Irish Takeover Panel Publishes Proposed New Takeover Rules
In December 2021, the Irish Takeover Panel (the “Panel”) released a public consultation paper seeking comments on proposed amendments to the Irish Takeover Panel Act 1997, Takeover Rules 2013 (the “Rules”) and the Substantial Acquisition Rules 2007 (the “SARs”). The Panel indicated that the primary purpose of the proposed amendments to the Rules and SARs was to update them to take account of developments in takeover practice and changes in relevant legislation that have occurred since the Rules and SARs were published. The consultation closed on 28 February 2022.
On 20 May 2022, the Panel published a response statement together with draft new Takeover Rules which the Panel is proposing to adopt. The Panel has indicated that the new Rules will be published in due course.
The following points are of note:
Put Up or Shut Up (“PUSU”) – the most significant amendment to the Rules is the proposed adoption of a revised PUSU regime, which is largely (though not entirely) aligned with the equivalent regime in the UK. Under the proposed new regime, any announcement by an offeree which commences an offer period must identify any potential bidder with which the offeree is in talks or from which an approach has been received. Bidders will have a period of 42 days following the announcement in which they are first identified to announce a firm intention to make an offer or announce that they do not intend to make an offer, in which case they will then be restricted from making an offer for the offeree for 6 months.
Disclosure of Opening Positions – the revised Rules will introduce opening position disclosures, modelled on the UK Takeover Code, which will be of relevance market-wide. Disclosure obligations in relation to dealings which occur following the commencement of the offer period will continue as before, largely unchanged.
Profit Forecasts – the current Rule on profit forecasts has been completely revised and, in general, the new regime aligns more closely with the UK Takeover Code. The Rule also sets out the reporting requirements in respect of quantified financial benefits statements (“QFBS”).
Strategic Review Announcement Triggers Offer Period – the Panel will treat a strategic review announcement which refers specifically to an offer as one of the options to be considered under the strategic review, as commencing an offer period in relation to the relevant company. This approach aligns with existing practice but was not previously expressly referenced in the Rules.
Share Buybacks – the regime under the revised Rules for the redemption or purchase of own securities by an offeree has been reframed slightly, but generally aligns with the existing regime and practice. The implementation and continuation of share redemption and buyback programmes will now be assessed exclusively under Rule 21, rather than Rule 4 as was previously the case.
Euroclear Bank and Dematerialisation – the Panel has proposed a number of technical amendments to the Rules intended to reflect changes in process arising as a result of the migration of Irish corporate securities to the Euroclear Bank securities settlement system in 2021. In particular, new processes regarding acceptance of tender offers have been introduced which are intended to facilitate underlying shareholders in accepting tender offers through the Euroclear Bank system. In an attempt to future-proof the acceptance procedures for tender offers to account for dematerialisation, the revised Rules provide that a shareholder may provide evidence of identification numbers or codes in lieu of share certificates, where applicable.
For more see our recent briefing.