This notice is the Securities Act (Australian Registered Managed Investment Schemes) Exemption Notice 2003.

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 2008.

(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 responsible entity and every person acting on the responsible entity's behalf are exempted, in respect of Australian participatory securities of which the responsible entity is the issuer, from—

• (a) sections 33(3), 37, and 37A(2) of the Act; and

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

• (c) section 38A of the Act and regulations 11 to 18, 21, and 22 of the Regulations; and

• (d) section 38(a) of the Act to the extent that it requires an Australian disclosure document to refer to an investment statement; and

• (e) sections 51 to 54 of the Act.

(2) Every person who is the holder of Australian participatory securities that have been previously allotted by a responsible entity and every person acting on behalf of that holder are exempted, in respect of those securities, from—

• (a) sections 33(3), 37, and 37A(2) of the Act; and

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

• (c) section 38A of the Act and regulations 11 to 18, 21, and 22 of the Regulations; and

• (d) section 38(a) of the Act to the extent that it requires an Australian disclosure document to refer to an investment statement; and

• (e) sections 51 to 54 of the Act.

(3) Subclauses (1)(c) and (2)(c) apply only in respect of an Australian disclosure document, and not in respect of an investment statement or other advertisement.

(1) The exemptions in clause 5(1)(a) and (c) and (2)(a) and (c) are subject to the conditions that—

• (a) there must be an Australian disclosure document relating to the Australian participatory securities at the time that offers of those securities are made or are open for acceptance in New Zealand in reliance on any exemption in clause 5; and

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

  • (i) the Australian disclosure document relating to the Australian participatory securities:

  • (ii) any document, or part of a document, lodged or registered with the Australian Securities and Investments Commission that is referred to in the Australian disclosure document and is taken to be included in that document under the Corporations Act 2001:

  • (iii) any exemption, order, or declaration that has been granted by the Australian Securities and Investments Commission in respect of that Australian registered scheme (other than any exemption, order, or declaration that applies to Australian registered schemes generally or to a class of persons):

  • (iv) the licence of the responsible entity granted under the Corporations Act 2001:

  • (v) the constitution of the Australian registered scheme:

  • (vi) evidence of registration of the Australian registered scheme with the Australian Securities and Investments Commission:

  • (vii) the compliance plan required under the laws of Australia relating to the Australian registered scheme:

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

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

• (d) at the same time as offers of the Australian participatory securities are made or are open for acceptance in New Zealand in reliance on any exemption in clause 5, offers of the Australian participatory securities are also made or are open for acceptance in Australia in accordance with the laws of Australia; and

• (e) the only material differences (if any) between the Australian disclosure document that is used in New Zealand and the equivalent document that is used in Australia relate to 1 or more of the following matters:

  • (i) the inclusion in the Australian disclosure document 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 Australian disclosure document that is used in New Zealand of statements or information in connection with interests in Australian registered schemes not offered in New Zealand:

  • (iii) the exclusion from the Australian disclosure document that is used in New Zealand of statements or information in connection with securities not offered in New Zealand; and

• (f) it is a term of each offer of the Australian participatory securities made in New Zealand that the person who makes the offer will, within 5 working days of receiving an offeree's request for a copy of the Australian disclosure document relating to the securities concerned, without fee, send, or cause to be sent, to that offeree—

  • (i) a copy of the Australian disclosure document; and

  • (ii) copies of any documents that, under the laws of Australia, must accompany a copy of the Australian disclosure document sent to any person to whom an offer of the Australian participatory securities is made in Australia; and

  • (iii) a copy of any document, or part of a document, lodged or registered with the Australian Securities and Investments Commission that is referred to in the Australian disclosure document and is taken to be included in that document under the Corporations Act 2001; and

  • (iv) a copy of any supplementary disclosure document in use at the time that the request is received.

(2) The exemptions from section 33(3) of the Act in clause 5(1)(a) and (2)(a) are subject to the condition that a copy of any document that amends or replaces any of the documents referred to in subclause (1)(b)(ii) to (vii) (other than a document in relation to which a copy must be received under subclause (1)(b)(viii)) has been received by the Registrar of Companies within 5 working days of,—

• (a) the date on which the document is registered or lodged with the Australian Securities and Investments Commission; or

• (b) if the document is not registered or lodged with the Australian Securities and Investments Commission and is received by the responsible entity from the Australian Securities and Investments Commission, the date that the document is received by the responsible entity from the Australian Securities and Investments Commission; or

• (c) in the case of any other document that is not registered or lodged with the Australian Securities and Investments Commission, the date of the document.

(3) The conditions in subclauses (1)(b) and (c) 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.

(4) For the purposes of subclause (1)(c), an amendment, supplement, or replacement in relation to a product disclosure statement takes effect on the last day for filing a product disclosure statement “in use” notice under section 1015 of the Corporations Act 2001 for the document that amends, supplements, or replaces the product disclosure statement.

(1) The exemptions in. clause 5(1)(b) and (2)(b), in respect of any Australian participatory security offered in New Zealand for subscription, are subject to the conditions that—

• (a) no allotment of the security is made if the subscriber has not received, before subscribing for that security,—

  • (i) a product disclosure statement relating to that security; and

  • (ii) every supplementary product disclosure statement relating to that security in use at the time of the offer in New Zealand to the public; and

• (b) the product disclosure statement contains, or is accompanied by, a statement in the form set out in the Schedule under the heading “Important Information for New Zealand Investors”.

(2) A statement contained in, or accompanied by, a product disclosure statement for the purposes of subclause (1)(b) is not invalid just because it contains immaterial differences from the form set out in the Schedule as long as the statement still has the same effect and is not misleading.

(3) If a change is required to the current statement referred to in subclause (1)(b) (the NZ investor statement), but no material change is required to the current product disclosure statement, then, in respect of a person (A) who has already received the current product disclosure statement and the current NZ investor statement, it is sufficient for the purposes of subclause (1) that A receives an amended NZ investor statement accompanied by a prominent statement that a further copy of the current product disclosure statement is available from the responsible entity on request and free of charge.

(1) The exemptions in clause 5(1)(a) and (c) and (2)(a) and (c) are subject to the condition that the investment statement or, if there is no investment statement, the product disclosure statement for the offer of the Australian participatory securities made in New Zealand contains, or is accompanied by, statements or information to the following effect under the heading “Important Information for New Zealand Investors”:

• (a) that allotments of the Australian participatory securities will be made in the manner specified in the Australian disclosure document and in the manner prescribed by the laws of Australia; and

• (b) the name and address of the responsible entity of the Australian registered scheme, unless the responsible entity is the manager of the scheme and the information is provided in the Australian disclosure document or the investment statement; and

• (c) that the responsible entity and the person who makes the offer may not be subject in all respects to New Zealand law; and

• (d) 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 Australian investors described in the Australian disclosure document; and

• (e) that, despite the information provided under paragraph (d), investors should satisfy themselves as to the tax implications of investing in the Australian participatory securities; and

• (f) that investing in Australian participatory securities may carry with it a currency exchange risk; and,

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

• (h) that, although a copy of the Australian disclosure document and other documents have been received by the Registrar of Companies, the Australian disclosure document 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

• (i) that Australian law does not require a trustee (unlike the position in New Zealand for unit trusts), or a statutory supervisor (unlike the position in New Zealand for contributory schemes involving participatory securities), that is separate from, and independent of, the responsible entity; and

• (j) a list of the types of documents relating to the Australian registered 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 responsible entity; and

• (k) information or statements to the following effect under the heading “Agreement as to Jurisdiction”

  • (i) that, in respect of a dispute concerning an offer of Australian participatory securities offered in reliance on any exemption in clause 5 or the contract for the Australian participatory securities, the responsible entity and, if the offer is not made by the responsible entity, the person who makes the offer—

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

    • (B) have instructed the New Zealand agent or agents for service referred to in subparagraphs (iii) and (iv) to accept service on the responsible entity's or person's behalf (as the case may be); and

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

  • (iii) the name and contact address of the person in New Zealand who has been appointed by the responsible entity to accept service in New Zealand of any document on its behalf; and

  • (iv) if the offer is not made by the responsible entity, the name and contact address of the person in New Zealand who has been appointed by the person who makes the offer to accept service in New Zealand of any document on that person's behalf.

(2) The exemptions in clause 5(1)(a) and (c) and (2)(a) and (c) are subject to the condition that any investment statement that relates to the Australian participatory securities refers to the Australian disclosure document when the Act or the Regulations require an investment statement to refer to a registered prospectus.

(3) The conditions in subclauses (1) and (2) are not breached if there are differences between the information required under those subclauses to be in the investment statement or in the product disclosure statement and the information presented in that investment statement or in that product disclosure statement, but the differences are immaterial.

The exemptions in clause 5 in respect of Australian participatory securities offered after 31 March in any calendar year (other than the exemptions from sections 37 and 37A(1)(a) and (2) of the Act) are subject to the condition that, if the responsible entity or the person who relies on those exemptions has offered Australian participatory securities to the public in New Zealand during the preceding calendar year, the responsible entity or that person (as the case may be) has sent to the Commission a written report in respect of that preceding calendar year that—

• (a) specifies each Australian registered scheme in respect of which the responsible entity or person (as the case may be) offered Australian participatory securities during that preceding calendar year; and

• (b) specifies, in respect of each of those Australian registered schemes,—

  • (i) the total amount of money raised in New Zealand in that preceding calendar year by the responsible entity or person (as the case may be) by the offer of Australian participatory securities; and

  • (ii) the total amount of New Zealand raised funds under management by the responsible entity or person (as the case may be) as at the last day of that preceding calendar year; and

• (c) states, in respect of each of those Australian registered schemes, whether the responsible entity or person (as the case may be) intends to continue to offer Australian participatory securities to the public in New Zealand in reliance on any exemption in clause 5.

(1) This clause applies to any Australian participatory securities allotted only to a person who already holds Australian participatory securities that are the same kind as the securities allotted and which are offered under a plan that—

• (a) entitles that person to subscribe for those securities by applying all or any specified part of any distribution payable under the Australian registered scheme to that person; or

• (b) requires the responsible entity to allot those securities to that person as fully-paid securities in consideration only for that person forgoing the right to receive all or any specified part of any distribution otherwise payable under the Australian registered scheme to that person; or

• (c) involves the compulsory reinvestment of distributions to which the person is entitled under the Australian registered scheme towards the allotment of those securities as fully-paid securities.

(2) Every responsible entity and every person acting on its behalf are exempted from sections 33(3), 37, 37A, 38A, and 51 to 54 of the Act and the Regulations (except regulation 8) in respect of any Australian participatory securities to which this clause applies.

(1) The exemption in clause 10 is subject to the condition that, before the person referred to in clause 10 to whom Australian participatory securities are to be allotted subscribes for the Australian participatory securities to which clause 10 applies, that person has received a document that contains—

• (a) an offer of securities under a distribution reinvestment scheme; and

• (b) a description of the distribution reinvestment scheme and its terms and conditions; and

• (c) a statement that the securities are to be allotted in accordance with the terms and conditions set out in the Australian disclosure document relating to the securities (if any) and the constitution for the scheme; and

• (d) a statement that there is available from the responsible entity, on request and free of charge, a copy of—

  • (i) the most recent annual report of the scheme (if any); and

  • (ii) the most recent financial statements of the scheme (if any); and

  • (iii) the current Australian disclosure document relating to the securities (if any); and

  • (iv) the constitution of the scheme and any amendments to it; and

• (e) a statement that, within 30 days of the day on which the Australian participatory securities are allotted to a person under the scheme, the person will be sent a statement of the amount of the distribution and the number of securities that have been allotted to that person.

(2) The exemption in clause 10 is subject to the conditions that—

• (a) at the time the price of the Australian participatory securities is set, the responsible entity has no information that is not publicly available that would, or would be likely to, have a material adverse effect on the realisable price of the security if the information were publicly available; and

• (b) the offer of Australian participatory securities to which clause 10 applies is made to all persons in New Zealand who hold, or have applied to hold, securities of the same kind; and

• (c) every person to whom the offer is made is given a reasonable opportunity to accept it; and

• (d) the Australian participatory securities issued to the securities holders are—

  • (i) issued on the terms disclosed to the holders; and

  • (ii) subject to the same rights as the securities issued to all holders of securities of the same kind who agree to receive the securities.

(3) The exemption in clause 10 is subject to the condition that, at the same time as offers of the Australian participatory securities are made or are open for acceptance in New Zealand under the distribution reinvestment scheme in reliance on any exemption in clause 10, offers of the Australian participatory securities are also made or are open for acceptance in Australia in accordance with the scheme and the laws of Australia.

Clause 1(3) of the Securities Act (Australian Registered Managed Investment Schemes) Exemption Notice 1999 is amended by omitting the expression “30 April 2004”, and substituting the expression “10 March 2004”.

(1) This clause applies to Australian participatory securities offered after this notice comes into force under an Australian disclosure document that is dated before the expiry of the Securities Act (Australian Registered Managed Investment Schemes) Exemption Notice 1999.

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

• (a) this notice; or

• (b) until 30 September 2004, the Securities Act (Australian Registered Managed 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.