Benjamin Hornigold Limited 05, 06 & 07 - Orders [26/09/2019] The Takeovers Panel

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TP19/57
Thursday, 26 September 2019

Benjamin Hornigold Limited 05, 06 & 07 - Orders

The Panel made a declaration of unacceptable circumstances on 6 September 2019 in relation to the affairs of Benjamin Hornigold Limited (see TP19/50).

The Panel has made final orders (Annexure A), the effect of which includes:

  • King’s Currency Exchange Pty Ltd must return to Benjamin Hornigold approximately $7.12 million of foreign currency banknotes within 10 days
  • John Bridgeman Limited, JB Financial Group Pty Ltd and King’s Currency must not announce or make a takeover for Benjamin Hornigold until King’s Currency has returned the foreign currency banknotes1
  • Benjamin Hornigold securityholders who accepted John Bridgeman’s takeover bid may elect to void their acceptance and
  • John Bridgeman must pay costs incurred by Benjamin Hornigold and ASIC in the course of these proceedings.

The sitting Panel was Christian Johnston, John Sheahan QC (sitting President) and Sharon Warburton.

The Panel will publish its reasons for the decision in due course on its website.

Allan Bulman
Director, Takeovers Panel
Level 10, 63 Exhibition Street
Melbourne VIC 3000
Ph:+61 3 9655 3500
takeovers@takeovers.gov.au


1  Except in response to a change of control transaction described in Order 5


Annexure A

CORPORATIONS ACT
SECTION 657D
ORDERS

BENJAMIN HORNIGOLD LIMITED 05, 06 & 07

The Panel made a declaration of unacceptable circumstances on 6 September 2019.

THE PANEL ORDERS

Return of Foreign Currency Banknotes

  1. Within 10 days after the date of these orders, King’s Currency must unless restrained by an order of a court return the Foreign Currency Banknotes to Benjamin Hornigold.
  2. As soon as practicable (and no later than 3 days) after King’s Currency has returned the Foreign Currency Banknotes to Benjamin Hornigold, King’s Currency must inform the Panel, Benjamin Hornigold, John Bridgeman and JB Financial Group in writing that the Foreign Currency Banknotes have been returned to Benjamin Hornigold and specify the date on which they were returned.
  3. On the date that King’s Currency returns the Foreign Currency Banknotes to Benjamin Hornigold, King’s Currency must pay to Benjamin Hornigold all amounts due to Benjamin Hornigold under Item 4 of the Schedule to the Services Agreement as accrued up to that date.

Restraint of future bid for Benjamin Hornigold

  1. John Bridgeman, JB Financial Group and King’s Currency must not propose, announce or make any change of control transaction (including a takeover bid or scheme of arrangement) in relation to the securities of Benjamin Hornigold until King’s Currency has returned the Foreign Currency Banknotes to Benjamin Hornigold or Benjamin Hornigold otherwise consents in writing.
  2. Order 4 does not apply if a bona fide change of control transaction is proposed or made in relation to the securities of Benjamin Hornigold by a third party that the Panel is satisfied:
    1. is unrelated to John Bridgeman, JB Financial Group or King’s Currency
    2. has no significant relationship to John Bridgeman, JB Financial Group or King’s Currency and
    3. is not influenced by any of John Bridgeman, JB Financial Group or King’s Currency or anyone who is or at any time since 1 January 2019 has been an officer of any of those entities.

Cancellation of acceptances

  1. In respect of all acceptances by Accepting Securityholders pursuant to the 2019 Bid, each contract of purchase of Benjamin Hornigold securities by John Bridgeman entered into with Benjamin Hornigold securityholders pursuant to the 2019 Bid is voidable at the election of each Accepting Securityholder in accordance with and subject to Order 7.
  2. To give effect to Order 6, John Bridgeman must:
    1. unless the Panel objects under Order 13, send a notice to each Accepting Securityholder within 15 days after the date of these orders:
      1. advising of their right to avoid the contract
      2. enclosing an election form and any required transfer forms for exercise of that right
      3. advising that to elect to avoid the contract the Accepting Securityholders must take the following steps:
        1. return the completed form to John Bridgeman before 7:00pm (Melbourne time) on the date that is 21 days after the date of dispatch of the notice and
        2. give John Bridgeman any certificates and transfer documents needed to effect the return of the Benjamin Hornigold securities and the securities issued as consideration or complying with Corporations Regulation 6.6.01(2), as the case may be and
      4. explaining the effect of the Panel's declaration made 6 September 2019 in relation to the affairs of Benjamin Hornigold and these orders and
    2. promptly take all reasonable steps necessary to give effect to the exercise of a right to avoid the contract by an Accepting Securityholder.
  3. John Bridgeman must comply with Corporations Regulation 6.6.01(3) in relation to each Accepting Securityholder who avoids the contract, as if the Regulation applies to this Order.
  4. In respect of each avoided contract, the relevant John Bridgeman securities issued as consideration are cancelled with effect immediately after John Bridgeman complies with Order 7 and Order 8.
  5. In respect of any acceptances by Accepting Securityholders pursuant to the 2019 Bid that have not been processed by John Bridgeman, each Accepting Securityholder has a right to withdraw their acceptance.
  6. To give effect to Order 10, John Bridgeman must:
    1. comply with the requirements of Order 7, with such modifications as are necessary and
    2. promptly take all reasonable steps necessary to give effect to the exercise of a right to withdraw by an Accepting Securityholder.
  7. John Bridgeman must provide a form of the explanation in Order 7(a)(iv) to the Panel within 5 days after the date of these orders.
  8. If the Panel objects to the form of the explanation provided by John Bridgeman under Order 12, John Bridgeman must:
    1. make any changes to the explanation as requested by the Panel and
    2. send the notice in Order 7(a) with any changes requested under Order 13(a) to each Accepting Securityholder by no later than a date advised by the Panel.

Costs

  1. Within 10 days after the date of these orders, John Bridgeman must pay to Benjamin Hornigold $120,000.00 (plus GST) representing the costs actually, necessarily, properly and reasonably incurred by Benjamin Hornigold in the course of the proceedings.
  2. Within 10 days after the date of these orders, John Bridgeman must pay to ASIC $17,580.75 representing the costs actually, necessarily, properly and reasonably incurred by ASIC in the course of the proceedings.

Miscellaneous

  1. John Bridgeman, Benjamin Hornigold, JB Financial Group and King’s Currency must do all things necessary (including execute any document) to give effect to these orders.
  2. The parties to these proceedings and ASIC have the liberty to apply for further orders in relation to these orders.

Definitions

  1. In these orders the following terms apply:
2019 Bid
the off-market takeover bid by John Bridgeman for all of the securities in Benjamin Hornigold announced on 26 April 2019
Accepting Securityholders
Benjamin Hornigold securityholders who accepted the 2019 Bid
ASIC
Australian Securities and Investments Commission
Benjamin Hornigold
Benjamin Hornigold Limited
Corporations Regulations
Corporations Regulations 2001 (Cth)
Foreign Currency Banknotes
all foreign currency banknotes placed with King’s Currency by Benjamin Hornigold or other foreign currency with an equal value of the foreign currency banknotes pursuant to the Services Agreement
JB Financial Group
JB Financial Group Pty Ltd
John Bridgeman
John Bridgeman Limited
King’s Currency
King’s Currency Exchange Pty Ltd
Services Agreement
services agreement between Benjamin Hornigold and King’s Currency dated 21 February 2018, as amended by variation deeds dated 31 July 2018, 17 September 2018 and 12 June 2019

Tania Mattei
Counsel
with authority of John Sheahan QC
President of the sitting Panel
Dated 24 September 2019