Dated at Wellington this 10th day of October 2007.
The Common Seal of the Takeovers Panel was affixed in the presence of:
K J O'Connor,
Statement of reasons
This notice applies to acts or omissions occurring on or after 13 September 2007 and expires on the close of 1 March 2009. The Takeovers Panel has granted exemptions to—
BIO has made a renounceable rights issue to its existing shareholders (the issue). It is proposed that Viking may participate in the shortfall under the issue (either in cash or by way of capitalisation of debt due by BIO to Viking). It is also proposed that Viking may capitalise debt due to it by BIO under the debt capitalisation. Following the allotment and issue of voting securities and warrants under the shortfall participation and the debt capitalisation (if approved by BIO's shareholders), Viking may exercise some or all of the warrants; of which some are exercisable in February 2008 and some are exercisable in February 2009 (the shortfall participation, debt capitalisation, and warrant conversion are together referred to as the transactions).
As at 27 August 2007, Viking held 19.02% of the voting rights in BIO. It is likely, therefore, that the percentage of BIO voting rights held by Viking will increase under the transactions to in excess of 20%.
BIO intends to obtain shareholder approval, in accordance with the Code, of the potential allotment of voting securities to Viking under the transactions, subject to the resultant aggregate holding by Viking of voting securities in BIO not exceeding 35%.
BIO is, however, unable to comply with the requirements of rule 16(b) of the Code prior to the completion of the transactions, as BIO is not able to state in its notice of meeting—
the precise number of voting securities that will be allotted to Viking; and
the exact percentage of BIO voting rights that will be held or controlled by Viking after the allotments; and
the total number of voting securities that will be on issue following the allotments.
These details can only be determined after the transactions have been completed and all allotments of voting securities pursuant to the transactions have been made.
The Takeovers Panel considers that it is appropriate and consistent with the objectives of the Code to grant the exemptions from rules 7(d) and 16(b) of the Code because—
it is impossible for the actual number of voting securities to be allotted and the relevant percentages required by rule 16(b) to be stated in the notice of meeting, as these numbers and percentages are dependent on the extent to which the voting securities are issued to Viking and the extent to which the warrants are ultimately exercised by Viking:
all non-associated shareholders will have an opportunity to vote on the potential allotment of voting securities to Viking under the transactions:
if the non-associated shareholders approve the potential maximum allotment of voting securities to Viking, then, by implication, the shareholders also approve any lesser percentage of voting rights that may be allotted under the transactions.