On 30 March 2023, Namsen Limited, a company with its registered office in Nicosia, Cyprus (hereinafter: ‘Namsen’) announced a tender offer for the sale of shares of Kernel Holding SA with its registered office in Luxembourg (hereinafter: ‘Kernel’)¹. At the same time, Kernel announced its intention to apply for approval of delisting of its shares from a regulated market . 

As at the date of this publication, Kernel has not applied to Urząd Komisji Nadzoru Finansowego (UKNF) for authorisation to delist shares from trading on a regulated market. If such application is filed, Komisja Nadzoru Finansowego (KNF) will conduct an administrative procedure and issue a decision based on the findings. Decisions on applications for authorisation to delist shares of public companies are communicated by the KNF in official communications published at www.knf.gov.pl.

The law applicable to determine  the company’s governing body competent to adopt a resolution on delisting of shares from a regulated market and the procedure for adopting it is the law of the country in which the company has its registered office². The procedure that may be initiated by the KNF if Kernel files the relevant application will involve establishing – in agreement with the competent supervisory authority, pursuant to the law of the Grand Duchy of Luxembourg as the law of the country in which Kernel is established – which governing body of the company, in which form and under which procedure, is entitled to make a decision on the delisting of the company from a regulated market, and whether such decision has been made in accordance with the governing law (in this case the law of the Grand Duchy of Luxembourg). 

The official position on the scope of application of Article 91 of the Polish Act on public offering to public companies established outside Poland is available on the KNF website in points 10 and 11 of the Q&A document. 

As regards the price offered in the tender offer announced under Article 91(5) of the Act on public offering, the KNF is not entitled to take any supervisory intervention measure, provided that the share price proposed in the tender offer has been determined in accordance with the rules laid down in that provision of law. The regulations that would apply in that case use objective criteria, referring to, among other things, the average market share price from the 6 and 3 months preceding the announcement of the tender offer as the basis for determining the price of the shares proposed in the tender offer.