Dated at Auckland this 3rd day of September 2007.
The Common Seal of the Takeovers Panel was affixed in the presence of:
D O Jones,
Statement of reasons
This notice applies to acts or omission occurring on or after 1 June 2007.
The Takeovers Code (Utilico Limited) Exemption Notice 2007 exempts Utilico Limited from rule 6(1) of the Takeovers Code (the Code) in respect of any increase in the percentage of voting rights in Infratil Limited held or controlled by Utilico Limited as a result of the acquisition of all the assets of Utilico Investment Trust PLC (UIT) pursuant to a scheme of reconstruction under the Insolvency Act 1986 (UK) (the scheme).
At an annual meeting of Infratil Limited held on 8 August 2005 Infratil Limited shareholders approved a buyback programme (the buyback programme) under clause 4 of the Takeovers Code (Class Exemptions) Notice (No 2) 2001, on the basis that UIT, Utilico NZ Limited, and certain shareholders associated with UIT could increase their aggregated control percentage by a maximum of 3.13%, which would increase their total aggregated control percentage to 31.89% of Infratil Limited (the approval).
Utilico Limited has now acquired all of the assets of UIT in accordance with the scheme and in reliance on the Takeovers Code (Utilico Limited) Exemption Notice 2007, and has now become the holder or controller of all of the voting rights in Infratil Limited that UIT had held before the scheme.
Utilico Limited is governed by the same investment objectives, investment manager, and team as UIT operated under at the time of the approval.
As Utilico Limited was not specifically named in the approval, if Utilico Limited were to become the holder or controller of an increased percentage of voting rights in Infratil Limited as a result of the buyback programme, Utilico Limited could not rely on the approval for the purposes of the exemption under clause 4 of the Takeovers Code (Class Exemptions) Notice (No 2) 2001 and would be in breach of rule 6(1) of the Code.
The Takeovers Panel has granted an exemption from rule 6(1) of the Code for Utilico Limited in respect of it becoming the holder or controller of an increased percentage of voting rights in Infratil Limited as a result of Infratil Limited acquiring its own shares in accordance with the terms and conditions of the buyback programme to the extent that UIT would have been able to increase its voting control as a result of the buyback programme.
The Takeovers Panel considers that the exemption is appropriate and consistent with the objectives of the Code because—
shareholders have already voted on and approved the buyback programme on the basis that UIT may increase its voting control as a result of the buyback programme:
the transfer of Infratil Limited shares, held directly and indirectly by UIT, to Utilico Limited has not resulted in an effective change of control of the voting rights in Infratil Limited:
it avoids unnecessary compliance costs that would be incurred if it were not granted.