Oyster Bay Marlborough Vineyards Limited - Determination
Published 20 September 2005
BEFORE THE TAKEOVERS PANEL
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IN THE MATTER OF |
the Takeovers Act 1993 and the Takeovers Code |
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AND |
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IN THE MATTER OF |
a meeting held under section 32 of the Takeovers Act 1993 to determine - Whether Oyster Bay Marlborough Vineyards Limited ("Oyster Bay") acted other than in compliance with the Takeovers Code (""the Code") by not including in the target company statement dated 19 July 2005 issued in response to the partial takeover offer made by Delegat's Wine Estate Limited ("Delegat's") dated 7 July 2005 ("the target company statement"), information relating to the market value, encumbered and unencumbered, of Oyster Bay's freehold and leasehold vineyards thereby omitting information about the assets and financial affairs of Oyster Bay that could reasonably have been expected to be material to the making of a decision by Oyster Bay's shareholders to accept or reject the Delegat's offer. |
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MEETING: |
20 September 2005 at Wellington |
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MEMBERS: |
A Lawrence (Acting Chairman) |
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APPEARANCES: |
R Fardell QC and N Scott appearing for Oyster Bay; |
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IN ATTENDANCE: |
W J Falconer representing William John Falconer, Ross Barry Keenan and the Hon Ruth Richardson, and on behalf of the committee of independent directors of Oyster Bay; |
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DETERMINATION: |
22 September 2005 |
Background
[1] On 14 September 2005 the Panel gave notice of a meeting to be held under section 32 of the Takeovers Act 1993 ("the Act") in relation to Oyster Bay, and to Jakov Nikola Delegat, Christine Narda Pears, William John Falconer and Ross Barry Keenan, being the persons who signed the form of certificate prescribed by clause 26 of Schedule 2 of the Takeovers Code.
[2] The Panel held a meeting in Wellington on 20 September 2005 to consider the matters at issue.
[3] The Panel has determined under section 32(3)(b) of the Act that it is not satisfied that Oyster Bay acted in compliance with the Code in that the target company statement omitted information relating to the market value, encumbered and unencumbered, of Oyster Bay's freehold and leasehold vineyards that could reasonably have been expected to be material to the making of a decision by Oyster Bay's shareholders to accept or reject Delegat's offer.
[4] The Panel will issue reasons for its determination as soon as possible.
[5] The Panel resolved, in terms of section 32(4)(a) and (b) of the Act, as appropriate, to make the following orders:
(a) Restraining Delegat's from acquiring securities in Oyster Bay or any interest in or rights relating to such securities;
(b) Continuing to direct Delegat's not to declare its offer unconditional; and
(c) Continuing to direct Oyster Bay not to register the transfer or transmission of any securities arising from acceptance of the Delegat's offer.
[6] These restraining orders are to expire at the close of 13 October 2005 but may be revoked or amended prior to their expiry.
[7] The Panel's preferred outcome for those shareholders of Oyster Bay who have accepted Delegat's offer is that they be given the opportunity to reconsider their decision to accept the offer before the takeover transaction is finally concluded. This will require certain actions by Delegat's and Oyster Bay. Details of the means of providing this opportunity to those shareholders should be finalised and announced within the next week.
[8] By way of indication to the market, the Panel expects this process would take a little over a month during which time shareholders who have accepted the Delegat's offer would be sent an additional statement by Oyster Bay's independent directors, approved by the Panel, which would provide those shareholders with the information that was omitted from the target company statement. These shareholders could either revoke their acceptances of the Delegat's offer or let their acceptances stand. Around three weeks would be allowed for consideration of the new information. The final outcome of the takeover would be decided at the end of the process.
[9] The Panel is prepared to amend its restraining orders, to grant exemptions from the Code, and to accept enforceable undertakings from Oyster Bay and Delegat's (and others if appropriate) to facilitate this approach.
[10] The Panel will deal with costs separately in terms of the Takeovers (Fees) Regulations 2001.
DATED at Auckland this 22nd day of September 2005
SIGNED for and on behalf of the Panelby the Acting Chairman
A Lawrence
