The Irish Takeover Panel Act 1997, the Takeover Rules 2013 (the “Rules”) and the Substantial Acquisition Rules 2007 (the “SAR”) govern the completion of acquisitions and other relevant transactions by public limited companies or other legal entities domiciled in Ireland whose securities are or have been traded on Euronext Dublin now or within the last five years. the London Stock Exchange, the New York Stock Exchange, the Nasdaq and the EU regulated markets. These changes represent the most significant overhaul of the Irish takeover regime since 2013. Civil and criminal liability may be incurred under the MAR rules on insider dealing or market abuse in the context of a takeover or under competition law for an infringement of competition law. There are certain sectoral rules, such as: the acquisition of a holding in an insurance, reinsurance or credit institution may be subject to prior approval by the Central Bank of Ireland; Media mergers are subject to approval by the CCPC and Ireland`s Minister for Communications, Climate Change and Environment. In order to create greater transparency regarding the control of voting on relevant securities, the new rules require certain parties to publicly disclose their positions. In the event of a hostile takeover, prior notification may consist of a telephone call or letter to the board of directors or consultants of the target company immediately prior to the announcement of the offer. Article 4(1) of the Regulations applies, subject to the Regulations, to any take-over bid business (as defined in the Regulations) that the Panel has jurisdiction to supervise under the Regulations. Under Article 4(3), references to a “relevant entity” in the 1997 Act include references to each entity over which the Panel is competent to supervise. 1.2 Are there different rules for different types of companies? The Irish Takeover Group (the “Panel”) was established by the 1997 Act as a statutory body responsible for supervising and supervising takeover bids in Ireland. The Council administers and enforces the Rules and has the legal authority to make decisions and give instructions in the event of non-compliance with the Rules and the General Principles. The Board operates on a day-to-day basis through its members, who are composed of professional bodies involved in securities markets and acquisitions. The panel is also designated as the competent authority for the purposes of Article 4(1) of the Regulation.
Rule 29 on asset valuation is again largely aligned with the City Code rules on asset valuation (see description above of Rule 27.2). In the case of a takeover bid, control is transferred to the offeror if the bid is declared unconditional in all respects. In the case of a plan of arrangement, control passes to the bidder when the plan has been approved by the High Court of Ireland. The number, nature and content of the documents submitted in the event of an acquisition of control depend on the nature of the transaction, including its size, the nature of the counterparty, its hostile or recommended nature and the existence or absence of competing offers. 3.2 Are there rules for approaching the goal? Under the old Irish takeover bid disclosure regime, the rules were based on the `transactions` made by the persons subject to the scheme and not on the `positions` held by them. Previously, Rule 8.3 required a person who held a gross long holding of 1% or more in a relevant class of securities of the target company or a securities exchange provider to disclose all transactions (including its long interests and short positions) in the securities of that party. However, if a person subject to Rule 8.3 does not deal in the relevant securities of the offeree company or offeror, the person shall not be required to disclose its shares and short positions in the relevant securities of that Party in accordance with the Rules. This is the case regardless of the extent of the person`s interest in the relevant titles of that party. The rules of procedure contain a fixed timetable for the implementation of takeover bids. The timetable is triggered by the announcement of a firm intention to submit an offer containing the essential conditions of the offer. The Bidder will then have 28 days to send its formal offer document to shareholders (the “Offer Document”) and the remainder of the standard Annex will then follow from that date. The condition of acceptance of the offer must be fulfilled within 60 days, after which all other conditions must be fulfilled within 21 days, and then the offer will be declared unconditional.
The procedure for concluding a statutory squeeze-out can be completed within a further 30 days (subject to objections lodged with the High Court of Ireland). In preparing projections or profit statements (including the estimated financial impact of an acquisition) made by the target company after an approximation, the target company must first obtain and publish reports from auditors and financial advisors. In addition, an acquisition may be made either as follows: The 41 rules were adopted primarily to ensure that takeover bids (including takeover bids within the meaning of the Regulation) and other relevant transactions comply with the principles set out in the Annex to the 1997 Act. The rules are based on seven general principles set out in the 1997 Act (the “General Principles”) and include binding bid rules, restrictions on trading in shares, confidentiality and disclosure requirements, restrictions on frustrating shares and provisions governing the conduct of acquisitions. The rules also provide an orderly framework within which takeovers are carried out. They do not deal with the financial or economic advantages or disadvantages of an acquisition of control, which fall within the competence of the undertakings concerned and their shareholders. The rules also do not cover issues such as competition policy and merger policy, which are governed by different pieces of legislation. The Panel has significant enforcement powers to monitor and regulate takeover transactions and parties. If a party to a takeover bid violates the rules or any instruction or decision of the panel, the panel may take enforcement action against that party. The Panel is also empowered to apply to the High Court of Ireland for an injunction if the parties do not comply or are unlikely to comply with its rulings or directions. A hostile transaction usually begins with a takeover bid; However, a recommendation may be obtained after the submission of a tender; In this case, it would be possible to move from a takeover bid to a plan of arrangement with the consent of the panel.
In our recent publication, we described the main changes to the rules and carried out an analysis of the impact of these changes on takeover practices in Ireland. There are three main ways to acquire an Irish public limited company: a takeover bid; a plan of arrangement; and a cross-border or domestic merger. Each director must ensure that he or she complies with the rules and fiduciary duties to the corporation and that he or she acts honestly and in good faith in the best interests of the corporation when considering or recommending an acquisition offer. Irish law also prohibits other anti-takeover measures, such as shareholder rights plans, which could, for example, dilute an unsolicited buyer`s interest in the target company in the event of certain triggering events. There are a number of Irish and European laws, rules and regulations governing mergers and acquisitions (“M&A”) in Ireland. On July 22, 2022, the new rules came into effect, including the following: In a plan of arrangement, the target board has more control than in a takeover bid and, therefore, the transaction cannot be substantially completed without the support of the target board. The condition of acceptance of a takeover bid must result in the bidder acquiring at least 50% of the voting rights of the target company. As a general rule, this rate is set at 80% or 90% acceptance according to the “squeeze-out” procedure prescribed by law. On December 21, 2021, the Irish takeover bid group (the “Panel”) published a public consultation paper inviting comments on the proposed rule and search and rescue changes. The Panel noted that the main objective of the proposed amendments is to update the rules and RADs to reflect changes in approval practices and changes in relevant legislation since the publication of the Rules and RADs.
The consultation closed on February 28, 2022. The main documentation of the tender offer is as follows: A tender offer for shares of a company may be cash, promissory notes, warrants or shares of the offeror or a combination thereof. In the case of takeover bids, the offeror may propose to the target shareholders the purchase of their shares; The offer is subject to the condition that the bidder acquires shares of more than 50% of the voting rights of the target company or approves its acquisition. If the Offeror has acquired 90% of the Target Shares, all remaining shareholders may also be required to transfer their shares under the terms of this Offer if the Offeror so requests (for companies listed on a regulated market in the EEA). Dissenting shareholders have the right to seek redress from the High Court of Ireland. The rules require that absolute secrecy be maintained until an offer is announced, which applies to both hostile and recommended offers.