Securities Act (Directors' Certificates—Collective Investment Schemes) Exemption Notice 2008

  • expired
  • Securities Act (Directors' Certificates-Collective Investment Schemes) Exemption Notice 2008: expired, on 1 October 2009, by clause 3(2).

Reprint
as at 1 October 2009

Crest

Securities Act (Directors' Certificates—Collective Investment Schemes) Exemption Notice 2008

(SR 2008/456)

  • Securities Act (Directors' Certificates—Collective Investment Schemes) Exemption Notice 2008: expired, on 1 October 2009, by clause 3(2).


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 (Directors' Certificates—Collective Investment Schemes) Exemption Notice 2008.

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

3 Expiry
  • (1) Clauses 6 and 7 expire on the close of 1 April 2009.

    (2) The rest of this notice expires on the close of 30 September 2009.

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

    Act means the Securities Act 1978

    NZ IAS 34 means the financial reporting standard known as the New Zealand Equivalent to International Accounting Standard 34 (Interim Financial Reporting) that has been approved under the Financial Reporting Act 1993

    other arrangement means an arrangement or scheme—

    • (a) that—

      • (i) involves the issue of participatory securities; or

      • (ii) is a unit trust; or

      • (iii) is a superannuation scheme; and

    • (b) the securities of which are not quoted on a securities market operated by a registered exchange; and

    • (c) the securities of which are not quoted on a securities market operated by an overseas stock exchange

    preceding month, in relation to a certificate, means the month that precedes the month in which the certificate is registered

    prospectus means the registered prospectus relating to the specified securities

    Regulations means the Securities Regulations 1983

    specified scheme means an arrangement or scheme if—

    • (a) the arrangement or scheme—

      • (i) involves the issue of participatory securities; or

      • (ii) is a unit trust; or

      • (iii) is a superannuation scheme; and

    • (b) all directors of the issuer are of the opinion (after due enquiry) that—

      • (i) the non-cash assets of the arrangement or scheme (other than non-cash assets that are interests in other arrangements) are sufficiently liquid to allow a reasonably reliable value for the non-cash assets of the arrangement or scheme to be calculated; and

      • (ii) at least 80% of the non-cash assets of the arrangement or scheme (other than non-cash assets that are interests in other arrangements) are, in the ordinary course of business, readily realisable within 5 working days; and

    • (c) the arrangement or scheme does not hold more than 10% of the equity securities of any one issuer; and

    • (d) in the case of an arrangement or scheme that invests in 1 or more other arrangements,—

      • (i) the subscription prices for the securities issued in relation to the other arrangements are calculated by reference to the value of the assets of the other arrangements and are set on at least a weekly basis; and

      • (ii) none of the other arrangements hold more than 10% of the equity securities of any one issuer; and

      • (iii) all directors of the issuer are of the opinion (after due enquiry) that the non-cash assets of the other arrangements are sufficiently liquid to allow a reasonably reliable value for the non-cash assets of the arrangement or scheme to be calculated

    specified security means a security issued in relation to a specified scheme.

    (2) For the purposes of this notice, an issuer must be treated as having relied on an exemption in respect of a month if the issuer relies on the exemption for all or any part of that month.

    (3) 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 Application where prospectus relates to 2 or more types of securities
  • (1) This clause applies if a prospectus relates to 2 or more types of securities.

    (2) Nothing in this notice prevents the issuer from doing 1 or more of the following:

    • (a) complying with section 37A(1A) of the Act in respect of any or all of those types of securities:

    • (b) relying on the exemption in clause 6 in respect of any or all of the specified schemes that the prospectus relates to:

    • (c) relying on the exemption in clause 8 in respect of any or all of the specified schemes that the prospectus relates to:

    • (d) in respect of a particular specified scheme, relying on the exemption in clause 6 at one point in time and the exemption in clause 8 at a different point in time.

Exemption where interim financial statements are not filed

[Expired]

  • Heading: expired, on 2 April 2009, pursuant to clause 3(1).

6 Exemption from section 37A(1A)(c)(i) of Act
  • [Expired]

    Clause 6: expired, on 2 April 2009, by clause 3(1).

7 Conditions of exemption in clause 6
  • [Expired]

    Clause 7: expired, on 2 April 2009, by clause 3(1).

Exemption where interim financial statements are filed

8 Exemption from section 37A(1A)(c)(i) of Act
  • Every issuer of specified securities, and every person acting on its behalf, is exempted, in respect of specified securities, from section 37A(1A)(c)(i) of the Act.

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

    • (a) the issuer—

      • (i) delivers to the Registrar for registration a certificate that complies with section 37A(1A) of the Act (apart from the requirements in paragraphs (b) and (c)(i) of that subsection) and subclause (3); and

      • (ii) delivers a copy of the certificate to the Commission together with a copy of the interim financial statements referred to in paragraph (c); and

    • (b) during the period in which the issuer relies on the exemption, the issuer makes the following available on the issuer's Internet site at all reasonable times (including on any website page on that site on which the current subscription price for the specified securities is displayed):

      • (i) the statements contained in the certificate:

      • (ii) a copy of the interim financial statements referred to in paragraph (c); and

    • (c) the certificate that is delivered for registration under paragraph (a) is accompanied by interim financial statements for the specified scheme for a period from the date of the statement of financial position for the scheme contained or referred to in the prospectus, being statements prepared in accordance with either—

      • (i) NZ IAS 34, except that instead of complying with the requirement relating to comparative financial information, such comparative information may be prepared on the basis of a comparison with the most recent audited financial statements; or

      • (ii) the Regulations as if they were required to be contained or referred to in the prospectus, except that they need not be audited, and instead of complying with the requirement relating to comparative financial information, such comparative information may be prepared on the basis of a comparison with the most recent audited financial statements; and

    • (d) no allotment of a specified security offered to the public for subscription is made in reliance upon the exemption if the date of allotment would be more than 9 months after the date of the interim statement of financial position that accompanies the certificate in accordance with paragraph (c); and

    • (e) no allotment of a specified security offered to the public for subscription is made after 30 September 2009 under a prospectus that is registered before 31 December 2008.

    (2) Subclause (1)(b) ceases to apply after the issuer ceases to rely on the exemption in clause 8.

    (3) The certificate must contain the following statements in respect of the specified scheme:

    • (a) a statement to the effect that the value of the net assets of the scheme has reduced from that shown in the statement of financial position contained or referred to in the prospectus and that the reduction is mainly due to (as is applicable)—

      • (i) a decline in market prices of those assets; or

      • (ii) a significant amount of investor redemptions; or

      • (iii) both a decline in market prices of those assets and a significant amount of investor redemptions:

    • (b) a statement that, in the opinion of all directors of the issuer after due enquiry by them, the prospectus is not, at the date of the certificate, false or misleading in a material particular by reason of failing to refer, or give proper emphasis, to adverse circumstances:

    • (c) a statement to the effect that—

      • (i) interim financial statements have been registered and are available on the issuer's Internet site; and

      • (ii) investors should review those financial statements to understand the updated financial position of the scheme.

Dated at Wellington this 18th day of December 2008.

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 its notification in the Gazette, exempts, subject to conditions, the issuers of certain collective investment schemes from section 37A(1A)(c)(i) of the Securities Act 1978. The notice relates to the certificate that may be registered that allows the date of allotment of securities to be more than 9 months after the date of the statement of financial position referred to in the prospectus. Section 37A(1A)(c)(i) requires the directors of the issuer to state in the certificate that the financial position shown in the statement of financial position has not materially and adversely changed during the period from the date of the statement of financial position to the date of the certificate.

The notice provides 2 exemptions from section 37A(1A)(c)(i) of the Securities Act 1978. The first exemption, which expires on 1 April 2009, does not require interim financial statements to be registered. The second exemption, which expires on 30 September 2009, applies where interim financial statements are registered.

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

  • significant market declines and investor redemptions have adversely affected the financial position of many collective investment schemes in recent months. In these circumstances, issuers of some schemes are not able to register a directors’ certificate to renew prospectuses expiring on 31 December 2008 for a further 9-month period. This is because directors must attest in these certificates that the financial position of the scheme shown in the financial statements filed with the prospectus has not materially and adversely changed in the intervening period:

  • if prospectus extension certificates are not registered then schemes must withdraw from the market until new prospectuses containing or referring to interim financial statements are registered. Collective investment schemes have in the past relied on the prospectus renewal certificate to extend their prospectuses. As a result, many schemes are not in a position to have interim financial statements ready before 31 December 2008. Without an exemption, these schemes would need to withdraw from the market until interim financial statements were ready and new prospectuses could be registered:

  • the Commission considers that it is appropriate to provide temporary relief to enable these schemes to remain open if adequate alternative financial information is provided to investors to assist them to make an informed investment decision. The conditions of exemption require issuers to warn investors about adverse market and fund performance. This exemption will only be available for 3 months, in order to give schemes time to complete and register interim financial statements. The conditions of exemption require the certificate and alternative financial information to be updated monthly:

  • the second exemption allows these schemes to continue to rely on the existing prospectus once interim financial statements are available and filed. Once financial statements that comply with the Securities Regulations 1983 or NZ IAS 34 are available, the prospectus will be accompanied by the financial information required for investors, and a requirement at that point to immediately register a new prospectus would impose costs that would not be justified by the benefits of a new prospectus. This second exemption can be relied upon until 30 September 2009.


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

Date of notification in Gazette: 19 December 2008.


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 (Directors' Certificates—Collective Investment Schemes) Exemption Notice 2008. The reprint incorporates all the amendments to the notice as at 1 October 2009, 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/editorial-conventions/ 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 (Directors' Certificates—Collective Investment Schemes) Exemption Notice 2008 (SR 2008/456): clause 3