As foreshadowed in the December 2010 edition of Acumen, on 21 March 2011 the UK Takeover Panel Code Committee issued a Consultation Paper on a number of proposed amendments to The Takeover Code. The proposals, in large part, seek to redress a perceived imbalance between bidders and targets under the existing Takeover Code.
One of the proposals is to prohibit 'deal protection' measures, such as break fees, except in very limited circumstances such as where a public sale process has been conducted. Another is that where a potential bidder is publicly named, it will have four weeks to make an offer or state that it will not make an offer, in which case the potential bidder is barred from making an offer for six months (subject to some limited exceptions).
These proposals can be contrasted to the current position in Australia, where deal protection, having become largely market standard, shows no signs of losing acceptance, and while the Australian Panel has floated a limited 'private put up or shut up' regime in the context of consultation on amendments to Guidance Note 12 on Frustrating Action1, a broader 'put up or shut up' rule would likely require law reform.
That said, in relation to some "standard" Australian deal protection measures at least, one can argue that they have evolved to the point where they are of questionable value. A 'no-shop' provision is of only little value once a deal is announced - the target cannot seek out alternatives, but serious contenders will be aware of the opportunity. Similarly, a no-talk provision with an appropriate 'fiduciary carve-out' will allow a target to engage with a serious rival bidder.
Interestingly, the proposed amendments will do away with implementation agreements for schemes; instead the Code will require a target to implement a scheme on an agreed timetable, as long as the board maintains its recommendation.
The Code Committee is also proposing that the Code should be clarified to make clear that a target company board is not limited in the matters that they can take into account in forming an opinion on a bid and making a recommendation.
Some concern was expressed that target boards viewed the offer price as the determining factor. The proposed amendment may well be worthwhile but it is hard to see how a proper exercise of director's duties - leaving aside The Takeover Code for a moment - would justify a recommendation that did not give great weight to the offer price, and its comparison to the value, both current and expected, of the target company notwithstanding the presence of other factors.
Indeed, reliance on other factors could well be used as a cloak for the real motivations of an incumbent board in rejecting a fair offer.
The Code Committee is also proposing that advisers fees should be disclosed, including fees of financial advisers; brokers, accountants, lawyers and PR advisers and financing fees, but also fees of management consultants, actuaries, engineers, chartered surveyors and specialist valuers. While this information might be interesting to shareholders, it is hard to see how material it is to a target shareholder's decision. We doubt there would be much support for this type of disclosure in Australia, and it would likely require legislative reform.
Another proposal involves requiring disclosure of the same financial information regarding the offerors and the financing of the offer regardless of the nature of the offer.
Given that an offer could well have a 50.1% minimum acceptance condition, or be required by passing through the 30% threshold, with the real prospect of a locked in minority, there is merit in ensuring that the shareholders have good quality financial information about the bidder, and the effect of the offer, even for a cash bid. Further, the proposal is consistent with some of the case law in Australia, noting also that detailed disclosure about offer financing is mandated in Australia under the Corporations Act as well as ASIC and Panel guidance.
The Code Committee proposes to amend the Code in relation to statements of an offerors' intentions, and, in particular required that a statement of intention be honoured for a period of at least 12 months.
In Australia, such a requirement could be hard to enforce, but the UK Panel can rely on its 'cold shoulder' rule to effectively exclude a non-complier from takeover related activity.
Comments are due by 27 May 2011, following which thee will be a Response Statement with amendments to be implemented thereafter, although a specific start date has not been announced.
Download the Consultation paper here.
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