Securities Act (BBI Networks (New Zealand) Limited) Exemption Notice 2009
Securities Act (BBI Networks (New Zealand) Limited) Exemption Notice 2009: expired, on 1 July 2009, by clause 3.
Reprint
as at 1 July 2009
Securities Act (BBI Networks (New Zealand) Limited) Exemption Notice 2009
(SR 2009/91)
Securities Act (BBI Networks (New Zealand) Limited) Exemption Notice 2009: expired, on 1 July 2009, by clause 3.
Note
Changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in this reprint.
A general outline of these changes is set out in the notes at the end of this reprint, together with other explanatory material about this reprint.
This notice is administered by the Securities Commission.
Pursuant to the Securities Act 1978, the Securities Commission gives the following notice (to which is appended a statement of reasons of the Securities Commission).
Contents
Notice
1 Title
This notice is the Securities Act (BBI Networks (New Zealand) Limited) Exemption Notice 2009.
2 Commencement
This notice comes into force on the day after the date of its notification in the Gazette.
3 Expiry
This notice expires on the close of 30 June 2009.
4 Interpretation
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(1) In this notice, unless the context otherwise requires,—
AASB 134 means the accounting standard known as AASB 134 Interim Financial Reporting made by the Australian Accounting Standards Board under section 334 of the Corporations Act 2001 of the Commonwealth of Australia
Act means the Securities Act 1978
BBI means the investment vehicle known as Babcock & Brown Infrastructure, which manages stapled securities comprising shares in BBIL and units in BBIT
BBI financial statements means the following statements that comply with the requirements of the law in force in Australia that applies to BBI:
(a) the consolidated statement of financial position of BBI as at 30 June 2008:
(b) the consolidated statement of financial performance of BBI for the 12 months ended on 30 June 2008:
(c) the consolidated statement of changes in equity of BBI for the 12 months ended on 30 June 2008:
(d) the consolidated statement of cash flows of BBI for the 12 months ended on 30 June 2008
BBI interim financial statements means the following statements prepared in accordance with AASB 134:
(a) the unaudited consolidated statement of financial position of BBI as at 31 December 2008:
(b) the unaudited consolidated statement of financial performance of BBI for the 6 months ended on 31 December 2008:
(c) the unaudited consolidated statement of changes in equity of BBI for the 6 months ended on 31 December 2008:
(d) the unaudited consolidated statement of cash flows of BBI for the 6 months ended on 31 December 2008
BBIL means Babcock & Brown Infrastructure Limited, a company incorporated in Australia
BBINNZ means BBI Networks (New Zealand) Limited
BBINNZ financial statements means the following statements prepared in accordance with generally accepted accounting practice:
(a) the consolidated statement of financial position of BBINNZ as at 30 June 2008:
(b) the consolidated statement of financial performance of BBINNZ for the 12 months ended on 30 June 2008:
(c) the consolidated statement of changes in equity of BBINNZ for the 12 months ended on 30 June 2008:
(d) the consolidated statement of cash flows of BBINNZ for the 12 months ended on 30 June 2008
BBINNZ interim financial statements means the following statements prepared in accordance with NZ IAS 34:
(a) the unaudited consolidated statement of financial position of BBINNZ as at 31 December 2008:
(b) the unaudited consolidated statement of financial performance of BBINNZ for the 6 months ended on 31 December 2008:
(c) the unaudited consolidated statement of changes in equity of BBINNZ for the 6 months ended on 31 December 2008:
(d) the unaudited consolidated statement of cash flows of BBINNZ for the 6 months ended on 31 December 2008
BBIS means Babcock & Brown Investor Services Limited, a company incorporated in Australia, in its capacity as responsible entity for BBIT
BBIT means the Babcock & Brown Infrastructure Trust, an Australian managed investment scheme registered with the Australian Securities and Investments Commission under section 601EB of the Corporations Act 2001 of the Commonwealth of Australia
bond holder means a registered holder of the bonds
bonds means the subordinated prime adjusting reset convertible securities issued by BBINNZ pursuant to the trust deed
new stapled securities means stapled securities allotted on 17 May 2009 or on the next working day after that day in accordance with the terms of issue of the bonds pursuant to requests for conversion from bond holders received by BBINNZ on or before 26 March 2009
notice of meeting means the notice of meeting that is to be sent to bond holders calling a meeting of bond holders to vote on the variations
NZDX means the securities market operated by NZX Limited under that name
NZ IAS 34 means the financial reporting standard known as the New Zealand Equivalent to International Accounting Standard 34 (Interim Financial Reporting) that has been approved under the Financial Reporting Act 1993
NZSX means the securities market operated by NZX Limited under that name
prospectus means the short form registered prospectus to be issued by BBINNZ in respect of the variations
Regulations means the Securities Regulations 1983
trust deed means the trust deed dated 7 September 2004 entered into between BBINNZ as issuer, The New Zealand Guardian Trust Company Limited as trustee, BBIL, and BBIS
variations means the proposed variations to the terms of issue of the bonds set out in the trust deed that—
(a) will be set out in the notice of meeting; and
(b) require the approval by way of extraordinary resolution of bond holders in accordance with the terms of issue of the bonds.
(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.
Clause 4(1) BBI financial statements: inserted, on 9 May 2009, by clause 4 of the Securities Act (BBI Networks (New Zealand) Limited) Exemption Amendment Notice 2009 (SR 2009/123).
Clause 4(1) BBINNZ financial statements: inserted, on 9 May 2009, by clause 4 of the Securities Act (BBI Networks (New Zealand) Limited) Exemption Amendment Notice 2009 (SR 2009/123).
Clause 4(1) new stapled securities: inserted, on 9 May 2009, by clause 4 of the Securities Act (BBI Networks (New Zealand) Limited) Exemption Amendment Notice 2009 (SR 2009/123).
Clause 4(1) NZDX: inserted, on 9 May 2009, by clause 4 of the Securities Act (BBI Networks (New Zealand) Limited) Exemption Amendment Notice 2009 (SR 2009/123).
Clause 4(1) NZSX: inserted, on 9 May 2009, by clause 4 of the Securities Act (BBI Networks (New Zealand) Limited) Exemption Amendment Notice 2009 (SR 2009/123).
5 Exemptions from regulation 12(1)(c) of Regulations
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(1) BBINNZ and every person acting on its behalf are exempted from regulation 12(1)(c) of the Regulations in respect of any information taken from the BBINNZ interim financial statements that is included in the notice of meeting (or in any other advertisement prepared in relation to the variations).
(2) BBINNZ, BBIL, BBIS, and every person acting on their behalf are exempted from regulation 12(1)(c) in respect of any information taken from the BBI interim financial statements that is included in the notice of meeting (or in any other advertisement prepared in relation to the variations).
6 Conditions of exemptions in clause 5
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(1) The exemption in clause 5(1) is subject to the following conditions:
(a) the information included in the notice of meeting (or other advertisement referred to in clause 5(1)) must be taken from the BBINNZ interim financial statements contained in the prospectus; and
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(b) the notice of meeting must contain a statement that—
(i) the relevant information has been taken from the BBINNZ interim financial statements; and
(ii) the BBINNZ interim financial statements are contained in the prospectus; and
(iii) the BBINNZ interim financial statements are unaudited; and
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(iv) there have been the following 2 transactions in February 2009:
(A) Powerco Limited divested its interests in the Powerco Tasmania group of companies:
(B) BBINNZ transferred its shares in Powerco Limited to a new holding company, Powerco NZ Holdings Limited, which is owned jointly by BBINNZ (42%) and 2 Australian infrastructure funds that are ultimately associated with the Queensland State Government (58%); and
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(c) the BBINNZ interim financial statements contained in the prospectus contain an explanation of all material events since 31 December 2008, including the following 2 transactions in February 2009:
(i) Powerco Limited's divestment of its interests in the Powerco Tasmania group of companies:
(ii) BBINNZ's transfer of its shares in Powerco Limited to a new holding company, Powerco NZ Holdings Limited, which is owned jointly by BBINNZ (42%) and 2 Australian infrastructure funds that are ultimately associated with the Queensland State Government (58%).
(2) The exemption in clause 5(2) is subject to the following conditions:
(a) the information included in the notice of meeting (or other advertisement referred to in clause 5(2)) must be taken from the BBI interim financial statements contained in the prospectus; and
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(b) the notice of meeting must contain a statement that—
(i) the relevant information has been taken from the BBI interim financial statements; and
(ii) the BBI interim financial statements are contained in the prospectus; and
(iii) the BBI interim financial statements are unaudited.
7 Exemptions from sections 37, 37A, and 51 to 54 of Act
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BBINNZ, BBIL, BBIS, and every person acting on behalf of any or all of them are exempted from sections 37, 37A, and 51 to 54 of the Act in respect of new stapled securities.
Clause 7: added, on 9 May 2009, by clause 5 of the Securities Act (BBI Networks (New Zealand) Limited) Exemption Amendment Notice 2009 (SR 2009/123).
8 Conditions of exemptions in clause 7
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The exemptions in clause 7 are subject to the conditions that—
(a) BBINNZ is, whether directly or indirectly, a wholly-owned subsidiary of BBIL at the time when the new stapled securities are allotted; and
(b) BBI is listed by NZX Limited as an overseas listed issuer (as defined in the NZSX and NZDX Listing Rules) at the time when the new stapled securities are allotted; and
(c) the bonds that are converted into the new stapled securities are quoted on the NZDX for the period that they are current; and
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(d) the prospectus contains—
(i) the BBI financial statements and an auditor's report on those statements; and
(ii) the BBI interim financial statements; and
(iii) the BBINNZ financial statements and an auditor's report on those statements; and
(iv) the BBINNZ interim financial statements; and
(v) a statement by the directors of BBINNZ that, in their opinion, neither the prospectus nor the notice of meeting (including any explanatory memorandum sent with the notice of meeting) is misleading in a material particular by reason of failing to refer, or give proper emphasis, to adverse circumstances; and
(e) the statement referred to in paragraph (d)(v) is made on the basis that the prospectus, notice of meeting, and any explanatory memorandum are sent to bond holders for the purpose of enabling them to decide whether to cancel requests for conversion (as well as for the purpose of voting on the variations); and
(f) bond holders have the right (details of which are contained in a notice sent by BBINNZ on 27 April 2009) to cancel requests for conversion received by BBINNZ on or before 26 March 2009 by giving notice in writing to BBINNZ before 5 pm on 8 May 2009.
Clause 8: added, on 9 May 2009, by clause 5 of the Securities Act (BBI Networks (New Zealand) Limited) Exemption Amendment Notice 2009 (SR 2009/123).
Dated at Wellington this 16th day of April 2009.
The Common Seal of the Securities Commission was affixed in the presence of:
[Seal]
J Diplock,
Chairperson.
Statement of reasons
This notice, which comes into force on the day after its notification in the Gazette and expires on 30 June 2009, exempts, subject to conditions, BBI Networks (New Zealand) Limited (BBINNZ) and certain others from regulation 12(1)(c) of the Securities Regulations 1983.
The exemption relates to the proposal to make variations to the terms of issue (the variations) of subordinated prime adjusting reset convertible securities (bonds) issued by BBINNZ.
Under the terms of the bonds, the variations can only be made if they have been authorised by bond holders by extraordinary resolution. Therefore, bond holders will be sent a notice of meeting to consider the variations (the notice of meeting). The meeting will be held in accordance with the trust deed entered into by BBINNZ in connection with the issue of the bonds.
The bonds are convertible into Babcock & Brown Infrastructure (BBI) stapled securities. Consequently, the notice of meeting contains information about BBI.
The effect of the exemption and its conditions is that more recent financial information will be provided to bond holders in the notice of meeting and any relevant advertisement instead of the financial information required by regulation 12(1)(c) that is now outdated.
The Securities Commission considers that it is appropriate to grant the exemption for the following reasons:
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before February 2009, BBINNZ’s principal asset was its wholly owned subsidiary, Powerco Limited (Powerco). There have been some transactions that have occurred after the balance date of BBINNZ's most recent audited financial statements (30 June 2008) relating to Powerco (the recent transactions). The recent transactions were as follows:
in February 2009, Powerco divested its interests in the Powerco Tasmania group of companies:
also in February 2009, BBINNZ transferred its shares in Powerco to a new holding company, Powerco NZ Holdings Limited (Powerco Holdings). Powerco Holdings is owned jointly by BBINNZ (42%) and 2 Australian infrastructure funds that are ultimately associated with the Queensland State Government (58%):
after the recent transactions, BBINNZ's 42% shareholding in Powerco Holdings is BBINNZ's principal asset:
BBINNZ's prospectus must include the unaudited 31 December 2008 interim financial statements of BBINNZ (prepared in accordance with NZ IAS 34) and BBI (prepared in accordance with AASB 134). These interim statements must disclose the recent transactions. Any reference to amounts of net assets or assets and liabilities in an advertisement (in this case the notice of meeting) should be taken from these interim statements so that the amounts shown in the prospectus and the advertisement are consistent and comparable. The conditions of the exemption require BBINNZ to inform readers that the interim statements are unaudited and also that the notice of meeting must note the recent transactions:
2 of the principal variations are to defer existing rights to convert the bonds into stapled securities on 17 May 2009 and 17 November 2009 by 12 months in each case. Bond holders need to have received sufficient information about the financial position of BBI to decide whether to accept the deferral of conversion rights or maintain the existing conversion rights. The BBI interim statements provided in accordance with the conditions of this exemption should be sufficient to assist bond holders to make an informed investment decision.
Date of notification in Gazette: 20 April 2009.
Contents
1General
2Status of reprints
3How reprints are prepared
4Changes made under section 17C of the Acts and Regulations Publication Act 1989
5List of amendments incorporated in this reprint (most recent first)
Notes
1 General
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This is a reprint of the Securities Act (BBI Networks (New Zealand) Limited) Exemption Notice 2009. The reprint incorporates all the amendments to the notice as at 1 July 2009, as specified in the list of amendments at the end of these notes.
Relevant provisions of any amending enactments that have yet to come into force or that contain relevant transitional or savings provisions are also included, after the principal enactment, in chronological order.
2 Status of reprints
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Under section 16D of the Acts and Regulations Publication Act 1989, reprints are presumed to correctly state, as at the date of the reprint, the law enacted by the principal enactment and by the amendments to that enactment. This presumption applies even though editorial changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in the reprint.
This presumption may be rebutted by producing the official volumes of statutes or statutory regulations in which the principal enactment and its amendments are contained.
3 How reprints are prepared
A number of editorial conventions are followed in the preparation of reprints. For example, the enacting words are not included in Acts, and provisions that are repealed or revoked are omitted. For a detailed list of the editorial conventions, see http://www.pco.parliament.govt.nz/legislation/reprints.shtml or Part 8 of the Tables of Acts and Ordinances and Statutory Regulations, and Deemed Regulations in Force.
4 Changes made under section 17C of the Acts and Regulations Publication Act 1989
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Section 17C of the Acts and Regulations Publication Act 1989 authorises the making of editorial changes in a reprint as set out in sections 17D and 17E of that Act so that, to the extent permitted, the format and style of the reprinted enactment is consistent with current legislative drafting practice. Changes that would alter the effect of the legislation are not permitted.
A new format of legislation was introduced on 1 January 2000. Changes to legislative drafting style have also been made since 1997, and are ongoing. To the extent permitted by section 17C of the Acts and Regulations Publication Act 1989, all legislation reprinted after 1 January 2000 is in the new format for legislation and reflects current drafting practice at the time of the reprint.
In outline, the editorial changes made in reprints under the authority of section 17C of the Acts and Regulations Publication Act 1989 are set out below, and they have been applied, where relevant, in the preparation of this reprint:
•omission of unnecessary referential words (such as
“of this section”
and“of this Act”
)•typeface and type size (Times Roman, generally in 11.5 point)
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•layout of provisions, including:
•indentation
•position of section headings (eg, the number and heading now appear above the section)
•format of definitions (eg, the defined term now appears in bold type, without quotation marks)
•format of dates (eg, a date formerly expressed as
“the 1st day of January 1999”
is now expressed as“1 January 1999”
)•position of the date of assent (it now appears on the front page of each Act)
•punctuation (eg, colons are not used after definitions)
•Parts numbered with roman numerals are replaced with arabic numerals, and all cross-references are changed accordingly
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•case and appearance of letters and words, including:
•format of headings (eg, headings where each word formerly appeared with an initial capital letter followed by small capital letters are amended so that the heading appears in bold, with only the first word (and any proper nouns) appearing with an initial capital letter)
•small capital letters in section and subsection references are now capital letters
•schedules are renumbered (eg, Schedule 1 replaces First Schedule), and all cross-references are changed accordingly
•running heads (the information that appears at the top of each page)
•format of two-column schedules of consequential amendments, and schedules of repeals (eg, they are rearranged into alphabetical order, rather than chronological).
5 List of amendments incorporated in this reprint (most recent first)
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Securities Act (BBI Networks (New Zealand) Limited) Exemption Amendment Notice 2009 (SR 2009/123)
Securities Act (BBI Networks (New Zealand) Limited) Exemption Notice 2009 (SR 2009/91): clause 3