Securities Act (Prime Infrastructure Networks (New Zealand) Limited) Exemption Notice 2004
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Reprint
as at 1 September 2009
Securities Act (Prime Infrastructure Networks (New Zealand) Limited) Exemption Notice 2004
(SR 2004/245)
Securities Act (Prime Infrastructure Networks (New Zealand) Limited) Exemption Notice 2004: expired, on 1 September 2009, 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).
Contents
Notice
1 Title
This notice is the Securities Act (Prime Infrastructure Networks (New Zealand) Limited) Exemption Notice 2004.
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 August 2009.
4 Interpretation
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(1) In this notice, unless the context otherwise requires,—
Act means the Securities Act 1978
ASIC means the Australian Securities and Investments Commission
Code means the Takeovers Code approved by the Takeovers Code Approval Order 2000 (SR 2000/210)
Corporations Act means the Corporations Act 2001 of the Commonwealth of Australia
new stapled securities means stapled securities into which the specified convertible notes may convert
NZDX means the debt security market operated by NZX
NZX means New Zealand Exchange Limited
Prime Infrastructure means the investment vehicle, comprising Prime Management and Prime Trust, known as Prime Infrastructure
Prime Management means Prime Infrastructure Management Limited, a company incorporated in Australia
Prime Networks means Prime Infrastructure Networks (New Zealand) Limited, an indirect wholly-owned subsidiary of Prime Management
Prime share means an ordinary share in Prime Management
Prime Trust means Prime Infrastructure Trust, a registered managed investment scheme
Prime unit means a unit in Prime Trust
registered managed investment scheme means a managed investment scheme that is registered with ASIC under section 601EB of the Corporations Act
Regulations means the Securities Regulations 1983
responsible entity means the responsible entity (as defined in section 9 of the Corporations Act) for Prime Trust
specified convertible notes means convertible note debt securities that—
(a) are to be issued by Prime Networks to certain accepting offerees of the takeover offer; and
(b) are convertible into new stapled securities at the time, and on the terms and conditions, set out in the takeover offer
stapled security means a stapled security, consisting of 1 Prime share and 1 Prime unit, issued by Prime Infrastructure
takeover offer means the takeover offer to be made by Prime Networks in or about August or September 2004 under the Takeovers Act 1993 and the Code to purchase all the ordinary shares and unsecured subordinated capital bonds in Powerco Limited, as varied from time to time in accordance with that Act and the Code.
(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 33(3) of Act
Prime Networks, the responsible entity, and every person acting on behalf of any or all of them, are exempted from section 33(3) of the Act in respect of any Prime units to be allotted under the terms of issue of the specified convertible notes.
6 Conditions of exemption in clause 5
The exemption in clause 5 is subject to the conditions that—
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(a) a copy of each of the following documents has been received by the Registrar of Companies:
(i) the licence of the responsible entity granted under the Corporations Act; and
(ii) Prime Trust's constitutional documents; and
(iii) evidence of registration of Prime Trust as a registered managed investment scheme with ASIC; and
(iv) the compliance plan for Prime Trust required under Australian law; and
(b) Prime Trust is a registered managed investment scheme at all times until after the allotment of the last new stapled securities to be allotted.
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7 Exemptions from sections 37, 37A, and 51 to 54 of Act
Prime Management, Prime Networks, the responsible entity, and every person acting on behalf of any or all of them, are exempted, in respect of any new stapled securities to be allotted under the terms of issue of the specified convertible notes, from—
(a) section 37 of the Act; and
(b) section 37A of the Act, to the extent that it would otherwise require Prime Management and Prime Trust to prepare an investment statement in relation to the new stapled securities; and
(c) sections 51 to 54 of the Act.
8 Conditions of exemptions in clause 7
The exemptions in clause 7 are subject to the conditions that—
(a) Prime Networks is, whether directly or indirectly, a wholly-owned subsidiary of Prime Management at the time of the offer and allotment of the specified convertible notes, and also at the time of the allotment of new stapled securities; and
(b) Prime Infrastructure is, both at the time of allotment of the specified convertible notes and also at the time of allotment of the new stapled securities, listed on NZX as an overseas listed issuer (as defined in the NZX Listing Rules); and
(c) the specified convertible notes are quoted on NZDX on allotment and remain quoted for the period that they are current; and
(d) the specified convertible notes are issued under an investment statement that relates to both the specified convertible notes and the new stapled securities; and
(e) the specified convertible notes are allotted under a registered prospectus that contains particulars of all material matters relating to the offer of new stapled securities; and
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(f) before allotment of any new stapled securities and before the exercise of any conversion right conferred by the specified convertible notes, the following documents have been sent to every person who was, at the time the financial statements are sent, a registered holder of specified convertible notes in respect of which new stapled securities are to be allotted or a conversion right may be exercised:
(i) a copy of the most recent audited financial statements of Prime Infrastructure that comply with section 11(3) of the Financial Reporting Act 1993 and with the provisions of other laws to which Prime Infrastructure is subject; and
(ii) if the date of allotment of any new stapled securities or the date of the exercise of any conversion right conferred by the specified convertible notes would be later than 9 months after the date of the financial statements referred to above, interim financial statements for a period beginning on the day after the date of the financial statements referred to above and ending on a date that is not later than 9 months after that date, that comply with section 11(3) of the Financial Reporting Act 1993 and with the provisions of any other laws to which Prime Infrastructure is subject, except that these statements need not be audited; and
(g) the date of allotment of any new stapled securities under the terms of, or the date of the exercise of a conversion right under, any specified convertible notes is not more than 9 months after the date of the financial statements or interim financial statements, as the case may be, referred to in paragraph (f).
9 Exemption from regulation 23 of Regulations
Prime Management, Prime Networks, the responsible entity, and every person acting on behalf of any or all of them, are exempted from regulation 23 of the Regulations in respect of the specified convertible notes and any new stapled securities to be allotted under the terms of issue of the specified convertible notes.
10 Condition of exemption in clause 9
The exemption in clause 9 is subject to the condition that any registered prospectus or advertisement for the specified convertible notes or the new stapled securities contains no statement referring to listing or intended listing of the specified convertible notes or the new stapled securities on a market operated by NZX other than a statement that has been approved by NZX.
Dated at Wellington this 17th day of August 2004.
The Common Seal of the Securities Commission was affixed in the presence of:
[Seal]
F R S Clouston,
Member.
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 August 2009, exempts Prime Infrastructure Networks (New Zealand) Limited (Prime Networks) and various other parties, subject to conditions, from sections 33(3), 37, 37A, and 51 to 54 of the Securities Act 1978 (the Act) and from regulation 23 of the Securities Regulations 1983 (the Regulations). The exemptions relate to the offer, as part of a takeover bid by Prime Networks for shares and securities in Powerco Limited, of specified convertible notes (the notes) that are convertible into stapled securities (the stapled securities) under the terms of issue of the notes.
The Commission considers that it is appropriate to grant the exemptions for the following reasons:
the exemption from section 33(3) of the Act recognises that Australian law requires a registered managed investment scheme to have a responsible entity and provides relief from the need for a statutory supervisor and deed of participation for the units that form part of the stapled securities:
the exemptions from sections 37 and 37A of the Act in respect of the stapled securities are consistent with the policy of the Commission in respect of convertible securities, which is to exempt issuers from the requirement to have a registered prospectus and investment statement for the allotment of the securities underlying the convertible securities provided that, at the time of the offer of the initial securities, investors are given all information material to the offer of the underlying securities:
the exemptions from sections 51 to 54 of the Act 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 equivalent requirements on issuers under Australian law:
the intention is to list the notes and stapled securities on NZX markets if the takeover bid is successful. Strict compliance with regulation 23 of the Regulations would not permit this to be explained fully. The information is useful to investors, and the condition in clause 10 requires that the statement be approved by NZX.
Date of notification in Gazette: 19 August 2004.
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
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This is a reprint of the Securities Act (Prime Infrastructure Networks (New Zealand) Limited) Exemption Notice 2004. The reprint incorporates all the amendments to the notice as at 1 September 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
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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
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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)
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•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
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•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 (Prime Infrastructure Networks (New Zealand) Limited) Exemption Notice 2004 (SR 2004/245): clause 3
Versions
Securities Act (Prime Infrastructure Networks (New Zealand) Limited) Exemption Notice 2004
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