1.1This undertaking is offered to the Securities Commission for acceptance under section 69J of the Securities Act 1978 by:
- Foodstuffs (Wellington) Co-operative Society Limited (Society), an industrial and provident society incorporated on 8 April 1957, whose registered office is at:
The Foodstuffs Building
- And by the directors of the Society:
- Peter James Anderson whose address is 3 Nikau Grove, Woburn;
- Bruce McDonald Beaton whose address is 19 Cambridge Terrace, Taradale, Napier;
- Brian John Drake whose address is Unit 2, 22 Oriental Terrace, Wellington;
- Brian Robert Galt whose address is 4/342 Oriental Parade, Wellington;
- David Rutherford Kershaw whose address is 108 Regent Street, Martinborough;
- Brian Dennis Lucas whose address is 168 Tamata Peak Road, Havelock North;
- Alan Patrick Melody whose address is The Reef, Apartment 9, 93 St Aubyn Street, New Plymouth;
- Anthony Scott McNeil whose address is 15A Seaview Rd, Paremata;
- Kieran Thomas O'Sullivan whose address is 13 Dargle Way, Island Bay, Wellington; and
- David Frank Smith whose address is 5 Burbury Ridge, Havelock North.
2.1The Society is a registered industrial and provident society under the Industrial and Provident Societies Act 1908.
2.2The Society has various classes of shares, rebates and deposits on issue each of which constitute a class of securities for the purposes of the Securities Act. The Society only issues securities to its members. No prospectus has been registered in relation to the issue of these securities.
2.3The Society has a close relationship with its members. Up until recently the Society considered that the offers were made to persons as described in section 3(2) of the Securities Act meaning that the offers were exempt from the Act as they were not offers to "the public".
2.4More recently the Society has formed the view that it is not possible to say with certainty that all members and prospective members have a relationship with the Society akin to a close business associate (or any other exempt relationship under section 3(2) of the Act) or are in a position that they are objectively able to protect themselves and do not need the protections of the Act.
2.5The matters were drawn to the Commission's attention by the Society. The Commission is concerned that some securities may have been allotted in contravention of the Securities Act.
2.6The Society acknowledges the Commission's concerns. At the time the offers were made the Society considered that the Act did not apply.
3.1The Society and its directors will not offer securities to the public for subscription, other than in an investment statement, registered prospectus, or authorised advertisement that complies with the Securities Act and the Regulations, or in accordance with any applicable exemption granted by the Commission.
3.2The Society will, and its Directors will arrange for the Society to:
- continue its application to the Commission to be added as a named society in the Securities Act (Industrial and Provident Societies) Exemption Notice 2002 (Exemption Notice);
- within one month after the Society is added, register one or more prospectuses (that comply with the Securities Act, Regulations, Exemption Notice and any other applicable exemption granted by the Commission) for the securities to which the Exemption Notice applies;
- no later than 30 April 2008 offer in writing to repay all other securities to which the Exemption Notice does not apply (together with, where applicable, accrued interest as required by the investment contract);
- in relation to (c) above, draw the addressee's attention to the possibility that under the law they might be entitled to receive a different amount of interest than the contracted rate, and advise the addressee that if they would like to pursue the different amount of interest, they should contact Foodstuffs;
- if the other securities to which the Exemption Notice does not apply have not been repaid by 30 June 2008, register one or more prospectuses (that comply with the Securities Act, Regulations, and any other applicable exemption granted by the Commission) for those securities;
- distribute one or more investment statements (or combined prospectuses and investment statements) for its securities to which the Exemption Notice applies that comply with the Securities Act and Regulations, the Exemption Notice (as applicable) and any other applicable exemption granted by the Commission to all relevant security holders who have subscribed for relevant securities currently on issue by the Society;
- within three months after the Society is added as a named society in the Exemption Notice, apply to the High Court for relief (pursuant to the procedures set out in the applicable provisions of sections 37AA to 37AL of the Securities Act 1978) in respect of the application of section 37 to the allotment of those existing securities to which the Exemption Notice applies and which were allotted prior to the Society being added as a named society in the Exemption Notice; and
- within two months after any registration of a prospectus or prospectuses for the securities to which the Exemption Notice does not apply (as required by subparagraph (e) above), apply to the High Court for relief (pursuant to the procedures set out in the applicable provisions of sections 37AA to 37AL of the Securities Act 1978) in respect of the application of section 37 to the allotment of those securities.
4.1The Society and its Directors acknowledge that the Commission:
- may issue a media release referring to the undertaking and to the concerns of the Commission which led to the undertaking being executed;
- may from time to time publicly refer to the undertaking; and
- will make this undertaking available for public inspection.
4.2The Society and its Directors acknowledge that this undertaking does not derogate from the rights and remedies available to the Commission or to any other person or entity arising from the conduct described in this undertaking.
4.3The Society and its Directors acknowledge that the Commission's acceptance of an enforceable undertaking under section 69J of the Securities Act 1978 does not affect the Commission's power to investigate future conduct of any person, to take any action or to exercise any power under the Securities Act 1978 or any other legislation, or to refer any matter for criminal prosecution or seek any civil penalty.
Signed for and on behalf of Foodstuffs (Wellington) Co-operative Society Limited by its duly authorised officer:
Anthony Scott McNeil
Signed for and on behalf of the directors of Foodstuffs (Wellington) Co-operative Society Limited by:
Brian John Drake
Accepted by the Securities Commission pursuant to section 69J of the Securities Act 1978 by its authorised delegate:
Foodstuffs-Wellington-Co-Operative-Society-Limited.pdf (125 KB)