Takeovers Code (Delegat’s Wine Estate Limited) Exemption Notice 2010

  • expired
  • Takeovers Code (Delegat’s Wine Estate Limited) Exemption Notice 2010: expired, on 1 July 2011, by clause 3.

Reprint
as at 1 July 2011

Coat of Arms of New Zealand

Takeovers Code (Delegat’s Wine Estate Limited) Exemption Notice 2010

(SR 2010/419)

  • Takeovers Code (Delegat’s Wine Estate Limited) Exemption Notice 2010: expired, on 1 July 2011, 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 (Delegat’s Wine Estate Limited) Exemption Notice 2010.

2 Application
  • This notice applies to acts or omissions occurring on or after 8 November 2010.

3 Expiry
  • This notice expires on the close of 30 June 2011.

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

    acquisition notice means the acquisition notice that is required by rule 54 of the Code for a compulsory sale

    Act means the Takeovers Act 1993

    cash consideration means the cash consideration offered to shareholders in Oyster Bay under the offer

    Code means the Takeovers Code under the Act

    compulsory sale means a compulsory sale that occurs as a result of the offer

    Delegat’s means Delegat’s Wine Estate Limited

    Delegat's Group means Delegat’s Group Limited

    foreign shareholder means a person who, at the time that the cash consideration or the share scrip consideration is paid, is registered as a shareholder in Oyster Bay and whose address on Oyster Bay’s share register is not in New Zealand or Australia

    offer means the full takeover offer (involving the offer of either cash consideration or share scrip consideration) to be made by Delegat’s for all of the equity securities in Oyster Bay that Delegat’s does not already hold

    Oyster Bay means Oyster Bay Marlborough Vineyards Limited

    share scrip consideration means the ordinary fully paid shares in Delegat's Group offered to shareholders in Oyster Bay under the offer.

    (2) 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 20 of Code
  • Delegat’s is exempted from rule 20 of the Code to the extent that the share scrip consideration relates to foreign shareholders.

6 Conditions of exemption in clause 5
  • The exemption in clause 5 is subject to the conditions that—

    • (a) Delegat’s appoints a person to act as nominee for the offer who—

      • (i) is designated as an NZX Trading and Advising Firm by NZX Limited; and

      • (ii) is not, to the best of Delegat’s knowledge, under investigation by the Securities Commission or NZX Limited; and

    • (b) in a manner consistent with the terms of the offer, Delegat’s procures the allotment to the nominee of the shares in Delegat's Group that would otherwise be allotted to foreign shareholders who accept the share scrip consideration under the offer; and

    • (c) Delegat’s uses its best endeavours to ensure that the nominee, as soon as is reasonably practicable and in a manner consistent with the terms of the offer relating to payment of consideration, sells the shares in Delegat's Group that are allotted to the nominee under paragraph (b); and

    • (d) Delegat’s uses its best endeavours to ensure that the nominee, as soon as is reasonably practicable and in a manner consistent with the terms of the offer relating to payment of consideration, pays to each foreign shareholder the relevant share of the proceeds from the sale of the shares in Delegat's Group under paragraph (c), net of any applicable brokerage costs and taxes, to which that shareholder is entitled; and

    • (e) Delegat’s indemnifies each foreign shareholder against any costs or losses suffered by that shareholder as a result of a failure by the nominee to perform its obligations in a proper manner.

7 Exemption from rule 56A(2) of Code
  • Delegat’s is exempted from rule 56A(2) of the Code to the extent that Delegat’s is required to provide the share scrip consideration to foreign shareholders under a compulsory sale.

8 Exemption from rule 56A(3) of Code
  • Delegat’s is exempted from rule 56A(3) of the Code to the extent that Delegat’s is required to provide the share scrip consideration to foreign shareholders as default consideration under a compulsory sale.

9 Conditions of exemptions in clauses 7 and 8
  • The exemptions in clauses 7 and 8 are subject to the conditions that—

    • (a) Delegat’s appoints a person to act as nominee for a compulsory sale who—

      • (i) is designated as an NZX Trading and Advising Firm by NZX Limited; and

      • (ii) is not, to the best of Delegat’s knowledge, under investigation by the Securities Commission or NZX Limited; and

    • (b) in a manner consistent with the terms of the acquisition notice, Delegat’s procures the allotment to the nominee of the shares in Delegat's Group that would otherwise be allotted to outstanding security holders who are foreign shareholders who—

      • (i) nominate the share scrip consideration under the compulsory sale; or

      • (ii) would receive share scrip consideration as default consideration; and

    • (c) Delegat’s uses its best endeavours to ensure that the nominee, as soon as is reasonably practicable and in a manner consistent with the terms of the acquisition notice relating to payment of consideration, sells the shares in Delegat's Group that are allotted to the nominee under paragraph (b); and

    • (d) Delegat’s uses its best endeavours to ensure that the nominee, as soon as is reasonably practicable and in a manner consistent with the terms of the acquisition notice relating to payment of consideration, pays to each outstanding security holder who is a foreign shareholder the relevant share of the proceeds from the sale of the shares in Delegat's Group under paragraph (c), net of any applicable brokerage costs and taxes, to which that shareholder is entitled; and

    • (e) Delegat’s indemnifies each outstanding security holder who is a foreign shareholder against any costs or losses suffered by that shareholder as a result of a failure by the nominee to perform its obligations in a proper manner.

Dated at Auckland this 10th day of November 2010.

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

[Seal]

Colin Giffney,
Deputy Chairperson.


Statement of reasons

This notice applies to acts or omissions occurring on or after 8 November 2010 and expires on the close of 30 June 2011.

Delegat’s Wine Estate Limited (Delegat’s) is proposing to make an offer for the equity securities in Oyster Bay Marlborough Vineyards Limited (Oyster Bay) that it does not already hold (the offer). As consideration for the securities in Oyster Bay, Delegat’s proposes to offer Oyster Bay shareholders a choice of cash or Delegat’s Group Limited (Delegat's Group) shares (the share scrip consideration).

The Takeovers Panel has exempted Delegat’s, subject to conditions, from—

  • (a) rule 20 of the Takeovers Code (Code) to the extent that the share scrip consideration relates to shareholders that reside in any jurisdiction other than New Zealand or Australia (foreign shareholders); and

  • (b) rule 56A(2) of the Code to the extent that Delegat’s is required to provide share scrip consideration to foreign shareholders under a compulsory sale that results from the offer; and

  • (c) from rule 56A(3) of the Code to the extent that Delegat’s is required to provide share scrip consideration to foreign shareholders as default consideration under a compulsory sale.

The conditions of the exemptions provide that shares in Delegat's Group that would otherwise be allotted to foreign shareholders under the offer or under a compulsory sale will be allotted to a person appointed by Delegat’s to act as nominee for the offer or compulsory sale. Delegat's is required to ensure that that nominee, as soon as is reasonably practicable and in a manner consistent with the terms of the offer or the acquisition notice relating to payment of consideration, sells the shares in Delegat's Group and pays the net proceeds arising from the sale to the relevant foreign shareholders.

The Panel considers that the exemptions are appropriate and consistent with the objectives of the Code because—

  • it is impractical and unreasonably expensive in the context of the offer for Delegat’s to make an offer to all shareholders on the Oyster Bay share register on the same terms, as required by rule 20 of the Code, because of the costs of complying with the securities laws that apply in the various jurisdictions; and

  • the conditions of the exemptions require that foreign shareholders that accept the share scrip consideration under the offer will, in effect, receive equivalent cash consideration and accordingly are not disadvantaged by not being able to accept the share scrip consideration under the offer; and

  • the exemptions are consistent with the principle of providing equal consideration to all shareholders of the same class; and

  • it is important for competition for the control of Code companies that offerors are not precluded from offering securities as consideration in takeover transactions; and

  • the exemptions from rule 56A(2) and (3) of the Code are consequential to the exemption from rule 20 of the Code.


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

Date of notification in Gazette: 18 November 2010.


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 (Delegat’s Wine Estate Limited) Exemption Notice 2010. The reprint incorporates all the amendments to the notice as at 1 July 2011, as specified in the list of amendments at the end of these notes.

    Relevant provisions of any amending enactments that contain transitional, savings, or application provisions that cannot be compiled in the reprint are also included, after the principal enactment, in chronological order. For more information, see http://www.pco.parliament.govt.nz/reprints/ .

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 (Delegat’s Wine Estate Limited) Exemption Notice 2010 (SR 2010/419): clause 3