[Federal Register Volume 78, Number 219 (Wednesday, November 13, 2013)]
[Notices]
[Pages 68107-68108]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-27100]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-70349]


Order Exempting Broker-Dealers Participating in the Proposed 
Global Offering of Meridian Energy Limited From the Arranging 
Prohibitions of Section 11(d)(1) of the Exchange Act

September 9, 2013.
    By letter dated September 6, 2013 (``Request''), Deutsche Bank AG, 
New Zealand Branch/Craigs Investment Partners Limited, Goldman Sachs 
New Zealand and Macquarie Capital (New Zealand) Limited/Macquarie 
Securities (NZ) Limited (together, ``Joint Lead Managers'' or ``JLMs'') 
and their respective U.S. broker-dealer affiliates (``U.S. Selling 
Agents'') requested that the Securities and Exchange Commission 
(``Commission'') grant an exemption order pursuant to Section 36(a) of 
the Exchange Act of 1934 (``Exchange Act'').\1\
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    \1\ 15 U.S.C. 78mm(a).
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    The Request pertains to the application of the arranging 
prohibitions of Section 11(d)(1) of the Exchange Act \2\ to the 
proposed U.S. offering, as described in your Request (the ``Proposed 
U.S. Offering'') by Her Majesty the Queen in right of New Zealand, 
acting by and through the Minister of Finance and the Minister for 
State Owned Enterprises (the ``Crown''), of ordinary shares (the 
``Shares'') of Meridian Energy Limited (``Meridian'' or the 
``Company''), in connection with Meridian's proposed global initial 
public offering (``Proposed Global Offering'').
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    \2\ 15 U.S.C. 78k(d)(1).
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    You represent that the Proposed Global Offering, including the 
Proposed U.S. Offering, will be conducted on an installment payment 
basis in the form of installment receipts (``Installment Receipts''), 
with the purchase price to be payable in two installments. The 
securities to be offered and sold in the Proposed U.S. Offering will 
not be registered under the Securities Act of 1933 (the ``Securities 
Act''), but instead will be offered and sold to persons reasonably 
believed to be ``qualified institutional buyers'' (``QIBs''), as 
defined in Rule 144A \3\ under the Securities Act, in transactions 
exempt from the registration requirements of the Securities Act 
pursuant to Rule 144A thereunder. As a result, the Shares offered and 
sold in the Proposed U.S. Offering would be represented by Installment 
Receipts. The Proposed U.S. Offering of Installment Receipts may be 
deemed to involve a ``new issue'' for purposes of Section 11(d)(1). 
Thus, the Joint Lead Managers' and the U.S. Selling Agents' 
participation in the Proposed U.S. Offering of Meridian may be within 
the scope of the arranging prohibitions of Section 11(d)(1) of the 
Exchange Act.
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    \3\ 17 CFR 230.144A.
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    You have requested that the Commission grant an exemption pursuant 
to Section 36(a) of the Exchange Act from the arranging prohibitions of 
Section 11(d)(1). You note that the exemption requested is in all 
material respects identical to the relief that the Commission has 
previously granted in connection with New Zealand and Australian global 
offerings that have been conducted on an installment payment basis.\4\
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    \4\ The Commission has exempted broker-dealers from the 
arranging provision of Section 11(d)(1) in similar offerings. See 
Letter from Catherine McGuire, Chief Counsel, Division of Trading 
and Markets, Commission, to William C.F. Kurz, Esq., Pillsbury 
Winthrop Shaw Pittman LLP re: Telstra Corporation Limited, dated 
October 5, 2006; Letter from Catherine McGuire, Chief Counsel, 
Division of Trading and Markets, Commission, to William C.F. Kurz, 
Esq., Pillsbury Winthrop Shaw Pittman LLP re: Macquarie Media 
Holdings Limited and Macquarie Media Trust, dated September 27, 
2005; and Letter from Catherine McGuire, Chief Counsel, Division of 
Trading and Markets, Commission, to Frederick Wertheim, Esq., 
Sullivan & Cromwell LLP re: Spark Infrastructure Group, dated 
November 8, 2005 (revised November 29, 2005).
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    Section 11(d)(1) of the Exchange Act generally prohibits a broker-
dealer from extending or maintaining credit, or arranging for the 
extension or maintenance of credit, on shares of new issue securities, 
if the broker-dealer participated in the distribution of the new issue 
securities within the preceding 30 days. The Joint Lead Managers and 
their U.S. Selling Agents are broker-dealers. The Proposed U.S. 
Offering of Installment Receipts in the manner described in your 
Request may be deemed to involve an extension of credit, and the 
activities of the Joint Lead Managers and the U.S. Selling Agents 
participating in the Proposed U.S. Offering might, therefore, be deemed 
to be an arrangement of credit subject to Section 11(d)(1) of the 
Exchange Act.
    Based on the facts and representations set forth in your Request, 
the Commission finds that it is appropriate in the public interest and 
consistent with the protection of investors to grant, and hereby 
grants, to the Joint Lead Managers and the U.S. Selling Agents 
participating in the Proposed Global Offering by the Crown, of Shares 
of Meridian a limited exemption pursuant to Section 36(a) of the 
Exchange Act from the prohibitions on arranging for the extension of 
credit contained in Section 11(d)(1) of the Exchange Act. In the 
absence of the exemption, Section 11(d)(1) would effectively preclude 
the Joint Lead Managers and U.S. Selling Agents from selling the 
Installment Receipts in the United States since any brokers or dealers 
participating in the Proposed U.S. Offering may be deemed to be 
arranging credit in the form of the Installment Receipts that they 
offer and sell to QIBs. The exemption will allow sophisticated U.S. 
investors that meet the definition of a QIB to purchase the Installment 
Receipts in the Proposed U.S. Offering where the protections of the 
U.S. securities laws will be available, including the anti-fraud 
protections, rather than in overseas

[[Page 68108]]

markets which may not afford the same protections. The exemption 
facilitates the domestic investment by sophisticated U.S. investors in 
a major foreign issuer and thus encourages the opening of the U.S. 
capital markets to foreign entities and the free flow of capital 
between the United States and New Zealand. The exemption may also help 
achieve a more liquid and efficient institutional resale market in the 
United States for the Installment Receipts.
    This limited exemption is granted without necessarily agreeing or 
disagreeing with the analysis in your Request. It is based solely on 
the representations contained in your letter, particularly the 
following:
    1. At the present time, the Crown owns 100% of the issued ordinary 
shares of Meridian and, as part of the Crown's partial privatization 
program with regard to its direct holding of the Shares, the 
Commonwealth intends to sell approximately 49% of its existing 
shareholding in Meridian.
    2. It is anticipated that the gross proceeds of the Proposed Global 
Offering will be approximately NZ$2.5 billion (approximately US$2.0 
billion using the NZ$/US$ exchange rate as of July 29, 2013);
    3. No more than 20% of the total numbers of Shares being offered 
will be sold in the Proposed U.S. Offering, and the Proposed U.S. 
Offering will only be open to sophisticated U.S. investors that are 
QIBs within the meaning of Rule 144A under the Securities Act of 1933.
    4. Not less than 50% of the total purchase price will be payable on 
or before the date of the initial closing of the Proposed Global 
Offering, and the remainder will be paid in a second final installment 
payable not more than 24 months after the initial closing of the 
Proposed Global Offering.
    5. New Zealand will be the largest market for the Shares (with the 
current expectation that at least 70% of the Proposed Global Offering 
will be sold to New Zealand investors), and thus the New Zealand market 
will dictate the terms, and to a large extent the structure, of the 
Proposed Global Offering.
    6. An offering-by-installment structure is a customary feature of 
large financings in New Zealand and Australia, and installment and 
partly paid structures have been used in numerous other transactions in 
New Zealand and Australia in recent years.

Conclusion

    It is therefore ordered, that Joint Lead Managers and U.S. Selling 
Agents are exempt from the arranging prohibitions contained in Section 
11(d)(1) in connection with the transactions involving the Shares under 
the circumstances described above and in your Request.
    This exemption from Section 11(d)(1) is strictly limited to 
transactions involving the Shares under the circumstances described 
above and in your Request. Notably, this limited exemption from the 
arranging prohibitions contained in Section 11(d)(1) applies solely to 
the installment-payment structure of the Proposed Global Offering, and 
not to any other extension or maintenance of credit, or any other 
arranging for the extension or maintenance of credit, on the Shares or 
the Installment Receipts by a Joint Lead Manager or U.S. Selling Agent. 
In the event that any material change occurs with respect to any of the 
facts you have presented or the representations you have made, such 
transactions should be discontinued, pending presentation of the facts 
for our consideration. We express no view with respect to any other 
questions the proposed transactions may raise, including, but not 
limited to, the applicability of other federal and state laws or rules 
of any self-regulatory organization to the Proposed Global Offering.
    You request, under 17 CFR 200.81(b), that your Request and this 
response be accorded confidential treatment until after the Proposed 
Global Offering is made public, or 60 days from the date of your 
Request, whichever first occurs. Because we believe that your request 
for confidential treatment is reasonable and appropriate, we grant it.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\5\
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    \5\ 17 CFR 30-3(a)(19) and 17 CFR 200.30-3(a)(62).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-27100 Filed 11-12-13; 8:45 am]
BILLING CODE 8011-01-P