11.—(1) For the purposes of paragraph 16(3) of Schedule 11 (offers of securities to “qualifying persons") and for the purposes of paragraph (2) below, a body corporate is “connected with" another body corporate if—
(a)they are in the same group; or
(b)one is entitled, either alone or with any other body corporate in the same group, to exercise or control the exercise of a majority of the voting rights attributable to the share capital which are exercisable in all circumstances at any general meeting of the other body corporate or its holding company.
(2) For the purposes of paragraph 16(4) of Schedule 11, “relevant trustee" means a person holding shares in or debentures of a body corporate as trustee, in pursuance of arrangements made by that body corporate (or by another body corporate connected with it) for the purpose of enabling or facilitating the holding of such shares or debentures by or for the benefit of qualifying persons (within the meaning of paragraph 16(2) of Schedule 11), or enabling or facilitating transactions in such shares or debentures between or for the benefit of such persons.
(3) In paragraph (2) above, “shares" and “debentures" include—
(a)any investment of the kind specified by article 76 of the Regulated Activities Order (shares) or article 77 of that Order (instruments creating or acknowledging indebtedeness);
(b)any investment of the kind specified by article 79 or 80 of that Order (instruments giving entitlements to investments, and certificates representing certain securities) so far as relevant to articles 76 and 77; and
(c)any investment of the kind specified by article 89 of that Order (rights to or interests in investments) so far as relevant to investments of the kind mentioned in sub-paragraph (a) or (b) above.
(4) For the purposes of paragraph 16(4) of Schedule 11 and for the purposes of paragraph (1) above, “group", in relation to a body corporate, means that body corporate, any other body corporate which is its holding company or subsidiary, and any other body corporate which is a subsidiary of that holding company, together with any body corporate in which a member of the group holds a qualifying capital interest.
(5) In this regulation—
(a)“equity share capital" is to be construed in accordance with section 744 of the Companies Act 1985 M1 (or, in relation to a company registered in Northern Ireland, in accordance with article 2(3) of the Companies (Northern Ireland) Order 1986 M2);
(b)“holding company" and “subsidiary" are to be construed in accordance with section 736 of the Companies Act 1985 (or, in relation to a company registered in Northern Ireland, in accordance with article 4 of the Companies (Northern Ireland) Order 1986 M3);
(c)“qualifying capital interest", in relation to a body corporate, means an interest, in relevant shares of the body corporate, which is held on a long-term basis for the purpose of securing a contribution to the holder’s own activities by the exercise of control or influence arising from that interest, and a holding of 20 per cent. or more of the nominal value of the relevant shares of a body corporate is to be presumed to be a qualifying capital interest unless the contrary is shown; and
(d)“relevant shares", in relation to a body corporate, means shares, comprised in the equity share capital of the body corporate, of a class carrying rights to vote in all circumstances at general meetings of the body.
Marginal Citations
M3Article 4 was substituted by S.I. 1990/1504 (N.I. 10).
12.—(1) For the purposes of paragraph 20(2) of Schedule 11 (advertisements which may be issued in relation to offers of Euro-securities), there is prescribed any advertisement which is issued only to persons who are on reasonable grounds believed, by the person issuing the advertisement or causing it to be issued, to be permitted recipients.
(2) A person is a permitted recipient for the purposes of paragraph (1) above if he is—
(a)an investment professional within the meaning of article 19 of the Financial Promotion Order;
(b)a person to whom paragraph (2) of article 47 of that Order (communications to persons in the business of disseminating information) applies by virtue of sub-paragraph (a) or (b) of that paragraph;
(c)a person to whom paragraph (2) of article 49 of that Order (communications to high net worth companies, unincorporated associations etc.) applies by virtue of any of sub-paragraphs (a) to (d) of that paragraph (read with paragraphs (5) to (7) of that article); or
(d)a person who is a certified sophisticated investor within the meaning of article 50 of that Order in relation to investments of a description which includes the securities which are the subject of the offer.
(3) For the purposes of paragraph (2)(a) above, article 19(5) of the Financial Promotion Order is to be read as if—
(a)in sub-paragraph (b) for the words from “where" to the end there were substituted “who is exempt in relation to regulated activities of a kind which are capable of being carried on in relation to the investments of the kind to which the offer relates";
(b)in sub-paragraph (c)(i) for the words “the controlled activity to which the communication relates" there were substituted “a controlled activity, in relation to investments of that kind,";
(c)in sub-paragraph (e) for the words “communication is made" there were substituted “ advertisement is issued ”; and
(d)after sub-paragraph (e) there were added—
“(f)a person with or for whom any credit institution or other financial institution through which the Euro-securities may be acquired pursuant to the offer has effected or arranged for the effecting of a transaction within the period of twelve months ending with the date on which the offer is first made.”.