Quigg Partners  
NZ Mergers & Acquisitions

March 2006


david quigg
David Quigg
davidquigg@quiggpartners.com
 
   
john horner  
John Horner
johnhorner@quiggpartners.com
 
   
matt yates  
Matt Yates
mattyates@quiggpartners.com
 
   
nick white  
Nick White
nickwhite@quiggpartners.com
 
   

What's on the Block
Court of Appeal
Takeovers Code Amendments
Takeovers Panel
Securities Commission

Financial Reporting Relaxation Signalled

NZX Regulatory
Commerce Commission

Trans-Tasman Business Law - One Prospectus
M&A Conference:  Sydney
Further Information
 

  WHAT'S ON THE BLOCK
  • Controlling stake in New Zealand's leading gold mine

  • New Zealand's leading biscuits manufacturer
  • Various significant forestry estates (at least 3)

  • Liquor retail chain

  • NZX listed shell companies

  • % in electrical meters company

  • Regional airport

  • Fine wine retailer

  • Small profitable consumer foods business

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  • Leisure industry business
  • Property Management Company

  • Importer/distributor - specialist clothing

  • Manufacturer in electrical components

  • Small retail bank

  • Laboratory business

  • IT company

  • Recruitment business

  • Garden centre chain

  COURT OF APPEAL
  • Agreement for Business Sale:  The Court of Appeal upheld a High Court decision that irrespective of a verbal "agreement" on a business sale being reached it was clear that no legally binding sale and purchase was to occur until formal written legal documentation was completed.  The "agreement" reached had been a commercial matter but not a consensus that a legally binding contract had been achieved.

  • Incidental to the Purpose of a Joint Venture:  The Court of Appeal when interpreting the purpose provision in the Maui gas joint venture agreement in respect of "incidental activities" gave a more restricted interpretation than had been given by the High Court.

  • Joint Venture Termination:  The Court of Appeal confirmed that an oral joint venture agreement existed and that it had an implied term of reasonable notice of termination.  However the Court drastically reduced the required period of notice from 8 years to 1 years notice.

  • Securities Act Minimum Subscription Allotment:  The Court of Appeal reinstated various causes of action in respect of claims made by investors in a forestry partnership.  The Court held a cheque, agreed not to be presented, could not constitute a "payment" but a set-off could.

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  TAKEOVER CODE AMENDMENTS:  CODE COMPANY

The Securities Legislation Bill is expected to introduce various amendments to New Zealand securities laws (including the Takeovers Code) by the end of April 2006.  The key changes to the Takeovers Code are:

  • Code Company Definition Wider:  The $20m asset threshold will be abolished and only the 50 shareholder test will remain (all listed companies are also covered).  This will mean a significant number of larger "private" companies will be covered by the Takeovers Code (estimated to be another 160 companies).

  • Companies that have a listing agreement with a registered exchange but only in respect of non-voting securities will be deleted from the Code Company definition.

The other changes, in respect of jurisdiction for misleading/deceptive conduct affecting takeovers and greater enforcement power to the Takeovers Panel will be passed but to be operative later in 2006.

Also certain transitional provisions may be of significant practical use in that existing acquisition arrangements, as at date of Code amendments, will not be required to be undertaken in compliance with the new takeover rules.

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  TAKEOVERS PANEL

Recent activity from the Takeovers Panel included:

  • Fidelity Life exemption (allowing a change of trustees).

  • Pacific Print exemption (allowing restructuring by trust owners).

  • Rank/CHH Takeover - 30 Day Period for Offer - the Panel said it needed to consider the offer in its entirety and the effect of the offer.  The additional consideration component was only available for seven days and therefore recipients could not consider the terms of the offer for the full 30 day period required by Rule 24(2).  The practical effect was seen to shorten the offer period in breach of Rule 24.

In our opinion a recent address of the Chair of the Takeovers Panel suggested that in light of the Oyster Bay cases directors of target companies need to "lift their game".

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  SECURITIES COMMISSION
With the Securities Legislation Bill expected to be passed by the end of April the Commission has issued a Discussion Document on the Securities Legislation Bill Regulations.

The proposed regulations will cover four areas:

  • Investment Advisers and Brokers' disclosure;
  • Substantial security holder disclosure;
  • Insider trading exemptions;
  • Market manipulation exemptions.

Submissions are due 21 April 2006.

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  FINANCIAL REPORTING RELAXATION SIGNALLED
The Minister of Commerce has indicated a relaxation of the rules which will allow more companies to be exempted from reporting requirements.  Especially welcome will be the new ability of certain overseas companies to, for the first time, access an exemption from reporting requirements.

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  NZX REGULATORY
As indicated in the last edition of New Zealand Mergers and Acquisitions there are changes proposed to the Listing Rules.  Submissions have been made, and now await finalisation with the Minister of Commerce.  The more significant proposed changes include:
  • Improved guidance regarding continuous disclosure requirements; and

  • Extension of the Listing Rule on pricing to convertible securities.

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  COMMERCE COMMISSION
The Commission has recently granted clearance for acquisitions involving the following markets:
  • North Island milk supply, processing and wholesale supply of town milk in New Zealand, manufacture and wholesale supply of cheese in New Zealand and manufacture and wholesale supply of take home and novelty/scoop ice-cream in New Zealand (Fonterra/Kapiti Fine Foods).
  • Consumer finance products and merchant finance products to retailers in New Zealand (GE Finance/Pacific Retail Finance).
  • Television transmission vehicles, television transmission services, retail television broadcasting and television advertising services (Sky TV/Prime TV).
  • Provision of community testing pathology services (excluding send-away and cervical screening tests) and provision of cervical screening tests (Valley Diagnostic Laboratories/Wellington Pathology).

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  TRANS-TASMAN BUSINESS LAW - ONE PROSPECTUS (in most cases)
Representatives of New Zealand and Australia signed a revised memorandum reaffirming both countries commitment to better co-ordinate the law affecting trans-Tasman business. In particular the agreement on mutual recognition of securities offerings is due to be implemented shortly.  Hopefully by the end of 2006 at least!

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  EMPLOYMENT / M&A ISSUES

If you would like assistance in this area please email michaelquigg@quiggpartners.com.

Delete from Circulation List

If you receive our regular newsletters but would like to be deleted from our circulation list please advise by emailing theresacains@quiggpartners.com.

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  M&A CONFERENCE:  SYDNEY

The Mergers & Acquisitions Conference 2006 has been set for 7-8 June 2006.  A copy of the programme can be downloaded at www.capconnect.com.au.  Quigg Partners is presenting at the Conference and also assisting with the NZ M&A Market half-day Workshop on Friday, 9 June 2006.  A great chance to catch up on all Australian/New Zealand M&A developments/players.

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  A FINE NEW ZEALAND PINOT NOIR ON OFFER!

We would like to hear how we could improve our "NZ: M&A" publication.  For the best (both funniest and most constructive) suggestions we will deliver a fine New Zealand bottle of Pinot Noir.  Please send your suggestions to davidquigg@quiggpartners.com.

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  FURTHER INFORMATION
M & A Corporate

David Quigg
John Horner
Matt Yates
Nick White
+64 4 474 0755
+64 4 474 0754
+64 4 474 0768
+64 4 474 0751
davidquigg@quiggpartners.com
johnhorner@quiggpartners.com
mattyates@quiggpartners.com
nickwhite@quiggpartners.com
Employment

Michael Quigg
Sean Heywood
Deirdre Marshall
Jol Bates
Tim Sissons
+64 4 474 0766
+64 4 474 0752
+64 4 474 0765
+64 4 474 0759
+64 4 472 7471
michaelquigg@quiggpartners.com
seanheywood@quiggpartners.com
deirdremarshall@quiggpartners.com
jolbates@quiggpartners.com
timsissons@quiggpartners.com
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