2001/217
Securities Act (Takeovers) Exemption Notice 2001
Pursuant to the Securities Act 1978, the Securities Commission
gives the following notice.
Contents
Notice
1 |
Title
This notice is the Securities Act (Takeovers) Exemption
Notice 2001. |
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Part 1
Preliminary |
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| 2 |
Commencement
This notice comes into force on the day after the date of its notification in the Gazette. |
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| 3 |
Expiry
This notice expires on the close of 31 July 2006. |
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| 4 |
Interpretation |
| (1) |
In this notice, unless the context otherwise requires,—
Act means the Securities Act 1978
annual report means the annual report and financial statements
(including the auditor’s report on those financial statements)
that the issuer is required by the rules of the Exchange
to send to equity security holders of the issuer
Code means the Takeovers Code approved by the Takeovers
Code Approval Order 2000
code offer means a full offer or a partial offer for voting
securities of a target company made in accordance with the
Code; and includes an acquisition of voting securities in a
target company under Part 7 of the Code
Exchange means the New Zealand Stock Exchange
full offer has the same meaning as in rule 3(1) of the Code
half-yearly report means the half-yearly report and financial
statements (including the auditor’s report on those financial
statements, if any) that the issuer is required by the rules of the
Exchange to send to equity security holders of the issuer
interim report means any interim report and interim financial
statements (including the auditor’s report on those financial
statements, if any) that the issuer has sent to equity security
holders of the issuer (other than the half-yearly report)
listed company means a company that is a party to a listing
agreement with the Exchange
offer document has the same meaning as in rule 3(1) of the
Code
offeror means a person who makes a code offer
partial offer has the same meaning as in rule 3(1) of the Code
quoted securities means equity or debt securities that—
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| (a) |
are issued by a listed company; and |
| (b) |
have been quoted on the Exchange continuously for at least 12 months before the making of a code offer or belong, or will when issued belong, to a class of equity or debt securities that has been quoted on the Exchange continuously for at least 12 months before the making of a code offer; and |
| (c) |
are offered as consideration or part consideration for a code offer |
Regulations means the Securities Regulations 1983
target company has the same meaning as in rule 3(1) of the
Code
target company has the same meaning as in rule
3(1) of the Code
target company statement has the same meaning as in rule
3(1) of the Code
unquoted securities means equity or debt securities, other
than quoted securities, that are offered as considerastion or
part consideration for a code offer
voting security has the same meaning as in rule 3(1) of the
Code.
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| (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. |
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Part 2
Exemption from regulation 3(1) and (2) of Securities Regulations 1983 for quoted equity and debt securities |
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| 5 |
Application of this Part
This Part applies to quoted securities that are equity securities
or debt securities and that are offered as consideration or part
consideration for a code offer. |
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| 6 |
Exemption from First Schedule of Securities Regulations
1983 for issuers of quoted equity securities
Every issuer and every person acting on its behalf are
exempted from regulation 3(1) of the Regulations in the case
of quoted securities that are equity securities. |
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| 7 |
Exemption from Second Schedule of Securities
Regulations 1983 for issuers of quoted debt securities
Every issuer and every person acting on its behalf are
exempted from regulation 3(2) of the Regulations in the case
of quoted securities that are debt securities. |
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| 8 |
Condition
The exemptions are subject to the condition that the registered
prospectus for the offer of the quoted securities contains the
following information or is accompanied by the following
documents:
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| (a) |
the name of the issuer and, if the issuer and the offeror
are different persons, the relationship of the issuer to the
offeror: |
| (b) |
the material terms and conditions of the quoted
securities: |
| (c) |
a statement that a copy of the most recent annual report
of the issuer is available on request: |
| (d) |
a copy of the most recent half-yearly report of the issuer
relating to a period after the annual report referred to in
paragraph (c), if any: |
| (e) |
a copy of the most recent interim report of the issuer
relating to a period after the annual report referred to in
paragraph (c), if any, or, if a copy of a half-yearly report
has been disclosed under paragraph (d), a copy of any
interim report of the issuer relating to a period after that
half-yearly report, if any: |
| (f) |
any other information that could reasonably be
expected to be material to the making of a decision by
the target company’s shareholders to accept or reject
the code offer or, if there is no such information, a
statement to that effect. |
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Part 3
Exemption from certain provisions of First and
Second Schedules of Securities Regulations 1983 for
unquoted equity and debt securities |
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| 9 |
Application of this Part
This Part applies to unquoted securities that are equity securities
or debt securities and that are offered as consideration or
part consideration for a code offer. |
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| 10 |
Exemption from certain provisions of First Schedule of
Securities Regulations 1983 for issuers of unquoted
equity securities
Every issuer and every person acting on its behalf are
exempted from the following provisions of the First Schedule
of the Regulations in the case of unquoted securities that are
equity securities:
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| (a) |
clauses 1(4), 2(a) and (b), and 10(1)(b) and (2): |
| (b) |
clause 11(3)(b) to the extent that that paragraph relates
to the target company. |
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| 11 |
Conditions |
| (1) |
The exemption from clause 1(4) of the First Schedule of the Regulations is subject to the condition that the registered prospectus for the unquoted securities contains the following statement:
‘‘Information about the price or other consideration to be paid or provided for the securities is contained in clause 5 of the takeover offer document for this offer.’’
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| (2) |
The exemption from clause 10(1)(b) of the First Schedule of
the Regulations is, if the issuer is also the offeror, subject to the condition that the registered prospectus for the securities contains a statement of—
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| (a) |
the expected effect on the operations of the target company of the acquisition by the issuer of securities in the target company resulting from the proposed code offer; and |
| (b) |
the plans of the directors of the issuer for the target company. |
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| (3) |
The exemption from clause 10(2) of the First Schedule of the Regulations is, if the issuer is also the offeror, subject to the condition that the prospective statement of cash flows required by clause 10(1)(c) of the First Schedule of the Regulations shows—
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| (a) |
the likely effect on the cash flows of the issuer of the acquisition by the issuer of securities in the target company resulting from the proposed code offer; and |
| (b) |
the principal assumptions on which the statement of cash flows is based. |
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| (4) |
The exemption from clause 11(3)(b) of the First Schedule of the Regulations is subject to the conditions that—
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| (a) |
the registered prospectus for the unquoted securities contains all the information required under clause 11(3)(c) to (g) of that schedule relating to the target company that is within the knowledge, possession, or control of the issuer and that is not already contained in the offer document; and |
| (b) |
the registered prospectus for the unquoted securities specifies the information required under clause 11(3)(c) to (g) of that schedule relating to the target company that is contained in the offer document together with cross-references; and |
| (c) |
the registered prospectus for the unquoted securities specifies the information required under clause 11(3)(c) to (g) of that schedule relating to the target company that is not contained in the registered prospectus or the offer document and states the reasons for not including that information in those documents. |
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| 12 |
Exemption from certain provisions of Second Schedule
of Securities Regulations 1983 for issuers of unquoted debt securities
Every issuer and every person acting on its behalf are exempted from the following provisions of the Securities Regulations 1983 in the case of unquoted securities that are debt securities:
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| (a) |
clauses 1(4) and 2(a) and (b): |
| (b) |
clause 8(3)(b) to the extent that that paragraph relates to the target company. |
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| 13 |
Conditions |
| (1) |
The exemption from clause 1(4) of the Second Schedule of the
Regulations is subject to the condition that the registered prospectus for the unquoted securities contains the following statement:
‘‘Information about the price or other consideration to be paid or provided for the securities is contained in clause 5 of the takeover offer document for this offer.’’ |
| (2) |
The exemption from clause 8(3)(b) of the Second Schedule of
the Regulations is subject to the conditions that—
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| (a) |
the registered prospectus for the unquoted securities contains all the information required under clause 8(3)(c) to (g) of that schedule relating to the target company that is within the knowledge, possession, or control of the issuer and that is not already contained in the offer document; and |
| (b) |
the registered prospectus for the unquoted securities specifies the information required under clause 8(3)(c) to (g) of that schedule relating to the target company that is contained in the offer document together with cross-references; and |
| (c) |
the registered prospectus for the unquoted securities specifies the information required under clause 8(3)(c) to (g) of that schedule relating to the target company that is not contained in the registered prospectus or the offer document and states the reasons for not including that information in those documents. |
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Part 4
Exemption from clauses 1 and 5 of Schedule 3D of Securities Regulations 1983 for quoted and unquoted equity and debt securities |
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| 14 |
Application of this Part
This Part applies to offers of quoted and unquoted equity and debt securities that are offered as consideration or part consideration for a code offer. |
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| 15 |
Exemption from clauses 1(1) and 5 of Schedule 3D of Securities Regulations 1983 for issuers of quoted and unquoted equity and debt securities |
| (1) |
Every issuer and every person acting on its behalf are exempted, in the case of quoted or unquoted equity or debt securities, from the requirement to include in an investment statement in the list of questions referred to in clause 1.1 of Schedule 3D of the Regulations, the question ‘‘How much do I pay?’’ |
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| (2) |
Every issuer and every person acting on its behalf are exempted, in the case of quoted and unquoted equity or debt securities, from clause 5 of Schedule 3D of the Regulations and the italicised question above that clause. |
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| 16 |
Conditions |
| (1) |
The exemption granted by clause 15(1) is subject to the condition that, in place of the question ‘‘How much do I pay?’’, the investment statement includes the question ‘‘What will this cost me?’’ |
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| (2) |
The exemption granted by clause 15(2) is subject to the condition that the investment statement—
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| (a) |
contains a brief description of the terms of exchange of the quoted or unquoted equity or debt securities and the securities in the target company under offer: |
| (b) |
states the proportion of voting securities of the shareholders
in the target company that the offeror wishes to acquire: |
| (c) |
states the number of quoted or unquoted equity or debt securities offered as consideration for securities in the target company, expressed as a ratio: |
| (d) |
states the amount of any cash sum offered as consideration for each target company security under offer: |
| (e) |
describes how a holder of securities in the target company may accept the code offer. |
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Dated at Wellington this 21st day of August 2001.
The Common Seal of the Securities Commission was affixed in the presence of:
M. R. H. Webb,
Chairperson. |
Explanatory note
This note is not part of the notice, but is intended to indicate its general effect.
This notice comes into force on the day after the date of its notification in the Gazette and expires on 31 July 2006.
The notice exempts issuers of quoted and unquoted equity and debt securities offered as consideration or part of the consideration for a takeover under the Takeovers Code from compliance with provisions of the Securities Regulations 1983 (the Regulations). The notice applies to full and partial offers under the Takeovers Code and to compulsory acquisitions under Part 7 of the Code.
Quoted securities are equity or debt securities that—
- are issued by a listed company; and
- have been quoted on the New Zealand Stock Exchange continuously for at least 12 months before the making of a code offer or belong, or will when issued belong, to a class of equity or debt securities that has been quoted continuously for at least 12 months before the making of a code offer.
Unquoted securities are equity or debt securities, other than quoted securities.
The exemptions differ depending on whether the securities are quoted or unquoted securities.
Part 1 of the notice relates to the commencement and expiry of the notice. It also defines terms used in the notice.
Part 2 of the notice applies to quoted equity and debt securities.
Clause 6 exempts issuers of quoted equity securities from the requirements of the First Schedule of the Regulations.
Clause 7 exempts issuers of quoted debt securities from the requirements
of the Second Schedule of the Regulations.
The exemptions in clauses 6 and 7 are subject to the condition that
the registered prospectus discloses the name of the issuer and its
relationship with the takeover offeror and certain financial information
about the issuer. The financial information is the same as that
required in a takeover notice by clause 18 of Schedule 1 of the
Takeovers Code.
Part 3 of the notice applies to unquoted equity and debt securities.
Clause 10 exempts issuers of unquoted equity securities, subject to
the conditions in clause 11, from clauses 1(4), 2(a) and (b), 10(1)(b)
and (2), and 11(3)(b) of the First Schedule of the Regulations. The
exemption from clause 11(3)(b) of the First Schedule applies only to
the extent that the provision relates to the target company.
Clause 12 exempts issuers of unquoted debt securities, subject to the conditions in clause 13, from clauses 1(4), 2(a) and (b), and 8(3)(b) of the Second Schedule of the Regulations. The exemption from clause 8(3)(b) of the Second Schedule applies only to the extent that the provision relates to the target company.
Part 4 of the notice relates to both quoted and unquoted equity and debt securities.
Clause 15 exempts issuers of quoted and unquoted equity and debt securities, subject to the conditions in clause 16, from clauses 1(1) and 5 of Schedule 3D of the Regulations. Schedule 3D sets out the information that must be included in an investment statement for an offer of securities.
Issued under the authority of the Acts and Regulations Publication Act 1989.
Date of notification in Gazette: 23 August 2001.
This notice is administered in the Securities Commission.
