These regulations are the Securities Markets (Unsolicited Offers) Regulations 2012.

These regulations come into force on 1 December 2012.

(1) In these regulations, unless the context otherwise requires,—

(2) In these regulations, securities are of the same class if those securities have attached to them identical rights, privileges, limitations, and conditions (including, in the case of debt securities, the same redemption date).

(1) An example used in these regulations is only illustrative of the provisions to which it relates. It does not limit those provisions.

(2) If an example and a provision to which it relates are inconsistent, the provision prevails.

(1) These regulations apply to an unsolicited offer made by a person (A) to another person (B) if—

• (a) the securities are—

  • (i) listed securities; or

  • (ii) securities of a class that has previously been offered to the public in New Zealand (within the meaning of section 3 of the Securities Act 1978); and

• (b) A or an associated person of A or both have made, are making, or intend to make (in aggregate) unsolicited offers on the same, or substantially similar, terms to 20 or more other persons in the period that begins 6 months before the date of the offer to B and ends 6 months after that date.

(2) For the purposes of subclause (1)(b),—

• (a) the intention to make further offers must be considered as at the date of the offer to B:

• (b) if A or an associated person of A makes unsolicited offers on the same, or substantially similar, terms to other persons during the 6-month period after the date of the offer to B, it must be presumed that A or the associated person intended, as at the date of the offer to B, to make those offers unless the contrary is proved by A:

• (c) in determining the number of offers to other persons,—

  • (i) offers to persons referred to in regulation 6 must be counted even though regulations 7 to 18 do not apply to those offers:

  • (ii) offers to persons made before or after commencement of these regulations must be counted:

  • (iii) invitations to persons to make offers to sell securities, to confer powers to dispose of securities, or to sell interests in or rights attaching to securities must be counted as offers to acquire securities, to acquire powers to dispose of securities, or to acquire other interests in or rights attaching to securities (as the case may be).

(3) However, these regulations do not apply to an unsolicited offer—

• (a) that is made in connection with an amalgamation under Part 13 of the Companies Act 1993; or

• (b) that is made in connection with an arrangement or amalgamation under Part 15 of the Companies Act 1993; or

• (c) to acquire securities issued by a body corporate that is incorporated outside New Zealand if the offer is made—

  • (i) by that body corporate; or

  • (ii) as part of, or in connection with, a takeover offer that is regulated by overseas law or rules; or

• (d) that is made before the commencement of these regulations (but see subclause (2)(c)(ii)).

(4) For the purposes of subclause (3)(c),—

(1) Regulations 7 to 18 do not apply to an offer made to any of the following:

• (a) an associated person of the offeror:

• (b) a relative (within the meaning of the Securities Act 1978) of a director of the offeror:

• (c) a close business associate of the offeror or of a director of the offeror:

• (d) a person whose principal business is the investment of money or who, in the course of and for the purposes of the person's business, habitually invests money:

• (e) a person who is wealthy (as defined in section 5(2CD) of the Securities Act 1978):

• (f) a person who is experienced in investing money (see subclause (2)).

(2) In this regulation, a person is experienced in investing money if—

• (a) an independent financial service provider (within the meaning of section 5(2CF) of the Securities Act 1978) is satisfied on reasonable grounds that the person to whom the unsolicited offer is made is, as a result of having experience of that kind, able to assess—

  • (i) the merits of the offer; and

  • (ii) the value of the security; and

  • (iii) the risks involved in accepting the offer; and

  • (iv) that person's own information needs; and

  • (v) the adequacy of the information given by the person making the offer; and

• (b) the financial service provider gives the person to whom the unsolicited offer is made, before the unsolicited offer is accepted, a written statement of the financial service provider's reasons for being satisfied as to those matters; and

• (c) the person to whom the unsolicited offer is made signs a written acknowledgment, before the unsolicited offer is accepted, that the person understands that the Securities Markets (Unsolicited Offers) Regulations 2012 will not apply and, accordingly, the person will not receive information under those regulations.

(1) A person must not make an unsolicited offer unless the person has given written notice to the issuer, at least 5 working days before the offer is made, of the person's intention to do so.

(2) However, the written notice must not be given more than 10 working days before the offer is made.

(3) The written notice must be accompanied by—

• (a) a copy of the standard disclosure document that will be given to the offerees (excluding information relating only to a particular offeree); and

• (b) a list of the names and addresses of every offeree to whom the disclosure document will be given; and

• (c) a list of the names and addresses of every other person to whom the offeror or an associated person of the offeror or both have made, are making, or intend to make an unsolicited offer on the same, or substantially similar, terms in the period referred to in regulation 5(1)(b).

(4) The list of names and addresses under subclause (3)(b) or (c) does not have to include the name and address of a person (A) if A's name and address have previously been notified to the issuer under this regulation in relation to an unsolicited offer on the same, or substantially similar, terms.

(5) If the person referred to in subclause (1) intends to make the offer to all of the persons who, as at a particular date, are registered on a securities register as holding securities of a particular class, the written notice—

• (a) must state that intention (including the particular date and the class of securities concerned); but

• (b) is not required to be accompanied by the lists referred to in subclause (3).

(6) The information referred to in subclause (3)(b) and (c) must be in a format that is readily accessible by the issuer so as to enable the issuer to readily communicate with the offerees or other persons referred to in those paragraphs.

(1) An offeror must ensure that an unsolicited offer is made only in a disclosure document that—

• (a) complies with regulations 9 and 10; and

• (b) is given to the offeree.

(2) An offeror must ensure that a restricted communication is not distributed to a person who is or will be an offeree before the disclosure document is given to the offeree under subclause (1).

(3) If the disclosure document is accompanied by 1 or more other documents when it is given to the offeree, the offeror must ensure—

• (a) that the disclosure document is prominently identified; and

• (b) in the case where it is given—

  • (i) otherwise than by electronic means, that the disclosure document is placed in front of any of the other documents:

  • (ii) by electronic means, that the disclosure document is in a position within the group of documents where it is reasonably likely to come to the attention of the offeree.

(4) In this regulation,—

(1) The disclosure document must contain, at the front of the document, the information and statements specified in Schedule 1, in the form set out in that schedule, including,—

• (a) in the case of an unsolicited offer to acquire listed securities,—

  • (i) the consideration that the offeror is offering under the offer to the offeree for each security; and

  • (ii) the current market price of each security as at a point in time specified in the document (being a time that is not earlier than 10 working days before the date of the offer); and

  • (iii) the total consideration that the offeror is offering under the offer to the offeree; and

  • (iv) the total current market price of the securities that are the subject of the offer to the offeree as at a point in time specified in the document (being a time that is not earlier than 10 working days before the date of the offer); and

  • (v) the unique identification code of the issuer as issued by the relevant registered exchange; and

  • (vi) a statement to the effect that the offeree may check the current market price of the securities on the relevant registered exchange's Internet site and in newspapers; and

  • (vii) the name of that registered exchange and its Internet site address; and

• (b) in the case of an unsolicited offer to acquire non-listed securities,—

  • (i) the consideration that the offeror is offering under the offer to the offeree for each security; and

  • (ii) a fair estimate of the value of each security as at a point in time specified in the document (being a time that is not earlier than 10 working days before the date of the offer); and

  • (iii) the total consideration that the offeror is offering under the offer to the offeree; and

  • (iv) a fair estimate of the total value of the securities that are the subject of the offer to the offeree as at a point in time specified in the document (being a time that is not earlier than 10 working days before the date of the offer); and

  • (v) the basis for making the estimates (including the main assumptions on which the estimates are based); and

  • (vi) a statement as to whether the estimates have been reviewed by an independent third party acting in his or her professional capacity or consist only of the expression of the offeror's opinion; and

• (c) in the case of an unsolicited offer to acquire a power to dispose of securities or to acquire other interests in or rights attaching to securities,—

  • (i) the total consideration that the offeror is offering under the offer to the offeree; and

  • (ii) a fair estimate of the total value of the power, interests, or rights that are the subject of the offer to the offeree as at a point in time specified in the document (being a time that is not earlier than 10 working days before the date of the offer); and

  • (iii) the basis for making the estimate (including the main assumptions on which the estimate is based); and

  • (iv) a statement as to whether the estimate has been reviewed by an independent third party acting in his or her professional capacity or consists only of the expression of the offeror's opinion; and

• (d) in each case, the terms of payment of the consideration that the offeror is offering under the offer, including—

  • (i) how and when payments will be made; and

  • (ii) the date by which the consideration will be paid in full; and

  • (iii) if payment of the consideration is to be made by way of a single payment more than 90 days after the date of the offer, a statement in the form set out in Part 1 of Schedule 2; and

  • (iv) if payment of the consideration is to be made in instalments, the information and statement referred to in subclause (3).

(2) Subclause (1)(c) does not apply if subclause (1)(a) or (b) applies.

(3) The information and statement for the purposes of subclause (1)(d)(iv) are as follows:

• (a) the amount of each instalment:

• (b) when each instalment will be paid:

• (c) how many instalments will be paid:

• (d) how each instalment will be paid:

• (e) a statement in the form set out in Part 1 of Schedule 2 if the last instalment is to be made more than 90 days after the date of the offer.

(4) Consideration, prices, values, or other monetary amounts that must be disclosed in a disclosure document must be expressed in New Zealand currency.

The information and statements required to be contained in a disclosure document must be worded and presented in a clear, concise, and effective manner.

An offeror—

• (a) must ensure that the disclosure document is not false, misleading, or confusing or likely to mislead or confuse; and

• (b) must not, in connection with the unsolicited offer, engage in conduct that is misleading or deceptive or likely to mislead or deceive.

(1) An offeror must ensure that the unsolicited offer—

• (a) specifies the period for which it will remain open; and

• (b) remains open for that period.

(2) The offer period must—

• (a) commence with the date of the offer; and

• (b) be not shorter than 30 days and not longer than 12 months.

(3) A specified person must not, in relation to an unsolicited offer made to a person (B), make a representation to B (whether in the disclosure document or otherwise) to the effect that B has less than 30 days after the date of the offer within which to make a decision on the offer.

(4) In this regulation, specified person, in relation to an unsolicited offer, means—

• (a) the offeror; or

• (b) an associated person of the offeror; or

• (c) a person acting on behalf of the offeror or an associated person of the offeror.

(5) This regulation is subject to regulation 13.

(1) An unsolicited offer may be withdrawn only with the consent of the FMA.

(2) A purported withdrawal of an unsolicited offer in contravention of subclause (1) is ineffective.

(3) The FMA may give its consent subject to the conditions that it thinks fit (for example, conditions relating to notice being given to the offeree and the issuer).

(4) The offerer must comply with the conditions of the FMA's consent.

(1) The terms of an unsolicited offer, as set out in the disclosure document, cannot be varied.

(2) A purported variation of the terms of the offer is ineffective.

(3) This regulation does not—

• (a) prevent the offeror from withdrawing the offer in accordance with regulation 13 and making another offer on different terms; or

• (b) prevent the offeree from making a counter-offer on different terms.

(1) An offeree has a right to cancel an agreement by—

• (a) doing both of the following:

  • (i) giving notice of the cancellation to the offeror not later than 10 working days after the date of the acceptance of the unsolicited offer; and

  • (ii) repaying to the offeror any consideration paid by the offeror to the offeree under the agreement not later than 20 working days after the date of the acceptance of the unsolicited offer; or

• (b) repaying to the offeror any consideration paid by the offeror to the offeree under the agreement not later than 10 working days after the date of the acceptance of the unsolicited offer.

(2) Notice of the cancellation under subclause (1)(a)—

• (a) must be in writing and in a form that indicates (irrespective of the exact words used) the intention of the offeree to cancel or withdraw from the agreement; and

• (b) may be given by the offeree or any person authorised by the offeree to act on the offeree's behalf.

(3) A written refusal to complete the relevant transfer of the securities given by or on behalf of the offeree must be treated as satisfying subclause (2)(a).

(4) This regulation does not limit any other right to cancel the agreement exercisable apart from this regulation.

(5) If an offeree gives notice of the cancellation under subclause (1)(a) but does not comply with subclause (1)(a)(ii) within 5 working days after the notice is given to the offeror, the offeror must, as soon as practicable, give written notice to the offeree of the obligation to repay under subclause (1)(a)(ii).

(1) This regulation applies in relation to an unsolicited offer to acquire securities.

(2) If the agreement is cancelled under regulation 15,—

• (a) no party is obliged or entitled to perform it further; and

• (b) if the securities that are the subject of the unsolicited offer have not been transferred to the offeror, the offeror—

  • (i) must not take any steps to arrange for the transfer of the securities; and

  • (ii) must take all reasonably practicable steps to prevent the registration of a transfer of the securities; and

• (c) if the securities that are the subject of the unsolicited offer have already been, or are subsequently, transferred to the offeror, the offeror must comply with subclause (3).

(3) The offeror must—

• (a) either—

  • (i) transfer the securities back to the offeree; or

  • (ii) if the securities have been on-sold, transfer to the offeree an equal number of securities of the same class; and

• (b) pay to the offeree all dividends and any other distribution received by the offeror in respect of the securities; and

• (c) transfer to the offeree any other interest, rights, or benefits received by the offeror in respect of the securities.

(4) The offeror must act under this regulation as soon as practicable, but in any event not later than the end of the specified period after the offeree returns to the offeror any consideration paid by the offeror to the offeree under the agreement.

(5) In this regulation, specified period means,—

• (a) if the securities have been on-sold, 20 working days; or

• (b) in any other case, 10 working days.

(1) This regulation applies in relation to an unsolicited offer to acquire a power to dispose of securities or to acquire other interests in or rights attaching to securities (and does not apply if regulation 16 applies).

(2) If the agreement is cancelled under regulation 15,—

• (a) no party is obliged or entitled to perform it further; and

• (b) the offeror must not take any steps to arrange for the acquisition of the power, interests, or rights; and

• (c) if the power, interests, or rights have already been, or are subsequently, acquired by the offeror, the offeror must comply with subclause (3).

(3) The offeror,—

• (a) in the case of a power to dispose of securities, must not take any steps to exercise the power and must—

  • (i) take all practicable steps to arrange for the termination of the power; or

  • (ii) if the power has been exercised, transfer to the offeree an equal number of securities of the same class as those that have been disposed of; and

• (b) in the case of interests in or rights attaching to securities, must—

  • (i) transfer the interests or rights back to the offeree; or

  • (ii) if the interests or rights have been on-sold, transfer to the offeree equivalent interests or rights; and

• (c) in either case, must pay to the offeree all dividends and any other distribution received by the offeror in respect of the power, interests, or rights; and

• (d) in either case, must transfer to the offeree any other interest, rights, or benefits received by the offeror in respect of the power, interests, or rights that have been acquired.

(4) The offeror must act under this regulation as soon as practicable, but in any event not later than the end of the specified period after the offeree returns to the offeror any consideration paid by the offeror to the offeree under the agreement.

(5) In this regulation, specified period means,—

• (a) if the power, interests, or rights have been exercised or on-sold, 20 working days; or

• (b) in any other case, 10 working days.

(1) Regulation 16(3)(a)(ii) or (c) or 17(3)(a)(ii), (b)(ii), or (d) does not apply if the FMA gives a notice to the offeror stating that that provision does not apply.

(2) The FMA may give a notice under subclause (1) if it is satisfied that,—

• (a) in the case of regulation 16(3)(a)(ii) or 17(3)(a)(ii) or (b)(ii), the requirement is unduly onerous because of a lack of an established market for the securities, interests, or rights; and

• (b) in the case of regulation 16(3)(c) or 17(3)(d), the requirement operates unfairly; and

• (c) in either case referred to in paragraphs (a) and (b), the offeror will pay compensation to the offeree, or take other action, so as to restore the offeree as near as possible to the position the offeree was in before the unsolicited offer was accepted.

(3) If the FMA exercises a power under this regulation,—

• (a) it must, immediately after exercising the power, give notice on its Internet site of—

  • (i) the reasons for exercising the power; and

  • (ii) the terms of the notice given to the offeror; and

  • (iii) any other information the FMA thinks relevant in the circumstances; and

• (b) it may give public notice by any other means of the matters in paragraph (a).

(1) A person (A) must not invite another person (B) to—

• (a) 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 these regulations applied; or

• (b) make an offer to confer a power to dispose of a security in circumstances in which, if the invitation were an offer to acquire a power to dispose of a security, it would be an unsolicited offer to which these regulations applied; or

• (c) make an offer to sell an interest in or a right attaching to a security in circumstances in which, if the invitation were an offer to acquire an interest in or a right attaching to a security, it would be an unsolicited offer to which these regulations applied.

(2) Subclause (1) does not apply to invitations made to any of the persons referred to in regulation 6(1) (applied with all necessary modifications as if A were the offeror).

Regulations 7 to 14, 15(5), 16, 17, and 19 are unsolicited offer obligations for the purposes of the Act (which means that a contravention may give rise to an unsolicited offer order, a corrective order, a pecuniary penalty, or another civil remedy order).

(1) The following persons, in relation to an unsolicited offer, are protected persons for the purposes of section 47AA of the Act:

• (a) the issuer:

• (b) a person who administers a securities register on behalf of the issuer:

• (c) a person who acts on behalf of a person referred to in paragraph (a) or (b) in connection with a transfer of securities.

(2) For the purposes of section 47AA(2)(c) of the Act, any thing done or omitted by a person referred to in subclause (1) for the purpose of implementing or giving effect to a cancellation of an agreement under regulations 15 to 17 is a protected act or omission.

These regulations have effect despite any provision to the contrary in any contract or agreement.