FMA consults on proposed exemption for same class offers of ASX/NZX-quoted financial products

The FMA is consulting on a proposed exemption to allow for same class offers of ASX-quoted financial products of ASX/NZX listed issuers on an equivalent basis as the same class offers exclusion for NZX-listed issuers.

In summary, the same class offers exclusion allows an NZX-listed issuer to use a “cleansing notice” for an offer of the same class of financial products already quoted, provided that it is complying with the relevant requirements under the Financial Markets Conduct Act 2013 (FMC Act) and the Financial Markets Conduct Regulations 2014 (FMC Regulations), such as its continuous disclosure obligations without reliance on the carve outs to those obligations.

Who needs to read this? Why?

The consultation is for those who issue and offer listed financial products, investors, legal advisers, and other interested parties.

The FMA expects that the exemption will help attract secondary listings to the NZX. Currently, offers of products of an ASX/NZX-listed issuer of the same class as those quoted on ASX cannot be made under the same class offers exclusion. This is because ASX/NZX-listed issuers are not required to comply with NZX’s continuous disclosure requirements, but instead the NZX Listing Rules enable these issuers (defined as an ‘overseas listed issuer’ under the NZX Listing Rules) to comply with the continuous disclosure requirements of the recognised stock exchange in their home jurisdiction (i.e. ASX in this case). Therefore, the requirements of the same class offers exclusion (particularly clause 20 of Schedule 8 of the FMC Regulations) cannot be met. This is because requirements generally relate to quotation on, and providing continuous disclosure and cleansing notices to, a ‘licensed market’ (as defined in the FMC Act) and ASX is not licensed under the FMC Act.

What are the proposals?

Proposed exemption

The proposed exemption will essentially apply in the same way as the same class offers exclusion currently does, except that it will apply to ASX-quoted products of ‘exempt issuers’ that are on ASX’s Official List and have a secondary listing with NZX. This will include overseas-listed issuers (as currently defined in the NZX Listing Rules) and ‘foreign exempt issuers’ (as defined in the NZX Listing Rules Exposure Draft).

Proposed conditions

The FMA proposes that the exemption for the same class offers will have the same conditions that apply to offers under the same class offers exclusion, modified to enable ASX-listed issuers operating under Australian regulatory requirements to comply.

The ASX/NZX-listed issuer must give ASX and NZX a cleansing notice in the 24-hour period before the offer is made (unless ASX or NZX require it earlier) and at the date of the notice, be in compliance with the Australian continuous disclosure obligations that apply to it in relation to the ASX-quoted financial products and its Australian financial reporting obligations. The consultation paper provides guidance on the proposed form of the cleansing notice.

Draft notice

The FMA has also provided the form of the draft notice for consultation.

Questions

The FMA is seeking answers to questions posed in the consultation paper relating to the exemption proposal, proposed conditions, draft notice, and any other issues not considered as part of the consultation paper.

Our view

We anticipate that the proposed exemption will bring many benefits to ASX/NZX-listed issuers and New Zealand investors alike. Over the past few years, many NZX-listed companies have utilised the same class offer exclusion to successfully raise capital in a short timeframe. Therefore, expanding the scope of this regime is a sensible way to make capital markets participation easier in New Zealand.

What next?

The closing date for submissions is 5:00pm Wednesday, 13 June 2018 and submissions can be sent to consultation@fma.govt.nz.

Our team will be preparing a submission, based on our experience dealing with the NZX Listing Rules and representing many issuers in secondary capital raisings over the years. If you have any questions on the proposals or would like our assistance in developing a submission to the FMA, please contact one of our experts.

Who can help

Cathy Quinn ONZM

Partner - Corporate and Commercial

Cathy leads the Mergers & Acquisitions and Private Equity teams as well as our China practice. Cathy was chair of our firm for 8 years from 2009-2016.

Highly-regarded for her specialist legal work in mergers, acquisitions, securities law, corporate governance and private equity, Cathy is regularly sought out by international and local clients for her expertise in the areas in which she advises, and is a past Chair of the firm.

Cathy’s practice encompasses Corporate and Commercial, Government, Agribusiness and Health and Aging. She has particular expertise with Directors Duties, and was a past co-author of one of the leading company and securities law texts in New Zealand, Morison’s On Company and Securities Law, as well as being the principal author of MinterEllisonRuddWatts White Paper on Corporate Governance.

Her expertise spans mergers and acquisitions; advising on various security law issues; advising on numerous offshore ventures, acquisitions and divestments; advising on directors duties, corporate governance and general corporate law matters; advising businesses in the agribusiness sector on regulatory issues, governance, corporate law issues, restructuring, acquisitions, divestments and joint ventures; advising Asian entities on investing in New Zealand, including the dairy and forestry sector.

Cathy was a member of the Securities Commission for nine years and the only lawyer appointed to the government’s Capital Markets Development Taskforce, giving her a unique insight into the policy considerations underpinning our securities and capital markets. Cathy was an inaugural member of the Commercial Advisory Board to the New Zealand Treasury, and was appointed to the Board of the New Zealand Treasury in late 2016. Cathy is on the Executive Board of the New Zealand China Council. Cathy is a director of Tourism Holdings Limited.

Cathy has advised numerous boards on governance issues. In recognition of her expertise, Cathy has provided governance training for the director community along with a major accounting firm. Cathy is a regular commentator on securities, competition and corporate law.

Cathy Quinn ONZM

Partner


Corporate and Commercial
Auckland

P: +64 9 353 9951
M: +64 21 610 771
Email

Silvana Schenone

Partner - Corporate and Commercial

Silvana is a corporate and commercial partner and leads our Auckland corporate legal team. She is experienced in advising local and foreign clients on a range of corporate matters. With extensive expertise in M&A, private equity investments, takeovers, scheme of arrangements, capital raisings and corporate governance matters, Silvana is renowned for her ability to get the most complex and innovative deals done in a pragmatic way.

Skilled at getting to the heart of the matter and delivering excellent results for her clients, Silvana has been involved in some of New Zealand most iconic transactions, including a number of market “firsts”, setting precedent in the New Zealand legal market.

In doing so, Silvana regularly liaises with regulatory authorities including the Financial Markets Authority, the New Zealand Stock Exchange and the Overseas Investment Office.

Silvana is a board member of the New Zealand Takeovers Panel, evidence of her expertise and experience in the M&A and capital markets sectors locally and internationally.

The calibre of Silvana’s work is recognised in the independent and premiere international legal directory Chambers Global for her M&A, IPOs, takeovers and corporate governance work, with clients saying “I give her an A+ – the work she does is excellent, sophisticated, thorough and detailed.”  and commenting that Silvana is “a fantastic lawyer who is smart, commercially minded and able to deal with different parties in a pragmatic manner.”

She has a remarkable international background, having practiced law in New York, Chile and New Zealand. Her practice includes a Latin-American focus, where Silvana maintains a broad network of contacts. Due to her international experience she is ideally positioned to assist clients with all aspects of the overseas investment process as it applies to the acquisition of businesses or significant assets in New Zealand.

Silvana is a published author, having written ‘Duties and Responsibilities of Directors and Company Secretaries in New Zealand’, a highly acclaimed text referred to by the directors’ community in New Zealand.

Silvana Schenone

Partner


Corporate and Commercial
Auckland

P: +64 9 353 9986
M: +64 21 312402
Email

Mark Stuart

Partner - Corporate and Commercial

Mark is a corporate and commercial lawyer with over 20 years experience advising on all aspects of M&A, private equity, business sale, commercial and business transactions and contracts for a range of private equity investors and corporates. He also advises on companies on governance issues, listing rule compliance, director responsibilities and strategic issues.

Mark has significant equity capital markets experience having advised Tegel Foods, Evolve Education and Synlait Milk on their successful IPOs. Mark also works closely with Minter Ellison in Australia on trans-tasman transactions.

Mark Stuart

Partner


Corporate and Commercial
Auckland

P: +64 9 353 9985
M: +64 21 318 627
Email

Mark Forman

Partner - Corporate and Commercial

Mark is a corporate and commercial lawyer with broad corporate experience in both New Zealand and the United Kingdom.

He specialises in mergers and acquisitions, private equity, forestry transactions, commercial contract advice, NZX listing rules/takeovers code advice, corporate governance advice, shareholder agreements and employee shareholding arrangements. Mark also advises on Overseas Investment Office consent applications.

Mark has advised on numerous high profile New Zealand transactions in recent years, including the largest forestry transaction in New Zealand in a number of years, and the MediaWorks – NBCUniversal joint venture, which won Consumer, Media and Tech Deal of the Year at the 2017 NZ Law Awards. Having advised on large merger and acquisition transactions for international financial institutions, in New Zealand, Europe and the United States, he is familiar with global trends.

Mark has particular experience advising clients in the media/technology, forestry, financial services and aged care/health sectors. Clients include MediaWorks, Campbell Global, Hastings Funds Management, Metlifecare, Southern Cross Hospitals and Bupa Group.

Mark Forman

Partner


Corporate and Commercial
Auckland

P: +64 9 353 9944
M: +64 21 243 6954
Email

Rodney Craig

Partner - Corporate and Commercial

Rodney leads the Wellington corporate team and specialises in mergers and acquisitions, capital markets and advising early-stage and growth businesses.

Rodney has an NZX Diploma and has advised a range of listed companies, NZX firms and substantial shareholders in relation to their participation in New Zealand’s capital markets.

A significant part of Rodney’s practice involves assisting early-stage and growth businesses with their legal needs: from day-to-day contracting and compliance issues through to advising on expansion activities and other significant transactions (such as raising capital, the entry or exit of shareholders, entering into joint ventures, or restructuring the business).

Rodney provides sound, pragmatic advice and is able to communicate complex issues in an easy to understand way. He regularly presents seminars and workshops on commercial and corporate law issues, and is a co-author of Lexis Nexis Practical Business Law and several chapters of Morison’s Company Law.

Rodney Craig

Partner


Corporate and Commercial
Wellington

P: +64 4 498 5025
M: +64 27 466 9788
Email

Paul Foley

Partner - Corporate and Commercial

Paul practises in all areas of corporate law, has a reputation for innovative thinking, providing the input that has enabled complex transactions to be worked through to a successful conclusion.

Paul’s corporate advisory spans governance, continuous disclosure obligations, directors’ duties and Companies Act, Securities Act, Takeovers Code and Listing Rules advice. Paul also provides leading advice on strategic transactions, mergers and acquisitions, take overs, equity capital raisings, and foreign investment approvals.

He has experience as an external director, including as Chair of a publicly listed company.

Paul Foley

Partner


Corporate and Commercial
Wellington

P: +64 4 498 5119
M: +64 21 948 841
Email

Cameron Taylor

Partner - Corporate and Commercial

Cameron is a partner in the Corporate team at MinterEllisonRuddWatts.  He works with clients on a broad range of strategic transactions, including mergers and acquisitions (M&A), takeovers and takeover defence, joint ventures, restructurings, capital raising, IPO’s and corporate governance.

Cameron regularly advises leading private and listed companies, financial institutions and private equity firms. He has extensive experience in the New Zealand market, as well as in New York and London where he worked for Cravath, Swaine & Moore LLP, one of the world’s premier law firms. He is often invited to speak at international conferences on M&A and corporate finance.

He was admitted to the bar in New York in 2002 and in New Zealand in 1998.

Prior to his legal career, Cameron was an international athlete and competed at the Olympic Games, World Track & Field Championships, NCAA Championships and World Junior Championships. Cameron is Chair of the board of Athletics New Zealand.

He holds an M.B.A. in Finance from London Business School, an LL.B. (Hons) from the University of Auckland Law School, and a B.A. in Economics and B.B.A. in Finance from SMU in Dallas, Texas.

 

Cameron Taylor

Partner


Corporate and Commercial
Auckland

P: +64 9 353 9749
M: +64 21 376 125
Email

Igor Drinkovic

Senior Associate - Corporate and Commercial

Igor is a Senior Associate in the corporate team. He specialises in public M&A and securities law and advises local and foreign clients on public takeovers, public capital raisings, private placements, employee share schemes and listed company matters in general. He has most recently been part of the team advising: New York based Diligent Corporation (NZX: DIL) on its NZ$941 million merger with entities affiliated with Insight Venture Partners; JBS on its scheme of arrangement involving Scott Technology Limited (NZX: SCT), being the first scheme of arrangement under new rules in New Zealand; and Goldman Sachs on its role as sole lead manager, placement agent, bookrunner and underwriter of Stride Property Limited’s (NZX: STR) $115 placement to partially fund the acquisition of a new portfolio of retail assets for $287 million.

Igor Drinkovic

Senior Associate


Corporate and Commercial
Auckland

P: +64 9 353 9734
M: +64 21 071 7628
Email

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