- Reminder of Panel background
- The market last year
- Overview of Panel's process & work
- What's new
Part 1 - Purpose
Purpose of today's session
- Meet with practitioners
- Explain some recent developments
- Discuss issues
- Give feedback
Part 2 - Reminder of Panel background
Welcome Kathy Farrell
We welcome Kathy Farrell as our new President
Kathy was previously a member from 2001 to 2010
She has had considerable experience as a lawyer in Mergers and Acquisitions and policy
Panel members - by profession
Panel members - by location
Part 3 - The market last year
Control transactions 2008-2010
Deals by sector in 2010 - industries
|Metals & Mining||38|
|Capital Goods, Chemicals & Materials||10|
|Telecoms & Media||6|
Type of consideration
Regulatory involvement 2009-2010
Part 4 - Overview of the Panel's process & work
- Procedural rules – new rules effective 1 June 2010
- Media canvassing and confidentiality
- Length – limit in rules
- Attachments – size, limit number, extract relevant parts, properly identified
How an application runs
- Choosing 3 Panel members - conflicts
- Process letter/Declaration of interests
- Conduct proceedings?
- Brief, submission, rebuttals
- Decision, reasons and media releases
- Naming legal and financial advisers to parties in reasons – aids market transparency
- Website upgrade:
- GN 3 Making Rules and GN 10 Public Consultation – withdrawn
- More discussion on processes, how quickly applications move, statistics, summary of takeover provisions
- ASIC referrals – more public
- Possible consultation on GN 4 re undertakings as to damages
- Post matter reviews - earlier
Panel applications by year
Panel matters by decision
Average days from Decision to publication of Reasons
Average days from Application to Decision
Part 5 - What's new
Nearly finished the GN rewrites
Issued a revised GN 1 – Unacceptable circumstances
- Provided some guidance on reverse takeovers
Consulted on three Guidance Notes rewrites:
- GN 6 – Minimum bid price
- GN 13 – Broker Handling Fees
- GN 15 – Trust scheme mergers
- Should finalise GNs in the next month
Transurban Group  ATP 5
- An announced rights issue did not frustrate scheme proposals
- The proposals did not constitute potential bids because they were proposed schemes that were rejected
- The revised proposal was not conditional on the rights issue proceeding
Amendments to GN 12 – Frustrating action
- Acknowledging Transurban
- Allowing for a limited form of private ‘put-up or shut-up’ regime
GN 22 – Recommendations and Undervalue Statements
- Follows Origin Energy Limited 02  ATP 23 and Tully Sugar Limited  ATP 26
- Allows a holding statement (eg ‘wait for more information’)
- The reasons for an undervalue statement should be clearly disclosed
- Directors must provide shareholders with some guidance as to the value of the target
New Issues - Association
The Panel has considered a number of association applications in the last 12 months:
|Matter name||Conduct on association?||Declaration of UC?||Orders?|
|Mesa Minerals Limited  ATP 4||Yes||Yes||Divestment, resticting voting, disclosure|
|Mesa Minerals 01R  ATP 6||Yes||Declaration varied||Set aside original orders as parties had accepted into bid|
|Vesture Limited 02  ATP 15||No||n/a||n/a|
|Viento Group Limited  ATP 1||Yes||Yes||Divestment, resticting voting, disclosure|
|Brockman Resources Limited  ATP 3||Yes||No||n/a|
CMI Limited  ATP 4
New Issues - Association
Association matters at March 2011
|Conduct but no association found||15|
Association - questions for future policy?
Use rebuttable presumptions in relation to association?
- UK or Hong Kong models?
- Family relationships?
- Other categories?
- Indicators of association rather than rebuttable presumptions?
Should the Panel expect a certain standard for association applications?
GN 7 - Overview
|Lock-up device||Panel guidance|
|No-due-dilligence & no-talk||
|Notification obligations & matching rights||
RHD - Deal protection measures
...deal protection measures need to be subject to certain basic structural requirements to ensure that they do not unreasonably hinder competition for control of the target company.
Ross Human Directions Ltd  ATP 8 at 
- The Panel queried the terms of the deal protection measures in the scheme implementation agreement
- Parties undertook to amend the agreement to address the Panel’s concerns
Deal protection measures - outcome?
- Not necessarily a "precedent"
- Cap on liability?
- Period of matching rights?
- Are deal protection measures evolving too far?
- What is the onus on Target directors?
- Experience in other jurisdictions - UK
Independent expert reports
We think [the expert’s] report was long and would not have been clear to shareholders. In the instances where matters were raised, this was only remedied by the corrective disclosure we required. While an expert report is often technical, which can make it difficult to simplify, it would be more helpful to shareholders if written with them clearly in mind...
Northern Energy Corporation Limited  ATP 2 at 
Other issues before the Panel
Representation of directors’ independence
North Queensland Metals Limited 02  ATP 7
Gladstone Pacific Nickel Limited  ATP 12
Leighton Holdings Limited 01, 02 and 03  ATP 13
Leighton Holdings Limited 02R  ATP 14
Interpretation of a force majeure condition
NGM Resources Limited  ATP 11
A number of proposals for reform being ventilated, including:
- Members’ schemes
- Increasing takeover threshold
- Abolishing or reducing “creep”
- Abolishing prohibition for escalators
- Including long equity derivative positions in substantial holding disclosure and the calculation of voting power for the purposes of s606
- Timetable reforms
Takeovers Panel Book
- The Takeovers Panel and Takeovers Regulation in Australia
- Edited by Ian Ramsay
- Published by Melbourne University Publishing
- Chapters written by practitioners