2007/188
Takeovers Code (Kidicorp Group Limited) Exemption Notice 2007
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
Notice
| 1 |
Title
This notice is the Takeovers Code (Kidicorp Group Limited) Exemption Notice 2007. |
| 2 |
Application
This notice applies to acts or omissions occurring on or after 28 June 2007. |
| 3 |
Interpretation |
| (1) |
In this notice, unless the context otherwise requires,-
Act means the Takeovers Act 1993
Code means the Takeovers Code approved by the Takeovers Code Approval Order 2000 (SR 2000/210)
Kidicorp means Kidicorp Group Limited
Mitchell Trustees means Wayne Wright, Chloe Angela Wright, and Graeme Richard Holmes, being the trustees of the Mitchell Investment Trust constituted by a deed of trust dated 28 January 1994
Positive Educare means Positive Educare Limited
Positive Educare offer means a takeover offer made or to be made by Positive Educare for all of the voting securities in Kidicorp as described in the notice of intention to make a takeover offer dated 31 May 2007.
|
| (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. |
| 4 |
Exemption from rule 35 of Code
The Mitchell Trustees are exempted from rule 35 of the Code in respect of the Positive Educare offer.
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| 5 |
Condition of exemption in clause 4
The exemption in clause 4 is subject to the condition that neither the Mitchell Trustees nor any other person acting jointly or in concert with the Mitchell Trustees disposes of any equity securities in Kidicorp during the offer period, other than to-
| (a) |
Positive Educare under the Positive Educare offer; or |
| (b) |
an offeror under another offer that is made in accordance with the Code. |
|
| 6 |
Exemption from rule 56 of Code
Positive Educare and the Mitchell Trustees are exempted from rule 56 of the Code in respect of the Positive Educare offer to the extent that rule 56(2) requires the following to be included in calculating the percentage of acceptances of the offer or the equity securities that were the subject of the offer:
| (a) |
the acceptances of the Positive Educare offer by the Mitchell Trustees; and |
| (b) |
the voting securities in Kidicorp held or controlled by the Mitchell Trustees. |
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| 7 |
Condition of exemptions in clauses 4 and 6
The exemptions in clauses 4 and 6 are subject to the condition that a summary of the terms and conditions of these exemptions, in a form approved by the Panel, are included in the Positive Educare offer.
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Dated at Auckland this 3rd day of July 2007.
The Common Seal of the Takeovers Panel was affixed in the presence of:
Alastair Lawrence
Deputy Chairman
Statement of reasons
This notice which applies to acts or omissions occurring on or after 28 June 2007.
The trustees of the Mitchell Investment Trust (the Mitchell Trustees), a trust constituted by a deed of trust dated 28 January 1994, hold or control 54.5.% of the shares in Kidicorp Group Limited (Kidicorp).
On or about 31 May 2007, the Mitchell Trustees entered into an undocumented arrangement with Positive Educare Limited (Positive Educare) to accept a takeover offer to be made by Positive Educare to acquire all of the voting securities in Kidicorp, in respect of all of the voting securities that the Mitchell Trustees held in Kidicorp.
The Mitchell Trustees hold 100% of the issued voting securities in Positive Educare.
The Takeovers Panel (the Panel) has exempted the Mitchell Trustees from compliance with rule 35 of the Takeovers Code (the Code).
Rule 35 prevents the offeror, and persons acting jointly or in concert with the offeror, from disposing of any target company securities during the offer period other than to a competing bidder. The exemption granted by the Panel enables the Mitchell Trustees to accept the offer that is to be made by Positive Educare.
Should Positive Educare's offer reach the threshold for compulsory acquisition, in order to ensure that the Code's compulsory acquisition price determination process in rules 56 and 57 works as intended, the Panel has exempted Positive Educare and the Mitchell Trustees from rule 56 to the extent that, for the purposes of determining the consideration payable under compulsory acquisition, the shares held or controlled and the acceptances given by the Mitchell Trustees for the offer by Positive Educare would otherwise be included in-
- the acceptances of the offer; and
- the voting securities that were the subject of the offer.
As a result of this exemption, rule 57 of the Code may apply to the compulsory acquisition, depending on the level of acceptances of the takeover offer by the minority shareholders in Kidicorp.
The Panel considers that it is appropriate and consistent with the objectives of the Code to grant the exemptions from rules 35 and 56 of the code because the exemptions-
- would avoid an unintended consequence of the Code ; and
- would not disadvantage other shareholders or prevent them from deciding the merits of the proposed offer for themselves; and
- facilitate the utilisation of a special purpose company for making the proposed offer and for compulsorily acquiring the outstanding securities, and the use of such companies is accepted market practice; and
- preserve the integrity of the compulsory acquisition price determination process encapsulated in rule 56 and 57 of the Code.
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.
