Securities Act (Equity Warrant Issuers) Exemption Notice 2002

  • expired
  • Securities Act (Equity Warrant Issuers) Exemption Notice 2002: expired, on 1 October 2012, by clause 3.

Reprint
as at 1 October 2012

Coat of Arms of New Zealand

Securities Act (Equity Warrant Issuers) Exemption Notice 2002

(SR 2002/317)

  • Securities Act (Equity Warrant Issuers) Exemption Notice 2002: expired, on 1 October 2012, by clause 3.


Note

Changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in this reprint.

A general outline of these changes is set out in the notes at the end of this reprint, together with other explanatory material about this reprint.

This notice is administered by the Financial Markets Authority.


Pursuant to the Securities Act 1978, the Securities Commission gives the following notice.

Notice

1 Title
  • This notice is the Securities Act (Equity Warrant Issuers) Exemption Notice 2002.

2 Commencement
  • This notice comes into force on 1 October 2002.

3 Expiry
  • This notice expires on the close of 30 September 2012.

    Clause 3: amended, on 21 September 2007, by clause 4 of the Securities Act (Equity Warrant Issuers) Exemption Amendment Notice 2007 (SR 2007/278).

4 Interpretation
  • (1) In this notice, unless the context otherwise requires,—

    Act means the Securities Act 1978

    audiovisual advertisement means an advertisement that—

    • (a) is distributed to any person by means of radio, television, or film; and

    • (b) contains or refers to an offer of equity warrants to the public for subscription; and

    • (c) specifies an address, telephone number, or website for the purpose of obtaining an investment statement relating to those equity warrants; and

    • (d) complies with, or would but for this notice comply with, all applicable provisions of the Act and the Regulations

    broker means any NZX Firm (as defined in Rule 1.1 of the New Zealand Exchange Limited Participant Rules)

    covered equity warrant means—

    • (a) an equity warrant in accordance with which the warrant issuer has ensured that a number of underlying equity securities (being no less than the number required to enable the warrant issuer to meet its obligation to deliver securities under the equity warrant) are held by a trustee throughout the period of the equity warrant and for the exclusive benefit of the warrant holder; or

    • (b) an equity warrant that complies with the fully covered warrant requirements of the Australian Stock Exchange

    equity warrant means a security offered to the public for subscription that—

    • (a) confers on the warrant holder the right to acquire, and obliges the warrant issuer to deliver at the option of the warrant holder, equity securities that, at the time of the offer, belong to a class of securities that is quoted on a recognised stock exchange; and

    • (b) is issued by a person who—

      • (i) is either a party to a listing agreement with a recognised stock exchange or approved to be a warrant issuer, for the purpose of issuing fully covered warrants, by the Australian Stock Exchange; and

      • (ii) is not a related company of the issuer of the underlying equity security; and

    • (c) either is quoted on a recognised stock exchange or in respect of which an application has been made for quotation on a recognised stock exchange and, at the time of the offer, the issuer has complied with all the requirements of the recognised stock exchange relating to the application with which it is required to comply at that time

    NZX means New Zealand Exchange Limited

    overseas offer document has the meaning set out in clause 5

    recognised stock exchange means a stock exchange specified in Schedule 1

    Regulations means the Securities Regulations 1983

    related company has the same meaning as in section 2(3) of the Companies Act 1993

    specified overseas jurisdiction means a jurisdiction specified in Schedule 2

    trustee means—

    • (a) a trustee corporation or a person approved to act as a trustee under section 48 of the Act; or

    • (b) in respect of an overseas offer document, a person empowered by the law of a specified overseas jurisdiction to carry on business as a trustee in respect of offers of securities to members of the public

    underlying equity securities, in relation to an equity warrant offered to the public for subscription, means equity securities that, at the time of the offer, belong to a class of securities that is quoted on a recognised stock exchange and in respect of which the warrant holder has or will acquire a right or interest on exercise of the equity warrant

    warrant holder means the holder of an equity warrant

    warrant issuer means the issuer of an equity warrant; and includes the person who is required to deliver the underlying equity securities to the warrant holder on the exercise of the equity warrant.

    (2) Any term or expression that is defined in the Act or the Regulations and used, but not defined, in this notice has the same meaning as in the Act or the Regulations.

    Clause 4(1) broker: inserted, on 21 September 2007, by clause 5 of the Securities Act (Equity Warrant Issuers) Exemption Amendment Notice 2007 (SR 2007/278).

    Clause 4(1) NZX: inserted, on 21 September 2007, by clause 5 of the Securities Act (Equity Warrant Issuers) Exemption Amendment Notice 2007 (SR 2007/278).

5 Meaning of overseas offer document
  • In this notice, overseas offer document, in relation to an offer of equity warrants, means a document—

    • (a) that contains an offer of equity warrants; and

    • (b) that, with the exception of statements that are included in or that accompany the document under clause 9, is identical to a document that—

      • (i) is lodged or registered under the law of a specified overseas jurisdiction, and that is signed by, or on behalf of, the persons (if any) required by that law to sign that document; or

      • (ii) by virtue of an exemption or declaration by the relevant competent authority, is not required to be lodged or registered under the law of that specified overseas jurisdiction; and

    • (c) by means of which it is lawful under the law of that specified overseas jurisdiction to make an offer of those equity warrants to the public; and

    • (d) that contains no statement referring to a quotation or intended quotation on a securities market operated by NZX other than a statement that has been approved by NZX.

    Clause 5(d): substituted, on 21 September 2007, by clause 6 of the Securities Act (Equity Warrant Issuers) Exemption Amendment Notice 2007 (SR 2007/278).

6 Exemption if there is registered prospectus
  • Every warrant issuer and every person acting on its behalf are exempted from section 33(2) and (3) of the Act and regulation 3 of the Regulations in respect of any equity warrants to which a registered prospectus relates.

    Clause 6: amended, on 21 September 2007, by clause 7 of the Securities Act (Equity Warrant Issuers) Exemption Amendment Notice 2007 (SR 2007/278).

7 Conditions of exemption in clause 6
  • The exemption in clause 6 is subject to the conditions that—

    • (a) the issuer of the underlying equity securities is a company that is incorporated in New Zealand or in a specified overseas jurisdiction; and

    • (b) the registered prospectus contains all applicable information, statements, certificates, and other matters specified in—

      • (i) clauses 14 and 15 of Schedule 1 of the Regulations; and

    • (c) the registered prospectus contains the matters specified in clauses 5A and 21 of Schedule 1 of the Regulations that are relevant to the warrant holders; and

    • (d) the registered prospectus states the recognised stock exchange on which the equity warrants are quoted or to which an application has been made for quotation; and

    • (e) the registered prospectus includes the following information about the issuer of the underlying equity securities:

      • (i) the jurisdiction and place of incorporation of the issuer; and

      • (ii) the recognised stock exchange on which the issuer is listed, and on which the underlying equity securities are quoted; and

      • (iii) a statement that prospective investors should make their own enquiries regarding the issuer; and

    • (f) if the registered prospectus states or implies that the equity warrants are covered equity warrants,—

      • (i) a trustee has been appointed and both the warrant issuer and the trustee have signed a trust deed relating to the equity warrants; and

      • (ii) the trustee holds a number of underlying equity securities (being no less than the number required to enable the warrant issuer to meet its obligation to deliver securities under the equity warrants) throughout the period of the equity warrants and for the exclusive benefit of the warrant holders; and

      • (iii) the terms of the trust deed preclude the warrant issuer or any other person, except the trustee, from exercising control over the transfer or disposal of the underlying equity securities or having a charge over the assets of the trust; and

      • (iv) the registered prospectus contains a brief description of the principal terms of the trust deed, including the information specified in clause 13(1)(a), (b), (e), and (3) of Schedule 2 of the Regulations; and

    • (g) the registered prospectus contains—

      • (i) a brief description of the principles and procedures used to calculate the subscription price for the equity warrants; and

      • (ii) a brief summary of the consequences of a lapse or expiry of an equity warrant, including the circumstances in which a lapse or expiry may occur; and

      • (iii) a description of any formula for determining the amount payable in respect of equity warrants that have lapsed or expired; and

    • (h) if the equity warrants are not covered equity warrants, the most recent audited financial statements of the warrant issuer that comply with the Financial Reporting Act 1993 are contained in or accompany every copy of the registered prospectus for the equity warrants; and

    • (i) if the equity warrants are not covered equity warrants and are not quoted on a securities market operated by NZX, the warrant issuer has, within 30 days of the most recent annual financial statements of the warrant issuer being released, sent to every warrant holder either a copy of those statements or a brief summary containing the information prescribed in clause 7 of Schedule 2 of the Regulations as if the equity warrants were debt securities; and

    • (j) if the underlying equity securities are quoted on a securities market operated by NZX, the registered prospectus contains a prominent statement that the issuer of the underlying equity securities is a company listed on a securities market operated by NZX whose financial statements are expected to be readily available from the issuer, a broker, and the Registrar of Companies; and

    • (k) if the underlying equity securities are not quoted on a securities market operated by NZX, the registered prospectus contains the following prominent statements:

      • (i) that the underlying equity securities are not quoted on a securities market operated by NZX and New Zealand resident investors may not have access to information concerning the issuer of the underlying equity securities or concerning the underlying equity securities in the same way as investors have in relation to an issuer of underlying equity securities quoted on a securities market operated by NZX; and

      • (ii) that the financial reporting requirements applicable to the issuer of the underlying equity securities may be different from the New Zealand financial reporting requirements and the financial statements may not be readily available to warrant holders; and

    • (l) the warrant issuer has, within 5 working days of receiving each request of a warrant holder to do so, sent, or caused to be sent, without fee, to that warrant holder,—

      • (i) if the equity warrants are not covered equity warrants and are not quoted on a securities market operated by NZX, a copy of the warrant issuer's most recent audited financial statements and interim financial statements; and

      • (ii) if any of the warrant issuer's obligations under the equity warrants is guaranteed by a third party, a copy of the guarantor's most recent financial statements that comply with the Financial Reporting Act 1993 (or any relevant overseas financial reporting requirements).

    Clause 7(i): substituted, on 21 September 2007, by clause 8 of the Securities Act (Equity Warrant Issuers) Exemption Amendment Notice 2007 (SR 2007/278).

    Clause 7(j): substituted, on 21 September 2007, by clause 8 of the Securities Act (Equity Warrant Issuers) Exemption Amendment Notice 2007 (SR 2007/278).

    Clause 7(k): substituted, on 21 September 2007, by clause 8 of the Securities Act (Equity Warrant Issuers) Exemption Amendment Notice 2007 (SR 2007/278).

    Clause 7(l): substituted, on 21 September 2007, by clause 8 of the Securities Act (Equity Warrant Issuers) Exemption Amendment Notice 2007 (SR 2007/278).

8 Exemption if there is overseas offer document
  • Every warrant issuer and every person acting on its behalf are exempted, in respect of any equity warrants to which an overseas offer document relates, from—

    Clause 8(a): amended, on 21 September 2007, by clause 9 of the Securities Act (Equity Warrant Issuers) Exemption Amendment Notice 2007 (SR 2007/278).

9 Conditions of exemption in clause 8
  • (1) The exemption in clause 8 is subject to the conditions that—

    • (a) there is an overseas offer document relating to the equity warrants at the time that offers of the equity warrants are made or are open for acceptance in New Zealand; and

    • (b) the overseas offer document contains no statement referring to quotation or intended quotation of the equity warrants on a securities market operated by NZX other than a statement that has been approved by NZX; and

    • (c) the warrant issuer has, within 5 working days of receiving each request of a warrant holder or a prospective investor to do so, sent, or caused to be sent, without fee, to that warrant holder or prospective investor—

      • (i) a copy of the overseas offer document; and

      • (ii) if the equity warrants are not covered equity warrants and are not quoted or about to be quoted on a securities market operated by NZX, a copy of the most recent financial statements of the warrant issuer; and

      • (iii) if the performance by the warrant issuer of its obligations in regard to the equity warrants is guaranteed by a third party and a request has been made during the offer period, a copy of the guarantor's most recent financial statements that comply with the financial reporting requirements applying in the specified overseas jurisdiction; and

    • (d) each of the warrant issuer and the issuer of the underlying equity securities is incorporated in New Zealand or in a specified overseas jurisdiction; and

    • (e) the issuer of the underlying equity securities is listed, and the underlying equity securities are quoted, on a recognised stock exchange; and

    • (f) the investment statement for the equity warrants—

      • (i) refers to the overseas offer document; and

      • (ii) states that allotments of the equity warrants will be made in the manner (which is specified in the overseas offer document) prescribed under the law of the specified overseas jurisdiction in which the overseas offer document is lodged or registered (or would be lodged or registered but for an exemption or declaration by a relevant competent authority under the law of the specified overseas jurisdiction concerned); and

      • (iii) specifies a telephone number, address, or website for the purpose of obtaining a copy of the overseas offer document, and states that any person to whom the equity warrants are offered may request a copy of the overseas offer document from the warrant issuer; and

      • (iv) contains no statement referring to quotation or intended quotation on a securities market operated by NZX other than a statement approved by NZX; and

      • (v) states that the documents referred to in clause 10 may be inspected at the office of the Registrar of Companies; and

      • (vi) states that the tax position in New Zealand applying in relation to the equity warrants may be different from the position applying in a specified overseas jurisdiction, and that the investor should seek independent tax advice before subscribing for an equity warrant; and

      • (vii) states that investing in the equity warrants may carry with it a currency exchange risk; and

      • (viii) states that the financial reporting requirements applying in New Zealand and those applying to the warrant issuer may be different, and the financial statements of the warrant issuer may not be compatible in all respects with financial statements prepared in accordance with the financial reporting requirements contained in the Act and the Financial Reporting Act 1993; and

      • (ix) states that any offer and allotment of equity warrants will be governed by the overseas offer document and will be made in accordance with the law of the specified overseas jurisdiction concerned; and

      • (x) states that the warrant issuer may not be subject in all respects to New Zealand law; and

      • (xi) states that the overseas offer document has not been registered in New Zealand under, and in accordance with, New Zealand law and may not contain all the information that a New Zealand registered prospectus containing an offer of equity warrants is required to contain; and

      • (xii) states the general nature and effect of any exemption, order, or declaration that may have been granted by a relevant competent authority in respect of the offer of equity warrants; and

      • (xiii) if the equity warrants are not quoted on a securities market operated by NZX, states that New Zealand resident investors may not have access to information concerning the warrant issuer in the same way as investors have in relation to an issuer listed on a securities market operated by NZX; and

      • (xiv) if the underlying equity securities are not quoted on a securities market operated by NZX, states that New Zealand resident investors may not have access to information concerning the underlying equity securities in the same way as investors have in relation to underlying equity securities that are quoted on a securities market operated by NZX; and

      • (xv) refers to the overseas offer document wherever the Act or Regulations require an investment statement to refer to a registered prospectus; and

    • (g) the investment statement for the equity warrants includes information or statements to the following effect, under the heading Agreement as to Jurisdiction:

      • (i) that, in respect of a dispute concerning the contract for the equity warrants, the warrant issuer—

        • (A) agrees to submit to the non-exclusive jurisdiction of the New Zealand courts; and

        • (B) has instructed the New Zealand agent for service referred to in subparagraph (ii) to accept service of documents on its behalf; and

        • (C) agrees that this statement is an agreement with each investor for the purposes of section 389(1)(e) of the Companies Act 1993; and

      • (ii) the name and address of a person in New Zealand who has been appointed by the warrant issuer to accept service in New Zealand of any documents on its behalf; and

      • (iii) that, despite the statements referred to in subparagraph (i), the contract in respect of the equity warrants may not always be enforceable in New Zealand courts; and

    • (h) at the same time as offers of equity warrants are made or are open for acceptance in New Zealand, offers of the equity warrants are also made or are also open for acceptance in the specified overseas jurisdiction concerned in accordance with the law of that jurisdiction; and

    • (i) if the overseas offer document states or implies that the equity warrants to which it relates are covered equity warrants,—

      • (i) either of the following circumstances applies:

        • (A) in the case of an equity warrant that is a fully covered warrant that complies with the fully covered warrant requirements of the Australian Stock Exchange, the warrant issuer has complied, and continues to comply, with those requirements; or

        • (B) in any other case, a trustee has been appointed in respect of the equity warrants and is required to hold, for the exclusive benefit of the warrant holders and throughout the period of the equity warrants, a number of underlying equity securities, being no less than the number required to enable the warrant issuer to meet its obligation to deliver securities under the equity warrants; and

      • (ii) the overseas offer document or the investment statement for the equity warrants contains a brief description of—

        • (A) the principal terms of the trust deed, or analogous document, including the information specified in clause 13(1)(a), (b), (e), and (3) of Schedule 2 of the Regulations; and

        • (B) the cover arrangement; and

    • (j) if the warrant issuer is not listed on a recognised stock exchange, the warrant issuer must continue to meet all the terms of its approval to be a warrant issuer (as set by the recognised stock exchange) during any period in which equity warrants are offered to the public.

    (2) Clause 8(b) applies in respect of an overseas offer document only, and not in respect of any investment statement or other advertisement.

    Clause 9(1)(b): substituted, on 21 September 2007, by clause 10(1) of the Securities Act (Equity Warrant Issuers) Exemption Amendment Notice 2007 (SR 2007/278).

    Clause 9(1)(c)(ii): substituted, on 21 September 2007, by clause 10(2) of the Securities Act (Equity Warrant Issuers) Exemption Amendment Notice 2007 (SR 2007/278).

    Clause 9(1)(f)(iv): substituted, on 21 September 2007, by clause 10(3) of the Securities Act (Equity Warrant Issuers) Exemption Amendment Notice 2007 (SR 2007/278).

    Clause 9(1)(f)(xiii): substituted, on 21 September 2007, by clause 10(4) of the Securities Act (Equity Warrant Issuers) Exemption Amendment Notice 2007 (SR 2007/278).

    Clause 9(1)(f)(xiv): substituted, on 21 September 2007, by clause 10(4) of the Securities Act (Equity Warrant Issuers) Exemption Amendment Notice 2007 (SR 2007/278).

10 Documents to be received by Registrar of Companies
  • The exemption in clause 8 is subject to the further condition that the Registrar of Companies has received a copy of each of the following documents:

    • (b) the certificate of incorporation of the warrant issuer; and

    • (c) the memorandum and articles of association or other documents, statutes, or instruments constituting or defining the constitution of the warrant issuer; and

    • (d) any material contract referred to in the overseas offer document, or,—

      • (i) if the contract is not in writing, a copy of any memorandum containing particulars of the contract; or

      • (ii) if an exemption or declaration has been granted by a relevant competent authority under the law of the specified overseas jurisdiction concerned, a copy of any memorandum containing particulars of the material contract prepared under that exemption or declaration; and

    • (e) any trust deed relating to covered equity warrants; and

    • (f) any certificate or other document evidencing lodgement or registration of the document with the relevant competent authority or evidencing any exemption or declaration by the relevant competent authority referred to in clause 5(b)(ii).

11 Exemption for audiovisual advertisements
  • Every warrant issuer and every person acting on its behalf are exempted from regulations 11(a) and (b) and 14(1) of the Regulations in the case of any audiovisual advertisement.


Schedule 1
Recognised stock exchanges

cl 4(1)

A securities market operated by NZX

Australian Stock Exchange

  • Schedule 1: amended, on 21 September 2007, by clause 11 of the Securities Act (Equity Warrant Issuers) Exemption Amendment Notice 2007 (SR 2007/278).

Schedule 2
Specified overseas jurisdictions

cl 4(1)

Australia

England

Wales

Scotland

Northern Ireland

Germany

Dated at Wellington this 27th day of September 2002.

The Common Seal of the Securities Commission was affixed in the presence of:

[Seal]

L A J Kavanagh,
Member.


Issued under the authority of the Acts and Regulations Publication Act 1989.

Date of notification in Gazette: 30 September 2002.


Contents

  • 1General

  • 2Status of reprints

  • 3How reprints are prepared

  • 4Changes made under section 17C of the Acts and Regulations Publication Act 1989

  • 5List of amendments incorporated in this reprint (most recent first)


Notes
1 General
  • This is a reprint of the Securities Act (Equity Warrant Issuers) Exemption Notice 2002. The reprint incorporates all the amendments to the notice as at 1 October 2012, as specified in the list of amendments at the end of these notes.

    Relevant provisions of any amending enactments that contain transitional, savings, or application provisions that cannot be compiled in the reprint are also included, after the principal enactment, in chronological order. For more information, see http://www.pco.parliament.govt.nz/reprints/ .

2 Status of reprints
  • Under section 16D of the Acts and Regulations Publication Act 1989, reprints are presumed to correctly state, as at the date of the reprint, the law enacted by the principal enactment and by the amendments to that enactment. This presumption applies even though editorial changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in the reprint.

    This presumption may be rebutted by producing the official volumes of statutes or statutory regulations in which the principal enactment and its amendments are contained.

3 How reprints are prepared
  • A number of editorial conventions are followed in the preparation of reprints. For example, the enacting words are not included in Acts, and provisions that are repealed or revoked are omitted. For a detailed list of the editorial conventions, see http://www.pco.parliament.govt.nz/editorial-conventions/ or Part 8 of the Tables of New Zealand Acts and Ordinances and Statutory Regulations and Deemed Regulations in Force.

4 Changes made under section 17C of the Acts and Regulations Publication Act 1989
  • Section 17C of the Acts and Regulations Publication Act 1989 authorises the making of editorial changes in a reprint as set out in sections 17D and 17E of that Act so that, to the extent permitted, the format and style of the reprinted enactment is consistent with current legislative drafting practice. Changes that would alter the effect of the legislation are not permitted.

    A new format of legislation was introduced on 1 January 2000. Changes to legislative drafting style have also been made since 1997, and are ongoing. To the extent permitted by section 17C of the Acts and Regulations Publication Act 1989, all legislation reprinted after 1 January 2000 is in the new format for legislation and reflects current drafting practice at the time of the reprint.

    In outline, the editorial changes made in reprints under the authority of section 17C of the Acts and Regulations Publication Act 1989 are set out below, and they have been applied, where relevant, in the preparation of this reprint:

    • omission of unnecessary referential words (such as of this section and of this Act)

    • typeface and type size (Times Roman, generally in 11.5 point)

    • layout of provisions, including:

      • indentation

      • position of section headings (eg, the number and heading now appear above the section)

    • format of definitions (eg, the defined term now appears in bold type, without quotation marks)

    • format of dates (eg, a date formerly expressed as the 1st day of January 1999 is now expressed as 1 January 1999)

    • position of the date of assent (it now appears on the front page of each Act)

    • punctuation (eg, colons are not used after definitions)

    • Parts numbered with roman numerals are replaced with arabic numerals, and all cross-references are changed accordingly

    • case and appearance of letters and words, including:

      • format of headings (eg, headings where each word formerly appeared with an initial capital letter followed by small capital letters are amended so that the heading appears in bold, with only the first word (and any proper nouns) appearing with an initial capital letter)

      • small capital letters in section and subsection references are now capital letters

    • schedules are renumbered (eg, Schedule 1 replaces First Schedule), and all cross-references are changed accordingly

    • running heads (the information that appears at the top of each page)

    • format of two-column schedules of consequential amendments, and schedules of repeals (eg, they are rearranged into alphabetical order, rather than chronological).

5 List of amendments incorporated in this reprint (most recent first)