Revisions to the Panel’s Guidance Notes on Misleading or Deceptive Conduct, Independent Advisers and Schemes of Arrangement

Published 1 November 2023

The Panel has recently updated a number of Guidance Notes. Available on the Panel’s website are the updated versions, as well as compare versions showing all updates, of the following Guidance Notes:

  • Schemes of Arrangement (the Schemes Guidance Note);
  • Misleading or Deceptive Conduct (the Misleading or Deceptive Conduct Guidance Note); and
  • Independent Advisers (the IA Guidance Note).

Schemes Guidance Note

The Schemes Guidance Note has been updated to:

  • clarify the Panel’s approach to differential consideration in relation to schemes; 
  • reflect the Panel’s preference that scheme parties do not ask the Court to give orders on the papers in relation to a Code company scheme; and
  • amend the undertaking that a scheme promoter (and/or its associates) must provide where it holds shares in the target, such that the relevant shares must be retained until the earlier of:
    • implementation of the proposed scheme; and
    • termination of the scheme implementation agreement.

Misleading or Deceptive Conduct Guidance Note

The Misleading or Deceptive Conduct Guidance Note has been updated to clarify:

  • that qualifiers to intention statements such as ‘present’ or ‘current’ intentions are not, in themselves, clear and unequivocal qualifications;
  • that actions which are inconsistent with an intention statement may be restricted (e.g., selling shares ‘from underneath’ an intention statement);
  • the manner in which shareholder voting intention statements should be made in order to avoid being misleading or deceptive (e.g., by stating the shareholding to which the statement relates);
  • that, the Panel’s general view is that unqualified ‘intention to reject’ statements apply even if the price is increased, except where the statement is clearly and unequivocally qualified; and
  • that where rule 64 does not apply in respect of misleading or deceptive conduct, the Panel will look to work with other regulators to ensure the matter is resolved.

IA Guidance Note

The IA Guidance Note has been updated to:

  • provide guidance for independent advisers on requests from offerors for early access to independent adviser’s reports – generally, requests for early access should be refused; and
  • place all associated guidance discussing engagements between the adviser, the offeror and the target company together in the Guidance Note. 
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