MEDIA RELEASE
No: TP12/19 Thursday, 15 March 2012 Ludowici Limited 01 - Variation to Final Orders
The Panel made a declaration and final orders on 28 February
2012 following an application from The Weir Group PLC in
relation to the affairs of Ludowici Limited (see
TP12/09).
On 14 March 2012, FLSmidth & Co. A/S requested a variation to
the final orders so that the timing for performance of the
final orders was referable to the date of the decision of the
review Panel (9 March 2012, see TP12/16) rather
than the date of the decision of the initial Panel (28
February, see TP12/09).
After seeking submissions from the parties, the Panel has
agreed to vary the final orders (see Annexure A).
Allan Bulman
Director, Takeovers Panel Level 10, 63 Exhibition Street
Melbourne VIC 3000
Ph: +61 3 9655 3597
allan.bulman@takeovers.gov.au
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Annexure A CORPORATIONS ACT SECTION 657D(3) VARIATION OF FINAL ORDERS LUDOWICI LIMITEDPursuant to section 657D(3) of the Corporations Act 2001 (Cth)
THE PANEL ORDERS
The final orders made on 28 February 2012 are varied as
follows:
1. the words 'from the date of these orders' in order 1 are
deleted and replaced with 'after 9 March 2012'
2. the words 'from the date of these orders' in order 8 are
deleted and replaced with 'after 9 March 2012' and
3. a new definition be included in order 14:
'business day a day that is not a Saturday, Sunday or public
holiday in Melbourne, Australia',
so that the orders as varied read:
The Panel made a declaration of unacceptable circumstances on 28 February 2012.
THE PANEL ORDERS1. Within 15 business days after 9 March 2012, FLS must appoint an Arbitrator, who must be a retired justice of the Federal Court or a State Supreme Court, to assess claims made under these orders.
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2. An Affected Shareholder is entitled to compensation if the
Affected Shareholder can establish to the satisfaction of the
Arbitrator that:
(a) the Affected Shareholder disposed of a net number of
Ludowici shares during the Relevant Period
(b) the Affected Shareholder (or a market participant who
advised an Affected Shareholder or operated a discretionary
account) was aware of the Reuters article at the time the
Affected Shareholder sold Ludowici shares and, at least in
part, relied on it and
(c) some compensation is payable.
3. The Arbitrator must provide a copy to FLS of any material
he or she receives from an Affected Shareholder under order 2
and allow FLS a fair opportunity to make written submissions
to the Arbitrator.
4. The amount of compensation is to be determined by the
Arbitrator but must not exceed the difference between A$7.20
per Ludowici share and A$9.87 (being the VWAP of Ludowici
shares on the day of FLS's 16 February announcement).
The Arbitrator must take into account:
(a) the Ludowici share price at the time of the sale
(b) the price obtained by the Affected Shareholder
(c) the reasons given in a sworn statement by the Affected
Shareholder for selling and
(d) the likelihood that the Affected Shareholder would have
sold irrespective of the Reuters article.
5. The compensation is payable for the net number of Ludowici
shares in which an Affected Shareholder disposed of a
beneficial interest during the Relevant Period.
6. FLS must compensate any Affected Shareholder the amount
determined by the Arbitrator by a date not later than 10
business days after the determination of the amount.
7. The Arbitrator must make a decision within one month of
FLS receiving a claim form from an Affected Shareholder.
8. FLS must, within 20 business days after 9 March 2012,
cause to be published in one newspaper with a national
circulation in Australia and one newspaper in each Australian
State and Territory circulating in that State or Territory, a
notice that is approved by the Panel and is not smaller than
15 cm by 20 cm and
placed in the general or business news section of those
newspapers which
clearly states:
(a) the effect of, and a summary of the reasons for, the
orders (including how the Arbitrator will determine claims
and that claims must be supported by a sworn statement)
(b) a description of the group of persons likely to be
Affected Shareholders
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(c) how Affected Shareholders qualify to receive payment
(d) what an Affected Shareholder must do to obtain a claim
form
(e) the applicable time periods in which Affected
Shareholders must act to receive payment under the orders
(f) the phone number of an enquiry line that can be called in
relation entitlements under these orders and
(g) that the Affected Shareholders have 10 business days to
register to receive a claim form.
9. The information in the notices published under order 8
must also be published on ASX and prominently on FLS's
website and Ludowici's website no later than the first
publication under order 8.
10. The Panel must approve the claim form and the terms on
which FLS appoints the Arbitrator.
11. The claim form must be dispatched to claiming Affected
Shareholders within 15 business days of the date of first
publication under order 8.
12. To be entitled to payment an Affected Shareholder must
sign and return a claim form (together with a sworn
statement) within 10 business days from the dispatch of the
claim form.
13. FLS must pay the costs of giving effect to these orders.
14. In these orders the following definitions apply.
Term Meaning
16 February announcement announcement on 16 February 2012
released to ASX that FLS has agreed to pay A$10 per Ludowici
share for all Ludowici shares, which it will acquire by
scheme of arrangement, less any dividends Ludowici pays its
shareholders prior to completion
Affected Shareholder a person who disposed of a beneficial
interest in a net number of Ludowici shares during the
Relevant Period
business day a day that is not a Saturday, Sunday or public
holiday in Melbourne, Australia
correction the FLS media release dated 31 January
2012 titled "FLSmidth comments on Ludowici media
coverage" through the Thompson Reuters InPublic
International Financial
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Wire - Denmark
FLS FLSmidth & Co. A/S Relevant Period period from
publication of:
(a) the Reuters article to
(b) the correction
Reuters article the article published by Reuters dated 23
January 2012 titled "FLSmidth says A$7.20 per share
Ludowici bid final"
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