ADVOKS GLOBAL · KENYA
The Capital Markets (Take-Overs and Mergers) Regulations
4. Take-over notice and statement
Edition: 2022-12-31 · In force
4. Take-over notice and statement
(1)A company, or person who intends or proposes to acquire effective control in a listed company shall not later than twenty four hours from the resolution of its board to acquire effective control in the company or not later twenty four hours prior to making a decision to acquire effective control in the company in the case of any other person announce the proposed offer by press notice and serve a notice of intention, in writing of the take-over scheme containing the particulars set out in paragraph (2), to the—(a)proposed offeree at its registered office;(b)securities exchange at which the offeree's voting shares are listed;(d)the Commissioner of Monopolies and Prices appointed under the Restrictive Trade, Practices, Monopolies and Price Control Act (Cap. 504) where the offeror is engaged in the same business as the offeree.(2)The press notice referred to in paragraph (1) shall—(a)be made in at least two English language dailies of national circulation;(b)be made after the notice of intention has been served on the proposed offeree;(c)state that the person intends to acquire or has acquired effective control in the company and has at a stated date served a notice of intention to make a take-over offer to the company or has made an application to the Authority for exemption from the take-over requirements, in compliance with these Regulations; and(d)include the following information where applicable—(i)the identity of the proposed offeror and all companies related to or persons associated or acting in concert with the proposed offeror;(ii)the identity of the proposed offeree and the exchange at which its shares are listed;(iii)whether the proposed offeror intends to make a take-over offer or apply to the Authority, for exemption from making a take-over offer;(iv)the type and total number of voting shares of the offeree;(aa)which have been acquired, held or controlled directly or indirectly by the proposed offeror or any related companies or any person associated or acting in concert with the proposed offeror;(bb)in respect of which the proposed offeror or any related company or any person associated or acting in concert with the proposed offeror has received an irrevocable undertaking from other holders of voting shares to which the take-over relates to accept the take-over offer; and(cc)in respect of which the proposed offeror or any related company or any person associated or acting in concert with the proposed offeror has an option to acquire;(v)where applicable, the details of any existing or proposed agreement, arrangement or understanding relating to voting shares referred to in paragraph (iv) between the proposed offeror or any related company or person associated or acting in concert with the proposed offeror and the holders of the voting shares to which the take-over relates; and(vi)the conditions of the take-over offer, including conditions relating to acceptances, listing and increase of capital.(3)Where a person has acquired effective control in a listed company and has no intention of making a take-over offer, that person shall make a public announcement containing information that is specified in paragraph (2) including the broad reasons for exemption, immediately after having served the notice in writing to the parties specified in paragraph (1) and shall apply to the Authority for exemption from the take-over requirements under regulation 5.(4)The offeror shall serve on the offeree within ten days from the date of the notice of intention, an offeror's statement of the take-over scheme containing the information specified in the First Schedule to these Regulations and such statement shall be approved by the Authority.(5)Where a notice of an intention to make a take-over offer under paragraph (1) or an offeror's statement under paragraph (4) have been served upon the offeree, the proposed offeror shall not amend or withdraw the intention or the statement without the prior written consent of the Authority.(6)The Authority shall on application of the offeror, permit the offeror at any time prior to the offeror serving the take-over document upon the offeree, to—(a)amend in writing any notice or statement lodged by the offeror pursuant to paragraphs (1) and (4); or(b)substitute in writing a fresh notice or statement for an earlier notice or statement lodged with the offeree pursuant to paragraphs (1) or (4) in such manner and subject to such terms as the offeror may consider as justified by the circumstances of the case and such notice or statement shall be approved by the Authority;(7)For the purpose of paragraph (6), the computation of time shall be as from the date when the first written notice or offeror's statement is lodged by the proposed offeror.