Securities Act (Toll Holdings Limited) Exemption Notice 2007

  • expired
  • Securities Act (Toll Holdings Limited) Exemption Notice 2007: expired, on 1 June 2008, by clause 3.

Reprint
as at 1 June 2008

Crest

Securities Act (Toll Holdings Limited) Exemption Notice 2007

(SR 2007/77)

  • Securities Act (Toll Holdings Limited) Exemption Notice 2007: expired, on 1 June 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.

The Securities Act (Toll Holdings Limited) Exemption Notice 2007 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 (Toll Holdings Limited) Exemption Notice 2007.

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 May 2008.

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

    Act means the Securities Act 1978

    AFL means Asciano Finance Limited, a company incorporated in Australia

    AFT means Asciano Finance Trust, a managed investment scheme (within the meaning of section 9 of the Corporations Act 2001) that is registered with the Australian Securities and Investments Commission under section 601EB of that Act

    Asciano means Asciano Limited, a company incorporated in Australia

    ASX means ASX Limited, a company incorporated in Australia

    Corporations Act 2001 means the Corporations Act 2001 of the Commonwealth of Australia

    first scheme means the scheme of arrangement under section 411 of the Corporations Act 2001 under which the proceeds of a capital reduction of Toll are applied, on behalf of holders of ordinary shares in Toll (other than holders who, under the terms of the scheme, are ineligible to participate in the subscription), to subscribe for units in AFT

    PIML means Permanent Investment Management Limited, a company incorporated in Australia

    Regulations means the Securities Regulations 1983

    responsible entity means the responsible entity (as defined in section 9 of the Corporations Act 2001) of AFT

    second scheme means the scheme of arrangement under section 411 of the Corporations Act 2001 under which shares in Asciano are issued to holders of ordinary shares in Toll (other than holders who, under the terms of the scheme, are ineligible to participate in the issue of shares under the scheme)

    specified securities means—

    • (a) units in AFT offered under the first scheme; and

    • (b) shares in Asciano offered under the second scheme

    Toll means Toll Holdings Limited, a company incorporated in Australia.

    (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 Exemptions from sections 33(3), 37, 37A, 38A, and 51 to 54B of Act and Regulations (except regulation 8) for specified securities
  • Toll, Asciano, AFL, PIML, and every person acting on behalf of any or all of them are exempted from sections 33(3), 37, 37A, 38A, and 51 to 54B of the Act and the Regulations (except regulation 8) in respect of the specified securities.

6 Conditions of exemptions in clause 5
  • The exemptions in clause 5 are subject to the conditions that—

    • (a) at the time of the offer of the specified securities to the public in New Zealand, the ordinary shares in Toll are quoted by ASX:

    • (b) an application has been made for joint quotation of the specified securities by ASX as stapled securities and, at the time of the offer of the specified securities to the public in New Zealand, the issuers of the specified securities have complied with all the requirements of ASX relating to the application with which they are required to comply at that time:

    • (c) at the time of the offer of the specified securities to the public in New Zealand, and at all times up to immediately before the issue of shares in Asciano under the second scheme, Asciano is a wholly owned subsidiary of Toll:

    • (d) the offer of the specified securities to the public in New Zealand is made in compliance with the laws of Australia and any code, rules, or other requirements (as varied, waived, modified, or exempted from time to time by relevant regulatory authorities) relating to the offer of those securities applying in Australia.

7 Exemptions from sections 33(3), 37, 37A, 38A, and 51 to 54B of Act and Regulations (except regulation 8) for replacement of responsible entity
  • Toll, AFL, PIML, and every person acting on behalf of any or all of them are exempted from sections 33(3), 37, 37A, 38A, and 51 to 54B of the Act and the Regulations (except regulation 8) in respect of any security that varies the terms or conditions of units in AFT by replacing PIML with AFL as the responsible entity, including—

    • (a) PIML retiring as the responsible entity; and

    • (b) AFL becoming the responsible entity.

8 Conditions of exemptions in clause 7
  • The exemptions in clause 7 are subject to the conditions that—

    • (a) at the time of the replacement of PIML with AFL as the responsible entity,—

      • (i) AFL is a wholly owned subsidiary of Asciano; and

      • (ii) the specified securities are jointly quoted by ASX as stapled securities:

    • (b) the replacement of PIML with AFL as the responsible entity occurs in compliance with the laws of Australia and any code, rules, or other requirements (as varied, waived, modified, or exempted from time to time by relevant regulatory authorities) relating to that replacement applying in Australia.

Dated at Wellington this 20th day of March 2007.

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

[Seal]

J Diplock,
Chairperson.


Statement of reasons

This notice, which comes into force on the day after the date of its notification in the Gazette and expires on 31 May 2008, provides exemptions to sections 33(3), 37, 37A, 38A, and 51 to 54B of the Securities Act 1978 and the Securities Regulations 1983 (except regulation 8) in 2 related circumstances.

The first exemption applies to Toll Holdings Limited (Toll), Asciano Limited (Asciano), Asciano Finance Limited (AFL), Permanent Investment Management Limited (PIML), and every person acting on behalf of any or all of them and concerns 2 schemes of arrangement. Under the first scheme of arrangement, the proceeds of a capital reduction of Toll are applied, on behalf of holders of ordinary shares in Toll, to subscribe for units in Asciano Finance Trust (AFT). Under the second scheme of arrangement, shares in Asciano are issued to holders of ordinary shares in Toll.

The units and the shares issued under the 2 schemes of arrangement will be stapled, and an application will be made to ASX Limited (ASX) for Asciano and AFT to be admitted to the official list of ASX and for the stapled securities to be quoted by ASX.

The second exemption applies to Toll, AFL, PIML, and every person acting on behalf of any or all of them and concerns the replacement of PIML with AFL as the responsible entity of AFT. Under Australia's Corporations Act 2001, a registered managed investment scheme like AFT requires the appointment of a responsible entity who acts as a manager and a trustee. Initially, PIML will act as AFT's responsible entity. However, PIML is intended to be subsequently replaced by AFL.

Both of the exemptions are subject to conditions that ensure that the offer of the securities and the replacement of the responsible entity is carried out in accordance with the laws of Australia and all applicable codes, rules, and other requirements.

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

  • the exemptions accord with the policies behind the Securities Act (Overseas Companies) Exemption Notice 2002. That notice recognises that persons who already hold securities in overseas companies have taken on the risk associated with those securities and can to a degree be assumed to have a familiarity with them. It allows New Zealanders who are shareholders in overseas companies to participate in rights offers and offers arising from reconstructions that might otherwise not be extended to shareholders in New Zealand due to the cost of compliance:

  • while the offers of securities to be made in the course of the Toll restructuring do not meet the precise terms of the Securities Act (Overseas Companies) Exemption Notice 2002, the policy underlying that notice is equally applicable to those offers:

  • the effect of the conditions of the exemptions in this notice is that New Zealand shareholders will receive an explanatory memorandum, prepared under Australian law and approved by the Australian courts, that will provide sufficient information and disclosure to allow investors to make an informed decision regarding the proposed schemes of arrangement and the proposed offers of securities.


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

Date of notification in Gazette: 22 March 2007.


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 (Toll Holdings Limited) Exemption Notice 2007. The reprint incorporates all the amendments to the Securities Act (Toll Holdings Limited) Exemption Notice 2007 as at 1 June 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 (Toll Holdings Limited) Exemption Notice 2007: clause 3