JAMAICA Law and Practice Contributed by: Peter Goldson, Gina Phillipps Black, Hilary Reid and Simone Bowie Jones, Myers, Fletcher & Gordon
the Companies Office of Jamaica, the National Security Interests in Personal Property Register, Jamaica Intellectual Property Office, the Office of the Supervisor of Insolvency, the National Land Agency, and the Supreme Court Registry will be requested. Clients may request “red flags” due diligence report, and only ask their attorneys to highlight problematic issues, while some clients will request full-scale legal due diligence reports. Depending on the nature of the business being acquired, attorneys may recommend additional technical due diligence also be undertaken, such as by engineers, land surveyors or environmen - tal consultants. 5.4 Standstills or Exclusivity Standstills and/or exclusivity are fairly common in this jurisdiction. 5.5 Definitive Agreements It is common for tender offer terms and con - ditions to be documented and thereafter final - ised in definitive agreements. In most instances, tender offer terms and conditions are subject to definitive agreements and the due diligence pro - cess. 6. Structuring 6.1 Length of Process for Acquisition/ Sale The process of acquiring/selling a business can vary depending on the structure the transaction takes. On average for the due diligence exercise, closing, that is signed definitive agreements, perfecting of securities, transfer of shares (in the case of private companies or companies not traded on the Exchange) to be signed and assessed for stamp duty and transfer tax, and all filings with the relevant agencies such as the Companies Office of Jamaica, can take
two to four months. However, if the transaction involves a financial institution or a regulated entity, approval by the various regulators will be required, and this could extend the process for the acquisition/sale. 6.2 Mandatory Offer Threshold The Securities Act and its regulations and the JSE Rules include provisions which require any person who acquires a controlling interest in a public company – ie, shares representing 50% or more of the voting rights of a company, whether alone or acting in concert with another, to make a mandatory offer to the other shareholders of the same class. The FSC may in writing exempt a person from making a mandatory offer, where the person, by a transaction or a series of transactions, acquires control of a company in the following circumstances: • where the company’s shares were charged as security for a loan the enforcement of which would require the lender to make a general offer, provided that the security was not given at a time when the lender had reason to believe that enforcement of the loan was likely; • where the shares are acquired by that person for the purpose of recapitalising or rehabili - tating the company in order to restore it to solvency and to enable it to continue to carry on its business as a going concern; or • where: (a) for the purpose of the restructuring of a group, one or more members of the group acquires 50% or more of the shares of another member of the group (the “target company” ); (b) there is no change in the ultimate control of the voting rights in the target company;
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