Notice

2011/4

 

Takeovers Code (Durante Holdings Pty Limited ) Exemption Notice 2011

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).

Contents

  1. Title
  2. Application
  3. Expiry
  4. Interpretation
  5. Exemption from rule 27 of Code
  6. Condition of exemptions in clauses 5

Notice

1
Title
This notice is the Takeovers Code (Durante Holdings Pty Limited) Exemption Notice 2011.
2
Application
This notice applies to acts or omissions occurring on or after 28 January 2011.
3
Expiry
This notice expires on the close of 8 February 2011
4
Interpretation
(1)

In this notice, unless the context otherwise requires,-

Act means the Takeovers Act 1993

Code means the Takeovers Code under the Act

Durante means Durante Holdings Pty Limited, a company incorporated in Australia

offer means Durante's partial offer on 14 January 2011 for 5% of the ordinary voting shares in Michael Hill International Limited that it does not already hold

variation means the variation of the offer made by Durante on 28 January 2011.

(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 27 of Code
Durante is exempted from rule 27 of the Code in respect of the variation.

6

Conditions of exemption in clause 5
The exemption in clause 5 is subject to the condition that the variation does 1 or more of the following:

(a)
increases an existing component or components of the consideration under the offer:
(b)
adds a cash component to the consideration under the offer:
(c)
adds to the offer a cash alternative (if the directors of Michael Hill International Limited have given their prior written approval):
(d)
extends the offer period in accordance with rule 24A or 24B of the Code:
(e)
if the offer period is extended, varies the date that must be specified under rule 25(2) of the Code.


Dated at Auckland this 4th day of February 2011.

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

David Jones
Chairperson

Statement of reasons

The 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.

Issued under the authority of the Acts and Regulations Publication Act 1989.
Date of notification in Gazette:
This notice is administered by the Takeovers Panel.