|
| |
|
(3) | Rules must provide for there to be a right of appeal against a decision of the |
| |
Hearings Committee to an independent tribunal (the “Takeover Appeal |
| |
Board”) in such circumstances and subject to such conditions as are specified |
| |
| |
| 5 |
(a) | provision as to matters of procedure in relation to proceedings before |
| |
the Hearings Committee (including provision imposing time limits); |
| |
(b) | provision about evidence in such proceedings; |
| |
(c) | provision as to the powers of the Hearings Committee dealing with a |
| |
| 10 |
(d) | provision about enforcement of decisions of the Hearings Committee |
| |
and the Takeover Appeal Board. |
| |
(5) | Rules must contain provision— |
| |
(a) | requiring the Panel, when acting in relation to any proceedings before |
| |
the Hearings Committee or the Takeover Appeal Board, to do so by an |
| 15 |
officer or member of staff of the Panel (or a person acting as such); |
| |
(b) | preventing a person who is or has been a member of the committee |
| |
mentioned in section 643(5) from being a member of the Hearings |
| |
Committee or the Takeover Appeal Board; |
| |
(c) | preventing a person who is a member of the committee mentioned in |
| 20 |
section 643(5), of the Hearings Committee or of the Takeover Appeal |
| |
Board from acting as mentioned in paragraph (a). |
| |
Contravention of rules etc |
| |
| |
(1) | Rules may contain provision conferring power on the Panel to impose |
| 25 |
sanctions on a person who has— |
| |
(a) | acted in breach of rules, or |
| |
(b) | failed to comply with a direction given by virtue of section 646. |
| |
(2) | Subsection (3) applies where rules made by virtue of subsection (1) confer |
| |
power on the Panel to impose a sanction of a kind not provided for by the City |
| 30 |
Code on Takeovers and Mergers as it had effect immediately before the |
| |
| |
(3) | The Panel must prepare a statement (a “policy statement”) of its policy with |
| |
| |
(a) | the imposition of the sanction in question, and |
| 35 |
(b) | where the sanction is in the nature of a financial penalty, the amount of |
| |
the penalty that may be imposed. |
| |
| An element of the policy must be that, in making a decision about any such |
| |
matter, the Panel has regard to the factors mentioned in subsection (4). |
| |
| 40 |
(a) | the seriousness of the breach or failure in question in relation to the |
| |
nature of the rule or direction contravened; |
| |
(b) | the extent to which the breach or failure was deliberate or reckless; |
| |
(c) | whether the person on whom the sanction is to be imposed is an |
| |
| 45 |
|
| |
|
| |
|
(5) | The Panel may at any time revise a policy statement. |
| |
(6) | The Panel must prepare a draft of any proposed policy statement (or revised |
| |
policy statement) and consult such persons about the draft as the Panel |
| |
| |
(7) | The Panel must publish, in whatever way it considers appropriate, any policy |
| 5 |
statement (or revised policy statement) that it prepares. |
| |
(8) | In exercising, or deciding whether to exercise, its power to impose a sanction |
| |
within subsection (2) in the case of any particular breach or failure, the Panel |
| |
must have regard to any relevant policy statement published and in force at the |
| |
time when the breach or failure occurred. |
| 10 |
653 | Failure to comply with rules about bid documentation |
| |
(1) | This section applies where a takeover bid is made for a company that has |
| |
securities carrying voting rights admitted to trading on a regulated market in |
| |
| |
(2) | Where an offer document published in respect of the bid does not comply with |
| 15 |
offer document rules, an offence is committed by— |
| |
(a) | the person making the bid, and |
| |
(b) | where the person making the bid is a body of persons, any director, |
| |
officer or member of that body who caused the document to be |
| |
| 20 |
(3) | A person commits an offence under subsection (2) only if— |
| |
(a) | he knew that the offer document did not comply, or was reckless as to |
| |
| |
(b) | he failed to take all reasonable steps to secure that it did comply. |
| |
(4) | Where a response document published in respect of the bid does not comply |
| 25 |
with response document rules, an offence is committed by any director or |
| |
other officer of the company referred to in subsection (1) who— |
| |
(a) | knew that the response document did not comply, or was reckless as to |
| |
| |
(b) | failed to take all reasonable steps to secure that it did comply. |
| 30 |
(5) | Where an offence is committed under subsection (2)(b) or (4) by a company or |
| |
other body corporate (“the relevant body”)— |
| |
(a) | subsection (2)(b) has effect as if the reference to a director, officer or |
| |
member of the person making the bid included a reference to a director, |
| |
officer or member of the relevant body; |
| 35 |
(b) | subsection (4) has effect as if the reference to a director or other officer |
| |
of the company referred to in subsection (1) included a reference to a |
| |
director, officer or member of the relevant body. |
| |
(6) | A person guilty of an offence under this section is liable— |
| |
(a) | on conviction on indictment, to a fine; |
| 40 |
(b) | on summary conviction, to a fine not exceeding the statutory |
| |
| |
(7) | Nothing in this section affects any power of the Panel in relation to the |
| |
enforcement of its rules. |
| |
|
| |
|
| |
|
(8) | Section 1 (meaning of “company”) does not apply for the purposes of this |
| |
| |
| |
“designated” means designated in rules; |
| |
“offer document” means a document required to be published by rules |
| 5 |
giving effect to Article 6.2 of the Takeovers Directive; |
| |
“offer document rules” means rules designated as rules that give effect to |
| |
Article 6.3 of that Directive; |
| |
“response document” means a document required to be published by |
| |
rules giving effect to Article 9.5 of that Directive; |
| 10 |
“response document rules” means rules designated as rules that give |
| |
effect to the first sentence of Article 9.5 of that Directive; |
| |
“securities” means shares or debentures; |
| |
“takeover bid” has the same meaning as in that Directive; |
| |
“voting rights” means rights to vote at general meetings of the company |
| 15 |
in question, including rights that arise only in certain circumstances. |
| |
| |
(1) | Rules may confer power on the Panel to order a person to pay such |
| |
compensation as it thinks just and reasonable if he is in breach of a rule the |
| |
effect of which is to require the payment of money. |
| 20 |
(2) | Rules made by virtue of this section may include provision for the payment of |
| |
interest (including compound interest). |
| |
655 | Enforcement by the court |
| |
(1) | If, on the application of the Panel, the court is satisfied— |
| |
(a) | that there is a reasonable likelihood that a person will contravene a |
| 25 |
rule-based requirement, or |
| |
(b) | that a person has contravened a rule-based requirement or a disclosure |
| |
| |
| the court may make any order it thinks fit to secure compliance with the |
| |
| 30 |
(2) | In subsection (1) “the court” means the High Court or, in Scotland, the Court of |
| |
| |
(3) | Except as provided by subsection (1), no person— |
| |
(a) | has a right to seek an injunction, or |
| |
(b) | in Scotland, has title or interest to seek an interdict or an order for |
| 35 |
| |
| to prevent a person from contravening (or continuing to contravene) a rule- |
| |
based requirement or a disclosure requirement. |
| |
| |
“contravene” includes fail to comply; |
| 40 |
“disclosure requirement” means a requirement imposed under section |
| |
| |
“rule-based requirement” means a requirement imposed by or under |
| |
| |
|
| |
|
| |
|
656 | No action for breach of statutory duty etc |
| |
(1) | Contravention of a rule-based requirement or a disclosure requirement does |
| |
not give rise to any right of action for breach of statutory duty. |
| |
(2) | Contravention of a rule-based requirement does not make any transaction void |
| |
or unenforceable or (subject to any provision made by rules) affect the validity |
| 5 |
| |
| |
(a) | “contravention” includes failure to comply; |
| |
(b) | “disclosure requirement” and “rule-based requirement” have the same |
| |
meaning as in section 655. |
| 10 |
| |
| |
(1) | Rules may provide for fees or charges to be payable to the Panel for the |
| |
purpose of meeting any part of its expenses. |
| |
(2) | A reference in this section or section 658 to expenses of the Panel is to any |
| 15 |
expenses that have been or are to be incurred by the Panel in, or in connection |
| |
with, the discharge of its functions, including in particular— |
| |
(a) | payments in respect of the expenses of the Takeover Appeal Board; |
| |
(b) | the cost of repaying the principal of, and of paying any interest on, any |
| |
money borrowed by the Panel; |
| 20 |
(c) | the cost of maintaining adequate reserves. |
| |
| |
(1) | For the purpose of meeting any part of the expenses of the Panel, the Secretary |
| |
of State may by regulations provide for a levy to be payable to the Panel— |
| |
(a) | by specified persons or bodies, or persons or bodies of a specified |
| 25 |
| |
(b) | on transactions, of a specified description, in securities on specified |
| |
| |
| In this subsection “specified” means specified in the regulations. |
| |
(2) | The power to specify (or to specify descriptions of) persons or bodies must be |
| 30 |
exercised in such a way that the levy is payable only by persons or bodies that |
| |
appear to the Secretary of State— |
| |
(a) | to be capable of being directly affected by the exercise of any of the |
| |
functions of the Panel, or |
| |
(b) | otherwise to have a substantial interest in the exercise of any of those |
| 35 |
| |
(3) | Regulations under this section may in particular— |
| |
(a) | specify the rate of the levy and the period in respect of which it is |
| |
| |
(b) | make provision as to the times when, and the manner in which, |
| 40 |
payments are to be made in respect of the levy. |
| |
(4) | In determining the rate of the levy payable in respect of a particular period, the |
| |
| |
|
| |
|
| |
|
(a) | must take into account any other income received or expected by the |
| |
Panel in respect of that period; |
| |
(b) | may take into account estimated as well as actual expenses of the Panel |
| |
in respect of that period. |
| |
| 5 |
(a) | keep proper accounts in respect of any amounts of levy received by |
| |
| |
(b) | prepare, in relation to each period in respect of which any such |
| |
amounts are received, a statement of account relating to those amounts |
| |
in such form and manner as is specified in the regulations. |
| 10 |
| Those accounts must be audited, and the statement certified, by persons |
| |
appointed by the Secretary of State. |
| |
(6) | Regulations under this section— |
| |
(a) | are subject to affirmative resolution procedure if subsection (7) applies |
| |
| 15 |
(b) | otherwise, are subject to negative resolution procedure. |
| |
(7) | This subsection applies to— |
| |
(a) | the first regulations under this section; |
| |
(b) | any other regulations under this section that would result in a change |
| |
in the persons or bodies by whom, or the transactions on which, the |
| 20 |
| |
(8) | If a draft of an instrument containing regulations under this section would, |
| |
apart from this subsection, be treated for the purposes of the Standing Orders |
| |
of either House of Parliament as a hybrid instrument, it is to proceed in that |
| |
House as if it were not such an instrument. |
| 25 |
659 | Recovery of fees, charges or levy |
| |
An amount payable by any person or body by virtue of section 657 or 658 is a |
| |
debt due from that person or body to the Panel, and is recoverable accordingly. |
| |
Miscellaneous and supplementary |
| |
660 | Panel as party to proceedings |
| 30 |
The Panel is capable (despite being an unincorporated body) of— |
| |
(a) | bringing proceedings under this Chapter in its own name; |
| |
(b) | bringing or defending any other proceedings in its own name. |
| |
661 | Exemption from liability in damages |
| |
(1) | Neither the Panel, nor any person within subsection (2), is to be liable in |
| 35 |
damages for anything done (or omitted to be done) in, or in connection with, |
| |
the discharge or purported discharge of the Panel’s functions. |
| |
(2) | A person is within this subsection if— |
| |
(a) | he is (or is acting as) a member, officer or member of staff of the Panel, |
| |
| 40 |
(b) | he is a person authorised under section 647(5). |
| |
|
| |
|
| |
|
(3) | Subsection (1) does not apply— |
| |
(a) | if the act or omission is shown to have been in bad faith, or |
| |
(b) | so as to prevent an award of damages in respect of the act or omission |
| |
on the ground that it was unlawful as a result of section 6(1) of the |
| |
Human Rights Act 1998 (c. 42) (acts of public authorities incompatible |
| 5 |
| |
662 | Privilege against self-incrimination |
| |
(1) | A statement made by a person in response to— |
| |
(a) | a requirement under section 647(1), or |
| |
(b) | an order made by the court under section 655 to secure compliance with |
| 10 |
| |
| may not be used against him in criminal proceedings in which he is charged |
| |
with an offence to which this subsection applies. |
| |
(2) | Subsection (1) applies to any offence other than an offence under one of the |
| |
following provisions (which concern false statements made otherwise than on |
| 15 |
| |
(a) | section 5 of the Perjury Act 1911 (c. 6); |
| |
(b) | section 44(2) of the Criminal Law (Consolidation) (Scotland) Act 1995 |
| |
| |
(c) | Article 10 of the Perjury (Northern Ireland) Order 1979 (S.I. 1979/1714 |
| 20 |
| |
| |
(1) | After the end of each financial year the Panel must publish a report. |
| |
| |
(a) | set out how the Panel’s functions were discharged in the year in |
| 25 |
| |
(b) | include the Panel’s accounts for that year; |
| |
(c) | mention any matters the Panel considers to be of relevance to the |
| |
discharge of its functions. |
| |
664 | Amendments to Financial Services and Markets Act 2000 |
| 30 |
(1) | The Financial Services and Markets Act 2000 (c. 8) is amended as follows. |
| |
(2) | Section 143 (power to make rules endorsing the City Code on Takeovers and |
| |
Mergers etc) is repealed. |
| |
(3) | In section 144 (power to make price stabilising rules), for subsection (7) |
| |
| 35 |
“(7) | “Consultation procedures” means procedures designed to provide an |
| |
opportunity for persons likely to be affected by alterations to those |
| |
provisions to make representations about proposed alterations to any |
| |
| |
(4) | In section 349 (exceptions from restrictions on disclosure of confidential |
| 40 |
information), after subsection (3) insert— |
| |
“(3A) | Section 348 does not apply to— |
| |
|
| |
|
| |
|
(a) | the disclosure by a recipient to which subsection (3B) applies of |
| |
confidential information disclosed to it by the Authority in |
| |
reliance on subsection (1); |
| |
(b) | the disclosure of such information by a person obtaining it |
| |
directly or indirectly from a recipient to which subsection (3B) |
| 5 |
| |
(3B) | This subsection applies to— |
| |
(a) | the Panel on Takeovers and Mergers; |
| |
(b) | an authority designated as a supervisory authority for the |
| |
purposes of Article 4.1 of the Takeovers Directive; |
| 10 |
(c) | any other person or body that exercises public functions, under |
| |
legislation in an EEA State other than the United Kingdom, that |
| |
are similar to the Authority’s functions or those of the Panel on |
| |
| |
(5) | In section 354 (Financial Services Authority’s duty to co-operate with others), |
| 15 |
after subsection (1) insert— |
| |
“(1A) | The Authority must take such steps as it considers appropriate to co- |
| |
| |
(a) | the Panel on Takeovers and Mergers; |
| |
(b) | an authority designated as a supervisory authority for the |
| 20 |
purposes of Article 4.1 of the Takeovers Directive; |
| |
(c) | any other person or body that exercises functions of a public |
| |
nature, under legislation in any country or territory outside the |
| |
United Kingdom, that appear to the Authority to be similar to |
| |
those of the Panel on Takeovers and Mergers.”. |
| 25 |
(6) | In section 417(1) (definitions), insert at the appropriate place— |
| |
““Takeovers Directive” means Directive 2004/25/EC of the |
| |
European Parliament and of the Council;”. |
| |
665 | Power to extend to Isle of Man and Channel Islands |
| |
Her Majesty may by Order in Council direct that any of the provisions of this |
| 30 |
Chapter extend, with such modifications as may be specified in the Order, to |
| |
the Isle of Man or any of the Channel Islands. |
| |
| |
| |
| 35 |
666 | Opting in and opting out |
| |
(1) | A company may by special resolution (an “opting-in resolution”) opt in for the |
| |
purposes of this Chapter if the following three conditions are met in relation to |
| |
| |
(2) | The first condition is that the company has voting shares admitted to trading |
| 40 |
| |
|
| |
|