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25 January 2017
On December 14 2016 the UK Takeover Panel published Panel Statement 2016/9 prescribing new checklists and supplementary forms to be completed and submitted to the panel by the financial adviser to the bidder or the target (as appropriate), together with the documents required to be sent to the panel under Rule 30.5 of the Takeover Code.
Rule 30.5(a) relates to the distribution of documents, announcements and information to the panel. Specifically, it provides that before an offer document is published, a hard copy and electronic copy of such document must be sent to the panel.
In addition, Rule 30.5(b) states that copies of all other documents, announcements and information published in connection with an offer by (or on behalf of) the bidder or the target must, at the time of publication, be sent in hard copy and electronic form to the panel.
The Note on Rule 30.5 adds that where information is incorporated into such documents by reference to another source of information, a copy of the information so incorporated should be sent to the panel at the same time.
Panel Statement 2016/9 prescribes new checklists and supplementary forms to be completed and submitted to the panel by the financial adviser to the bidder or the target (as appropriate), together with the documents required to be sent to the Panel under Rule 30.5. The checklists relate to:
In addition, if an announcement or other relevant document includes a profit forecast, a qualified financial benefits statement, an asset valuation or a partial offer, a supplementary form must be completed by the target's financial adviser and attached to the relevant checklist to be submitted by the bidder's financial adviser.
Both the new checklists and supplementary forms can be downloaded at www.thetakeoverpanel.org.uk/checklists.
The panel has noted that:
Information on how to complete the checklists and supplementary forms and submit them to the panel is set out on the panel's website at www.thetakeoverpanel.org.uk/checklists/how-to-complete.
The panel has noted that:
The panel has also noted that in some instances (eg, where there is a joint offer document) a checklist may require the signature of the representatives of both the financial adviser to the bidder and the financial adviser to the target. If so, the panel expects that only one checklist will be submitted and it is up to the parties to coordinate how this is done.
Rule 30.5 documents, together with the checklists and forms, are to be emailed to email@example.com and hard copies sent to the panel as follows:
Paragraph 3(f) of the introduction to the code states that: "Financial advisers to whom the Code applies have a particular responsibility to comply with the Code and to ensure, so far as they are responsibly able, that their client and its directors are aware of their responsibilities under the Code and will comply with them."
Panel Statement 2016/9 makes it clear that such responsibility extends to ensuring that the checklists and forms for Rule 30.5 documents are completed in accordance with the panel's guidance on its website. By extension, financial advisers are also responsible for ensuring that the contents of the relevant announcement, document or information comply with the code. Financial advisers would therefore be well advised to review the panel's guidance on its checklists and forms to ensure that they properly discharge their duties under the code in such situations. Failure to do so may, depending on the nature of the breach, include the panel issuing a statement, censuring the financial advisers.
For further information on this topic please contact Will Pearce or William Tong at Davis Polk & Wardwell London LLP by telephone (+44 20 7418 1300) or email (firstname.lastname@example.org or email@example.com). The Davis Polk & Wardwell website can be accessed at www.davispolk.com.
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