2008/
Takeovers Code (Phitek Systems Limited) Exemption Notice 2008
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
TitleThis notice is the Takeovers Code (Phitek Systems Limited) Exemption Notice 2008.
2
Application
This notice applies to acts of omissions occurring on or after 22 October 2008.
3
Expiry
This notice expires on the close of 5 February 2011.
Interpretation
(1)
In this notice, unless the context otherwise requires,-
Act means the Takeovers Act 1993
Code means the Takeovers Code under the Act
K One W One means K One W One Limited
meeting means the meeting of the shareholders of Phitek that is to be held on or about 14 November 2008 to consider whether or not to approve,-
(a)
for the purposes of rule 7(c) of the Code, the TMT acquisitions; and
(b)
for the purposes of rule 7(d) of the Code, the allotments of voting securities to K One W One, TMT, and VIF/TMT resulting from the rights issue and the exercise of options
notice of meeting means the notice of meeting to be sent to the shareholders of Phitek in respect of the meeting
options means options that are allotted under the rights issue
Phitek means Phitek Systems Limited
rights issue means the rights issue to be conducted by Phitek under a prospectus to be registered on or about 5 December 2008
TMT means TMT Ventures Limited
TMT acquisitions means the proposed acquisitions under which TMT, VIF/TMT, and Direct Management Investments Limited will each acquire a part of a parcel of 1 199 684 voting securities from Custodial Services Limited
VIF/TMT means VIF/TMT Ventures Limited
voting security means a voting security in Phitek
(2)
In this notice, a reference to a person increasing voting control is a reference to the person becoming the holder or controller of an increased percentage of the voting rights in Phitek.
(3)
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.
Exemption from rule 7(d) of Code in respect of rights issue and options
(1)
Each of K One W One, TMT, and VIF/TMT is exempted from rule 7(d) of the Code in respect of any increase in that person's voting control as a result of the allotment of voting securities to that person under the rights issue to the extent that rule 7(d) requires the notice of meeting to comply with rule 16(b) of the Code.
(2)
Each of K One W One, TMT, and VIF/TMT is exempted from rule 7(d) of the Code in respect of any increase in that person's voting control as a result of the allotment of voting securities to that person resulting from the exercise of options to the extent that rule 7(d) requires the notice of meeting to comply with rule 16(b) of the Code.
Exemption from rule 16(b) of Code in respect of notice of meeting
Phitek is exempted from rule 16(b) of the Code in respect of the notice of meeting.
Conditions relating to rights issue disclosures
(1)
The exemptions in clauses 5 and 6 are subject to the condition that the notice of meeting contains, or is accompanied by, the following particulars:
(a)
the maximum number of voting securities that could be allotted to each of K One W One, TMT, and VIF/TMT under the rights issue:
(b)
the maximum number of voting securities that could be allotted to each of K One W One, TMT, and VIF/TMT under the rights issue, expressed as a percentage of the total voting securities on issue after that allotment:
(c)
the maximum percentage of the total voting securities on issue that could be held or controlled by each of K One W One, TMT, and VIF/TMT after the allotment of voting securities under the rights issue:
(d)
the maximum percentage of the total voting securities on issue that could be held or controlled by each of the following after the allotment of voting securities under the rights issue:
(i)
K One W One and its associates:
(ii)
TMT and its associates:
(iii)
VIF/TMT and its associates.
(2)
The exemptions in clauses 5 and 6 are subject to the condition that the notice of meeting contains, or is accompanied by, the following particulars:
(a)
the maximum number of voting securities that could be allotted to K One W One, TMT, and VIF/TMT, in aggregate, under the rights issue:
(b)
the maximum number of voting securities that could be allotted to K One W One, TMT, and VIF/TMT, in aggregate, under the rights issue, expressed as a percentage of the total voting securities on issue after that allotment:
(c)
the maximum percentage of the total voting securities on issue that could be held or controlled by K One W One, TMT, and VIF/TMT, in aggregate, after the allotment of voting securities under the rights issue:
(d)
the maximum percentage of the total voting securities on issue that could be held or controlled by K One W One, TMT, and VIF/TMT and their associates, in aggregate, after the allotment of voting securities under the rights issue.
(3)
The percentages required to be disclosed in subclauses (1) and (2) must be calculated on the basis that-
(a)
there is no change to the total number of voting securities on issue between the date of the notice of meeting and the expiry of this notice other than under the rights issue; and
(b)
in the case of subclause (1)(d) (and without limiting paragraph (a) of this subclause), K One W One, TMT, and VIF/TMT are not associates of each other.
(4)
The disclosure of percentages required in subclauses (1) and (2) must be made separately on both of the following bases:
(a)
that the TMT acquisitions are approved and completed before the allotments under the rights issue:
(b)
that the TMT acquisitions are not approved or completed before the allotments under the rights issue.
Conditions relating to exercise of options disclosures
(1)
The exemptions in clauses 5 and 6 are subject to the condition that the notice of meeting contains, or is accompanied by, the following particulars:
(a)
the maximum number of voting securities that could be allotted to each of K One W One, TMT, and VIF/TMT as a result of the exercise of the maximum number of options that could be allotted to that person under the rights issue:
(b)
the maximum number of voting securities that could be allotted to each of K One W One, TMT, and VIF/TMT as a result of the exercise of the maximum number of options that could be allotted to that person under the rights issue, expressed as a percentage of the total voting securities on issue after that allotment:
(c)
the maximum percentage of the total voting securities on issue that could be held or controlled by each of K One W One, TMT, and VIF/TMT after the allotment of the voting securities resulting from the exercise of the maximum number of options that could be allotted to that person under the rights issue:
(d)
the maximum percentage of the total voting securities on issue that could be held or controlled by each of the following after the allotment of voting securities resulting from the exercise of the maximum number of options that could be allotted to each of the following persons under the rights issue:
(i)
K One W One and its associates:
(ii)
TMT and its associates:
(iii)
VIF/TMT and its associates.
(2)
The exemptions in clauses 5 and 6 are subject to the condition that the notice of meeting contains, or is accompanied by, the following particulars:
(a)
the maximum number of voting securities that could be allotted to K One W One, TMT, and VIF/TMT, in aggregate, as a result of the exercise of the maximum number of options that could be allotted to those persons under the rights issue:
(b)
the maximum number of voting securities that could be allotted to K One W One, TMT, and VIF/TMT, in aggregate, as a result of the exercise of the maximum number of options that could be allotted to those persons under the rights issue, expressed as a percentage of the total voting securities on issue after that allotment:
(c)
the maximum percentage of the total voting securities on issue that could be held or controlled by K One W One, TMT, and VIF/TMT, in aggregate, after the allotment of the voting securities resulting from the exercise of the maximum number of options that could be allotted to those persons under the rights issue:
(d)
the maximum percentage of the total voting securities on issue that could be held or controlled by K One W One, TMT, and VIF/TMT and their associates, in aggregate, after the allotment of the voting securities resulting from the exercise of the maximum number of options that could be allotted to those persons and their associates under the rights issue.
(3)
The percentages required to be disclosed in subclauses (1) and (2) must be calculated on the basis that-
(a)
there is no change to the total number of voting securities on issue between the date of the notice of meeting and the expiry of this notice other than under the rights issue or as a result of the exercise of the options; and
(b)
in the case of subclause (1)(d) (and without limiting paragraph (a) of this subclause), K One W One, TMT, and VIF/TMT are not associates of each other.
(4)
The disclosure of percentages required in subclauses (1) and (2) must be made separately on both of the following bases:
(a)
that the TMT acquisitions are approved and completed before the allotment of the voting securities resulting from the exercise of the maximum number of options that could be allotted to the relevant person or persons under the rights issue:
(b)
that the TMT acquisitions are not approved or completed before the allotment of the voting securities resulting from the exercise of the maximum number of options that could be allotted to the relevant person or persons under the rights issue.
Further conditions that apply to exemptions in clause 5 and 6
The exemptions in clauses 5 and 6 are subject to the conditions that-
(a)
the notice of meeting contains, or is accompanied by,-
(i)
full particulars of the rights issue and the options; and
(ii)
a summary of the terms and conditions of the exemptions granted under this notice; and
(b)
the notice of meeting displays, in a prominent position, a disclaimer stating that by exempting K One W One, TMT, and VIF/TMT from rule 7(d) of the Code, and Phitek from rule 16(b) of the Code, the Takeovers Panel is-
(i)
neither endorsing nor supporting the accuracy or reliability of the contents of the notice of meeting; and
(ii)
not implying it has a view on the merits of the proposed issue of voting securities to K One W One, TMT, and VIF/TMT under the rights issue or resulting from the exercise of the options; and
(c)
the form of the notice of meeting is approved by the Takeovers Panel; and
(d)
every annual report issued by Phitek during the period in which this notice is in force contains the following in a prominent position and in a form approved by the Takeovers Panel:
(i)
a summary of the terms of the options; and
(ii)
a summary of the terms and conditions of the exemptions granted under this notice; and
(iii)
a statement, as at the end of the financial year to which the annual report relates, of the number of voting securities allotted to each of K One W One, TMT, and VIF/TMT as a result of the exercise of the options (whether the voting securities were allotted during the financial year or an earlier financial year); and
(iv)
a statement, as at the end of the financial year to which the annual report relates, of the total percentage of the voting securities on issue held or controlled by each of the following (calculated as though K One W One, TMT, and VIF/TMT were not associates of each other):
(A)
K One W One and its associates:
(B)
TMT and its associates:
(C)
VIF/TMT and its associates; and
(v)
a statement, as at the end of the financial year to which the annual report relates, of the maximum percentage of the total voting securities on issue that could be held or controlled by each of K One W One, TMT, and VIF/TMT as a result of the allotment of voting securities to each of those persons on the exercise of all the options held by each of those persons.
Restrictions on other acquisitions, on increases in control greater than disclosed maximum, and on changes in control
(1)
The exemptions in clause 5 do not apply-
(a)
to K One W One, TMT, or VIF/TMT if there is an increase in that person's voting control, except as a result of an allotment under the rights issue or as a result of the exercise of options allotted to that person under the rights issue or as a result of the TMT acquisitions, before the earlier of-
(i)
the exercise of the last of that person's options; and
(ii)
the expiry of the options; or
(b)
to an increase in the voting control of K One W One, TMT, or VIF/TMT as a result of the allotment of voting securities under the rights issue if, immediately after the completion of the allotment, the total percentage of voting securities held or controlled by that person is greater than the maximum percentage of voting securities that could be held or controlled by that person as disclosed in the notice of meeting in accordance with clause 7(1)(c) (being the disclosure that is made on the basis under clause 7(4) that is appropriate depending on whether or not the TMT acquisitions have been approved and completed); or
(c)
to an increase in the voting control of K One W One, TMT, or VIF/TMT as a result of the exercise of an option if, immediately after the increase, the total percentage of voting securities held or controlled by that person is greater than the maximum percentage of voting securities that could be held or controlled by that person as disclosed in the notice of meeting in accordance with clause 8(1)(c) (being the disclosure that is made on the basis under clause 8(4) that is appropriate depending on whether or not the TMT acquisitions have been approved and completed).
(2)
The exemptions in clause 5 for-
(a)
K One W One are subject to the condition that there is no change in control of K One W One before the earlier of-
(i)
the exercise of the last of K One W One's options; and
(ii)
the expiry of the options:
(b)
TMT are subject to the condition that there is no change in control of TMT before the earlier of-
(i)
the exercise of the last of TMT's options; and
(ii)
the expiry of the options:
(c)
VIF/TMT are subject to the condition that there is no change in control of VIF/TMT before the earlier of-
(i)
the exercise of the last of VIF/TMT's options; and
(ii)
the expiry of the options.
Dated at Auckland this 28th day of October 2008.
The Common Seal of the Takeovers Panel was affixed in the presence of:
Colin Giffney
Deputy Chairman
|
Statement of reasons
This notice applies to acts or omissions occurring on or after 22 October 2008 and expires on 5 February 2011.
The Takeovers Panel (the Panel) has granted exemptions for-
- K One W One Limited (K One W One), TMT Ventures Limited (TMT), and VIF/TMT Ventures Limited (VIF/TMT) from rule 7(d) of the Takeovers Code (the Code) to the extent that rule 7(d) requires the notice of meeting to be in accordance with rule 16(b) of the Code in respect of any increase in the percentage of voting rights held in Phitek Systems Limited (Phitek) under a proposed rights issue and the exercise of any resulting options; and
- Phitek from rule 16(b) of the Code in respect of the notice of meeting.
K One W One holds shares representing more than 20% of the voting rights in Phitek. TMT and VIF/TMT are both wholly owned subsidiaries of TMT Management Limited and hold, in aggregate, more than 20% of the voting rights in Phitek. Custodial Services Limited holds shares in Phitek representing approximately 3% of the voting rights in Phitek.
TMT, VIF/TMT, and Direct Management Investments Limited propose to acquire Phitek shares held by Custodial Services Limited. These acquisitions would increase the voting control of TMT, VIF/TMT, and Direct Management Investments Limited and are caught by rule 6(1) of the Code. Shareholder approval under rule 7(c) of the Code is to be sought for the acquisitions at a meeting of shareholders.
Phitek proposes to undertake a pro-rata non-renounceable rights issue. Under the rights issue Phitek shareholders may apply to the company to take up more than their pro-rata entitlement. Phitek may accept such applications in its discretion. K One W One, TMT, and VIF/TMT have expressed their intention to take up at least their pro-rata entitlements. The allotments to K One W One, TMT, and VIF/TMT under the rights issue may result in 1 or more of those persons increasing their voting control and being caught by rule 6(1) of the Code. Shareholder approval under rule 7(d) of the Code is to be sought for the allotments to K One W One, TMT, and VIF/TMT under the rights issue. Rule 7(d) requires that the notice of meeting makes the disclosures specified by rule 16(b) of the Code. However, the rule 16(b) disclosures cannot be made because of uncertainties in the level of participation in the rights issue by Phitek shareholders.
For every 2 shares allotted to a Phitek shareholder under the rights issue, that shareholder will also receive 1 option. Accordingly, K One W One, TMT, and VIF/TMT will be allotted options under the rights issue. Any exercise of those options by K One W One, TMT, or VIF/TMT will result in an allotment increasing that person's voting control in Phitek that may be caught by rule 6(1) of the Code. Shareholder approval under rule 7(d) of the Code is to be sought for the allotments to each of K One W One, TMT, and VIF/TMT resulting from the exercise of options by them. However, the rule 16(b) disclosures cannot be made because of uncertainties in the number of options that will be allotted to each of K One W One, TMT, and VIF/TMT and the extent to which those options will ultimately be exercised.
The Panel has granted these exemptions on the condition that the maximum percentage to which any of K One W One, TMT, and TMT/VIF could increase their voting control is disclosed in the notice of meeting.
The Panel considers that it is appropriate and consistent with the objectives of the Code to grant the exemptions because-
- it is impossible for the actual number of voting securities to be allotted and the relevant percentages required by rule 16(b) of the Code to be stated in the notice of meeting since these numbers and percentages are dependent on a number of factors that will not be known with certainty until after the notice of meeting is prepared:
- all non-associated shareholders will have an opportunity to vote on the potential allotment of voting securities to K One W One, TMT, and VIF/TMT as a result of the rights issue and the exercise of options:
- if the non-associated shareholders approve the potential maximum allotment of voting securities to K One W One, TMT, and VIF/TMT, then, by implication, the shareholders also approve any lesser percentage of voting rights that may be allotted to K One W One, TMT, and VIF/TMT under the rights issue and the exercise of options:
- the rights issue will be conducted pursuant to a registered prospectus and is an acknowledged method of providing incentives to shareholders to participate and contribute to a company's growth as well as providing a company with a means of raising equity capital in New Zealand, and the Panel should facilitate these arrangements by granting appropriate exemptions where necessary.
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.
