New Zealand Legislation: Acts

3 Construction of references to offering securities to the public

• (1) Any reference in this Act to an offer of securities to the public shall be construed as including—

  • (a) A reference to offering the securities to any section of the public, however selected; and

  • (b) A reference to offering the securities to individual members of the public selected at random; and

  • (c) A reference to offering the securities to a person if the person became known to the offeror as a result of any advertisement made by or on behalf of the offeror and that was intended or likely to result in the public seeking further information or advice about any investment opportunity or services,—

  whether or not any such offer is calculated to result in the securities becoming available for subscription by persons other than those receiving the offer.

  (2) None of the following offers shall constitute an offer of securities to the public:

  • (a) An offer of securities made to any or all of the following persons only:

    • (i) Relatives or close business associates of the issuer or of a director of the issuer:

    • (ii) Persons whose principal business is the investment of money or who, in the course of and for the purposes of their business, habitually invest money:

    • (iia) persons who are each required to pay a minimum subscription price of at least $500,000 for the securities before the allotment of those securities:

    • (iib) persons who have each previously paid a minimum subscription price of at least $500,000 for securities (the initial securities) in a single transaction before the allotment of the initial securities, provided that—

      • (A) the offer of the securities is made by the issuer of the initial securities; and

      • (B) the offer of the securities is made within 18 months of the date of the first allotment of the initial securities:

    • (iii) Any other person who in all the circumstances can properly be regarded as having been selected otherwise than as a member of the public:

  • (b) An invitation to a person to enter into a bona fide underwriting or sub-underwriting agreement with respect to an offer of securities:

  • (c) [Repealed]

  (3) A person shall not be precluded from being regarded as a member of the public in regard to any offer of securities by reason only that he or she is a purchaser of goods from, or an employee or client of, or a holder of securities previously issued by, the issuer or any promoter of the securities.

  (4) Any reference in this Act to an offer of securities to the public shall be construed as including a reference to distributing an advertisement, a prospectus, a registered prospectus, or an application form for the subscription of securities.

  (5) Proof of an offer of securities to one person selected as a member of the public shall be prima facie evidence of an offer of securities to the public.

  (6) [Repealed]

  (7) A statement or report—

  • (a) Made to or for the purposes of a general meeting of the members of the issuer, or a report of the proceedings of such a meeting; or

  • (b) Relating to the affairs of the issuer made to any stock exchange for the purposes of compliance with the listing requirements relating to that stock exchange, by or on behalf of that issuer, or any report of such statement or report—

  shall not constitute an offer of securities to the public.

  (8) In calculating the subscription price payable, or paid, for securities for the purposes of subsection (2)(a)(iia) or (iib), any amount payable, or paid, must be disregarded to the extent to which it is to be paid, or was paid, out of money lent by the issuer, the offeror, or any associated person of the issuer or offeror.

  (9) The Governor-General may, by Order in Council, amend the minimum subscription price that applies under subsection (2)(a)(iia) or (iib).

  Subsection (2)(a)(i) was amended, as from 15 April 2004, by section 5(1) Securities Amendment Act 2004 (2004 No 31) by inserting the words “or of a director of the issuer”.

  Subsection (2)(a)(iia) was inserted, as from 15 April 2004, by section 5(2) Securities Amendment Act 2004 (2004 No 31).

  Section 3(2)(a)(iib): inserted, on 28 July 2009, by section 5(1) of the Securities (Disclosure) Amendment Act 2009 (2009 No 23).

  Subsection (2)(c) was repealed, as from 1 July 2001, by section 12(2) Takeovers Amendment Act 2001 (2001 No 30).

  Subsection (3) was amended, as from 3 May 2001, pursuant to section 5(c) Securities Amendment Act 2001 (2001 No 25), by inserting after the word “he” the words “or she”.

  Subsection (4) was substituted, as from 1 September 1983, by section 3(1) Securities Amendment Act 1982 (1982 No 147).

  Subsection (6) was inserted, as from 1 September 1983, by section 3(2) Securities Amendment Act 1982 (1982 No 147).

  Subsection (6) was repealed, as from 15 April 2004, by section 5(3) Securities Amendment Act 2004 (2004 No 31).

  Subsection (7) was inserted, as from 1 September 1983, by section 3(2) Securities Amendment Act 1982 (1982 No 147).

  Subsections (8) and (9) were inserted, as from 15 April 2004, by section 5(4) Securities Amendment Act 2004 (2004 No 31).

  Section 3(8): amended, on 28 July 2009, by section 5(2) of the Securities (Disclosure) Amendment Act 2009 (2009 No 23).

  Section 3(9): amended, on 28 July 2009, by section 5(3) of the Securities (Disclosure) Amendment Act 2009 (2009 No 23).