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Summary of

Securities Act (Australian Issuers) Exemption Notice 2002

2002/314

Gazetted on 30 September 2002
Expires on 30 September 2007

This notice replaces the Securities Act (Australian Issuers) Exemption Notice 1997 (the 1997 notice) (SR 1997/260).

Effects of the exemption
The notice provides relief from the prospectus requirements by allowing Australian issuers, subject to conditions, to use an Australian prospectus for an offer of equity or debt securities in New Zealand. The exemption allows Australian issuers to use an Australian trustee and trust deed for offers of debt securities in New Zealand.

The exemption
Australian issuers are exempted, subject to conditions, from sections 33(2), 37, 27A(2), 38A, and 51 to 54 of the Act and regulations 11 to 18 and 21 to 23 of the Regulations.

The exemptions from sections 38A and regulations 11 to 18 and 21 to 23 apply to an Australian prospectus only and to any investment statement or other advertisement.

Australian issuers are exempted from section 38(a) of the Act to the extent that it requires an Australian prospectus to refer to an investment statement.

Conditions
The exemption from section 33(2) relating to the appointment of a trustee is subject to the condition that a trustee is appointed under Australian law.

The exemptions from the prospectus and advertisement provisions of the Act and the Regulations are subject to conditions that

• there is an Australian prospectus for the securities at the time offers are made in New Zealand; and
• the Australian prospectus does not refer to listing or intended listing of the securities on the New Zealand Stock Exchange unless the statement has been approved by the NZSE; and
• it is a term of the offer that the Australian issuer will within 5 days of receiving a request for the Australian prospectus send, without fee, to that offeree
  • the Australian prospectus; and
  • any documents that under Australian law must accompany the prospectus; and
  • any document lodged with the Australian Securities and Investments Commission referred to in the Australian prospectus.

The exemptions from the prospectus and advertisement provisions of the Act and the Regulations are subject to the further condition that the following documents have been received by the Registrar of Companies

• the Australian prospectus;
• any document lodged with the Australian Securities and Investments Commission referred to in the Australian prospectus;
• any exemption granted by the Australian Securities and Investments Commission that relates to the offer;
• any document lodging or registering the Australian prospectus;
• the Australian issuer's certificate of incorporation;
• for debt securities, the certificate of incorporation of the trustee and evidence of the trustee's authorisation to act as trustee;
• the memorandum and articles of association or other documents constituting or defining the Australian issuer's constitution;
• the trust deed, in the case of debt securities.

The exemptions relating to the prospectus and advertisement provisions of the Act are subject to the further condition that any investment statement for the equity or debt securities includes statements to the effect that

• allotments must be made as specified in the prospectus and comply with Australian law; and
• investors should satisfy themselves as to the tax implications of investing; and
• investing may carry a currency exchange risk;
• financial reporting requirements in New Zealand and those applying in Australian may be different and the financial statements of the Australian issuer may not be the same as financial statements prepared in New Zealand; and
• the Australian issuer may not be subject to New Zealand law; and
• the prospectus has not been registered in New Zealand and may not contain all the information required to be in a New Zealand prospectus; and
• the nature and effect of any exemption granted by the Australian Securities and Investments Commission for the offer; and
• that the Australian issuer is not required to be listed on the New Zealand Stock Exchange and therefore investors may not have access to information about the issuer in the same way as they have about issuers who are listed on the New Zealand Stock Exchange.

The exemptions relating to the prospectus and advertisement provisions of the Act are subject to the further condition that any investment statement for the equity or debt securities includes, under the heading "Agreement as to Jurisdiction" statements to the effect that

• in any dispute about the contract for the securities the Australian issuer
  • agrees to submit to the jurisdiction of New Zealand courts; and
  • has instructed a New Zealand agent to act on the issuer's behalf; and
  • agrees that this statement is a legal agreement with each investor; and
• the contract for the securities may not be enforceable in New Zealand courts; and
• includes the name and address of the issuer's New Zealand agent; and
• does not contain any statement about listing on the New Zealand Stock Exchange that has not be approved by the Exchange; and
• refers to the Australian prospectus wherever an investment statement is required to refer to a registered prospectus.

The exemptions are subject to the further condition that offers of the securities are to be made in Australia at the same time as they are made in New Zealand.

Differences from the 1997 notice

The provisions of the 1997 notice are carried forward with the following amendments

• the notice is extended to Australian debt offers; and
• the requirement for the issuer's solicitor to sign a certificate is removed; and
• a provision requiring a New Zealand agent for service is included; and
• a materiality clause is included so that:
  • an incorrect statement of minor consequence does not mean that the investment statement fails to comply with the conditions; and
  • absolute compliance with the Regulations is not a condition of exemption but that where the Regulations refer to a "registered prospectus" they should be taken for the purpose of this exemption as referring to the overseas prospectus; and
• disclosure documents can be deposited electronically with the Registrar; and
• the reference to the Registrar at Wellington is removed; and
• the warning statements are aligned with those to be contained in the Securities Act (Overseas Listed Issuers) Exemption Notice 2002.

Reasons
The Commission reviewed the 1997 notice and received submissions from interested parties. The exemptions in the 1997 notice were found to be relevant and useful. The additions are consistent with current policy and in particular with the Securities Act (Barkworth Olive Groves Limited) Exemption Notice 2001 and the Securities Act (Great Britain Collective investment Schemes) Exemption Notice 1999.