Ngai Tahu Settlement
Doug Graham Treaty of Waitangi NegotiationsATTACHMENT 9.5
DEED OF GRANT OF RIGHT OF FIRST REFUSAL -
DUNEDIN AIRPORT
LIMITED
Clause 9.5)
Date:
BETWEEN
(1) TE RUNANGA O NGAI TAHU (Te
Runanga)
(2) HER MAJESTY THE QUEEN in right of New Zealand,
acting by and through the Minister of Transport (the Crown
Shareholder)
BACKGROUND
A Te Runanga and the Crown are parties to a Deed of Settlement
dated [ ] 1997.
B Pursuant to the Deed of Settlement, the Crown agreed to enter
into a deed granting to Te Runanga a right of first refusal over the Specified
Shares.
C This Deed is entered into in satisfaction of the obligation
of the Crown referred to in Recital B.
NOW THEREFORE the parties agree as
follows:
1 DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Deed, unless the context requires otherwise:
Acceptance Date means the date
specified in a Disposal Offer, by which Te Runanga shall accept the Disposal
Offer;
Actual Indication Date means the
date on which Te Runanga gives or is deemed to have given a notice under
clause 5.2.2;
Assessor means an independent third
party appointed for the purposes of clause 12;
Benchmark Offer means
(a) the Disposal Offer; or
(b) any written offer subsequently made by Te Runanga to
acquire the Specified Shares in the period referred to in clause 7.1 (or,
where Te Runanga has made more than one such written offer in that period, the
last such written offer),
whichever is on More Favourable Terms;
Business Day means a day (other
than Saturday or Sunday) on which registered banks are open for normal banking
business in Wellington and Christchurch but shall exclude any day in the period
commencing 25 December in any year and ending on 5 January in the following year
and shall be deemed to commence at 9.00 am and to terminate at 5.00
pm;
Change of Control, in relation to
the Crown Shareholder, means:
(a) any act or omission by a Crown Body which has the result
that a person other than a Crown Body has Effective Control of the Crown
Shareholder; or
(b) any arrangement entered into by the Crown Shareholder
(other than an arrangement between the shareholders of the Company in
circumstances where the Crown Shareholder does not have majority control)
pursuant to which the Crown Shareholder grants the right to manage, or otherwise
to have effective control of the management of, the assets of the Company to a
person other than the Company, the Crown Shareholder or another Crown
Body,
but does not include a Permitted Change of Control. For the
avoidance of doubt, any change in the political party or parties constituting
the New Zealand Government shall not amount to a Change of Control of any Crown
Shareholder;
Company means Dunedin Airport
Limited;
Crown Body means the Crown (whether
acting through a Minister or otherwise) or a Crown Entity (as defined in the
Public Finance Act 1989) or a State Enterprise (as defined in the State-Owned
Enterprises Act 1986) or any company which is wholly-owned by a Crown Entity or
State Enterprise;
Deed of Settlement means the deed
referred to in Recital A;
Dispose means sell, transfer or
otherwise dispose, and Disposal has a corresponding meaning;
Disposal Notice means a notice of
the Crown Shareholder's intention to Dispose of the Specified Shares given under
clause 4;
Disposal Offer means an offer to
sell the Specified Shares to Te Runanga complying with clause
5.1;
Due Diligence Process means a
process pursuant to which the Crown Shareholder facilitates access to, and
inspection of, information about the Company and documentation relating to its
activities by prospective purchasers of the Specified Shares;
Effective Control, in relation to
the Crown Shareholder means:
(a) the legal and beneficial, or beneficial, ownership and/or
direct or indirect control by any person of any of the shares in the capital of
the Crown Shareholder or of any holding company of the Crown Shareholder
which:
(i) amount to more than 50 percent of the issued shares of the
Crown Shareholder (other than shares that carry no right to participate beyond a
specified amount in a distribution of either profits or capital);
(ii) enable that person to exercise, or control the exercise
of, more than 50 percent of the maximum number of votes that can be exercised at
a general meeting of the Crown Shareholder;
(iii) enable that person to control the composition of the
board of directors of the Crown Shareholder; or
(iv) entitle that person to receive more than 50 percent of
every dividend paid on shares issued by the Crown Shareholder, other than shares
that carry no right to participate beyond a specified amount in a distribution
of either profits or capital; or
(b) the power to govern the financial and operating policies of
the Crown Shareholder for the purpose of obtaining the benefits and/or the risks
normally associated with ownership;
Encumbrance includes any mortgage,
lien, charge or encumbrance whether equitable or otherwise over the Specified
Shares;
Indication Date means the date
specified in the Disposal Notice by which Te Runanga is required to respond to
the Disposal Notice under clause 5.2;
More Favourable Terms has the
meaning given to it in clause 1.2;
Ngai Tahu Charitable Trust means
the charitable trust known as the Ngai Tahu Charitable Trust, established by a
trust deed dated 23 March 1994;
Ngai Tahu Participant means Te
Runanga or any party associated with Te Runanga or any consortium in which Te
Runanga or any party associated with Te Runanga is a participant;
Permitted Change of Control means
Change of Control of a Crown Shareholder or of any holding company of a Crown
Shareholder where Te Runanga has given its prior written approval to the Change
of Control;
Preliminary Disposal Notice means a
notice of the Crown Shareholder's intention to Dispose of the Specified Shares,
given under clause 3;
Preliminary Information Package
means:
(a) in a case where the Crown Shareholder intends to attempt to
Dispose of the Specified Shares pursuant to clause 4.2, information which
the Crown Shareholder intends to provide to other prospective bidders for the
Specified Shares; or
(b) in a case where the Crown Shareholder does not intend to
attempt to Dispose of the Specified Shares pursuant to clause 4.2,
information which shall include the matters referred to in clause 4.3.2(a) to
(d), subject to clause 4.3.3;
Settlement Date means the date
which is 20 Business Days after:
(a) in the case where Te Runanga accepts a Disposal Offer or
otherwise agrees to purchase the Specified Shares under clause 8.1, the
later of the Acceptance Date or the date of the acceptance of the Disposal Offer
or of the agreement to purchase the Specified Shares;
(b) in a case where clause 13.2 applies, the date on
which Te Runanga gives a notice under that clause;
(c) in a case where clause 15 applies, the later
of:
(i) the date on which Te Runanga and the Crown Shareholder
agree on a price for the Specified Shares under clause 15.5.1;
and
(ii) the date on which the price of the Specified Shares is
determined by arbitration under clause 15.5.2,
or, in each case, such other date as the Crown Shareholder and
Te Runanga agree;
Specified Shares means, subject to
clause 22, all of the Crown Shareholder's shares in the Company at the
date of this Deed, being 2,200,000 ordinary shares in the Company.
1.2 Meaning of More Favourable Terms
A reference to any Disposal terms, contract or offer (the
"firstmentioned offer") being on More Favourable Terms than any other Disposal
terms, contract or offer (the "secondmentioned offer") means that the terms and
conditions (including price) of the firstmentioned offer are, taken as a
package, more favourable from a purchaser's point of view than the terms and
conditions (including price) of the secondmentioned offer, taken as a
package.
1.3 Interpretation
In the interpretation of this Deed, unless the context requires
otherwise:
1.3.1 headings appear as a matter of convenience and are not to
affect the interpretation of this Deed;
1.3.2 words or phrases (other than proper names) appearing in
this Deed with capitalised initial letters are defined terms and bear the
meanings given to them in this Deed;
1.3.3 where a word or expression is defined in this Deed, other
parts of speech and grammatical forms of that word or expression have
corresponding meanings;
1.3.4 the singular includes the plural and vice versa, and
words importing one gender include the other genders;
1.3.5 a reference to a party to this Deed or any other document
or agreement includes that party's successors, heirs, executors and
assigns;
1.3.6 a reference to a person includes a corporation
sole and also a body of persons, whether corporate or unincorporate;
1.3.7 references to Recitals and clauses are to Recitals and
clauses of this Deed;
1.3.8 references to written or in writing include
all modes of presenting or reproducing words, figures and symbols in a tangible
and permanently visible form; and
1.3.9 a reference to a date on which something shall be done
includes any other date which may be agreed in writing between Te Runanga and
the Crown Shareholder.
2 OPERATION OF RIGHT OF FIRST REFUSAL PROVISIONS
2.1 Disposal Subject to Rights of First Refusal
Subject to clause 2.2, the Crown Shareholder shall not
Dispose of any or all of the Specified Shares until the requirements in this
Deed have been complied with.
2.2 Exceptions
The requirements in this Deed do not apply to the Disposal by
the Crown Shareholder of all (but not less than all) of its Specified Shares
to:
2.2.1 a Crown Body, so long as the Crown Body to which the
Specified Shares are Disposed takes the Specified Shares subject to the terms of
this Deed and first enters into a deed of covenant at the Crown Shareholder's
expense in favour of Te Runanga to that effect;
2.2.2 any person, if the person to whom the Specified Shares
are to be Disposed or the agreement effecting the Disposal is first approved in
writing by Te Runanga or if Te Runanga has waived its rights under this Deed by
notice to the Crown Shareholder; or
2.2.3 the Company, pursuant to any offer made by the Company to
acquire its own shares on a pro rata basis.
3 PRELIMINARY DISPOSAL NOTICE
3.1 Crown Shareholder shall give Preliminary Disposal
Notice
If the Crown Shareholder decides to attempt to Dispose of any
or all of the Specified Shares or otherwise takes any action that indicates that
it has formed an intention to Dispose of all or any of the Specified Shares,
then, unless clause 2.2 applies or this Deed otherwise permits the Crown
Shareholder to Dispose of the Specified Shares without compliance with this
clause, it shall immediately give a Preliminary Disposal Notice to Te
Runanga.
3.2 Requirements for Preliminary Disposal Notice
The Preliminary Disposal Notice shall:
3.2.1 be in writing;
3.2.2 set out the Crown Shareholder's intention to Dispose of
the Specified Shares; and
3.2.3 be accompanied by, or include, an offer to provide to Te
Runanga the Preliminary Information Package, upon receipt by the Crown
Shareholder of such confidentiality undertaking from Te Runanga as may
reasonably be required by the Crown Shareholder and the Company to preserve the
confidentiality of the Preliminary Information Package and any other
confidential information which may be provided to Te Runanga by the Crown
Shareholder or the Company in the course of the Crown Shareholder's compliance
with this Deed (including pursuant to clause 11.1). Such undertaking
shall not:
(a) preclude disclosure by Te Runanga of such information to
any other prospective purchaser which has itself entered into a confidentiality
undertaking to the same effect as Te Runanga's confidentiality undertaking,
unless such prospective purchaser is a party which the Crown Shareholder wishes
to exclude from any sales process relating to the Specified Shares and the Crown
Shareholder has given notice to that effect to Te Runanga and prohibits
disclosure to that party by other prospective purchasers; and
(b) impose more onerous obligations on Te Runanga than are
imposed, or are to be imposed, on other prospective purchasers of any or all of
the Specified Shares.
3.3 Provision of Preliminary Information Package
Upon receipt of the confidentiality undertaking referred to in
clause 3.2.3 duly executed by Te Runanga, the Crown Shareholder shall
provide the Preliminary Information Package to Te Runanga.