This notice is the Securities Act (NZX—Share and Unit Purchase Plans) Exemption Notice 2005.

This notice comes into force on the day after the date of its notification in the Gazette.

This notice expires on the close of 31 October 2010.

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

(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.

(1) For the purposes of this notice, a share purchase plan and a unit purchase plan must comply with the following requirements:

• (a) the right to subscribe for the specified securities must be offered to all security holders holding securities of the same class as the specified securities, except a security holder in a jurisdiction outside New Zealand who is excluded by the NZX issuer to avoid a risk of breaching the law in that jurisdiction; and

• (b) the right to subscribe for the specified securities must be offered on the same terms and conditions to all the security holders to whom the offer is made; and

• (c) the right to subscribe for the specified securities must not be renounceable; and

• (d) the specified securities issued under the share purchase plan or the unit purchase plan to security holders of the same class must enjoy the same rights—

  • (i) as each other; and

  • (ii) as the securities that qualify a security holder to subscribe for the specified securities; and

• (e) the subscription price must be equal to or less than the lower of the following:

  • (i) the average end of day market price of securities of the same class as the specified securities during a period specified in the share purchase plan or the unit purchase plan that falls within the period of 30 days immediately before either—

    • (A) the date of the offer to subscribe for the specified securities; or

    • (B) the date of the issue of the specified securities:

  • (ii) the lowest price paid by investors in a private placement (if the offer under the share purchase plan or the unit purchase plan is made at the same time as, or within 30 days after, a private placement); and

• (f) the subscription price must be fixed before allotment of the specified securities; and

• (g) the subscription price must be disclosed in accordance with clause 7(2) before allotment of the specified securities; and

• (h) in any 12-month period, the total issue price of the specified securities issued to a security holder must not be more than $15,000.

(2) Despite subclause (1)(h), the NZX issuer may issue to a custodian in any 12-month period specified securities the total issue price of which is more than $15,000 if—

• (a) the custodian certifies the following in writing to the NZX issuer:

  • (i) that the custodian holds securities of the same class as the specified securities directly or indirectly as a custodian for beneficial owners; and

  • (ii) the number of those beneficial owners; and

  • (iii) in respect of each of the beneficial owners, how many specified securities the beneficial owner, or its agent, has instructed the custodian to accept on behalf of that beneficial owner; and

  • (iv) that the custodian undertakes not to accept on behalf of any of those beneficial owners for which it acts directly or indirectly as a custodian, in any 12-month period, specified securities in any one NZX issuer, the total issue price of which is more than $15,000; and

• (b) the NZX issuer is reasonably satisfied that in any 12-month period the total issue price of the specified securities issued to any beneficial owner is not more than $15,000, whether those specified securities are issued—

  • (i) through any custodian; or

  • (ii) if the beneficial owner is also a security holder, in their own right as a security holder.

Every NZX issuer and every person acting on its behalf are exempted from sections 37 and 37A of the Act and the Regulations (except regulation 8) in respect of the specified securities.

Clause 6 does not apply in respect of any securities of a NZX issuer if, at any time within the 12-month period before the offer is first made under the share purchase plan or the unit purchase plan, trading in any securities of the NZX issuer on a securities market operated by NZX has been suspended for a total period of 5 trading days or more (whether the trading has been suspended on 1 or more occasions).

(1) The exemptions in clause 6 are subject to the condition that a person who subscribes for specified securities under a share purchase plan or a unit purchase plan must, before subscribing, have received a document that—

• (a) is signed by each of the directors of the NZX issuer or his or her agent authorised in writing; and

• (b) contains the offer to subscribe for specified securities under the share purchase plan or the unit purchase plan; and

• (c) describes the procedure for fixing the subscription price; and

• (d) specifies the subscription price if the subscription price was fixed before the document is sent to the person; and

• (e) states when the subscription price was or will be fixed; and

• (f) describes when and how payment of subscription monies is to be made; and

• (g) describes the relationship between the subscription price and the market price of the specified securities; and

• (h) warns that the market price of the specified securities may change between the date of the offer and the date when the specified securities are allotted, and describes the effect this would have on the price or value of the specified securities that a subscriber would receive; and

• (i) states that a subscriber may obtain from the NZX issuer free of charge,—

  • (i) in the case of an NZX issuer that is not the manager of a unit trust, the NZX issuer’s most recent annual report and financial statements; and

  • (ii) in the case of an NZX issuer that is the manager of a unit trust, the most recent annual report and financial statements of the unit trust.

(2) The exemptions in clause 6 are subject to the condition that,—

• (a) in the case of the subscription price being fixed before the document referred to in subclause (1) is sent, the NZX issuer must, as soon as practicable after the document is sent, supply to NZX a statement that complies with subclause (3) for the purpose of that statement being made available to participants in the securities market operated by NZX on which the specified securities are listed; or

• (b) in any other case, the NZX issuer must, as soon as practicable after the subscription price has been fixed, supply to NZX a statement that complies with subclause (3) for the purpose of that statement being made available to participants in the securities market operated by NZX on which the specified securities are listed.

(3) For the purposes of subclause (2), the statement must—

• (a) specify the subscription price; and

• (b) be signed by each of the directors of the NZX issuer or his or her agent authorised in writing; and

• (c) certify that when the subscription price was fixed the NZX issuer had no information not publicly available that would, or would be likely to, have a material effect on the market price of the specified securities if the information were publicly available.

(4) The exemptions in clause 6 are subject to the condition that the NZX issuer must not allot the specified securities if, when the subscription price was fixed, the NZX issuer had information not publicly available that would, or would be likely to, have a material effect on the market price of the specified securities if the information were publicly available.