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26 December 2007
The Takeovers Panel responded today to comments made by Mr Tony Gibbs, Chairman of Turners & Growers Limited, which were reported earlier in the NZ Herald.
The Takeovers Panel noted that Mr Gibbs' remarks were made in relation to the remedies the Panel had decided upon for the breaches of the Code arising from the acquisition of shares in Kerifresh. That decision was taken after the Panel had invited those parties who had been found by the Panel to be in breach of the Code, and invited Turners & Growers, to make submissions on an appropriate commercial resolution to the issue. Turners & Growers (who had initiated the original complaints to the Panel) declined to participate in that submission process despite being invited on two occasions to do so. Turners & Growers instead chose to pursue Court proceedings for a remedy of its own. Those proceedings are still in train. In his latest comments Mr Gibbs has again failed to offer an alternative solution.
The Takeovers Panel cannot impose financial penalties or forfeit the property of investors as Mr Gibbs implies that it can. That is the privilege of the Courts alone. The resolution which the Panel has agreed to, of which Mr Gibbs now complains, does not prevent Turners & Growers continuing to pursue any remedy which it might wish to seek from the Courts. The resolution would provide Turners & Growers the opportunity to compete for control of Kerifresh, which was its original intent. This resolution would allow Kerifresh to avoid prolonged legal action and get on with business.
The Panel's policy, consistently applied, in cases where it has found that shares have been acquired in breach of the Code is twofold. First, to require a sell down of the shares acquired in breach of the Code. Second, to ensure that the parties to takeovers of companies can pursue their commercial objectives as quickly as possible.
David Jones, Chairman of the Panel, said:
"The Panel is alive to the potential for all parties in a takeover to pressure the Panel for an outcome which suits their commercial aims. The objective of the path taken by the Panel in cases of acquisitions of shares in breach of the Code is to restore control positions, as much as reasonably practicable, to the pre-acquisition position without favour to any party. It is disappointing that Turners & Growers has chosen to stand outside the Panel's process to agree a sensible commercial solution. The Panel's decision does not preclude Turners & Growers from pursuing its current proceedings with the Court or from making an offer for Kerifresh shares."