The Takeover Code

The City Code on Takeovers and Mergers (the “Code”) has been developed since 1968 to reflect the collective opinion of those professionally involved in the field of takeovers as to appropriate business standards and as to how fairness to shareholders and an orderly framework for takeovers can be achieved. Following the implementation of the Takeovers Directive (2004/25/EC) (the “Directive”) by means of Part 28 of the Companies Act 2006 (the “Act”), the rules set out in the Code have a statutory basis in relation to the United Kingdom and comply with the relevant requirements of the Directive.

The rules set out in the Code also have a statutory basis in relation to the Isle of Man, Jersey and Guernsey.

General Principles and rules

The Code is based upon six General Principles, which are essentially statements of standards of commercial behaviour. These General Principles are the same as the general principles set out in Article 3 of the Directive. They apply to takeovers and other matters to which the Code applies. They are expressed in broad general terms and the Code does not define the precise extent of, or the limitations on, their application. They are applied in accordance with their spirit in order to achieve their underlying purpose.

In addition to the General Principles, the Code contains a series of rules. Although most of the rules are expressed in less general terms than the General Principles, they are not framed in technical language, and like the General Principles, are to be interpreted to achieve their underlying purpose. Therefore, their spirit must be observed as well as their letter.

The following is a brief summary of some of the most important Rules:

• When a person or group acquires interests in shares carrying 30% or more of the voting rights of a company, they must make a cash offer to all other shareholders at the highest price paid in the 12 months before the offer was announced (30% of the voting rights of a company is treated by the Code as the level at which effective control is obtained).
• When interests in shares carrying 10% or more of the voting rights of a class have been acquired by an offeror (i.e. a bidder) in the offer period and the previous 12 months, the offer must include a cash alternative for all shareholders of that class at the highest price paid by the offeror in that period. Further, if an offeror acquires for cash any interest in shares during the offer period, a cash alternative must be made available at that price at least.
• If the offeror acquires an interest in shares in an offeree company (i.e. a target) at a price higher than the value of the offer, the offer must be increased accordingly.
• The offeree company must appoint a competent independent adviser whose advice on the offer must be made known to all the shareholders, together with the opinion of the board.
• Favourable deals for selected shareholders are banned.
• All shareholders must be given the same information.
• Those issuing takeover circulars must include statements taking responsibility for the contents.
• Profit forecasts and asset valuations must be made to specified standards and must be reported on by professional advisers.
• Misleading, inaccurate or unsubstantiated statements made in documents or to the media must be publicly corrected immediately.
• Actions during the course of an offer by the offeree company which might frustrate the offer are generally prohibited unless shareholders approve these plans.
• Stringent requirements are laid down for the disclosure of dealings in relevant securities during an offer.
• Employees of both the offeror and the offeree company and the trustees of the offeree company’s pension scheme must be informed about an offer. In addition, the offeree company’s employee representatives and pension scheme trustees have the right to have a separate opinion on the effects of the offer on employment appended to the offeree board’s circular or published on a website.