On 21 May 2020 the Hearings Committee of the Takeover Panel announced that Brigadier had requested a review of the Panel Executive’s ruling that Brigadier was not permitted to invoke any of the relevant offer conditions and lapse its offer. However, on 26 May 2020 the Panel announced that Brigadier had withdrawn its request for a review and, accordingly, that the Panel Executive’s ruling stands. This is not surprising given the factual background and precedent set by the WPP/Tempus transaction in 2001.

What could the bidder have done differently? In reality, and given the context, not much. In theory the bidder could have:

• included a COVID-19 offer condition in the offer announcement;
• expressly drawn that condition to the attention of Moss Bros shareholders; and
• provided a clear explanation of the circumstances which would allow the bidder to invoke that condition.

The bidder would then have been in a much stronger position when seeking a ruling from the Panel. See our earlier post Takeover Panel reinforces its stance on MAC clauses in Brigadier / Moss Bros ruling for more detail.

Written by Nick Graves.