Dated at Wellington this 25th day of March 2013.
Head of Primary Regulatory Operations.
Statement of reasons
This notice comes into force on the day after the date of its notification in the Gazette and is revoked on 28 February 2018. This notice revokes and replaces the Financial Reporting Act (Overseas Issuers) Exemption Notice 2009.
This notice applies to directors of certain issuers incorporated in Canada, France, Germany, Ireland, The Netherlands, Singapore, Switzerland, the United Kingdom, and the United States of America.
The context is that issuers may use the notice where the issuer has relied, or is relying, on certain Securities Act 1978 exemptions listed in Schedule 2.
This notice exempts directors of those issuers from the following provisions of the Financial Reporting Act 1993 (the Act):
These exemptions are granted on the conditions that the issuer prepares the financial statements that they are required to prepare, and files them, under the financial reporting requirements of their respective home jurisdictions.
The principal changes from the Financial Reporting Act (Overseas Issuers) Exemption Notice 2009 are as follows:
Canada, Singapore, and Switzerland are added as specified jurisdictions:
this notice clarifies that the exemptions apply only if the issuer is regulated as an issuer for the purposes of financial reporting requirements of the jurisdiction in which it is incorporated:
the exemptions extend to financial statements prepared in respect of any New Zealand business of the issuer or its group, subject to conditions that require compliance either with the law of its home jurisdiction or New Zealand law in respect of branch financial statements:
issuers may continue to rely on the exemptions after ceasing to offer securities in New Zealand if their past offers meet the notice's requirements:
the list of Securities Act 1978 exemptions in Schedule 2 is expanded:
a new condition is added that the overseas financial statements must be in English or accompanied by an English translation.
The Financial Markets Authority (FMA), after satisfying itself as to the matters set out in section 35A(2) of the Act, considers it appropriate to grant the exemptions because—
there will not be any significant detriment to subscribers as the exemptions only apply to issuers who have made offers of securities in reliance on the Securities Act 1978 exemptions, and who have not made any other public offers in New Zealand. These Securities Act 1978 exemptions recognise that the offers made under those exemptions are either incidental to or are an extension of an offer made overseas. They either allow overseas issuers to provide offer documents that comply with overseas requirements (including in relation to financial statements) or provide for reduced disclosure taking into account the nature of the offer and the fact that the investors already hold securities in that company or have some other relationship with the company. Therefore, the financial disclosure provided under the exemptions is consistent with the initial offer documents provided to the investors or the financial information which would have been available when the investors originally invested in that issuer:
FMA has had regard to the financial reporting and audit requirements that must be complied with by issuers in the jurisdictions to which this notice applies and considers they provide New Zealand securities holders with adequate financial information about companies in which they invest and that those jurisdictions have adequate regulatory and enforcement mechanisms:
the exemptions address the particular difficulties experienced by certain classes of issuers who extend offers of securities to a limited section of the public 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.
Date of notification in Gazette: 28 March 2013.
This notice is administered by the Financial Markets Authority.