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TINKERING AROUND WITH CORPORATE TAKEOVERS Even with the Fed, the SEC, and Congress in the act, major changes in the rules are not likely. Limited ones are.
By - Robert E. Norton

(FORTUNE Magazine) – HOSTILE TAKEOVERS were as hot a topic in Washington as on Wall Street last year. But for all the talk, no laws were passed and no new rules went into effect. This year the Federal Reserve Board, the Securities and Exchange Commission, and influential members of Congress are determined to make at least some changes in rules governing takeovers. At a public meeting in early January the Federal Reserve Board approved a plan to curb junk-bond financing of takeovers. Fretting over the economy's zooming debt load, the Fed will require that half the bonds used to finance a takeover be backed by assets other than the stock of the target company. The Reagan Administration had lobbied hard against the idea, arguing that the Fed was needlessly interfering in the free market. Fed Chairman Paul Volcker mustered a 3-to-2 majority to pass the junk-bond restraints. Delay might have proved fatal: Reagan appointees will control the Fed board by spring. Meanwhile the Securities and Exchange Commission will try to update the Williams Act, the 1968 law that sets rules on tender offers. The Williams Act's aim was to ensure that stockholders aren't snookered into selling too cheap, either by inadequate disclosure or by pressure tactics on the part of acquirers or managements. Three recent takeover battles convinced the SEC that the Williams Act needs more oomph. In the Limited's bid for Carter Hawley Hale and Hanson Trust's run at SCM, the SEC contended that large blocks of stock purchased on the open market constituted illegal tender offers. The buyers -- in one case Carter Hawley Hale's management fighting a bid, in the other a raider seeking control -- argued that the purchases did not qualify as tender offers under the law. The SEC lost in the courts. When Unocal fended off T. Boone Pickens by tendering for its own shares except for the 13% the raider controlled, the SEC proposed a rule that all shareholders be treated equally, even in a company- initiated tender. Another change the SEC is sure to seek from Congress: authority to narrow the so-called 13-d window, a clause in the Securities Exchange Act that gives acquirers ten days before they must disclose that they have purchased 5% or more of a company's stock. Raiders often use the grace period to continue buying shares in secret. Congress may write some rules of its own. Dozens of bills were introduced last year, calling for everything from a temporary ban on hostile takeovers to requirements that raiders spell out the impact their deals would have on the target companies' communities. Most of the proposed laws were introduced by Congressmen from districts where an unfriendly takeover sent management scurrying to Washington for protection. When the bidding ended, the impetus for legislation waned. No anti-takeover measure got as far as a floor vote. In December Senator Alfonse M. D'Amato (R-New York) incorporated several measures from previous efforts into a compromise takeover reform bill. D'Amato would ban greenmail payments to raiders, forbid managements from writing golden parachute agreements in the midst of a takeover battle, and require 13- d disclosures within 24 hours. He would also bring raiders making open- market purchases of stock under the Williams Act and outlaw discriminatory bids like Unocal's. D'Amato foresees an uphill struggle to get the bill enacted. His fallback position is to pass some of the bill's measures as $ amendments to other laws. ''Individually,'' says D'Amato, ''they may stand a better chance.'' This approach might work in the House as well, where Timothy E. Wirth (D-Colorado), who held exhaustive hearings on takeovers last year, sees fixing the ''potholes'' in existing law as an alternative to major legislation.