Securities Act (Short Form Prospectus) Exemption Notice 2009

Reprint
as at 28 September 2012

Coat of Arms of New Zealand

Securities Act (Short Form Prospectus) Exemption Notice 2009

(SR 2009/50)


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 (to which is appended a statement of reasons of the Securities Commission).

Notice

1 Title
  • This notice is the Securities Act (Short Form Prospectus) Exemption Notice 2009.

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

3 Expiry
  • (1) Clauses 5 to 10 and 11(1) expire on the close of 31 December 2011.

    (2) The rest of this notice expires on 30 September 2017.

    Clause 3: substituted, on 11 December 2009, by clause 4 of the Securities Act (Short Form Prospectus) Exemption Amendment Notice 2009 (SR 2009/382).

    Clause 3(2): amended, on 28 September 2012, by clause 3 of the Securities Act (Extension of Term, Amendment, and Transitional Provision) Exemption Notice 2012 (SR 2012/294).

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

    Act means the Securities Act 1978

    Regulations means the Securities Regulations 2009.

    (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): replaced, on 28 September 2012, by clause 3 of the Securities Act (Extension of Term, Amendment, and Transitional Provision) Exemption Notice 2012 (SR 2012/294).

5 Exemption from regulation 4(1)(c) and (d) of Regulations for securities offered to existing security holders
  • [Expired]

    Clause 5: expired, on 1 January 2012, by clause 3(1).

6 Conditions of exemption in clause 5
  • [Expired]

    Clause 6: expired, on 1 January 2012, by clause 3(1).

7 Exemption from regulation 4(2)(e) of Regulations
  • [Expired]

    Clause 7: expired, on 1 January 2012, by clause 3(1).

8 Conditions of exemption in clause 7
  • [Expired]

    Clause 8: expired, on 1 January 2012, by clause 3(1).

9 Exemption from regulation 4(3)(b) of Regulations
  • [Expired]

    Clause 9: expired, on 1 January 2012, by clause 3(1).

10 Condition of exemption in clause 9
  • [Expired]

    Clause 10: expired, on 1 January 2012, by clause 3(1).

11 Exemptions from section 34(2)(a) of Act
  • (1) [Expired]

    (2) Every issuer and every person acting on its behalf are exempted from section 34(2)(a) of the Act in respect of any registered prospectus issued under regulation 6 of the Regulations that is distributed by or on behalf of that issuer.

    Clause 11 heading: amended, on 11 December 2009, by clause 5(1) of the Securities Act (Short Form Prospectus) Exemption Amendment Notice 2009 (SR 2009/382).

    Clause 11(1): expired, on 1 January 2012, by clause 3(1).

    Clause 11(2): added, on 11 December 2009, by clause 5(2) of the Securities Act (Short Form Prospectus) Exemption Amendment Notice 2009 (SR 2009/382).

    Clause 11(2): amended, on 28 September 2012, by clause 3 of the Securities Act (Extension of Term, Amendment, and Transitional Provision) Exemption Notice 2012 (SR 2012/294).

12 Revocation

Dated at Wellington this 20th day of March 2009.

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

[Seal]

J Diplock,
Chairperson.


Statement of reasons

Note: The following statement of reasons should be read in conjunction with the statement(s) of reasons appended to the:

This notice, which comes into force on its notification in the Gazette, replaces with amendments the Securities Act (Short Form Prospectus) Exemption Notice 2002 (the 2002 notice). The new exemption notice retains the existing exemptions in the 2002 notice on the existing conditions. The principal differences between the 2002 notice and the new exemption notice are as follows:

  • the new exemption notice enables companies that have relied on the notice provisions in section 209 of the Companies Act 1993 to use the new exemption notice. Section 209 of the Companies Act 1993 (as replaced in June 2007) allows companies to send shareholders a notice advising of the availability of annual reports, rather than having to send a copy of the annual report itself. The new exemption notice allows issuers to use a short form prospectus if the prospectus contains that notice of availability, instead of sending financial statements to shareholders:

  • the conditions of the new exemption notice in respect of offers of guaranteed convertible securities differ slightly, to require the financial statements that are disclosed to comply with generally accepted accounting practice:

  • the new exemption notice also provides that compliance with NZ IAS 34 in respect of interim financial statements is sufficient compliance with the requirements of the Financial Reporting Act 1993 for the purposes of short form prospectuses.

The Securities Commission considers that it is appropriate to replace with amendments the 2002 notice because—

  • regulation 4 of the Securities Regulations 1983 allows for a short form prospectus to be used for an offer of equity, debt, or convertible securities made to a person who already holds securities of the issuer, so long as certain recent financial statements have been sent to shareholders:

  • in June 2007, amendments to section 209 of the Companies Act 1993 (which prescribes the obligations of the board of a company to make available to shareholders an annual report containing the financial statements of the company) took effect. Before this, the board was obliged to send an annual report to shareholders not less than 20 working days before the annual meeting of shareholders. The amendment gave boards the option instead to send shareholders a notice advising them of their right to receive an annual report:

  • the new exemption notice allows companies relying on the amended provision of the Companies Act 1993 to use a short form prospectus where they have elected to make the annual report containing certain financial statements available to shareholders by providing a notice under the amended provisions of the Companies Act 1993. The policy underlying the short form prospectus provisions of the Securities Regulations 1983 is that a short form prospectus should be available for companies if the most recent annual report has been made available in accordance with the Companies Act 1993. The new exemption notice is consistent with that policy and ensures that companies are not penalised when they make an offer, in terms of securities law compliance costs, if they opt to take advantage of the annual report notice provisions permitted under the Companies Act 1993. The conditions of the new exemption notice require companies to have already provided, or concurrently provide, the relevant financial statements, or to refer prospective investors to their right to receive the relevant financial statements, free of charge:

  • regulation 4 recognises that a reduced level of information is appropriate for offers of securities to prospective investors who already hold securities in the issuer. It enables issuers to make offers to these existing investors on the basis of reduced disclosure and accordingly lower offer costs. For these prospective investors, who are already familiar with the issuer, the financial information provided by interim financial statements compliant with NZ IAS 34 is sufficient to assist in an informed investment decision.

Note: The preceding statement of reasons should be read in conjunction with the statement(s) of reasons appended to the:


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

Date of notification in Gazette: 23 March 2009.


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 (Short Form Prospectus) Exemption Notice 2009. The reprint incorporates all the amendments to the notice as at 28 September 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)