NOTICE OF MEETING PURSUANT TO SECTION 32 TAKEOVERS ACT 1993
29 October 2002
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LOWE CORPORATION LIMITED (referred to in this notice as "Lowe")
C/o Chapman Tripp
Barristers & Solicitors
Facsimile: (09) 357 9099
AUCKLAND
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HORIZON MEATS NEW ZEALAND LIMITED (referred to in this notice as "Horizon")
C/o Jones Young
Barristers & Solicitors
Facsimile: (09) 367 8799
AUCKLAND
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BLUE SKY MEATS (N.Z.) LIMITED (referred to in this notice as "BSM")
C/o Preston Russell Law
Barristers & Solicitors
Facsimile: (03) 218 9536
INVERCARGILL
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NOTICE IS HEREBY GIVEN:
That on 29 October 2002 the Takeovers Panel met to consider whether Lowe's full offer for BSM dated 8 October 2002 complies with the Takeovers Code.
As a result of consideration of Lowe's offer document, BSM's target company statement dated 23 October 2002 and Polson Higgs & Co's independent adviser's report on the merits of Lowe's offer dated 21 October 2002, the Panel has decided to convene a meeting pursuant to section 32(1) of the Takeovers Act 1993. The Panel considers that Lowe may not have acted or may not be acting or may intend not to act in compliance with the Code by making an offer which may not comply with the Code. The resolution of the Panel made on 29 October 2002 is as follows:
On or about 24 September 2002 Lowe gave notice under rule 41 of its intention to make a full offer under the Code for all the shares in BSM which it did not hold. On or about 9 October 2002 Lowe sent its offer document under rule 44 of the Code to BSM's shareholders.
Horizon holds approximately 2,709,594 (or 37.01%) of BSM's shares. On or about 23 September 2002 Horizon had entered into an agreement (the "lock-up agreement") to accept Lowe's offer at the offer price within two working days of receipt of the offer document. On or about 23 September 2002 Horizon sent a letter (the "letter of agreement") to BSM, and its wholly owned subsidiary - Blue Sky Marketing Limited, entitled "Marketing Contract". The letter of agreement offered to terminate a marketing contract that Horizon has held with BSM since 1995 and to transfer the "Horizon" brand to BSM for overall consideration of $2.7 million. The letter of agreement was conditional on Lowe's offer being declared unconditional. The letter of agreement was not counter-signed by BSM or Blue Sky Marketing Limited. On or about 23 September 2002 Lowe sent a letter to Horizon (the "letter of comfort") noting that if its offer for BSM was declared unconditional it would procure the payment of $2.7 million by Blue Sky Marketing Limited to Horizon at the time of termination of the marketing contract.
BSM's target company statement dated 23 October 2002 included:
"- One shareholder (Horizon) may receive additional consideration for its shares which is different to the other shareholders (see page 39 [7.6] Independent Advisor Report Polson Higgs October 2002).
"The effect of any over-compensation for terminating this contract could result in additional consideration being received by Horizon"."
The Panel considers that the effect of the lock-up agreement, the letter of agreement and the letter of comfort when read together with the target company statement and Polson Higgs & Co's independent adviser's report, is that Lowe's offer may not comply with the Code and in particular rule 20 in that Horizon may be receiving more consideration for its shares than the other offerees.
As a consequence the Panel considers that Lowe may not have acted or may not be acting or may intend not to act in compliance with the Code. An appropriate interim restraining order is to issue immediately.
The Panel will hold a meeting for the purposes of determining whether to exercise its powers under section 32 of the Takeovers Act 1993. The meeting will be held at 9.30 a.m. on Monday 4 November 2002 at the offices of the Panel, 12th Floor, Reserve Bank Building, 2 The Terrace, Wellington. The responsible officers from Lowe, Horizon and BSM have been summoned under section 9(3) of the Takeovers Act 1993 to appear. The meeting will be a private meeting.
Your attention is drawn to section 10(1) of the Takeovers Act 1993.
SIGNED for and on behalf of the )
Panel by the Acting Chairperson )
_________________________
DMD Rawstorne
Member