THE RULES of the Takeover Panel look set to be changed following the controversial Emerson Electric attempt to take over Astec – despite the fact that the panel had no jurisdiction over the deal.
A source at the panel told The Lawyer that the proposed changes to the rule on “creeping shareholdings” were a direct result of concerns raised by the minority investors involved in the Astec saga.
However, because Astec is based in Hong Kong, the Takeover Code did not actually apply to the deal.
Emerson Electric took control of electronic power supply group Astec by gradually building up its stake in the company over a number of years. Normally a company acquiring 30 per cent or more of a public limited company (Plc) would be required to make a full bid.
But under the Takeover code as it now stands, a company owning between 30 and 49.9 per cent of a plc can buy up to 1 per cent of its shares over a rolling 12-month period without triggering a full bid. Under the proposed changes to be put to the 18 members of the Takeover Panel in July, this exemption will be removed.
The move comes only two weeks after the High Court struck out the minority shareholders' claim under section 459 of the Companies Act, that Emerson's conduct during the bid had been unfairly prejudicial – a ruling that Emerson claimed “vindicated” its conduct.
Emerson's advisers, including David Lewis of Norton Rose, were criticised during the height of the takeover bid.
Herbert Smith litigation partner David Gold advised the minority shareholders of Astec, Electra Fleming, Norwich Union and Equitable Life Assurance.
Gold told The Lawyer that no decision had yet been made to appeal the High Court decision.