Takeover Panel director-general Richard Murley has dealt a further blow to the hostile bid, telling The Lawyer that companies will not be able to make formal takeover bids conditional on clearance from the new pensions regulator.
Bids for companies with huge pensions deficits will almost certainly have to be conducted under the Takeover Code's Rule 2.4. This allows bidders to launch a virtual bid where negotiations with the target allow the bidder to try before it buys.
Murley said: "We hear on the grapevine that many lawyers are advising their clients to get it sorted out before they bid. That's a prudent thing to do. It may affect your financing structure, for example."
Bidders are already reliant on the goodwill of the incumbent board to provide access to due diligence because the lenders that bankroll today's highly leveraged bids insist on it.
Under Rule 2.4, a bidder could either approach the pensions trustees or approach the pensions regulator in confidence, although both pose a risk of leaks. However, this presumes that pensions trustees will cooperate. In the last year, pension trusts have operated like poison pills on major takeovers, including two that failed - Philip Green's bid for Marks & Spencer and Permira's bid for WHSmith.
See The Lawyer's exclusive interview with the Takeover Panel director-general, Marriage guidance