New Zealand Legislation: Regulations
Regulations are laws made under Acts
(1) The offer must comply with the following ongoing requirements:
(a) the offer must remain a regulated offer in Australia at all times during which it is open for acceptance by persons in New Zealand; and
(b) the offer must comply with the securities legislation of Australia; and
(c) the offer must be open to acceptance by persons in Australia at all times during which it is open for acceptance by persons in New Zealand; and
(d) if any offer document referred to in regulation 12(1)(a) is provided to any person, the offer document must be accompanied by the following warning statement:
“(a) This offer to New Zealand investors is a regulated offer made under Australian and New Zealand law. In Australia, this is Chapter 8 of the Corporations Act 2001 and Regulations. In New Zealand, this is Part 5 of the Securities Act 1978 and the Securities (Mutual Recognition of Securities Offerings—Australia) Regulations 2008.”
“(b) This offer and the content of the offer document are principally governed by Australian rather than New Zealand law. In the main, the Corporations Act 2001 and Regulations (Australia) set out how the offer must be made.”
“(c) There are differences in how securities are regulated under Australian law. For example, the disclosure of fees for collective investment schemes is different under the Australian regime.”
“(d) The rights, remedies, and compensation arrangements available to New Zealand investors in Australian securities may differ from the rights, remedies, and compensation arrangements for New Zealand securities.”
“(e) Both the Australian and New Zealand securities regulators have enforcement responsibilities in relation to this offer. If you need to make a complaint about this offer, please contact the Securities Commission, Wellington, New Zealand. The Australian and New Zealand regulators will work together to settle your complaint.”
“(f) The taxation treatment of Australian securities is not the same as for New Zealand securities.”
“(g) If you are uncertain about whether this investment is appropriate for you, you should seek the advice of an appropriately qualified financial adviser.”
; and
(e) if any offer document referred to in regulation 12(1)(a) is provided to any person and the offer involves payments that are not in New Zealand dollars, the offer document must be accompanied by the following additional warning statement:
“(a) The offer may involve a currency exchange risk. The currency for the securities is not New Zealand dollars. The value of the securities will go up or down according to changes in the exchange rate between that currency and New Zealand dollars. These changes may be significant.”
“(b) If you expect the securities to pay any amounts in a currency that is not New Zealand dollars, you may incur significant fees in having the funds credited to a bank account in New Zealand in New Zealand dollars.”
; and
(f) if any offer document referred to in regulation 12(1)(a) is provided to any person and the offer involves securities able to be traded on a financial market, the offer document must be accompanied by the following additional warning statement:
“If the securities are able to be traded on a securities market and you wish to trade the securities through that market, you will have to make arrangements for a participant in that market to sell the securities on your behalf. If the securities market does not operate in New Zealand, the way in which the market operates, the regulation of participants in that market, and the information available to you about the securities and trading may differ from securities markets that operate in New Zealand.”
; and
(g) if any offer document referred to in regulation 12(1)(a) is provided to any person and the offer is for the offer of interests in an Australian collective investment scheme and any dispute resolution process described in the offer document is not available in New Zealand, the offer document must be accompanied by the following additional warning statement:
“The dispute resolution process described in this offer document is only available in Australia and is not available in New Zealand.”
(2) The Australian issuer must comply with the following ongoing requirements during the period of the offer:
(a) the Australian issuer must provide an offeree, on request, with copies of the relevant constitutional documents in respect of the issuer or the offer; and
(b) the Australian issuer must ensure that a person who is prohibited by, or under a power exercised under, Australian or New Zealand legislation from being concerned in the management of a company in Australia or New Zealand is not concerned in the management of the issuer; and
(c) the Australian issuer must ensure that there is, throughout the period of the offer, at least 1 person resident or incorporated in New Zealand who is authorised to accept service in New Zealand at that person's address of documents on behalf of the Australian issuer.
(3) If an event listed in the first column of the following table occurs in relation to the offer or the Australian issuer, the Australian issuer must give to the Registrar the notice specified in the second column (see regulations 16 and 17 for the form and contents of each notice) within the time for filing the notice specified in the third column:
| Item | Event | Notice | Time for filing | |||
|---|---|---|---|---|---|---|
| a | Change made to an offer document or any other document required by the law of Australia in relation to the offer | Notice of change to offer document | No later than 5 working days after the day on which the issuer notified (or should have notified) the Australian regulator of the change | |||
| b | Change in issuer’s address for service | Notice of change of address for service | At least 5 working days before the change takes effect | |||
| c | Supplementary or replacement offer document is required by the law of Australia | Notice of supplementary or replacement offer document | As soon as practicable after the supplementary or replacement offer document is filed with the Australian regulator and no later than 5 working days after the day on which the document is (or should have been) filed with the Australian regulator | |||
| d | Change made to a relevant constitutional document in respect of the issuer or the securities offered | Notice of change to constitutional document | No later than 5 working days after the day on which the issuer notified (or should have notified) the Australian regulator of the change | |||
| e | Australian regulator grants, amends, or revokes a general exemption relevant to the offer | Notice of grant of, amendment to, or revocation of, general exemption | No later than 10 working days after the grant, amendment, or revocation of the exemption | |||
| f | Australian regulator grants, amends, or revokes an exemption relevant to the offer that is specific to the offer or the issuer | Notice of grant of, amendment to, or revocation of, specific exemption | No later than 5 working days after the grant, amendment, or revocation of the exemption | |||
| g | Australian regulator begins an enforcement action, or exercises a power it has under law, in relation to the offer or the issuer | Notice of enforcement action or exercise of power by Australian regulator | No later than 5 working days after the action is taken or the power is exercised |
(4) The Commission may give a written notice to an Australian issuer that it must not make any further offer under these regulations if the Commission is satisfied that—
(a) 1 or more of the requirements of this regulation have been breached in relation to a previous offer by the Australian issuer or an associate of the Australian issuer under these regulations; and
(b) the breach was not minor or technical only.
(5) The Commission must not give a notice under subclause (4) without first giving the Australian issuer a reasonable opportunity to make representations to the Commission, including the opportunity to appear before the Commission.