“custodian means a person who, in the ordinary course of business, holds securities directly or indirectly on behalf of the beneficial owner of the securities”.

• “(d) in relation to a body corporate or unincorporate not referred to in paragraphs (a) to (c), means a person who occupies a position in the body corporate or unincorporate that is comparable with that of a director of a company; and”.

“entitled voter has the meaning set out in rule 10(1A)”.

• “(a) means any interest in or right to (whether carrying voting rights or not)—

  • “(i) a share in a company or other body corporate; or

  • “(ii) the share capital of a company or other body corporate; and”.

“offeree means,—

• “(a) before an offer is made, a person who holds securities in a target company that has received a takeover notice relating to those securities; and

• “(b) after an offer is made, a person to whom an offer is made”.

“offeror means a person who has made an offer or a person who has sent a takeover notice”.

“specified holder has the meaning set out in rule 14A

“specified person has the meaning set out in rule 14A”.

“target security has the meaning set out in rule 14A

“voting period has the meaning set out in rule 10(1A)”.

“voting right means a currently exercisable right to cast a vote at meetings of shareholders of a company or security holders of another body corporate, not being a right to vote that is exercisable only in 1 or more of the following circumstances:

• “(a) during a period in which a payment or distribution (or part of a payment or distribution) in respect of the security that confers the voting right is in arrears or some other default exists:

• “(b) on a proposal that affects rights attached to the security that confers the voting right:

• “(c) on a proposal to put the company or body corporate into liquidation or voluntary administration:

• “(d) on a proposal for the disposal of the whole, or a material part, of the property, business, and undertaking of the company or body corporate:

• “(e) during the liquidation or voluntary administration of the company or body corporate:

• “(f) in respect of a special, immaterial, or remote matter that is inconsequential to control of the company or body corporate”.

• “(4) A requirement in this code for an offeror (including, for the purposes of this rule, a dominant owner under Part 7 of this code) to send or pay or provide consideration is fulfilled if the offeror—

  • “(a) vests the consideration in the offeree (for example, by electronically vesting securities or electronically transferring money); and

  • “(b) sends or provides written notice to the offeree that this has been done.”

“4A Provisions affecting application of amendments to this code

• Schedule 1AA contains application, savings, and transitional provisions relating to amendments made to this code after 1 June 2013 that affect other provisions of the code (see rule 66).”

• “(6) For the purposes of this rule and this code, the specified percentage of the voting securities of each class under offer must be calculated as follows:

  number of voting securities of the particular class sought by offeror		×	100		=	the specified percentage
  number of voting securities of that class not already held or controlled by offeror

• “(7) If the offeror already holds or controls voting securities of a class of voting securities included in the offer, and if the number of voting securities in that class not already held or controlled by the offeror is increased or decreased during the period that commences with the sending of the takeover notice and ends with the close of the offer period, the specified percentage is adjusted to the extent required to ensure that the maximum aggregate percentage of voting securities in that class that the offeror could hold or control following completion of the offer is the same as that which it could have held or controlled had the increase or decrease not occurred.”

• “(ii) the offer must be accompanied by a separate voting document that provides for entitled voters to approve or object to the offer conferring on the offeror the percentage of voting rights that the offeror would hold or control in the target company after successful completion of the offer:

• “(iii) the offer and the voting document must specify the voting period:

• “(iv) approval under this rule is obtained if the entitled voters who approve hold more voting rights in the target company than are held by entitled voters who object:

• “(v) only entitled voters may vote:

• “(vi) for an approval or objection to be valid, the completed voting document must be received by the target company or its agent before the end of the voting period.”

• “(1A) For the purposes of this rule and this code,—

  “entitled voters are—

  • “(a) those persons recorded on the target company's securities register (as at the end of the voting period) as holders of voting securities to which the offer relates; but

  • “(b) not the offeror or its associates

  “voting period is a period that commences with the date of the offer and ends with a date that is—

  • “(a) no later than 7 days before the date first specified in the offer (under rule 24(2)) as the end of the offer period; and

  • “(b) at least 14 days after the date on which the offer document is sent in accordance with rule 43B.”

“Scaling excess acceptances when target securities held on behalf of another

“14A Interpretation of rules 14A to 14E

• For the purposes of this rule and rules 14B to 14E,—

  “specified holder means an offeree under a partial offer who holds target securities on behalf of more than 1 specified person, regardless of—

  • “(a) whether the holdings are direct or indirect:

  • “(b) whether the specified holder is a custodian or not:

  • “(c) the particular arrangements between the specified holder and specified persons

  “specified person means a person on whose behalf a specified holder holds target securities

  “target security means a voting security in the target company.

“14B Specified holders must provide certificate

• Specified holders must, by the close of the last day of the offer period, provide a certificate that complies with rule 14D to—

  • “(a) the offeror; and

  • “(b) the person who administers the target company's share register.

“14C Acceptance by specified holder who has not provided certificate is invalid

• An acceptance under a partial offer by a specified holder who has not provided a certificate in accordance with rule 14B is invalid.

“14D Certificate requirements

• The certificate that a specified holder must provide in accordance with rule 14B must—

  • “(a) state the date of the certificate; and

  • “(b) include a statement that the offeree holds target securities as a specified holder on behalf of specified persons; and

  • “(c) state the total number and class of target securities that are held by the offeree on behalf of specified persons; and

  • “(d) state the number of specified persons on whose behalf the offeree holds those target securities; and

  • “(e) identify as Pool A—

    • “(i) the number of specified persons on behalf of whom the specified holder has not accepted the offer, along with the number and class of target securities held by the specified holder on behalf of each such specified person; and

    • “(ii) the number of specified persons on behalf of whom the specified holder has accepted the offer for the specified percentage, or any smaller percentage, of target securities held by the specified holder on behalf of each such specified person, along with the number and class of target securities that are held by the specified holder on behalf of each such specified person and to which the acceptance relates; and

  • “(f) identify as Pool B the number of specified persons who have accepted the offer in relation to more than the specified percentage of target securities that are held by the specified holder on behalf of each such specified person, along with the number and class of target securities that are held by the specified holder on behalf of each such specified person and to which the acceptance relates; and

  • “(g) state the total number of target securities and acceptances in each of Pool A and Pool B.

“14E Offeror's obligations on receiving certificate

• An offeror who receives a certificate that complies with rule 14D must,—

  • “(a) in relation to Pool A, take up the target securities from the specified holder (not from the specified person); and

  • “(b) in relation to Pool B, take up the target securities from the specified holder (not from the specified person) as if each specified person in pool B were an offeree in relation to which the offer was accepted, in accordance with rules 12 and 13.”

• “(a) the identity of the following:

  • “(i) the person acquiring the voting securities; and

  • “(ii) (if different from the person described in subparagraph (i)) any person who will become a controller of an increased percentage of voting securities in the code company as a result of the acquisition; and

  • “(iii) the person disposing of the voting securities; and”.

• “(b) particulars of the voting securities to be allotted, including—

  • “(i) the particulars required by Schedule 4; or

  • “(ii) if the particulars required by Schedule 4 are not ascertainable, the particulars required by Schedule 5 (note that rule 19B applies); and”.

“Extra requirements where particulars required by Schedule 5 given (in accordance with rule 16(b)(ii))

“19B Extra requirements where particulars required by Schedule 5 given (in accordance with rule 16(b)(ii))

• “(1) This rule applies if—

  • “(a) the particulars required by Schedule 5 were contained in, or accompanied, a notice of meeting (in accordance with rule 16(b)(ii)); and

  • “(b) shareholders approved the allotment or allotments particularised in that notice of meeting to the allottee (the approved allotment package).

  “Annual report requirements

  “(2) If allotments under the approved allotment package are to occur over an allotment period that is more than 12 months long, the code company must include in a prominent position in every annual report issued during the allotment period, and in the first annual report issued after the end of the allotment period,—

  • “(a) a summary of the terms of the approved allotment package; and

  • “(b) particulars, as at the end of the financial year to which the annual report relates, of—

    • “(i) the number of voting securities already allotted to the allottee under the approved allotment package; and

    • “(ii) the number of voting securities on issue that are held or controlled by the allottee, and the percentage of all voting securities on issue that that number represents; and

    • “(iii) the aggregate of the percentages of all voting securities that are held or controlled by the allottee and the allottee’s associates; and

    • “(iv) the maximum percentage of all voting securities that could be held or controlled by the allottee on completion of all the allotments; and

    • “(v) the maximum aggregate of the percentages of all voting securities that could be held or controlled by the allottee and the allottee's associates on completion of all the allotments; and

    • “(vi) the assumptions on which these particulars are calculated.

  “Internet publication requirements

  “(3) If allotments under the approved allotment package are to occur over an allotment period that is more than 12 months long, the code company must show the following information in a prominent position on its Internet site (if it has one) from the date of the first annual report issued during the allotment period until the date of the first annual report issued after the end of the allotment period:

  • “(a) the information required by subclause (2) to be in the code company's latest annual report; and

  • “(b) as soon as the code company is aware of it or ought reasonably to be aware of it, any aggregate increase of 1% or more in the voting securities held or controlled by the allottee.

  “Subsequent increases of voting rights by allottee

  “(4) During the allotment period, the allottee must not increase the percentage of voting rights in the code company held or controlled by it except in accordance with—

  • “(a) the approved allotment package; or

  • “(b) an exemption from the Panel under section 45 of the Act; or

  • “(c) rule 7(c) or (d), in which case the new notice of meeting containing the resolution to approve the proposed increase must contain or be accompanied by—

    • “(i) a summary of the terms of the approved allotment package; and

    • “(ii) particulars, as at the date of the new notice of meeting, of—

      • “(A) the number of voting securities already allotted to the allottee under the approved allotment package; and

      • “(B) the number of voting securities on issue that are held or controlled by the allottee, and the percentage of all voting securities that that number represents; and

      • “(C) the aggregate of the percentages of all voting securities that are held or controlled by the allottee and the allottee’s associates; and

      • “(D) the maximum percentage of all voting securities that could be held or controlled by the allottee after the completion of both the approved allotment package and the proposed increase; and

      • “(E) the maximum aggregate of the percentages of all voting securities that could be held or controlled by the allottee and the allottee’s associates after the completion of both the approved allotment package and the proposed increase; and

      • “(F) the assumptions on which these particulars are calculated.

  “Change of control of allottee

  “(5) During the allotment period, there must be no change of control of the allottee that results in another person becoming the holder or controller of an increased percentage of voting rights in the code company, except in accordance with—

  • “(a) an exemption from the Panel under section 45 of the Act; or

  • “(b) rule 7(c) or (d), in which case the new notice of meeting containing the resolution to approve the proposed increase must contain or be accompanied by—

    • “(i) a summary of the terms of the approved allotment package; and

    • “(ii) particulars, as at the date of the new notice of meeting, of—

      • “(A) the number of voting securities already allotted to the allottee under the approved allotment package; and

      • “(B) the number of voting securities on issue that are held or controlled by the allottee, and the percentage of all voting securities that that number represents; and

      • “(C) the aggregate of the percentages of all voting securities that are held or controlled by the allottee and the allottee’s associates; and

      • “(D) the maximum percentage of all voting securities that could be held or controlled by the allottee on completion of all the allotments; and

      • “(E) the maximum percentage of all voting securities that could be held or controlled by the allottee and the allottee's associates on completion of all the allotments; and

      • “(F) the assumptions on which these particulars are calculated.

  “Definitions in this rule

  “(6) For the purposes of this rule and Schedule 5,—

  “allotment period means the period starting on the date of the meeting at which the shareholders approved the approved allotment package and ending on the date of the last allotment under the approved allotment package

  “annual report includes any concise annual report.”

“24C Extension of offer period if minimum acceptance condition satisfied or waived in final week

• “(1) This rule applies if—

  • “(a) the offer is subject to a minimum acceptance condition referred to in rule 23; and

  • “(b) that condition is satisfied or waived in the period that begins 7 days before the end of the offer period.

  “(2) If this rule applies, the offer period is extended for 14 days from the day on which the condition referred to in subclause (1) is satisfied or waived.

  “(3) See rule 49B.”

• “(1A) An offeror may not allow an offer to lapse—

  • “(a) in unreasonable reliance on a condition of the offer; or

  • “(b) in reliance on a condition of the offer that restricts the target company's activities in the ordinary course of the target company's business during the period that begins with the sending of a takeover notice and ends on the specified date referred to in subclause (2) (or on the latest specified date referred to in subclause (3A), whichever is later).”

• “(5) See rule 49C.”

• “(1) The offer must be sent to those persons recorded in the target company's securities register (as at the record date) as holders of securities to which the offer relates.”

• “(iii) any variation or amendment made in accordance with subclause (3); and”.

• “(e) contain a term that the offeror may not allow the offer to lapse—

  • “(i) in unreasonable reliance on a condition of the offer; or

  • “(ii) in reliance on a condition of the offer that restricts the target company's activities in the ordinary course of the target company's business during the period that begins with the sending of the takeover notice and ends on the specified date referred to in rule 25(2) (or on the latest specified date referred to in rule 25(3A), whichever is later).”

• “(a) the class or classes were included in the class notice given under rule 42A but—

  • “(i) were not included in the terms or conditions contained in or accompanying the takeover notice; or

  • “(ii) were included in the terms or conditions contained in or accompanying the takeover notice but those terms or conditions did not accurately or completely account for the information in the class notice; and”.

• “(2) Nothing in subclause (1) prevents the target company from sending the target company statement to persons who acquire securities in the target company to which the offer relates after the record date.”

“49B Notice if rule 24C applies

• “(1) If rule 24C applies, the offeror must immediately send a written notice to those referred to in subclause (2) stating—

  • “(a) that the condition about the minimum acceptance condition has been satisfied or waived; and

  • “(b) the date to which the offer period has been extended.

  “(2) The notice must be sent to—

  • “(a) every offeree who has not accepted the offer; and

  • “(b) the target company; and

  • “(c) the Panel; and

  • “(d) the registered exchange (if any voting securities of the target company are quoted on the registered exchange's securities market).

“49C Notice of conditions to which offer subject 14 days before end of offer period

• “(1) If an offer is still subject to 1 or more conditions, the offeror must, not earlier than 14 days before the end of the offer period and not later than 7 days before the end of the offer period, send a written notice that includes the following information:

  • “(a) that the offer is still subject to conditions (which are set out in the offer document):

  • “(b) whether the offeror has the right to waive any of the conditions to which the offer remains subject as at the date of the notice and, if so, which conditions:

  • “(c) whether, to the best knowledge and belief of the offeror, after making proper inquiry, any (and, if so, which) conditions have been satisfied or waived as at the date of the notice:

  • “(d) the percentage of voting rights in the target company in respect of which the offeror has received acceptances as at the date of the notice together with any percentage of voting rights already held or controlled by the offeror.

  “(2) If the offer period is extended after a notice has been sent under subclause (1), a new notice must be given in accordance with subclause (1).

  “(3) If an offer has become unconditional, both in respect of any minimum acceptance condition referred to in rule 23 and in respect of any condition referred to in rule 25, the offeror must immediately send a written notice to that effect.

  “(4) The notice must be sent to—

  • “(a) the target company; and

  • “(b) the Panel; and

  • “(c) the registered exchange (if any voting securities of the target company are quoted on the registered exchange's securities market).”

• “(2) If the consideration is, or includes, cash, the dominant owner must pay the cash to the code company, which must—

  • “(a) deposit it in an interest-bearing trust account with a registered bank; and

  • “(b) hold it in trust for the outstanding security holder until it is claimed.

• “(3) If the consideration is, or includes, securities, the dominant owner must—

  • “(a) vest the securities in the outstanding security holder; and

  • “(b) send written notice to the outstanding security holder and the code company that this has been done.”

• “(a) in relation to outstanding security holders who have returned the documents referred to in rule 59,—

  • “(i) the executed instruments of transfer and related documents; and

  • “(ii) evidence to the reasonable satisfaction of the code company that the consideration has been sent to the outstanding security holders in accordance with rule 60; and

• “(b) in relation to outstanding security holders who have not returned the documents referred to in rule 59,—

  • “(i) the executed instrument or instruments of transfer; and

  • “(ii) evidence to the reasonable satisfaction of the code company that the consideration has been dealt with in accordance with rule 61(2) or (3) (whichever applies).”

“Part 9
“Application, savings, and transitional provisions relating to amendments to code

“66 Application, savings, and transitional provisions relating to amendments to code

• The application, savings, and transitional provisions set out in Schedule 1AA, which relate to amendments made to this code after 1 June 2013, have effect for the purposes of this code.”

“5A Partial offers: particulars of voting securities sought

• “(1) If the offer is a partial offer, the following particulars of the voting securities of each class sought by the offeror under the offer:

  Number		Percentage
  The number (A) of voting securities of that class that the offeror would hold or control in the target company after successful completion of the offer		The percentage of all voting securities of that class that A represents
  The number (B) of voting securities of that class that the offeror would hold or control in the target company if the offeror receives acceptances in respect of the minimum number of voting securities required to satisfy the minimum acceptance condition included in the offer under rule 23		The percentage of all voting securities of that class that B represents
  The number (C) of voting securities of that class that the offeror already holds or controls in the target company		The percentage of all voting securities of that class that C represents
  The number (D) of voting securities of that class sought by the offeror		D expressed as a percentage of all voting securities of that class not already held or controlled by the offeror (being the specified percentage as calculated in accordance with rule 9(6))
  The number (E) that is the aggregate of A together with the number of voting securities in that class held or controlled by the offeror's associates		The percentage of all voting securities of that class that E represents

  “(2) A statement of the assumptions on which the particulars in subclause (1) are calculated.”

“14 Intentions about material changes to target company

• “(1)  A statement of the offeror’s intentions about—

  • “(a) material changes to the business activities of the target company or its subsidiaries; and

  • “(b) material changes to the material assets of the target company or its subsidiaries; and

  • “(c) material changes to the capital structure of the target company (including the target company’s dividend policy, raising capital, and taking on debt); and

  • “(d) any other information about the likelihood of changes to the target company or its subsidiaries that could reasonably be expected to be material to the making of a decision by an offeree to accept or reject the offer.

  “(2) If the offeror has no intentions in respect of the particulars listed in subclause (1), a statement to that effect.

  “(3) A statement that statements made under this clause are consistent with any information that has been given by the offeror to any regulatory body (in New Zealand or in an overseas jurisdiction) in relation to the offer.

  “(4) The statements referred to in subclauses (1) to (3) are not required if—

  • “(a) the offer is a full offer conditional on the offeror receiving acceptances that will result in the offeror being required to give an acquisition notice under rule 54; and

  • “(b) the condition cannot be waived.”

• “(3) If a person referred to in clause 5(1) holds equity securities of any class in the target company as a custodian who only acts in relation to those securities on the direction of their beneficial owner, and if the beneficial owner controls less than 5% of the total equity securities in that class in the target company, the information required by subclause (1) in respect of those securities is not required in respect of the beneficial owner or the custodian.”