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Lord Sharman: I listened carefully to the noble and learned Lord, but I repeat that there is an overriding requirement for a three-fourths majority. The same majority is required in other parts of companies legislation—for a special resolution of members, for example. If the Government are satisfied that it is right to maintain a special resolution requiring three-fourths of the membership, I cannot see why they would not want to do that in this case. Nevertheless, I will consider what the noble and learned Lord has said. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Baroness Turner of Camden): If Amendment No. A168 is agreed to, I cannot call Amendment No. A168A by reason of pre-emption.

Lord Sharman moved Amendment No. A168:


"(a) the time and date of the offer document, and if no time is specified, the time shall be deemed to be the start of the date of the offer document;"

The noble Lord said: The amendment seeks to clarify the meaning of the expression,

Section 428 of the Companies Act 1985 defines the meaning of "takeover offer" for the purposes of Part 13A of the Act, and it includes definitions of other relevant terms. In the definition of,

the phrases,

and "date of publication" are confusing. It is not clear in particular whether shares purchased by the offeror on the same day as the offer document is released but before its release are categorised as shares to which the offer relates.

For the avoidance of doubt, the definition of "date of offer" should be changed to reflect the fact that the offer is considered to be made at the time of, and on the date borne by, the offer document. Where no time is specified in the offer document, only the shares held by the offeror as at the start of the date of the offer document should be excluded from the category of shares to which the offer relates.

I should have said at the outset that in moving Amendment No. A168, I would speak also to Amendment No. A169. This amendment is designed to achieve the same end. The reason for my tabling it is that it is not clear what constitutes publication. There is a danger that references to,
 
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could be taken as being a reference to an announcement that the offeror will make an offer, rather than to the making of the offer. I am sure that that is not the intention of the current wording. I beg to move.

Lord Hodgson of Astley Abbotts: I have two amendments in this group, Amendments Nos. A168A and A169ZA. They seek the same clarification as the amendments of the noble Lord, Lord Sharman, but we have approached the issue in a slightly different way. The wording of our amendment ties in with the rules of the Takeover Panel under Clause 618, which we discussed earlier. That does not in any way undermine the important point that the noble Lord made.

The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville): I fully understand that these amendments are intended to help to define various matters more precisely. However, they would not be helpful. Under Amendment No. A168, "date of offer" would no longer be linked to the date of publication of the offer document. This would mean that the offer date would be a point in time fixed by an arbitrary date on the document, irrespective of whether the offer was made public on that date. That cannot be the intention, nor would it assist in the schedule's intended purpose of determining the calculation of the relevant squeeze-out threshold.

Amendment No. A169 would leave uncertain how the date of offer is to be calculated in two circumstances: first, where there is no requirement to publish an offer document—for example, in relation to takeovers of small private companies, where the offeror instead issues a notice of offer to the shareholders; or secondly, where there is a requirement that notice of the offer is given prior to its publication.

Amendment No. A168A would leave unresolved how the date of the offer is calculated in relation to the publication of offers in takeovers not covered by the rules of the Takeover Panel, such as takeovers of most private companies.

Amendment No. A169ZA would leave unresolved how the date of the offer was calculated where notices of an offer were given, prior to publication, in respect of a takeover not covered by the rules of the Takeover Panel. Equally, it is not clear that it would be right as a matter of policy to limit the definition of date of offer so as to exclude types of notice that may be given prior to publication of a bid other than formal announcements in accordance with the panel rules.

All the amendments try to lend clarity, but I fear that they raise more difficulties than they solve. I hope that the noble Lord will not press them.

Lord Sharman: I thought that we were only being helpful. I will reflect on what the Minister has said. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
 
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[Amendment No. A168A not moved.]

[Amendment No. A168B had been retabled as Amendment No. A169ZA.]

[Amendments Nos. A169 and A169ZA not moved.]

Lord Hodgson of Astley Abbotts moved Amendment No. A169A:

The noble Lord said: In speaking to the amendment, I shall speak also to Amendments Nos. A169B and A169C. They relate to Schedule 3(2)(4). At present, a squeeze-out notice cannot be given after the end of three months beginning with the day after the last day on which the offer can be accepted. As we read the Bill, this period will now be open-ended. The amendment would resolve the issue by stating that the period during which such notice can be given ends three months after the date,

I beg to move.

Lord Sainsbury of Turville: The squeeze-out and sell-out provisions arise from the need to implement Article 15 of the takeovers directive. We have also incorporated Company Law Review recommendations, which were made before the takeovers directive was adopted. Article 15 provides in strict terms a right for a bidder to exercise squeeze-out rights within three months of the time allowed for acceptance of the bid. It would be inconsistent with the directive for our domestic law to provide that the period during which the squeeze-out may be exercised be determined in accordance with conditions related to the offer being declared, satisfied or waived. The time period during which a takeover bid may be accepted in directive cases will be determined by rules giving effect to the takeovers directive made by the Takeover Panel under its proposed rule-making duty. That will ensure legal certainty and full compliance with the directive. Those who are concerned about possible abuses by a bidder relating to the date on which an offer closes will be able to raise those matters with the Takeover Panel.

Lord Hodgson of Astley Abbotts: I am grateful to the Minister. I welcome him to the Dispatch Box for his innings. Legal certainty is the important thing. If, on reading the Minister's remarks, we are satisfied that legal certainty has been achieved, we will not take the matter further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. A169B to A171 not moved.]

Lord Sharman moved Amendment No. A172:


"( ) In subsection (6) of section 429 of the Companies Act 1985 (failure to send notice etc relating to buy-out of minority shareholders) for the words from "shall be liable to imprisonment" to the end substitute "commits an offence".
( ) After subsection (7) insert—
 
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"(7A) A person guilty of an offence under this section is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine (or both);
(b) on summary conviction—
(i) in England and Wales, to imprisonment for a term not exceeding twelve months or to a fine not exceeding the statutory maximum (or both) and, for continued contravention, a daily default fine not exceeding one-fiftieth of the statutory maximum;
(ii) in Scotland or Northern Ireland, to imprisonment for a term not exceeding six months, or to a fine not exceeding the statutory maximum (or both) and, for continued contravention, a daily default fine not exceeding one-fiftieth of the statutory maximum.""

The noble Lord said: The amendment is designed to deal with what I think the noble Lord, Lord Hodgson, called the "onion skin problem" of non-consolidation. It would move paragraphs 32 and 33 of Schedule 4 into Schedule 3 so that all the amendments to Sections 429 and 430A of the Companies Act 1985 can be found in the same place in the new statute. Since the Act is not to be a full consolidation—


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