Takeover Panel makes Terra Firma live up to East Surrey promise

Clifford Chance had good reason to celebrate last week after the Takeover Panel’s decision to throw out Terra Firma’s application to lapse its £453m offer for water and utilities company East Surrey Holdings. The ruling effectively forces Terra Firma to follow through with the acquisition of East Surrey’s principal assets, East Surrey Water and Phoenix Natural Gas. Terra Firma’s takeover vehicle Kellen Acquisitions, advised by Freshfields Bruckhaus Deringer, tried to withdraw its offer when Northern Ireland’s energy regulator suggested that the pending purchase revealed new information about Phoenix’s potential value. It added that, given the pre-mium for Phoenix assets, it might reconsider the proposed licence ag-reement and could order Terra Firma to return up to £55m to customers. But the Takeover Panel ruled that, despite the unexpected developments after the offer, none were sufficient to permit Kellen to invoke any conditions or lapse its offer. Both sides accepted the ruling, with Kellen deciding against an appeal after the Northern Ireland regulator agreed that Phoenix could operate under the existing licence. The Clifford Chance team was led by Michael Bryceland and Adam Signy.