Consolidated Minerals Ltd bidder Palmary Enterprises Ltd has taken rival bidder Pallinghurst Resources Australia Ltd to the Takeovers Panel in the latest twist in the long-running takeover battle.
Palmary, which holds a 14.29 per cent stake in ConsMin, made its move after Pallinghurst matched its offer of $4.50 per ConsMin share on Friday, valuing the diversified miner at $1.03 billion.
Pallinghurst's revised offer was described as unconditional, and included the potential for a top-up payment to match any higher offers that emerged.
However Palmary wants the Panel to make a declaration of unacceptable circumstances in relation to Pallinghurst's Friday announcement.
It contends that Pallinghurst's attempt to change its "last and final statement" in relation to its offer price which was released to ASX at 2.16pm on Friday was a breach of ASIC's "truth in takeovers" policy.
Palmary also contends that Pallinghurst's "top-up payment" structure is unfair and anti-competitve, and is in breach of the Corporations Act.
The Brian Gilbertson-led Pallinghurst said it would pay acceptances within two weeks and declared the cash component of its offer final in the absence of a higher cash offer.
In a statement to the stock exchange this morning, Palmary president Gennadiy Bogolyubov said ConsMin shareholders would lose control of their shares if they accepted the revised Pallinghurst offer of $4.50 a share, excluding them from any higher offer from Palmary that may emerge.
Mr Bogolyubov, a Ukrainian billionaire, said ConsMin shareholders should wait for Palmary to indicate its position.
"CSM shareholders have ample time to make a decision (since) Pallinghurst's offer is not scheduled to close until 24 October 2007," he added.
Palmary said it was "interesting" that Pallinghurst had not chosen to raise its offer price above Palmary's.
Palmary said there was no guarantee shareholders who accept the Pallinghurst offer will receive any top-up payment because even if a rival bid is made, the conditions for the top-up payment may not be satisfied.
"Palmary wants to participate in a genuine auction process - if Pallinghurst is prepared to pay more than $4.50 per share, they should simply offer more to all CSM shareholders," Mr Bogolyubov said.
He said the new Pallinghurst offer was uncompetitive, unfair and gave an uncertain value proposition to ConsMin shareholders.
"It attempts to discourage rival bids for CSM shares," he said.
"The process should allow CSM shareholders to have the opportunity to sell to the highest bidder."
Palmary is due to lodge its bidders statement by Wednesday after receiving Foreign Investment Review Board approval for the planned takeover.
FIRB approval was one of the conditions of Palmary's bid.
Another was continued access to relevant ConsMin due diligence information, which the target said last week it believed was "capable of being satisfied".
Also today, Michael Kiernan's Territory Resources Ltd confirmed it would not proceed with its off-market bid for ConsMin as the offer had expired.
Territory, which mines iron ore in the Northern Territory, was offering $2 cash and 1.5 shares for every ConsMin share, valuing the company at about $782 million.
Territory conceded its bid was over on September 4 as the battle between Pallinghurst and Palmary intensified.
Territory holds 0.02 per cent of ConsMin shares while Pallinghurst has about a seven per cent stake in the target.
ConsMin is being hunted largely for its manganese assets at the Woodie Woodie mine in Western Australia's Pilbara region.
Pallinghurst said ConsMin could serve as the platform for its vision of "creating a new Australian mining champion".
In July, Mr Gilbertson, a former BHP Billiton Ltd chief executive, said ConsMin could be another Billiton.
Mr Bogolyubov is also a backer of the Ukrainian conglomerate Privat Group, which partly owns the world's second largest ferro-alloy producer, Nikopol.
ConsMin supplies manganese to Nikopol and Mr Kiernan said last month the motive for Palmary's takeover bid was to secure that supply.
Pallinghurst's latest offer is a 40 cent increase on its previously announced offer of $4.10 per ConsMin share. Its original bid was for $2.28 per ConsMin share.