Dated at Wellington this 14th day of July 2009.
The Common Seal of the Takeovers Panel was affixed in the presence of:
[Seal]
Murdo Beattie,
Member.
Explanatory note
This note is not part of the notice, but is intended to indicate its general effect.
This notice, except clauses 5 and 6, applies to acts or omissions occurring on or after 9 June 2004. Clauses 5 and 6 (which relate to exemptions granted to Anthony Edwin Falkenstein, Desmond George Graydon, and the board of the Falkenstein AUT Charitable Trust (the AUT Trust Board) in respect of proposed acquisitions of voting securities in Just Water International Limited (Just Water)) apply to acts or omissions occurring on or after 16 July 2009. The notice expires on 16 July 2014.
The Takeovers Panel (the Panel) has granted exemptions for—
Desmond George Graydon, as one of the trustees constituting the AUT Trust Board (incorporated under the Charitable Trusts Act 1957 in respect of the Falkenstein AUT Charitable Trust), and the AUT Trust Board from rule 6(1) of the Takeovers Code (the Code) in respect of any increase in voting rights in Just Water that are held or controlled (voting control) as a result of the acquisition of voting securities by the AUT Trust Board—
from Anthony Edwin Falkenstein and Ian Donald Malcolm in their capacity as trustees of The Edwin Trust; and
from Heather Jeanette Falkenstein and Ian Donald Malcolm in their capacity as trustees of The Jeanette Trust:
Anthony Edwin Falkenstein, as one of the trustees constituting the AUT Trust Board, from rule 6(1) of the Code in respect of any increase in his voting control resulting from the acquisition of voting securities by the AUT Trust Board from Heather Jeanette Falkenstein and Ian Donald Malcolm in their capacity as trustees of The Jeanette Trust:
Ian Donald Malcolm, from rule 6(1) of the Code in respect of any increase in his voting control resulting from allotments of voting securities to him on 9 June 2004, 28 November 2005, 29 November 2006, and 6 December 2007:
Ian Donald Malcolm, Pamela Joy Malcolm, and Barbara Kay Astill (the former MELT trustees) from rule 6(1) of the Code in respect of any increase in their voting control resulting from the allotment of voting securities to them on 2 March 2006 in their capacity as the then trustees of the Malcolm Education and Lifestyle Trust (the MELT Trust):
Melt Investments Limited, from rule 6(1) of the Code in respect of any increase in its voting control resulting from the acquisition of voting securities, in its capacity as the trustee of the MELT Trust, from the former MELT trustees on 28 September 2007:
Christopher Roy Saunders, from rule 6(1) of the Code in respect of any increase in his voting control resulting from the acquisition of voting securities, in his capacity as a trustee of the Falkenstein Onehunga Business School Charitable Trust (the Onehunga Trust), from the trustees of The Edwin Trust on 21 October 2005:
Barry Harrison Spicer, from rule 6(1) of the Code in respect of any increase in his voting control resulting from the acquisition of voting securities, in his capacity as a trustee of the Falkenstein University of Auckland Business School Charitable Trust (the University of Auckland Trust), from the trustees of The Edwin Trust on 21 October 2005:
Andrew Peter Codling, from rule 6(1) of the Code in respect of any increase in his voting control resulting from the acquisition of securities, in his capacity as a trustee of the Falkenstein Unitec Business School Charitable Trust (the Unitec Trust), from the trustees of The Edwin Trust on 21 October 2005:
the board of the Falkenstein Onehunga Business School Charitable Trust (the Onehunga Trust Board) from rule 6(1) of the Code in respect of any increase in its voting control as a result of the incorporation under the Charitable Trusts Act 1957 of the trustees of the Onehunga Trust on 7 November 2005:
the board of the Falkenstein University of Auckland Business School Charitable Trust (the University of Auckland Trust Board) from rule 6(1) of the Code in respect of any increase in its voting control as a result of the incorporation under the Charitable Trusts Act 1957 of the trustees of the University of Auckland Trust on 7 November 2005:
the board of the Falkenstein Unitec Business School Charitable Trust (the Unitec Trust Board) from rule 6(1) of the Code in respect of any increase in its voting control as a result of the incorporation under the Charitable Trusts Act 1957 of the trustess of the Unitec Trust on 16 November 2005.
The Panel considers that it is appropriate and consistent with the objectives of the Code to grant the exemptions to Anthony Edwin Falkenstein, Desmond George Graydon, and the AUT Trust Board because, in each case,—
the increase in the holding or controlling of voting rights as a result of the proposed transactions relate to the establishment of a charitable trust, and the Code is not intended to inhibit financial support given to the promotion of charitable purposes:
the transaction will involve a very small percentage of the voting rights in Just Water and will have no real effect on the other shareholders:
the AUT Trust Board is required to be registered as a charitable entity in accordance with the Charities Act 2005.
The Panel considers that it is appropriate and consistent with the objectives of the Code to grant the exemption to Ian Donald Malcolm because—
the shareholders of Just Water have the opportunity to retrospectively approve or decline to approve Ian Donald Malcolm's increase in voting control resulting from the allotments:
under the terms of an undertaking that is required to be given by Ian Donald Malcolm under section 31T of the Takeovers Act 1993 as a condition of the exemption, he must dispose of the voting securities if the shareholders decline to approve his increase in voting control resulting from the allotments.
The Panel considers that it is appropriate and consistent with the objectives of the Code to grant the exemption to the former MELT trustees because—
the shareholders of Just Water have the opportunity to retrospectively approve or decline to approve the former MELT trustees' increase in voting control resulting from the allotment:
the former MELT trustees must procure MELT Investments Limited (the current trustee of the MELT Trust) to dispose of the relevant voting securities should the shareholders decline to approve the increase in voting control resulting from the allotment.
The Panel considers that it is appropriate and consistent with the objectives of the Code to grant the exemption to Melt Investments Limited because—
although the acquisition of the voting securities from the former MELT trustees may have breached the Code, it did not result in a change in the effective control of voting rights:
the transaction was a private matter in relation to the reorganisation of the MELT Trust, which is a family trust:
the shareholders of Just Water are not disadvantaged by not having the opportunity to vote on the transaction because the transaction had no real effect on those shareholders:
the apparent breach of the Code was inadvertent.
The Panel considers that it is appropriate and consistent with the objectives of the Code to grant the exemptions to Christopher Roy Saunders, Barry Harrison Spicer, Andrew Peter Codling, the Onehunga Trust Board, the University of Auckland Trust Board, and the Unitec Trust Board because, in each case,—
the increase in the holding or controlling of voting rights related to the establishment of a charitable trust and the Code is not intended to inhibit the financial support given to the promotion of charitable purposes:
the transaction involved a very small percentage of voting rights in Just Water and had no real effect on the other shareholders:
the trustee of the trust is registered as a charitable entity in accordance with the Charities Act 2005:
any breach of the Code that may have occurred as a result of the transaction appears to have been inadvertent.