SkyCity Incentive Plan 2011
NZX Market Supervision Decision
SKYCITY Entertainment Group Limited
Application for Waiver from NZSX Listing Rule 7.3.1.
SKC - Waiver from NZSX Listing Rule 7.3.1
19 April 2011
NZX Market Supervision Decision
SKYCITY Entertainment Group Limited
Application for Waiver from NZSX Listing Rule 7.3.1.
Background
1. SKYCITY Entertainment Group Limited (“SKC”) is listed on the NZSX Market.
2. SKC operates a long-term incentive plan (“CEO LTI Plan”) for its Chief Executive Officer, Mr Nigel Morrison (the “CEO”). SKC also operates a separate long-term incentive plan (“Executive LTI Plan”) for SKC’s senior executives, which is on the same terms as the CEO LTI Plan. The terms of both plans were approved by shareholders at SKC’s 2009 Annual Meeting.
3. The main terms of the CEO LTI Plan are as follows:
(a) the CEO LTI Plan enables the CEO to purchase SKC shares at market value with the assistance of an interest free loan;
(b) the value of the CEO’s entitlement under the CEO LTI Plan is, in accordance with the CEO’s employment agreement, reviewed annually;
(c) the number of SKC shares to be acquired under the CEO LTI Plan each year is calculated by dividing the value nominated by SKC’s Board of Directors (“Board”) for that year by the weighted average price of SKC shares in the 10 trading day period following the date on which SKC’s preliminary announcement of its annual financial results is made to the market;
(d) shares purchased under the CEO LTI Plan are held by the trustee of the CEO LTI Plan for a minimum three year restrictive period; and
(e) full vesting of shares purchased under the CEO LTI Plan is subject to the CEO’s continued employment and the achievement of certain performance objectives.
4. SKC’s 2009 Notice of Meeting noted that the maximum number of shares that would be acquired by the CEO under the CEO LTI Plan within three years of the shareholder approval (i.e., by 30 October 2012) was 2,000,000 shares.
5. In relation to the approval sought at its 2009 Annual Meeting, SKC was granted a waiver by NZX from the requirement in NZSX Listing Rule (“Rule”) 6.2.2(b) to prepare and send to shareholders an appraisal report. Shareholder approval in respect of the financial aspects of the CEO LTI Plan was also sought and obtained at SKC’s 2009 Annual Meeting.
6. The CEO has received two allocations under the CEO LTI Plan:
(a) 366,300 shares having an aggregate value of $1.2 million were purchased on 19 March 2010 at $3.276 per share in respect of the financial year ended 30 June 2009; and
(b) 415,945 shares having an aggregate value of $1.2 million were purchased on 31 August 2010 at $2.885 per share in respect of the financial year ended 30 June 2010.
7. As noted above in paragraph 3(c), the number of SKC shares to be acquired under the CEO LTI Plan each year is calculated by dividing the value of the CEO’s LTI entitlement for that year by the weighted average price of SKC shares in the 10 trading day period following the date on which SKC’s preliminary announcement of its annual financial results is made to the market (i.e., on a day at the end of August/beginning of September each year).
8. SKC proposes to amend the terms of the CEO LTI Plan to enable the company to make allocations twice annually, being:
(a) at the end of the 10 trading day period after the date on which SKC’s preliminary announcement of its half-yearly financial results is made to the market; and
(b) at the end of the 10 trading day period after the date on which SKC’s preliminary announcement of its annual financial results is made to the market,
(the “Plan Amendment”).
9. Upon implementing the Plan Amendment, the Board is proposing to make allocations with effect from the recent half-year results and proposes that:
(a) shares having an aggregate value of up to $3.6 million be allocated to the CEO immediately based on the Company’s financials for the six month period to 31 December 2010, which were announced to the market on 16 February 2011; and
(b) no further allocations be made to the CEO under the CEO LTI Plan for the remainder of 2011 or in 2012 or 2013,
The allocation would in effect be an acceleration of the allocations that the Board had planned to allocate to the CEO in 2011, 2012 and 2013.
10. Rule 7.3.1 provides that no Issuer shall issue Equity Securities unless the precise terms and conditions of the specific proposal to issue those Equity Securities have been approved by shareholders, or the issue is made in accordance with Rules 7.3.4 to 7.3.11.
Application
11. SKC seeks a waiver from the requirement in Rule 7.3.1 to seek shareholder approval of the amendment of the terms of the CEO LTI Plan as described in paragraph 8 above.
12. In support of its application, SKC submits that:
(a) The flexibility to allocate at either (or both) dates will allow the CEO LTI Plan to be used more effectively as a retention tool;
(b) In particular, following discussions between the Board and the CEO, SKC is seeking to take active steps to incentivise the CEO to remain in his current position for a longer period. In the Board’s view, such steps are strongly in the interests of SKC and its shareholders;
(c) Although the Plan Amendment constitutes a change to the terms of the CEO LTI Plan previously approved by shareholders at SKC’s 2009 Annual Meeting, SKC does not consider this change to be a fundamental variance;
(d) Without the Plan Amendment, SKC could, in accordance with the existing plan terms, carry out the allocation in August/September 2011. However, SKC would prefer to be able to carry out the Plan Amendment and make the allocation now based on SKC’s financials for the six month period to 31 December 2010 rather than wait until after the tenth business day following the SKC’s preliminary full year announcement in August/September this year. The prospects and certainty of retaining the CEO will be significantly improved if SKC is able to make the allocation six months earlier than would otherwise currently be the case under the terms of the CEO LTI Plan;
(e) The Plan Amendment will not result in any change to the maximum number of shares able to be allocated or issued by SKC under the CEO LTI Plan of 2,000,000 shares by 30 October 2012. Accordingly, the Plan Amendment and proposed allocation will not alter the extent of shares to be allocated under the CEO LTI Plan, only the timing of allocations;
(f) For commercial reasons, SKC elected to operate the CEO LTI Plan and Executive LTI Plan as separate plans even those these plans are on the same terms. If SKC were instead operating the CEO LTI Plan and Executive LTI Plan as a single plan, SKC would be able to rely on Rules 7.3.6 and 7.3.9 to make issues of shares to the CEO falling within Rule 7.3.6 as a member of such a merged plan without need for shareholder approval;
(g) Although shareholder approval was also required by the Rules in relation to the financial assistance aspects of the CEO LTI Plan (and was obtained at its 2009 Annual Meeting), SKC notes that the guidance note to Rule 7.6.4 provides that NZX may grant a waiver to allow a director to receive financial assistance if the amount and terms of that assistance has been determined according to criteria applying generally to other eligible employees. SKC considers that a combined CEO and Executive LTI Plan would have met the criteria for the grant of such waiver; and
(h) Accordingly, although SKC has elected to operate the CEO LTI Plan and Executive LTI Plan separately, in effect, these plans are two plans being operated on the same terms and the CEO should be considered to be participating in issues under the CEO LTI Plan based on criteria applying to employees generally under the Executive LTI Plan. If this were the case (and the criteria for the grant of a financial assistance waiver were considered to be met), then the current amendment to the CEO LTI Plan would not have required shareholder approval.
Rule 7.3.1
13. Rule 7.3.1 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; or
(b) the issue is made in accordance with any of Rules 7.3.4 to 7.3.11.
Decision
14. On the basis that the information provided to NZX Market Supervision (“NZXMS”) is full and accurate in all material respects, NZXMS grants SKC a waiver from Rule 7.3.1, to the extent that that Rule requires shareholder approval of the Plan Amendment.
Reasons
15. In granting SKC a waiver from Rule 7.3.1, NZXMS has considered the following:
(a) The Plan Amendment will allow SKC to use the CEO LTI Plan more effectively as a retention tool. In particular, it will allow SKC to take steps to incentivise the CEO to remain in his current position for a longer period, which, in the Board’s view, is strongly in the interests of SKC and its shareholders;
(b) The Plan Amendment only amends the timing of allocations and is not a material amendment to the CEO LTI Plan that was approved by shareholders at the 2009 Annual Meeting;
(c) To require SKC to call a meeting of shareholders to approve the Plan Amendment, which is mechanical in nature, would not be in the best interests of SKC’s shareholders; and
(d) The Plan Amendment does not result in a change to the maximum number of shares able to be issued to the CEO under the CEO LTI Plan.
16. NZXMS accepts SKC’s submission that the change is not a fundamental variance, and notes that the waiver granted to SKC on 8 October 2009 will continue to apply in respect of the Plan Amendment.
ENDS.
Related AttachmentsSKC - Waiver from NZSX Listing Rule 7.3.1.pdf
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