• CONDUCT DURING THE OFFER

    • PARAGRAPH 18 PARAGRAPH 18 INFORMATION

      • 18.1 STANDARDS OF CARE

        Each document, announcement or other information published, or statement made, during the course of an offer must be prepared with the highest standards of care and accuracy. The language used must clearly and concisely reflect the position being described and the information given must be adequately and fairly presented. These requirements apply whether the document, announcement or other information is published, or the statement is made, by the party concerned or by an adviser on its behalf.

      • 18.2 18.2 RESPONSIBILITY

        (a) Each document or advertisement published in connection with an offer by, or on behalf of, the Bidder or the Target, must state that the directors of the Bidder and/or, where appropriate, the Target accept responsibility for the information contained in the document or advertisement and that, to the best of their knowledge and belief (having taken all reasonable care to ensure that such is the case), the information contained in the document or advertisement is in accordance with the facts and, where appropriate, that it does not omit anything likely to affect the import of such information. This Paragraph does not apply to:
        (i) advertisements falling within paragraphs (i), (ii) or (viii) of Paragraph 18.4;
        (ii) advertisements which only contain information already published in a circular which included the statement required by this Paragraph; and
        (iii) any separate opinion of the employee representatives of the Target Paragraph 31.6.
        (b) If it is proposed that any director should be excluded from such a statement, the Panel's consent is required. Such consent is given only in exceptional circumstances and in such cases the omission and the reasons for it must be stated in the document or advertisement.

        Guidance Notes on Paragraph 18.2

        While a board of directors may delegate the day-to-day conduct of an offer to individual directors or a committee of directors, the board as a whole must ensure that proper arrangements are in place to enable it to monitor that conduct in order that each director may fulfil his responsibilities under the Takeover Rules . These arrangements should ensure that:

        (a) the board is provided promptly with copies of all documents and announcements published by or on behalf of their company which bear on the offer; the board receives promptly details of all dealings in relevant securities made by their company or any persons acting in concert with it and details of any agreements, understandings, guarantees, expenditure (including fees) or other obligations entered into or incurred by or on behalf of their company in the context of the offer which do not relate to routine administrative matters;

        (b) those directors with day-to-day responsibility for the offer are in a position to justify to the board all their actions and proposed courses of action; and

        (c) the opinions of advisers are available to the board where appropriate. The above procedures should be followed, and board meetings held,

        as and when necessary throughout the offer in order to ensure that all directors are kept up-to-date with events and with actions taken.

        Any director who has a question concerning the propriety of any action as far as the Takeover Rules is concerned should ensure that the Panel is consulted.

        The Panel expects directors to co-operate with it in connection with its enquiries; this will include the provision, promptly on request, of copies of minutes of board meetings and other information in their possession, or in the possession of a Target or the Bidder as appropriate, which may be relevant to the enquiry.

        If detailed supervision of any document or advertisement has been delegated to a committee of the board, each of the remaining directors of the company must reasonably believe that the persons to whom supervision has been delegated are competent to carry it out and must have disclosed to the committee all relevant facts directly relating to himself (including his close relatives and related trusts) and all other relevant facts known to him and relevant opinions held by him which, to the best of his knowledge and belief, either are not known to any member of the committee or, in the absence of his specifically drawing attention thereto, are unlikely to be considered by the committee during the preparation of the document or advertisement. This does not, however, override any other legal requirements relating to the acceptance of responsibility for a prospectus or equivalent document where applicable.

        • Guidance Notes on Paragraph 18.2

          While a board of directors may delegate the day-to-day conduct of an offer to individual directors or a committee of directors, the board as a whole must ensure that proper arrangements are in place to enable it to monitor that conduct in order that each director may fulfil his responsibilities under the Takeover Rules . These arrangements should ensure that:

          (a) the board is provided promptly with copies of all documents and announcements published by or on behalf of their company which bear on the offer; the board receives promptly details of all dealings in relevant securities made by their company or any persons acting in concert with it and details of any agreements, understandings, guarantees, expenditure (including fees) or other obligations entered into or incurred by or on behalf of their company in the context of the offer which do not relate to routine administrative matters;
          (b) those directors with day-to-day responsibility for the offer are in a position to justify to the board all their actions and proposed courses of action; and
          (c) the opinions of advisers are available to the board where appropriate. The above procedures should be followed, and board meetings held,

          as and when necessary throughout the offer in order to ensure that all directors are kept up-to-date with events and with actions taken.

          Any director who has a question concerning the propriety of any action as far as the Takeover Rules is concerned should ensure that the Panel is consulted.

          The Panel expects directors to co-operate with it in connection with its enquiries; this will include the provision, promptly on request, of copies of minutes of board meetings and other information in their possession, or in the possession of a Target or the Bidder as appropriate, which may be relevant to the enquiry.

          If detailed supervision of any document or advertisement has been delegated to a committee of the board, each of the remaining directors of the company must reasonably believe that the persons to whom supervision has been delegated are competent to carry it out and must have disclosed to the committee all relevant facts directly relating to himself (including his close relatives and related trusts) and all other relevant facts known to him and relevant opinions held by him which, to the best of his knowledge and belief, either are not known to any member of the committee or, in the absence of his specifically drawing attention thereto, are unlikely to be considered by the committee during the preparation of the document or advertisement. This does not, however, override any other legal requirements relating to the acceptance of responsibility for a prospectus or equivalent document where applicable.

      • 18.3 UNACCEPTABLE STATEMENTS

        Parties to an offer and their advisers must take care not to make statements which, while not factually inaccurate, may be misleading or may create uncertainty. In particular, a Bidder must not make a statement to the effect that it may improve its offer, or that it may make a change to the structure, conditionality or the non-financial terms of its offer, without committing itself to doing so and specifying the improvement or change. In the case of any doubt as to the application of this Paragraph to a proposed statement, parties to an offer and their advisers should consult the Panel.

      • 18.4 ADVERTISEMENTS

        The publication of advertisements connected with an offer or potential offer is prohibited unless the advertisement falls within one of the categories listed below. In addition, except where the advertisement falls within categories (i) or (viii), it must be cleared with the Panel in advance.

        The categories are as follows:

        (i) product advertisements not bearing on an offer or potential offer (where there could be any doubt, the Panel must be consulted);
        (ii) corporate image advertisements not bearing on an offer or potential offer;
        (iii) advertisements confined to non-controversial information about an offer (eg reminders as to closing times or the value of an offer). Such advertisements must avoid argument or invective;
        (iv) advertisements comprising preliminary or interim results and their accompanying statement, provided the latter is not used for argument or invective concerning an offer;
        (v) advertisements giving information, the publication of which by advertisement is required or specifically permitted by the Abu Dhabi Global Market;
        (vi) advertisements communicating information relevant to holders of bearer securities;
        (vii) advertisements comprising a tender offer;
        (viii) advertisements which are notices relating to a scheme of arrangement; or
        (ix) advertisements published with the specific prior consent of the Panel. (As examples, this might be given if it were necessary to publish a document, announcement or information during a postal strike or in the circumstances referred to in Guidance Notes issued under Paragraph 19))

      • 18.5 TELEPHONE CAMPAIGNS

        Except with the consent of the Panel, campaigns in which shareholders or other persons interested in shares are contacted by telephone may be conducted only by staff of the financial adviser who are fully conversant with the requirements of, and their responsibilities under, the Takeover Rules . Only previously published information which remains accurate, and is not misleading at the time it is quoted, may be used in telephone campaigns. Shareholders and other persons interested in shares must not be put under pressure and must be encouraged to consult their professional advisers.

      • 18.6 INTERVIEWS AND DEBATES

        Parties to an offer should, if interviewed on radio, television or any other media, seek to ensure that the sequence of the interview is not broken by the insertion of comments or observations by others not made in the course of the interview. Further, joint interviews or public confrontation between representatives of the Bidder and the Target, or between competing Bidders, should be avoided

    • PARAGRAPH 19 PARAGRAPH 19 EQUALITY OF INFORMATION

      • 19.1 EQUALITY OF INFORMATION TO SHAREHOLDERS AND PERSONS WITH INFORMATION RIGHTS

        Information about parties to an offer must be made equally available to all Target shareholders and persons with information rights as nearly as possible at the same time and in the same manner.

      • 19.2 EQUALITY OF INFORMATION TO COMPETING BIDDERS

        Any information given to one Bidder or potential Bidder, whether publicly identified or not, must, on request, be given equally and promptly to another Bidder or bona fide potential Bidder even if that other Bidder is less welcome. This requirement will usually only apply when there has been a public announcement of the existence of the Bidder or potential Bidder to which information has been given or, if there has been no public announcement, when the Bidder or bona fide potential Bidder requesting information under this Paragraph has been informed authoritatively of the existence of another potential Bidder.

      • 19.3 INFORMATION TO INDEPENDENT DIRECTORS IN MANAGEMENT BUY OUTS

        If the offer or potential offer is a management buy-out or similar transaction, the Bidder or potential Bidder must, on request, promptly furnish the independent directors of the Target or its advisers with all information which has been furnished by the Bidder or potential Bidder to external providers or potential providers of finance (whether equity or debt) for the buy-out.

    • PARAGRAPH 20 PARAGRAPH 20 RESTRICTIONS ON FRUSTRATING ACTION

      • 20.1 WHEN SHAREHOLDERS' CONSENT IS REQUIRED

        During the course of an offer, or even before the date of the offer if the board of the Target has reason to believe that a bona fide offer might be imminent, the board must not, without the approval of the shareholders in general meeting:

        (a) take any action which may result in any offer or bona fide possible offer being frustrated or in shareholders being denied the opportunity to decide on its merits; or
        (i) issue any shares or transfer or sell, or agree to transfer or sell, any shares out of treasury or effect any redemption or purchase by the company of its own shares;
        (ii) issue or grant options in respect of any unissued shares;
        (iii) create or issue, or permit the creation or issue of, any securities carrying rights of conversion into or subscription for shares;
        (iv) sell, dispose of or acquire, or agree to sell, dispose of or acquire, assets of a material amount; or
        (v) enter into contracts otherwise than in the ordinary course of business.
        The Panel must be consulted in advance if there is any doubt as to whether any proposed action may fall within this Paragraph.

        The notice convening any relevant meeting of shareholders must include information about the offer or anticipated offer.

        Where it is felt that:
        (a) the proposed action is in pursuance of a contract entered into earlier or another pre existing obligation; or
        (b) a decision to take the proposed action had been taken before the beginning of the period referred to above which:
        (i) has been partly or fully implemented before the beginning of that period; or
        (ii) has not been partly or fully implemented before the beginning of that period but is in the ordinary course of business,
        the Panel must be consulted and its consent to proceed without a shareholders' meeting obtained.

      • 20.2 INDUCEMENT FEES AND OTHER OFFER RELATED ARRANGEMENTS

        (a) Except with the consent of the Panel, neither the Target nor any person acting in concert with it may enter into any offer related arrangement with either the Bidder or any person acting in concert with it during an offer period or when an offer is reasonably in contemplation.
        (b) An offer related arrangement means any agreement, arrangement or commitment in connection with an offer, including any inducement fee arrangement or other arrangement having a similar or comparable financial or economic effect, but excluding:
        (i) a commitment to maintain the confidentiality of information provided that it does not include any other provisions prohibited by Paragraphs 20.2(a) or 2.3(d) or otherwise under the Takeover Rules ;
        (ii) a commitment not to solicit employees, customers or suppliers;
        (iii) a commitment to provide information or assistance for the purposes of obtaining any official authorisation or regulatory clearance;
        (iv) irrevocable commitments and letters of intent;
        (v) any agreement, arrangement or commitment which imposes obligations only on a Bidder or any person acting in concert with it, other than in the context of a reverse takeover;
        (vi) any agreement relating to any existing employee incentive arrangement; and
        (vii) an agreement between a Bidder and the managers of any of the Target's pension schemes in relation to the future funding of the pension scheme.
        (c) If there is any doubt as to whether any proposed agreement, arrangement or commitment is subject to this Paragraph, the Panel should be consulted at the earliest opportunity.

    • PARAGRAPH 21 PARAGRAPH 21 RESPONSIBILITIES OF THE TARGET AND AN BIDDER REGARDING REGISTRATION PROCEDURES AND PERSONS WITH INTERESTS IN SECURITIES REPRESENTING 1% OR MORE

      (a) The board of the Target should ensure that its registrar complies fully with the procedures set out in this Paragraph and the Guidance Notes below. The board should also ensure prompt registration of transfers during an offer.
      (b) The board of the Target should assist the Panel in identifying persons who are interested in 1% or more of any class of relevant securities of the Target and, promptly after the commencement of an offer period, should provide the Panel with details of all persons who are reasonably considered to be so interested. Such persons should also be sent an explanation of their disclosure obligations under Paragraph 8 at the same time as their details are provided to the Panel.
      (c) Except in cases where it has been announced that any offer is, or is likely to be, in cash, the board of the Bidder should assist the Panel in identifying persons who are interested in 1% or more of any class of relevant securities of the Bidder and, promptly after the announcement that first identifies the Bidder as such, should provide the Panel with details of all persons who are reasonably considered to be so interested. Such persons should be sent an explanation of their disclosure obligations under Paragraph 8 at the same time as their details are provided to the Panel.

      • Guidance Notes on Paragraph 21

        It is essential when determining the result of an offer under the Takeover Rules that appropriate measures are adopted such that all parties to the offer may be confident that the result of the offer is arrived at by an objective procedure which, as far as possible, eliminates areas of doubt. This Guidance is designed to ensure that those acceptances and purchases which may be counted towards fulfilling the acceptance condition and thus included in the certificate are properly identified. Receiving agents are also required to establish appropriate procedures such that acceptances and purchases can be checked against each other and between different categories so that no shareholding will be counted twice.

        The principles and procedures outlined in this Guidance are, except with the prior consent of the Panel, to be followed in all cases. It must be understood that the Panel expects co-operation between the Target's registrar and the Bidder's receiving agent to ensure that the procedures can be undertaken in a timely manner. Co- operation is interpreted to include the provision of data in a form convenient for the receiving agent. For example, if the receiving agent so requests, following the announcement of an offer, the registrar should, if practicable, provide the register in electronic form. Whenever possible, if requested to do so, the registrar should provide, in similar form, details of changes to the register rather than a complete new register.

        Receiving agents will have direct access to the Panel should they believe that there is insufficient co-operation or that they are being given instructions contrary to this Guidance.

        Qualifications for acting as a receiving agent

        A receiving agent to an offer must either have performed the duties of a receiving agent on more than 25 occasions or be an organisation which has satisfied the Panel that it has the experience and resources necessary to act as receiving agent in connection with the relevant offer.

        The provision of the Target's register

        (a) When a firm intention to make an offer is announced, the Target should instruct its registrar to respond within two business days to a request from the Bidder for the provision of the register which should be updated to reflect the position as at the close of business on the date of the request.
        (b) The Target's registrar should also be instructed to keep the register as up-to-date as the register maintenance system will allow. The updating procedures should include, in addition to the registration of transfers, the registration of all changes affecting the register (eg grants of representation, marriage certificates, changes of address, court orders etc.).

        As far as certificated holdings are concerned, the registrar must provide updates, on a daily basis, to the register within two business days after notification of the transfer and, in addition, copies of all documents, which would lead to a change in the last copy register provided to the Bidder must be provided as rapidly. On the final register day* any such information received by the Target's registrar but not yet provided to the Bidder's receiving agent must be made available electronically, where possible, or for collection by the Bidder's receiving agent, at the latest, by noon on the day preceding the final closing date† of the offer.

        From the final register day* until the time that the offer becomes or is declared unconditional as to acceptances or lapses, the Target's registrar should continue to update the register on a daily basis so that all transfers and other documents which have been received by the Target's registrar by 1.00 pm on the final closing date† of the offer are processed by 5.00 pm that day at the latest. In addition, copies of these documents should be sent immediately and electronically, where possible, to the Bidder's receiving agent insofar as not previously notified.
        (d) Arrangements should be made to ensure that the Bidder's receiving agent has access to the Target's registrar at all times, which includes weekends and Bank Holidays, during the period between the final register day* and the time the offer becomes or is declared unconditional as to acceptances or lapses, in order that any queries arising from acceptances and purchases can be investigated and accurate decisions taken.

        *† See definitions at end of Guidance

        The provision of addresses, electronic addresses, elections and other details

        (a) When a firm intention to make an offer is announced, the Target should respond, or instruct its registrar to respond, within two business days to a request from the Bidder for details in respect of:
        (i) electronic addresses provided to the Target by shareholders in the Target for the receipt of documents, announcements and other information in electronic form;
        (ii) addresses, electronic addresses and other information provided to the Target by, or on behalf of, persons with information rights for the receipt of documents, announcements and other information in hard copy form or electronic form;
        (iii) addresses, electronic addresses and other information provided to the Target by any other persons entitled to receive copies of documents, announcements or information for the receipt of such communications in hard copy form or electronic form (including a copy of any register(s) of persons entitled to receive documents under Paragraph 15); and
        (iv) elections made in accordance with applicable legal or regulatory provisions by, or on behalf of, shareholders in the Target, persons with information rights or any other relevant persons to receive communications from the Target in hard copy form,

        provided, in each case, that the relevant address, electronic address, election or other information has been provided to the Target for the receipt of information generally and not only for certain specific types of information.
        (b) The information provided to a Bidder in compliance with (a) above should be updated to reflect the position as at the close of business on the day of the request. The Target shall ensure, or shall instruct its registrar to ensure, that the information described in (a) above is kept as up-to-date as the relevant maintenance system will allow and updates shall be provided to the Bidder, or its receiving agent, in respect of any changes in that information at the same time as updates to the company's register are provided as required above to the Bidder's receiving agent.
        (c) When the information referred to in (a) above is provided to a Bidder by the Target or its registrar, the use of that information by the Bidder for purposes that are not related to the offer may be subject to legal restrictions, including in relation to the protection of data.

        Counting of acceptances

        The Bidder's receiving agent must ensure that all acceptances counted as valid meet the requirements set out Paragraph 10 and any guidance issued thereunder.

        Counting of purchases

        The Bidder's receiving agent must ensure that all purchases counted as valid meet the requirements set out Paragraph 10 and any guidance issued thereunder.

        Offers becoming or being declared unconditional as to acceptances before the final closing date†

        Prior to an offer becoming or being declared unconditional as to acceptances before the final closing date†, the Bidder's receiving agent must ensure that the requirements set out in Paragraph 10 and any guidance issued thereunder have been satisfied.

        Disclaimers in receiving agents' certificates

        Where guidance issued under Paragraph 10 requires a certificate to be issued by a receiving agent, such certificate should be unqualified, save for a disclaimer (if necessary) as to limitations on the responsibility of the receiving agent for the errors of third parties which are not evident from the documents available to the receiving agent. A disclaimer in the following form would normally be acceptable; any variation should be specifically agreed by the Panel in advance:

        "In issuing this certificate we have, where necessary, relied on the following matters:

        (i) certifications of acceptance forms by the Target's registrar; and
        (ii) certifications by the Target's registrar that a transfer of shares has been executed by or on behalf of the registered holder in favour of the Bidder or its nominees.

        As the Bidder's receiving agent and escrow agent, we have examined with due care and attention the information provided to us, and, as appropriate, made due and careful enquiry of relevant persons, in order that we may issue this certificate and have no reason to believe that the information contained in it cannot be relied upon but, subject thereto, we accept no responsibility or liability whatsoever in respect of any error of the Target's registrar or the Bidder's buying broker for the matters set out above to the extent that we have relied upon them in issuing this certificate."

        *final register day — the day two days prior to the final closing date† of an offer.

        †final closing date — the 60th day or other date beyond which the Bidder has stated that its offer will not be extended.