November 9, 2016
The battle to take control of SVG Capital was a good example of how the UK’s Takeover Panel operates on a pragmatic "principles" basis rather than on a strict rules basis. And it confirmed the importance, and benefits, of participants in UK public takeover transactions discussing their tactics with the Panel prior to announcing any proposals.
- Public company takeovers in the UK are regulated by the Takeover Panel. Whilst the Takeover Code contains a set of rules the Panel has always been clear that it operates on a "principles" basis and not a "strict rules" basis. The Code is not interpreted on a strict black letter basis and the Panel often refers to the "spirit" behind various rules of the Code. Many of the rules are based and have been developed on market practice over time.
- One of the most important principles is that participants in public offers will be bound by their public statements. And one of the most important examples of this is when a bidder expresses its offer for a target as being "Final". In these circumstances, the Panel will not allow a bidder subsequently to increase its offer or make a new offer for six months. It is for this reason that it is rare for any offer, and in particular an opening offer, to be expressed as "Final". The recent example of the bid by HarbourVest for SVG has illustrated that in some circumstances "Final" may not actually mean that.
- On 3 October 2016 SVG agreed in principle to sell a proportion of its assets to Pomona Capital and Pantheon Ventures which would have enabled SVG to make a tender offer to its shareholders for more than the 650p per share offered by HarbourVest.
- It was necessary for the Pomona/Pantheon proposal to be approved by an ordinary resolution of SVG shareholders – i.e. a simple majority of shareholders who vote (not 50% of all shareholders) – an easier threshold to achieve than for a share offer particularly given the level of acceptances that HarbourVest had received.
- The Pomona/Pantheon proposal was announced before any legally binding contract had been signed save that, unusually, SVG did agree to pay a break fee if the proposal did not proceed through no fault of Pomona/Pantheon. Target companies are generally prohibited under the Code from agreeing to pay break fees. One exception to this rule is that a target may agree to pay a break fee to a white knight offeror. What was interesting in this situation was that the Panel exercised jurisdiction over the amount of the break fee notwithstanding the proposal was for assets and not shares.
- On 6 October 2016 SVG announced that it had agreed in principle to sell 100% of its assets to Goldman Sachs which would have enabled it to return 680p per share to shareholders. This deal was also announced before any binding contract was signed and also included a break fee which was capped under the Panel’s rules notwithstanding it was an asset deal.
- On 18 October 2016, SVG announced that it had signed a legally binding agreement to sell all of its assets to HarbourVest at a "see through" value of 715p per share – significantly higher than its original share offer of 650p and superior to both the Pomona/Pantheon and Goldman deals.
- Throughout this process all the participants discussed and agreed their plans with the Panel prior to their proposals being announced.
- This deal is a good example of how the Takeover Panel in the UK works in practice-interpreting its rules on a "principles basis" and pragmatically.
- It also reinforces the importance, benefits and effectiveness of bidders and targets consulting the Panel and involving it on tactical planning prior to any announcements being made.
- In particular, and although counter intuitive, the Panel allowed HarbourVest to submit a higher offer for 100% of the assets despite the fact it would not have been allowed to increase its offer for SVG. The rationale for this was that the second proposal was for assets and not shares – despite the fact that the outcome for shareholders was similar.
- The Code does not apply to the purchase of assets, but on this transaction the Panel insisted on applying the Code rules in relation to break fees payable to Pomona/Pantheon and Goldman.
- Although the Panel is clear that it is not bound by precedent this deal provides some useful experience that may be valuable in future transactions.
This Gibson Dunn client alert was prepared by Charlie Geffen, Nigel Stacey, Dennis Friedman and Selina Sagayam.
Gibson Dunn’s lawyers are available to assist with any questions you may have regarding these developments. To learn more about these issues, please contact the Gibson Dunn lawyer with whom you usually work, any member of the firm’s Mergers and Acquisitions practice group, or the following:
Charlie Geffen – Chair, London Corporate (+44 (0)20 7071 4225, [email protected])
Nigel Stacey – Partner, Corporate (+44 (0)20 7071 4201, [email protected])
Jonathan Earle – Partner, Corporate (+44 (0)20 7071 4211, [email protected])
Mark Sperotto – Partner, Corporate (+44 (0)20 7071 4291, [email protected])
Nicholas Tomlinson – Partner, Corporate (+44 (0)20 7071 4272, [email protected])
James Howe – Partner, Corporate (+44 (0)20 7071 4214, [email protected])
Selina Sagayam – Head of Practice Development, Transactional (+44 (0)20 7071 4263, [email protected])
Barbara L. Becker – Co-Chair, Mergers & Acquisitions Group, New York (+1 212-351-4062, [email protected])
Jeffrey A. Chapman – Co-Chair, Mergers & Acquisitions Group, Dallas (+1 214-698-3120, [email protected])
Stephen I. Glover – Co-Chair, Mergers & Acquisitions Group, Washington, D.C. (+1 202-955-8593, [email protected])
Dennis J. Friedman – Partner, Mergers & Acquisitions Group, New York (+1 212-351-3900, [email protected])
Eduardo Gallardo – Partner, Mergers & Acquisitions Group, New York (+1 212-351-3847, [email protected])
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