In this Act, unless the context otherwise requires,—
Board means the New Zealand Kiwifruit Marketing Board established by the Kiwifruit Marketing Regulations 1977
Company means the company deemed to be registered under the Companies Act 1993 under the restructuring plan with the name Zespri Group Limited
Kiwifruit means the fruit of a kiwifruit vine
Kiwifruit vine means a plant of the genus Actinidia
Liabilities means liabilities, debts, charges, duties, and obligations of every description (whether present or future, actual or contingent, and whether payable or to be observed or performed in New Zealand or elsewhere)
Minister means the Minister of the Crown who, under the authority of any warrant or with the authority of the Prime Minister, is for the time being responsible for the administration of this Act
New Board means the board to be established by regulations made under this Act
Producer, in relation to Part 1 (other than section 7), means—
(a)
The owners of land in New Zealand on which kiwifruit is produced for export sale; or
(b)
Such other persons determined by the Board to be producers of such kiwifruit:
Property means property of every kind whether tangible or intangible, real or personal, corporeal or incorporeal and, without limiting the generality of the foregoing, includes—
(a)
Choses in action and money:
(b)
Goodwill:
(c)
Any copyright, patent, registered design, trademark, know-how, service marks, trade secrets, or other intellectual or industrial property and any applications pending for patents, trademarks, copyright, and other intellectual or industrial property:
(d)
Rights, interests, and claims of every kind in or to property, whether arising from, accruing under, created or evidenced by, or the subject of, an instrument or otherwise and whether liquidated or unliquidated, actual, contingent, or prospective:
Responsible chief executive, in relation to any function or matter, means the chief executive for the time being of a responsible Ministry who has, with the authority of the Prime Minister, assumed responsibility for that function or matter
Restructuring day means 1 April 2000
Rights means all rights, powers, privileges, and immunities, whether actual, contingent, or prospective
Zespri International Limited means the company incorporated under the Companies Act 1993 with the name Zespri International Limited.
(2)
The decision as to who is a producer in respect of any particular kiwifruit orchard (whether an owner of land referred to in paragraph (a) of the definition of producer or any other person referred to in paragraph (b) of the definition) is for the Board to make.
(3)
The Board, in exercising that discretion, may have regard to—
(a)
Whether the orchard was developed by a lessee of the land; or
(b)
Whether the landowner or lessee who would otherwise be the producer consents to another person being the producer, in a case where the other person—
(i)
Has a family association with the landowner or lessee; and
(ii)
Is engaged in the production of kiwifruit on that land.
Contain a share allocation plan for the company; and
(b)
Contain a constitution of the company that complies with the requirements of this Act and any regulations made under this Act; and
(c)
Be accompanied by the proposed application for registration of a company under the Companies Act 1993; and
(d)
Contain such other details as the Minister may from time to time require.
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Share allocation plan
(1)
The Board must ensure—
(a)
That the share allocation plan provides for the allocation of the shares in the company, on the restructuring day, to persons who are producers as at 31 March 2000; and
(b)
That the basis on which shares in the company are to be allocated under the restructuring plan fairly reflects the ownership rights of producers, based on supply history of the land on which the kiwifruit is produced, in the assets of the Board before the restructuring; and
(c)
That the share allocation plan specifies the proposed basis of allocation.
(2)
The Board must take all practicable steps to identify producers for the purpose of the share allocation plan.
The Board must ensure that under the restructuring plan—
(a)
The Board is to become a company registered only under the Companies Act 1993:
(b)
The shares in the company are to be fully tradeable (not based on any supply criteria) at least among producers.
(2)
In this section, producers means—
(a)
Producers under the share allocation plan:
(b)
Persons who become producers after 31 March 2000:
(c)
Lessees under a lease of at least 1 year's duration of the land on which kiwifruit is produced:
(d)
Any other person determined by the board of directors of the company to be a producer for the purpose of tradeability of shares.
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Application for registration of company
The application for registration of a company under the Companies Act 1993 that is part of the restructuring plan must comply with section 12 of that Act, except that—
(a)
The Board may be the applicant on behalf of the persons who are to receive initial shares in the company:
(b)
The Board is not required to name or identify the persons individually in the application:
(c)
2 members of the Board may sign the application and any other documents required to accompany it:
(d)
Section 12(1)(d)(i) does not apply to a person's shares in the company.
Minister to approve restructuring plan.
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Board must give restructuring plan to Minister
(1)
The Board must give the restructuring plan to the Minister no later than 1 December 1999.
(2)
The Board must also give the Minister a certificate signed by not less than 2 members of the Board certifying that section 6 (share allocation plan) and section 7 (corporate form) have been complied with.
10-
Approval of restructuring plan
(1)
The Minister must decide whether to approve a restructuring plan as soon as practicable after receiving it.
(2)
The Minister may decline to approve the plan only if the Minister is not satisfied that the requirements of this Act and any regulations made under this Act have been complied with.
If the Minister declines to approve the restructuring plan,—
(a)
The Minister must indicate the grounds on which he or she declines to approve the plan; and
(b)
The Minister must direct the Board to prepare and submit a revised plan; and
(c)
The Board must submit a revised restructuring plan to the Minister not later than 3 weeks after the date on which that approval was declined or such later date as the Minister in any particular case may allow.
(2)
The provisions of section 9(2) apply in respect of a revised restructuring plan required to be submitted to the Minister under this section.
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Approval of revised restructuring plan
(1)
As soon as practicable after receiving a revised restructuring plan, the Minister must—
(a)
Approve the plan by notice in writing to the Board; or
(b)
If the Minister considers that the revised plan requires further amendment,—
(i)
Make such amendments to the plan as the Minister considers necessary; and
(ii)
Approve the plan (as amended) by notice in writing to the Board, which notice must be accompanied by a copy of the plan as approved.
(2)
Before making any amendments to a restructuring plan under this section, the Minister must advise the Board of the Minister's intention to do so, and must give the Board a reasonable opportunity to make submissions on the matter.
Producer referendum on restructuring plan
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Producer referendum on restructuring plan
(1)
The Board must hold a referendum on the restructuring plan.
(2)
All producers as at 30 September 1999 are eligible to vote in the referendum.
(3)
The Board must take all practicable steps to invite eligible producers to vote in the referendum.
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Procedure for consulting with producers
The Board must ensure that, at least 2 weeks before the closing date for voting, each eligible producer is sent the following:
(a)
Information that would be likely to assist a prudent but non-expert person to decide whether or not to subscribe for securities, as if the information were an investment statement under the Securities Act 1978; and
(b)
An explanation of the restructuring plan, including the proposed basis of allocation; and
(c)
An explanation of the proposed constitution of the company, dealing with the matters likely to have material significance to producers in their capacities as shareholders; and
(d)
Information on how and when to vote; and
(e)
Notification of the proposed basis for voting.
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Way in which referendum to be conducted
(1)
The Board may determine the way in which the referendum is to be conducted.
(2)
The basis for voting must be the same as the basis for share allocation under the share allocation plan.
(3)
The Board must ensure that the referendum is held in a way that ensures fairness and that a clear and accurate result can be ascertained and verified.
There is sufficient support for the restructuring plan if more than 75% of the votes cast in the referendum are in favour of the plan.
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Result of referendum
(1)
The Board must ensure that there is adequate scrutiny by an independent person of the election process and result.
(2)
The Board must publicise the result of the referendum in such a way that few in the industry would not be aware of the result.
Ministerial confirmation of restructuring plan
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Minister must confirm restructuring plan
(1)
As soon as practicable after the referendum result is known, the Board must give the restructuring plan to the Minister.
(2)
The Board must also provide a certificate that the referendum complied with the requirements of this Act as to process and result, signed by the independent person who acted as scrutineer.
(3)
The Minister must confirm the restructuring plan once the Minister receives a certificate under subsection (2) that states that there is sufficient support in the producer referendum for the restructuring plan.
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Default position
(1)
If there is insufficient support in the producer referendum for the restructuring plan, the Minister must specify—
(a)
A share allocation plan that, in the opinion of the Minister, is consistent with section 6(1):
(b)
A constitution for the company that, in the opinion of the Minister, is consistent with this Act and the regulations.
(2)
Before specifying the documents under subsection (1), the Minister must—
(a)
Consult with persons or representatives of persons likely to be affected by the restructuring plan; and
(b)
Give the Board an opportunity to propose changes to the documents proposed to be specified by the Minister; and
(c)
Take into account the views expressed under paragraphs (a) and (b) in specifying those documents.
(3)
Any documents specified by the Minister are deemed to be part of the restructuring plan for the purpose of the registration of the company.
The Board is deemed to be a company registered under the Companies Act 1993 with the name Zespri Group Limited; and
(b)
The Registrar of Companies must issue a certificate of registration for the company; and
(c)
Shares are issued to producers in accordance with the share allocation plan.
(2)
The certificate of registration is conclusive evidence that the company was, on the restructuring day, registered as a company under the Companies Act 1993.
