PowerTel Limited 01 to 03 - Panel Publishes Reasons in Reltion to PowerTel 1 to 3 Proceedings [11/09/2003] The Takeovers Panel

Thursday, 11 September 2003

PANEL PUBLISHES REASONS IN RELATION TO POWERTEL 1 TO 3 PROCEEDINGS

The Panel has today published the reasons for its decisions in the PowerTel 1 to 3 proceedings.

The proceedings in relation to PowerTel Limited (PowerTel) arose from applications to the Panel between 26 June and 29 July 2003. Each of the proceedings is briefly described in the annexure to this media release.

The Panel announced its decisions in relation to the proceedings on 29 June 2003 (Takeovers Panel Media Release 61/2003), 25 July 2003 (Takeovers Panel Media Release 69/2003) and 8 August 2003 (Takeovers Panel Media Release 73/2003).

The sitting Panel in the PowerTel 1 and 2 Proceedings was Alison Lansley, Carol Buys and Chris Photakis. The sitting Panel in the PowerTel 3 proceedings was Teresa Handicott, Carol Buys and Chris Photakis.

The reasons are available on the Panel's website at:
http://www.takeovers.gov.au

George Durbridge,
Director, Takeovers Panel
Level 47 Nauru House, 80 Collins Street
Melbourne VIC 3000
Ph: +61 3 9655 3553
george.durbridge@takeovers.gov.au


ANNEXURE

PowerTel 1 proceedings

The PowerTel 1 proceedings related to an application by TVG Consolidation Holdings SPRL (TVG) for a declaration of unacceptable circumstances in relation to:

  1. alleged deficiencies in the information provided to PowerTel shareholders concerning a resolution to be put to shareholders under item 7 of section 611 of the Corporations Act 2001 (Cth) (the Act) to approve a proposal under which, among other things, the Roslyndale Syndicate (Roslyndale) would acquire all of the shares in PowerTel owned by WilTel Communications Group (WilTel) (PowerTel's largest shareholder); and
  2. the potential for Roslyndale, if the `Roslyndale proposal' was not approved by PowerTel shareholders, to nevertheless prevent WilTel from accepting a takeover bid by TVG for all of the shares in PowerTel for a period after the relevant shareholder meeting.

The Panel decided that additional disclosures made by both PowerTel and Roslyndale, and undertakings given by Roslyndale, after the application had been made resolved the concerns set out in the application.

PowerTel 2 proceedings

The PowerTel 2 proceedings related to an application by Roslyndale for a declaration of unacceptable circumstances in relation to TVG's takeover bid for all of the shares in PowerTel. Roslyndale submitted that:

  1. TVG's bid should be subject to approval by a resolution of non-associated shareholders (or subject to a non-waivable 50.1% minimum acceptance condition) because, in Roslyndale's view, the bid price was so low that it would only be attractive to WilTel;
  2. TVG should disclose in a supplementary bidder's statement certain forecast information concerning PowerTel that Roslyndale believed had been provided to TVG; and
  3. references in TVG's bidder's statement to a proposed rights issue by PowerTel were misleading.

The Panel declined to conduct proceedings in relation to the issue referred to in paragraph (a).

In relation to paragraph (b), the Panel invited PowerTel to provide the relevant information to shareholders in a form better suited to publication than the information that was provided to TVG. PowerTel gave undertakings to that effect, and TVG undertook to extend its bid to allow shareholders to consider that information.

In relation to paragraph (c), the Panel rejected the submission that the TVG bidder's statement was misleading or confusing.

PowerTel 3 proceedings

The PowerTel 3 proceedings related to a further application by Roslyndale for a declaration of unacceptable circumstances in relation to TVG's takeover bid.

TVG had waived a condition (the Condition) in its bid in relation to the sale by WilTel of a debt owed to it by PowerTel. The waiver followed an irrevocable offer from WilTel to PowerTel to release the debt for a payment by PowerTel of $10,000,000, on condition that TVG waive the Condition and accelerate payment for acceptances under its bid.

Rosylndale submitted that:

  1. the waiver of the condition amounted to the provision of a collateral benefit by TVG to WilTel in breach of section 623 of the Act; and
  2. TVG's actions amounted to the provision of a benefit to WilTel that was not open to all PowerTel shareholders in breach of the principle set out in section 602(c) of the Act.

The Panel rejected these submissions.