S.I. No. 255/2006 - European Communities (Takeover Bids (Directive 2004/25/EC)) Regulations 2006

1. Rule 2.1 in Part A is amended as follows

(a) by the deletion from paragraph (a) of that Rule of the definitions of “acting in concert”, “General Principles”, “Member State”, “offer”, “offeree”, “offeror” and “relevant company”;

(b) by the insertion into paragraph (a) of that Rule, in alphabetical order, of the following definitions

“affiliated person”, in relation to another person (the “Parent”), means any undertaking in respect of which the Parent

(a) has a majority of the shareholders' or members' voting rights; or

(b) is a shareholder or member and at the same time has the right to appoint or remove a majority of the members of its board of directors; or

(c) is a shareholder or member and alone controls a majority of the shareholders' or members' voting rights pursuant to an agreement entered into with other shareholders or members;

and for the purposes of this definition the rights of a Parent as regards voting appointment or removal shall include the rights of any other person which is an affiliated person of the Parent and the rights of any person acting in that person's own name but on behalf of the Parent or of any affiliated person of the Parent;

“competent authority” means the authority designated by a Member State under Article 4 of the Directive to supervise takeover bids for the purposes of the rules which it makes or introduces pursuant to the Directive; under the Regulations the Panel has been designated by the State as competent authority;

the “Directive” means Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids;

“EEA” means the European Economic Area;

“EEA Agreement” means the Agreement on the EEA signed at Oporto on 2 May 1992, as amended for the time being;

“EEA State” means a state which is a contracting party to the EEA Agreement;

“General Principles” means the principles set out in Regulation 7;

“Member State” means a Member State of the European Communities or an EEA State;

“offer” means, where the Panel is the competent authority, in accordance with Regulation 6, to supervise a takeover bid, that bid;

“offeree” means a relevant company -

(a) any transferable voting securities of which are the subject of a bid that has been made or is intended or required to be made, or

(b) in respect of which, or in connection with which, a person does any act in contemplation of making a bid to holders of transferable voting securities of that company;

“offeror” means a person who makes, or intends or is required to make, a bid or does any act in contemplation of making a bid;

“regulated market” has the meaning assigned to it by the Regulations;

“Regulations” means the European Communities (Takeover Bids (Directive 2004/25/EC)) Regulations 2006 (S.I. No. [ ] of 2006) which transposed the Directive into law, and “Regulation” shall be construed accordingly;

“relevant company” means a company which by virtue of Regulation 4(3), is to be regarded as a relevant company for the purposes of the application of the Act;

“takeover bid” or “bid” has the meaning assigned to it by the Regulations;

“transferable voting security” means, in relation to a company, a voting security which is transferable

(c) by substituting “recognised market” for the existing expression “regulated market” in paragraph (a) of that Rule and by substituting “recognised market” for the words “regulated market” in the definition of that expression and so that a like substitution shall be made wherever else those words appear in the existing Rules; and

(d) in paragraph (b) of that Rule, by the substitution of “salary;” for “salary.” and by the insertion, after sub-paragraph (v), of the following sub-paragraphs

“(vi) a reference to persons acting in concert shall be construed in accordance with Regulation 8;

(vii) Except where the context otherwise requires, references to shares including when used in other expressions such as shareholders (but excluding equity share capital), shall include securities.”

2. Rule 2.5 in Part A is amended by the substitution for sub-paragraph (i) in paragraph (a) of the following sub-paragraph

“(i) the registered address of such holder being in a country or territory outside the EEA to which the transmission or delivery of the material is precluded by the laws of a Member State or of such country or territory;”.

3. Rule 3.2 in Part A is amended by the deletion of “and” at the end of paragraph (m and by the substitution for paragraph (n) of the following

“(n) a person acting in concert with the offeree, the directors of the offeree, the holders of securities of the offeree or the directors of the offeror; and

(o) any person acting as an adviser to any of the persons specified in paragraphs (a) to (n) in relation to the takeover or other relevant transaction concerned.”

4. Rule 3.3 in Part A is amended as follows

(a) by the insertion of the following new paragraph at the beginning of that Rule

“(a) For all purposes of these Rules, a person and each of its affiliated persons shall be deemed to be persons acting in concert, all with each other.”;

(b) by the insertion of “(b)” at the beginning of the paragraph following that new paragraph (a), by renumbering existing paragraphs (a) to (g) as sub-paragraphs (i) to (vii) respectively, by substituting “(1)”, “(2)”, “(3)” and “(4)” for “(i)” “(ii)”, “(iii)” and “(iv)” respectively where they occur within sub-paragraphs (ii) and (vi) and by substituting “sub-paragraph (i)” for “paragraph (a)” in sub-paragraph (iii); and

(c) in the introductory paragraph in paragraph (b) (as so numbered by the preceding paragraph), by the insertion after “the same paragraph” of “(excluding any persons deemed under paragraph (a) above to be persons acting in concert with each other)”;.

5. Rule 2.5 is amended as follows

(a) by the substitution for paragraph (a) of the following paragraph

“(a) An offeror may announce a firm intention to make an offer only when the offeror and its financial adviser are satisfied, after careful and responsible consideration, that the offeror is able and will continue at all relevant times to be able to implement the offer. Subject thereto, an offeror shall announce without delay its firm intention to make an offer.”; and

(b) by the substitution in paragraph (d) of “Where the offer is for cash or includes an element of cash, the announcement of a firm intention to make an offer” for “The announcement of an obligation to make an offer under Rule 9 or Rule 37”.

6. Rule 2.6 is amended as follows

(a) by the deletion of “and” at the end of paragraph (a);

(b) by the substitution for paragraph (b) of the following paragraph

“(b) if the announcement initiating the offer period is not an announcement pursuant to Rule 2.5, the offeror shall, after the announcement is made promptly despatch a copy of the announcement, if any, pursuant to Rule 2.5 to each shareholder of the offeree;”; and

(c) by the insertion after paragraph (b) of the following paragraphs

“(c) after the publication of an announcement made pursuant to Rule 2.5 both the offeror and the offeree shall make that announcement or a circular summarising the terms and conditions of the offer readily and promptly available to the representatives of their respective employees or, where there are no such representatives, to the employees themselves; and

(d) where, following an announcement made pursuant to Rule 2.5, a circular summarising the terms and conditions of the offer is sent to shareholders or employee representatives or employees, the offeree shall make the full text of the Rule 2.5 announcement readily and promptly available to them.”

7. Rule 9.1 is amended as follows

(a) by the substitution of “the holders of each other class of transferable voting securities of the company” for “the holders of each class of non-equity share capital of the company conferring voting rights of which such person or, in the case of persons acting in concert, any of those persons held shares”; and

(b) by the insertion at the end of that Rule of the following paragraph

“An offer shall not be required under this Rule where control of a relevant company is acquired as a result of a voluntary offer made in accordance with the Rules (including, where applicable, Rules 14 and 15) to all the holders of equity share capital conferring voting rights and other transferable voting securities of that company in respect of their entire holdings.”

8. Rule 9.4 is amended as follows

(a) by the substitution of the following sentences for the first two sentences in paragraph (a)

“Except with the consent of the Panel and subject as otherwise provided by this Rule 9.4, an offer made under Rule 9 shall in respect of each class of shares the subject of the offer be in cash, or be accompanied by a cash alternative offer, at a price per share which shall not be less than the highest value of the consideration per share paid by the offeror or any person acting in concert with it for shares of the offeree of that class during the period (in Rule 9.4 referred to as the “relevant period”) beginning 12 months prior to the announcement by the offeror of a firm intention to make that offer and ending on the date on which the offer closes for acceptance. Accordingly, if after the time of the announcement of the offeror's firm intention to make the offer but before the offer closes for acceptance, the offeror or any person acting in concert with it acquires shares in the offeree of a class the subject of the offer at a price per share higher than the offer price, the offeror shall increase the offer price in respect of that class of shares to not less than the highest price per share paid for any of the shares so acquired.”; and

(b) by the substitution of the following paragraphs for paragraph (f)

“(f) In certain circumstances, the Panel may, having regard to the General Principles, determine that the highest price calculated under paragraph (a) shall be adjusted. Circumstances which the Panel may take into account when considering such an adjustment are

(i) the size and timing of the relevant purchases;

(ii) the attitude of the offeree board;

(iii) where securities had been purchased from directors or other persons closely connected with the offeror or the offeree, the price at which such securities were purchased;

(iv) the number of securities purchased in the preceding 12 months and the pattern of such purchases, by number of securities and prices paid, over that period;

(v) if an offer is required in order to enable a company in serious financial difficulty to be rescued;

(vi) if an offer is required as a result of a person acquiring securities by way of bona fide gift or inheritance; and

(vii) if the market prices of the securities have been manipulated or affected by exceptional occurrences.

In any case in which the highest price is adjusted under this Rule, the Panel will publish its decision.

(g) The consent of the Panel under paragraph (a) to an offer consideration which does not consist of cash or include a cash alternative will not be granted where

(i) the consideration does not consist of liquid securities admitted to trading on a recognised market; or

(ii) the offeror or persons acting in concert with the offeror have purchased for cash during the relevant period securities carrying 5% or more of the voting rights in the offeree.”

9. Rule 10 is amended by the substitution of the following paragraph for the first paragraph

“Except with the consent of the Panel, it shall be a condition of any voluntary offer for equity share capital conferring voting rights or for other transferable voting securities which, if accepted in full, could result in the offeror holding securities conferring more than 50% of the voting rights in the offeree that the offer shall not become unconditional as to acceptances unless the offeror has acquired or agreed to acquire (either pursuant to the offer or otherwise) securities conferring more than 50% of the voting rights in the offeree.”

10. Rule 19.7 is amended as follows

(a) by the insertion in paragraph (a), after “any advertisement or other material (including any notes to editors) shall” of “, subject to the exception in paragraph (b) below,”;

(b) by the insertion after paragraph (a) of the following paragraph

“(b) An offeror shall deliver a copy of the offer document and any revised offer document to the Panel prior to releasing it pursuant to paragraph (a).”; and

(c) by the renumbering of existing paragraphs (b) and (c) as paragraphs (c) and (d) respectively and by the insertion in paragraph (d) (as so renumbered) after “Stock Exchange” of “, which announcement, in the case of an offer document, a revised offer document, a first response circular or a response circular in relation to a revised offer, shall state where that document is available for inspection in accordance with Rule 26”.

11. Rule 21.1 is amended as follows

(a) by the substitution of “frustrating action;” for “frustrating action (as defined in paragraph (c)); or” at the end of sub-paragraph (ii) in paragraph (a);

(b) by the substitution for sub-paragraph (iii) in paragraph (a) of the following paragraphs

“(iii) with the consent of the Panel where the holders of securities carrying more than 50% of the voting rights in the offeree state in writing that they approve the action proposed and would vote in favour of any resolution to that effect proposed at a general meeting of the offeree;

(iv) with the consent of the Panel in pursuance of a contract entered into prior to the announcement of the offer or (as the case may be) to any such earlier time as is referred to below; or

(v) with the consent of the Panel where a decision to take the proposed action was made prior to the announcement of the offer or (as the case may be) to any such earlier time as is referred to below and such decision: (1) has been partly or fully implemented before that time; or (2) has not been partly or fully implemented before that time but is in the ordinary course of business,”;

(c) by the substitution for sub-paragraph (6) in paragraph (a) of the following sub-paragraph

“(6) take any action, other than seeking alternative offers, which may result in frustration of an offer or possible offer or in offeree shareholders being denied the opportunity to decide on the merits of such an offer or possible offer.”; and

(d) by the deletion of paragraph (c).

12. Rule 24.1 is amended by the substitution therefor of the following

“24.1 INTENTIONS REGARDING THE OFFEREE, THE OFFEROR AND THEIR EMPLOYEES

An offeror shall inform the shareholders of the offeree of the following matters in the offer document

(a) its intentions regarding the future business of the offeree and its subsidiaries;

(b) its strategic plans for the offeree and their likely repercussions on employment and on the locations of the offeree's places of business;

(c) its intentions regarding any redeployment of the fixed assets of the offeree and its subsidiaries;

(d) the long-term commercial justification for the offer; and

(e) its intentions with regard to safeguarding the employment of the employees and management of the offeree and of its subsidiaries including any material change in the conditions of employment.

Where the offeror is a company and insofar as it is affected by the offer the offeror shall also disclose in the offer document the information set out in paragraphs (a), (b) and (e) in relation to itself.”

13. Rule 24.2 is amended by the substitution for paragraph (b) of the following paragraph

“(b) the offer document (including, where relevant, any revised offer document) shall include

(i) a heading stating “If you are in doubt about this offer, you should consult an independent financial adviser who, if you are taking advice in Ireland, is authorised or exempted under the

Investment Intermediaries Act, 1995

”;

(ii) the date when the document is despatched, the name and address of the offeror, including where the offeror is a company, its type and the address of its registered office, and, if appropriate, of the person making the offer on behalf of the offeror;

(iii) the identity of every person acting in concert with the offeror or, to the extent that this is known to the offeror, with the offeree, including, in the case of a company, its type, the address of its registered office and its relationship with the offeror or, to the extent that this is known to the offeror, with the offeree, as applicable;

(iv) details of each class of securities for which the offer is made including whether those securities will be transferred “cum” or “ex” any dividend and the maximum and minimum percentages of those securities which the offeror undertakes to acquire;

(v) the terms of the offer, the total consideration offered including the consideration offered for each class of security and particulars of the way in which the consideration is to be paid in accordance with Rule 31.8;

(vi) in the case of an offer under Rule 9, the information required under sub-paragraph (b)(v) shall include the method employed under Rule 9.4 in calculating the consideration offered;

(vii) all conditions to which the offer is subject;

(viii) particulars of all documents required, and procedures to be followed, for acceptance of the offer;

(ix) the market price quotations for the securities the subject of the offer, and (in the case of a securities exchange offer) the securities offered, for the first business day in each of the six months immediately before the date of the offer document, for the last business day before the commencement of the offer period and for the latest practicable date before the despatch of the offer document. Price quotations stated in respect of securities quoted on a recognised market shall be the closing dealt price on the relevant day as published by that market. Where securities the subject of the offer or securities offered as consideration under the offer are quoted on more than one recognised market, the relevant quotations on each such market shall be included. If there have been no dealings in the securities on any relevant day, the price to be quoted shall be the midpoint between the high and low market guide prices, or the market guide price if only one is quoted. If any of the securities are not quoted on a recognised market, any information available as to the number and price of transactions which have taken place during the preceding six months shall be stated together with the source, or an appropriate negative statement;

(x) in the case of a securities exchange offer, full particulars of the securities being offered, including the rights attaching to them the first dividend or interest payment in which the new securities to be issued as consideration under the offer will participate and how the securities will rank for dividends or interest, capital and redemption; a statement indicating the effect of acceptance on the capital and income position of the offeree's shareholders; and a statement specifying whether an application for quotation for the securities has been or will be made to a recognised market and whether a quotation on any other stock exchange or market has been or will be sought;

(xi) in the case of a securities exchange offer, the effect of full acceptance of the offer upon the offeror's assets, profits and business which may be significant for a proper appraisal of the offer;

(xii) the compensation offered for any removal of rights pursuant to Regulation 18, together with particulars of the way in which the compensation is to be paid and the method employed in determining it; and

(xiii) the national law which will govern contracts concluded between the offeror and the holders of securities of the offeree as a result of the offer, and the competent courts.”

14. Rule 24.6 is amended by the insertion, after “The offer document shall” of “state the time allowed for acceptance of the offer and any alternative offer and shall”.

15. Rule 25.1 is amended by the substitution of “opinion” for “views” wherever that word appears in that Rule, including its title.

16. Rule 25.2 is amended by the substitution of “OFFEREE” for “COMPANY” in its title and by the substitution for that Rule of the following

“The opinion referred to in Rule 25.1(a)(i) shall include the views of the offeree board on

(a) the effects of implementation of the offer on all the offeree's interests including, specifically, employment; and

(b) the offeror's strategic plans for the offeree and their likely repercussions on employment and on the locations of the offeree's places of business, as set out in the offer document pursuant to Rule 24.1;

and shall state the offeree board's reasons for forming its opinion.”

17. Rule 30 is amended as follows

(a) by the insertion in its title of “AND MAKING AVAILABLE” after “DESPATCHING”;

(b) by the insertion of “(a)” at the beginning of Rule 30.2 and by the insertion after paragraph (a) of that Rule of the following

“(b) Simultaneously with the despatch of the offer document under paragraph (a), both the offeror and the offeree shall make the offer document readily available to the representatives of their respective employees or, where there are no such representatives, to the employees themselves.”; and

(c) by the substitution for Rule 30.3 of the following

“(a) Except with the consent of the Panel, the offeree board shall advise the shareholders of the offeree of its opinion on the offer in a circular (the “first response circular”) which it shall despatch to those shareholders within 14 days after the date of despatch of the offer document.

(b) The offeree board shall append to the first response circular a separate opinion from the representatives of its employees on the effects of the offer on employment, provided such opinion is received in good time before the despatch of that circular.

(c) Simultaneously with the despatch of the first response circular under paragraph (a), the offeree shall make the circular readily available to the offeree's employee representatives or, where there are no such representatives, to the employees themselves.”

18. Rule 31.2 is amended as follows

(a) by the insertion after paragraph (c) of the following

“(d) Where an offer remains open for acceptance beyond the 70

th

day following the despatch of the offer document, the offeror shall despatch to offeree shareholders who have not accepted the offer a notice specifying the date beyond which the offer will not be open for acceptance, such date not being less than 14 days after the despatch of such notice.”; and

(b) by the renumbering of existing paragraph (d) as paragraph (e).

19. Rule 32 is amended as follows

(a) in paragraph (a) of Rule 32.1, by the substitution for the words “If an offer is revised, the offeror” of the words “If an offer is revised, the offeror shall despatch to the shareholders of the offeree a revised offer document, drawn up in accordance with Rules 24 and 27. The offeror”; and

(b) by the insertion after Rule 32.4 of the following

“32.5 THE OFFEREE BOARD’S OPINION

(a) The offeree board shall despatch to the shareholders of the offeree a response circular containing its opinion under Rule 25.1(a)(i) on a revised offer, drawn up in accordance with Rules 25 and 27.

(b) The offeree board shall append to the response circular containing its opinion on a revised offer a separate opinion from the representatives of its employees on the effects of the revised offer on employment provided such opinion is received in good time before despatch of that response circular.

32.6 INFORMING EMPLOYEES

(a) When any revised offer document is despatched to shareholders of the offeree, both the offeror and the offeree shall make that document readily and promptly available to the representatives of their respective employees or, where there are no such representatives, to the employees themselves.

(b) When the offeree board despatches to its shareholders a response circular containing its opinion under Rule 25.1(a)(i) on a revised offer it shall make that circular readily and promptly available to its employee representatives or, where there are no such representatives to the employees themselves.”

20. Rule 36.4 is amended by the deletion from that Rule of “Except with the consent of the Panel”.

21. Except in the case of relevant companies which fall within the definition of “relevant company” in section 2 of the Act of 1997 (as that section has effect apart from the operation of Regulation 4), Rules 3.1 in Part A and Rule 3.2, Rule 5, Rule 7.2 paragraph (b) in Rule 9.1, Rule 14, Rule 15, Rule 36 (to the extent that such Rule relates to partial offers that will not constitute takeover bids), Rule 37, Rules 39 to 41 (inclusive) and Appendix 4 to the Rules shall be deleted.

GIVEN under my Official Seal,

the 18

th

day of May 2006.

_____________________

MICHEÁL MARTIN

Minister for Enterprise, Trade and Employment, Trade and Employment

EXPLANATORY NOTE

(This note is not part of the instrument and does not purport to be a legal interpretation).

These Regulations give effect to Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on Takeover Bids.

22. (1) This Part applies in relation to a bid for a body corporate, being either -

(a) a company within the meaning of the Companies Acts 1963, or

(b) a body corporate established in the State by charter,

and which is a company a bid in respect of which the Panel has (by virtue of Regulation 6 jurisdiction to supervise.

(2)

Section 204

of the

Companies Act 1963

shall not apply to a bid for a company or other body corporate falling within paragraph (1) in so far as it relates to securities.

Right to buy out dissenting security holders

23. (1) This Regulation applies where an offeror, pursuant to acceptance of a bid for the beneficial ownership of all the securities (other than the securities already in the beneficial ownership of the offeror) in the capital of a company or other body corporate falling within Regulation 22(1), has acquired, or unconditionally contracted to acquire securities which -

(a) amount to not less than nine tenths in nominal value of the securities affected, and

(b) carry not less than nine tenths of the voting rights attaching to the securities affected.

(2) Where this Regulation applies, the offeror may, not later than the relevant date, give notice to any dissenting security holder that it desires to acquire the beneficial ownership of his or her securities, and when such notice is given the offeror shall be entitled and bound to acquire the beneficial ownership of those securities on the terms on which under the bid the beneficial ownership of the securities in respect of which the bid has been accepted and is to be acquired by the offeror.

(3) For the purposes of paragraph (2), if the offeree company has issued more than one class of securities, then a notice under that paragraph may only be given by the offeror to holders of securities of the class or classes in respect of which the thresholds provided under paragraph (1)(a) and (b) have been reached.

(4) In paragraph (2) “relevant date” means the last day of the period of 3 months beginning with the day after the last day on which the bid referred to in paragraph (1) can be accepted.

(5) For the purposes of this Regulation -

(a) securities in the offeree in the beneficial ownership of a subsidiary of the offeror shall be deemed to be in the beneficial ownership of the offeror,

(b) the acquisition of the beneficial ownership of securities in the offeree by a subsidiary of the offeror shall be deemed to be the acquisition of such beneficial ownership by the offeror, and

(c) securities shall not be treated as not being in the beneficial ownership of the offeror merely by reason of the fact that those securities are or may become the subject of a charge in favour of another person.

(6) This Regulation is subject to Regulation 27.

Right of certain security holders to be bought out

24. (1) This Regulation applies where an offeror, pursuant to acceptance of a bid for the beneficial ownership of all the securities (other than the securities already in the beneficial ownership of the offeror) in the capital of a company or other body corporate falling within Regulation 22(1), has acquired, or unconditionally contracted to acquire, some but not all of the securities to which the offer relates and the securities so acquired or unconditionally contracted to be acquired -

(a) amount to not less than nine tenths in nominal value of the securities affected, and

(b) carry not less than nine tenths of the voting rights attaching to the securities affected.

(2) Where this Regulation applies -

(a) the offeror shall, within 1 month from the circumstances referred to in paragraph (1) having arisen, give to all holders of securities in the offeree company not in the beneficial ownership of the offeror notice of the existence of those circumstances, and

(b) any such holder may, within 3 months from the giving of that notice to him or her, require, by notice given to the offeror, the offeror to acquire his or her securities,

and where a security holder gives notice under subparagraph (b) in relation to any securities the offeror shall be bound to acquire the beneficial ownership of those securities on the terms on which under the bid the beneficial ownership of the securities of the assenting security holders was acquired by it.

(3) Regulation 25 shall apply to the steps to be taken by the offeror on foot of a notice given to the offeror under paragraph (2)(b) and matters consequential thereon as it applies to the steps to be taken by an offeror on foot of a notice given under Regulation 23(2 and matters consequential thereon with -

(a) the modification that a reference in Regulation 25 to a notice under Regulation 23(2) shall be read as a reference to a notice given under paragraph (2)(b) of this Regulation, and

(b) any other necessary modifications.

(4) This Regulation is subject to Regulation 27.

Steps to be taken on foot of notice under Regulation 23(2)

25. (1) Where a notice has been given by an offeror under Regulation 23(2), the offeror shall, before the expiration of 1 month from the date of the giving of the notice -

(a) transmit to the offeree company a copy of the notice together with subject to paragraph (3), an instrument of transfer of the securities of the dissenting security holders executed on behalf of the dissenting security holders as transferor by any person appointed by the offeror (being either the offeror or a subsidiary of the offeror or a nominee of the offeror or of such a subsidiary), and

(b) pay to or vest in the offeree company the amount or other consideration representing the price payable by the offeror for the beneficial ownership of the securities which by virtue of Regulation 23 the offeror is entitled to acquire.

(2) Upon the foregoing things being done, the offeree company shall register as the holder of those securities the person who executed the instrument as transferee.

(3) Nothing in paragraph (1)(b) shall require an instrument of transfer for any security for which a security warrant is for the time being outstanding.

(4) Any sums received by the offeree company under this Regulation shall be paid into a separate bank account and any such sums and any other consideration so received shall be held by the company on trust for the several persons entitled to the securities in respect of which the said sums or other consideration were respectively received.

(5) The offeree company or a nominee of the offeree company shall not be entitled to exercise any right of voting conferred by any securities in the offeror company issued to it or to its nominee as consideration or part consideration for the transfer to the offeror company of any securities of a dissenting security holder except by and in accordance with instructions given by that security holder or his or her successor in title.

(6) This Regulation is subject to Regulation 27.

Supplemental provisions in relation to Regulation 23 where alternative terms offered

26. (1) Where a bid provides that an assenting security holder may elect between two or more sets of terms for the acquisition by the offeror of the beneficial ownership of the securities affected, the notice given by the offeror under Regulation 23(2) shall be accompanied by or embody a notice stating the alternative sets of terms between which assenting security holders are entitled to elect and specifying which of those terms shall be applicable to the dissenting security holder if he or she does not before the expiration of 14 days from the date of the giving of the notice notify the offeror in writing of his or her election as between such alternative sets of terms.

(2) In the case of a bid of the kind referred to in paragraph (1), the terms upon which the offeror shall under Regulation 23(2) be entitled and bound to acquire the beneficial ownership of the securities of a dissenting security holder shall be the set of terms his or her election in respect of which the dissenting security holder has, in accordance with paragraph (1), notified to the offeror or, in default of such notification, the set of terms specified in the notice secondly mentioned in paragraph (1).

(3) This Regulation is subject to Regulation 27.

Applications to the Court

27. (1) Where a notice is given by an offeror pursuant to Regulation 23(2) a dissenting security holder may, within 21 days from the giving of the notice, apply to the High Court in a summary manner for a declaration that the conditions specified in Regulation 23 for the giving of that notice are not satisfied or that the terms on which the offeror proposes, on foot of that notice, to acquire the securities of the dissenting security holder do not comply with that Regulation (including that Regulation as it has effect by virtue of Regulation 26).

(2) On the hearing of an application under paragraph (1), the High Court shall, as it considers appropriate, grant or refuse to grant the declaration sought and -

(a) if it grants a declaration of the kind firstly mentioned in paragraph (1) it shall also declare the notice referred to in that paragraph void, and

(b) if it grants a declaration of the kind secondly mentioned in paragraph (1), it shall also declare what are the terms, by virtue of Regulation 23 or 26, upon which the securities of the dissenting security holder shall be acquired and make an order requiring the offeror to acquire those securities on those terms accordingly.

(3) A security holder who has given to an offeror a notice, pursuant to Regulation 24(2)(b), may, within 21 days from the giving of the notice, apply to the High Court in a summary manner for a declaration that the terms on which the offeror proposes, on foot of the notice, to acquire the securities of the holder do not comply with Regulation 24(2).

(4) On the hearing of an application under paragraph (3), the High Court shall, as it considers appropriate, grant or refuse to grant the declaration sought and, if it grants the declaration, it shall also declare what are the terms, by virtue of Regulation 24, upon which the securities of the applicant shall be acquired and make an order requiring the offeror to acquire those securities on those terms accordingly.

(5) So long as an application under paragraph (1) or (3) is pending or is being determined by the High Court anything that a preceding Regulation of this Part requires to be done shall not be done until the proceedings in the High Court (including any appeal therefrom) are finally disposed of and then only if its doing would be consistent with the final order in the matter.

Part 5: interpretation and supplemental

28. (1) In this Part -

“assenting security holder” means a holder of any of the securities affected in respect of which the bid has been accepted;

“dissenting security holder” means a holder of any of the securities affected in respect of which the bid has not been accepted by the holder;

“securities affected” means the securities the acquisition of the beneficial ownership of which by the offeror is involved in the bid.

(2) Where a bid has been accepted by a person in respect of a part only of the securities held by him or her, he or she shall be treated, for the purposes of this Part, as an assenting security holder as regards that part of his or her holding and as a dissenting security holder as regards the remainder of his or her holding.

(3) In the application of this Part to an offeree company the capital of which consists of two or more classes of securities, references to the securities in the capital of the offeree company shall be construed as references to the securities in its capital of a particular class.

(4) Paragraph (3) is in addition to, and does not derogate from, Regulation 23(3).

(5) For the purposes of paragraph (1) of Regulation 23 and paragraph (1) of Regulation 24, when the thresholds specified in either of those paragraphs have been reached in a particular case, the offeror's receiving agent shall issue a certificate to that effect to the offeror.

SCHEDULE

In this Schedule, a reference to a Rule shall be construed as a reference to a Rule contained in the

Irish Takeover Panel Act, 1997

, Takeover Rules, 2001 (as amended by the

Irish Takeover Panel Act, 1997

, Takeover (Amendment) Rules, 2002 and the

Irish Takeover Panel Act 1997

, Takeover (Amendment) Rules, 2005) and, unless otherwise indicated, shall be construed as a reference to a Rule in Part B of those Rules.

STATUTORY INSTRUMENTS

S.I. No. 255 of 2006

European Communities (Takeover Bids (Directive 2004/25/EC)) Regulations 2006

S.I. No. 255 of 2006

I, Micheál Martin, T.D., Minister for Enterprise, Trade and Employment, in exercise of the powers conferred on me by

section 3

of the

European Communities Act 1972

(No. 22 of 1972), and for the purpose of giving effect to Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids, hereby make the following regulations

Part 1

Preliminary and General

Citation, construction and commencement