TP05/016
The Panel announces that it has accepted an undertaking from Foster's Group Limited in the application by Southcorp Limited under sections 657C, 657D and 657E of the Corporations Act 2001 on 28 January 2005 in relation to the takeover offer by a wholly owned subsidiary of Foster's for Southcorp.
Foster's has undertaken to dispatch to Southcorp shareholders by Sunday, 6 February 2005 additional clarifying information in regard to the presentation of average broker valuations of Southcorp in Foster's bidder's statement document.
Fosters points to a premium to "the average broker valuation of Southcorp based on independent broker research". The Panel was concerned to ensure that Southcorp shareholders had clarifying information to put that average broker valuation into context.
The additional information which Fosters has undertaken to provide advises Southcorp shareholders of the range of dates of issue (August 04 to January 05) and the range of valuations (approximately $2.00 to approximately $4.00) of the broker valuations made prior to the Foster's offer which were used in the Foster's bidder's statement in the calculation of the average broker valuation.
The Panel was of the preliminary view that it may have been preferable for Foster's to obtain the consent of each broker under section 636(3) to the use of their valuation so as to allow it to publish the name of each broker, the relevant valuation and date of valuation, and any other material information in relation to the broker's report in the Foster's bidder's statement. However, as Foster's had apparently been unable to obtain the consent of all of the relevant brokers, it was only possible for Foster's to publish an average figure and the range of valuations and valuation dates, rather than details of individual reports. In view of the undertaking, the Panel has determined not to make orders restraining dispatch of the bidder's statement.
The Panel has not concluded its proceedings in this matter, so its decision to allow the Fosters bidder's statement to be sent to Southcorp shareholders with the supplementary information is a holding position only, pending a final decision on the issue. The comments in this release should not be taken as a definitive view of the sitting Panel as to whether and how broker valuation information should be presented in the Fosters bidder's statement or a view of the Panel as a body as to whether and how such information should be presented in bidder's statements generally.
The President of the Panel has appointed Professor Ian Ramsay (sitting President), Alice McCleary and Michael Ashforth as the sitting Panel in these proceedings.
Nigel Morris
Director, Takeovers Panel
Level 47, 80 Collins Street
Melbourne, VIC 3000
Ph: +61 3 9655 3501
