“authorised futures market has the meaning set out in section 37(1)

“business rules means the rules of a registered exchange for a registered market that relate to the matters set out in section 36H(1)(b), in the case of a securities market, or section 36H(2), in the case of a futures market

“change, in relation to the market rules for a registered market, has the meaning set out in section 36J(2)

“exchange participant means any of the following:

• “(a) a public issuer:

• “(b) a person authorised by a registered exchange to undertake trading activities on, or otherwise participate in, a registered market

“issuer has the meaning set out in section 2(1) of the Securities Act 1978

“listing rules means the rules of a registered exchange for a registered market that relate to the matters set out in section 36H(1)(a)

“market rules means the following rules for a registered market:

• “(a) in relation to a securities market, the business rules and listing rules of a registered exchange for the securities market; and

• “(b) in relation to a futures market, the business rules of a registered exchange for the futures market

“registered exchange means,— means any of the following:

• “(a) a person that holds a market registration under section 36F:

• “(b) a subsidiary of a person to which paragraph (a) applies (if the subsidiary operates the registered market):

• “(c) a person that is treated as if it were a registered exchange under section 36ZY(4)

“registered market means— means any of the following:

• “(a) a securities or futures market that is registered under section 36F:

• “(b) a securities or futures market that is treated as if it were a registered market under section 36ZY(4)

“unsolicited offer has the meaning set out in section 48DA(1)

“unsolicited offer obligation means any provision of any regulations made under section 48DB that is stated by those regulations to be an unsolicited offer obligation”.

• “(b) a person to whom paragraph (a) previously applied, in respect of any action or event or circumstance to which this Act applied at that time”.

• “(5) For the purposes of this Act and every other enactment, unless the context otherwise requires, a person is a party to a listing agreement with a registered exchange if the person is party to that listing agreement in respect of a registered market of the registered exchange (or, in the case of a registered exchange, if the exchange is listed on its own registered market, whether or not under a listing agreement).”

• “(a) promoting fair, orderly, and transparent listed markets:

• “(b) providing an appropriate level of protection for investors:”.

• “(f) recognising the importance to the New Zealand listed markets of attracting and retaining exchange participants and maintaining international competitiveness:”.

• “(2) Subsection (1)(a) and (b)(i) do not apply to—

  • “(a) a registered exchange; or

  • “(b) a subsidiary of a registered exchange.

• “(2A) Subsection (1)(b)(ii) does not apply to—

  • “(a) a registered exchange in respect of its registered market; or

  • “(b) a subsidiary of a registered exchange in respect of the exchange's registered market.”

• “(2A) The Minister must, in considering whether to grant an exemption, have regard to—

  • “(a) the nature of the relevant securities or futures market, or class of securities or futures markets; and

  • “(b) the likely effect of the proposed exemption on the integrity or effectiveness of securities or futures markets in New Zealand; and

  • “(c) the likely effect of the proposed exemption on the confidence of investors in securities or futures markets in New Zealand; and

  • “(d) whether there are public benefits from the securities or futures market, or class of securities or futures markets, being operated under the proposed exemption; and

  • “(e) any other matters he or she considers relevant.”

“How to obtain registration of market

“36F Application for market registration

• “(1) A body corporate may apply for a market registration for—

  • “(a) 1 or more securities markets; or

  • “(b) 1 or more securities markets and 1 or more futures markets; or

  • “(c) 1 or more futures markets, if the body corporate already holds a market registration for a securities market.

  “(2) The applicant for a market registration must deliver to the FMA—

  • “(a) an application for registration in the form, and containing the information, required by the FMA, but which must—

    • “(i) include a copy of any proposed new market rules, or proposed changes to existing market rules, for the relevant market (the proposed market rules); and

    • “(ii) identify any existing market rules that it proposes to apply to the relevant market; and

  • “(b) any fees required to be paid to the FMA by regulations made under section 49D.

  “(3) The FMA must grant the applicant a market registration, by written notice to the applicant, after—

  • “(a) receipt of the documents referred to in subsection (2); and

  • “(b) receipt of any fees, charges, and costs required to be paid to the FMA by regulations made under section 49D; and

  • “(c) approval, under sections 36K and 36L, of the proposed market rules provided under subsection (2)(a)(i) for the market.

“36FAA Notification of market registration

• “(1) A notice of market registration under section 36F(3)—

  • “(a) must identify the market registered and the person that holds the market registration under that section (the registered exchange); and

  • “(b) must identify the proposed market rules approved for the market (if any), and must identify the existing market rules that apply to the market (if any), but need not incorporate them; and

  • “(c) is a regulation for the purposes of the Regulations (Disallowance) Act 1989 (but not for the purposes of the Acts and Regulations Publication Act 1989); and

  • “(d) must, as soon as practicable after it is given, be—

    • “(i) published on an Internet site maintained by or on behalf of the FMA; and

    • “(ii) notified in the Gazette.

  “(2) A notice of market registration may relate to more than 1 market.

“Restrictions on registered exchanges

“36FAB No operation by registered exchange of unregistered market

• “(1) No registered exchange may operate in New Zealand a securities or futures market for which it does not hold a market registration under this Part or an authorisation under Part 3 (but see section 36E, under which a market may be exempted from this section).

  “(2) Every person who acts in contravention of subsection (1) commits an offence (see section 43B 43B(2) for the maximum penalty of a $10,000 fine per day).”

“Subpart 1A—Market rules

“36FA Purpose and criteria applying under this subpart

• “(1) The purpose of this subpart is to provide for the approval of the market rules, and changes to the market rules, applying to apply to registered markets under contract between a registered exchange and the exchange participants.

  “(2) The following criteria are relevant to the implementation of that purpose (without limiting other relevant criteria):

  • “(a) promoting fair, orderly, and transparent securities and futures markets:

  • “(b) providing an appropriate level of protection for investors:

  • “(c) recognising the importance to securities and futures markets of attracting and retaining exchange participants and maintaining international competitiveness:

  • “(ca) encouraging growth and innovation in New Zealand's securities and futures markets:

  • “(d) recognising the importance of maintaining international best practices in New Zealand's securities and futures markets:

  • “(e) recognising New Zealand's obligations under any international convention, international agreement, or international arrangement to which the Government of New Zealand is a party.

  “(3) The FMA must determine the weight to be given to each criterion in relation to the rules for any particular market, having regard to the nature of that market.

“Key requirements

“36G Registered markets must be operated under market rules that comply with this subpart

• “(1) A registered exchange must operate each of its registered markets in accordance with market rules for that market that—

  • “(a) include the required matters set out in section 36H; and

  • “(b) have effect under section 36I.

  “(2) A registered exchange that acts in contravention of subsection (1) commits an offence (see section 43B(2) for the maximum penalty of a $10,000 fine per day).

  “Compare: 1988 No 234 s 36G

“36H Required matters for market rules

• “(1) Market rules for a securities market must—

  • “(a) include rules (listing rules) that—

    • “(i) relate to the approval of persons for the purpose of enabling securities issued by those persons to be traded on the securities market; and

    • “(ii) require those persons to be party to a listing agreement with the registered exchange and relate to the entry into, and revocation of, those listing agreements; and

    • “(iii) relate to the governance of those persons; and

    • “(iv) relate to the conduct or activities of those persons in relation to that market or to securities traded on that market; and

    • “(v) relate to the monitoring and enforcement of those rules; and

  • “(b) include rules (business rules) that—

    • “(i) relate to the authorisation of persons to undertake trading activities on, or otherwise participate in, the securities market; and

    • “(ii) relate to the conduct or activities of those persons in relation to the securities market; and

    • “(iii) govern the conduct of business on the securities market; and

    • “(iv) relate to the monitoring and enforcement of those rules.

  “(2) Market rules for a futures market must include rules (business rules) that—

  • “(a) relate to the authorisation of persons to undertake trading activities on, or otherwise participate in, the futures market; and

  • “(b) relate to the conduct or activities of those persons in relation to the futures market; and

  • “(c) govern the conduct of business on the futures market; and

  • “(d) relate to the monitoring and enforcement of those rules.

  “Compare: 1988 No 234 s 36H

“36I When market rules have effect

• A market rule, or part of a market rule, for a registered market has no effect, either in contract or for the purposes of section 36G, until it has been approved by the FMA under section 36L.

“Process for approving proposed market rules and changes to market rules

“36IA Application of process for approving proposed market rules and changes

• Sections 36K and 36L apply to proposed market rules provided to the FMA by an applicant under section 36F and proposed changes to market rules provided to the FMA by a registered exchange under section 36J.

“36J Registered exchange must provide proposed changes to FMA

• “(1) A registered exchange must provide any proposed change to its market rules for a registered market to the FMA before making that change.

  “(2) A change, in relation to market rules the market rules for a registered market for the purposes of this subpart, includes a new market rule and an amendment to, and a revocation or cancellation of, an existing market rule.

  “Compare: 1988 No 234 s 36J

“36K Approval process for proposed market rules and changes

• “(1) The FMA must, within the approval period, by written notice to the applicant for registration or the registered exchange,—

  • “(a) approve the proposed market rules or change provided under section 36F or section 36J (see section 36L); or

  • “(b) extend the approval period; or

  • “(c) decline to approve the proposed market rules or change.

  “(2) The approval period is 40 working days, or (if extended under subsection (1)(b)) 60 working days, after the FMA receives the proposed market rules or change.

  “(3) The revision by the applicant or registered exchange of the proposed market rules or change during the approval period in response to comments by the FMA, and the resubmittal of the revised proposed market rules or change, does not result in the commencement of a new approval period under this section.

  “(4) A notice under this section—

  • “(a) must identify the market rules, change, or changes to which it relates, but need not incorporate them; and

  • “(b) is a regulation for the purposes of the Regulations (Disallowance) Act 1989 (but not for the purposes of the Acts and Regulations Publication Act 1989); and

  • “(c) must, as soon as practicable after it is given, be—

    • “(i) published on an Internet site maintained by or on behalf of the FMA; and

    • “(ii) notified in the Gazette.

  “(4A) A separate notice under this section of the decision to approve rules is not needed if there is a notice of market registration under section 36FAA that notifies approval of these rules.

  “(5) The FMA's reasons for a decision under subsection (1)(b) or (c) must be published together with the decision.

“36L Approval of market rules proposed market rules and changes

• “(1) The FMA must approve the proposed market rules or a change provided to it under this Part unless the FMA is satisfied that—

  • “(a) it is not in the public interest to do so after having had regard to—

    • “(i) the consistency of the rules or change with the obligations under section 36Y; and

    • “(ii) the criteria stated in section 36FA and any other matters that it considers relevant; or

  • “(b) (if the rules include listing rules or the change affects listing rules) the listing rules, or the listing rules as changed, for the market will not achieve the purpose of subpart 1 of Part 2, after having regard to—

    • “(i) that purpose; and

    • “(ii) the criteria stated in section 19A; and

    • “(iii) any other matters that the FMA considers relevant.

  “(2) The FMA must, in considering whether to approve proposed market rules provided under section 36F, take into account any existing market rules that the applicant proposes to also apply to the relevant market.

“Power to request changes to market rules

“36M Power for FMA to request changes to market rules on certain matters

• “(1) The FMA may, if it considers it necessary or desirable to promote any of the criteria set out in section 36FA or the meeting of any of the obligations set out in section 36Y, request a registered exchange to prepare a draft market rule or draft change draft change to the market rules for any of its registered markets on a matter specified in a written notice to the registered exchange.

  “(1B) The FMA may make a request under subsection (1) only—

  • “(a) after carrying out a review under section 36YB(1) or (2); or

  • “(b) if it believes on reasonable grounds that it is urgent to do so at any other time.

  “(2) The registered exchange must, as soon as practicable but, in any case, before the expiry of 60 working days after receiving the written notice (or any further time allowed by the FMA), do either or both of the following things:

  • “(a) provide a proposed rule or change to the FMA under section 36J that addresses the requested matter:

  • “(b) provide the FMA with a written report that—

    • “(i) identifies any requested matter or matters that have not been addressed by a proposed rule or change; and

    • “(ii) explains why the registered exchange has not done so; and

    • “(iii) suggests alternative ways (if any) by which the matter or matters are being or may be dealt with; and

    • “(iv) sets out if, when, and how the registered exchange proposes to provide for the matter or matters (if at all).

  “(3) This section does not allow the FMA to request a draft market rule or change on a matter that is not within the matters set out in section 36H.

“Miscellaneous provisions on market rules

“36N Market rules must be available for public inspection

• “(1) A registered exchange must ensure that a copy of the market rules for each of its registered markets are—

  • “(a) available for public inspection, free of charge and during normal office hours, at the head office of that registered exchange; and

  • “(b) published on an Internet site maintained by, or on behalf of, the registered exchange at all reasonable times.

  “(2) A registered exchange that fails to comply with subsection (1) commits an offence (see section 43B for the maximum penalty of a $5,000 fine).

  “Compare: 1988 No 234 s 36Q

“36O Application of Acts relating to regulations to contractual market rules

• To avoid doubt, market rules are not regulations for the purposes of the Regulations (Disallowance) Act 1989 and the Acts and Regulations Publication Act 1989 or for any other purpose.

  “Compare: 1988 No 234 s 36R”

“Subpart 1B—Control limits for registered exchanges”.

“Subpart 2—Obligations and oversight in respect of registered markets”.

“General obligations in respect of registered markets

“36Y General obligations in respect of registered markets

• A registered exchange must,—

  • “(a) to the extent that it is reasonably practicable, do all things necessary to ensure that each of its registered markets is a fair, orderly, and transparent market; and

  • “(b) have adequate arrangements for operating its registered markets, including arrangements—

    • “(i) for handling conflicts between the commercial interests of the registered exchange and the need for the registered exchange to ensure that the markets operate in the way referred to in paragraph (a); and

    • “(ii) for monitoring the conduct of exchange participants on or in relation to the markets; and

    • “(iii) for enforcing compliance with the relevant market rules; and

    • “(iv) that ensure there is a sufficiently independent adjudicative body to adjudicate on contraventions of market rules that are referred to it; and

  • “(c) have sufficient resources (including financial, technological, and human resources) to operate its registered markets properly.

“36YA Registered exchange must give annual report to FMA

• “(1) A registered exchange must, within 3 months after the end of its financial year, give a report to the FMA and the Minister on the extent to which it has complied with its obligations under section 36Y in the preceding financial year.

  “(2) The annual report for a financial year must contain, or be accompanied by, the information (if any) in relation to the registered exchange's performance against its obligations under section 36Y, specified by the FMA before the commencement of the relevant financial year.

  “(3) The FMA and the registered exchange may, on the terms and conditions that they think fit, agree that the first annual report and the first review under section 36YB relate to a period prior to the commencement of this section.

“36YB FMA may carry out general obligations review

• “(1) The FMA may, at any time, carry out a review of how well a registered exchange is meeting any or all of its obligations under section 36Y.

  “(2) The FMA must carry out a review of how well a registered exchange is meeting all of its obligations under section 36Y at least once in respect of each financial year of a registered exchange of the registered exchange.

  “(3) The FMA—

  • “(a) may, in carrying out the review, take into account the most recent annual report and other information provided under section 36YA and any other information it considers appropriate; and

  • “(b) must, after carrying out the review, provide a draft written report on its review to the registered exchange and take into account any submissions made by the exchange within the reasonable period for submissions specified by the FMA.

  “(3A) The FMA must not carry out a review of a designated settlement system (within the meaning of section 156M(1) of the Reserve Bank of New Zealand Act 1989) of a registered exchange under this section (but nothing in this subsection prevents a review under that Act being carried on in conjunction with a review under this section).

  “(4) The first review of a financial year under subsection (2) may relate to the period covered by the first annual report provided under section 36YA.

“36YC FMA must make written report on general obligations review

• “(1) The FMA must give a written report on a review under section 36YB to the Minister and the registered exchange—

  • “(a) as soon as practicable after carrying out the review; and

  • “(b) in any case, within 3 months after the exchange has provided an annual report to the FMA under section 36YA.

  “(2) The FMA must also publish the written report on the review on an Internet site maintained by or on behalf of the FMA.

  “(3) However, the FMA may, in publishing the written report of its review, omit from the published report any information for which it considers there would be a good reason for withholding under the Official Information Act 1982 if a request for that information were made under that Act.

“36YD FMA may require registered exchange to submit action plan on failure to meet general obligations

• “(1) If the FMA considers that the registered exchange has failed or is failing to meet any 1 or more of its obligations under section 36Y after carrying out a review under section 36YB(1) or (2), it may, by written notice, require the exchange to submit an action plan to the FMA.

  “(2) The notice must—

  • “(a) set out the details of the failure; and

  • “(b) specify the date by which the action plan must be submitted to the FMA.

  “(3) The registered exchange must, as soon as practicable but in any case before the date specified by the FMA, do either or both of the following things:

  • “(a) provide an action plan that addresses the failure and specifies—

    • “(i) the actions that the registered exchange proposes to take to remedy the failure or avoid any further failure; and

    • “(ii) the timetable for taking those actions:

  • “(b) provide the FMA with a written report that—

    • “(i) identifies any matter that has not been addressed by an action plan; and

    • “(ii) explains why the registered exchange does not consider that matter to be a failure or gives any other reasons why the registered exchange has not provided an action plan on the matter.

“36YE Approval, amendment, or rejection of action plan

• “(1) If a registered exchange submits an action plan, the FMA may—

  • “(a) approve the action plan; or

  • “(b) require the registered exchange to amend the action plan and resubmit it to the FMA by a specified date for approval or rejection; or

  • “(c) reject the action plan.

  “(2) If the FMA requires the registered exchange to amend an action plan provided to the FMA, the registered exchange must do either or both of the following things:

  • “(a) provide an amended action plan that addresses the matter required to be amended:

  • “(b) provide the FMA with a written report that—

    • “(i) identifies any matter that has not been addressed by an amendment to the action plan first provided; and

    • “(ii) explains why the registered exchange does not consider that the matter needs amending or gives any other reasons why the registered exchange has not provided an amendment addressing the matter.

  “(3) If the FMA approves the action plan (whether as first provided or after amendment), the registered exchange must comply with the action plan.

  “(4) An action plan that has been approved by the FMA may be varied at any time by agreement between the registered exchange and the FMA.

“36YF Minister may give general obligation direction to registered exchange

• “(1) The Minister may, on the recommendation of the FMA, give a written direction to a registered exchange if—

  • “(a) the Minister considers that the registered exchange has failed or is failing to meet any 1 or more of its obligations under section 36Y; and

  • “(b) any of the following has occurred:

    • “(i) the registered exchange has not provided an action plan when required under section 36YD; or

    • “(ii) the registered exchange has not provided an amended action plan when required under section 36YE; or

    • “(iii) the FMA has rejected a registered exchange's action plan; or

    • “(iv) the registered exchange has not complied with an approved action plan.

  “(2) The direction may specify—

  • “(a) the actions that the registered exchange must take to remedy any failure or avoid any further failure to meet any 1 or more of its obligations under section 36Y; and

  • “(b) the timetable for taking those actions.

  “(3) The registered exchange must comply with the direction.”

• “(2) The FMA must notify the registered exchange of its decision to take, or not to take, any action in relation to a notification under subsection (1)(b)(ii).”

“Real-time surveillance information

“36ZFA Registered exchange must ensure FMA has access to real-time trading and other information

• “(1) A registered exchange must, if requested by the FMA, give to the FMA the information that is necessary to enable the FMA to carry out real-time surveillance of the operation of the exchange's registered markets.

  “(2) The FMA must pay all reasonable costs of the registered exchange in providing the information under this section.”

• “(1) A registered exchange commits an offence if it intentionally or recklessly—

  • “(a) fails to give a notice, provide information, give assistance, or provide access as required under this subpart; or

  • “(b) contravenes section 36ZM; or

  • “(c) fails to comply with a direction under section 36YF or section 36ZO.”

“Subpart 3—Overseas exchanges

“36ZY Overseas exchanges

• “(1) The FMA may (on the terms and conditions it thinks fit), by notice in the Gazette, authorise a body corporate to hold a market registration for—

  • “(a) 1 or more securities markets; or

  • “(b) 1 or more securities markets and 1 or more futures markets; or

  • “(c) 1 or more futures markets, if the body corporate already holds a market registration for a securities market.

  “(2) The notice must state the terms and conditions that apply to the body corporate under the authorisation (and may, in those terms (without limitation), add to, modify, or disapply any provisions of subparts 1A and 2).

  “(2) The notice must—

  • “(a) identify the market registered and the person that is authorised to hold the market registration under this section; and

  • “(b) state the terms and conditions that apply to the person under the authorisation (and may, in those terms (without limitation), add to, modify, or disapply any of the provisions of subparts 1A and 2).

  “(3) The FMA must not grant the authorisation unless it is satisfied that—

  • “(a) the body corporate is authorised to operate the relevant market in another jurisdiction; and

  • “(b) the operation of the market by the body corporate will be subject to requirements and supervision under the proposed terms or conditions of the authorisation or the law and regulatory requirements of its home jurisdiction, or both; and

  • “(c) those requirements and that supervision are likely to have at least equivalent outcomes, in terms of the degree of integrity and effectiveness of the market and the confidence of investors in the market, to the likely outcomes for that market if the market were registered under section 36F.

  “(4) This Act (other than subpart 1B of this Part) and every other enactment, applies to a body corporate authorised to operate a market under this section as if the relevant market were a registered market and the body corporate were a registered exchange holding that market registration under section 36F (except as specified under subsection (2)).

  “Compare: 1988 No 234 s 36X

“36ZYA Revocation or amendment of authorisation

• “(1) The FMA may, by notice in the Gazette, vary or revoke an authorisation granted under section 36ZY or vary, revoke, or suspend any term or condition of the authorisation.

  “(2) However, the FMA must not do so unless—

  • “(a) it has consulted the body corporate concerned; and

  • “(b) it is satisfied that it is in the public interest to do so.

“36ZYB Offence for breach of terms or conditions of authorisation

• Every person who acts in contravention of a term or condition of an authorisation granted under section 36ZY commits an offence (see section 43B for the maximum penalty of a $10,000 fine per day).

  “Compare: 1988 No 234 s 36Z”

“authorised futures exchange means—means any of the following:

• “(a) a body corporate that is declared by the FMA under subsection (8) to be an authorised futures exchange for the purposes of this Part:

• “(a) a person that is authorised to conduct a futures market under subsection (8):

• “(b) a registered exchange that holds a market registration under Part 2B in respect of its futures market:

• “(c) a subsidiary of a person to which paragraph (a) or (b) applies (if the subsidiary conducts the market to which the authorisation or market registration relates)

“authorised futures market means a futures market to which an authorisation under subsection (8) applies (but also includes a futures market that is registered under Part 2B)”.

• “(8AA) The notice must state the terms and conditions that apply to the body corporate under the authorisation under subsection (8) (including, without limitation, any terms and conditions relating to subsection (8AB)).

• “(8AA) A notice of an authorisation declaration under subsection (8) must—

  • “(a) identify the market to which the authorisation applies and the person that is authorised to conduct that market under this section; and

  • “(b) state the terms and conditions that apply to the person under the authorisation (and may, in those terms (without limitation), add to, modify, or disapply any of the provisions of subparts 1A and 2).

• “(8AB) The FMA must not grant the authorisation declaration under subsection (8) unless it is satisfied that—

  • “(a) the operation of the futures market by the body corporate will be subject to requirements and supervision under the proposed terms and conditions of the authorisation or the law and regulatory requirements of another jurisdiction (if the body corporate is authorised to conduct the market in another jurisdiction), or both; and

  • “(b) those requirements and that supervision are likely to have at least equivalent outcomes, in terms of the degree of integrity and effectiveness of the market and the confidence of investors in the market, to the likely outcomes for that market if it were registered under section 36F.”

• “(2) Subsection (1)(a) and (b)(i) do not apply to an authorised futures exchange.

• “(2) Subsection (1)(a) and (b)(i) do not apply to—

  • “(a) an authorised futures exchange; or

  • “(b) a subsidiary of an authorised futures exchange.

• “(2A) Subsection (1)(b)(ii) does not apply to—

  • “(a) an authorised futures exchange in respect of its authorised futures market; or

  • “(b) a subsidiary of an authorised futures exchange in respect of the exchange's authorised futures market.”

“37E No operation by authorised futures exchange of unauthorised futures market

• “(1) No authorised futures exchange may operate in New Zealand a futures market for which it does not have an authorisation under this Part or a market registration under Part 2B.

  “(2) Every person who acts in contravention of subsection (1) commits an offence (see section 43C for the maximum penalty of a $10,000 fine per day).”

“Unsolicited offer orders

“42EA When FMA may make unsolicited offer orders

• The FMA may make an unsolicited offer order against a person in accordance with this subpart if the FMA is satisfied that the person in accordance with this subpart if the FMA is satisfied that a person has acted, is acting, or intends to act in contravention of an unsolicited offer obligation or exemption.

“42EB Terms of unsolicited offer orders

• “(1) An unsolicited offer order may—

  • “(a) restrain a person from acquiring a security, a power to dispose of a security, or an interest in or right attaching to a security, as a result of the unsolicited offer:

  • “(b) restrain a person from taking any action that is, or that may reasonably be expected to constitute, a contravention of an unsolicited offer obligation or exemption:

  • “(c) restrain a person from taking specified steps to complete or perform a contract that has been, or may reasonably be expected to be, entered into in contravention of an unsolicited offer obligation or exemption:

  • “(d) direct a person not to register the transfer of a security:

  • “(e) direct a person to disclose information, make corrective statements, or take any other specified steps, at the person's own expense and in the manner and at the times specified in the order, for the purpose of securing compliance with an unsolicited offer obligation or exemption.

  “(2) An unsolicited offer order may be directed at any person.”

• “(e) an unsolicited offer order.”

• “(e) an unsolicited offer obligation or exemption.”

• “(d) an unsolicited offer obligation or exemption.”

• “(g) an unsolicited offer obligation or exemption.”

• “(3) In the case of a contravention of an unsolicited offer prohibition, subsection (2) does not apply.”

• “(c) section 36FAB(1) (no operation by registered exchange of unregistered market):

• “(d) section 36G(1) (registered exchange must operate markets under market rules that comply with subpart 1A of Part 2B):”.

• “(c) section 37E(1) (no operation by authorised futures exchange of unauthorised futures market).”

• “(2A) The court may give leave for the purposes of subsection (2)—

  • “(a) at the time of conviction or making of the order, or at any other time on the application of the relevant person:

  • “(b) in respect of a particular incorporated or unincorporated body, a class of incorporated or unincorporated bodies, or incorporated or unincorporated bodies generally.”

“47AA Protection for securities registers, etc, in connection with unsolicited offer obligations

• The person responsible for administering the register of securities for a public issuer or other issuer, or any other person specified in the regulations made under section 48DB, is not liable for any act done or omitted to be done by that person in compliance with—

  • “(a) an unsolicited offer order made by the FMA under section 42EA or an injunction or a civil remedy order made under section 42ZE in connection with a contravention of an unsolicited offer order; or

  • “(b) any provision of those regulations that is stated, by those regulations, to be a protected act or omission for the purposes of this section.

“47AA Protection from liability in connection with unsolicited offer obligations

• “(1) This section applies to any person who—

  • “(a) is stated by the regulations made under section 48DB to be a protected person for the purposes of this section; and

  • “(b) is not in contravention of an unsolicited offer obligation or exemption.

  “(2) A person to whom this section applies is not liable for any act done or omitted to be done by that person in good faith if the act or omission is—

  • “(a) required by an unsolicited offer order made by the FMA; or

  • “(b) required by an order made by the Court under Part 5 in connection with a contravention of an unsolicited offer obligation or exemption; or

  • “(c) stated by the regulations made under section 48DB to be a protected act or omission for the purposes of this section.

“Appeals

“47A Appeals against decisions of FMA on questions of law only

• A person that considers that a decision of the FMA under any of the following provisions is wrong in law may appeal against the decision to the High Court on a question of law only:

  • “(a) section 34 (which relates to requirements for persons to disclose relevant interests and powers to get relevant interests):

  • “(b) section 36ZO (which relates to directions by the FMA to registered exchanges):

  • “(c) subpart 1 of Part 5 (which relates to the FMA's enforcement powers).”

“48 Exemptions granted by FMA

• “(1) The FMA may, on the terms and conditions (if any) that it thinks fit,—

  • “(a) exempt any transaction, class of transactions, person, class of persons, or class of relevant interests, acquisitions, or disposals from compliance with any directors' and officers' disclosure obligation or obligations:

  • “(b) exempt any person or class of persons, any transaction or class of transactions, or any class of relevant interests, substantial holdings, or relevant events from compliance with any substantial holding disclosure obligation or obligations:

  • “(ba) exempt any offer, class of offers, security, class of securities, person, or class of persons from compliance with any unsolicited offer obligation or obligations:

  • “(c) exempt any person or class of persons from compliance with any requirement of the Futures Industry (Client Funds) Regulations 1990 or regulations that replace them.

  “(2) The FMA must not grant an exemption under this section unless it is satisfied that—

  • “(a) the extent of the exemption is not broader than is reasonably necessary to address the matters that gave rise to the exemption; and

  • “(b) in the case of subsection (1)(c), there are adequate alternative safeguards for preserving client money and client property.

“48A Status and publication of exemptions

• “(1) An exemption granted under section 48—

  • “(a) is a regulation for the purposes of the Regulations (Disallowance) Act 1989; and

  • “(b) must be presented to the House of Representatives under section 4 of that Act.

  “(2) A class exemption (but not any other exemption granted under section 48) is a regulation for the purposes of the Acts and Regulations Publication Act 1989.

  “(3) An exemption granted under section 48 that is not a class exemption must, as soon as practicable after it is granted, be—

  • “(a) published on an Internet site maintained by or on behalf of the FMA; and

  • “(b) notified in the Gazette; and

  • “(c) made available in printed form for purchase on request by members of the public.

  “(4) A notification in the Gazette for the purpose of subsection (3)(b) does not have to include the text of the exemption.

  “(5) The FMA's reasons for granting an exemption under section 48 (including why the exemption is appropriate) must be published together with the exemption.

  “(6) In this section, class exemption—

  • “(a) means an exemption of general application that applies to a class of persons, transactions, offers, securities, relevant interests, substantial holdings, relevant events, acquisitions, or disposals; but

  • “(b) does not include an exemption granted in relation to—

    • “(i) particular persons, transactions, offers, securities, relevant interests, substantial holdings, relevant events, acquisitions, or disposals; or

    • “(ii) persons, transactions, offers, securities, relevant interests, substantial holdings, relevant events, acquisitions, or disposals associated with or involving a particular entity.

“48B Variation or revocation of exemptions

• “(1) The FMA may vary or revoke an exemption granted under section 48.

  “(2) Section 48A and this section apply, with necessary modifications, in all respects to a variation or revocation under this section.”

“48DA Definitions relating to unsolicited offer regulations and related provisions

• “(1) For the purposes of this Act, an unsolicited offer means an offer to which all of the following apply:

  • “(a) the offer is to acquire a security, to acquire a power to dispose of a security, or to acquire another interest in or right attaching to a security, made by a person (A) to another person (B) (whether the acquisition is by A or an associated person of A):

  • “(b) it is unsolicited by B:

  • “(c) it is not made on a registered market:

  • “(d) it is within the class or classes of unsolicited offers to which the regulations apply:

  • “(e) it is not a takeover offer for securities under the takeovers code or an acquisition or a redemption by a company of its shares under the Companies Act 1993.

  “(2) For the purposes of this section, sections 47AA, 48DB, 48DC, and any regulations made under this section,—

  • “(a) associated person has the meaning set out in section 47(5)(ab) of the Financial Markets (Regulators and Kiwisaver) Act 2010:

  • “(b) an offer made by A includes an invitation or proposal for A (or an associated person of A) to make an offer:

  • “(c) regulations may define or clarify the meaning of unsolicited.

“48DB Regulations concerning unsolicited offer regulations

• “(1) The Governor-General may, on the recommendation of the Minister in accordance with subsection (3), make regulations setting out the rules applying to unsolicited offers for any or all of the purposes set out in subsection (2).

  “(2) The purposes are—

  • “(a) ensuring offerees are fully informed of—

    • “(i) the current market price of a listed security or, for a non-listed security, a fair estimate of the value of the security and the basis for making that estimate; and

    • “(ia) the material terms of the offer and their effect; and

    • “(ii) any warnings issued by the FMA (if ordered by the FMA to be contained in or to accompany offer documents); and

    • “(iii) their rights and remedies under the regulations; and:

  • “(b) ensuring that notice of an unsolicited offer to security holders is given to the relevant public issuer or issuer and the FMA; and:

  • “(c) ensuring that no agreement to transfer may bind offerees for a minimum period for the purpose of enabling offerees to consider, and reconsider, any decision to accept an offer:

  • “(d) requiring there to be minimum or maximum offer periods or both:

  • “(e) setting out any other rules applying to unsolicited offers.

  “(3) In formulating recommendations to make regulations under this section, the Minister must—

  • “(a) have regard to the objective of preventing unfair practices in the making of unsolicited offers; and

  • “(b) consult with the FMA.

“48DC Specific provisions for regulations concerning unsolicited offers

• The regulations made under section 48DB may, without limiting that section,—

  • “(a) define the class or classes of unsolicited offers and securities to which the regulations apply:

  • “(b) prescribe requirements in relation to unsolicited offers and the making of those offers, including requirements as to the form and content of those offers, variations of those offers, the updating and resending of offer documents or other corrective statements, and the implication of terms into the offer or any resulting agreement:

  • “(c) prescribe the information, statements, certificates, or other documents that must be supplied to offerees, the relevant public issuer or issuer, and the FMA:

  • “(ca) provide for any duties or functions of the FMA in connection with the rules applying to unsolicited offers:

  • “(cb) state which obligations are unsolicited offer obligations for the purposes of this Act:

  • “(d) provide for the exercise of a right to withdraw a notification of a decision to accept an unsolicited offer, a right to refuse to complete a transfer, or any other right or remedy of offerees, and any consequences and obligations that apply in those cases:

  • “(e) provide for any powers of, and requirements on, public issuers, issuers, or their agents in connection with transfers under an unsolicited offer and provide for protections from liability for those persons, persons administering a register of securities, and other persons for the purposes of section 47AA:

  • “(f) provide for the regulations to—

    • “(i) extend to, or in respect of, any conduct of an associated person of an offeror and any conduct that, in substance or effect, constitutes an unsolicited offer:

    • “(ii) prohibit contracting out of the regulations and include any other provision or provisions designed to prevent avoidance of the regulations (for example, prohibiting persons inviting others to make an offer to sell a security in circumstances in which, if the invitation were an offer to acquire the security, it would be an unsolicited offer to which the regulations applied):

  • “(g) provide for transitional matters.”