The Qantas takeover saga continues to create history with each passing hour. Airline Partners Australia this morning revealed it is considering launching a new bid at $5.45 a share, whilst also attempting to resurrent its old offer.

As of midday, Qantas shares remained suspended but the APA bid members re-opened after 11am and Macquarie Bank lost a modest 78c to $90.22, Allco Finance Group dropped 47c to $12.13 and Allco Equity Partners shed 15c to $3.85. This suggests the market believed they would have made good profits from a successful Qantas play, but that something yet might be salvaged from the APA wreckage.

Qantas shares remained suspended due to the uncertainly created by the latest APA argument and a query from ASIC which Qantas explained as follows:

The Australian Securities & Investments Commission this morning queried the suggestion in the Takeovers Panel Media Release dated 7 May 2007 that as a result of clause 7.3(f)(i) of the terms of the APA offer, APA may have met the 50% threshold prior to the close of the APA offer, and thus the APA offer may have been extended by operation of s.624(2) of the Corporations Act.

The Takeovers Panel review committee met late last night and backed up the original decision, although so far we’ve only got this three paragraph “judgement“. Whilst the original “judgement” revealed several APA arguments, the Panel has today revealed that APA’s new argument is that it may well have achieved the 50% acceptance-level based on clause 7.3(f)(i) of the offer document which reads:

7.3 Your agreement

By signing and returning, faxing or emailing the Acceptance Form, or otherwise accepting this Offer in accordance with these Offer Terms, you will be deemed to have:

(f) including where this Offer is caused to be accepted in accordance with the ASTS Settlement Rules:

(i) irrevocably accepted this Offer in respect of all your Qantas Shares despite any difference between the number and the number of Qantas shares shown on the Acceptance Form.

This reads like New York hedge-fund principal Samuel Heyman might have accepted on time for a small proportion of his holding, thereby allowing APA to claim the entire $1 billion stake.

Or, perhaps, APA is claiming the hedge funds which had agreements with each other to accept were deemed to be associates, so one accepting meant they were all surrendering the lot.

The Takeovers Panel has thrown this issue back at APA saying:

The review Panel considers that APA should clarify whether this is the situation or not as soon as possible. This is not a matter for the Review Panel to determine.

Heyman’s hedge fund played a giant game of bluff which blew up in its face. The APA team clearly threw its hands in the air on Friday night and decided to hang Heyman out to dry by publicly raising the white flag and privately briefing the press that it was all his fault.

No reclusive billionaire enjoys being pictured on the front page of The Australian and when the abusive calls started flowing from his fellow hedge funds, Heyman attempted a massive “reverse ferret”.

Never before in recent corporate history have hedge funds assumed centre stage in such a dramatic international takeover and they won’t be enjoying the exposure one bit.

As for the resolution, who knows how it will play out but the case for the Australian Electoral Commission running contentious corporate ballots is stronger than ever.

Peter Fray

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