MAURITIUS Law and Practice Contributed by: Shalinee Dreepaul Halkhoree, Ankusha Nathoo-Lallah and Namrata Jeewooth, Juristconsult Chambers (DLA Piper Africa)
6.4 Common Conditions for a Takeover Offer Conditions attached to a takeover are generally at the discretion of the offeror, provided they are included in the firm intention announcement. Common conditions include: • approval by a specified minimum percentage of shareholders; • approval from relevant regulatory authorities; • clearance under applicable antitrust regulations; • receipt of required consents in respect of material contracts; and • the absence of any material adverse change during a specified period. The offeror must disclose all such conditions in the firm intention notice and offer document. 6.5 Minimum Acceptance Conditions A voluntary takeover offer for all voting shares may be made subject to the condition that the offeror receives sufficient acceptances as to result in control of more than 50% of the voting rights. 6.6 Requirement to Obtain Financing In private M&A, the parties may contractually agree on conditions relating to financing, including “financing- out” clauses. In public M&A, the Takeover Rules prohibit condition - ality based on financing availability. The offeror must certify: • the availability of sufficient financial resources for a cash offer; and • that reasonable arrangements exist to fulfil non‑cash obligations. 6.7 Types of Deal Security Measures In private M&A, the parties are free to negotiate deal protection mechanisms such as exclusivity periods, break‑up fees, non‑solicitation commitments or matching rights. In public M&A, once a firm intention has been com - municated or is imminent, the board of the target must
right to exercise or control the exercise of more than 50% of the voting rights in the company. Once the mandatory offer obligation is triggered, the acquirer must: • make a mandatory offer to all remaining sharehold - ers; • publicly announce the mandatory offer; and • notify the FSC and the relevant securities exchange of the announcement. The FSC may waive the mandatory offer requirement: • in the context of a restructuring resulting in a change of control of the offeree; • where the FSC determines that a mandatory offer would be unfair or not in the interests of the mar- ket; or • in any other case as the FSC may deem fit. 6.3 Consideration Mauritian law allows both cash and non‑cash consid - eration for M&A transactions. In private M&A, valuation mechanisms such as deferred payments or post‑completion adjustments are commonly used to reconcile valuation differences. In public M&A, the offeror must: • confirm in the offer document that it has sufficient financial resources to satisfy cash consideration; and • demonstrate that adequate arrangements are in place to deliver non‑cash consideration. The board of the target will appoint an independent adviser to opine on whether the consideration is fair and reasonable to shareholders. The common tools for bridging valuation gaps are earn-outs, deferred consideration, equity rollovers and completion accounts adjustments.
813 CHAMBERS.COM
Powered by FlippingBook