By Evarist Baimu Nyaga Mawalla - Home

The executive has also discussed the purchases with the other investment institutionsinvolved; again in each case the executive has been assured that the purchases were madesolely with a view to investing in the combined group. 6.4 In conclusion the executive isof the offer has there been any agreement or understanding between K.I.O and NortonOpax which leads to their being held to be acting in concert.“7 Consequences of the executive ruling 7.1. If the panel agrees with the executive’sruling the executive recommends that Norton Opax should be released from itsundertaking not to declare the offer wholly unconditional 7.2 If the panel were to take thecontrary view to the executive it would be necessary to address the question of how todeal with the consequences in the context of a final offer.On the one hand, to order an increased offer under either rule 6 or rule 11 would beproblematic; as has been stated above, since the offer was expressed to be final, it couldbe argued that a concert party should not enable the offeror to increase his offer when hewould otherwise be precluded from doing so. On the other hand to require the bid tolapse might be equally inappropriate.The complaint was futher considered by the panel itself which also heard evidence. Ifdismissed the complaint the chairman saying:“The panel have carefully considered the evidence laid before them in this case and Ihave to tell you that they are not convinced that a concert party did exist in code terms inthis instance; and they therefore, uphold the ruling of the executive on that point.The panel did go on to consider more generally the position of – the relationship of – coreunderwriting arrangements in circumstances such as these and they would wish to add arider to the effect that the gearing effects core underwriting arrangements have could intheir view, in particular circumstances, in particular cases, be such as to contributeappreciably towards the creation of a presumption of concerted action, and that,therefore, in cases where core underwriting arrangements are involved those concernedshould have particular regard to the possibility of their being held, in the light of all thecircumstances in a particular case, to be in concert. And they would further add that insuch circumstances where there is core underwriting involved, one of the circumstanceswhich would further intensify the degree of investigation which would be implied wouldbe the act of purchases above the bid price.It is not of course to be seen as exclusively a feature that would necessarily be broughtinto examination; but the existence of purchases above the bid price is naturally onewhich would intensify the degree o examination which would be appropriate in suchcases. It will clearly, I think, be apt for the panel to issue a statement as soon as we cando so giving the announcement that a hearing on this subject has been held, that a concertparty has not been found to exist and carrying also the rider points that I havementioned.”158