Panel publishes reasons in Email Matters

Release number


The Takeovers Panel advises that it has published its reasons for its decisions in relation to the offer by Smorgon Distribution Limited (Smorgon ) in its bid for Email Australia Limited (Email ).

Appeal Decision
During consideration of the application, the sitting Panel declined to restrain Smorgon from dispatching its bidder's statement bid for Email. Email appealed this decision under section 657EA.

The Review Panel ordered Smorgon to delay the dispatch of its bidder's statement until 2 June.

The sitting President of the Review Panel, Mr Brett Heading, said that the additional information that the Review Panel had received from Smorgon, Email and ASIC had meant it was no longer clear that the balance of investors' interests lay with early dispatch. He said that normally the Panel would seek to get documents to investors as early as possible, and that the Review Panel supported the initial decision of the sitting Panel on the information that had been available to it. He said that the further delay would allow the matters to be fully resolved before dispatch.

Unacceptable Circumstances
In its decision on the substantive application under section 657C the Panel said that it did not intend to make a declaration of unacceptable circumstances in relation to the bid by Smorgon. However, its final decision was dependent on the release of two supplementary information documents by Smorgon. The first was sent with Smorgon's bidder's statement, the second was sent after release of Email's preliminary final report.

The Panel's decision was due in part to the additional information which Smorgon had offered to send to Email shareholders in response to the Panel's earlier concerns about the adequacy of the information provided to Email shareholders.

The President of the sitting Panel, Dr Annabelle Bennett SC, said that the Panel had also considered Email's concerns that the value of the CAPS securities being offered by Smorgon is less than $1.04. The Panel was not convinced that the CAPS should be valued at less than $1.04 each.

The reasons are published on the Panel's website at

Nigel Morris
Director, Corporations and Securities Panel
Level 47 Nauru House 80 Collins Street
(03) 9655 3501