Securities Act (Babcock & Brown Infrastructure Limited and Babcock & Brown Investor Services Limited) Exemption Notice 2009

  • expired
  • Securities Act (Babcock & Brown Infrastructure Limited and Babcock & Brown Investor Services Limited) Exemption Notice 2009: expired, on 1 December 2010, by clause 3.

Reprint
as at 1 December 2010

Coat of Arms of New Zealand

Securities Act (Babcock & Brown Infrastructure Limited and Babcock & Brown Investor Services Limited) Exemption Notice 2009

(SR 2009/303)

  • Securities Act (Babcock & Brown Infrastructure Limited and Babcock & Brown Investor Services Limited) Exemption Notice 2009: expired, on 1 December 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 (Babcock & Brown Infrastructure Limited and Babcock & Brown Investor Services Limited) Exemption Notice 2009.

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

3 Expiry
  • This notice expires on the close of 30 November 2010.

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

    Act means the Securities Act 1978

    BBIL means Babcock & Brown Infrastructure Limited, a company incorporated in Australia

    BBINNZ means BBI Networks (New Zealand) Limited

    BBIS means Babcock & Brown Investor Services Limited, a company incorporated in Australia

    bond holder means the person shown as the holder of a bond in the register of securities kept by BBINNZ in accordance with section 51 of the Act

    bonds means the subordinated prime adjusting reset convertible securities issued by BBINNZ under the trust deed

    conversion request has the same meaning as in the trust deed

    prospectus means the registered prospectus in respect of the offer of the stapled securities that complies with clause 6(a)(i)

    registered managed investment scheme means a managed investment scheme registered with the Australian Securities and Investments Commission under section 601EB of the Corporations Act 2001 (Aust)

    Regulations means the Securities Regulations 2009

    stapled securities means stapled securities that consist of one share in BBIL and one unit in the trust that are allotted, or to be allotted, on the conversion of bonds in accordance with a conversion request given in respect of the 17 November 2009 reset date specified in the trust deed

    trust means the Babcock & Brown Infrastructure Trust

    trust deed means the trust deed for the bonds dated 7 September 2004 entered into between BBINNZ as issuer, The New Zealand Guardian Trust Company Limited as trustee, BBIL, and BBIS (as amended from time to time).

    (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 34(2)(a), 37A(1)(a), and 51 to 54 of Act and regulation 5(1)(a) and (c) of Regulations
6 Conditions of exemptions in clause 5
  • The exemptions in clause 5 are subject to the conditions that—

    • (a) no allotment of a stapled security must be made if the bond holder did not receive, before 22 October 2009, a copy of—

      • (i) a prospectus that contains all of the information, statements, and other matters specified in the Schedule that are applicable; and

      • (ii) the consolidated audited financial statements of BBIL and the trust for the financial year ended 30 June 2009 that—

        • (A) are taken to comply with section 11 of the Financial Reporting Act 1993 and every applicable financial reporting standard as a result of section 11(3) of that Act; and

        • (B) comply with the provisions of any Australian laws to which BBIL and the trust are subject; and

      • (iii) the audited financial statements for BBINNZ for the financial year ended 30 June 2009 that comply with, and have been registered under, the Financial Reporting Act 1993:

    • (b) no allotment of a stapled security must be made if the bond holder did not receive, before subscribing for the stapled security, a copy of every memorandum of amendments to the prospectus that is registered under section 43 of the Act before the time of allotment:

    • (c) no allotment of a stapled security must be made if the Commission has given a delayed allotment notice as referred to in clause 7 and the bond holder subscribed for the security before the notice was given:

    • (d) if the Commission has given a delayed allotment notice as referred to in clause 7, no allotment of a stapled security must be made—

      • (i) in contravention of the terms or conditions of the notice or of its revocation; or

      • (ii) if a term or condition of the notice remains unfulfilled; or

      • (iii) until after the notice expires or is revoked:

    • (e) at the time of allotment of the stapled securities, the trust must be a registered managed investment scheme:

    • (f) BBINNZ must be a wholly owned subsidiary of BBIL at the time of the offer and of the allotment of the stapled securities:

    • (g) BBIS and BBIL must both be public issuers at the time of the allotment of the stapled securities:

    • (h) the prospectus must contain a statement to the effect that BBIS and BBIL will take steps to ensure that the stapled securities are listed immediately after allotment:

    • (i) the bonds must remain listed for the period from the commencement of this notice until the allotment of the stapled securities:

    • (j) as soon as practicable after registration of the prospectus, a copy of the prospectus must be provided to NZX Limited for the purpose of making that document available to participants in the securities market operated by NZX Limited upon which the stapled securities will be listed:

    • (k) the prospectus must be prominently published at all reasonable times on an Internet site maintained by, or on behalf of, BBIL and BBIS during the period beginning on the day after the date on which NZX Limited is provided with a copy of the prospectus under paragraph (j) and ending after the allotment of the last of the stapled securities:

    • (l) any bond holder who has given a conversion request to BBINNZ dated on or before 22 October 2009 to convert some or all of the bond holder's bonds on 17 November 2009 must have the right to withdraw that conversion request by notice in writing received by BBINNZ before 5 pm on 13 November 2009:

    • (m) the prospectus must, when it is delivered to the Registrar for registration under the Act, have attached to it or be accompanied by the disclosed information as defined in clause 6 of the Schedule.

7 Commission may give notice to delay allotment
  • (1) The delayed allotment notice referred to in clause 6(c) and (d) is a written notice given by the Commission to BBINNZ that requires the date of allotment of the stapled securities to be delayed for a period specified in the notice.

    (2) The delayed allotment notice may specify terms and conditions that must be complied with before allotment of the stapled securities may be made (for example, a condition that a person disclose or give public notice of specified information in any manner that the Commission thinks fit in the circumstances).

    (3) The Commission may vary a delayed allotment notice by giving written notice to BBINNZ.

    (4) The Commission may revoke a delayed allotment notice, on any terms and conditions, by giving written notice to BBINNZ.

8 Exemption from section 33(3) of Act
  • BBIL, BBIS, and every person acting on behalf of either or both of them are exempted from section 33(3) of the Act in respect of any stapled securities.

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

    • (a) a copy of each of the following documents must have been received by the Registrar:

      • (i) the licence of BBIS granted under section 913B of the Corporations Act 2001 (Aust); and

      • (ii) the trust's constitutional documents; and

      • (iii) evidence of registration of the trust as a registered managed investment scheme; and

      • (iv) the compliance plan for the trust required under Australian law; and

    • (b) the trust must be a registered managed investment scheme at all times until the expiry of this notice; and

    • (c) BBIS must be the responsible entity in accordance with Australian law for the trust at all times until the expiry of this notice.


Schedule
Prospectus requirements

cl 6(a)

1 Information at front of prospectus
  • (1) A statement on the front page that clearly identifies the prospectus as being a prospectus for an offer of securities of the same class as certain listed securities of BBIL and BBIS.

    (2) A statement to the effect that, as a result of an exemption granted under the Act, the prospectus contains information similar to that which would be provided in a simplified disclosure prospectus (modified as necessary, given that the securities include participatory securities).

    (3) A statement to the effect that BBIL and BBIS are subject to a disclosure obligation that requires them to notify certain material information to a registered exchange for the purpose of making that information available to participants in the registered exchange's securities market.

2 Names, addresses, and other information
  • (1) The names of BBIL and BBIS as issuers of the stapled securities, and the address of the registered office of both of those persons.

    (2) The name of every director of BBIL or of BBIS.

    (3) The name and address of BBINNZ as promoter of the stapled securities.

3 Experts and underwriter
  • (1) The names, addresses, and qualifications of any experts named in the prospectus.

    (2) If the offer of stapled securities is underwritten, the name and address of any underwriter.

4 Terms of offer and stapled securities
  • (1) A brief description of the stapled securities.

    (2) A statement as to whether there is any maximum number or amount of the stapled securities being offered and, if so, the number or amount.

    (3) A statement as to whether there is any nominal value of the stapled securities being offered and, if so, the nominal value.

    (4) The consideration to be provided for the stapled securities.

    (5) A statement as to how bond holders may subscribe for the stapled securities.

    (6) All terms of the offer, and all terms of the securities being offered, not elsewhere set out in the prospectus, other than—

    • (a) any terms implied by law; or

    • (b) any terms set out in a document that is—

      • (i) registered with a public official; and

      • (ii) available for public inspection; and

      • (iii) referred to in the prospectus.

5 Relationship with listed securities
  • (1) A statement to the effect that the stapled securities are of the same class as securities previously issued by BBIL and BBIS that are listed securities.

    (2) A brief description of those listed securities.

    (3) The name of the market on which the listed securities are listed.

    (4) A statement that describes the relationship between the consideration to be provided for the stapled securities and the market price of those listed securities.

    (5) A statement that warns that the market price of those listed securities may change between the date of the offer and the date when the stapled securities are allotted, and describes the effect that this would have on the price or value of the securities that a bond holder would receive.

6 Information available under issuer's disclosure obligation
  • (1) Particulars of the disclosed information that are sufficient to identify that information (for example, the title of a document and its date of notification to a registered exchange).

    (2) A statement to correct or update the disclosed information if it is misleading in the context of the offer.

    (3) If BBIL or BBIS has material information that is not generally available to the market but BBIL or BBIS is not required to notify that information to the registered exchange in accordance with the listing rules of the exchange and that information, or part of it, is information that is likely to assist a prudent but non-expert person to decide whether or not to subscribe for the securities, a statement of that information or that part.

    (4) In this clause,—

    disclosed information means information notified by BBIL or BBIS to a registered exchange in accordance with the listing rules of the exchange that is material to the offer of stapled securities and that is notified on or after the date on which the latest financial statements have been notified by BBIL or BBIS to the exchange in accordance with those listing rules

    latest financial statements means the consolidated financial statements or interim financial statements for BBIL and the trust that are the most recent at the specified date.

7 Access to information and statements
  • A statement—

    • (a) to the effect that the disclosed information identified under clause 6(1)

      • (i) is filed on a public register at the Companies Office of the Ministry of Economic Development and is available for public inspection (including at www.companies.govt.nz); and

      • (ii) will be made available on request, and free of charge, by BBIL and BBIS; and

    • (b) explaining how the request under paragraph (a)(ii) should be made.

8 Directors' statement
  • A statement by the directors of BBIL and BBIS to the effect that, in their opinion, after due enquiry by them, BBIL and BBIS are in compliance with the requirements of the continuous disclosure provisions that apply to them.

Dated at Wellington this 12th day of October 2009.

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 its notification in the Gazette and expires on 30 November 2010.

This notice exempts Babcock & Brown Infrastructure Limited (BBIL) and Babcock & Brown Investor Services Limited (BBIS), subject to conditions, from sections 33(3), 34(2)(a), 37A(1)(a), and 51 to 54 of the Securities Act 1978 (the Act) and regulation 5(1)(a) and (c) of the Securities Regulations 2009 (the Regulations) in respect of certain stapled securities (stapled securities). The stapled securities result from the conversion on 17 November 2009 of subordinated prime adjusting reset convertible securities (bonds) issued by BBI Networks (New Zealand) Limited (BBINNZ).

The bonds were issued by BBINNZ under a trust deed dated 7 September 2004 (the trust deed). That deed was entered into between BBINNZ as issuer, The New Zealand Guardian Trust Company Limited as trustee, BBIL, and BBIS as responsible entity of the Babcock & Brown Infrastructure Trust (the trust).

Bond holders have a right to convert the bonds held into stapled securities that comprise shares in BBIL and units in the trust.

The Securities Commission considers that it is appropriate to grant the exemptions from sections 34(2)(a) and 37A(1)(a) of the Act, and from regulation 5(1)(a) and (c) of the Regulations, for the following reasons:

  • the simplified disclosure prospectus regime in the Regulations was included to enable listed issuers that are subject to continuous disclosure obligations to offer securities to the public using a single offer document by way of a simplified disclosure prospectus:

  • the simplified disclosure prospectus schedules relate only to offers of equity securities, debt securities, and units in unit trusts. Securities of the same class as the stapled securities are listed on the New Zealand Stock Exchange but, because the stapled securities include participatory securities, BBIL and BBIS are unable to take advantage of the simplified disclosure prospectus regime:

  • the exemptions enable the allotment of stapled securities to take place on conversion of the bonds on 17 November 2009 under a prospectus that complies with the requirements for a simplified disclosure prospectus (modified as necessary, given that the securities include participatory securities):

  • allowing the use of a prospectus that is similar to a simplified disclosure prospectus in respect of these securities is consistent with the policy of the Regulations in respect of offers that can be made using a simplified disclosure prospectus:

  • allowing the allotment of stapled securities to be made using a prospectus that is similar to a simplified disclosure prospectus will ensure that bond holders have available to them all material information necessary on which to make an informed decision in relation to the conversion of their bonds. The conditions also require bond holders to be provided with the latest audited financial statements of BBIL and the trust for the financial year ended 30 June 2009:

  • the conditions of the exemptions provide that, if the prospectus needs to be amended before allotment of the stapled securities, bond holders must receive a copy of the amendment before subscribing for the stapled securities:

  • the conditions of the exemptions allow bond holders who have given their conversion request before 22 October 2009 to withdraw their request by notice in writing to BBINNZ before 5 pm on 13 November 2009.

The Securities Commission considers that it is appropriate to grant the exemptions from sections 51 to 54 of the Act because these exemptions provide relief from certain requirements of the Act concerning the keeping of registers and accounting records and the sending of certificates to security holders in respect of the stapled securities in recognition of the requirements on issuers under Australian law.

The Securities Commission considers that it is appropriate to grant the exemption from section 33(3) of the Act because Australian law requires a registered managed investment scheme to have a responsible entity. This regulatory arrangement has been recognised in the Securities (Mutual Recognition of Securities Offerings—Australia) Regulations 2008 and also in the Securities Act (Australian Registered Managed Investment Schemes) Exemption Notice 2008.


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

Date of notification in Gazette: 14 October 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 (Babcock & Brown Infrastructure Limited and Babcock & Brown Investor Services Limited) Exemption Notice 2009. The reprint incorporates all the amendments to the notice as at 1 December 2010, 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)
  • Securities Act (Babcock & Brown Infrastructure Limited and Babcock & Brown Investor Services Limited) Exemption Notice 2009 (SR 2009/303): clause 3