This notice is the Securities Act (Great Britain Collective Investment Schemes) Exemption Notice 2004.

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

This notice expires on the close of 30 September 2009.

(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) Every specified person and every person acting on the specified person’s behalf are exempted, in respect of specified securities of which the specified person is the issuer, from—

• (a) in the case of specified participatory securities, section 33(3) of the Act; and

• (b) section 37 of the Act; and

• (c) section 37A(1)(a) of the Act; and

• (d) section 38A of the Act and regulations 11 to 18 and 21 to 23 of the Regulations; and

• (e) sections 51 to 54 of the Act; and

• (f) section 38(a) of the Act to the extent that it requires an overseas prospectus or short form disclosure document to refer to an investment statement.

(2) Subclause (1)(d) applies in respect of an overseas prospectus or short form disclosure document only, and not in respect of an investment statement or other advertisement.

(1) The exemption in clause 5(1)(c), in respect of any specified securities offered in New Zealand for subscription, is subject to the condition that no allotment of the specified securities is made if the subscriber has not received, before subscribing for those securities, a short form disclosure document relating to those securities.

(2) The exemptions in clause 5(1)(a), (b), and (d) are subject to the condition that any investment statement that relates to the specified securities complies with the provisions of the Act and the Regulations relating to investment statements as if references in the Act or the Regulations to “registered prospectus” were references to the overseas prospectus.

The exemptions in clause 5(1)(a) to (d) are subject to the conditions that—

• (a) there is an overseas prospectus relating to the specified securities at the time that offers of those securities are made or are open for acceptance in New Zealand in reliance on those exemptions; and

• (b) it is a term of each offer of the specified securities made in New Zealand that a specified person will, within 5 working days of receiving a request from an offeree for a copy of the overseas prospectus relating to the securities concerned, without fee, send, or cause to be sent, to that offeree—

  • (i) a copy of the overseas prospectus; and

  • (ii) a copy of the most recent annual report and (if more recent) the most recent half-yearly report of the collective investment scheme; and

  • (iii) copies of any documents that must accompany a copy of the overseas prospectus sent to a person in Great Britain in accordance with the law of England and Wales, or the law of Scotland, as the case may be.

(1) The exemptions in clause 5(1)(a) to (d) are subject to the further conditions that—

• (a) before the first offer of any specified securities in a collective investment scheme is made or open for acceptance in New Zealand in reliance on any exemption in clause 5(1), a copy of each of the following documents relating to that scheme has been received by the Registrar of Companies:

  • (i) the overseas prospectus relating to the specified securities:

  • (ii) a copy of any exemption, order, or declaration (other than the exemptions granted by this notice) that has been granted by a competent authority in respect of the specified securities:

  • (iii) a certificate by a specified person certifying that a copy of the overseas prospectus has been sent to the FSA in accordance with the FSA’s requirements:

  • (iv) any document issued by the FSA evidencing that the manager and trustee of the authorised unit trust, or the authorised corporate director and depositary of the investment company, as the case may be, have been authorised by the FSA under the FSMA:

  • (v) in the case of specified equity securities,—

    • (A) the instrument of incorporation of the investment company; and

    • (B) the authorisation order made by the FSA in respect of the investment company:

  • (vi) in the case of specified participatory securities,—

    • (A) the trust deed of the authorised unit trust; and

    • (B) the authorisation order made by the FSA in respect of the authorised unit trust:

  • (vii) any documents that amend or supplement any of the documents referred to in subparagraphs (i) to (vi) in existence at the time the first offer of specified securities in the collective investment scheme is made or open for acceptance in New Zealand in reliance on any exemption in clause 5(1); and

• (b) a copy of any document that amends, supplements, or replaces the overseas prospectus relating to the specified securities (other than a document in relation to which a copy must be received under paragraph (a)(vii)) has been received by the Registrar of Companies before any allotment of specified securities is made in New Zealand after the amendment, supplement, or replacement takes effect; and

• (c) the only material differences (if any) between the overseas prospectus that is used in New Zealand and the equivalent document that is used in Great Britain relate to 1 or more of the following matters:

  • (i) the inclusion in the overseas prospectus that is used in New Zealand of the statements and information that are required by this notice to be contained in, or to accompany, that document:

  • (ii) the exclusion from the overseas prospectus that is used in New Zealand of statements or information in connection with interests in collective investment schemes not offered in New Zealand:

  • (iii) the exclusion from the overseas prospectus that is used in New Zealand of statements or information in connection with securities not offered in New Zealand.

(2) The exemptions in clause 5(1)(a) and (c) are subject to the further condition that a copy of any document that amends or replaces any of the documents referred to in subclause (1)(a)(ii) to (vi) (other than a document in relation to which a copy must be received under subclause (1)(a)(vii)) has been received by the Registrar of Companies within 5 working days of—

• (a) the date on which the document is sent to the FSA; or

• (b) if the document is not sent to the FSA, but is received by the authorised corporate director, the manager, or the investment company from the FSA, the date that the document is received by the authorised corporate director, the manager, or the investment company; or

• (c) in the case of any other document that is not sent to the FSA, the date of the document.

(3) The conditions in subclauses (1) and (2) do not apply, in respect of a document, to the offer of any security that is made after a copy of that document has been received by the Registrar of Companies.

(1) The exemptions in clause 5(1)(a) to (d) are subject to the further condition that a document that complies with subclause (2) is contained in or accompanies—

• (a) every overseas prospectus or short form disclosure document that is deposited with the Registrar of Companies or provided to any person to whom an offer of specified securities is made in New Zealand; and

• (b) every investment statement that relates to specified securities.

(2) That document must—

• (a) include information or statements to the following effect, under the heading “Important Information for New Zealand Investors”:

  • (i) that the issue or sale of the specified securities will be conducted in the manner specified in the overseas prospectus and in the manner prescribed by the law of England and Wales, or the law of Scotland, as the case may be; and

  • (ii) information describing how returns to New Zealand investors are likely to be affected by New Zealand taxation rules and how, as a result, any forecast or projected returns may differ from the returns for Great Britain investors described in the overseas prospectus; and

  • (iii) that, despite the information provided under subparagraph (ii), investors should satisfy themselves as to the tax implications of investing in the specified securities; and

  • (iv) that investing in the specified securities may carry with it a currency exchange risk; and

  • (v) that the financial reporting requirements applying in New Zealand and those applying in respect of the collective investment scheme may be different and the financial statements of the collective investment scheme may not be compatible in all respects with financial statements prepared in accordance with New Zealand law; and

  • (vi) that a copy of the overseas prospectus relating to the specified securities, a copy of the most recent annual report, and (if more recent) the most recent half-yearly report of the collective investment scheme is available from a specified person on request; and

  • (vii) a list of the types of documents relating to the collective investment scheme that have been received by the Registrar of Companies in accordance with this notice and a statement that those documents can be inspected at the office of the Registrar of Companies and can be obtained from the manager or authorised corporate director; and

  • (viii) that, although a copy of the overseas prospectus and other documents have been deposited with the Registrar of Companies, the overseas prospectus has not been registered in New Zealand under New Zealand law and may not contain all the information that a New Zealand registered prospectus is required to contain; and

  • (ix) if a short form disclosure document is provided in New Zealand, that the short form disclosure document that is provided to persons to whom offers of the specified securities are made in New Zealand is intended to provide key information about the investment, but is not an investment statement and may not be comparable to an investment statement in all respects and may not contain all the information required to be contained in an investment statement; and

  • (x) in the case of specified participatory securities, the names and addresses of the manager and the trustee of the authorised unit trust and a statement that the authorised unit trust, the manager, and the trustee may not be subject in all respects to New Zealand law; and

  • (xi) in the case of specified equity securities, the names and addresses of the authorised corporate director and the depositary of the investment company and a statement that the investment company, the authorised corporate director, and the depositary may not be subject in all respects to New Zealand law; and

  • (xii) in relation to an overseas prospectus or short form disclosure document only, a statement in the form set out in the Schedule; and

• (b) include information or statements to the following effect, under the heading “Agreement as to Jurisdiction”:

  • (i) that, in respect of a dispute concerning the contract for the specified securities, the manager (in the case of specified participatory securities) or the investment company and the authorised corporate director (in the case of specified equity securities)—

    • (A) agrees or agree to submit to the non-exclusive jurisdiction of the New Zealand courts; and

    • (B) has or have instructed the New Zealand agent for service referred to in subparagraph (ii) to accept service of documents on its or their behalf; and

    • (C) agrees or agree that this statement is an agreement with each investor for the purposes of section 389(1)(e) of the Companies Act 1993; and

  • (ii) the name and address of a person in New Zealand who has been appointed by the manager, or the investment company and authorised corporate director, as the case may be, to accept service in New Zealand of any documents on its behalf; and

  • (iii) that, despite the statements referred to in subparagraph (i), the contract in respect of the specified securities may not always be enforceable in New Zealand courts.

(3) The conditions in subclauses (1) and (2) are not breached if there are differences between the information or statements required under those subclauses to be in the document that is contained in or accompanies an overseas prospectus, short form disclosure document, or investment statement and the information or statements presented in that document, but the differences are immaterial.

The exemptions in clause 5(1)(a) to (d) are subject to the further condition that, at the same time as offers of the specified securities are made or are open for acceptance in New Zealand, the specified securities are marketed by the specified person for issue or sale in Great Britain in accordance with the law of England and Wales, or the law of Scotland, as the case may be.

The exemptions in clause 5(1)(a), (d), and (e), in respect of specified securities offered after 31 March in any calendar year, are subject to the further condition that, if the manager or authorised corporate director, as the case may be, has offered specified securities to the public in New Zealand during the preceding calendar year, the manager or authorised corporate director, as the case may be, has sent to the Commission a written report in respect of the preceding calendar year that—

• (a) specifies each collective investment scheme and each subfund of an umbrella scheme in respect of which the manager or authorised corporate director offered specified securities during that preceding calendar year; and

• (b) specifies, in respect of each such collective investment scheme and subfund,—

  • (i) the total amount of money raised in New Zealand in that preceding calendar year by the manager or authorised corporate director by the offer of the specified securities; and

  • (ii) the total amount of New Zealand raised funds under management by the manager or authorised corporate director as at the last day of that preceding calendar year, and

• (c) states, in respect of each of those collective investment schemes and subfunds, whether the manager or authorised corporate director intends to continue to offer specified securities to the public in New Zealand in reliance on any exemption in clause 5.

(1) This clause applies to specified securities offered, after this notice comes into force, under a key features document, an overseas prospectus, or an investment statement that is dated before the expiry of the Securities Act (Great Britain Collective Investment Schemes) Exemption Notice 1999.

(2) An offer and allotment of specified securities to which this clause applies may be made in accordance with either—

• (a) this notice; or

• (b) until 30 September 2005, the Securities Act (Great Britain Collective Investment Schemes) Exemption Notice 1999 as in force—

  • (i) on the date that the offer is made if the offer is made before the expiry of that notice; or

  • (ii) immediately before that notice expired as if that notice had not expired if the offer is made after the expiry of that notice.