Irish Takeover Panel Act 1997

1 Interpretation.

1.—(1) In this Act, unless the context otherwise requires—

“acting in concert” shall, in relation to a takeover or other relevant transaction, be construed in accordance with subsection (3);

“the Act of 1963” means the Companies Act, 1963;

“the Act of 1990” means the Companies Act, 1990;

“the Central Bank” means the Central Bank of Ireland;

“company” means a company (within the meaning of the Act of 1963) or any other body corporate, whether incorporated in the State or elsewhere;

“control” means, in relation to a relevant company, the holding, whether directly or indirectly, of securities of the company that confer, in aggregate, not less than 30 per cent. (or such other percentage as may be prescribed) of the voting rights in that company;

“the Court” means the High Court;

“European Communities” has the meaning assigned to it by the European Communities Act, 1972;

“interest in a security” includes rights in respect of a security arising by virtue of—

(a) an agreement to purchase securities;

(b) an agreement to subscribe for securities;

(c) an option to acquire or to subscribe for securities;

(d) an irrevocable commitment to accept an offer;

(e) a right to a convertible security;

(f) a right to exercise or to control the exercise of the voting rights attaching to a security;

(g) a right to subscribe for securities to be issued pursuant to a rights issue of a company; or

(h) a right to securities that have been allotted but not issued,

whether or not the agreement, option or other thing aforesaid confers a proprietary interest in the security;

“Irish Stock Exchange” has the meaning assigned to it by section 3 (1) of the Stock Exchange Act, 1995;

“the Minister” means the Minister for Enterprise and Employment;

“offer” means an offer (by whatever name called), made to the holders of securities in a relevant company, to acquire some or all of those securities by the payment of cash or other valuable consideration or in exchange for other securities or by means of both such a payment and such an exchange;

“offeree” means a relevant company—

(a) any securities of which are the subject of an offer that has been made or is intended or required to be made, or

(b) in respect of which, or in connection with which, a person does any act in contemplation of making an offer to holders of securities in that company;

“offeror” means a person who makes, or intends or is required to make, an offer or does any act in contemplation of making an offer;

“the Order” has the meaning assigned to it by section 13 and includes the Order as amended or re-enacted (with or without modification) by rules of court;

“other relevant transaction” means—

(a) any offer, agreement or transaction in relation to the acquisition of securities conferring voting rights in a relevant company (including a substantial acquisition of securities) which the Panel specifies, in rules under section 8, to be a relevant transaction for the purposes of this Act,

(b) any agreement, transaction, proposal or action entered into, made or taken in contemplation of, or which is consequent upon or incidental to, a takeover or an offer, agreement or transaction referred to in paragraph (a) of this definition;

“the Panel” has the meaning assigned to it by section 3;

“parties to a takeover or other relevant transaction” includes—

(a) the offeror;

(b) any person acting in concert with the offeror;

(c) the directors of the offeror if the offeror is a company;

(d) the offeree;

(e) the holders of the securities to whom the offer is made;

(f) the directors of the offeree;

(g) any person acting as an adviser to any of the foregoing persons in relation to the takeover or other relevant transaction;

(h) any person who, following a request made of him or her to do so by the offeror pursuant to rules under section 8, confirms that there are available to the offeror resources of such an amount as will enable the offer, if it is fully accepted, to be implemented;

(i) such other persons as are specified in rules under section 8 for the purposes of this definition or whom the Panel deems in the circumstances of a particular takeover or other relevant transaction to be parties to that takeover or transaction;

“prescribed” means prescribed by regulations made by the Minister under this Act and “prescribe” shall be construed accordingly;

“public limited company” has the same meaning as it has in the Companies Acts, 1963 to 1990;

“recognised stock exchange” means a stock exchange prescribed for the purposes of this Act;

“relevant company” has the meaning assigned to it by section 2;

“scheduled principles” means the principles set out in the Schedule to this Act;

“security” means, in relation to a company—

(a) any interest in the capital of the company and includes any interest in the nature of a share, stock, debenture or bond, by whatever name called, and irrespective of the rights, if any attaching thereto, of or issued by the company,

(b) an interest in a security falling within paragraph (a) of this definition;

“shareholder” means a person who holds securities in a company;

“substantial acquisition of securities” means an acquisition of securities which the Panel specifies, in rules under section 8, to be a substantial acquisition of securities for the purposes of this Act;

“takeover” means—

(a) any agreement or transaction (including a merger) whereby or in consequence of which control of a relevant company is or may be acquired; or

(b) any invitation, offer or proposal made, or intended or required to be made, with a view to concluding or bringing about such an agreement or transaction;

“UCITS Regulations” means the European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations, 1989 (S.I. No. 78 of 1989);

“voting right” means, in relation to a company, a right exercisable for the time being to cast, or to control the casting of, a vote at general meetings of members of the company, not being such a right that is exercisable only in special circumstances.

(2) In this Act references to a ruling made or a direction given by the Panel under section 9 shall, unless the context otherwise requires, be construed as including—

(a) references to such a ruling or direction that, for the time being, stands amended under that section,

(b) references to any decision made by the Panel that is preliminary or incidental to the making of such a ruling or the giving of such a direction (including any decision made by the Panel in relation to the exercise of the powers under section 11).

(3) For the purposes of this Act, two or more persons shall be deemed to be acting in concert as respects a takeover or other relevant transaction if, pursuant to an agreement or understanding (whether formal or informal) between them, they actively co-operate in the acquisition by any one or more of them of securities in the relevant company concerned or in the doing, or in the procuring of the doing, of any act that results in an increase in the proportion of such securities held by any one or more of them and “acting in concert” shall be construed accordingly.

(4) In this Act—

(a) a reference to a section is a reference to a section of this Act, unless it is indicated that reference to some other enactment is intended,

(b) a reference to a subsection or paragraph is a reference to the subsection or paragraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended, and

(c) a reference to any other enactment is a reference to that enactment as amended, extended or adapted by or under any subsequent enactment including this Act.

2 Relevant company.

2.—In this Act, “relevant company” means—

(a) a public limited company or other body corporate incorporated in the State the trading, on a market regulated by a recognised stock exchange, of one or more of the securities of which is for the time being authorised by that exchange,

(b) a public limited company or other body corporate incorporated in the State the trading as aforesaid of one or more of the securities of which is not for the time being authorised by a recognised stock exchange but was so authorised at any time within the period of 5 years prior to the date on which the relevant proposal in relation to the takeover or other relevant transaction concerned was made,

(c) any other public limited company which, in order to secure more fully the protection of shareholders, the Minister, after consultation with the Panel, prescribes for the purposes of this definition,

but does not include—

(i) an undertaking for collective investment in transferable securities (within the meaning of the UCITS Regulations) that is authorised under those Regulations or by a competent authority in another member state of the European Communities in accordance with laws or measures adopted to implement Council Directive 85/611/EEC of 20th December, 1985[^1] (as amended by Council Directive 88/220/EEC of 22nd March, 1988[^2]),

(ii) an investment company within the meaning of Part XIII of the Act of 1990.

3 The Panel.

3.—(1) In this Act, “the Panel” means a public company formed and registered under the Companies Acts, 1963 to 1990, after the commencement of this section, which is designated by the Minister to be the body that shall perform the functions expressed in this Act to be performable by the Panel.

(2) The Minister shall not designate a company for the purposes aforesaid unless the following conditions as respects the company are satisfied, namely—

(a) the company is a company limited by guarantee,

(b) the name of the company is the Irish Takeover Panel, and

(c) the memorandum of association and articles of association of the company are in such form, consistent with this Act, as is approved of by the Minister.

(3) None of the following, namely—

(a) section 6 (1) (b) of the Act of 1963,

(b) the requirement contained in section 5 (1) of the Act of 1963 that a public company shall have 7 or more members,

(c) section 36 of the Act of 1963 or any other provision of the Companies Acts, 1963 to 1990, that makes provision as respects cases in which the requirement referred to in paragraph (b) is not complied with,

shall apply to a company where the Minister informs the Registrar of Companies in writing that he or she proposes to designate the company under subsection (1).

(4) The following shall be the members of the Panel, namely—

(a) each body standing specified for the time being in section 6 (1) (b) (not being an unincorporated body of persons),

(b) in the case of each body standing specified for the time being in section 6 (1) (b) which is an unincorporated body of persons, an individual or body corporate nominated by it to be such a member.

4 Alterations in memorandum and articles of association of Panel.

4.—Notwithstanding anything contained in the Companies Acts, 1963 to 1990, no alteration in the memorandum of association or articles of association of the Panel after the designation referred to in section 3 (1) has been made shall be valid or effectual unless made with the prior approval of the Minister.

5 Objects of Panel.

5.—(1) The principal objects of the Panel shall be stated in its memorandum of association to be—

(a) to monitor and supervise takeovers and other relevant transactions so as to ensure that the provisions of this Act and any rules thereunder are complied with as respects each such transaction;

(b) to make rules under section 8, for the purposes mentioned in that section, in relation to takeovers and other relevant transactions.

(2) Nothing in this section shall prevent or restrict the inclusion among the objects of the Panel as stated in its memorandum of association of all such objects and powers as are reasonably necessary or proper for or incidental or ancillary to the due attainment of the principal objects aforesaid and are not inconsistent with this Act.

(3) The Panel shall have power to do anything which appears to it to be requisite, advantageous or incidental to, or which appears to it to facilitate, either directly or indirectly, the performance by it of its functions as specified in this Act or in its memorandum of association and is not inconsistent with any enactment for the time being in force.

6 Directors of Panel.

6.—(1) The articles of association of the Panel shall provide that—

(a) the number of directors of the Panel (other than the directors referred to in paragraph (d) but including the chairperson and deputy chairperson) shall be 7;

(b) the following bodies (or their successors) shall each nominate and appoint one of the said directors (other than the chairperson and deputy chairperson), namely—

(i) the Consultative Committee of Accountancy Bodies—Ireland,

(ii) the Law Society of Ireland,

(iii) the Irish Association of Investment Managers,

(iv) the Irish Bankers Federation,

(v) the Irish Stock Exchange;

(c) the Governor of the Central Bank shall nominate and appoint the chairperson and deputy chairperson;

(d) the directors of the Panel may nominate and appoint 3 persons to be each a director of the Panel;

(e) the Governor of the Central Bank and each body referred to in paragraph (b) may nominate and appoint one or more persons to be each an alternate director to the director or directors of the Panel appointed by him or her or it;

(f) the directors of the Panel may act notwithstanding one or more vacancies in their number.

(2) The Panel may, if it reasonably considers it is appropriate to do so having regard to its duties generally under this Act, perform any of its functions through or by any of its officers or employees or any other person duly authorised by the Panel in that behalf.

(3) The members of the Panel shall not at any meeting of members of the Panel or by any other means instruct the directors of the Panel regarding the carrying out by the directors of their duties in so far as they relate to the functions of the Panel.

(4) Section 182 of the Act of 1963 shall not apply to the Panel.

(5) (a) The Minister may, after consultation with such persons as appear to him or her ought to be consulted for the purposes of this subsection, by regulations—

(i) vary paragraph (b) of subsection (1) by adding to, or deleting from, that paragraph one or more bodies;

(ii) make such consequential amendment of subsection (1) (a) as respects the number specified in that provision as he or she considers necessary or expedient.

(b) Upon a body ceasing, by virtue of regulations under this subsection, to be a body mentioned in subsection (1) (b), any person who was appointed a director of the Panel by that body shall cease to hold office as such a director.

7 Duty of Panel to monitor and supervise takeovers, etc.

7.—(1) The Panel shall monitor and supervise takeovers and other relevant transactions so as to ensure that the provisions of this Act and any rules under section 8 are complied with as respects each such transaction.

(2) Nothing in this section shall be construed as imposing on the Panel, either directly or indirectly, any form of duty or liability enforceable by proceedings before any court to which it would not otherwise be subject.

(3) The Minister may, after consultation with the Panel, by regulations, amend the Schedule to this Act by adding or deleting anything to or from that Schedule.

8 Rules as respects takeovers, etc.

8.—(1) Without prejudice to subsections (2), (3) and (4), the Panel may make rules for the purpose of—

(a) specifying offers, agreements or transactions in relation to the acquisition of securities conferring voting rights in a relevant company (by reference to such matters as it thinks appropriate, including the amount of securities acquired or to be acquired and the period that has elapsed since any previous acquisition of such securities in the company) to be relevant transactions for the purposes of this Act,

(b) ensuring that takeovers and other relevant transactions comply with the scheduled principles and the other provisions of this Act,

(c) otherwise providing where it considers desirable, in the interests of shareholders to do so, for the manner in which transactions as aforesaid and activities relating to them are to be conducted or carried out and otherwise for the governance of such transactions and activities,

(d) specifying circumstances in which a person shall be presumed, until the contrary is established to the satisfaction of the Panel, to be acting in concert with another person as respects a takeover or other relevant transaction.

(2) The Panel shall, in accordance with subsection (5), make rules specifying the conditions under which an acquisition, by a person (including a person acting pursuant to an agreement or understanding with another person), of securities conferring voting rights in a relevant company is to be regarded, for the purposes of this Act, as a substantial acquisition of securities and those conditions shall be specified by reference to—

(a) the proportion which the amount of securities conferring voting rights acquired or, as the case may be, to be acquired bears to the total amount of such securities held in the relevant company concerned;

(b) the extent to which the acquisition of securities conferring voting rights increases or will increase any existing holding of such securities in the relevant company concerned;

(c) in the case of a series of acquisitions of such securities, the periods of time that elapse between each such acquisition being effected.

(3) (a) The Panel shall make rules requiring that where—

(i) a person, or persons acting in concert, acquire control of a relevant company (other than in the circumstances referred to in paragraph (b) (i)), or

(ii) a person, or persons acting in concert, who control a relevant company, acquire, within a specified period, a specified amount of additional securities in that company,