When are DLCs considered?

DLCs are rare, and are only used whentraditional structures will not work. The set-up costs of DLCs are high and thestructures can be complex. The advantagesof a DLC may include:

Continuity of domicile This can be particularly important where acompany has a high profile on a nationalexchange or where nationality may be an issueto investors, regulators or governments. Witha DLC structure, two companies can becombined while maintaining their listings ontheir respective domestic exchanges.

Continuity of corporate identity Companies may be reluctant to merge byway of takeover because they do not wish to give target shareholders a premium for their shares at the expense of thebidder’s shareholders. A DLC can facilitate a nil-premium merger of equals.

Continuity of corporate identity also enablesshareholders to continue to invest instructures with which they are familiar andcan sometimes be implemented with a lowerlevel of shareholder approval than a takeover.

Continuity of tax treatmentFrom a shareholder’s point of view, it isusually more tax efficient to receive

dividends from companies in the samejurisdiction. For example, UK shareholdersreceive a tax credit on UK dividends whichthey would not receive on dividends fromnon-UK companies. A DLC structure canpreserve this treatment.

There may also be capital gains taxadvantages. As there is no disposal of sharesby shareholders roll-over relief will not berequired. In addition, certain DLC structuresdo not involve any disposal of assets by thecompanies themselves and so do not giverise to a charge at the corporate level.

Change of controlIn the case of a conventional takeover, thechange of control of the target companymay trigger termination or pre-emptionrights in some of its contracts. Dependingon the terms, this issue may not arise witha DLC structure and a DLC may bestructured so that there is no change ofcontrol. This was a major consideration inthe case of the RTZ/CRA transaction ascertain mining concessions may have beenaffected in the event of a change ofcontrol. In order to avoid this problem aDLC was used.

Prevention of flow-backFlow-back occurs in cross-bordertakeovers/mergers where shareholders areunable or unwilling to hold shares in anoverseas bidder. This can arise when fundsare only able to hold UK shares or track aFTSE index. The pressure created whensuch funds sell the target’s or bidder’sshares can depress the market price. A DLC can relieve this selling pressure,while still enabling operations andmanagement to be combined.

HS

1

corporate briefing November 2003

Dual listed company (“DLC”) structures – recent developments

Dual listed company combinations have been used to structure cross-border mergers for a long time, Royal Dutch/Shell was created in 1907. In recent years there have been an increasing number of DLC transactions. A DLC structure allows two companies to combinetheir operations while remaining separate legal entities and, where the companies concerned are from different jurisdictions, this canachieve several advantages over conventional mergers.

Royal Dutch/Shell – combined group: 1907

Royal Dutchshareholders

Shellshareholders

Shell Petroleum NVShell Petroleum

Company Limited Shell Petroleum Inc

Royal Dutch Petroleum NV (Netherlands)

Operating Subsidiaries in 130 countries

Equalisationagreement

Shell Transport and Trading Company plc (UK)

Shell Oil Company (US)

60% 40%

2 Corporate briefing – November 2003

Three types of DLC

There are a number of variations on the dual-headed structure. The three main types are:

Combined groupIn this structure, the assets and subsidiariesof each top tier company are grouped underone or more jointly owned intermediateholding companies.

The top tier companies typically hold equal(or near equal) voting rights in theintermediate holding companies. Theexistence of more than one holding companycan further assist in the efficient flow ofdividends. It may also be that through thisstructure, the top tier companies are able toretain certain businesses outside of the jointenterprise, by not contributing those assetsto the intermediate holding companies.

Royal Dutch/Shell is an example of a DLCusing a combined group structure. In thiscase, shares in the operating subsidiaries ofthe two companies were held 60-40 by theDutch and UK arms of the DLC respectively,and an equalisation agreement was enteredinto between the two top tier companies(see box ‘Royal Dutch/Shell’).

SyntheticUnder this approach, also known as the‘separate entities structure’, the two groupsremain separate but operate as a single unit

by virtue of a series of contractualarrangements. This structure is used in therecent Carnival/P&O Princess combination(see box ‘Carnival/P&O Princess’).

As there is no intermediate holding companythere is no transfer of assets.

Unity is achieved by means of a sharingagreement between the top tier companieswhich results in the shareholders of thesetwo companies being treated as if theyowned shares in a single entity.

Shareholders receive equalised distributions,and if there are insufficient funds ordistributable profits in one top tier company topay dividends, an equalisation payment orother transfer may be made from the othercompany so that dividends are matched. If thisis not possible, dividends will be limited to theamount which can be paid to all shareholders.

Additional facets of this structure are that:

• there is a free exchange of all financialand commercial information;

• the companies prepare group accounts;and

• there are provisions in each top tiercompany’s articles of association toensure that the boards of the twocompanies are identical.

Twinned sharesAs in the synthetic structure, there is nointermediate holding company in a DLCstructure using twinned shares. Instead,each shareholder holds units that consist ofshares in the two top tier companies whichare ‘twinned’ or ‘stapled’ together (theshares may only be traded in these units).

An advantage of this structure is that, as theshares must trade together, there is nodiscount or difference between the shareprice of each company. The danger ofshareholders arbitraging the discount iseffectively eliminated.

A governing agreement will ensure, amongstother things, unity of share issues, dividendsand management. The boards of eachcompany will comprise the same directors.

The twinned shares structure is used byEurotunnel (see box ‘Eurotunnel’).

Challenges in creating a DLC

EqualisationIn establishing a DLC, one of the principalchallenges is to ensure that there is amechanism in place so that shareholders ineach company have the same economicinterest regardless of which company’sshares they hold. As such, there will be amechanism to equalise distributions in eachcompany. This may be pre or post tax.Therefore, if one arm of the DLC performsbetter than the other, the difference inperformance will be equalised for thepurpose of distributions.

VotingCertain matters on which shareholders areentitled to vote may, depending upon thenature of the matter, need to be put to theshareholders of both companies (eithervoting as shareholders of the separatecompanies, or as a part of a combinedelectoral college of both companies).Constitutionally (other than in stapled sharestructures) this can be difficult to achieve,as it can be difficult to ensure that the votesof one set of shareholders are reflected inthe voting of the other set. Special votingshares with variable voting weights and/or

Carnival/P&O Princess – synthetic: 2003

P&O Princess special voting share

Carnival specialvoting share

Cross guarantees

Carnivalshares

P&O Princess shares

Trust sharesCarnival shareholders

P&O PrincessEqualisation and

Governance Agreement Carnival

P&O Princessshareholders

(including Carnival)

P&O Princess assets

P&O PrincessCruises special

voting trustCarnival SVC

Carnival assets

Corporate briefing – November 2003 3

class rights can be used to ensure that oncertain matters the shareholders of bothcompanies effectively vote as one body.

MeetingsPractical difficulties can arise in the holdingof meetings. It will often be the case that thecompanies will wish to hold their meetings atthe same time in order that, whilst themeetings are technically separate, theyappear to be one meeting, with the chairmanaddressing all shareholders, and votingtaking place simultaneously. Given that thecompanies will be in different jurisdictions,this poses some logistical difficulties: whereshould the chairman and the other directorsbe? Can the meetings be video-linked? Eachcompany is also likely to be subject todifferent company law and regulationsgoverning meetings, voting and levels ofshareholder approval which will need to beaddressed in the constitutional documents ofthe two companies to ensure that theyoperate as a combined group.

TakeoversA DLC structure can be an obstacle totakeovers, and the share price of thecompanies may be discounted as a result.

In the case of the synthetic structure and thecombined group structure there is a risk thatthe DLC could be frustrated if a third partyacquired one of the companies. In the UK,the Takeover Code prevents a code

governed company from puttingmechanisms in place that are intended tofrustrate a potential takeover without priorapproval of the Takeover Panel – forexample, mechanisms which would require abid for one company to be accompanied bya bid for the other.

Regulatory issuesBecause each company retains its originallisting, the group will have to comply withthe regulatory regimes of both jurisdictions –in the case of a DLC including a companyincorporated and listed in the UK, this islikely to include the Takeover Code, ListingRules, Companies Act, and FinancialServices and Markets Act. This can reducethe synergies that would usually come froma takeover as the directors will need toensure that they comply with both regimesand maintain separate head office functions.

Market capitalisationThe different market capitalisations of thecompanies will usually be reflected in thestructure of the DLC in order that control ofthe group by the shareholders of eachcompany is proportionate to their respectivevaluations.

Management/directorsMechanisms will be put in place to ensurethat the management of the two companiesis identical. Where one company removes adirector from its board, there will be a

mechanism in place to ensure that thatdirector will be removed from the board ofthe other company, and vice versa where adirector is appointed.

InsolvencyThe agreements governing the relationshipbetween the two companies in the group willneed to set out what rights the shareholdersof each company have in the event of theinsolvency of either or both companies. Inparticular, the way in which distributions aredealt with on a liquidation will need to becarefully thought out.

DebtEach arm of the DLC may provide cross-guarantees in respect of the obligations ofthe other arm so that if one of thecompanies has a higher rating than theother, the cross-guarantee should enhancethe rating of the weaker company.

TaxThe success of a cross-border DLCstructure from a tax perspective hinges onthe idea that the combination largely retainsthe existing tax structures for the twocompanies as well as for their shareholders.

Capital gainsOn a synthetic DLC and a twinned sharestructure, there is normally no disposal ofassets by the companies so no liability totax on capital gains arises. Likewise there is normally no disposal of shares byshareholders which avoids the difficultiesthat may arise on a conventional takeover in obtaining a capital gains tax deferral (roll-over) in some jurisdictions.

On a combined group structure, by contrast,capital gains may be more of an issue at thecorporate level as assets will be movedunderneath an intermediate holdingcompany. This movement of assets will needto be carefully structured to ensure that nomaterial tax charges arise or that any taxcharges are manageable.

Tax on dividendsIn a DLC, dividends generally continue to bereceived by shareholders from a companyresident in the same jurisdiction. This isnormally beneficial because domestic

Eurotunnel – twinned shares: 1987

Eurotunnel shareholders

ConcessionaireCompanies & OtherOperator Companies

ConcessionaireCompanies & OtherOperator Companies

Eurotunnel plc (UK)

Partnership agreement

Eurotunnel SA (France)

Twinned shares

Corporate briefing – November 20034

dividends often carry tax credits orexemptions and withholding tax may bededucted if dividends are paid from aforeign source. For example, UK corporatesholding shares in a UK company in a DLCcan continue to receive their dividends tax-free and UK individuals can continue toobtain the 10% tax credit attaching todomestic dividends.

In a combined group structure, to mitigate taxleakage, it should be possible to use ‘incomeaccess shares’ to enable a parent companywithin a jurisdiction to receive dividendsdirectly from subsidiaries in that jurisdictionrather than having those dividends routedthrough an intermediate holding company inanother jurisdiction. (Income access sharestypically entitle the shareholder to receivedividends as determined by the directors andhave no other economic rights.)

Stamp dutyOn a synthetic or twinned share DLC nostamp duty or similar transfer taxes shouldarise if there is no transfer of assetsbetween the parent companies and notransfer of shares by shareholders. This canbe a significant saving when contrasted witha conventional takeover. For example, atakeover of a UK company may give rise toa charge of 0.5% of the consideration and,therefore, a £1 billion offer would be subjectto a stamp duty charge of £5 million.

In a combined group structure, as for capitalgains, the stamp duty implications of anymovement of assets between companies willneed to be considered carefully to ensurethat these movements can take advantageof available exemptions.

One disadvantage of a twinned sharesstructure is that, where shares in a non-UKcompany are twinned with a UK company’sshares, as in the Eurotunnel structure, futuretransfers of the units may be subject to0.5% UK stamp duty reserve tax (“SDRT”).SDRT normally attaches only to agreementsto transfer shares in a UK-incorporatedcompany but, as a result of the Eurotunnelstructure, the scope of the tax was extendedso that it may, in certain circumstances,cover shares of a foreign company whichare twinned with a UK company’s shares.

Two particular tax issues which can prove tobe challenging are residency and equalisationpayments.

Tax residency It is important that the tax residence of thecompanies which are party to a DLC ismaintained. A change in tax residence wouldaffect the tax treatment both of the companiesand of the dividends received by shareholders.

The equalisation agreement normallyprovides for identical boards or some othermechanism to ensure that decisions relatingto both parent companies are the same.This may cause a concern that centralmanagement and control of the companiesis exercised from the same jurisdiction. Thismay in turn alter the residence of one of thecompanies, although this is dependent onthe particular domestic law and the terms ofany applicable double tax treaty.

In the UK, the normal rule is that a company isUK resident if incorporated here or centrallymanaged and controlled here. However, if acompany is also regarded for the purposes ofa double tax treaty as resident in anotherjurisdiction, it is not treated as UK resident.

Equalisation paymentsThe contractual equalisation arrangementsentered into by the two parent companies ina DLC will usually provide for payments orother transfers to be made between thosecompanies where one lacks sufficient profitsor distributable reserves to makedistributions. However, such payments, ifmade, may be very tax inefficient. Forexample, a payment may be treated as ataxable receipt by the receiving companywithout any corresponding tax deduction forthe other company. In practice, therefore,companies will wish to structure theiroperations on an ongoing basis so as toensure that no payments need to be madeunder the equalisation arrangements.

US tax concernsThere have not yet been any DLCs involvinga US incorporated company. There havebeen concerns that a DLC might give rise toa partnership for US tax purposes, whichmay subject the UK company and itsshareholders to US tax.

The Carnival/P&O Princess DLC did not in factinvolve a US incorporated company – only aUS listed company. Carnival is a Panamaniancorporation, which is not resident in the USand enjoys an exemption from US federalincome tax on its US-source shipping income.P&O Princess also benefits from the sameexemption. It was therefore a very importantconsideration in structuring their combinationthat these exemptions should be preserved.

Unification

There has in recent years been a trendtowards the unification of DLC structuresinto single corporate entities (for example,the Fortis DLC was merged in 2001 – seebelow).

Reasons for unificationWhilst some DLCs have been in existencefor many years (such as Royal Dutch/Shell,established in 1907) others last only a fewyears. It can be the case that, whilst a DLCwas the preferred means by which to beginto combine two companies (due to, forexample, concerns of national identity), oncethe companies have been operating as agroup for a few years, it may becomepreferable to merge the companies in amore traditional manner.

Maintaining separate listings, while attractiveat the outset, can create difficulties when,with time, the shares in the different marketstrade at different prices.

Similarly, the desire to enable the raising offinance in two markets at the outset can becompared with the fact that, as separatelylisted companies, there may be less marketvisibility than would be the case with acombined entity listed on one exchange.

The complexity of corporate andmanagement structures and occasionalconflicts between the top-tier companies canalso place strains on a DLC structure whichmay not exist if the companies merged.

In the case of a DLC, there is also thedisadvantage that the synergies which maybe available in a traditional takeover arerestricted.

5Corporate briefing – November 2003

Fortis unificationIn 2001 the Fortis DLC, which was structuredas a synthetic DLC, was in part merged. Thesynthetic structure was replaced with a twinnedshare structure under which the cross holdingsof each top company in the assets of the othercompany were equalised to 50% havingpreviously been represented by a 57-43 split(see box ‘Fortis’). In this way, the companieswere able to maintain their national identities,but they were able to achieve greater unitybetween the two companies than was the caseunder the separate entities structure.

Carnival/P&O Princess

In April 2003, Carnival Corporation and P&OPrincess Cruises plc (New York and Londonlisted cruise companies respectively) enteredinto a DLC structure under which Carnivalremains listed in New York and P&O Princessremains listed in London.

The completion of the DLC was theculmination of a two-way battle for the handof P&O Princess, which had been foughtbetween Carnival and Royal CaribbeanCruises Ltd since September 2001.

The deal involved an initially hostile offer byCarnival for the entire issued share capital ofP&O Princess in the face of an agreed DLC

transaction to be entered into between P&OPrincess and Royal Caribbean. Followingregulatory clearances, Carnival’s shareexchange offer was converted into arecommended DLC transaction betweenP&O Princess and Carnival, which included apartial share offer by Carnival for up to 20%of the share capital of P&O Princess.

Time lineNovember 2001: P&O Princess and RoyalCaribbean announce their proposal toimplement a merger under a dual listedcompany structure.

February 2002: P&O Princess EGM toapprove the P&O Princess – Royal CaribbeanDLC is adjourned in order to allow the ECand US regulators to consider the Carnivaloffer and the Royal Caribbean DLC together.

July 2002: European Commission clearCarnival’s and Royal Caribbean’s proposals.

October 2002: Federal Trade Commissionclear Carnival’s and Royal Caribbean’sproposals, and P&O Princess announces thatCarnival’s proposal is superior. Carnivalannounces a new proposal, to implement aDLC structure with P&O Princess.

April 2003: Carnival/P&O Princess DLCcombination completes.

Hostile to agreedCarnival’s offer was initially a hostile offer forthe shares of P&O Princess, in competitionwith an agreed DLC transaction betweenP&O Princess and Royal Caribbean. Carnivalhad to overcome a number of dealprotection mechanisms put in place by P&OPrincess and Royal Caribbean. Followingregulatory clearances, P&O Princessdetermined that Carnival’s proposal was bothfeasible and financially more attractive thana DLC with Royal Caribbean.

Under the terms of its agreement with RoyalCaribbean, P&O Princess was then able todiscuss a DLC with Carnival. This gaveCarnival the opportunity for the first time toconvert what had been a hostile shareexchange offer into a recommended DLCcompany transaction.

In order to give shareholders an opportunityto hold shares in Carnival rather than P&OPrincess, a partial share exchange offer wasalso proposed. Carnival offered to exchangeup to 20% of the share capital in P&OPrincess for new shares in Carnival.

Structure of the DLCThe DLC was a synthetic structure underwhich the corporate structure of the twocompanies remained unchanged. Thecompanies entered into a series of

Fortis – synthetic: 1998 – twinned shares: 2001

Fortis Bank

Before unification After unification

100%

56.94%

ShareholdersFortis (B)

Fortis SA/NV(Netherlands)

Fortis (B)

Fortis Insurance

100%

43.06%

ShareholdersFortis (NL)

Fortis NV(Belgium)

Fortis (NL)

56.94% 43.06%

Fortis Bank

100%

FortisBrussels

Fortis SA/NV

Fortis Insurance

100%

Fortis Utrech

Fortis NV

50% 50%

FortisShareholders

Corporate briefing – November 20036

agreements which had the effect of equalisingthe economic and voting interests of theshareholders of Carnival and P&O Princess.

Takeover protectionFollowing the implementation of the DLCstructure, neither Carnival nor P&O Princessare companies to which the Takeover Codeapplies because the Panel ruled that thecentral management, for Code purposes, ofeach company was outside the UK. Rule 9and other shareholder protections affordedby the Takeover Code would not apply toP&O Princess. Synthetic provisions aretherefore included in the articles of bothcompanies providing that, in the event that aperson acquires more than 30% of thevoting rights in the DLC on a combinedbasis, it must make an offer to buy theentire share capital of both companies, orbe disenfranchised and risk its shares beingtransferred to a trust, or sold.

Mandatory exchangeThe constitution of P&O Princess containsspecial provisions so that, in certaintriggering circumstances (for example certainchanges in tax treatment, or illegality of theDLC), a vote can be put to the P&O Princessshareholders by which, with a two thirdsmajority of P&O Princess shareholders, allP&O Princess shares will be mandatorilyexchanged for Carnival shares. This providesa route for the collapse of the DLC and thetakeover of P&O Princess by Carnival incertain circumstances.

Stapled stockThe shareholders of Carnival and P&OPrincess effectively cast their votes in eachothers’ meetings through special voting

shares. The P&O Princess special share wasissued to a trust for Carnival shareholders.Carnival shareholders hold an interest in thespecial share pro rata to their actual holdingin Carnival. The pro rata interest of eachCarnival shareholder in the special votingshare in P&O Princess is stapled to theirCarnival shares with the resulting “unit” listedand traded on the NYSE.

Regulatory changes

In response to concerns regarding the wayin which DLCs were dealt with in theTakeover Code and the Listing Rules,changes were recently made to thoseregimes.

The original DLC proposal between RoyalCaribbean and P&O Princess was notsubject to the Takeover Code, although theCode did apply to Carnival’s competing offerto acquire the shares in P&O Princess. As aresult of this there was something of anuneven playing field between the twobidders. The Takeover Code has since beenamended so that it applies to DLCtransactions. This did not apply to the RoyalCaribbean DLC proposal but it did apply tothe subsequent Carnival DLC proposal.

The UKLA’s Guidance Note 3 requires the UKarm of a dual headed structure to have atleast a 30% interest in the merged business.The UKLA confirmed in May 2003 that thisapplies only to a combined group structureand not to DLCs operating a syntheticstructure. Instead, the UKLA indicated thatprior to the establishment of a DLC with aUK listed arm, the UKLA should be

approached at an early stage to discuss thedetail of the transaction and the applicationof the Listing Rules to the resulting group.

In its Review of the Listing Regime,published in October 2003, the FSAannounced that it is reviewing theclassification of DLC transactions. Anychanges are likely to be made in 2005.DLCs are already classifiable, but are dealtwith on an individual guidance basis.

Finally, the introduction of the European publiclimited liability company (Societas Europaea)towards the end of 2004 will provide a furtherstructural choice for cross-border mergersand its impact on the increased use of DLCstructures will be interesting.

Credentials

Herbert Smith, Gleiss Lutz and Stibbe haveadvised on the following DLC transactions:

• Carnival/P&O Princess (2003) – Herbert Smith and Gleiss Lutz

• New Fortis (2001) – Stibbe

• BAT/Zurich (1998) – Herbert Smith

• Merita Nordbanken (1998) – Herbert Smith

• Fortis (1998) – Stibbe

• Dexia (1996) – Stibbe

• Eurotunnel (1987) – Herbert Smith and Stibbe

7Corporate briefing – November 2003

Further information

For further information on dual listedcompany structures please contact:

Herbert Smith

Stephen Hancock +44 20 7466 2127stephen.hancock@herbertsmith.com

Anthony Macaulay+44 20 7466 2070anthony.macaulay@herbertsmith.com

Ben Ward+44 20 7466 2093ben.ward@herbertsmith.com

Malcolm Lombers+44 20 7466 2823malcolm.lombers@herbertsmith.com

Howard Murray (tax)+44 20 7466 2124howard.murray@herbertsmith.com

Gleiss Lutz

Hoimar von Ditfurth+49 69 955 14 444hoimar.ditfurth@gleisslutz.com

Edgar Matyschok+49 69 955 14 452edgar.matyschok@gleisslutz.com

Stibbe

André Bruyneel (Brussels)+32 2 533 52 53andre.bruyneel@stibbe.com

Marius Josephus Jitta (Amsterdam)+31 20 546 01 30marius.josephusjitta@stibbe.com

Joost van Lanschot (Amsterdam)+31 20 546 03 56joost.vanlanschot@stibbe.com

Jan Peeters (Brussels) +32 2 533 53 75 jan.peeters@stibbe.com

If you would like to receive more copies of this briefing,or would like to receive Herbert Smith briefings fromother practice areas, or would like to be taken off thedistribution list for such briefings, please emailjonathan.worrell@herbertsmith.com or call businessdevelopment on 020 7466 3500. You can also contact usto say whether you would prefer to receive thesepublications in a printed or electronic format.

© Herbert Smith 2003The content of this briefing does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.

Herbert Smith, Gleiss Lutz and Stibbe are three independentfirms which have a formal alliance assisting them in deliveringcross-border services to their respective clients.

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