Companies umpire finds no evidence of 'unacceptable coercion'
The Takeovers Panel has published its reasons for refusing to conduct proceedings in the McAleese recapitalisation deal.
The decision had come in response to an application by existing shareholder Gilberto Maggiolo’s Havenfresh, which applied to the federal review body to order a general meeting vote before the proposed rescue deal was finalised.
Havenfresh had claimed that the proposed deal favoured McAleese MD Mark Rowsthorn, while the timing exerted “unacceptable” pressure on existing shareholders to approve the deal.
The Panel notes under Chapter 6 of the Corporations Act 2001 “shareholders have few, if any, rights when there is no equity left and control of the company has passed to creditors.
“Looking at the senior debt acquisition, we do not think there is evidence of unacceptable coercion.”
The Panel adds that “based on the information presented, it appears that the senior debt acquisition is part of a legitimate commercial transaction”.
Havenfresh had earlier called for the senior debt deal to be delayed until after the shareholders’ meeting and dismissal of Rowsthorn and chairman Don Telford, to be replaced by two new directors.
However, the Panel rejected the application on the grounds that it was “premature” to conduct the proceedings.
“The notice of meeting and independent expert report setting out details of the options issue have not yet been released,” it states.
“In our view it is premature to assess whether the options issue may give rise to any unacceptable control effect.
“In this respect we note that the parties have clearly considered the prospect that they may not get the options or notes.
“Lastly, we note that shareholders currently have (limited) choices – they can decide that they will subscribe for notes and wait to see if they get value in the future (in which case they can convert into shares) or they can sell their existing shares on ASX now.
While the Panel states the proposed delisting of the company is a noteworthy aspect, it did “not need to consider this further at this time”.