OHE
25/02/2016 14:44
WAV/RULE
NOT PRICE SENSITIVE
REL: 1444 HRS Orion Health Group Limited
WAV/RULE: OHE: Waiver from NZX Main Board Listing Rule 7.6.1
NZX Regulation Decision
Orion Health Group Limited (OHE)
Application for a waiver from NZX Main Board Listing Rule 7.6.1
25 February 2016
Waiver from NZX Main Board Listing Rule 7.6.1
Decision
1. On the basis that the information provided by Orion Health Group Limited
("OHE") is complete and accurate in all material respects, NZX Regulation
("NZXR") grants OHE a waiver from NZX Main Board Listing Rule ("Rule") 7.6.1,
to the extent required to allow OHE to redeem Shares from the Scheme in
accordance with the terms of the Scheme.
2. The waiver in paragraph 1 is provided on the condition that terms of the
Scheme which relate to the redemption of Shares, are not amended.
3. The information on which this decision is based is set out in Appendix One
to this decision. This waiver will not apply if that information is not or
ceases to be full and accurate in all material respects.
4. Capitalised terms which have not been defined in this decision have the
meanings given to them in the Rules.
5. The Rule to which this decision relates is set out in Appendix Two to this
decision.
Reasons
6. In coming to the decision to provide the waiver set out in paragraph 1
above, NZXR has considered that:
a. the policy behind Rule 7.6.1 is to ensure that an Issuer's redemption of
Equity Securities is not conducted on terms which are unfairly preferential
or advantageous to certain Equity Security holders, at the expense of all
other Equity Security holders. Under the Scheme's terms, OHE's ability to
redeem Shares from the Scheme is solely intended to be a part of the process
for unwinding participation in the Scheme, without impacting the other OHE
shareholders. OHE submits, and NZXR has no reason not to accept, that any
redemption of Shares from the Scheme would not provide any such unfair
preference or advantage to any OHE shareholder;
b. Rule 7.6.1(k) allows an Issuer to redeem Equity Securities which were
originally issued pursuant to Rule 7.3.6. OHE submits that had the Shares
within the Scheme been issued after OHE's Listing, they would have been
issued pursuant to Rule 7.3.6, and OHE would have been able to rely on the
exception in Rule 7.6.1(k). Granting the waiver would effectively allow OHE
to rely on this exception;
c. neither OHE's Directors, nor the Trustee's Director, will benefit from
OHE's redemption of Shares from the Scheme; and
d. OHE intends to redeem Shares from the Scheme before its annual meeting of
shareholders in 2016. Requiring OHE to call a special meeting of
shareholders, in order to consider resolutions to enable OHE to redeem Shares
which were issued in accordance with the Scheme's terms, would impose
unnecessary costs on OHE, and ultimately, its shareholders.
Appendix One
1. Orion Health Group Limited ("OHE") was Listed and its ordinary shares were
Quoted on the NZX Main Board on 26 November 2014.
2. OHE operates an employee share scheme known as the Orion Health Long Term
Share Incentive Scheme ("Scheme"). The Scheme operates under a Trust Deed
dated 29 March 2013 (as amended from time to time). Orion Health Corporate
Trustee Limited ("Trustee") is the trustee of the Scheme.
3. The Scheme enables certain selected OHE employees ("Participants) in New
Zealand, Australia, the United Kingdom and the United States of America, the
opportunity to subscribe for redeemable ordinary shares in OHE ("Shares").
The Scheme is intended to align employee benefits with OHE's success.
4. Under the Scheme, Shares may be issued to the Trustee and held on trust
for the benefit of the relevant Participant, or issued to the Participant
directly to be held by the Participant subject to the rules of the Scheme.
The Trustee is an Associated Person of OHE because the Trustee is a wholly
owned subsidiary of OHE, and Mr Neil Cullimore is a Director of both OHE and
the Trustee.
5. The issue price for an allocation of Shares ("Issue Price") is determined
by OHE's Board, which shall have regard to, among other things, the fair
value of the Shares.
6. The Shares (or the equivalent amount of Shares) are vested to the
Participant in tranches over annual vesting periods if performance conditions
are achieved relating to the financial year in which the awards are made. The
performance conditions can include operating revenue and net profit before
tax targets.
7. The Shares held within the Scheme, which equates to 1.61% of all of OHE's
Shares on issue as at 9 February 2016, were issued prior to OHE Listing on
the NZX Main Board.
8. From time to time, the Scheme provides that OHE may redeem the Shares at
its option when:
a. the relevant performance hurdle has not been met within the specific
period; or
b. the Participant has ceased to be employed by OHE or a subsidiary of OHE
(other than in specified circumstances set out in the Scheme's rules).
9. When OHE proposes to redeem Shares from the Scheme, OHE will call on the
loan that the Participant used to acquire the Shares. OHE facilitates the
redemption of the Shares by paying the Issue Price of those Shares to the
Participant. The Issue Price is then used by the Participant to repay the
loan. As a result of the set-off of the Issue Price against the loan, there
is no gain or benefit made by the Participant.
10. Alternatively, a Participant can request OHE to redeem his or her Shares
from the Scheme at any time. In this case, the Participant puts the Shares to
OHE. OHE redeems the Shares by paying the Issue Price of those Shares to the
Participant. The Participant will be required to repay the loan for those
Shares. As a result of the set-off of the Issue Price against the loan, there
is no gain or benefit made by the Participant.
11. Once the Shares are redeemed under either scenario, OHE will cancel the
Shares.
12. The set-off of the Issue Price against the loan provided to a
Participant, means that a Participant is not advantaged or disadvantaged if
OHE redeems Shares from the Scheme.
13. Mr Ian McCrae is the only OHE director participating in the Scheme. His
participation is in his capacity as OHE's Chief Executive, and it is on the
same terms as other New Zealand based Participants of the Scheme.
14. The Scheme's terms pertaining to the redemption of Shares, do not meet
the requirements of the exceptions in NZX Main Board Listing Rule ("Rule")
7.6.1 for the redemption of shares without shareholder approval. OHE has
therefore sought a waiver to allow the Shares to be redeemed without
shareholder approval.
Appendix Two
Rule 7.6 Buy Backs of Equity Securities, Redemption of Equity Securities, and
Financial Assistance
Rule 7.6.1 An Issuer shall not acquire or redeem Equity Securities of that
Issuer other than by way of:
(a) an acquisition effected by offers made by the Issuer through NZX's order
matching market, or through the order matching market of a Recognised Stock
Exchange; or
(b) an acquisition effected in compliance with section 60(1)(a) (read
together with section 60(2)) of the Companies Act 1993; or
(c) an acquisition of the nature referred to in section 61(7) of the
Companies Act 1993; or
(d) an acquisition or redemption approved in accordance with Rule 7.6.5; or
(e) an acquisition required by a shareholder of the Issuer pursuant to
sections 110 or 118 of the Companies Act 1993; or
(f) an acquisition effected in compliance with section 60(1)(b)(ii) (read
together with section 61) of the Companies Act 1993 and:
(i) is made from any person who is not a Director or an Associated Person of
a Director of the Issuer; and
(g) a redemption from a holder who holds less than a Minimum Holding; or
(h) a redemption of Equity Securities issued:
(i) before 1 September 1994; or
(ii) in compliance with Rule 7.3.1(a) or Rule 7.3.4, where the Issuer is
bound or entitled to redeem those Equity Securities pursuant to their terms
of issue; or
(i) a redemption in compliance with section 69(1)(a) of the Companies Act
1993; or
(j) a redemption of Debt Securities which may be Converted into Equity
Securities in an Issuer which is a company, and, before that Conversion, they
are redeemed in cash;
(k) an acquisition or redemption of Equity Securities that were issued under
Rule 7.3.6;
Provided that for the purposes of Rule 7.6.1(f):
(l) Securities which will, or may, convert to other Equity Securities shall
be deemed to be of the same Class as, and to correspond in number to,
Securities into which they will, or may, convert; and
(m) where the Conversion ratio is fixed by reference to the market price of
the underlying Securities, the market price for the purposes of Rule 7.6.1(f)
shall be the volume weighted average market price over the 20 Business Days
before the earlier of the day the acquisition is entered into or announced to
the market.
...
End CA:00278329 For:OHE Type:WAV/RULE Time:2016-02-25 14:44:27
