Financial Reporting Act (Overseas Issuers) Exemption Notice 2009

  • revoked
  • Financial Reporting Act (Overseas Issuers) Exemption Notice 2009: revoked, on 29 March 2013, by clause 8 of the Financial Reporting Act (Overseas Issuers) Exemption Notice 2013 (SR 2013/62).

Reprint
as at 29 March 2013

Coat of Arms of New Zealand

Financial Reporting Act (Overseas Issuers) Exemption Notice 2009

(SR 2009/2)

  • Financial Reporting Act (Overseas Issuers) Exemption Notice 2009: revoked, on 29 March 2013, by clause 8 of the Financial Reporting Act (Overseas Issuers) Exemption Notice 2013 (SR 2013/62).


Note

Changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in this reprint.

A general outline of these changes is set out in the notes at the end of this reprint, together with other explanatory material about this reprint.

This notice is administered by the Financial Markets Authority.


Pursuant to section 35A of the Financial Reporting Act 1993, the Securities Commission gives the following notice (to which is appended a statement of reasons of the Securities Commission).

Notice

1 Title
  • This notice is the Financial Reporting Act (Overseas Issuers) Exemption Notice 2009.

2 Commencement
  • This notice comes into force on the day after the date of its notification in the Gazette.

3 Expiry
  • This notice expires on the close of 31 March 2013.

    Clause 3: amended, on 28 September 2012, by clause 3 of the Financial Reporting Act (Extension of Term) Exemption Notice 2012 (SR 2012/296).

4 Application to accounting periods
  • An exemption granted by this notice applies to the following accounting periods of an exempt issuer:

    • (a) an accounting period of the exempt issuer that commenced before the exemption is granted (including an accounting period that ended before the exemption is granted) if,—

      • (i) in the case of copies of financial statements or group financial statements for that period that are required to be delivered for registration under section 18 of the Act, the exemption is granted before those documents are required to be delivered for registration under that section; or

      • (ii) in any other case, the exemption is granted before the financial statements or group financial statements for that period are required to be completed; and

    • (b) subsequent accounting periods.

5 Interpretation
  • (1) In this notice, unless the context otherwise requires,—

    approved auditor means an accountant who is qualified under the law of the jurisdiction in which the exempt issuer is incorporated to give an opinion as to whether specified financial statements comply with the overseas GAAP of that jurisdiction

    exempt issuer means an issuer that—

    • (a) is incorporated in a jurisdiction that is specified in the first column of Schedule 1; and

    • (b) has specified financial statements prepared in respect of it; and

    • (c) offers securities to the public in New Zealand in reliance on an exemption notice that is specified in Schedule 2 (or a notice that, with or without modification, replaces or corresponds to, or was replaced by or corresponded to, a notice specified in that schedule); and

    • (d) does not offer securities to the public in New Zealand otherwise than in reliance on any or all of the notices referred to in paragraph (c)

    overseas GAAP, in relation to an exempt issuer, means generally accepted accounting practice or principles in the jurisdiction in which the exempt issuer is incorporated, as specified in the third column of Schedule 1

    specified financial statements, in relation to an exempt issuer, means the group financial statements that are required to be prepared in respect of the exempt issuer in accordance with the laws of the jurisdiction in which the exempt issuer is incorporated that are specified in the second column of Schedule 1.

    (2) Any term or expression that is defined in the Act and used, but not defined, in this notice has the same meaning as in the Act.

6 Exemptions for directors of exempt issuers
  • (1) Every director of an exempt issuer is exempted from the following provisions in respect of the exempt issuer:

    • (b) section 13 of the Act to the extent that it requires the group financial statements prepared in relation to the exempt issuer to comply with section 14 of the Act; and

    • (c) [Revoked]

    • (d) section 18(1) of the Act to the extent that it requires copies of the financial statements of the exempt issuer, together with a copy of the auditor's report on those statements, to be delivered to the Registrar for registration.

    (2) Subclause (1)(d) does not apply in relation to the group financial statements that are required to be prepared in relation to the exempt issuer under section 13 of the Act.

    Clause 6(1)(a): amended, on 18 June 2010, by clause 4(1) of the Financial Reporting Act (Overseas Issuers) Exemption Amendment Notice 2010 (SR 2010/163).

    Clause 6(1)(c): revoked, on 18 June 2010, by clause 4(2) of the Financial Reporting Act (Overseas Issuers) Exemption Amendment Notice 2010 (SR 2010/163).

    Clause 6(2): amended, on 18 June 2010, by clause 4(3) of the Financial Reporting Act (Overseas Issuers) Exemption Amendment Notice 2010 (SR 2010/163).

7 Conditions
  • The exemptions in clause 6 are subject to the conditions that—

    • (a) the exempt issuer complies with the requirements of the laws that relate to the preparation, content, auditing, and public filing of its financial statements in the jurisdiction in which the exempt issuer is incorporated and that are, as applicable, specified in the second column of Schedule 1; and

    • (b) the specified financial statements of the exempt issuer comply with overseas GAAP; and

    • (c) if, in complying with overseas GAAP, the specified financial statements do not give a true and fair view of the matters to which they relate, the directors of the exempt issuer add information and explanations that will give a true and fair view of those matters; and

    • (d) the specified financial statements are accompanied by a report by an approved auditor that complies with the requirements specified in the fourth column of Schedule 1.


Schedule 1
Specified jurisdictions, overseas legislation, GAAP, and auditor requirements

cls 5, 7(a)

Specified jurisdiction Overseas legislation Overseas GAAP Auditor report requirements
France The French Commercial Code International accounting standards (within the meaning of Regulation (EC) No 1606/2002) The French Commercial Code
Germany The German Commercial Code (Handelsgesetzbuch) and the German Securities Trading Act (Wertpapierhandelsgesetz) Generally accepted accounting principles in Germany or international accounting standards (within the meaning of Regulation (EC) No 1606/2002) Section 37v of the Securities Trading Act (Wertpapierhandelsgesetz)
Republic of Ireland The Companies (Miscellaneous Provisions) Act 2009 (Ireland) and the Companies Acts 1963–2009 (Ireland) Generally accepted accounting practice in the United States of America or international accounting standards (within the meaning of Regulation (EC) No 1606/2002) The Companies Acts 1963–2009 (Ireland) or Title 17, Part 210 of the Code of Federal Regulations (US)
The Netherlands Part 9 of Book 2 of the Civil Code of the Netherlands International accounting standards (within the meaning of Regulation (EC) No 1606/2002) Article 393 of Part 9 of Book 2 of the Civil Code of the Netherlands
United States of America The Securities Exchange Act of 1934 (US) and the Code of Federal Regulations (US) Generally accepted accounting practice in the United States of America Title 17, Part 210 of the Code of Federal Regulations (US)
United Kingdom The Companies Act 1985 (UK) and the Companies Act 2006 (UK) Generally accepted accounting principles in the United Kingdom or international accounting standards (within the meaning of Regulation (EC) No 1606/2002) Section 235 of the Companies Act 1985 (UK) and section 495 of the Companies Act 2006 (UK)
  • Schedule 1: amended, on 22 April 2011, by clause 4 of the Financial Reporting Act (Overseas Issuers) Exemption Amendment Notice 2011 (SR 2011/106).

  • Schedule 1: amended, on 29 October 2010, by clause 4 of the Financial Reporting Act (Overseas Issuers) Exemption Amendment Notice (No 3) 2010 (SR 2010/386).

  • Schedule 1: amended, on 20 August 2010, by clause 4 of the Financial Reporting Act (Overseas Issuers) Exemption Amendment Notice (No 2) 2010 (SR 2010/248).

  • Schedule 1: amended, on 18 June 2010, by clause 5 of the Financial Reporting Act (Overseas Issuers) Exemption Amendment Notice 2010 (SR 2010/163).

Schedule 2
Qualifying Securities Act 1978 exemption notices

cl 5

Qualifying Securities Act 1978 exemption notices Country of incorporation of overseas issuer (if relevant)
Securities Act (General Electric Company) Exemption Notice 2009 United States of America
The Securities Act (Overseas Employee Share Purchase Schemes) Exemption Notice 2002  
The Securities Act (Overseas Listed Issuers) Exemption Notice 2002  
The Securities Act (PA Consulting Group Limited) Exemption Notice 2008 United Kingdom
The Securities Act (PA Consulting Group Limited) Exemption Notice 2012 United Kingdom
The Securities Act (PA Consulting Group Limited Restructure) Exemption Notice 2012 United Kingdom
  • Schedule 2: amended, on 14 December 2012, by clause 4 of the Financial Reporting Act (Overseas Issuers) Exemption Amendment Notice 2012 (SR 2012/362).

  • Schedule 2: amended, on 24 July 2009, by clause 4 of the Financial Reporting Act (Overseas Issuers) Exemption Amendment Notice 2009 (SR 2009/202).

Dated at Wellington this 20th day of January 2009.

The Common Seal of the Securities Commission was affixed in the presence of:

[Seal]

K Dunstan,
Member.


Statement of reasons

Note: The following statement of reasons should be read in conjunction with the statement(s) of reasons appended to the:

This notice, which comes into force on the day after the date of its notification in the Gazette and expires on 30 September 2012, exempts the directors of certain issuers incorporated in the United States of America and the United Kingdom from various provisions of the Financial Reporting Act 1993.

The notice is substantially similar to the Financial Reporting Act (Overseas Issuers—United States of America) Exemption Notice 2007, but is expanded so that it also applies to UK issuers.

The Securities Commission considers it appropriate to grant the exemptions for the reasons that—

  • the effect of the exemptions is to allow issuers incorporated in the UK and the US that offer securities in New Zealand under the Securities Act (Overseas Employee Share Purchase Schemes) Exemption Notice 2002 or the Securities Act (Overseas Listed Issuers) Exemption Notice 2002 (together referred to as the SA exemption notices) to provide financial statements that they are required to prepare under financial reporting requirements of their respective jurisdictions. The principal differences in financial statements provided by issuers relying on the exemptions are that—

    • the directors of the issuer will prepare and register consolidated financial statements only and not stand-alone parent company financial statements:

    • the consolidated financial statements will comply with generally accepted accounting practice or principles in the UK and US (as applicable to the issuer) rather than generally accepted accounting practice in New Zealand:

    • the consolidated financial statements will be audited in accordance with the requirements set out in UK legislation or US legislation (as applicable to the issuer) and the auditor’s report will provide the information required by UK legislation or US legislation (as applicable to the issuer) instead of the Financial Reporting Act 1993:

  • there will not be any significant detriment to subscribers as the exemptions only apply to subscribers for offers of securities made in reliance on the SA exemption notices. These notices allow overseas issuers to provide offer documents that comply with overseas requirements (including in relation to financial statements). Therefore the financial disclosure provided under the exemptions is consistent with the initial offer documents provided to the subscribers:

  • the Commission has previously, at the time of granting the Financial Reporting Act (Overseas Companies) Exemption Notice 2007 and the Financial Reporting Act (Overseas Issuers—United States of America) Exemption Notice 2007, had regard to the financial reporting and audit requirements that must be complied with by UK and US issuers and considered that the financial reporting obligations under the laws of the UK and the US would provide New Zealand securities holders with adequate financial information about companies in which they invest and that the UK and the US have adequate regulatory and enforcement mechanisms in this regard. The exemptions are limited to issuers that must comply with the financial and audit requirements set out in the Companies Act 1985 (UK) and the Companies Act 2006 (UK) or the Securities Exchange Act of 1934 (US) and the Code of Federal Regulations (US), as the case may be:

  • the exemptions address the particular difficulties experienced by UK and US issuers that issue securities in New Zealand. The exemptions are not broader than what is reasonably necessary to address these difficulties and still require that group financial statements be filed in New Zealand:

  • the exemptions also allow PA Consulting Group Limited, when offering securities to its New Zealand employees in reliance on the Securities Act (PA Consulting Group Limited) Exemption Notice 2008, to prepare and file its UK GAAP compliant financial statements in New Zealand without the need to prepare separate parent company and group financial statements, for equivalent reasons to those outlined above.

The Securities Commission considers it is appropriate to revoke the Financial Reporting Act (Overseas Issuers—United States of America) Exemption Notice 2007 because the notice would be redundant upon the grant of the class exemption for US and UK incorporated issuers.

Note: The preceding statement of reasons should be read in conjunction with the statement(s) of reasons appended to the:


Issued under the authority of the Acts and Regulations Publication Act 1989.

Date of notification in Gazette: 22 January 2009.


Contents

  • 1General

  • 2Status of reprints

  • 3How reprints are prepared

  • 4Changes made under section 17C of the Acts and Regulations Publication Act 1989

  • 5List of amendments incorporated in this reprint (most recent first)


Notes
1 General
  • This is a reprint of the Financial Reporting Act (Overseas Issuers) Exemption Notice 2009. The reprint incorporates all the amendments to the notice as at 29 March 2013, as specified in the list of amendments at the end of these notes.

    Relevant provisions of any amending enactments that contain transitional, savings, or application provisions that cannot be compiled in the reprint are also included, after the principal enactment, in chronological order. For more information, see http://www.pco.parliament.govt.nz/reprints/ .

2 Status of reprints
  • Under section 16D of the Acts and Regulations Publication Act 1989, reprints are presumed to correctly state, as at the date of the reprint, the law enacted by the principal enactment and by the amendments to that enactment. This presumption applies even though editorial changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in the reprint.

    This presumption may be rebutted by producing the official volumes of statutes or statutory regulations in which the principal enactment and its amendments are contained.

3 How reprints are prepared
  • A number of editorial conventions are followed in the preparation of reprints. For example, the enacting words are not included in Acts, and provisions that are repealed or revoked are omitted. For a detailed list of the editorial conventions, see http://www.pco.parliament.govt.nz/editorial-conventions/ or Part 8 of the Tables of New Zealand Acts and Ordinances and Statutory Regulations and Deemed Regulations in Force.

4 Changes made under section 17C of the Acts and Regulations Publication Act 1989
  • Section 17C of the Acts and Regulations Publication Act 1989 authorises the making of editorial changes in a reprint as set out in sections 17D and 17E of that Act so that, to the extent permitted, the format and style of the reprinted enactment is consistent with current legislative drafting practice. Changes that would alter the effect of the legislation are not permitted.

    A new format of legislation was introduced on 1 January 2000. Changes to legislative drafting style have also been made since 1997, and are ongoing. To the extent permitted by section 17C of the Acts and Regulations Publication Act 1989, all legislation reprinted after 1 January 2000 is in the new format for legislation and reflects current drafting practice at the time of the reprint.

    In outline, the editorial changes made in reprints under the authority of section 17C of the Acts and Regulations Publication Act 1989 are set out below, and they have been applied, where relevant, in the preparation of this reprint:

    • omission of unnecessary referential words (such as of this section and of this Act)

    • typeface and type size (Times Roman, generally in 11.5 point)

    • layout of provisions, including:

      • indentation

      • position of section headings (eg, the number and heading now appear above the section)

    • format of definitions (eg, the defined term now appears in bold type, without quotation marks)

    • format of dates (eg, a date formerly expressed as the 1st day of January 1999 is now expressed as 1 January 1999)

    • position of the date of assent (it now appears on the front page of each Act)

    • punctuation (eg, colons are not used after definitions)

    • Parts numbered with roman numerals are replaced with arabic numerals, and all cross-references are changed accordingly

    • case and appearance of letters and words, including:

      • format of headings (eg, headings where each word formerly appeared with an initial capital letter followed by small capital letters are amended so that the heading appears in bold, with only the first word (and any proper nouns) appearing with an initial capital letter)

      • small capital letters in section and subsection references are now capital letters

    • schedules are renumbered (eg, Schedule 1 replaces First Schedule), and all cross-references are changed accordingly

    • running heads (the information that appears at the top of each page)

    • format of two-column schedules of consequential amendments, and schedules of repeals (eg, they are rearranged into alphabetical order, rather than chronological).