THE VOLUNTARY OFFER AND ITS TERMS
PARAGRAPH 10 PARAGRAPH 10 THE ACCEPTANCE CONDITION*
It must be a condition of any offer for voting equity share capital or for other transferable securities carrying voting rights which, if accepted in full, would result in the Bidder holding shares carrying over 50% of the voting rights of the Target that the offer will not become or be declared unconditional as to acceptances unless the Bidder has acquired or agreed to acquire (either pursuant to the offer or otherwise) shares carrying over 50% of the voting rights.
Guidance Notes to Paragraph 10
Information to Bidder during offer period and extension of offer to new shares
Following the announcement of a firm intention to make an offer, the Target must, on request, provide the Bidder as soon as possible with all relevant details of the issued shares (including the extent to which any such shares are held in treasury and details of any agreements to transfer or sell such shares out of treasury) and, to the extent not issued, the allotted shares and details of any conversion or subscription rights or any other rights pursuant to the exercise of which shares may be unconditionally allotted or issued during the offer period. In the case of conditionally allotted shares, the details should include the conditions and the date on which such conditions may be satisfied. In the case of rights, the details should include the number of shares which may be unconditionally allotted or issued during the offer period as a result of the exercise of such rights, identifying separately those attributable to rights which commence or expire on different dates, and the various prices at which these rights could be exercised.
The Target must immediately notify the Bidder of any allotment or issue of shares and of the exercise of any such rights during the offer period and provide the Bidder as soon as possible with all relevant details.
The Bidder must make appropriate arrangements to ensure that any person to whom shares of a type to which the offer relates are unconditionally allotted or issued during the offer period will have an opportunity of accepting the offer in respect of such shares.
In cases of doubt, the Panel must be consulted.
PARAGRAPH 11 PARAGRAPH 11 NATURE OF CONSIDERATION TO BE OFFERED
11.1 WHEN A CASH OFFER IS REQUIRED
Except with the consent of the Panel in cases falling under (a) or (b), a cash offer is required where:(a) the shares of any class under offer in the Target in which interests are acquired for cash by a Bidder and any person acting in concert with it during the offer period and within 12 months prior to its commencement carry 10% or more of the voting rights currently exercisable at a class meeting of that class, in which case the offer for that class shall be in cash or accompanied by a cash alternative at not less than the highest price paid by the Bidder or any person acting in concert with it for any interest in shares of that class acquired during the offer period and within 12 months prior to its commencement; or(b) subject to paragraph (a) above, any interest in shares of any class under offer in the Target is acquired for cash by a Bidder or any person acting in concert with it during the offer period, in which case the offer for that class shall be in cash or accompanied by a cash alternative at not less than the highest price paid by the Bidder or any person acting in concert with it for any interest in shares of that class acquired during the offer period; or(c) in the view of the Panel there are circumstances which render such a course necessary in order to give effect to General Principle 1.
11.2 WHEN A SECURITIES OFFER IS REQUIRED
Where interests in shares of any class of the Target carrying 10% or more of the voting rights currently exercisable at a class meeting of that class have been acquired by a Bidder and any person acting in concert with it in exchange for securities in the three months prior to the commencement of and during the offer period, such securities will normally be required to be offered to all other holders of shares of that class.
Unless the vendor or other party to the transaction giving rise to the interest is required to hold the securities received or receivable until either the offer has lapsed or the offer consideration has been sent to accepting shareholders, an obligation to make an offer in cash or to provide a cash alternative will also arise under Paragraph 11.1.
11.3 DISPENSATION FROM HIGHEST PRICE
If the Bidder considers that the highest price (for the purpose of Paragraphs 11.1 and 11.2) should not apply in a particular case, the Bidder should consult the Panel, which has discretion to agree an adjusted price.
Guidance on Paragraph 11
The Panel should be consulted in circumstances where the consideration offered to selling shareholders is calculated by reference to a formula related to the net assets of the Target.
PARAGRAPH 12 PARAGRAPH 12 PRE-CONDITIONS IN FIRM OFFER ANNOUNCEMENTS AND OFFER CONDITIONS
An offer must not normally be subject to conditions or pre-conditions which depend solely on subjective judgments by the Bidder or the Target (as the case may be) or, in either case, its directors or the fulfillment of which is in their hands. The Panel may be prepared to accept an element of subjectivity in certain circumstances where it is not practicable to specify all the factors on which satisfaction of a particular condition or pre-condition may depend, especially in cases involving official authorisations or regulatory clearances, the granting of which may be subject to additional material obligations for the Bidder or the Target (as the case may be).
12.2 ACCEPTABILITY OF PRE-CONDITIONS
The Panel must be consulted in advance if a person proposes to include in an announcement any pre-condition to which the making of an offer will be subject.
Except with the consent of the Panel, an offer must not be announced subject to a precondition unless the pre-condition involves a material official authorisation or regulatory clearance relating to the offer and:(i) the offer is publicly recommended by the board of the Target; or(ii) the Panel is satisfied that it is likely to prove impossible to obtain the authorisation or clearance within the Takeover Rules timetable.
12.3 FINANCING CONDITIONS AND PRE-CONDITIONS(a) Subject to Paragraph 12.3(b) and (c), an offer must not be made subject to a condition or pre-condition relating to financing.(b) Where the offer is for cash, or includes an element of cash, and the Bidder proposes to finance the cash consideration by an issue of new securities, the offer must be made subject to any condition required, as a matter of law or regulatory requirement, in order validly to issue such securities or to have them listed or admitted to trading. Conditions which will normally be considered necessary for such purposes include:(i) the passing of any resolution necessary to create or allot the new securities and/or to allot the new securities on a non-pre-emptive basis (if relevant); and(ii) where the new securities are to be admitted to listing or to trading on any investment exchange or market, any necessary listing or admission to trading condition (see also Paragraph 23.10).Such conditions must not be waivable and the Panel must be consulted in advance.(c) In exceptional cases, the Panel may be prepared to accept a pre-condition relating to financing either in addition to another pre-condition permitted by Paragraph 12.2 or otherwise, for example where, due to the likely period required to obtain any necessary material official authorisation or regulatory clearance, it is not reasonable for the Bidder to maintain committed financing throughout the offer period. In such a case:(i) the financing pre-condition must be satisfied (or waived), or the offer must be withdrawn, within 21 days after the satisfaction (or waiver) of any other precondition or pre-conditions permitted by Paragraph 12.2; and(ii) the Bidder and its financial adviser must confirm in writing to the Panel before announcement of the offer that they are not aware of any reason why the Bidder would be unable to satisfy the financing pre-condition within that 21 day period.(d) If, at any time, the Bidder or its financial adviser becomes aware, or considers it likely, that the Bidder would be unable to satisfy a financing pre-condition, it must promptly notify the Panel.
12.4 INVOKING CONDITIONS AND PRE-CONDITIONS(a) A Bidder should not invoke any condition or pre-condition so as to cause the offer not to proceed, to lapse or to be withdrawn unless the circumstances which give rise to the right to invoke the condition or pre-condition are of material significance to the Bidder in the context of the offer. The acceptance condition is not subject to this provision.(b) Following the announcement of a firm intention to make an offer, a Bidder should use all reasonable efforts to ensure the satisfaction of any conditions or pre-conditions to which the offer is subject.
12.5 INVOKING TARGET PROTECTION CONDITIONS
A Target should not invoke, or cause or permit the Bidder to invoke, any condition to an offer unless the circumstances which give rise to the right to invoke the condition are of material significance to the shareholders in the Target in the context of the offer.