s45 Offers

Mercifully simple rules relating to offer documents.

45. (1) The directors of a company or (in the case of a company yet to be incorporated) the proposed directors shall ensure that any offering document issued in relation to such company shall —

(a) contain all material information relating to the offer or invitation contained therein —

(i) that the intended recipients would reasonably expect to be included therein in order to enable them to make an informed decision as to whether or not to accept the offer or make the application referred to therein; and
(ii) of which the directors or proposed directors (as the case may be) were aware at the time of issue of the offering document, or of which they would

have been aware had they made such enquiries as would have been reasonable in all the circumstances; and

(b) set out such information fairly and accurately.

(2) Subject to subsection (3), the company and each of the directors or proposed directors (as the case may be) shall be jointly and severally liable to compensate any intended recipient of an offering document who accepts the offer of securities contained therein, or applies to acquire securities pursuant thereto, in reliance upon a misstatement set out in that offering document against any losses incurred by such person as a result thereof.

(3) A director may be relieved from liability under subsection (2) if it is established that-

(a) the director did not consent to the issue of the offering document containing the misstatement in question; or

(b) could not reasonably have been expected to know that the misstatement breached subsection (1).

(4) In this section, the following words and expressions shall have the following meanings respectively-

(a) ‘intended recipients’ means, in relation to an offering document, those persons who, taking into account the terms of the offering document and all the circumstances in which the offering document was issued, might reasonably be expected to accept the offer contained therein or to apply to acquire securities pursuant thereto;

(b) ‘ misstatement’ means any statement included in an offering document which breaches subsection (1) or any statement omitted from an offering document in breach of subsection (1); and

(c) ‘ offering document’ means, in relation to a company (including a company proposed to be incorporated), any document issued on behalf of that company containing an offer to subscribe for or purchase any securities of that company or an invitation to apply for any such securities.

(5) An offering document may be (but is not required to be) filed on behalf of the company to which it relates by the company’s registered agent.