Dated at Auckland this 23rd day of November 2009.
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 6 July 2009 and expires on 31 December 2009.
Just Water International Limited (Just Water) is a code company within the meaning of the Takeovers Code (the Code) as it has securities conferring voting rights listed on the NZX Alternative Market. Anthony Edwin Falkenstein holds or controls over 50% of the voting rights in Just Water.
Mr Falkenstein is a trustee of the Falkenstein University of Auckland Business School Charitable Trust (the University of Auckland Trust), which controls 2 000 000 voting securities in Just Water. The Just Water shares are held by the board of the University of Auckland Trust, which was incorporated under the Charitable Trusts Act 1957 on 7 November 2005 (the University of Auckland Trust Board).
On 6 July 2009, Gregory Paul Whittred was appointed as a trustee of the University of Auckland Trust by virtue of his appointment as the Dean of The University of Auckland Business School. Upon his appointment as a trustee of the University of Auckland Trust, Professor Whittred became a member of the University of Auckland Trust Board and joined Mr Falkenstein in the controlling of voting rights in Just Water.
The Takeovers Panel (the Panel) has granted a retrospective exemption from rule 6(1) of the Code to Professor Whittred in respect of the increase in his control of voting rights in Just Water that resulted from his appointment as a trustee of the University of Auckland Trust.
The Panel considers that it is appropriate and consistent with the objectives of the Code to grant the exemption because—
the appointment of Professor Whittred as trustee of the University of Auckland Trust relates to a change of trustees of a charitable trust in accordance with its trust deed, and the Code is not intended to inhibit the governance arrangements of charitable trusts where those arrangements have no real effect on the shareholders of a code company; and
the shareholders of Just Water were not disadvantaged in not having an opportunity to vote on Professor Whittred's appointment as trustee of the University of Auckland Trust as the change had no real effect on those shareholders; and
the exemption avoids unnecessary compliance costs that would be incurred if it were not granted; and
any breach of the Code appears to have been inadvertent.