Takeovers Code (Southern Travel Holdings Limited) Exemption Notice 2009

  • expired
  • Takeovers Code (Southern Travel Holdings Limited) Exemption Notice 2009: expired, on 1 February 2010, by clause 3.

Reprint
as at 1 February 2010

Crest

Takeovers Code (Southern Travel Holdings Limited) Exemption Notice 2009

(SR 2009/324)

  • Takeovers Code (Southern Travel Holdings Limited) Exemption Notice 2009: expired, on 1 February 2010, 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 (Southern Travel Holdings Limited) Exemption Notice 2009.

2 Application
  • This notice applies to acts or omissions occurring on or after 1 October 2009.

3 Expiry
  • This notice expires on the close of 31 January 2010.

4 Interpretation
  • (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.

    (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 Exemption from rule 7(d) of Code in respect of rights issue
  • 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.

6 Exemption from rule 16(b) of Code in respect of notice of meeting
  • STH is exempted from rule 16(b) of the Code in respect of the notice of meeting.

7 Condition of exemptions in clauses 5 and 6 relating to 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.

8 Further conditions of exemptions in clauses 5 and 6 relating to notice of meeting
  • 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.

9 Application of exemption in clause 5
  • 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.


Statement of reasons

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.


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

Date of notification in Gazette: 29 October 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 (Southern Travel Holdings Limited) Exemption Notice 2009. The reprint incorporates all the amendments to the notice as at 1 February 2010, 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/editorial-conventions/ or Part 8 of the Tables of New Zealand 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 (Southern Travel Holdings Limited) Exemption Notice 2009 (SR 2009/324): clause 3