The Takeovers Panel advises that is has declined to commence proceedings in relation to an application dated 4 July 2005 from Glencore International AG, which was lodged outside the statutory 2 month time limit, in relation to the affairs of Austral Coal Ltd (Austral Coal) which is currently the subject of a takeover offer by Centennial Coal Company Limited (Centennial).
Glencore alleged in its application that unacceptable circumstances existed in relation to the sale of 9.6% of shares in Austral Coal to Centennial by Noble Group Limited (Noble) on 2 March 2005 and Noble's acquisition, and subsequent acceptance of the Centennial bid on 23 March 2005, of a further 6.9% of Austral Coal.
Glencore alleged that Centennial and Noble became associates in negotiations concerning the sale of Noble's shares in Austral Coal. Glencore also alleged that Centennial made arrangements with Noble to retain and/or extend the scope or term of Noble's existing seven year exclusive agency for the sale of Austral Coal's coal and that this was a benefit offered to Noble which was not offered to any other Austral Coal shareholder.
The application was made outside the 2 month time limit provided under section 657C(3) of the Corporations Act, with a request that the Panel extend the period within which Glencore's application may be made.
The Panel did not consider that it was appropriate for it to grant such an extension. In the Panel's view, Glencore's application did not provide any reasonable to basis to find that an association arose, or any agreement was reached, between Centennial and Noble, or that a benefit was given by Centennial to Noble. The Application also did not demonstrate that any material harm had been caused to the market by the actions of Centennial and Noble. As such, the Panel did not consider that it was in the interests of public policy to extend the statutory 2 month time limit or commence proceedings. The matter was concluded on this basis.
The Panel will publish the reasons for its decision on its website in due course.
Director, Takeovers Panel
Level 47, 80 Collins Street
Melbourne, VIC 3000
Ph: +61 3 9655 3501