New Zealand Legislation: Regulations
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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).
This notice is the Takeovers Code (Southern Travel Holdings Limited) Exemption Notice 2009.
This notice applies to acts or omissions occurring on or after 1 October 2009.
This notice expires on the close of 31 January 2010.
(1) In this notice, unless the context otherwise requires,—
Act means the Takeovers Act 1993
Code means the Takeovers Code under the Act
meeting means the meeting of shareholders of STH that is to be held on or about 12 November 2009 to consider whether to approve, for the purposes of rule 7(d) of the Code, the allotment of voting securities to RWL under the rights issue and the underwriting agreement
notice of meeting means the notice of meeting to be sent to the shareholders of STH in respect of the meeting
rights issue means the rights issue to be conducted by STH under a prospectus to be registered on or about 16 October 2009
RWL means Rodney Walshe Limited
STH means Southern Travel Holdings Limited
underwriting agreement means the underwriting agreement to be entered into between STH and RWL dated on or about 16 October 2009
voting security means a voting security in STH.
(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 STH.
RWL is exempted from rule 7(d) of the Code in respect of any increase in its voting control as a result of the allotment of voting securities to it under the rights issue and the underwriting agreement to the extent that rule 7(d) requires the notice of meeting to comply with rule 16(b) of the Code.
STH is exempted from rule 16(b) of the Code in respect of the notice of meeting.
(1) The exemptions in clauses 5 and 6 are subject to the condition that the notice of meeting must contain, or be accompanied by, the following particulars:
(a) the maximum number of voting securities that could be allotted to RWL under the rights issue and the underwriting agreement; and
(b) the maximum number of voting securities that could be allotted to RWL under the rights issue and the underwriting agreement, expressed as a percentage of the total voting securities on issue after the allotment of voting securities under the rights issue and the underwriting agreement; and
(c) the maximum percentage of the total voting securities on issue that could be held or controlled by RWL after the allotment of voting securities under the rights issue and the underwriting agreement; and
(d) the maximum percentage of the total voting securities on issue that could be held or controlled by RWL and its associates after the allotment of voting securities under the rights issue and the underwriting agreement.
(2) The numbers and percentages referred to in subclause (1) must be calculated on the basis that there is no change to the total number of voting securities on issue between the date of the notice of meeting and the expiry of this notice other than as a result of the rights issue and the underwriting agreement.
The exemptions in clauses 5 and 6 are subject to the further conditions that—
(a) the notice of meeting must also contain, or be accompanied by,—
(i) full particulars of the rights issue and a summary of the underwriting agreement:
(ii) a summary of the terms and conditions of the exemptions granted to STH and RWL by this notice; and
(b) the notice of meeting must display, in a prominent position, a disclaimer stating that by exempting RWL from rule 7(d) of the Code, and STH from rule 16(b) of the Code, the Takeovers Panel is—
(i) neither endorsing nor supporting the accuracy or reliability of the contents of the notice of meeting; and
(ii) not implying that it has a view on the merits of the rights issue or the underwriting agreement; and
(c) the form of the notice of meeting must be approved by the Takeovers Panel.
The exemption in clause 5 does not apply if,—
(a) immediately after the allotment of voting securities under the rights issue and the underwriting agreement, the total percentage of voting securities held or controlled by RWL is greater than the maximum percentage disclosed in the notice of meeting under clause 7(1)(c); or
(b) there is an increase in RWL's voting control before the allotment of voting securities under the rights issue and the underwriting agreement, except as a result of the rights issue and the underwriting agreement; or
(c) there is a change in control of RWL before the allotment of voting securities under the rights issue and the underwriting agreement.
Dated at Auckland this 21st day of October 2009.
The Common Seal of the Takeovers Panel was affixed in the presence of:
[Seal]
D O Jones,
Chairperson.
This notice applies to acts or omissions occurring on or after 1 October 2009 and expires on 31 January 2010.
The Takeovers Panel (the Panel) has granted exemptions in respect of a proposed rights issue to be conducted by Southern Travel Holdings Limited (STH), which is to be fully underwritten by Rodney Walshe Limited (RWL).
RWL and its associates hold or control shares in STH representing 25.66% of the total STH voting securities on issue. STH proposes to raise capital by way of a pro-rata non-renounceable rights issue. The rights issue is to be fully underwritten by RWL. If the rights issue is undersubscribed and RWL is called upon to take up the shortfall under its underwriting agreement, the resulting allotment to RWL will increase its voting control in STH, when taken with its associates, above 25.66%. This will trigger rule 6 of the Takeovers Code (the Code).
Shareholder approval under rule 7(d) of the Code for such an allotment is to be sought at STH’s annual general meeting, to be held on or about 12 November 2009. Rule 7(d) requires that the notice of meeting to be sent to STH shareholders (the notice of meeting) disclose the information specified by rule 16 of the Code. The exact numbers and percentages required to be disclosed by rule 16(b) will not be known at the time that the notice of meeting is prepared, owing to uncertainties in the level of shareholder participation in the rights issue. However, potential maximum numbers and percentages will be known.
The Panel has granted the following exemptions:
an exemption for RWL from rule 7(d) of the Code in respect of any increase in its voting control in STH resulting from the allotment of voting securities to RWL under the rights issue and underwriting agreement to the extent that that rule requires the notice of meeting to contain the information specified by rule 16(b); and
an exemption for STH from rule 16(b) of the Code in respect of the notice of meeting.
The Panel has granted these exemptions on conditions that require disclosure of the potential maximum number and percentage of voting securities that could be acquired instead of the exact number and percentages required by rule 16(b).
The Panel considers that it is appropriate and consistent with the objectives of the Code to grant the exemptions because—
it is impossible for the actual number of voting securities to be allotted and the relevant percentages required by rule 16(b) of the Code to be stated in the notice of meeting, as these numbers and percentages are dependent on the extent to which shareholders of STH participate in the rights issue; and
all non-associated shareholders will have an opportunity to vote on the potential allotment of voting securities to RWL under the various arrangements; and
if the non-associated shareholders approve the potential maximum allotment of voting securities to RWL, then, by implication, the shareholders also approve the allotment of a lesser number of voting securities to RWL; and
the rights issue will be conducted under registered prospectus. The ability for a shareholder to subscribe for securities and thus provide adequate funding to ensure a company's growth is an acknowledged method of raising capital in New Zealand, and the Panel should facilitate these arrangements by granting appropriate exemptions where necessary.
Date of notification in Gazette: 29 October 2009.
This notice is administered by the Takeovers Panel.
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