PARAGRAPH 23 PARAGRAPH 23 BIDDER DOCUMENTS
23.1 THE OFFER DOCUMENT(a) The Bidder must, normally within 28 days of the announcement of a firm intention to make an offer, send an offer document to shareholders in the Target and persons with information rights, in accordance with Paragraph 29.1 and must make the document readily available to the employees themselves. At the same time, both the Bidder and the Target must make the offer document readily available to their employee representatives (or, where there are no employee representatives, to the employees themselves). The Panel must be consulted if the offer document is not to be published within this period.(b) On the day of publication, the Bidder must:(i) publish the offer document on a website in accordance with Paragraph 25.1; and(ii) inform the Panel that the offer document has been so published, following which the Panel will publish notice of this fact on the ADGM website.
23.2 INTENTIONS OF THE BIDDER WITH REGARD TO THE BUSINESS, EMPLOYEES AND PENSION SCHEME(S)(a) If the Target has a pension scheme, in the offer document, the Bidder must explain the long term commercial justification for the offer and must state:(i) its intentions with regard to the future business of the Target;(ii) its intentions with regard to the continued employment of the employees and management of the Target and of its subsidiaries, including any material change in the conditions of employment;(iii) its strategic plans for the Target, and their likely repercussions on employment and the locations of the Target's places of business;(iv) its intentions with regard to employer contributions into the Target's pension scheme(s) (including with regard to current arrangements for the funding of any scheme deficit), the accrual of benefits for existing members, and the admission of new members;(v) its intentions with regard to any redeployment of the fixed assets of the Target; and(vi) its intentions with regard to the maintenance of any existing trading facilities for the relevant securities of the Target.(b) If the Bidder has no intention to make any changes in relation to the matters described under (a)(ii) to (v) above, or if it considers that its strategic plans for the Target will have no repercussions on employment or the location of the Target's places of business, it must make a statement to that effect.(c) Where the Bidder is a company, and insofar as it is affected by the offer, the Bidder must also state its intentions with regard to its future business and comply with (a)(ii) and (iii) with regard to itself.
23.3 23.3 FINANCIAL AND OTHER INFORMATION ON THE BIDDER, THE TARGET AND THE OFFER
Except with the consent of the Panel:(a) where the Bidder is a company incorporated under the Companies Regulations 2015 and its shares are admitted to trading on a Abu Dhabi Global Market's securities exchange, the offer document must contain:(i) the names of its directors;(ii) the nature of its business and its financial and trading prospects;(iii) details of the website address where its audited consolidated accounts for the last two financial years have been published and a statement that the accounts have been incorporated into the offer document by reference to that website in accordance with Paragraph 23.15;(iv) details of the website address where any preliminary statement of annual results, half yearly financial report or interim financial information published since the date of its last published audited accounts have been published and a statement that any such statement, report or information has been incorporated into the offer document by reference to that website in accordance with Paragraph 23.15; in the case of a securities exchange offer, a description of any known significant change in its financial or trading position which has occurred since the end of the last financial period for which audited accounts, a preliminary statement of annual results, a half yearly financial report or interim financial information has been published, or provide an appropriate negative statement;(v) a statement of the effect of full acceptance of the offer upon its earnings and assets and liabilities; and(vi) a summary of the principal contents of each material contract (not being a contract entered into in the ordinary course of business) entered into by the Bidder or any of its subsidiaries during the period beginning two years before the commencement of the offer period, including particulars of dates, parties, terms and conditions and any consideration passing to or from the Bidder or any of its subsidiaries;(b) if the Bidder is other than a company referred to in (a) above, the offer document must contain:(i) in respect of the Bidder, the information described in (a) above (so far as appropriate) and such further information as the Panel may require in the particular circumstances of the case;(ii) in respect of any person who has made (or proposes to make or increase) an investment in the Bidder for the purposes of the offer such that he has or will have a potential direct or indirect interest in any part of the capital of the Target which the Panel regards as equity capital, details of his identity and of his interest in the Bidder and such further information as the Panel may require in the particular circumstances of the case; and(iii) in respect of any person not included in (ii) above whose pre existing interest in the Bidder is such that he has a potential direct or indirect interest of 5% or more in any part of the capital of the Target which the Panel regards as equity capital, details of his identity and of his interest in the Bidder and such further information as the Panel may require in the particular circumstances of the case;(c) the offer document must contain summary details of any current ratings and outlooks publicly accorded to the Bidder and the Target by ratings agencies prior to the commencement of the offer period, any changes made to previous ratings or outlooks during the offer period, and a summary of the reasons given, if any, for any such changes;(d) the offer document (including, where relevant, any revised offer document) must include:(i) a heading stating "If you are in doubt about this offer you should consult an independent financial adviser authorised under the Financial Services and Markets Regulations 2015";(ii) the date when the document is published, the name and address of the Bidder (including, where the Bidder is a company, the type of company and the address of its registered office);(iii) the identity of any person acting in concert with the Bidder and, to the extent that it is known, the Target, including, in the case of a company, its type, registered office and relationship with the Bidder and, where possible, with the Target;(iv) details of each class of security for which the offer is made, including whether those securities will be transferred "cum" or "ex" any dividend and the maximum and minimum percentages of those securities which the Bidder undertakes to acquire;(v) the terms of the offer, including the consideration offered for each class of security, the total consideration offered and particulars of the way in which the consideration is to be paid in accordance with Paragraph 30.8 or, in the case of a scheme of arrangement, see Paragraph 38.10;(vi) all conditions to which the offer is subject;(vii) particulars of all documents required, and procedures to be followed, for acceptance of the offer or, in the case of a scheme of arrangement, for voting;(viii) the middle market quotations for the securities to be acquired, and (in the case of a securities exchange offer) securities offered, for the first business day in each of the six months immediately before the date of the offer document, for the last business day before the commencement of the offer period and for the latest available date before the publication of the offer document, together with the source (or, if any of the securities are not admitted to trading, any information available as to the number and price of transactions which have taken place during the preceding six months, together with the source, or an appropriate negative statement);(ix) details of any agreements or arrangements to which the Bidder is party which relate to the circumstances in which it may or may not invoke or seek to invoke a condition to its offer and the consequences of its doing so, including details of any break fees payable as a result;(x) details of any irrevocable commitment or letter of intent which the Bidder or any person acting in concert with it has procured in relation to relevant securities of the Target (or, if appropriate, the Bidder);(xi) in the case of a securities exchange offer, full particulars of the securities being offered, including the rights attaching to them, the first dividend or interest payment in which the securities will participate and how the securities will rank for dividends or interest, capital and redemption; a statement indicating the effect of acceptance on the capital and income position of the Target's shareholders; and details of any applications for admission to listing or admission to trading that have been or will be made in any jurisdiction in respect of the securities;(xii) a summary of the provisions of Paragraph 8 (see the ADGM website);(xiii) the national law which will govern contracts concluded between the Bidder and holders of the Target's securities as a result of the offer and the competent courts;(xiv) any post offer undertaking made by the Bidder (see Paragraph 18.7);(xv) a summary of any offer related arrangement or other agreement, arrangement or commitment permitted under, or excluded from, Paragraph 20.2;(xvi) a list of the documents which the Bidder has published on a website in accordance with Paragraphs 25.2 and 25.3 and the address of the website on which the documents are published; and(xvii) any profit forecast or quantified financial benefits statement, and any related reports or confirmations, required by Paragraph 28;(e) the offer document must contain information on the Target on the same basis as set out in (a)(i) to (v) above;(f) the offer document must contain a description of how the offer is to be financed and the source(s) of the finance. Details must be provided of the debt facilities or other instruments entered into in order to finance the offer and to refinance the existing debt or working capital facilities of the Target and, in particular:(i) the amount of each facility or instrument;(ii) the repayment terms;(iii) interest rates, including any "step up" or other variation provided for;(iv) any security provided;(v) a summary of the key covenants;(vi) the names of the principal financing banks; and(vii) if applicable, details of the time by which the Bidder will be required to refinance the acquisition facilities and of the consequences of its not doing so by that time; and(g) if any document published by the Bidder contains a comparison of the value of the offer with previous prices of the Target's shares, a comparison between the current value of the offer and the price of the Target's shares on the last business day prior to the commencement of the offer period must be prominently included, no matter what other comparisons are made.
Guidance Notes on Paragraph 23.3
Where the Bidder is a subsidiary company
The Panel will normally look through subsidiaries whose securities are not admitted to trading in interpreting this Paragraph unless, with the agreement of the Panel, the subsidiary in question is regarded as being of sufficient substance in relation to the group and the offer. Accordingly if the Bidder is part of a group, information will normally be required on the ultimate holding company in the form of group accounts.
Further information requirements(a) For the purposes of paragraphs (ii) and (iii) of Paragraph 24.3(b), the expression "person" will normally include the ultimate owner(s), and persons having control (as defined), of the Bidder if not already included under paragraphs (ii) or (iii). Whilst the precise nature of the further information which may be required to be disclosed under paragraphs (i), (ii) or (iii) of Paragraph 24.3(b) in any particular case will depend on the circumstances of that case, the Panel would normally expect it to include a general description of the business interests of the Bidder and/or other person(s) concerned and details of those assets which the Panel considers may be relevant to the business of the Target.(b) The Panel must be consulted in advance in any case to which Paragraph 24.3(b) applies, or may apply regarding the application of its provisions to that particular case. Where information is incorporated into the offer document by reference to another source, the Panel will normally require that information to be available in the English language.
Persons acting in concert
For the purposes of Paragraph 24.3(d)(iii), the identity of a person acting in concert with the Bidder or the Target must be disclosed if the Target shareholders need details of that person in order to reach a properly informed decision on the offer. Disclosure will normally include: a person who is interested in shares in the Target and (in the case of a securities exchange offer only) the Bidder; any person with whom the Bidder or the Target and any person acting in concert with either of them has any arrangement of the kind referred to in Note 11 on the definition of acting in concert; any financial adviser which is advising the Bidder or the Target in relation to the offer; and any corporate broker to either of them. In cases of doubt, the Panel should be consulted.
Offers made under Paragraph 9
23.4 23.4 INTERESTS AND DEALINGS(a) The offer document must state:(i) details of any relevant securities of the Target in which the Bidder has an interest or in respect of which he has a right to subscribe, specifying the nature of the interests or rights concerned (see Paragraph 8.8). Similar details of any short positions (whether conditional or absolute and whether in the money or otherwise), including any short position under a derivative, any agreement to sell or any delivery obligation or right to require another person to purchase or take delivery, must also be stated;(ii) the same details as in (i) above in relation to each of:(A) the directors of the Bidder;(B) any other person acting in concert with the Bidder; and(C) any person with whom the Bidder or any person acting in concert with the Bidder has any arrangement of the kind referred to in Note 11 on the definition of acting in concert;(iii) in the case of a securities exchange offer, the same details as in (i) above in respect of any relevant securities of the Bidder in relation to each of the persons listed in (ii) above; and(iv) details of any relevant securities of the Target and (in the case of a securities exchange offer only) the Bidder which the Bidder or any person acting in concert with it has borrowed or lent (including for these purposes any financial collateral arrangements of the kind referred to in Paragraph 4.6 and any guidance issued thereunder), save for any borrowed shares which have been either on lent or sold.(b) If, in the case of any of the persons referred to in Paragraph 23.4(a), there are no interests or short positions to be disclosed, this fact should be stated. This will not apply to category (a)(ii)(c) if there are no such arrangements.(c) If any person referred to in Paragraph 23.4(a) has dealt in any relevant securities of the Target (or, in the case of a securities exchange offer only, of the Bidder) during the period beginning 12 months prior to the offer period and ending with the latest practicable date prior to the publication of the offer document, the details, including dates, must be stated (see Paragraph 8.8). If no such dealings have taken place, this fact should be stated.
Guidance Notes to Paragraph 24.4
In the case of directors, the disclosure should include details of all interests, short positions and borrowings of any other person whose interests in shares the director is taken to be interested in pursuant to Part 21 of the Companies Regulations 2015.
23.5 DIRECTORS' EMOLUMENTS
The offer document must state (in the case of a securities exchange offer only) whether and in what manner the emoluments of the Bidder directors will be affected by the acquisition of the Target or by any other associated transaction. If there will be no effect, this must be stated.
23.6 SPECIAL ARRANGEMENTS
Unless otherwise agreed with the Panel, the offer document must contain a statement as to whether or not any agreement, arrangement or understanding (including any compensation arrangement) exists between the Bidder or any person acting in concert with it and any of the directors, recent directors, shareholders or recent shareholders of the Target, or any person interested or recently interested in shares of the Target, having any connection with or dependence upon the offer, and full particulars of any such agreement, arrangement or understanding.
See also Paragraph 15.2.
23.7 INCORPORATION OF OBLIGATIONS AND RIGHTS
The offer document must state the time allowed for acceptance of the offer and any alternative offer and must incorporate language which appropriately reflects Notes 4-8 on Paragraph 10 and those parts of Paragraphs 12.5(a), 12.6 (if applicable), 16 and 30 — 33 which impose timing obligations or confer rights or impose restrictions on Bidders, Target companies or shareholders of Target companies.
2 This Paragraph is disapplied in a scheme.
23.8 CASH CONFIRMATION
When the offer is for cash or includes an element of cash, the offer document must include confirmation by an appropriate third party (eg the Bidder's bank or financial adviser) that resources are available to the Bidder sufficient to satisfy full acceptance of the offer. (The party confirming that resources are available will not be expected to produce the cash itself if, in giving the confirmation, it acted responsibly and took all reasonable steps to assure itself that the cash was available.)
23.9 ULTIMATE OWNER OF SECURITIES ACQUIRED
Unless otherwise agreed with the Panel, the offer document must contain a statement as to whether or not any securities acquired in pursuance of the offer will be transferred to any other persons, together with the names of the parties to any such agreement, arrangement or understanding and particulars of all interests in the securities of the Target held by such persons, or a statement that no such interests are held.
23.10 ADMISSION TO LISTING AND ADMISSION TO TRADING CONDITIONS*
Where securities are offered as consideration and it is intended that they should be admitted to listing on the Official List and/or to trading on a recognised investment exchange in Abu Dhabi Global Market, the relevant admission to listing and/or trading condition should, except with the consent of the Panel, be in terms which ensure that it is capable of being satisfied only when the decision to admit the securities to listing or trading has been announced by the Financial Services Regulator and/or the relevant investment exchange, as applicable. Where securities are offered as consideration and it is intended that they should be admitted to listing or to trading on any investment exchange or market outside Abu Dhabi Global Market, the Panel should be consulted.
23.11 ESTIMATED VALUE OF UNQUOTED PAPER CONSIDERATION
When the offer involves the issue of securities of a class which is not admitted to trading, the offer document and any subsequent circular from the Bidder must contain an estimate of the value of such securities by an appropriate adviser.
23.12 NO SET OFF OF CONSIDERATION
The offer document must contain a statement to the effect that, except with the consent of the Panel, settlement of the consideration to which any shareholder is entitled under the offer will be implemented in full in accordance with the terms of the offer without regard to any lien, right of set off, counterclaim or other analogous right to which the Bidder may otherwise be, or claim to be, entitled against such shareholder.
The Panel would only grant consent in exceptional circumstances and where all shareholders were to be treated similarly.
23.13 ARRANGEMENTS IN RELATION TO DEALINGS
The offer document must disclose any arrangements of the kind referred to in Guidance Note 11 on the definition of acting in concert which exist between the Bidder, or any person acting in concert with the Bidder, and any other person; if there are no such arrangements, this should be stated.
23.14 CASH UNDERWRITTEN ALTERNATIVES WHICH MAY BE SHUT OFF*
The procedure for acceptance of a cash underwritten alternative which is capable of being shut off must be prominently stated in relevant documents and acceptance forms. In particular, it must be made clear (in the offer document, the acceptance form and any subsequent documents) whether shareholders must lodge their certificates by the closing date of the cash underwritten alternative, in addition to their completed acceptance forms, in order to receive cash.
23.15 INCORPORATION OF INFORMATION BY REFERENCE(a) In addition to the requirements under Paragraphs 23.3(a)(iii) and (iv) (and, insofar as they refer to Paragraphs 23.3(a)(iii) and (iv), Paragraphs 24.3(b) and (e)) for certain information to be incorporated into an offer document by reference to a website, information that is required to be included in a document under other Paragraphs may be incorporated by reference to another source with the Panel's consent.(b) Information that is incorporated into a document by reference to another source must be published on a website by no later than the date on which the document is published. The information published on a website must be published:(i) in a form that may be printed, read and retained by the person to whom the document must be sent; and(ii) in a "read only" format so that it may not be amended or altered in any way.(c) If a person is sent a document which incorporates information by reference to another source, that person may request a copy of the information so incorporated in hard copy form. If such a request is made, the party which published the document must ensure that a copy of the requested information is sent to the relevant person in hard copy form as soon as possible and in any event within two business days of the request being received by the relevant party.(d) Any document which incorporates information by reference to another source (and any related website notification) must contain a statement that a shareholder, person with information rights or other person to whom it is sent may request a copy of any such information in hard copy form. Attention should be drawn to the fact that a hard copy of the information will not be sent to that person unless requested and details must be provided of how a hard copy may be obtained (including an address in the Abu Dhabi Global Market and a telephone number to which requests may be submitted).
23.16 FEES AND EXPENSES(a) The offer document must contain an estimate of the aggregate fees and expenses expected to be incurred by the Bidder in connection with the offer and, in addition, separate estimates of the fees and expenses expected to be incurred in relation to:(i) financing arrangements;(ii) financial and corporate broking advice;(iii) legal advice;(iv) accounting advice;(v) public relations advice;(vi) other professional services (including, for example, management consultants, actuaries and specialist valuers); and(vii) other costs and expenses.(b) Where any fee is variable between defined limits, a range must be given in respect of the aggregate fees and expenses and of the fees and expenses of each relevant category, setting out the expected maximum and minimum amounts payable.(c) Where the fees and expenses payable within a particular category are likely to exceed the estimated maximum previously disclosed by 10% or more, the Bidder must promptly disclose to the Panel revised estimates of the aggregate fees and expenses expected to be incurred in relation to the offer and of the fees and expenses expected to be incurred within that category. The Panel may require the public disclosure of such revised estimates where it considers this to be appropriate.(d) Where the final fees and expenses actually paid within a particular category exceed the amount publicly disclosed as the estimated maximum payable by 10% or more, the Bidder must promptly disclose to the Panel the final amount paid in respect of that category. The Panel may require the public disclosure of such final amount where it considers this to be appropriate.