NZME has been fined $100,000 for NZX rule breaches. Photo / NZ Herald
NZME, publisher of the New Zealand Herald, has been fined $100,000 after accepting that it had breached the NZX's continuous disclosure rules.
The penalties - in relation to two different issues - were imposed by the NZ Market's Disciplinary Tribunal.
The breaches relate to last year's failed attempt to buy competing publisher, Stuff, and the unexpected resignation of former chairman Peter Cullinane.
"In relation to both censures released by the NZ Markets Disciplinary Tribunal today NZME has, in a settlement agreed with NZX and endorsed by the NZ Markets Disciplinary Tribunal, accepted the breaches set out and the penalties imposed," NZME said in a statement.
The company said it took its obligations and responsibilities around continuous disclosure "extremely seriously".
"At all times we strive to ensure the market is appropriately informed in a timely fashion," it said.
"In both instances addressed in the censures, NZME followed its compliance processes and sought and acted on specialist external legal advice at the time the disclosures were made," NZME said.
"This is noted by the Tribunal in the censures as one of the relevant mitigating factors it took into consideration."
At last week's annual meeting, chair Barbara Chapman disclosed that the matters were before the Tribunal.
Cullinane resigned suddenly before last year's annual shareholders' meeting.
He later told the Herald he felt it "appropriate to step down" because he'd lost the support of Australian fund-manager shareholders. Cullinane was up for re-election as chairman.
After conducting its investigation, NZX Regulation concluded that: "Mr Cullinane's resignation was material information for NZME because the resignation related to the chair and the circumstances of it were sudden and unexpected."
It went on to say: "NZME's failure to release information about a change in a director promptly and without delay also constituted a breach of Rule 3.20.1."
Regarding Stuff, after investigation, NZX Regulation concluded that NZME's announcements on its failed Stuff purchase were "incomplete and therefore misleading".
In November 2019, NZME confirmed that it was in preliminary discussions with Nine and had put a proposal to the New Zealand Government concerning a potential transaction to buy Stuff.
In April 2020, NZME made a non-binding indicative offer for Nine's shares in Stuff .
The offer provided for an exclusive and confidential top-up due diligence period and included undertakings that Nine would not solicit or otherwise engage in negotiations with any other party during that period and NZM had matching rights for any competing proposal by Nine. Nine agreed to the terms.
Nine's noard concluded that a sale of Stuff needed to be complete by May 31, 2020.
On May 6, Nine received an unsolicited indicative offer to buy Stuff from a competing bidder, now known to be a management buy-out lead by Stuff's chief executive.
Unlike NZME's offer, this proposal did not require Commerce Commission intervention or support from the Government.
On May 7, Nine wrote to NZME stating that Nine had received an unsolicited competing bid to acquire Stuff for $1 on an unconditional basis and that the transaction would be completed by the end of May 2020.
The information in the letter was stated to be confidential.
The letter requested that NZME advise Nine the following day whether NZME could match the terms of the proposal.
Nine informed NZME that if NZME was not able to match this proposal, Nine anticipated terminating discussions with NZME.
On May 8, NZME responded and stated its intention to complete its due diligence, submit a clearance application with the Commerce Commission and work towards agreeing transaction documentation.
On May 11, 9.31 am, NZME released a market announcement confirming that it had made an offer to acquire Stuff from Nine, that an exclusivity period was in place between NZME and Nine for the purpose of progressing that offer and that NZME had that day written to the Government seeking "urgent legislation" to allow NZME to acquire the shares in Stuff by 31 May 2020.
At 10.52am, Nine responded to this market announcement in a release on the ASX, stating that Nine had notified NZME that it had "terminated further engagement with NZME".
At 12.11pm, NZME released a further market announcement stating that NZME's view was that it was "still in a binding exclusive negotiation period with Nine and does not accept that exclusivity has been validly terminated".
NZX Regulation investigated the market announcements made by NZME for the purpose of assessing whether NZM had failed to comply with any of the rules.
The ruling said the 9.31am market announcement gave the impression to the market that a proposal to acquire Stuff by NZME was well advanced.
The implication was that it was competition concerns that were the obstacle to a deal that could otherwise settle in the very near future.
"The announcement gave no sense that the deal was at risk of not proceeding because Nine had purported to terminate engagement with NZME and an alternative bid had come to light which did not face the competition problems that confronted a deal between Nine and NZM and which could be completed by 31 May 2020."
Following Nine's ASX release at 10.52am (NZST) and NZME's second market announcement of the day at 12.11pm, the market was better informed.
"However, even at this point, the market was not made aware by either NZME or Nine of the important detail that Nine was in receipt of an alternative bid that did not require Commerce Commission clearance."
"NZX Regulation considers that the incomplete announcements led to an increase in the NZME share price that reflected market optimism in circumstances where the market had not been provided all material information. It was incumbent on NZM in these circumstances to issue a corrective release."
NZME was fined $80,000 on the Stuff disclosures.
Separately, the company was fined $20,000 on the issue of Cullinane's resignation.