Securities Act (Lion Nathan Employee Benefit Plan) Exemption Notice 2005

  • expired
  • Securities Act (Lion Nathan Employee Benefit Plan) Exemption Notice 2005: expired, on 1 August 2010, by clause 3.

Reprint
as at 1 August 2010

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Securities Act (Lion Nathan Employee Benefit Plan) Exemption Notice 2005

(SR 2005/238)

  • Securities Act (Lion Nathan Employee Benefit Plan) Exemption Notice 2005: expired, on 1 August 2010, 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 Securities Commission.


Pursuant to the Securities Act 1978, the Securities Commission gives the following notice (to which is appended a statement of reasons of the Securities Commission).

Notice

1 Title
  • This notice is the Securities Act (Lion Nathan Employee Benefit Plan) Exemption Notice 2005.

2 Commencement
  • This notice comes into force on the day after the date of its notification in the Gazette.

3 Expiry
  • This notice expires on the close of 31 July 2010.

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

    Act means the Securities Act 1978

    interests in the scheme means any interests or rights to participate in any capital, assets, earnings, or other property of the scheme; and includes any renewal or variation of the terms or conditions of any of those interests or rights

    Lion Foundation means the charitable trust of that name established by deed of trust dated 27 February 1985

    manager means an administration manager or an investment manager (as those terms are defined in section 2(1) of the Superannuation Schemes Act 1989)

    Regulations means the Securities Regulations 1983

    scheme means the Lion Nathan Employee Benefit Plan, a registered superannuation scheme (within the meaning of section 2(1) of the Superannuation Schemes Act 1989)

    specified date means, in relation to an annual report for a financial year, the date on which the financial year ends

    trustee means Lion Nathan Nominees Limited, the superannuation trustee of the scheme.

    (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.

5 Exemption from section 37(1) of Act
  • The trustee and every person acting on its behalf are exempted from section 37(1) of the Act in respect of any interests in the scheme that are offered only to—

    • (a) employees of Lion Nathan Limited; or

    • (b) employees of any associated person of Lion Nathan Limited; or

    • (c) employees of the Lion Foundation.

6 Condition relating to Lion Foundation
  • The exemption in clause 5 is subject to the condition that it is a term of the offer that—

    • (a) Lion Nathan Limited has the power to appoint or remove the trustees of the Lion Foundation; and

    • (b) the Lion Foundation is a charitable trust and that its trustees are incorporated as a board under the Charitable Trusts Act 1957.

7 Condition relating to funding of shortfall
  • (1) The exemption in clause 5 is subject to the condition that it is a term of the offer that, if there is a shortfall for a financial year, Lion Nathan Limited will incur costs (by way of contributions, expense payments, or both), in respect of that year, at least equal to the amount of the shortfall.

    (2) To determine whether there is a shortfall for a financial year,—

    • (a) determine the costs of administering the scheme for the year (these are the administrative costs); and

    • (b) then determine how much (if any) of the surplus has been applied to meet contribution liabilities, expense payments (which may include administrative costs), or both, for that year (this is the applied surplus); and

    • (c) then deduct the applied surplus from the administrative costs (and the remaining amount of administrative costs, if any, is the shortfall).

    (3) In this clause,—

    administrative costs do not include costs that are directly attributable to the management of the investments of the scheme

    surplus means the excess in the value of the scheme's assets over the value of the members' accrued benefits.

8 Condition relating to annual report
  • The exemption in clause 5 is subject to the condition that it is a term of the offer that each annual report prepared under section 14 of the Superannuation Schemes Act 1989 for a financial year during which the trustee relied on that exemption must include the following statements and information:

    • (a) if the trustee, or any promoter or manager of the scheme, or a director of that trustee, promoter or manager, has, during the 5 years preceding the specified date, been adjudged bankrupt or insolvent, convicted of any crime involving dishonesty (within the meaning of section 2(1) of the Crimes Act 1961), prohibited from acting as a director of a company, or placed in statutory management or receivership, a statement to that effect including the name and any alternative or former name or names of the trustee, or the promoter, manager, or director concerned:

    • (b) if more than 10% of the value of the scheme's assets (calculated in accordance with generally accepted accounting practice) was, at any time during the year preceding the specified date, represented directly or indirectly by any securities that were issued by the trustee or a manager or custodian of the scheme (or any associated person of any of them), a description of those securities:

    • (c) a brief description of any legal proceedings or arbitrations that are pending at the specified date and that may have a material adverse effect on the scheme:

    • (d) a statement by the directors of the trustee as to whether, in their opinion, after due enquiry by them, either or both of the following have materially and adversely changed since the specified date:

      • (i) the value of the scheme's assets relative to its liabilities (including contingent liabilities):

      • (ii) the ability of the scheme to pay its debts as they become due in the normal course of business:

    • (e) a statement as to whether Lion Nathan Limited was required (under the term of the offer required by clause 7) to incur costs for that financial year and, if so, a statement that those costs have been incurred.

9 Condition relating to requests for investment objectives and policy of scheme
  • The exemption in clause 5 is subject to the condition that it is a term of the offer that—

    • (a) the trustee must send, or cause to be sent, to any member who requests it,—

      • (i) a description of the investment objectives and policy for the scheme; and

      • (ii) a description of the means by which changes can be made to those investment objectives and that policy (except to the extent that those matters have been disclosed in the investment statement); and

    • (b) the trustee must do so within 5 working days of receiving the member's request and without fee.

10 Conditions relating to investment statements
  • (1) The exemption in clause 5 is subject to the condition that a statement in the following form is included at the end of the statement required by clause 1(1) of Schedule 3D of the Regulations in the investment statement for the scheme:

    “WARNING—RESTRICTED DISCLOSURE

    The law requires that persons considering whether to join a superannuation scheme must be supplied on request with a prospectus about that scheme.

    However, this superannuation scheme has been exempted from this requirement under the Securities Act (Lion Nathan Employee Benefit Plan) Exemption Notice 2005.

    You should be aware that in choosing to become a member of this superannuation scheme you may be doing so on the basis of more limited information than is generally available to investors making important decisions about investments. However, every prospective member of this scheme has a right, under the Superannuation Schemes Act 1989, to request to receive certain information about the scheme (including a copy of the trust deed).”

    (2) The exemption in clause 5 is subject to the condition that the terms of the offer referred to in clauses 7(1), 8, and 9 are stated in the investment statement for the scheme.

Dated at Wellington this 9th day of August 2005.

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


[Seal]


J Diplock,
Chairperson.


Statement of reasons

This notice comes into force on the day after the date of its notification in the Gazette and expires on 31 July 2010.

The notice exempts the superannuation trustee of the Lion Nathan Employee Benefit Plan (the plan) from section 37(1) of the Securities Act 1978 (the Act) when offering membership in the plan to employees of Lion Nathan Limited (Lion Nathan), employees of the Lion Foundation, and other eligible persons. The effect of the exemption is that the superannuation trustee is exempted from the requirement to have a registered prospectus when offering membership in the plan.

The Securities Commission considers it is appropriate to grant the exemption because—

  • the purpose behind sections 5A to 5C of the Act is to lower compliance costs for New Zealand employers who wish to operate employee superannuation schemes where the costs of the scheme are met by the employer:

  • it is consistent with this policy, and the interests of investors, for the superannuation trustee of the plan to be able to offer the plan to Lion Foundation employees in the circumstances that—

    • the plan is a registered superannuation scheme (within the meaning of section 2(1) of the Superannuation Schemes Act 1989):

    • the Lion Foundation is a charitable trust established by Lion Nathan, and whose trustees are appointed by Lion Nathan:

    • there remains a close association between Lion Nathan and the Lion Foundation and, in terms of the plan, Lion Nathan has taken financial responsibility for contributing to any shortfall affecting both Lion Nathan and Lion Foundation employees:

    • the number of Lion Foundation employees is small compared with the number of Lion Nathan employees, and the costs of compliance with all of the requirements of the Act would outweigh the benefits of such compliance in terms of the policy of the Act, and in light of the links between Lion Nathan and the Lion Foundation:

    • the terms of the exemption require that Lion Nathan and Lion Foundation employees receive additional disclosure, on the same terms as required by the Act for the section 5A exemption, so as to allow them to make an informed investment decision.


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

Date of notification in Gazette: 11 August 2005.


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 (Lion Nathan Employee Benefit Plan) Exemption Notice 2005. The reprint incorporates all the amendments to the notice as at 1 August 2010, as specified in the list of amendments at the end of these notes.

    Relevant provisions of any amending enactments that have yet to come into force or that contain relevant transitional or savings provisions are also included, after the principal enactment, in chronological order.

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/legislation/reprints.shtml or Part 8 of the Tables of 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)
  • Securities Act (Lion Nathan Employee Benefit Plan) Exemption Notice 2005 (SR 2005/238): clause 3