Replace regulation 33 (Certain transactions exempted from requirement for consent) with:
(1)
The requirement for consent does not apply to the extent that giving effect to a transaction has any of the following effects:
Transactions within group where 1 overseas person owns 95% of group
the acquisition by an overseas person (A) of property—
from another member of the same group, being a group that comprises A and persons that are directly or indirectly at least 95% owned by A, as part of a reconstruction or reorganisation of that group; or
from an overseas person that directly or indirectly owns at least 95% of A:
Other acquisitions if no increase in ultimate ownership and control by overseas persons
the acquisition by an overseas person (A) of property from another overseas person (B) where one of the following applies:
A owns 100% of the securities in B; or
B owns 100% of the securities in A that are owned by overseas persons; or
another person (C)—
owns 100% of the securities in A and in B that are owned by overseas persons; and
owns a proportion of the total securities in A that is no greater than the proportion of the total securities that C owns in B; or
2 or more persons own in the same proportions 100% of the securities in A and in B that are owned by overseas persons,—
where owns means directly or indirectly owns:
Company acquiring own shares
the acquisition by a company incorporated under the Companies Act 1993 of its own shares if—
the acquisition does not alter the proportions in which shares in the company are held by the shareholders or the relative voting rights of the shareholders; or
the shares are acquired under sections 112 to 112C or section 118 of that Act:
Amalgamations
the acquisition by an overseas person of securities or property in an amalgamated company under an amalgamation effected under the Companies Act 1993 if the overseas person has the same direct or indirect interest in or rights to the assets of that amalgamated company as that overseas person had in relation to those assets prior to the amalgamation.
(2)
If relying on an exemption in subclause (1)(a), (b), or (d), see also subpart 1 of Part 3.
This regulation applies if the relevant Minister or Ministers have previously granted consent to A (A’s consent) for the acquisition of securities or rights or interests in securities of B (the initial consented securities).
The requirement for consent does not apply to the extent that giving effect to a transaction has the effect of an acquisition by A of securities or rights or interests in securities of B (the further securities) if—
the further securities and the initial consented securities are securities of the same class; and
the further securities are acquired by A in 1 or more transactions, all of which are completed within 5 years of the date of A’s consent; and
either—
the total number of further securities is less than 5% of the total number of initial consented securities; or
on completion of each acquisition of further securities, both of the following are true:
the resulting percentage of securities of the same class that A holds does not exceed by more than 10 percentage points the percentage of those securities that were initial consented securities; and
A’s level of control in B is less than A’s control limit.
A has consent to acquire 60% of company B’s class Z shares. There are 100 class Z shares.
A wants to acquire 20 further shares. A cannot under this exemption.
However, A could use paragraph (c)(i) to acquire 3 further class Z shares (that is, 5% of 60).
Or, paragraph (c)(ii) may allow A to acquire up to 10 further shares (that is, 60% plus 10 percentage points). The exact amount that A could acquire under paragraph (c)(ii) depends on A’s level of control in B which, after the acquisition, would need to be less than A’s control limit.
(3)
For the purposes of this regulation,—
A’s control limit is defined in relation to the investment in B that A has consent for as follows:
if A has consent to acquire less than 25% of a class of B’s securities, A’s control limit is 25%:
if A has consent to acquire 25% or more, but less than 50%, of a class of B’s securities, A’s control limit is 50%:
if A has consent to acquire 50% or more, but less than 75%, of a class of B’s securities, A’s control limit is 75%:
if A has consent to acquire 75% or more, but less than 90%, of a class of B’s securities, A’s control limit is 90%:
if A has consent to acquire 90% or more of a class of B’s securities, A’s control limit is 100%
holds includes has a beneficial entitlement to or a beneficial interest in
level of control in B, in relation to A and expressed as a percentage, is the highest of the following:
the proportion of the governing body of B of which A has power to control the composition:
the proportion of the voting power at a meeting of B that A has the right to exercise or of which A has the right to control the exercise
securities of the same class means that the securities have attached to them identical rights, privileges, limitations, and conditions.
(4)
If a person (A) relies on the exemption in this regulation, the conditions of A’s consent continue in effect as conditions of the consent as if the further securities were covered by the consent.
The requirement for consent does not apply to the extent that giving effect to a transaction has the effect of the acquisition by an overseas person of redeemable preference shares that are redeemable only in cash and that do not entitle the holder to exercise voting rights except if the dividend payable is in arrears.
the transfer of property from a trustee to an overseas person who is a trustee of the same trust on the appointment of a new trustee or the retirement of a trustee or on the resettlement of a trust if that appointment, retirement, or resettlement does not result in the trust becoming an overseas person:
the transfer by a trustee, executor, or administrator of the will or of the estate of a deceased person to an overseas person who is a beneficiary of property under that will or estate or under a trust established by that will or estate:
the transfer by a trustee of a trust to an overseas person who is a beneficiary of property under that trust if—
the trust is an overseas person; and
the acquisition of that property by the trust has been previously consented to under the Act; and
the transfer is not contrary to any conditions of that consent.
See also subpart 1 of Part 3.
the acquisition by an overseas person of property under a permitted security arrangement:
the acquisition by an overseas person of property as a result of the overseas person enforcing a permitted security arrangement in good faith:
the reacquisition by an overseas person of property as a result of the discharge of a permitted security arrangement.
A security arrangement (see section 6(1) of the Act) is a permitted security arrangement if it—
requires that the property be retransferred to the original transferor or extinguished on the payment or performance of the obligation; and
to the extent that the term is used in subclause (1)(a),—
is entered into by the parties in good faith and in the ordinary course of business; and
is not entered into with the intention of using the security arrangement to make an overseas investment in sensitive land or an overseas investment in significant business assets or an overseas investment in fishing quota without consent.
The requirement to obtain consent under section 10(1)(a) of the Act or section 57B of the Fisheries Act 1996 does not apply to a transaction to the extent that—
giving effect to the transaction results in the acquisition by an overseas person of—
2 or more permitted security arrangements that are acquired together as a portfolio or bundle; or
securities in a person (A), to the extent of A’s property under permitted security arrangements; and
the acquisition is in good faith and in the ordinary course of business; and
the transaction is not entered into with the intention of using 1 or more of the permitted security arrangements to make an overseas investment in sensitive land or an overseas investment in fishing quota without consent.
The requirement for consent does not apply to the extent that giving effect to a transaction has the effect of the acquisition of property from the investment of funds by an overseas person carrying on in New Zealand the business of life insurance if—
the investment of the funds is made for the benefit of policy holders at least 75% of whom are New Zealand citizens or persons ordinarily resident in New Zealand; and
the investment is of funds held in the overseas person’s—
Life Insurance Fund within the meaning of section 15 of the Life Insurance Act 1908 if the overseas person carries on any other business; or
statutory fund or funds (within the meaning of section 6(1) of the Insurance (Prudential Supervision) Act 2010).
The requirement for consent does not apply to the extent that giving effect to a transaction has the effect of the acquisition of property by or on behalf of an overseas person that is the supervisor or manager of a retirement scheme (within the meaning of section 6(1) of the Financial Markets Conduct Act 2013) from the investment of all or part of the assets of the scheme for the benefit of members at least 75% of whom are New Zealand citizens or persons ordinarily resident in New Zealand.
the acquisition by an overseas person of property if—
the property is, or will be as a result of the acquisition, relationship property of the overseas person and the overseas person’s spouse or partner; and
the overseas person’s spouse or partner is not an overseas person:
the acquisition by an overseas person of property as a result of a division of relationship property under the Property (Relationships) Act 1976:
the acquisition by a company incorporated in New Zealand (A Co) of property if—
all of the securities in A Co are wholly owned as relationship property by a person (B) and B’s spouse or partner; and
B is not an overseas person.
In this regulation,—
relationship property means relationship property as defined in section 8 of the Property (Relationships) Act 1976
spouse or partner means spouse, civil union partner, or de facto partner.
See also regulation 58 for another relationship property exemption.
The requirement for consent does not apply to the extent that giving effect to a transaction has the effect of the underwriting by an overseas person of an issue of securities if that person—
is a person whose ordinary business includes entering into bona fide underwriting or subunderwriting contracts with respect to offers of securities; and
acquires the securities as a result of entering into a bona fide underwriting or subunderwriting contract in the course of that person’s ordinary business; and
holds the securities for less than 6 months; and
does not exercise any voting rights attached to those securities.