Amendment of GN 12 - Public Consultation Response Statement [18/07/2014] The Takeovers Panel

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18 July 2014

Amendment of GN 12
Public Consultation Reponse Statement

Introduction

On 6 January 2014, the Takeovers Panel released a Consultation Paper seeking public comment on amendments to Guidance Note 12 Frustrating Action.

Comments on the Consultation Paper were due by 14 February 2014 and the Panel received 5 submissions in response.  The Panel thanks those who made submissions for their comments.  Some respondents provided combined submissions on a number of consultation papers.  Attached to this response statement are extracts of the submissions relevant to GN 12 (Annexure A).

Consistent with the Panel’s published policy on responding to submissions, this paper sets out the Panel’s response to the public consultation process and its conclusions on the main comments received from respondents. 

Attached is a copy of the final GN 12, in mark up to show the changes from the draft circulated with the Consultation Paper (Annexure B).

Material comments received and Panel's conclusions

New paragraph 11(f): disclosure of whether bidder will rely on or waive a triggered condition

Comments

While the introduction of a new paragraph 11(f) was supported by most of the respondents, a number suggested amendments to clarify the intent of introducing the new paragraph.

Panel response

The Panel broadly accepted the suggested amendments. It has inserted a new footnote providing (among other things) guidance on what may be a ‘reasonable time’ for a bidder to disclose whether it will rely on, or waive, a previously triggered condition.

New paragraph 11(g): variation of bid after triggered condition

Comments

The majority of respondents thought that the introduction of a new paragraph 11(g) was undesirable, or was unnecessary as it was sufficiently covered by the proposed new paragraph 11(f).

Panel response

The Panel has deleted the proposed new paragraph 11(g).

Footnote 12: ‘holding open’ a bid

Comments

A number of respondents were concerned that the amendment was unnecessary or, if retained, should be reworded.

Panel response

The Panel has deleted the proposed amendment to footnote 12.

Fixed timeframe

Comments

All respondents considered that a fixed timeframe (after which the frustrating action policy would no longer apply) was not necessary, although one respondent noted that it would be useful for the Panel to reserve a power to make an order specifying a timeframe.

Panel response

The Panel is not pursuing a fixed timeframe and considers that it does not need to specify such a power in the guidance note.


Annexure A

Extracts of Submissions


Annexure B

Mark-up of Consultation Draft vs New GN 12