Dated at Auckland this 22nd day of May 2008.
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 omissions occurring on or after 12 February 2008.
Abano Healthcare Group Limited (Abano) is a code company by virtue of being a party to a listing agreement with New Zealand Exchange Limited (NZX) and having voting securities quoted on the NZSX market.
Crescent Capital Partners Limited (Crescent) made an offer dated 17 December 2007 for all of the shares in Abano not already held by Crescent (the Crescent offer). The Crescent offer was despatched on 19 December 2007.
A complaint was made to the Takeovers Panel (the Panel) alleging that Crescent had made a statement, in its offer document in respect of its intentions in relation to Abano, which was inconsistent with other statements made by Crescent in December 2007 to the media and to certain Abano shareholders.
The Panel and Crescent entered into discussions to find an appropriate resolution to the potential misinformation in the market. As a result of those discussions, Crescent issued a statement to NZX on 21 December 2007 and posted it to Abano shareholders on 24 December 2007 clarifying its intentions in relation to Abano should its takeover offer be successful (the clarifying statement).
The Panel and Crescent also agreed that any Abano shareholder who had accepted the offer on or before 27 December 2007 should be afforded an opportunity to withdraw its acceptance. A small number of Abano shareholders were identified as having accepted the Crescent offer on or before 27 December 2007. On 12 February 2008, Crescent wrote to those Abano shareholders asking whether they wished to withdraw their acceptances in light of the clarifying statement. Each of those shareholders that indicated that it wished to withdraw its acceptance (a withdrawing shareholder) was given a right to withdraw its acceptance.
The Crescent offer period closed on 14 March 2008.
In order to vary the Crescent offer to permit a withdrawing shareholder to withdraw its acceptance of the offer, the Panel has granted an exemption from the following rules of the Takeovers Code:
rule 20 (requiring the Crescent offer to be made on the same terms to all shareholders):
rule 27 (prescribing the circumstances in which the Crescent offer may be varied):
rule 28(1) (requiring a notice of variation to be given to every Abano shareholder and to NZX):
rule 29 (specifying the time period in which the Crescent offer may be varied).
The Panel considers that the granting of those exemptions is appropriate and consistent with the objectives of the Takeovers Code because—
a withdrawing shareholder accepted Crescent's offer before receipt of the clarifying statement and therefore its decision to accept the Crescent offer was not based upon the offer information as clarified by the clarifying statement; and
the giving of the withdrawal right to a withdrawing shareholder, as facilitated by the granting of the exemptions, provides an efficient and effective solution to acceptances having been given during a period when there was or may have been misinformation in the market; and
the exemptions will not disadvantage other Abano shareholders because the variation to the terms of Crescent's offer is specific only to a withdrawing shareholder. Requiring a notice of variation to be sent to all Abano shareholders and to NZX is not necessary and would create confusion; and
in order to be effective, the right of withdrawal needed to be exercised before the closing date of the offer.