Dated at Auckland this 6th day of April 2009.
The Common Seal of the Takeovers Panel was affixed in the presence of:
Colin Glenn Giffney,
Statement of reasons
This notice applies to acts or omissions occurring on or after 21 December 2006 and expires on 31 May 2009.
The Takeovers Panel (the Panel) has granted exemptions in respect of the allotment of shares in Phitek Systems Limited (Phitek) to K One W One Limited, TMT Ventures Limited, VIF/TMT Ventures Limited, Direct Management Investments Limited, and jointly to Penelope Susan Curtis, Vernon Frederick Curtis, and Brian Mayo-Smith (the allottees).
On 21 December 2006, 30 August 2007, and 13 September 2007 Phitek allotted shares to the allottees (the past allotments). The past allotments caused some or all of the allottees to increase their voting control and trigger the fundamental rule (see rule 6 of the Takeovers Code (the Code)). No Code mechanism was used for the past allotments.
Phitek was a code company within the meaning of the Code at the time of the past allotments by virtue of having more than 50 shareholders. However, Phitek was not aware that it was a code company.
The Panel considers that it is appropriate and consistent with the objectives of the Code to grant the exemptions because—
the Code contains certain mechanisms that allow shareholders to approve an increase in a person's voting control that would otherwise breach the fundamental rule. The allottees cannot rely on these mechanisms, as the transactions are historical in nature and the Code mechanisms do not provide for retrospective approval by shareholders: