Securities Act (UBS Securities New Zealand Limited) Exemption Notice 2006

  • expired
  • Securities Act (UBS Securities New Zealand Limited) Exemption Notice 2006: expired, on 1 October 2008, by clause 3.

Reprint
as at 1 October 2008

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Securities Act (UBS Securities New Zealand Limited) Exemption Notice 2006

(SR 2006/290)

  • Securities Act (UBS Securities New Zealand Limited) Exemption Notice 2006: expired, on 1 October 2008, 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 (UBS Securities New Zealand Limited) Exemption Notice 2006.

2 Commencement
  • This notice comes into force on notification in the Gazette.

3 Expiry
  • This notice expires on the close of 30 September 2008.

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

    Act means the Securities Act 1978

    Regulations means the Securities Regulations 1983

    Schedule 1 means Schedule 1 of the Regulations

    Telecom shares means fully paid ordinary shares in the capital of Telecom Corporation of New Zealand Limited

    trust deed means the trust deed dated on or about September 2006 between UBS and the trustee that provides, among other things, for the trustee to hold Telecom shares on separate trusts for each of the subscribers for UBS instalment receipts

    trustee means a trustee authorised to act as trustee under the Act

    UBS means UBS Securities New Zealand Limited

    UBS entity means UBS or a related company of UBS (as defined in the Companies Act 1993)

    UBS instalment receipts means equity securities issued by UBS—

    • (a) in the form of an instrument evidencing the arrangements, and having the characteristics, described in the trust deed; and

    • (b) on terms providing for the delivery of Telecom shares to the holders of those securities.

    (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 37A(1)(c) of Act
  • UBS and every person acting on its behalf are exempt from section 37A(1)(c) of the Act in respect of UBS instalment receipts.

6 Conditions of exemption in clause 5
  • (1) The exemption in clause 5 is subject to the condition that any registered prospectus relating to UBS instalment receipts contains prominent statements to the effect that—

    • (a) if information or a statement in the registered prospectus becomes false or misleading in any material particular by reason of failing to refer, or give proper emphasis, to adverse circumstances, the registered prospectus will be immediately withdrawn or amended; and

    • (b) until maturity of the UBS instalment receipts, UBS will lodge certificates with the Registrar that (in each case)—

      • (i) relate to the current registered prospectus relating to the UBS instalment receipts; and

      • (ii) are signed on behalf of UBS by at least 2 directors; and

      • (iii) are dated not more than 1 month after the end of each 6-month period following the date of registration of the prospectus relating to the UBS instalment receipts; and

      • (iv) state that, in the opinion of the directors of UBS, after due inquiry by them, the current registered prospectus relating to the UBS instalment receipts is not, at the date of the certificate, false or misleading in any material particular by reason of failing to refer, or give proper emphasis, to adverse circumstances; and

      • (v) state that, except to the extent permitted by exemptions granted by the Securities Commission in respect of the UBS instalment receipts, the information contained in the current registered prospectus complies with Schedule 1.

    (2) The exemption in clause 5 is subject to the condition that no UBS instalment receipt is allocated under a registered prospectus later than the maturity date of that UBS instalment receipt.

7 Exemptions from clauses 1(4), 4, 5A to 17, 20, 22 to 38, 41, and 42 of Schedule 1
8 Conditions of exemptions in clause 7
  • (1) The exemptions in clause 7 are subject to the conditions that—

    • (a) the registered prospectus relating to the UBS instalment receipts contains the following information:

      • (i) a brief description of the principles and procedures used to calculate the subscription price for a UBS instalment receipt; and

      • (ii) a statement of how an investor may ascertain the subscription price for a UBS instalment receipt; and

      • (iii) a brief summary of the consequences of a subscriber failing to pay the final instalment of a UBS instalment receipt; and

      • (iv) the date of the trust deed; and

      • (v) the names of the parties to the trust deed; and

      • (vi) brief particulars of the duties stated by the trust deed to be those of the trustee; and

      • (vii) a brief description of the principal terms of the trust deed; and

      • (viii) a statement that copies of the trust deed may be obtained on request to UBS and without charge; and

      • (ix) a statement specifying where copies of the trust deed may be obtained; and

    • (b) the trustee has been appointed as trustee in respect of the UBS instalment receipts, and both UBS and the trustee have signed a trust deed relating to the UBS instalment receipts; and

    • (c) at the date of the allotment of the UBS instalment receipts the trustee has complied, and undertakes in the trust deed to comply throughout the period of the UBS instalment receipts, with the conditions in paragraph (d); and

    • (d) for the purposes of paragraph (c) the trustee holds (subject to and in accordance with the trust deed) Telecom shares—

      • (i) sufficient to meet the obligation to deliver Telecom shares under the terms of the UBS instalment receipts; and

      • (ii) for the exclusive benefit of holders of UBS instalment receipts, subject only to a charge in favour of UBS that secures payment of the final instalment of the UBS instalment receipts.

    (2) The condition in subclause (1)(d)(i) does not apply insofar as it requires the trustee to hold Telecom shares in respect of UBS instalment receipts beneficially owned by a UBS entity, provided that—

    • (a) those UBS instalment receipts are held by the trustee on behalf of the UBS entity; and

    • (b) the UBS entity may not demand a transfer of those UBS instalment receipts, or any corresponding Telecom shares, unless and until UBS transfers, or procures the transfer of, a sufficient number of Telecom shares to the trustee.

9 Further conditions of exemptions in clauses 5 and 7
  • The exemptions in clauses 5 and 7 are subject to the further conditions that—

    • (a) the trustee appointed in respect of the UBS instalment receipts—

      • (i) is either a trustee corporation or a person approved for the purpose by the Commission in accordance with section 48 of the Act; and

      • (ii) has accepted the appointment; and

    • (b) UBS does not discharge or retire the trustee from its position as trustee in respect of the UBS instalment receipts until—

      • (i) all functions and duties of that position have been fulfilled and performed; or

      • (ii) UBS has appointed another person who complies with the requirements of paragraph (a); and

    • (c) if the appointed trustee otherwise ceases to be trustee, UBS immediately appoints another person as trustee who complies with the requirements of paragraph (a).

Dated at Wellington this 19th day of September 2006.

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

[Seal]

C A N Beyer,
Member.


Statement of reasons

This notice, which comes into force on notification in the Gazette and expires on 30 September 2008, exempts UBS Securities New Zealand Limited and any person acting on its behalf from various provisions of the Securities Act 1978 and the Securities Regulations 1983 in the respect of the offer to the public of instalment receipts for the delivery of ordinary shares in Telecom Corporation of New Zealand Limited.

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

  • the exemption is consistent with the Commission's policy in cases where returns on the securities offered are dependent upon the performance of securities issued by a third party, and not on the performance of the offeror of the securities to which the exemption relates. In these circumstances much of the information that would otherwise be required about the offeror as issuer is likely to be irrelevant and potentially confusing for investors:

  • the exemption will allow UBS to offer instalment receipts under a registered prospectus that contains information tailored to suit the nature of the product, which is intended to result in investors receiving information that is more relevant and useful than some of the disclosure that would be required without the exemption:

  • the underlying securities must be held by a trustee authorised to act as a trustee under the Securities Act 1978. This provides investors with additional protection by ensuring that custody of the underlying securities is maintained by a person who is independent of the issuer:

  • compliance with the NZX Participant Rules requires the market maker to be ready to buy and sell the instalment receipts on a continuous basis until maturity of the instalment receipts. The ability to allot the instalment receipts on an as-required basis until maturity will ensure that there is a supply of the instalment receipts to meet this obligation:

  • as the prospectus will not contain financial statements of the issuer it would usually be valid for only 6 months. In this case, as financial information about the issuer is not material for investors, the issuer should not be penalised by the omission of the information. The conditions require the directors to register a certificate that the prospectus is not false or misleading in any material particular and the immediate withdrawal or amendment of the prospectus should the registered prospectus become false or misleading at any time.


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

Date of notification in Gazette: 21 September 2006.


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 (UBS Securities New Zealand Limited) Exemption Notice 2006. The reprint incorporates all the amendments to the Securities Act (UBS Securities New Zealand Limited) Exemption Notice 2006 as at 1 October 2008, 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 (UBS Securities New Zealand Limited) Exemption Notice 2006 (SR 2006/290): clause 3