CSP01/071
The Panel advises that the proceedings on the review Panel's decision in relation to the application made by Reliable Power Inc on 23 May 2001 for a review of the Pinnacle 5 Panel's decision (Pinnacle 8) now appear to be finalised. The review Panel announced its initial decision on 18 June 2001 (MR No. 56/2001).
Prior to the Extraordinary General Meeting of Pinnacle held on Monday 20 August, the Vanteck Transaction (see below) was withdrawn, and at the EGM the Pinnacle shareholders rejected the Int-A-Grid Transaction (see below).
Pinnacle gave an undertaking to the Panel, on 25 June, not to proceed with these two Transactions unless the non-associated shareholders of Pinnacle approved them at a meeting to be held by 3 August, or 10 August if necessary. Pinnacle postponed the meeting, which had been due on Monday 13 August, without the consent of the Panel.
The Panel advised Pinnacle, and the market, on Friday 17 August:
"It follows that the conditions for proceeding with the transactions cannot now be achieved, and Pinnacle may not proceed with either of them, whatever the outcome of the vote, unless the Panel allows it to withdraw or vary the undertaking.
The Panel is prepared to consider such a withdrawal or variation, but with no commitment that it will consent to the withdrawal or variation, after it has had an opportunity to consider the votes cast at the deferred meeting on 20 August and any other events and circumstances which are relevant at the time."
Pinnacle has since advised the Panel that Vanteck exercised its right to withdraw the Vanteck Transaction prior to Pinnacle's EGM. Pinnacle has also told the Panel that its auditors and share registry advise that the resolution to approve the Int-A-Grid transaction was not carried by shareholders of Pinnacle who are not associated with Int-A-Grid.
The Panel wishes to ensure that parties who provide undertakings to the Panel in future are aware of the seriousness with which the Panel takes non-compliance with undertakings. The Panel will not hesitate to act with appropriate firmness, as it has done in the present case, to see that undertakings given to it are carried out.
The application related to the announcement by Pinnacle on 29 March 2001, that it had granted a licence to Vanteck for Pinnacle's battery technology in the Americas (the Vanteck Transaction), and a further transaction announced on 11 April 2001, that Pinnacle had granted Int-A-Grid (UK) Ltd similar, licence for the territories of Europe, Russia and the Middle East (the Int-A-Grid Transaction).
The sitting Panel (the review Panel/the Pinnacle 8 Panel) in this matter was Justice Kim Santow (sitting President), Denis Byrne (sitting Deputy President) and Trevor Rowe.
Nigel Morris
Director, Corporations and Securities Panel
Level 47 Nauru House
80 Collins Street
Melbourne VIC 3000
Ph: +61 3 9655 3501
nigel.morris@takeovers.gov.au
