TP05/041
The Panel announces that it has consented to the request by Yoplait SAS (Yoplait) and Sodima SAS (Sodima) to withdraw their application dated 5 April 2005 seeking review of a decision of ASIC on 1 April 2005 refusing to grant Yoplait and Sodima an exemption from, or modification to, the Corporations Act.
ASIC's decision related to Yoplait and Sodima's request for relief, such that they were not required to attach a copy of a deed between Fonterra1, Yoplait and Sodima (Fonterra/Yoplait Deed) to a substantial holding notice which they were proposing to lodge. The Fonterra/Yoplait Deed related to a then proposed Joint Venture in relation to the Fresh Cultured Products and Fresh Dairy Desserts business of National Foods Limited (National Foods). The substantial shareholding notice was to be lodged by Yoplait and Sodima in accordance with undertakings they had given to the Panel in National Foods 01 (which have since been withdrawn with the consent of that Panel following the overbidding of Fonterra's bid for National Foods by San Miguel Foods Australia Holdings Pty Ltd (San Miguel)).
This Panel finds that it would not be in the public interest to continue with these proceedings. The Panel notes the policy matters considered by the Panel in National Foods 01 as set out in Media Release TP05/36 published on 15 April 2005, including:
- that Panel Media Release TP05/32, Fonterra Foods' fifth supplementary bidder's statement published on 4 April 2005, the media coverage surrounding the National Foods 01 Panel proceedings and the announcements by both Fonterra and National Foods, meant that the market and National Foods shareholders had been given the material information which would have been provided in a substantial holding notice from Yoplait and Sodima; and
- the announcement by San Miguel on 6 April 2005 of its increased offer for shares in National Foods, and Fonterra Foods' subsequent announcement on 11 April 2005 that it would close its bid for National Foods and accept San Miguel's offer, once it became unconditional, made the prospect of the Joint Venture purely hypothetical and made the information in the Deed essentially irrelevant to the market for National Foods shares and to National Foods shareholders.
In addition to the matters noted by the National Foods 01 Panel, this Panel notes that there does not appear to be any good regulatory purpose served by reviewing an ASIC decision where there is no longer a regulatory or commercial need for the review. Further, a review of the merits of the ASIC decision would not be satisfactory in circumstances where the parties have not fully argued their positions (and no longer had a commercial incentive to do so).
The Panel will publish its reasons on its website www.takeovers.gov.au.
The sitting Panel in these proceedings was Simon McKeon, Graham Bradley and Karen Wood.
Nigel Morris
Director, Takeovers Panel
Level 47, 80 Collins Street
Melbourne, VIC 3000
Ph: +61 3 9655 3501
1 The agreement was entered into by Fonterra Foods Group Ltd, however, the entity making the takeover bid was Fonterra Foods Pty Ltd.
