MAURITIUS Law and Practice Contributed by: Shalinee Dreepaul Halkhoree, Ankusha Nathoo-Lallah and Namrata Jeewooth, Juristconsult Chambers (DLA Piper Africa)
diligence is a matter of negotiation. In both public and private transactions, the scope typically covers: • incorporation and registration records; • a review of the company’s constitution and other constitutional records; • licensing and regulatory matters; • shareholding and directorship; • existing or ongoing litigation and judgments, including insolvency proceedings; • environmental compliance; • intellectual property and data protection; • real estate holdings; • taxation; • indebtedness and banking arrangements; and • key commercial contracts. The scope varies depending on whether the deal is asset-based, a share acquisition or a merger. 5.4 Standstills or Exclusivity Exclusivity undertakings are usually addressed early in the process, often via a term sheet, letter of intent or non-disclosure agreement. They provide the bid - der comfort that the seller will not solicit or negotiate with other buyers during the agreed period. Standstill clauses, which restrict the bidder from acquiring addi - tional shares or influencing the company outside the negotiation process, are less frequently used but may be adopted to safeguard the target during diligence In public takeovers, the terms of the offer are not normally captured in a definitive agreement between the bidder and the target. Instead, the offer terms are set out in the firm intention announcement and the offer document, which must comply with the Takeover Rules. In private M&A, parties typically sign a binding share purchase agreement or asset purchase agreement fol - lowing due diligence and negotiation, which incorpo - rates warranties, indemnities, covenants and closing conditions. and multi-bidder situations. 5.5 Definitive Agreements
Nothing prevents parties from entering into a bind - ing agreement earlier in the process if they mutually agree. 6. Structuring 6.1 Length of Process for Acquisition/Sale There is no statutory deadline for completing a private M&A transaction. The timeline will depend on (among other things) the transaction structure, complexity and the progress of negotiations between the parties. For public M&A involving a reporting issuer, the time - table is prescribed by the Takeover Rules. Once an offeror issues a firm intention to make an offer, the process generally proceeds as follows: • the target company makes an immediate public announcement (in two daily newspapers) upon receipt of the firm intention; • the offeror files the offer document with the FSC and the relevant securities exchange; • within 14 days of filing, the offeror sends the offer document to shareholders and notifies the target’s board in writing; • the target issues its reply circular within 21 days of the offer document being sent to shareholders; and • the offer must remain open for not less than 35 days and not more than 60 days from communica - tion to shareholders. The timetable may be extended if the offer terms change or where court proceedings/interim relief affect the process. 6.2 Mandatory Offer Threshold A mandatory offer is triggered where: • a person (alone or with persons acting in concert) holds more than 30% of the voting rights in a company and then acquires, or agrees to acquire, additional voting shares in that company; • that person (alone or acting in concert) acquires effective control of a company; or • following a dealing in a company’s securities, that person (alone or acting in concert) acquires the
812 CHAMBERS.COM
Powered by FlippingBook