It was announced on Friday that TPG had withdrawn from an auction process for Billabong.
Billabong has been the subject of takeover speculation since February this year and its continuous disclosure during that period in respect of bear hug approaches by TPG and a second bidder have been the subject of much commentary.
The two bear hug approaches by TPG, and the entry and subsequent withdrawal of a second bidder into the auction process were all announced by Billabong. Billabong also made announcements in respect of press speculation about TPG's due diligence findings and its possible withdrawal. On Friday, Billabong announced the withdrawal of the TPG approach and the end of the auction process.
The trend for listed companies is to disclose confidential approaches even though they are typically presented to the company as confidential, incomplete, conditional and non-binding. The reasons for this have varied in each case, and decisions have been driven by risk of a leak, tactical advantage, a board with a desire for transparency or to mitigate against any future class action risk. There is also a growing consensus that a "reasonable person" would expect such approaches to be disclosed despite the uncertainty of a transaction ultimately emerging, particularly where there is a credible private equity approach which will customarily involve lengthy due diligence, management discussions, negotiations and the involvement of multiple parties including financiers and advisers.
No doubt scenarios such as this will be the subject of much discussion in ASX's revised draft continuous disclosure guidance note which is due out this week.
The Billabong example underlines the importance of stressing to shareholders, as Billabong did, that no transaction may emerge from a bear hug approach and that the approaching bear may ultimately decide to "shut up" rather than "put up".
Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.