Waiver from Listing Rule 4.14.1

NZX Regulation Decision
Burger Fuel Group Limited (BFG)
Application for a waiver from NZX Listing Rule
4.14.1(b)(ii)(A)







23 October 2020

NZX REGULATION DECISION – 23 October 2020
2 of 8

Waiver from Listing Rule 4.14.1(b)(ii)(A)
Decision
1. On the basis that the information provided by Burger Fuel Group Limited (
BFG
or the
Company
)

is complete and accurate in all material respects, NZX Regulation (
NZXR
)
grants BFG a waiver from Rule 4.14.1(b)(ii)(A), to the extent that this Rule prohibits BFG
from making an offer to acquire its own Equity Securities from an Associated Person of one
of BFG's Directors.
2. The material 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.
3. The NZX Listing Rules (
Rules
) to which this decision relates are set out in Appendix Two to
this decision.
4. Capitalised terms which have not been defined in this decision have the meanings given to
them in the Rules.
Reasons
5. In coming to the decision to provide the waiver set out in paragraph 1 above, NZXR has
considered that:
a. The policy behind Rule 4.14.1(b)(ii)(A) is to ensure that Equity Securities are not
acquired from Directors or their Associated Persons on terms which are unfairly
preferential or advantageous to them. BFG submits and NZXR accepts that this
concern does not arise in the particular circumstances;
b. The acquisition of Equity Securities in connection with the Buybacks is only prohibited
on a technicality, arising because the registered holder of the shares to be acquired is
an Associated Person of one of BFG's Directors. MRHL (the registered holder) is
merely a bare trustee company which does not beneficially own or control the voting
rights of the shares the subject of the Buybacks. Therefore, any such acquisition of
those shares would not be unfairly preferential or advantageous to MRHL and is not
the type of transaction the policy behind Rule 4.14.1(b)(ii)(A) aims to prohibit;
c. Requiring BFG to call a meeting of shareholders to consider a resolution to consider
the Buybacks (due to this technicality) would impose an unnecessary cost on BFG, and
ultimately, its shareholders;
d. Details of the Buybacks will be fully disclosed to shareholders in the course of BFG’s
compliance with section 61 of the Companies Act 1993. Shareholders will therefore be
aware of the broad terms of the Buybacks (including the Company's rationale for it)
together with the beneficial holders of the shares from whom they will be being
acquired from; and
e. There is precedent for this decision.

NZX REGULATION DECISION – 23 October 2020
3 of 8

Confidentiality

6. BFG has requested this decision be kept confidential until BFG has disclosed the existence
of the Settlement Arrangements to its shareholders (through NZX's market announcement
platform).
7. In accordance with Rule 9.7.2, NZXR grants BFG’s request.

NZX REGULATION DECISION – 23 October 2020
4 of 8


Appendix One
1. BFG is a Listed Issuer with Equity Securities Quoted on the NZX Main Board.
2. BFG and Christopher Mason (being one of the founding shareholders of the Company)
have reached settlement in principle on a without prejudice basis, subject to obtaining the
waiver set out in paragraph 1 of this decision, in relation to all issues between Christopher
Mason (and his associated entities) and the Company (and its subsidiaries) (material
details of which will be provided to BFG's shareholders on the date that this decision is
disclosed to the market)

(
Settlement Arrangements
).
3. In connection with the Settlement Arrangements, BFG proposes to make an offer to
acquire:
a. 1,538,461 fully paid ordinary shares in the Company for no cash payment (but
attributing a nominal value of NZ$0.39 per share to settle the debt claimed to be owing
to the Company and its subsidiaries, at an agreed settlement amount of
NZ$600,000.00); and
b. 1,794,871 fully paid ordinary shares in the Company for consideration of NZ$0.39 per
share for a total cash payment of NZ$700,000.00,
from Mason Roberts Holdings Limited (
MRHL
) (a bare trustee company that holds shares
for the benefit of Christopher Mason's family trust, defined below as the Mason Family
Trust) (together the
Buybacks
).
4. MRHL holds shares in BFG on trust for a number of beneficiaries on the terms set out in a
'Trust and Indemnity Agreement' dated 21 September 2011. The beneficial ownership of
the shares in BFG held by MRHL is set out below:
a. 6,586,309 ordinary shares beneficially owned by Christopher Simon Mason and
Christopher John Mills as trustees of the "
Mason Family Trust
";
b. 30,778,017 ordinary shares beneficially owned by JCR Capital Limited and 730 Trustee
Company Limited as trustees of the JCR Investment Trust; and
c. 2,598,318 ordinary shares beneficially owned by CMJR Trustee Limited as trustee of
the CMJR Trust,
(together the
Beneficiaries
and each a
Beneficiary
).
5. As set out in the Trust and Indemnity Agreement, MRHL may only deal with the BFG
shares it holds on trust as directed by the applicable Beneficiary. Each Beneficiary
therefore maintains voting control over the number of BFG shares held by MRHL that
corresponds to that Beneficiary's beneficial ownership in such amounts as set out at
paragraph 4 above.
6. Josef Roberts is the sole Director of MRHL and therefore MRHL is an Associated Person of
Josef Roberts. Josef Roberts is also a Director of BFG. Josef Roberts is not an Associated
Person of Christopher Mason or of the Mason Family Trust.
7. The shares the subject of the Buybacks will be acquired solely from the portion of BFG
shares held by MRHL for (and beneficially owned by) the Mason Family Trust. Under the
Settlement Arrangements, Christopher Mason will procure that, and the Mason Family Trust

NZX REGULATION DECISION – 23 October 2020
5 of 8

will arrange for, the offers made in connection with the Buybacks to be accepted in respect
of the BFG shares held on their behalf by MRHL.
8. Rule 4.14.1(b)(ii)(A) provides that an Issuer may acquire Equity Securities if that acquisition
is effected in compliance with section 60(1)(b)(ii) (read together with section 61) of the
Companies Act 1993, provided that the acquisition is not made from a Director of the
Issuer, or an Associated Person of a Director of the Issuer.
9. The effect of the Buybacks is that, despite the beneficial ownership and voting control of the
shares the subject of the Buybacks being held by the Mason Family Trust (a party who is
not an Associated Person of one of BFG's Directors), without a waiver the Buybacks would
technically be in contravention of Rule 4.14.1(b)(ii)(A) as MRHL (being the registered holder
of the relevant shares) is an Associated Person of one of BFG's Directors (being Josef
Roberts as set out in paragraph 6 above).
10. The shares the subject of the Buybacks will be cancelled immediately on acquisition
pursuant to section 66 of the Companies Act 1993.
11. If the Buybacks cannot be effected pursuant to Rule 4.14.1(b)(ii)(A) BFG would need to
obtain the approval of shareholders for the Buybacks under Rule 4.14.1(d) which would
require BFG to call a meeting of shareholders.

NZX REGULATION DECISION – 23 October 2020
6 of 8

Appendix Two

Definition of Associated Person
a person (A) is associated with, or an Associated Person of, another person (B) if:
(a) A is able, directly or indirectly, to exert a substantial degree of influence over the
activities of B (or vice versa),

(b) B is a body corporate and A has the power, directly or indirectly, to exercise, or control
the exercise of, more than 50% of the Votes attaching to the Financial Products of B (or
vice versa),

(c) A and B are Relatives or Related Bodies Corporate,

(d) A and B are partners to whom the Partnership Act 1908 applies,

(e) A is a director or Senior Manager of B (or vice versa), or

(f) A and B are acting jointly or in concert,

except that

(g) A is not an Associated Person of B merely because:
i. A acts as a professional or business adviser to B, without a personal financial interest
in the outcome of that advice,
ii. A’s ordinary business includes dealing in Financial Products on behalf of others and
A is acting in accordance with the specific instructions of B,
iii. A acts as a proxy or representative of B for the purposes of a meeting of holders of
Financial Products, or

iv. there is another person with which A and B are both associated,

(h)
will not be Associated Persons if NZX makes a Ruling that they are not Associated
Persons.

NZX REGULATION DECISION – 23 October 2020
7 of 8

Buy Backs and Redemption of Equity Securities
4.14.1 An Issuer may only acquire or redeem Equity Securities of that Issuer by:
(a) an acquisition effected through NZX’s order matching market or through the
order matching market of an Issuer’s Home Exchange,
(b) an acquisition effected in compliance with:
(i) section 60(1)(a) (read together with section 60(2)) of the Companies Act
1993,
(ii) section 60(1)(b)(ii) (read together with section 61) of the Companies Act
1993, and:
(A) not made from a Director, or an Associated Person of a Director,
of the Issuer, and
(B) not of a size which would cause the number of Equity Securities
of the same Class acquired under this Rule 4.14.1(b)(ii) either in
the 12 months preceding the date of the acquisition or since the
issuer was listed, whichever is earlier, to exceed 15% of the total
number of Equity Securities of the same Class on issue at the
commencement of that period,
(iii) section 61(7) of the Companies Act 1993, or
(iv) sections 110 or 118 of the Companies Act 1993, or other applicable
legislation, if required by a shareholder pursuant to such sections or
legislation,
(c) a redemption in compliance with section 69(1)(a) of the Companies Act 1993,
(d) an acquisition or redemption:
(i) approved in accordance with Rule 4.16.1,
(ii) of Equity Securities that were issued under Rule 4.6, or
(iii) from a holder who holds less than a Minimum Holding, or
(e) a redemption of Equity Securities issued in compliance with Rule 4.2.1 or 4.3,
where the Issuer is bound or entitled to redeem those Equity Securities pursuant
to their terms of issue,
provided that for the purposes of Rule 4.14.1(b)(ii)(B):

NZX REGULATION DECISION – 23 October 2020
8 of 8

(f) Financial Products which may convert to Quoted Equity Securities are deemed
to be of the same Class as the Quoted Equity Securities into which they may
convert, and
(g) the Financial Products referred to in paragraph (f) are deemed to be of the same
number as the Quoted Equity Securities to which they may Convert, except that
for the purpose of this calculation:
(i) in relation to the conversion ratio or conversion price, any reference to
the market price (however described) of the underlying Quoted Equity
Securities will instead be to the Average Market Price, and
(ii) any provisions for early Conversion at the option of a holder exercisable
in limited circumstances (such as due to an event of default or change of
control or similar) using a different formula or method will be disregarded.
4.14.2 Before an Issuer acquires its own Equity Securities, except from a holder with a less than
a Minimum Holding, the Issuer must give at least 3 Business Days’ notice through MAP.
That notice must specify:
(a) a period of time not exceeding 12 months from the date of the notice within
which the Issuer will acquire Quoted Equity Securities, and
(b) the Class and maximum number of Quoted Equity Securities to be acquired in
that period.
An Issuer may vary or cancel a notice at any time, subject to providing 3 Business Days’
notice through MAP.
4.14.3 Equity Securities that are:
(h) not shares of a company registered under the Companies Act 1993, or
(i) issued by an Issuer which is not a company registered under the Companies Act
1993,
may be acquired or redeemed under Rules 4.14.1(b), (c), (f) and (i) provided the Issuer
is compliant with the sections of the Companies Act 1993 referred to in those Rules,
modified so that:
(j) “shares” refer to all Equity Securities of the Class which is on offer with
references to “shareholders” adapted accordingly, and
(k) in respect of (b), “company” refers to the Issuer, and the company’s directors
and board refer to any person entering into the Listing Agreement on behalf of
that Issuer, and “constitution” refers to the Governing Document which governs
the rights of those Equity Securities.