Dated at Auckland this 4th day of February 2011.
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 28 January 2011 and expires on 8 February 2011.
Durante Holdings Pty Limited (Durante) has made a partial offer for 5% of the ordinary voting shares in Michael Hill International Limited (Michael Hill) that it does not already hold. Durante’s offer was conditional upon Durante receiving acceptances by the closing date of the offer on 12 February 2011 for that number of Michael Hill shares that would give Durante ownership of 50.01% of the voting rights in Michael Hill (the minimum acceptance condition). The offer specified that it became unconditional on 11 February 2011 (the unconditional date).
After Durante had made the offer, it became apparent that the unconditional date and the minimum acceptance condition were inconsistent because the minimum acceptance condition was expressed to be effective until the closing date of the offer, which was 1 day later than the unconditional date.
On 28 January 2011, Durante extended the closing date of the offer to 28 February 2011. To align the unconditional date and the minimum acceptance condition, the unconditional date was also extended to 28 February. In the absence of an exemption, Durante could not extend the unconditional date to 28 February due to the proviso in rule 27(e) of the Takeovers Code (the Code), which prevents an offeror from extending the unconditional date by more than the period of time by which the offer period is extended.
The Takeovers Panel has granted a retrospective exemption for Durante from rule 27 of the Code in order to allow Durante to vary the offer in order to align the closing date of the offer and the unconditional date. The exemption is subject to the condition that Durante's variation of the offer is to do 1 or more of 5 specified actions.
The Takeovers Panel considers that it is appropriate and consistent with the objectives of the Code to grant the exemption because—
the technical error contained in the offer document was inadvertent and the mistake was only discovered after the offer had been made; and
no shareholder or other person will be adversely affected or disadvantaged by the exemption; and
the exemption maintains a proper relationship between the costs of complying with the Code and the benefits arising from compliance.