be disregarded, and(c) "these Regulations" should be construed as References "these Regulations or Rules made under section 2".
Contravention of rules etc.
17. Sanctions(1) Rules may contain provision conferring power on the Panel to impose sanctions on a person who has —(a) acted in breach of rules, or(b) failed to comply with a direction given by virtue of section 6.(2) The Panel must prepare a statement (a "policy statement") of its policy with respect to —(a) the imposition of the sanction in question, and(b) where the sanction is in the nature of a financial penalty, the amount of the penalty that may be imposed.An element of the policy must be that, in making a decision about any such matter, the Panel has regard to the factors mentioned in subsection (3).(3) The factors are —(a) the seriousness of the breach or failure in question in relation to the nature of the rule or direction contravened,(b) the extent to which the breach or failure was deliberate or reckless, and(c) whether the person on whom the sanction is to be imposed is an individual.(4) The Panel may at any time revise a policy statement.(5) The Panel must prepare a draft of any proposed policy statement (or revised policy statement) and consult such persons about the draft as the Panel considers appropriate.(6) The Panel must publish on the ADGM website any policy statement (or revised policy statement) that it prepares.
18. Failure to comply with rules about bid documentation(1) Where an offer document published in respect of a takeover bid does not comply with offer document rules, a contravention of these Regulations is committed by —(a) the person making the bid, and(b) where the person making the bid is a body of persons, any director, officer or member of that body who caused the document to be published.(2) A person commits a contravention of these Regulations under subsection (1) only if —(a) he knew that the offer document did not comply, or was reckless as to whether it complied, and(b) he failed to take all reasonable steps to secure that it did comply.(3) Where a response document published in respect of the bid does not comply with response document rules, contravention of these Regulations is committed by any director or other officer of the company who —(a) knew that the response document did not comply, or was reckless as to whether it complied, and(b) failed to take all reasonable steps to secure that it did comply.(4) A person who contravenes these Regulations is liable to a fine of such amount the Panel considers appropriate. A penalty may not be imposed on any person under these Regulations in excess of the maximum amount that may be imposed under the ADGM Founding Law.(5) Nothing in this section affects any power of the Panel in relation to the enforcement of its rules.(6) In this section —
"offer document" means a document required to be published by the offer document rules,
"offer document rules" means rules designated as such in rules made under these Regulations,
"response document" means a document required to be published by the response document rules, and
"response document rules" means rules designated as such in rules made under these Regulations.
19. Compensation(1) The Panel may make rules which provide for a person to pay such compensation as the Panel thinks just and reasonable if he is in breach of a rule the effect of which is to require the payment of money.(2) Rules made by virtue of this section may include provision for the payment of interest (including compound interest).
20. Enforcement by the Court(1) If, on the application of the Panel, the Court is satisfied —(a) that there is a reasonable likelihood that a person will contravene a rule-based requirement, or(b) that a person has contravened a rule-based requirement or a disclosure requirement,the Court may make any order it thinks fit to secure compliance with the requirement.(2) Except as provided by subsection (1), no person has a right to seek an injunction to prevent a person from contravening (or continuing to contravene) a rule-based requirement or a disclosure requirement.(3) In this section —
"contravene" includes fail to comply,
"disclosure requirement" means a requirement imposed under section 11, and
"rule-based requirement" means a requirement imposed by or under rules.
21. No action for breach of statutory duty etc.(1) Contravention of a rule-based requirement or a disclosure requirement does not give rise to any right of action for breach of statutory duty.(2) Contravention of a rule-based requirement does not make any transaction void or unenforceable or (subject to any provision made by rules) affect the validity of any other thing.(3) In this section —(a) "contravention" includes failure to comply, and(b) "disclosure requirement" and "rule-based requirement" have the same meaning as in Section 20.
Miscellaneous and supplementary
22. Panel as party to proceedings
The Panel is capable (despite being an unincorporated body) of —(a) bringing proceedings under this Chapter in its own name, and(b) bringing or defending any other proceedings in its own name.
23. Exemption from liability in damages(1) Neither the Panel, nor any person within subsection (2), is to be liable in damages for anything done (or omitted to be done) in, or in connection with, the discharge or purported discharge of the Panel's functions.(2) A person is within this subsection if —(a) he is (or is acting as) a member, officer or member of staff of the Panel, or(b) he is a person authorised under section 11.(3) Subsection (1) does not apply if the act or omission is shown to have been in bad faith.
24. Self-incrimination(1) Subject to Section 25, it is not a reasonable excuse for a person to refuse or fail to —(a) permit inspection and copying of any information or document,(b) give or produce, or procure the giving or production of, any information or document, or(c) answer questions,pursuant to any requirement under section 11 or an order made by the Court under Section 20 to secure compliance with such a requirement on the grounds that any such information or document or answer, as the case may be —(d) might tend to incriminate the person, or(e) is, or contains, or might reveal a communication made in confidence.
25. Protected information and documents(1) In this Section, "Protected Items" means —(a) communications between a professional legal adviser and his client or any person representing his client which fall within subsection (2),(b) communications between a professional legal adviser, his client or any person representing his client and any other person which fall within subsection (2) (as a result of paragraph (b) of that subsection),(c) items which —(i) are enclosed with, or referred to in, such communications,(ii) fall within subsection (2), and(iii) are in the possession of a person entitled to possession of them,(d) in the case of any information held by the Panel, information which —(i) is supplied by or relating to bodies dealing with security matters,(ii) is held by public authorities in the exercise of their functions,(iii) relates to national security or international relations,(iv) relates to the economic and financial interests of the Abu Dhabi Global Market or to its financial stability, and(v) constitutes trade secrets.(2) A communication or item falls within this subsection if it is made —(a) in connection with the giving of legal advice to the client, or(b) in connection with, or in contemplation of, legal proceedings and for the purposes of those proceedings.A communication or item is not a Protected Item if it is held with the intention of furthering a criminal purpose.(3) A person may not be required by or under these Regulations to produce, disclose or permit the inspection of Protected Items.(4) Where there are any grounds for withholding any Protected Items, such grounds shall apply only to the relevant parts of the document which are affected by such grounds and not to any other part of the document.(5) A lawyer may be required under this Chapter to furnish the name and address of his client.(6) Where the Panel requires a lawyer to give information or to produce a Document or to answer a question, and the giving of the information or the production of the Document or the answer to the question would involve disclosing a legally privileged communication made by, on behalf of, or to, the lawyer in his capacity as a lawyer, the lawyer is entitled to refuse to comply with the requirement unless —(a) where the person to whom, or by, or on behalf of whom, the communication was made is a body corporate that is subject to winding up proceedings, the liquidator of the body consents to the lawyer complying with the requirement, or(b) otherwise, the person to whom, or by, or on behalf of whom, the communication was made consents to the lawyer complying with the requirement.(7) Where a lawyer so refuses to comply with a requirement, he shall, as soon as practicable, give to the Panel a written notice setting out —(a) where the lawyer knows the name and address of the person to whom, or by whom, or on behalf of whom, the communication was made, then that name and address, and(b) where the requirement to give information or produce a document relates to a communication which was made in writing, then sufficient particulars to identify the document containing the communication.