January 2015 saw the Takeover Panel introduce two sets of changes to the Takeover Code.
On 1 January various changes, largely clarificatory or to reflect current practice, took effect. These included:
- changes to the disclosure regime for irrevocable commitments, letters of intent and interests in securities;
- requiring potential competing bidders to clarify their position within a fixed Day 53 deadline after the first bidder's offer document;
- codifying the Panel's existing default auction procedure with some adjustments;
- increasing the regulation of "no increase" and "no extension" statements.
On 12 January, the new framework put forward by the Panel for post-offer undertakings and intention statements took effect. Following Pfizer Inc.'s possible offer for AstraZeneca plc in 2014, the Panel concluded that the Code did not distinguish adequately between voluntary commitments, on the one hand, and statements of intention, on the other. The new framework addresses this issue and gives the Panel increased powers to monitor commitments. The key features are as follows.
- A post-offer undertaking is a commitment by a party to an offer to take, or not take, a particular course of action after the end of the offer period. A party giving a post-offer undertaking must comply with it for the period specified in the commitment, unless a specific qualification or condition set out in the undertaking applies.
- A post-offer intention statement is a statement of intention by a party to an offer to take, or not take, a particular course of action after the end of the offer period. It must be an accurate statement of the party's intentions at the time it is made and must be based on reasonable grounds.
- A party wishing to give a post-offer undertaking must consult the Panel before giving it. Once the undertaking is in place, the Panel may require the party to file written reports regarding its compliance with the undertaking. The Panel can also require the party to appoint an independent supervisor to monitor compliance.
- A party which has given an intention statement and wishes to depart from it must consult with the Panel.