MAURITIUS Law and Practice Contributed by: Shalinee Dreepaul Halkhoree, Ankusha Nathoo-Lallah and Namrata Jeewooth, Juristconsult Chambers (DLA Piper Africa)
7.4 Transaction Documents For private M&A transactions, although the docu - ments remain confidential between the parties, the regulators may require that the transaction documents be disclosed to them confidentially to obtain certain approvals. For takeover offers, the merger documents must be submitted to the Stock Exchange of Mauri - tius for review. Public announcements must also be made to the market. The FSC may also require that the documents be disclosed to shareholders. Directors’ primary duties are owed to the company and not to the shareholders. The directors must: • exercise their powers in accordance with the Companies Act and within the limits and subject to the conditions and restrictions established in the company’s constitution; • exercise the degree of care, diligence and skill; • not make use of or disclose any confidential infor - mation received by them on behalf of the company as directors; • not compete with or become a director or officer of a competing company; • disclose any interest where directors are interested in a transaction to which the company is a party; and • act honestly, in good faith and in the company’s best interest. 8. Duties of Directors 8.1 Principal Directors’ Duties Directors must also afford equal and fair treatment to shareholders of the same class in takeover offers. 8.2 Special or Ad Hoc Committees It is not customary to establish special or ad hoc com - Mauritian courts are generally reluctant to substitute their own commercial judgement for that of the board. They will usually assess directors’ conduct by refer - ence to their fiduciary duties under the Companies Act 2001, and will intervene only where directors have breached their fiduciary duties. mittees in business combinations. 8.3 Business Judgement Rule
8.4 Independent Outside Advice Legal, employment, data protection, financial, tax, governance and risk advice are commonly given to directors. 8.5 Conflicts of Interest There have been cases in Mauritius involving conflicts of interest of directors, managers and shareholders. 9. Defensive Measures 9.1 Hostile Tender Offers There are no regulatory constraints as regards hostile tender offers. 9.2 Directors’ Use of Defensive Measures Under the Takeover Rules, once a takeover offer is made or expected, the board cannot take actions that could frustrate the offer without shareholder approval. Directors of the target company are generally prohib - ited from implementing defensive measures that could materially impede a bona fide takeover bid unless such actions are approved by shareholders in general meetings. Actions that may be considered frustrating are the issuance of new shares, selling or acquiring assets, or entering into material contracts outside the ordinary course of business. 9.3 Common Defensive Measures Such measures will depend on the company’s consti - tution. In general, defensive measures are not allowed once an offer involving a reporting issuer has been made or is about to be made. 9.4 Directors’ Duties The primary duties owed to the company and share - holders prevail – notably, the duty to act in good faith and in the best interests of the company, the duty to avoid conflicts of interest and the duty to treat share - holders fairly and equally under similar circumstances. 9.5 Directors’ Ability to “Just Say No” In takeover situations, the board cannot independently turn down an offer. Instead, the board must appoint an independent adviser, consider the adviser’s report and make a good‑faith recommendation to shareholders.
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