BERMUDA Law and Practice Contributed by: Natalie Neto, Rachel Nightingale and Marah Smith, Walkers
BSX Financial accounts, auditor’s reports and any other filings and announcements of a Bermuda listed company can be requested from the BSX. 5.4 Standstills or Exclusivity Exclusivity for transactions is often requested at the point of entering into formal discussions once a winning bidder has been selected. Exclusivity clauses may be incorporated into the heads of terms, or a separate exclusivity agreement may be entered into between the parties. Standstills are not often used in Bermuda trans - actions. 5.5 Definitive Agreements Tender offers may be used in both friendly and hostile transactions. The Companies Act does not prescribe the manner in which a tender offer may be made (except for the timings and thresh - olds described in 2.1 Acquiring a Company ). It is also possible for an acquisition that originally commenced as a tender offer to be converted into a merger or amalgamation when the appli - cable thresholds have been met. If the target’s shares are listed, the rules and regulations of the applicable stock exchange and any takeover rules (which may have been incorporated into the target’s by-laws) will also need to be com - plied with in terms of how the tender offer will be communicated to shareholders. Typically, a target shareholder will receive: • an announcement to the shareholders; • an offer document; • an acceptance form; and • notices of intention to acquire shares (where the remainder are being compulsorily acquired pursuant to Section 102/103).
The extent to which the target is involved in the communications will depend on whether it is recommending that shareholders accept the offer and the requirements of any applicable list - ing or takeover rules. 6. Structuring 6.1 Length of Process for Acquisition/ Sale Under Bermuda law, there is no statutory time - frame for acquiring or selling a company. Timing will depend on: • the manner in which the acquisition is being structured (and compliance with any statutory requirements or timelines); • the provisions of the by-laws (which may include provisions that incorporate takeover code-type provisions); • the rules of any applicable stock exchange if the target’s shares are listed; • any governmental approvals required (for example, Section 114B and Section 129A licences); • the implications of the Exchange Control Rules (although any related permissions can usually be obtained within two to three weeks); and • whether or not the target is regulated (includ - ing the requirement for the approval of the Bermuda and foreign regulators, for example, where the target is a holding company and the subsidiaries are regulated in Bermuda and elsewhere). In private acquisitions involving unregulated entities, an acquisition may be effected within a matter of weeks. Where a target is listed and/ or regulated, completion usually takes a few months in order to ensure that all applicable list -
259 CHAMBERS.COM
Powered by FlippingBook