Takeovers Code (Phitek Systems Limited) Exemption Notice 2009

  • expired
  • Takeovers Code (Phitek Systems Limited) Exemption Notice 2009: expired, on 1 June 2009, by clause 3.

Reprint
as at 1 June 2009

Crest

Takeovers Code (Phitek Systems Limited) Exemption Notice 2009

(SR 2009/67)

  • Takeovers Code (Phitek Systems Limited) Exemption Notice 2009: expired, on 1 June 2009, by clause 3.


Note

Changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in this reprint.

A general outline of these changes is set out in the notes at the end of this reprint, together with other explanatory material about this reprint.

This notice is administered by the Takeovers Panel


Pursuant to section 45 of the Takeovers Act 1993, the Takeovers Panel gives the following notice (to which is appended a statement of reasons of the Takeovers Panel).

Notice

1 Title
  • This notice is the Takeovers Code (Phitek Systems Limited) Exemption Notice 2009.

2 Application
  • This notice applies to acts or omissions occurring on or after 21 December 2006.

3 Expiry
  • This notice expires on the close of 31 May 2009.

4 Interpretation
  • (1) In this notice, unless the context otherwise requires,—

    Act means the Takeovers Act 1993

    allottees means Penelope Susan Curtis, Vernon Frederick Curtis, Brian Mayo-Smith, Direct Management Investments Limited, K One W One Limited, TMT Ventures Limited, and VIF/TMT Ventures Limited

    Code means the Takeovers Code under the Act

    past allotments means the allotments listed in the Schedule

    Phitek means Phitek Systems Limited

    voting security means a voting security in Phitek.

    (2) In this notice, a reference to a person increasing voting control is a reference to the person becoming the holder or controller of an increased percentage of the voting rights in Phitek.

    (3) Any term or expression that is defined in the Act or the Code and used, but not defined, in this notice has the same meaning as in the Act or the Code.

5 Exemptions from rule 6(1) of Code
  • The allottees are exempted from rule 6(1) of the Code in respect of any increase in their voting control resulting from the past allotments.

6 Conditions of exemptions in clause 5
  • The exemptions in clause 5 are subject to the conditions that—

    • (a) the past allotments are approved by an ordinary resolution of the shareholders of Phitek at its 2009 annual meeting or at a meeting held before that meeting; and

    • (b) none of the allottees, nor any person who is or was at the date of any of the past allotments an associate of an allottee, votes in favour of the resolution; and

    • (c) the directors of Phitek obtain from an independent adviser a report on the merits of the past allotments, having regard to the interests of those persons who may vote to approve them, that includes the statements referred to in rule 18(4)(a) and (b) of the Code; and

    • (d) rule 19 of the Code is complied with in relation to the past allotments as if the reference in that rule to an allotment under rule 7(d) of the Code were a reference to the past allotments; and

    • (e) if Phitek or an allottee publishes or sends to any holder of voting securities, in respect of the meeting held for the purposes of paragraph (a), a statement or information that is not required to be published or sent by this notice, that person, at the same time, sends to the Panel, in hard copy and (if possible) in electronic form, a copy of that statement or information.

7 Conditions of exemptions in clause 5 relating to notice of meeting
  • The exemptions in clause 5 are subject to the conditions that—

    • (a) the notice of meeting containing the resolution to approve the past allotments (notice of meeting) contains or is accompanied by particulars of the following in relation to each past allotment:

      • (i) the identity of the allottee or allottees to whom the allotment was made; and

      • (ii) the number of voting securities allotted; and

      • (iii) the percentage of the aggregate of all voting securities on issue immediately before the allotment and all voting securities allotted on the same day as the allotment that that number represents; and

      • (iv) the percentage of all voting securities held or controlled by each allottee at the end of the day on which the allotment was made; and

      • (v) the aggregate of the percentages of all voting securities held or controlled by each allottee and each allottee's associates at the end of the day on which the allotment was made; and

      • (vi) the issue price for the voting securities allotted and when it was paid; and

      • (vii) the reasons for the allotment; and

    • (b) the notice of meeting contains or is accompanied by full particulars of the past allotments not required under paragraph (a); and

    • (c) the notice of meeting contains or is accompanied by—

      • (i) a statement to the effect that the past allotments, if approved, will be permitted under exemptions from rule 6(1) of the Code; and

      • (ii) a summary of the terms and conditions of the exemptions; and

      • (iii) a statement by each allottee setting out particulars of any agreement or arrangement (whether legally enforceable or not) that was, or is intended to be, entered into between the allottee and any other person (other than between the allottee and Phitek in respect of the matters referred to in paragraphs (a) and (b)) relating to the past allotments or to the exercise of voting rights in Phitek; and

      • (iv) the independent adviser's report referred to in clause 6(c); and

      • (v) a statement by the directors of Phitek in relation to the past allotments that complies with rule 19 of the Code as if the reference in that rule to an allotment under rule 7(d) of the Code were a reference to the past allotments; and

    • (d) at the same time that Phitek sends the notice of meeting, Phitek sends to the Panel, in hard copy and (if possible) in electronic form, a copy of the notice and any document accompanying it that relates to the meeting; and

    • (e) the notice of meeting displays, in a prominent position, a disclaimer stating that, by exempting the allottees, the Panel—

      • (i) is neither endorsing nor supporting the accuracy or reliability of the contents of the notice; and

      • (ii) is not implying that it has a view on the merits of the past allotments; and

    • (f) the form of the notice of meeting is approved by the Panel.


Schedule
Past allotments

cl 4(1)

1
  • The allotment of 1 523 835 voting securities to K One W One Limited on 21 December 2006.

2
  • The allotment of 1 104 223 voting securities to TMT Ventures Limited on 21 December 2006.

3
  • The allotment of 552 111 voting securities to VIF/TMT Ventures Limited on 21 December 2006.

4
  • The allotment of 134 297 voting securities to Direct Management Investments Limited on 21 December 2006.

5
  • The allotment of 69 853 voting securities to Penelope Susan Curtis, Vernon Frederick Curtis, and Brian Mayo-Smith jointly on 21 December 2006.

6
  • The allotment of 1 844 996 voting securities to K One W One Limited on 30 August 2007.

7
  • The allotment of 3 472 582 voting securities to TMT Ventures Limited on 30 August 2007.

8
  • The allotment of 1 736 291 voting securities to VIF/TMT Ventures Limited on 30 August 2007.

9
  • The allotment of 587 213 voting securities to K One W One Limited on 13 September 2007.

10
  • The allotment of 587 213 voting securities to TMT Ventures Limited on 13 September 2007.

11
  • The allotment of 293 606 voting securities to VIF/TMT Ventures Limited on 13 September 2007.

Dated at Auckland this 6th day of April 2009.

The Common Seal of the Takeovers Panel was affixed in the presence of:

[Seal]

Colin Glenn Giffney,
Chairperson.


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:

  • the conditions to the exemptions appropriately mirror the shareholder approval mechanisms contained in the Code because they require certain information in relation to the increases in voting control to be provided to shareholders and allow shareholders other than the allottees and associates of the allottees the opportunity to vote on whether to retrospectively approve the increases:

  • the apparent breaches of the Code were inadvertent.


Issued under the authority of the Acts and Regulations Publication Act 1989.

Date of notification in Gazette: 9 April 2009.


Contents

  • 1General

  • 2Status of reprints

  • 3How reprints are prepared

  • 4Changes made under section 17C of the Acts and Regulations Publication Act 1989

  • 5List of amendments incorporated in this reprint (most recent first)


Notes
1 General
  • This is a reprint of the Takeovers Code (Phitek Systems Limited) Exemption Notice 2009. The reprint incorporates all the amendments to the notice as at 1 June 2009, as specified in the list of amendments at the end of these notes.

    Relevant provisions of any amending enactments that have yet to come into force or that contain relevant transitional or savings provisions are also included, after the principal enactment, in chronological order.

2 Status of reprints
  • Under section 16D of the Acts and Regulations Publication Act 1989, reprints are presumed to correctly state, as at the date of the reprint, the law enacted by the principal enactment and by the amendments to that enactment. This presumption applies even though editorial changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in the reprint.

    This presumption may be rebutted by producing the official volumes of statutes or statutory regulations in which the principal enactment and its amendments are contained.

3 How reprints are prepared
  • A number of editorial conventions are followed in the preparation of reprints. For example, the enacting words are not included in Acts, and provisions that are repealed or revoked are omitted. For a detailed list of the editorial conventions, see http://www.pco.parliament.govt.nz/legislation/reprints.shtml or Part 8 of the Tables of Acts and Ordinances and Statutory Regulations, and Deemed Regulations in Force.

4 Changes made under section 17C of the Acts and Regulations Publication Act 1989
  • Section 17C of the Acts and Regulations Publication Act 1989 authorises the making of editorial changes in a reprint as set out in sections 17D and 17E of that Act so that, to the extent permitted, the format and style of the reprinted enactment is consistent with current legislative drafting practice. Changes that would alter the effect of the legislation are not permitted.

    A new format of legislation was introduced on 1 January 2000. Changes to legislative drafting style have also been made since 1997, and are ongoing. To the extent permitted by section 17C of the Acts and Regulations Publication Act 1989, all legislation reprinted after 1 January 2000 is in the new format for legislation and reflects current drafting practice at the time of the reprint.

    In outline, the editorial changes made in reprints under the authority of section 17C of the Acts and Regulations Publication Act 1989 are set out below, and they have been applied, where relevant, in the preparation of this reprint:

    • omission of unnecessary referential words (such as of this section and of this Act)

    • typeface and type size (Times Roman, generally in 11.5 point)

    • layout of provisions, including:

      • indentation

      • position of section headings (eg, the number and heading now appear above the section)

    • format of definitions (eg, the defined term now appears in bold type, without quotation marks)

    • format of dates (eg, a date formerly expressed as the 1st day of January 1999 is now expressed as 1 January 1999)

    • position of the date of assent (it now appears on the front page of each Act)

    • punctuation (eg, colons are not used after definitions)

    • Parts numbered with roman numerals are replaced with arabic numerals, and all cross-references are changed accordingly

    • case and appearance of letters and words, including:

      • format of headings (eg, headings where each word formerly appeared with an initial capital letter followed by small capital letters are amended so that the heading appears in bold, with only the first word (and any proper nouns) appearing with an initial capital letter)

      • small capital letters in section and subsection references are now capital letters

    • schedules are renumbered (eg, Schedule 1 replaces First Schedule), and all cross-references are changed accordingly

    • running heads (the information that appears at the top of each page)

    • format of two-column schedules of consequential amendments, and schedules of repeals (eg, they are rearranged into alphabetical order, rather than chronological).

5 List of amendments incorporated in this reprint (most recent first)
  • Takeovers Code (Phitek Systems Limited) Exemption Notice 2009 (SR 2009/67): clause 3