Takeovers Panel settles Kerifresh matter


24 December 2007

The Takeovers Panel announced today that it had accepted enforceable undertakings from Alan and Helen Thompson and from Hamish and Jonathan McHardy, and their associated interests, to provide a commercial solution after the Panel's recent enforcement actions involving shareholders and Kerifresh Limited.

The Panel notes that, in giving these undertakings, Hamish and Jonathan McHardy, and Alan and Helen Thompson, stated that they do not accept the correctness of the Panel's findings against them.

The Panel is aiming to achieve a solution that is appropriate and fair to the shareholders and the company itself. The Panel is trying to resolve the matter quickly and without recourse to the Courts.

The approach the Panel has taken has several elements:

  • The Kerifresh shares that the Panel found were acquired in breach of the Code (amounting to around 23% of the total voting rights in Kerifresh) must be transferred to an independent broker for sale by auction at the best price. The auction is to be an open book process. ABN AMRO Craigs has been appointed by the Panel to fulfil this role;
  • The parties who were found by the Panel to have contravened the Code and who still hold Kerifresh shares, namely Alan and Helen Thompson and the trustees of the Murrayfield Trust, may bid for the auction shares to be held by ABN AMRO Craigs. If those parties obtain any auction shares through the auction process they must, within a few days, give notice under rule 41 of the Code that they intend to make a full takeover offer for the rest of the shares in Kerifresh. That offer must have a minimum acceptance condition of more than 50% of the voting rights in Kerifresh and other conditions must be approved by the Panel. Hamish McHardy has indicated he plans to give such a takeover notice;
  • Any other person can also bid in the auction for shares. There is no requirement to bid for the whole parcel of auction shares. If these bidders wish to obtain auction shares that, when combined with the shares already held by them and their associates, exceed 20% of the voting rights in Kerifresh then ABN AMRO Craigs can enter into pre-bid arrangements for the auction shares as part of a takeover offer for Kerifresh that the bidder must then make;
  • If a person acquires shares in the auction, and makes a takeover offer for Kerifresh, and the takeover offer fails, the person will have the right to retain or purchase the percentage of such shares in Kerifresh that it can legally obtain under the Code;
  • The proceeds of sale of the auction shares will be remitted back to the Thompsons and the McHardys by the independent broker, after payment of the broker's reasonable costs and expenses, as sales proceeds become available.

Turners and Growers Limited has not indicated whether it intends to take part in the auction for Kerifresh shares proposed by the Panel. The Panel has encouraged Turners and Growers to do so. Turners and Growers has initiated court proceedings against a number of Kerifresh shareholders and former shareholders.