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Viento Group Limited 02 - Takeovers Panel Publishes Reasons

by Martha.Ware 19. July 2011 11:26

The Takeovers Panel has published the reasons for its decision on an application dated 10 June 2011 from Mariner Corporation Limited in relation to the affairs of Viento Group Limited.

Details of the Panel's decision can be found here.

The Panel's reasons for its decisions are on the Panel's website at www.takeovers.gov.au.

The sitting Panel was Byron Koster (sitting President), Francesca Lee and Tony Osmond.

Tags:

Takeovers and Reconstructions | Takeovers Panel

Bentley Capital Limited 01R - Takeovers Panel Publishes Reasons

by Martha.Ware 14. July 2011 09:23

The review Panel has published the reasons for its decision on an application dated 24 May 2011 by Bellwether Investments Pty Ltd and Mr Jim Craig in relation to the affairs of Bentley.

Details of the review Panel's decision can be found here.

The Panel's reasons for its decisions are on the Takeover Panel's website at www.takeovers.gov.au.

The sitting Panel was Ewen Crouch, Robert Johanson and Ian Ramsay (sitting President).

Tags:

Takeovers and Reconstructions | Takeovers Panel

Bentley Capital Limited 01R – Review Panel Accepts Undertakings and Declines to Make a Declaration of Unacceptable Circumstances

by Martha.Ware 7. July 2011 09:04

The review Panel has accepted undertakings from the Chairman of Bentley Capital Limited, Mr Farooq Khan, and Database Systems Limited (DBS) and Mrs Ambreen Chaudhri and has declined to make a declaration of unacceptable circumstances in response to an application dated 24 May 2011 by Bellwether Investments Pty Ltd and Mr Jim Craig in relation to the affairs of Bentley.

The applicants submitted that Mr Khan, his sister, Mrs Chaudhri and her husband, Mr Chaudhri, and their controlled entities were associated in relation to acquisitions of Bentley shares in 2009 and 2011. The initial Panel declined to make a declaration of unacceptable circumstances. The applicants sought a review of the initial Panel's decision.

The review Panel decided to consider only whether these parties were associated in relation to acquisitions in April 2011 and treated the acquisitions and circumstances in 2009 as part of the factual matrix. The review Panel did not consider whether the acquisitions and circumstances in 2009 constituted unacceptable circumstances, including because they occurred too long ago and noting the provisions in the legislation promoting prompt resolution of disputes before the Panel.

In light of the additional evidence provided to the review Panel, it considered that the acquisition of approximately 8% of the shares in Bentley by DBS in April 2011 resulted in a person’s voting power in Bentley increasing otherwise than as permitted by Chapter 6 because:

• Mr Khan, Mrs Chaudhri and DBS were associated in relation to the affairs of Bentley and

• Mr Chaudhri and Mrs Chaudhri were associated in relation to the affairs of Queste Communications Ltd.

However, in light of the undertakings submitted by Mr Khan, DBS and Mrs Chaudhri, the review Panel has declined to make a declaration of unacceptable circumstances in relation to the affairs of Bentley.

The review Panel is satisfied that the terms of the undertakings adequately address the unacceptable circumstances.

In essence, the terms of the undertakings:

1. require the associated parties to lodge substantial holder notices disclosing the nature of their association and their voting power

2. allow Bentley shareholders (excluding the associated parties, Queste and Orion Equities Limited) to consider, and if thought appropriate, to approve the acquisition of shares in Bentley by DBS on or about 7 April 2011 (Breach Shares) pursuant to Item 7 of s 611

3. if Bentley shareholders fail to approve the acquisition of the Breach Shares, require those shares to be offered to Bentley shareholders (excluding the associated parties, Queste and Orion) and

4. require any remaining Breach Shares to be sold under the supervision of ASIC.

The review Panel did not consider it against the public interest to accept the undertakings and to decline to make a declaration of unacceptable circumstances.

The sitting Panel was Ewen Crouch, Robert Johanson and Ian Ramsay (sitting President).

The review Panel will publish its reasons for the decision in due course on its website www.takeovers.gov.au.

Tags:

Takeovers and Reconstructions

Viento Group Limited 02 - Takeovers Panel Declines to Make Declaration

by Martha.Ware 6. July 2011 11:40

The Takeovers Panel has declined to make a declaration of unacceptable circumstances in response to an application dated 10 June 2011 from Mariner Corporation Limited.

On 29 April 2011, Mariner acquired Viento shares vested by the Takeovers Panel for sale by ASIC in Viento Group Limited 01. On 4 May 2011, Mariner requisitioned a meeting of Viento shareholders to replace directors. On 9 May 2011, Viento placed 11.96% of its capital to Hanscon Holdings Pty Ltd. On 23 June 2011, the requisitioned meeting was held and Mariner's resolutions to replace directors were defeated.

Mariner submitted (among other things) that there were four associations:

  1. Mr Nichevich was associated with Bell Potter Nominees Limited, which holds approximately 5.34% of Viento, or the ultimate owners of the shares in Viento held by Bell Potter Nominees.
  2. Mr Nichevich was associated with JP Morgan Nominees Australia Pty Limited, which holds approximately 4.1% of Viento, or the ultimate owners of the shares in Viento held by JP Morgan.
  3. Mr Nichevich was associated with Hanscon Holdings Pty Ltd and its nominee on the Viento board, Mr John Farrell.
  4. Mr Nichevich was associated with his wife Mrs Kerry Ann Nichevich, who holds approximately 0.01% in Viento.

The Panel noted that:

  • The ultimate beneficial owner of the shares held by Bell Potter Nominees, Mr Richard MacLellan, had not lodged a substantial holder notice in relation to approximately 5.34% held in the name of Bell Potter and approximately 1.02% held by his own company, Vernon Finance Limited.2 There were some business connections between Mr MacLellan and Mr Nichevich.
  • Mr Nichevich had assisted Hanscon and Mr Farrell in attempting to purchase the shares vested in ASIC, rather than subscribe for new shares in Viento.
  • Mr Nichevich and Mrs Nichevich are husband and wife and are co-directors of another shareholder in Viento.

However, the Panel was not satisfied on the material available to it that it could draw the necessary inferences and find the alleged associations. Accordingly, the Panel was not satisfied that the circumstances were unacceptable in this case.

The Panel considered that it is not against the public interest to decline to make a declaration of unacceptable circumstances. On the basis of the above, the Panel decided not to make a declaration of unacceptable circumstances.

The sitting Panel was Byron Koster (sitting President), Francesca Lee and Tony Osmond. The Panel will publish its reasons for the decision in due course on its website www.takeovers.gov.au.

Tags:

Takeovers and Reconstructions

Premium Income Fund - Takeovers Panel Publishes Reasons

by Martha.Ware 21. June 2011 11:50

The Takeovers Panel has published the reasons for its decision on an application dated 11 May 2011 from Wellington Capital Limited as responsible entity for the Premium Income Fund in relation to the affairs of PIF.

Details of the Panel's decision can be found here.

The Panel's reasons for its decisions are on the Panel's website at www.takeovers.gov.au.

The sitting Panel was Diana Chang, Byron Koster and Peter Scott (sitting President).

Tags:

Takeovers and Reconstructions

Viento Group Limited 02 - Takeovers Panel Receives Application

by Martha.Ware 21. June 2011 10:24

The Takeovers Panel has received an application from Mariner Corporation Limited in relation to the affairs of Viento Group Limited. On 29 April 2011, Mariner acquired Viento shares vested in ASIC by the Panel in Viento Group Limited [2011] ATP 1. On 4 May 2011, Mariner requisitioned a meeting of Viento shareholders to replace directors.

Mariner submits that chairman of Viento, Mr Robert Nichevich, and other shareholders1 are associated and have built up a combined shareholding of approximately 41.39% in Viento. Mariner also submits that:

  • Mr Nichevich and the other shareholders have failed to disclose all their combined interests in Viento and
  • on 9 May 2011, Viento arranged a 15% placement to one of the shareholders (Hanscon Holdings Pty Ltd) with the purpose of consolidating control and defeating the board spill.

Mariner seeks interim orders including orders (to the effect):

  • that the shareholders disclose their voting power in Viento and associations between them and
  • preventing the shareholders from acquiring any further shares or increasing their voting power in Viento, disposing of or transferring any Viento shares and exercising any voting rights attaching to shares in Viento, until the application is determined.

Mariner seeks final orders to the effect that Viento shares, acquired by or on behalf of the shareholders in excess of 20%, be vested in ASIC and sold.

A sitting Panel has not been appointed at this stage and no decision has been made whether to conduct proceedings. The Takeovers Panel makes no comment on the merits of the application.

Tags:

Takeovers and Reconstructions

Mintails Limited - Takeovers Panel Declines to Conduct Proceedings and Publishes Reasons

by Martha.Ware 21. June 2011 09:21

The Takeovers Panel has accepted an undertaking from Mintails Limited and declined to conduct proceedings in response to an application dated 17 May 2011 from Mr Seager Rex Harbour in relation to the affairs of Mintails Limited.

The application concerned, among other things, a 1 for 4 renounceable rights issue at $0.16 per share to be underwritten by Trinity Asset Management (Pty) Ltd or its nominee announced by Mintails on 2 May 2011 and the assignment of a convertible note to a Trinity related party.  However, on 20 May 2011, Mintails announced that the rights issue would not be underwritten and the offer structure would include a shortfall facility.

The Panel was satisfied that:

  • given the rights issue will not be underwritten by Trinity and now includes a shortfall facility, any control effects of the rights issue had been adequately addressed and 
  • given the further disclosure to be provided by Mintails in the offer document (as attached to the undertaking) shareholders will have sufficient information to assess the potential impact on control that the rights issue and convertible notes may have on Mintails.

Accordingly, the Panel declined to conduct proceedings.

The sitting Panel was Stephen Creese, James Dickson and Jennifer Seabrook (sitting President).

The Panel has published its reasons for the decision on its website.

Tags:

Takeovers and Reconstructions

oOh!media Group Limited – Takeovers Panel Publishes Reasons

by Martha.Ware 8. June 2011 08:17

The Panel has published the reasons for its decision on an application dated 4 May 2011 from oOh!media Group Limited in relation to its affairs.

The Panel's reasons for its decisions are on the Takeover Panel's website.

The sitting Panel was Paula Dwyer (sitting President), David Friedlander and Mike Roche.

Tags:

Takeovers and Reconstructions

Premium Income Fund – Declaration of Unacceptable Circumstances and Orders

by Martha.Ware 6. June 2011 07:58

The Takeovers Panel has made a declaration of unacceptable circumstances and final orders in relation to an application dated 11 May 2011 by Wellington Capital Limited as responsible entity for the Premium Income Fund (PIF) in relation to the affairs of PIF.

Background

On 17 May 2010, ALF PIF Finance Limited (ALF Finance) lodged a bidder's statement with ASIC in respect of a proposal to acquire all of the units in PIF under an off-market bid. A replacement bidder's statement was lodged with ASIC on 15 June 2010. ALF Finance lodged a notice of variation dated 18 February 2011 with the National Stock Exchange and ASIC, purporting to extend the offer period to 14 June 2011.

On or about 2 May 2011, ALF Finance dispatched a letter dated 18 April 2011 to PIF unitholders. The letter enclosed a copy of the notice of variation and contained additional information for PIF unitholders.

The bid was scheduled to close on 28 February 2011. However, the notice of variation was not dispatched to PIF unitholders until on or about 2 May 2011.

Declaration

In the Panel's view, the bid was not extended in accordance with s 650D of the Corporations Act 2001 (Cth). ALF Finance has continued to communicate with PIF unitholders and receive acceptances after 28 February 2011 on the basis that the bid is still on foot.

The Panel considers that the communications after close of the bid, the receipt of acceptances after close of the bid, failure to prepare a further supplementary bidder's statement as required and the material deficiencies in the disclosure in the existing replacement bidder's statement and the 18 April letter has resulted in:

  • the acquisition of control over PIF units not taking place in an efficient competitive and informed market and
  • PIF unitholders not having enough information to assess the merits of the bid.

The Panel considers that even if the bid was validly extended, the corrections required would not leave unitholders with a reasonable time to consider the proposal.

The Panel considers that it is not against the public interest to make a declaration of unacceptable circumstances. It has had regard to the matters in s 657A(3).

Orders

The Panel has made orders that:

  1. ALF Finance make an announcement to the market that the bid ended on 28 February 2011 without the conditions having being fulfilled or waived and all acceptances will be returned
  2. no further acceptances be processed by ALF Finance in relation to the bid
  3. any acceptances that have been processed be reversed
  4. any acceptances be returned to unitholders as soon as practicable after the date of the orders
  5. none of ALF Finance, Mr James Byrnes or any associate of either of them communicate with PIF unitholders, except as required by these orders, until after ALF Finance has complied with the orders in paragraphs 1 to 4 above and ALF Finance has confirmed satisfaction of the orders in accordance with paragraph 6 below.
  6. ALF Finance confirm in writing to the Panel and all parties when it has complied with these orders.

The sitting Panel was Diana Chang, Byron Koster and Peter Scott (sitting President).

The Panel will publish reasons for the decision in due course on its website www.takeovers.gov.au.

Tags:

Takeovers and Reconstructions

Bentley Capital Limited – Takeovers Panel Publishes Reasons

by Martha.Ware 6. June 2011 07:54

The Takeovers Panel has published the reasons for its decision on an application dated 3 May 2011 from Bellwether Investments Pty Ltd and Mr Jim Craig in relation to the affairs of Bentley Capital Limited.

The Panel's reasons for its decisions are on the Panel's website at www.takeovers.gov.au.

The sitting Panel was Hamish Douglass (sitting President), Rod Halstead and Vickki McFadden.

Tags:

Takeovers and Reconstructions



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