Takeovers Panel denies Atlas Arteria interim order request

Takeovers Panel said it rejected Atlas Arteria's request to impose an interim order against IFM Investors despatching its bidder's statement in its current form, despite the global toll roads business saying the two-tiered pricing structure offer has numerous deficiencies and complexities.

On May 6, Atlas Arteria sought the help of the panel to restrain IFM Investors via its subsidiary Diamond Infraco 1 to despatch its bidder's statement in its current form.

Atlas Arteria said this is unless IFM makes amendments to the offer or bidder's statement or obtains ASIC relief "in the form submitted by Atlas Arteria or such further orders as the Panel otherwise considers appropriate."

"Atlas Arteria submits that the complex and highly unusual offer structure and deficiencies in the disclosure in the bidder's statement are contrary to the principles of Chapter 6," the target company said.

Diamond Infraco 1 currently has a 34.48% stake in Atlas Arteria. A further 1.21% stake is held by or on behalf of clients of IFM Investors.

The bidder's statement as at April 27 shows an offer price of $4.75 per Atlas Arteria security. This will be increased to $5.10 if Diamond Infraco 1's relevant interest is 45% or more prior to the close of the offer.

Diamond Infraco 1 said the increased price of $5.10 is its "best and final" offer.

The statement also shows that Diamond Infraco 1 established an institutional acceptance facility to facilitate receipt of acceptances and the offer is subject to a number of conditions.

Among its other concerns, Atlas Arteria said the two-tiered pricing structure is "inherently flawed" and cannot deliver the increased consideration of $5.10 per security with certainty.

Furthermore, the disclosure of the two-tiered structure in the bidder's statement "is not self-executing and does not explain how the two-tier offer price structure is implemented in accordance with [the provision relating to extensions and other variations of takeover offers, namely] section 650D of the Corporations Act, nor does it warn securityholders about the risks of the structure, including that the offer may close at $4.75."

The operation of the institutional acceptance facility and the disclosure in relation also "jeopardises the operation of an efficient, competitive and informed market."

Ultimately, Atlas Arteria was seeking an interim order that, pending the final determination of the panel proceedings, Diamond Infraco 1 is restrained from despatching the bidder's statement in its current form.

This morning, the panel confirmed it decided not to make the interim order and is "still considering whether to conduct proceedings."