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This unofficial version of the Takeovers Code includes the amendments made by the Takeovers Code Approval Amendment Regulations 2007. The Code as amended came into force on 1 July 2007. Variation of offer Permissible variations
The offeror may vary the offeror's offer only if the variation is to do any of the following things: (a) to increase an existing component or components of the consideration:
(b) to add a cash component to the consideration:
(c) to add to the offer a cash alternative (if the directors of the target company have given their prior written approval):
(d) to extend the offer period in accordance with rule 24A or 24B:
(e) if the offer period is extended, to vary the date that must be specified under rule 25(2), provided that the date is not varied by more than the period of time by which the offer period is extended.
Variation notice
(1) Subject to subclause (2), an offeror must immediately send a written notice of any variation of the offeror's offer to-
(a) every offeree; and
(b) the target company; and
(c) the Panel; and
(d) the registered exchange (if any voting securities of the target company are quoted on the registered exchange's market).
(2) If the offer is unconditional and the variation only extends the offer period, the notice referred to in subclause (1) need not be sent to offerees who have already accepted the offer.
(3) If the offer is subject to conditions that have not been satisfied or waived and the variation extends the offer period, the notice referred to in subclause (1) must specify the date by which the offer is to become unconditional.
(4) In the case of a variation of a kind referred to in rule 31(2) or (3), the notice must-
(a) prominently set out the relevant rights and obligations of the offerees under rules 31(2) to (5), 32(2), and 33; and
(b) be accompanied by a form, for acceptance of the variation, that is consistent with the rights and obligations of the offerees referred to in paragraph (a); and
(c) be accompanied by any documents necessary to revest in the offeror any consideration that must be returned by the offeree.
Timing of variation
(1) An offer may not be varied, and a variation notice may not be sent, later than 14 days before the end of the offer period.
(2) The offer must remain open for at least 14 days after a variation notice has been sent.
(3) Subclause (1) does not apply in the case of a full offer if-
(a) the offer is varied only by-
(i) extension of the offer period; or
(ii) extension of the offer period and consequent change of the specified date referred to in rule 25(2); and
(b) the offer is, or has become, unconditional as to level of acceptances.
30. Further reports required for certain variations
(1) If any of rules 8(3) and (4) and 9(5) apply to an offer and the offer is to be varied under any of rule 27(a) to (c),-
(a) a further report must be obtained by the offeror under rule 22 in relation to the offer as proposed to be varied; and
(b) the further report must contain the information specified in Schedule 3; and
(c) unless subclause (2) applies, the further report must accompany the variation notice sent under rule 28(1); and
(d) the variation notice must contain a statement as to how the consideration and terms of the offer, as varied, have been calculated so as to be fair and reasonable as between the classes of securities.
(2) If the variation notice will be sent under rule 28 before the target company statement is sent under rule 46(a)(ii), the offeror must send the further report to the target company and the Panel at the same time that the offeror sends the variation notice under rule 28.
(3) If subclause (2) applies, the further report must accompany the target company statement that the target company sends under rule 46(a)(ii).
(4) The further report must not be sent to offerees before the target company statement has been sent to offerees.
Variation of consideration and consideration alternatives
(1) If an offer does not contain alternative consideration options and a variation is made under rule 27(a) or 27(b), the additional consideration must be provided to every offeree who accepts the offer.
(2) If an offer contains alternative consideration options and a variation is made under rule 27(a) or 27(b), any offeree may accept the varied alternative or, if more than 1 alternative is varied, 1 of those varied alternatives.
(3) If a variation is made under rule 27(c), any offeree may accept that alternative.
(4) Subclauses (1) to (3) apply whether an offeree has accepted the offer before the variation or not.
(5) An offeree's acceptance of a consideration alternative under subclause (2) or (3) is only valid if the offeree complies with rule 32(2).
Procedure on variation of consideration and consideration alternatives
(1) If rule 31(1) applies after the consideration has been sent to offerees who have accepted the offer, the additional consideration must be sent, no later than 7 days after the date on which the offer is varied, to every offeree to whom the consideration under the offer was sent before the variation.
(2) If rule 31(2) or (3) applies after the consideration has been sent to offerees who have accepted the offer, and an offeree accepts a different consideration alternative, the acceptance by that offeree of a different consideration alternative is not valid unless the offeree repays or returns, with the form of acceptance of the different consideration alternative, the consideration already sent by the offeror and any documents necessary to revest the returned consideration in the offeror.
Consideration Offer to specify date for payment of consideration
(1) The offer must specify a date by which the consideration for the offer must be sent to the persons whose securities are taken up under the offer.
(2) The date referred to in subclause (1) must not be later than 7 days after the later of-
(a) the date on which the offer becomes unconditional; or
(b) the date on which an acceptance is received; or
(c) the end of the offer period first specified in the offer under rule 24(2).
Withdrawal of acceptance for non-payment of consideration
(1) If the consideration is not sent within the period specified in the offer to any person whose securities are taken up under the offer, the person may withdraw acceptance of the offer-
(a) by notice in writing to the offeror; but only
(b) after the expiration of 7 days' written notice to the offeror of the person's intention to do so.
(2) However, the right to withdraw acceptance of the offer does not apply if the person receives the consideration during the 7-day period referred to in subclause (1)(b).
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