ADVOKS GLOBAL · KENYA
The Capital Markets (Take-Overs and Mergers) Regulations
10. Independent adviser
Edition: 2022-12-31 · In force
10. Independent adviser
(1)The board of directors of the offeree shall appoint an independent adviser, on receipt of the offeror's statement under regulation 4 (4) in relation to the take-over offer.(2)The independent adviser appointed under paragraph (1) shall be an investment bank or a stockbroker licensed by the Authority.(3)The substance of the independent adviser's advice must be made known to the holders of the class of the voting shares to which the take-over offer relates, in a circular by the offeree to its shareholders.(4)The board of directors of the offeror shall appoint an independent adviser, where the take-over offer being made is a reverse take-over or where the board of directors of the offeror is faced with a conflict of interest situation.(5)The substance of any advice given to the board of directors of the offeror under paragraph (4) shall be made known to all the holders of voting shares of the offeror.(6)In the case of a reverse take-over, the board of directors of the offeror shall obtain approval of the holders of voting shares of the offeror to which the reverse take-over relates prior to serving the take-over offer document to the offeree under regulation 7(4).(7)Where the offeror has convertible securities outstanding, the appointed independent adviser shall make known its advice to the holders of such securities, together with the views of the board of directors of the offeror or of the offeree, as the case may be, on the take-over offer or proposal.(8)The independent adviser appointed by the Board of directors of the offeree shall send a circular to the board of directors of the offeree and the Authority prior to the circular being served on the offeree's holders of voting shares to which the take-over offer relates.(9)The circular required to be sent by the board of directors of the offeree to the offeree shareholders under regulation 9 and the independent adviser's circular shall be posted to the relevant holders of voting shares within fourteen days from the date of the take-over offer document being served in accordance to regulation 7.(10)The independent adviser shall disclose all such information in the independent adviser's circular as the holders of the voting shares of the offeror, the board of directors of the offeree and all holders of voting shares to which the take-over offer relates and their professional advisers would reasonably require or expect to be informed about, in an independent advice or for the purpose of making an informed assessment as to the merits of accepting or rejecting the take-over offer and the extent of the risks involved in such action.(11)The information required to be disclosed under paragraph (10) shall be that which—(a)is within the knowledge of the Board of directors and of the independent adviser; and(b)the independent adviser would be able to obtain by making such enquiries as were reasonable in the circumstances.(12)For the purposes of paragraph (11), a person shall, unless the contrary is proved, be presumed to have been aware at a particular time of a fact or occurrence of which, an employee or agent of the person having duties or acting on behalf of the employer or principal was aware of at the time.(13)Without prejudice to the generality of paragraph (11), an independent adviser shall include in the circular to the board of directors of the offeree and the offeree shareholders all the information and statements specified in the Fourth Schedule.