Ann: WAV/RULE: BRL: BRL - Waivers and rulings fro

• Release Date: 21/06/13 11:50
• Summary: WAV/RULE: BRL: BRL - Waivers and rulings from NZSX Listing Rules
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BRL
21/06/2013 09:50
WAV/RULE

REL: 0950 HRS Bathurst Resources (New Zealand) Limited

WAV/RULE: BRL: BRL - Waivers and rulings from NZSX Listing Rules

NZX Regulation Decision - Bathurst Resources Limited ("BTU") and Bathurst
Resources (New Zealand) Limited ("BRL")

Application for various waivers and rulings from NZSX Listing Rules -
Re-domicile from Australia to New Zealand

Background

1. Bathurst Resources Limited ("BTU") is a Dual Listed Issuer on the NZX Main
Board. BTU is incorporated in Australia, has its head office in Perth and is
the parent company to the Bathurst group of companies ("Bathurst Group").
Bathurst Group's primary business is the exploration, development and
production of coal mining tenements. All Bathurst Group's projects are
located in New Zealand.

2. Bathurst Resources (New Zealand) Limited ("Bathurst NZ") is a New Zealand
registered company, incorporated on 27 March 2013.

3. BTU proposes to complete a restructure in order to re-domicile the head
company of the Bathurst Group to New Zealand ("the Restructure"). The
Restructure involves Bathurst NZ replacing BTU as the ultimate parent company
of the Bathurst Group. Bathurst Group's assets and businesses are to remain
the same with BTU becoming a wholly owned subsidiary of Bathurst NZ.

4. The Restructure is to be implemented by a court-approved scheme of
arrangement ("the Scheme") pursuant to Part 5.1 of the Corporations Act 2001
(an Australian statute). The Scheme involves:
(a) BTU shareholders will vote to approve the Restructure at a special
meeting to be held on 13 June 2013 (the "Special Meeting"). The resolution to
approve the Restructure requires approval by:
(i) a majority of BTU shareholders, by number, present and voting at the
meeting; and
(ii) no less than 75% of the votes cast at the meeting;
(b) BTU providing shareholders with a scheme booklet containing details of
the Restructure (the "Scheme Booklet"). After receiving NZX Regulation
("NZXR") and other regulatory approval, the Scheme Booklet was sent on 14 May
2013 with notice of the Special Meeting to BTU shareholders;
(c) Bathurst NZ will list on the NZX Main Board and ASX on 21 June 2013. BTU
would then delist from the NZX Main Board and the ASX on 1 July 2013;
(d) On 28 June 2013 (the "Implementation Date"), BTU shareholders receiving
newly issued Bathurst NZ shares ("Exchange Shares") in an equal exchange for
the transfer of their BTU shares to Bathurst NZ. Foreign BTU shareholders
whose address is in a jurisdiction outside Australia (including its external
territories) and New Zealand ("Ineligible Foreign Holders") will receive a
cash amount in exchange for their BTU shares (unless BTU is satisfied that
the offer and issue of Exchange Shares in that jurisdiction would not be
prohibited by law nor unduly onerous). Ineligible Foreign Holders held (at 28
February 2013) approximately 1.05% of BTU shares. The Restructure will result
in Bathurst NZ having identical shareholders (and relative control
percentages) as BTU immediately prior to the Restructure, other than
Ineligible Foreign Holders.

5. The Scheme also involves:
(a) On 29 June 2013 Bathurst NZ redeeming the one share it currently has on
issue from Mr Hamish Bohannan for $1 (the "Single Share");
(b) Bathurst NZ attempting to enter into private treaty agreements with
holders of BTU Options and Performance Rights to acquire their BTU Options
and Performance Rights. In exchange for any acquisition Bathurst NZ will
issue Bathurst NZ Options and Performance Rights on substantially similar
terms as the acquired BTU Options and Performance Rights ("Exchange of
Options and Performance Rights").

6. Bathurst NZ has approached NZXR seeking a number of waivers and rulings
from the NZX Main Board Listing Rules ("Rules") in relation to the
Restructure. Some of these waivers are technical in nature and are required
due to the timing of the Restructure, in that the Rules apply to Bathurst NZ
prior to the Implementation Date of 28 June 2013. The waivers and rulings
will take effect once Bathurst NZ becomes an Issuer on the NZX Main Board.

Application One - Rule 3.5.1

7. Rule 3.5.1 requires an Ordinary Resolution of an Issuer to authorise
Directors' remuneration. Bathurst NZ has approached NZXR seeking a waiver
from the requirement in Rule 3.5.1 that Bathurst NZ's initial directors'
remuneration pool of NZ$1,000,000 be approved by Ordinary Resolution.

8. In support of its application for a waiver from Rule 3.5.1, Bathurst NZ
submits:
(a) BTU shareholders have approved the BTU Directors' remuneration on 18
April 2011 to an amount of AU$800,000. The remuneration payable to Bathurst
NZ's Directors is disclosed in the Scheme Booklet and is the same as the
AU$800,000 previously approved level of remuneration, but denominated in New
Zealand Dollars; and
(b) It is not practical to gain Bathurst NZ shareholder approval for the
payment of Directors' remuneration prior to completion of the Restructure.

Rule - 3.5.1

9. Rule 3.5.1 provides:

No remuneration shall be paid to a Director in his or her capacity as a
Director of the Issuer or any Subsidiary, other than a Subsidiary which is
Listed (including any remuneration paid to that Director by a Subsidiary,
other than a Subsidiary which is also Listed) unless that remuneration has
been authorised by an Ordinary Resolution of the Issuer. Each such resolution
shall express Directors' remuneration as either:

(a) a monetary sum per annum payable to all Directors of the Issuer taken
together; or
(b) a monetary sum per annum payable to any person who from time to time
holds office as a Director of the Issuer.
...

Decision One - Rule 3.5.1

10. On the basis that the information provided to NZXR is full and accurate
in all material respects, NZXR grants Bathurst NZ a waiver from Rule 3.5.1 so
the initial Directors' remuneration pool need not be approved by Ordinary
Resolution, on the conditions that:
(a) BTU's current remuneration pool of AU$800,000 per annum, and Bathurst
NZ's initial Directors' remuneration pool of NZ$1,000,000 per annum, is
disclosed in the Scheme Booklet; and
(b) Any change to the level of remuneration for Directors of Bathurst NZ from
the initial Directors' remuneration pool of NZ$1,000,000 must be approved
under Rule 3.5.1, unless Rule 3.5.1 allows for such change.

Reasons - Rule 3.5.1

11. In coming to the decision to grant Bathurst NZ a waiver from Rule 3.5.1
NZXR has considered the following matters:
(a) BTU has obtained all required shareholder approvals for the remuneration
payable to BTU Directors as a Dual Listed Issuer;
(b) BTU shareholders, who will be the Bathurst NZ shareholders (other than
Ineligible Foreign Holders), will have oversight of the initial remuneration
pool to be paid to Bathurst NZ Directors, through the Scheme Booklet;
(c) As Bathurst NZ proposes to measure Directors' remuneration in New Zealand
currency, it is appropriate for the Scheme Booklet to express the Bathurst NZ
Directors' remuneration pool as an amount in New Zealand Dollars;
(d) While exchange rates may vary, when formulating the proposal for
Restructure the initial remuneration pool for Bathurst NZ Directors' fees was
equivalent in value to the current BTU Directors' remuneration pool; and
(e) If Bathurst NZ is to increase the remuneration paid to Directors beyond
the proposed directors' remuneration pool of NZ$1,000,000, Rule 3.5.1
requires the increase be approved by Bathurst NZ shareholders.

Application Two - Rules 5.1.1, 5.2.1 and 5.2.2(b)

12. Bathurst NZ has approached NZXR seeking a waiver in respect of the
requirements in Rules 5.1.1, 5.2.1 and 5.2.2(b) that require a Primary Market
Participant to be appointed to act in relation to an application for Listing
and Quotation.

13. In support of its application for a waiver from Rules 5.1.1, 5.2.1 and
5.2.2(b), Bathurst NZ submits that:
(a) Both Rule 5.1.1 and Rule 5.2.1 require an application for Listing and
Quotation to be made through a Primary Market Participant, and Rule 5.2.2(b)
requires an application for quotation to include evidence that a Primary
Market Participant has sought assurance that "Authority to Act" has not been
withdrawn;
(b) The attendant costs of requiring a Primary Market Participant's
involvement outweigh the benefit in these circumstances given the nature of
the Restructure and that Bathurst NZ is applying for Listing and Quotation as
a result of the Scheme and Restructure; and
(c) There is precedent for a waiver from Rules 5.1.1, 5.2.1 and 5.2.2(b). For
example, a 4 November 2010 decision of NZXR concerning National Property
Trust.
Rules 5.1.1, 5.2.1 and 5.2.2(b)

14. Rule 5.1.1 provides:

Any person may apply to NZX for Listing either:
(a) With NZX as the Home Exchange; or
(b) ...
Application shall be made through a Primary Market Participant acting as
Organising Participant.

15. Rule 5.2.1 provides:

An Issuer, or applicant for Listing, may apply to NZ for a Class or Classes
of its Securities to be Quoted on the NZSX or NZDX. Separate applications
must be made for each Class of Securities, through a Primary Market
Participant acting as Organising Participant...

16. Rule 5.2.2(b) provides:

The following information and material shall be submitted with an application
under Rule 5.2.1:
(a) ...
(b) evidence that the Primary Market Participant has sought assurance from NZ
that Authority to Act has not been withdrawn in respect of Securities for
which Quotation is sought or a certificate is provided under Rule 7.4 of the
NZX Participant Rules (whichever is applicable)...

Decision Two - Rules 5.1.1, 5.2.1 and 5.2.2(b)

17. On the basis that the information provided to NZXR is full and accurate
in all material respects, NZXR grants Bathurst NZ waivers from:
(a) Rules 5.1.1 and 5.2.1, to the extent those Rules require that an
application for Listing and Quotation of a class of securities be made
through a Primary Market Participant acting as Organising Participant; and
(b) Rule 5.2.2(b), to the extent that the Rule requires that an application
for Quotation under Rule 5.2.1 be submitted with evidence that the Primary
Market Participant has sought assurance from NZX that Authority to Act has
not been withdrawn in respect of securities for which quotation is sought or
that a certificate is provided under Rule 7.4 of the NZX Participant Rules
(whichever is applicable).

Reasons - Rules 5.1.1, 5.2.1 and 5.2.2(b)

18. In coming to the decision to grant Bathurst NZ a waiver from Rules 5.1.1,
5.2.1 and 5.2.2(b), NZXR considered that, as the exchange of BTU shares for
Bathurst NZ shares is being made pro rata after approval at the Scheme
Meeting (other than for Ineligible Foreign Shareholders), and no subscription
money is to be received under the Scheme, a Primary Market Participant acting
as Organising Participant is not required to ensure the success of the
Restructure.

Application Three - Rules 5.2.2(c) and 7.1.1

19. Bathurst NZ has approached NZXR seeking a waiver in respect of the
requirement in Rule 5.2.2(c) to submit an Offering Document with an
application to List on the NZX Main Board and the requirement in Rule 7.1.1
to issue an Offering Document or Profile.

20. In support of its application for a waiver from Rules 5.2.2(c) and 7.1.1,
Bathurst NZ submits:
(a) The Financial Markets Authority ("FMA") has issued an exemption notice,
being the "Securities Act (Bathurst Resources (New Zealand) Limited)
Exemption Notice 2013" (the "Securities Act Exemption"), such that no
prospectus or investment statement is required under the Securities Act 1978
for the offer and issuance of Bathurst NZ shares pursuant to the Restructure.
As such there will be no Offering Document for Bathurst NZ unless NZX
requires a Profile in accordance with Rule 7.1.1;
(b) In the circumstances of the Restructure Bathurst NZ does not consider it
is necessary for a Profile to be prepared. The business and assets of
Bathurst NZ will be the same as that of BTU, of which disclosure has already
been made to NZX (and upon listing of Bathurst NZ, the earlier announcements
of BTU will continue to be available in this respect); and
(c) The additional information required by market participants with respect
to the Restructure and Bathurst NZ will be provided in the Scheme Booklet,
which will be available prior to the listing of Bathurst NZ, and NZX has
provided its approval of the Scheme Booklet. No further information would be
usefully provided in a Profile.
Rules 5.2.2(c) and 7.1.1

21. The relevant provisions of Rule 5.2.2(c) provide:
The following information and material shall be submitted with an application
under Rule 5.2.1:
...
(c) a draft Offering Document in respect of the Securities ...

22. Rule 7.1.1 provides:

An Issuer or applicant for Listing shall prepare and issue an Offering
Document:

(a) if required to do so by the Securities Act 1978 or any other legislation;
and
(b) if required to do so by NZX, when an applicant for Listing or Quotation
seeks initial Quotation of Securities of the Class in question ...

If the Issuer or applicant is required (or by for an exemption granted by the
Securities Commission under section 5 of the Securities Act 1978, would have
been required) to register a Prospectus under the Securities Act 1978, the
Offering Document shall be if the Issuer or applicant has an Investment
Statement, an Investment Statement. In other circumstances, the Offering
Document shall be a Profile.

Decision Three - Rules 5.2.2(c) and 7.1.1

23. On the basis that the information provided to NZXR is full and accurate
in all material respects, NZXR grants Bathurst NZ a waiver from the
requirement to provide or issue an Offering Document or Prospectus under
Rules 5.2.2(c) and 7.1.1 on the condition that:
(a) A Scheme Booklet is provided to BTU shareholders that has been reviewed
and approved by NZX;
(b) The Scheme Booklet include all information required under the Securities
Act Exemption; and
(c) All conditions of the Securities Act Exemption are satisfied.
Reasons - Rules 5.2.2(c) and 7.1.1

24. In coming to the decision to grant Bathurst NZ a waiver from Rules
5.2.2(c) and 7.1.1, NZXR has considered the following matters:
(a) FMA has provided Bathurst NZ with the Securities Act Exemption, exempting
BTU from the requirements to prepare an investment statement, it is therefore
appropriate for the Scheme Booklet to comply with the conditions of the
Securities Act Exemption;
(b)  The waiver did not preclude NZX from requiring the Scheme Booklet to
contain any information that NZX in its sole discretion, reasonably required;
and
(c)  NZXR has reviewed and approved the Scheme Booklet before its release.
Application Four - Rule 7.3.6

25. BTU has a Long Term Incentive Plan (the "Current Plan") in place to help
align Employee and Director's ambitions with those of BTU. The Current Plan
allows for the issue of Performance Rights to certain Directors and Employees
of BTU. Under the terms of the Current Plan it is possible for the
Performance Rights to Convert into BTU Equity Securities when the holder of
the Performance Rights is no longer an Employee or Director of BTU, for
example through death or retirement. BTU shareholders originally approved the
Current Plan on 20 November 2012 and will vote at a General Meeting to
approve amendments to the Current Plan on 13 June 2013.

26. As part of the Restructure Bathurst NZ will adopt a plan equivalent to
the Current Plan (the "Replacement Plan"). Participants in the Current Plan
will become participants of the Replacement Plan. Performance Rights on issue
under the Current Plan will be exchanged for Performance Rights in Bathurst
NZ under the Replacement Plan.

27. Rule 7.3.6 allows the issue of Equity Securities to Employees of an
Issuer and would allow Bathurst NZ to convert the Performance Rights into
shares to persons who are Employees of Bathurst NZ at the time of Conversion.
Rule 7.3.9 allows Directors or Associated Persons of a Director to
participate in an issue under Rule 7.3.6 if their participation is determined
by criteria applying to Employees generally.

28. The definition of Employees in the Rule does not include ex-employees, so
Rule 7.3.6 does not allow for the issue of Equity Securities pursuant to the
Conversion of Performance Rights  to persons in the Replacement Plan who are
no longer Employees at the time of Conversion (for example persons who were
Employees but have retired). Bathurst NZ has approached NZXR seeking a ruling
that participants in the Replacement Plan, who are no longer Employees at the
time of Conversion, fall within the definition of "Employee" in Rule 7.3.6.
This ruling will permit the issue of Equity Securities, on the Conversion of
Performance Rights, to persons who are no longer Employees or Directors as
defined in the Rules at the time of the Conversion.
Rule 7.3.6

29. Rule 7.3.6 provides:
An Issuer may issue Equity Securities if:

(a) the issue is to Employees of the Issuer...
...

In Rule 7.3.6 and 7.3.10, "Employee" in relation to an Issuer includes an
employee or officer of the Issuer or any of its Subsidiaries, a labour only
contractor, consultant, or consultant company who or which contracts with the
Issuer or any of its Subsidiaries, any trustee or trustees on behalf of any
of the above employees or officers, and any trustee or trustees of or in
respect of any pension, superannuation or like fund established for the
benefit of any of the above employees or officers.

30. Rule 7.3.9 provides:

Directors and Associated Persons of Directors may participate in an issue
under Rule 7.3.6 if their participation is determined by criteria applying to
employees generally.

Decision Four - Rule 7.3.6

31. On the basis that the information provided to NZXR is full and accurate
in all material respects, NZXR rules that where a person was an Employee, or
a Director, at the time of the issuance of the Performance Rights under the
Replacement Plan, they are deemed to be an Employee for the purposes of Rule
7.3.6, and (where applicable) are deemed to be a Director for the purposes of
Rule 7.3.9, at the time of Conversion of the Performance Rights.

Reasons - Rule 7.3.6

32. In coming to the decision to provide the ruling in paragraph 31 NZXR has
considered the following matters:
(a) The material terms of eligibility under the Current Plan were disclosed
to BTU shareholders when approval was sought on 20 November 2012 and 13 June
2013;
(b) Rule 7.3.6 did not apply to BTU as a Dual Listed Issuer when the Current
Plan was implemented, as Appendix 17 of the Rules exempts Dual Listed Issuers
from the requirements of Rule 7.3.6;
(c) It is appropriate for Bathurst NZ to ensure it can continue to
incentivise employees through the use of the Replacement Plan as this aligns
the goals of an employee or Director with those of Bathurst NZ; and
(d) This waiver is consistent with the policy of Rule 7.3.6 that those
eligible for Equity Securities are connected to an Issuer by way of
employment or service.

Application Five - Rule 7.3.11(b)(ii)

33. Rule 7.3.11(b)(ii) allows an Issuer to issue Equity Securities upon
Conversion of a Security, if the precise terms of the Security were approved
in accordance with Rule 7.3.1(a). BTU currently has Options issued pursuant
to the Employee Share Option Plan (the "Option Plan") and Performance Rights
on issue under the Current Plan that may Convert to Equity Securities.

34. BTU shareholders approved the Current Plan on 20 November 2012 and will
again consider it for approval on 13 June 2013, and approved the Option Plan
on 8 September 2008 or 29 November 2010, but did not specifically approve the
issuance of all Options and Performance Rights under the Option Plan and
Current Plan.

35. In addition BTU has (or will have) obtained specific approvals to the
issuances of certain Options and Performance Rights on issue. BTU
shareholders provided this approval on 18 August 2010, 4 November 2010, 29
November 2010, 18 April 2011 and 13 June 2013 under the ASX Listing Rules,
however these approvals were not provided for the purposes of Rule 7.3.1(a).

36. Rule 7.3.11 requires either than an Issuer obtain approval to the
issuance of Securities that Convert into Equity Securities at the time those
Securities are issued or prior to their Conversion. Bathurst NZ will not have
the requisite approval under the Rules in order to Convert the Options and
Performance Rights to be issued under the Exchange of Options and Performance
Rights.

37. Bathurst NZ has approached NZXR seeking a waiver and ruling in respect of
the condition in Rule 7.3.11(b)(ii) that it obtain approval under Rule
7.3.1(a) for the Conversion of the Options and Performance Rights issued
under the Exchange of Options and Performance Rights.

38. The waiver is to allow for the Conversion into Equity Securities of
Options and Performance Rights issued by Bathurst NZ pursuant to the Exchange
of Options and Performance Rights relating to Options and Performance Rights
for which BTU obtained the approval described in paragraph 34.

39. The ruling is to allow Bathurst NZ to rely on the approvals described in
paragraph 35 to Convert into Equity Securities the Options and Performance
Rights issued by Bathurst NZ, pursuant to the Exchange of Options and
Performance Rights, for the Options and Performance Rights for which BTU has
obtained the specific shareholder approval described in paragraph 35.

40. In support of its application for the waiver and ruling from Rule
7.3.11(b)(ii) described above, Bathurst NZ submits:
(a) Approval of Bathurst NZ shareholders to the issuance of the Options and
Performance Rights is unnecessary given the existing BTU Options and
Performance Rights were issued in accordance with the listing rules of ASX
Limited either by virtue of general plan approval or specific approval or
ratification;
(b) The shareholder base of BTU and Bathurst NZ is largely the same apart
from the Ineligible Foreign Holders. Although Bathurst NZ has not sought
approval for the issuance of the Options and Performance Rights, BTU obtained
the approvals for the issuance of Options and Performance Rights in
accordance with ASX Listing Rules;
(c) The Options and Performance Rights have the approval necessary to Convert
to Equity Securities in BTU under ASX Listing Rules; and
(d) The Restructure should not preclude Conversion of the Options and
Performance Rights that will be issued by Bathurst NZ in exchange for the
Options and Performance Rights issued by BTU as to do so would disincentive
those participants who provide services to BTU (which will become Bathurst
NZ) post the Restructure.
Rule 7.3.11(b)(ii)

41. Rule 7.3.11(b)(ii) provides:

An Issuer may issue Equity Securities if:
(b) the issue is made upon Conversion of:
(i) an Equity Security; or
(ii) any other Security , which on issue was approved in the manner set out
in Rule 7.3.1(a), as if Rule 7.3.1(a) applied to that Security.

42. Rule 7.3.1(a) provides:

No Issuer shall issue any Equity Securities (including issue on Conversion of
any other Security) unless:
(a) the precise terms and conditions of the specific proposal to issue those
Equity Securities have been approved (subject to Rule 7.3.3) by separate
resolutions (passed by a simple majority of Votes) of holders of each Class
of Quoted Equity Securities of the Issuer whose rights or entitlements could
be affected by that issue ...

Decision Five - Rule 7.3.11(b)(ii)

43. On the basis that the information provided to NZXR is full and accurate
in all material respects, NZXR grants Bathurst NZ a waiver from the
requirement to obtain approval in the manner set out in Rule 7.3.1(a) for the
issue of the Equity Securities that arise by virtue of the Conversion into
Equity Securities of the Bathurst NZ Options and Performance Rights it grants
in exchange for the Options and Performance Rights that were originally
issued by BTU under the BTU Employee Share Option Plan (approved by
shareholders on 8 September 2008 or 29 November 2010) or the Long Term
Incentive Plan (approved or to be approved by BTU shareholders 20 November
2012 or 13 June 2013).

44. On the basis that the information provided to NZXR is full and accurate
in all material respects, NZXR rules that, for the purposes of Rule
7.3.11(b)(ii), the issue by Bathurst NZ of Options or Performance Rights to
replace BTU Options and Performance Rights (as part of the Exchange of
Options and Performance Rights) that were, or are, to be approved or ratified
by BTU shareholders in meetings on 18 August 2010, 4 November 2010, 29
November 2010, 18 April 2011 and 13 June 2013, has been approved in the
manner set out in Rule 7.3.1(a), as if Rule 7.3.1(a) applied to the Options
and Performance Rights.

Reasons - Rule 7.3.11(b)(ii)

45. In coming to the decision to grant Bathurst NZ a waiver and ruling in
respect of Rule 7.3.11(b)(ii) NZXR has considered the following matters:
(a) The Conversion into Equity Securities of Options and Performance Rights
issued pursuant to the Exchange of Options and Performance Rights is to
preserve the entitlements of those who hold BTU Options and Performance
Rights, and would continue to have, but for the Restructure. In this respect
it is appropriate to grant the waiver and ruling;
(b) To require extra approval in order for the Options and Performance Rights
issued under the BTU Current Plan to Convert to Bathurst NZ Equity Securities
would be burdensome and unfair to participants who have provided services to
BTU and could impair the performance of those participants and employees of
Bathurst NZ;
(c) The purpose of the issue of the Options and Performance Rights was to
incentivise performance and to require extra approval in relation to their
Conversion into Equity Securities may have a negative effect on Bathurst NZ;
(d) Bathurst has submitted, and NZXR has no reason not to accept, that as the
Performance Rights and Options to be issued by Bathurst NZ are set out in the
Scheme Booklet, BTU shareholders will be aware that in voting in favour of
the Restructuring they will be voting in favour of the issue of the Bathurst
NZ Options and Performance Rights and their subsequent Conversion into Equity
Securities; and
(e) NZXR has reviewed and is satisfied the Options and Performance Rights
currently on issue were issued under BTU shareholder oversight, either by
virtue of approval of the Current Plan or Option Plan or through specific
approval or ratification at shareholder meetings. NZXR considers it
appropriate to grant a waiver for the Options and Performance Rights
originally issued under plans approved by BTU shareholders and appropriate to
grant a ruling where BTU shareholders have specifically approved or ratified
an issue of Options or Performance Rights, to allow for the Conversion of
those Options and Performance Rights into Equity Securities.
Waivers and rulings required due to the Restructure occurring after the
Listing of Bathurst NZ

Application Six - Rule 7.1.11

46. Rule 7.1.11 requires the minimum subscription amount not to be less than
a Minimum Holding. Bathurst NZ has approached NZXR seeking a waiver in
respect of the requirements in Rule 7.1.11 to allow BTU shareholders with
less than a Minimum Holding to become Bathurst NZ shareholders under the
Restructure. Rule 7.1.11 provides that the minimum subscription by any person
under an issue of Securities must be for at least a Minimum Holding, unless
the issue is a Rights issue.

47. In support of its application for a waiver from Rule 7.1.11, Bathurst
submits that it is fundamental to the Restructure that BTU shareholders
receive shares in Bathurst NZ on a 1:1 pro rata basis (other than Ineligible
Foreign Holders), and that there is therefore no creation of any new
shareholdings of less than a Minimum Holding, rather this is a continuation
of any existing small BTU shareholdings.
Rule 7.1.11

48. Rule 7.1.11 provides:

In any issue of Securities (other than by a Rights issue or issue under Rule
7.3.11(e)), the minimum subscription by any person shall not be less than a
Minimum Holding.

Decision Six - Rule 7.1.11

49. On the basis that the information provided to NZXR is full and accurate
in all material respects, NZXR waives the requirement in Rule 7.1.11 for
Bathurst NZ to issue Securities of an amount that is at least a Minimum
Holding, on the basis that Bathurst NZ shares are to be issued to BTU
shareholders, other than Ineligible Foreign Shareholders, on a 1:1 pro-rata
basis.

Reasons - Rule 7.1.11

50. In coming to the decision to grant Bathurst NZ a waiver from Rule 7.1.11,
NZXR has considered the following matters:
(a) Rule 7.1.11 does not apply to Securities issued under a Rights issue on
the basis that Rights are issued on a pro-rata basis. As Bathurst NZ shares
will be issued on a pro-rata basis to BTU shareholders (other than Ineligible
Foreign Shareholders), the policy of the Rule is not offended by the waiver;
and
(b) It is integral to the Scheme that the Restructure is made pro-rata and
there is no creation of new shareholders who hold less than the Minimum
Holding.

Application Seven - Rule 7.3.1

51. Rule 7.3.1 prohibits the issue of Equity Securities without shareholder
approval other than in certain prescribed circumstances. As outlined in
paragraph 4(c), due to Bathurst NZ's Listing prior to the issue of the
Exchange Shares, Bathurst NZ must comply with Rule 7.3.1 when making the
issue of Exchange Shares.

52. Bathurst NZ has approached NZXR seeking a waiver in respect of the
requirement to gain approval from shareholders for the issuance of the
Exchange Shares that will be issued to BTU shareholders in consideration for
the surrender of the BTU shares pursuant to the Restructure.

53. Rule 7.3.1(a) requires approval of the issue of Bathurst NZ shares by
each Class of Quoted Equity Securities. Bathurst submits that the
requirements of Rule 7.3.1 cannot be satisfied given the timetable for the
Restructure and that approval in accordance with Rule 7.3.1 is unnecessary
given the procedures followed for the Restructure which include approval of
the Scheme by BTU shareholders, the provision of a report from an independent
expert, and court approval.
Rule 7.3.1

54. Rule 7.3.1(a) provides:

No Issuer shall issue any Equity Securities (including issue on Conversion of
any other Security) unless:
(a) the precise terms and conditions of the specific proposal to issue those
Equity Securities have been approved (subject to Rule 7.3.3) by separate
resolutions (passed by a simple majority of Votes) of holders of each Class
of Quoted Equity Securities of the Issuer whose rights or entitlements could
be affected by that issue, and that issue is completed within the time
specified in Rule 7.3.2; ...

Decision Seven - Rule 7.3.1

55. On the basis that the information provided to NZXR is full and accurate
in all material respects, NZXR grants Bathurst NZ a waiver from the Rule
7.3.1 requirement for Bathurst NZ to obtain specific shareholder approval for
the issue of the Exchange Shares, on the conditions that:
(a) All material details of the Exchange Shares, including material details
of their issue, are appropriately disclosed in the Scheme Booklet;
(b)  BTU has obtained shareholder approval for the Scheme; and
(c) NZXR has reviewed and approved the Scheme Booklet.

Reasons - Rule 7.3.1

56. In coming to the decision to grant Bathurst NZ a waiver from Rule 7.3.1
NZXR has considered the following matters:
(a) Bathurst has submitted, and NZXR has no reason not to accept, that
Bathurst NZ can not gain the approval Quoted Equity Security holders for the
issue of the Exchange Shares due to the timetable for the Restructure;
(b) Approval for the issuance is unnecessary due to the procedures followed
in formulation and completion of the Scheme and Restructure;
(c) All material details of the Exchange Shares, including material details
of the issue were appropriately disclosed in the Scheme Booklet; and
(d) NZXR had the opportunity to review and approve the Scheme Booklet.
Application Eight - Rules 7.3.5 and 7.3.6

57. On 21 June 2013 Bathurst NZ will be Listed and will have one share on
issue, prior to the implementation of the Restructure on 28 June 2013, when
the issue of the Exchange Shares is to occur.

58. Rules 7.3.5 and 7.3.6 allow an Issuer to issue Equity Securities under a
placement or to Employees so long as the number of Securities to be issued
fall below limits that are determined initially by reference to the number of
Equity Securities on issue from date an Issuer is Listed.

59. Rules 7.3.5 and 7.3.6 permit Bathurst NZ to issue Securities calculated
by reference to the Single Share, rather than the number of shares Bathurst
NZ will have on issue after the issue of the Exchange Shares, Options and
Performance Rights.

60. Bathurst NZ seeks waivers in respect of the limits prescribed by Rules
7.3.5 and 7.3.6 in order to preserve its ability to issue Equity Securities
under Rules 7.3.5 and 7.3.6.

61. In support of its application for a waiver from Rules 7.3.5 and 7.3.6,
Bathurst submits:
(a) Bathurst NZ wishes to have the flexibility for Bathurst NZ's employees to
be issued Performance Rights under the Replacement Plan and to effect
placements under Rule 7.3.5.  In this respect, Bathurst NZ would seek to
issue shares on conversion of the Performance Rights pursuant to Listing Rule
7.3.6, and to effect placements pursuant to Rule 7.3.5.
(b) It is not appropriate for Bathurst NZ to determine the amount of Equity
Securities it is able to issue under Rules 7.3.5 and 7.3.6 by reference to
one share. Bathurst NZ has one share at the date of Listing and only by
virtue of the mechanics of the timing of Quotation and Restructure and a more
accurate reflection of Bathurst NZ's number of Shares on issue will be the
number after the issue of the Exchange Shares and Exchange of Options and
Performance Rights has occurred.
Rules 7.3.5 and 7.3.6

62. Rule 7.3.5 provides:

An Issuer may issue Equity Securities if:

(a) the total number of Equity Securities issued, and all other Equity
Securities of the same Class issued pursuant to this Rule 7.3.5 during the
shorter of the period of 12 months preceding the date of the issue and the
period from the date on which the Issuer was Listed to the date of the issue,
will not exceed the aggregate of:
(i) 20% of the total number of Equity Securities of that Class on issue at
the commencement of that period...

63. Rule 7.3.6 provides:

An Issuer may issue Equity Securities if:

(a) the issue is to Employees of the Issuer; and
(b) the issue is of a Class of Securities already on issue; and
(c) the total number of Equity Securities issued, and all other Equity
Securities of the same Class issued to Employees of the Issuer pursuant to
this Rule 7.3.6 during the shorter of the period of 12 months preceding the
date of the issue and the period from the date on which the Issuer was Listed
 to the date of the issue, does not exceed 3% of the aggregate of:
(i) the total number of Equity Securities of that Class on issue at the
commencement of that period; and
(ii) the total number of Equity Securities of that Class issued during that
period pursuant to any Rules 7.3.1(a), 7.3.4, 7.3.5 and 7.3.11...

Decision Eight - Rules 7.3.5 and 7.3.6

64. On the basis that the information provided to NZXR is full and accurate
in all material respects, and subject to the condition in paragraph 65,
below, NZXR grants Bathurst NZ a waiver until 1 July 2014 from the
requirement in Rule 7.3.5(a)(i) and 7.3.6(c)(i) that the relevant period to
assess the total number of Equity Securities is from the date of Listing.

65. Until 1 July 2014, for the purposes of assessing the total number of
Equity Securities for the application of Rule 7.3.5(a)(i) and 7.3.6(c)(i),
Bathurst NZ is to determine the total number of Equity Securities as the
number on issue after the issue of the Exchange Shares and issue of all
replacement Options and Performance Rights pursuant to the Restructure (which
will all be issued on or about 28 June 2013).

Reasons - Rules 7.3.5 and 7.3.6

66. In coming to the decision to grant Bathurst NZ waivers from Rules 7.3.5
and 7.3.6 NZXR has considered the following matters:
(a) Bathurst Group's assets and businesses will remain the same, but for
Bathurst NZ being the new parent company after the Restructure. It is
sensible Bathurst NZ's ability to issue Equity Securities pursuant to Rules
7.3.5 and 7.3.6 is materially the same as if BTU was a Primary Listed Issuer
on the NZX Main Board and wished to issue Equity Securities under Rules 7.3.5
and 7.3.6; and
(b) Bathurst NZ shareholders will not be disadvantaged by the waiver as the
limits that Rules 7.3.5(a)(i) and 7.3.6(c)(i) will continue to apply as if
BTU continued as an Issuer.

Application Nine - Rule 7.6.1

67. On Listing Bathurst NZ will have one Single Share held by Mr Bohannan. It
is fundamental to the Restructure that this be redeemed in order to implement
the Scheme as proposed. Rule 7.6.1 prohibits the redemption of Equity
Securities other than in certain circumstances, including where under Rule
7.3.1(a) shareholders have approved the terms and conditions of the Equity
Securities and the terms of issue include the right of redemption.

68. Bathurst has approached NZXR seeking a waiver in respect of the
requirements in Rule 7.6.1 to permit Bathurst NZ to redeem the Single Share.
In support of its application for waiver from Rule 7.6.1 Bathurst submits
redemption of the Single Share is necessary to effect the Scheme and
Restructure and is a mechanical step in the Restructure process.
Rule 7.6.1

69. Rule 7.6.1 provides:

An Issuer shall not acquire or redeem Equity Securities of that Issuer other
than by way of... [certain prescribed circumstances].

70. Rule 7.6.5 provides:

An Issuer may acquire or redeem Equity Securities under Rule 7.6.1(d), or
give financial assistance under Rule 7.6.3(b), if the precise terms and
conditions of the specific proposal (the "Proposal") to acquire or redeem
those Equity Securities, or ot the giving of that financial assistance, have
been approved by separate resolutions (passed by a simple majority of Votes)
of members of each separate group of each Class of Quoted Equity Securities
of the Issuer whose rights or entitlements are materially affected in a
similar way by the Proposal.

Decision Nine - Rule 7.6.1

71. On the basis that the information provided to NZXR is full and accurate
in all material respects, NZXR waives the prohibition contained in Rule 7.6.1
to the extent necessary to allow Bathurst NZ to redeem one Bathurst NZ Equity
Security from Mr Bohannan.

Reasons - Rule 7.6.1

72. In coming to the decision to grant Bathurst NZ a waiver from Rule 7.6.1
NZXR has considered the following matters:
(a) The issue of the Single Share was part of the Restructure, specifically
the incorporation of Bathurst NZ. It is appropriate for Bathurst NZ to redeem
the Single Share once the issue of the Exchange Shares is complete;
(b) The material terms of the Restructure, including that Mr Bohannan holds
the Single Share and that it is intended the Single Share will be redeemed
after the issue of the Exchange Shares, were appropriately disclosed in the
Scheme Booklet; and
(c) As BTU shareholders will vote to approve the Restructure there is no
requirement to require Bathurst NZ shareholder approval for the redemption of
the Single Share.

Application Ten - Rules 9.1.1 and 9.2.1

73. As outlined in paragraph 4(c), above, Bathurst NZ will be Listed while
BTU is Listed so both BTU and Bathurst NZ are subject to the Rules. Rules
9.1.1 and 9.2.1 require approval by Bathurst NZ shareholders, by Ordinary
Resolution, to the series of transactions comprised in the Scheme and
Restructuring (being the acquisition of BTU shares, issue of Bathurst NZ
shares, redemption of the Single Share, and the Exchange of Options and
Performance Rights (and any subsequent exercise of those Options and
Performance Rights)) recognising the size of those transactions, and that
Directors of Bathurst NZ (as BTU shareholders) will be parties to those
transactions.

74. Bathurst NZ has approached NZXR seeking a waiver in respect of the
requirements in Rules 9.1.1 and 9.2.1 to gain shareholder approval for steps
to give effect to the Restructure to allow for completion of the Restructure
and Scheme.

75. In support of its application for a waiver from Rules 9.1.1 and 9.2.1,
Bathurst submits:
(b) It is of course possible for these transactions to be approved, prior to
the listing of Bathurst NZ, by the sole initial shareholder (by written
resolution under section 122 of the Companies Act 1993).  It does not appear
to us that this is sufficient or appropriate under the Rules, as (for
example) Rules 9.2.5 and 9.3.1 will not have been compiled with.  We do not
believe further shareholder approval for the Scheme is necessary given the
approval to be obtained from BTU shareholders in relation to the Scheme.

76. Rule 9.1.1 applies to the Restructure as on Listing Bathurst NZ will have
one share on issue at a value of $1. The Restructure will therefore be a
series of transactions in excess of 50% of the Average Market Capitalisation
of Bathurst NZ.

77. Rule 9.2.1 applies as Bathurst NZ will be a Related Party of BTU in terms
of Rule 9.2.3 due to the Directors of BTU also being Directors of Bathurst
NZ.
Rules 9.1.1 and 9.2.1

78. Rule 9.1.1 provides:

An Issuer shall not (subject to Rule 9.1.3) enter into any transaction or
series of linked or related transactions to acquire, sell, lease, exchange,
or otherwise dispose of (otherwise than by way of charge) assets of the
Issuer or assets to be held by the Issuer:

(a) which would change the essential nature of the business of the Issuer; or

(b) in respect of which the gross value is in excess of 50% of the Average
Market Capitalisation of the Issuer;

except with the prior approval of an Ordinary Resolution of the Issuer or a
special resolution if that Issuer must obtain approval of the transaction or
transactions by a special resolution under section 129 of the Companies Act
1993.

79. Rule 9.2.1 provides:

An Issuer shall not enter into a Material Transaction if a Related Party is,
or is likely to become:
(c) a direct or indirect party to the Material Transaction, or to at least
one of a related series of transactions of which the Material Transaction
forms part;
(d) ...
unless that Material Transaction is approved by an Ordinary Resolution of the
Issuer.

80. Footnote 1 to Rule 9.2.1 provides:

NZX may waive the requirement to obtain the approval of a resolution for the
purposes of Rule 9.2.1 if it is satisfied that the personal connections with,
or involvement or personal interest of a Related Party are immaterial or
plainly unlikely to have influenced the promotion of the proposal to enter
into the transaction or its terms and conditions.

81. Rule 9.2.2 provides:

For the purposes of Rule 9.2.1, "Material Transaction" means a transaction or
a related series of transactions whereby an Issuer:
(a) Purchases or otherwise acquires, gains, leases (as lessor or lessee) or
sells or otherwise disposes of, assets having an Aggregate Net Value in
excess of 10% of the Average Market Capitilisation of the Issuer; or
(b) ...

82. Rule 9.2.3 provides:

For the purposes of Rule 9.2.1, "Related Party" means a person who is at the
time of a Material Transaction, or was at any time within six months before a
Material Transaction:
(a) a director or executive officer of the Issuer or any of its Subsidiaries;
or
(b) ...

Decision Ten - Rules 9.1.1 and 9.2.1

83. On the basis that the information provided to NZXR is full and accurate
in all material respects, NZXR grants Bathurst NZ a waiver from the
requirements in Rules 9.1.1 and 9.2.1 to allow Bathurst NZ to enter into the
Restructure (and proceed with the transactions referenced to in paragraph 73)
without seeking approval of shareholders in accordance with Rules 9.1.1 and
9.2.1.
Reasons - Rules 9.1.1 and 9.2.1

84. In coming to the decision to grant Bathurst NZ a waiver from Rules 9.1.1
and 9.2.1 NZXR has considered the following matters:

(a) Rule 9.1.1 requires shareholder approval for certain major transactions
or those that change the essential nature of an Issuer. In these
circumstances NZXR is comfortable that due to the intention of the
Restructure (to re-domicile the Bathurst Group), the disclosure made in the
Scheme Booklet and the requirement for BTU shareholder approval, the
shareholder approval requirements in Rule 9.1.1 should not apply;

(b) The mischief that Rule 9.2.1 seeks to prevent is the entering into
material transactions where there is undue influence by a Related Party, in
particular to undertake a transaction on favourable terms to that Related
Party. This mischief is not present in relation to the Restructure;

(c) The policy underlying Rule 9.2.1 is to ensure that Security Holders have
the opportunity to review and approve, on a fully informed basis, all
Material Transactions with Related Parties. BTU shareholders, who through the
Restructure will become Bathurst NZ shareholders (other than Ineligible
Foreign Holders) will have an opportunity to consider and vote on the
Restructure; and

(d) All BTU shareholders are treated in the same way under the Restructure,
other than Ineligible Foreign Holders. There is no transfer of value from BTU
shareholders as all assets in BTU will become the assets of Bathurst NZ.

ENDS.
End CA:00237670 For:BRL    Type:WAV/RULE   Time:2013-06-21 09:50:27