The Panel has today published its reasons for declining to make a declaration of unacceptable circumstances in relation to the affairs of Sirtex Medical Limited. The application was made by Hunter Hall Investment Management Limited (in its capacity as responsible entity for the Australian Value Trust, the Value Growth Trust and the International Ethical Fund). Hunter Hall made the application on 17 April 2003 and the Panel announced its decision on 14 May 2003.
The application related to a takeover bid by a subsidiary of US-based biopharmaceutical Cephalon, Inc. for all the shares in Sirtex.
Hunter Hall alleged that unacceptable circumstances existed because Sirtex shareholders had been provided with insufficient information to assess whether to accept the bid, in particular regarding certain transactions that may have been entered into between Sirtex and Cephalon if Cephalon obtained between 50% and 90% acceptance levels under the bid.
Hunter Hall was also concerned about the terms of a pre-bid agreement between Cephalon and Sirtex and the relationship between Cephalon, on the one hand, and Sirtex and its principal shareholder, on the other.
The Panel declined the application although it acknowledged some of the applicant's concerns regarding disclosure. However, the Panel believed that most of those concerns were no longer relevant following a binding statement by Cephalon that it would not waive the 90% minimum condition in its bid. Further, once Cephalon agreed not to waive the 90% minimum condition the Panel did not consider that an Independent Expert's report was required.
The Panel also noted that it was provided with no evidence that any aspect of Cephalon's bid prevented a rival bid from emerging.
The sitting Panel comprised Alison Lansley (sitting President), Scott Reid and Luise Elsing.
The reasons are available on the Panel's website.
Nigel Morris, Director, Takeovers Panel
Level 47, Nauru House, 80 Collins Street, Melbourne VIC 3000
Ph: +61 3 9655 3501