Takeovers Amendment Act 2006

1: Title
This Act is the Takeovers Amendment Act 2006.
2: Commencement
1: This Act comes into force on the day after the date on which it receives the Royal assent.
2: However, the following provisions only come into force on a date to be appointed by the Governor-General by Order in Council:
a: new sections 44B, 44C, 44D, and 44E of the Takeovers Act 1993 section 24
b: section 29 SR 2007/368 2008-02-29 Takeovers Act 1993 Takeovers Code Approval Order 2000
3: For the purposes of subsection (2) Section 2(2)(a) brought into force 29 February 2008 clause 2(1) Takeovers Amendment Act 2006 Commencement Order 2007 Section 2(2)(b) brought into force 29 February 2008 clause 2(2) Takeovers Amendment Act 2006 Commencement Order 2007
3: Principal Act amended
Sections 4 to 25 Takeovers Act 1993
4: Interpretation
1: The definition of company section 2(1) company section 2(1) of the Companies Act 1993 .
2: The definition of specified company section 2(1) specified company
a: is a party to a listing agreement with a registered exchange and that has securities that confer voting rights quoted on the registered exchange's market; or
b: was within paragraph (a)
c: has 50 or more shareholders .
3: Section 2(1) quoted voting right
a: during a period in which a payment or distribution (or part of a payment or distribution) in respect of the security that confers the voting right is in arrears or some other default exists:
b: on a proposal that affects rights attached to the security that confers the voting right:
c: on a proposal to put the company into liquidation:
d: on a proposal for the disposal of the whole, or a material part, of the property, business, and undertaking of the company:
e: during the liquidation of the company:
f: in respect of a special, immaterial, or remote matter that is inconsequential to control of the company.
4: The definition of public issuer section 2
5: Section 2
2: In sections 32, 33, and 33AA subpart 2 of Part 3 contravene the takeovers code not act in compliance with the takeovers code
a: a contravention of the takeovers code or a term or condition of an exemption from the takeovers code; or
b: an attempt to contravene the takeovers code or a term or condition of an exemption from the takeovers code; or
c: aiding, abetting, counselling, or procuring any other person to contravene the takeovers code or a term or condition of an exemption from the takeovers code; or
d: inducing, or attempting to induce, any other person, whether by threats or promises or otherwise, to contravene the takeovers code or a term or condition of an exemption from the takeovers code; or
e: being in any way, directly or indirectly, knowingly concerned in, or a party to, the contravention by any other person of the takeovers code or a term or condition of an exemption from the takeovers code; or
f: conspiring with any other person to contravene the takeovers code or a term or condition of an exemption from the takeovers code.
5: Object of this Act
Section 4 paragraph (c)
ca: provide criminal liability for false or misleading statements or information in relation to takeovers of specified companies: .
6: Delegation of certain powers by Panel
Section 14(1) 31A, sections
7: New section 15B inserted
The following section is inserted after section 15A
15B: Sharing of information with Commerce Commission
1: The Panel may communicate to the Commerce Commission any information that the Panel—
a: holds in relation to the exercise of the Panel's powers, or the performance of its functions and duties; and
b: considers may assist the Commerce Commission in the exercise of the Commerce Commission's powers, or the performance of its functions and duties, in respect of the Fair Trading Act 1986
2: The Panel may use any information communicated to it by the Commerce Commission under section 48A of the Fair Trading Act 1986
3: This section applies despite anything to the contrary in any enactment, contract, deed, or document.
8: New heading inserted
The heading Subpart 1—Investigation and enforcement by Panel Part 3
9: New sections 31L to 31MA substituted
Sections 31L 31M
31L: Who may receive evidence
1: The Panel may receive evidence through a member, officer, or employee of the Panel, or any 2 or more of them.
2: However, if a person who is summoned to give evidence under section 31N
a: subsection (1)
b: the meeting must not be held by a method under clause 8(b) of Schedule 5 of the Crown Entities Act 2004
31M: Admissibility of evidence
The Panel may receive in evidence, whether admissible in a court of law or not, any statement, document, information, or matter that,—
a: in the opinion of the person receiving it, may assist the Panel in dealing effectively with any matter before it; or
b: the Panel may receive under section 31P
31MA: How evidence may be given
1: The Panel may receive evidence—
a: given on oath:
b: given not on oath:
c: if the person receiving the evidence permits it, given by a written statement:
d: if the person receiving the evidence thinks it is appropriate, given by a written statement verified on oath:
e: given by audio-visual communication, if the Panel and the person giving the evidence agree.
2: A member, officer, or an employee of the Panel may administer an oath for the purpose of a person giving evidence on oath.
10: Power to summon witnesses
1: Section 31N subsection (1)
1: A member of the Panel may issue a summons to a person requiring that person to appear (in the case of a body corporate, to appear by its authorised representative) before the Panel, or a member, officer, or employee of the Panel, in relation to any matter before the Panel and to do any of the following things:
a: give evidence:
b: give evidence under oath:
c: provide any documents or information that are in the person's possession or control and that are relevant to the matter.
2: Section 31N(2)(c) he or she the person
3: Section 31N subsection (3)
3: A summons may be served,—
a: in the case of a natural person, by delivering it personally to the person summoned or by leaving it at his or her usual place of residence or business at least 24 hours before his or her attendance is required:
b: in the case of a body corporate, by leaving it at the body corporate's usual place of business at least 24 hours before its attendance is required.
11: Panel's powers in respect of compliance with takeovers code
1: Section 32(2) temporary restraining
2: Section 32 subsection (3)
3A: If the Panel makes a determination under subsection (3)
3: Section 32(4) temporary restraining
4: Section 32(4)
c: make a permanent compliance order (relating to the non-compliance with the takeovers code):
d: if it makes any order under this subsection, also make an order extending, for a reasonable time, the period for which a takeover offer must remain open.
5: Section 32 subsection (4)
4A: If the Panel makes an order under this section, the Panel—
a: must immediately give written notice to the person to whom the order is directed of the terms and conditions of the order; and
b: must, as soon as is reasonably practicable, also give that person written notice of the reasons for the order; and
c: may also give notice to any other person of those matters.
6: Section 32(5) A restraining order An order
7: Section 32(6) (7) restraining
12: Restraining orders
1: The heading to section 33 Restraining Temporary restraining
2: Section 33 temporary restraining
3: Section 33 paragraph (d)
d: restraining a person from taking any action (including from making any statement or distributing any document) that is or that may reasonably be expected to constitute a contravention of the takeovers code ( see section 2(2) .
13: New section 33AA inserted
The following section is inserted after section 33
33AA: Permanent compliance orders
For the purposes of section 32
a: prohibiting or restricting a person from making any statement or distributing any document that is or that may reasonably be expected to constitute a contravention of the takeovers code ( see section 2(2)
b: directing a person to disclose in accordance with the order information for the purpose of securing compliance with the takeovers code:
c: directing a person to publish, at the person's own expense, in the manner and at the times specified in the order corrective statements that are specified in, or are to be determined in accordance with, the order:
d: for the purpose of securing compliance with any of those orders, an order directing a person to do or refrain from doing a specified act.
14: New section 33C substituted
Section 33C
33C: Restrictions on use of self-incriminating statements obtained by summons
1: A self-incriminating statement made orally by a person summoned under section 31N
a: subject to paragraph (b)
i: criminal proceedings against that person; or
ii: proceedings under this Act, the Securities Act 1978 Securities Markets Act 1988
b: is admissible against that person in any proceeding in respect of the falsity of the person's testimony, for example, in a prosecution for perjury or for an offence under section 44(1)
2: In addition,—
a: a refusal or failure to answer a question or provide information or a document or comply with any other requirement may be used in evidence against that person in proceedings for an offence under section 44(1)
b: the answering of a question in a way that is false, deceptive, or misleading or the providing of information or a document that is false, deceptive, or misleading may be used in evidence against that person in proceedings for an offence under section 44(1)
15: Heading above section 33E and sections 33E and 34 repealed
The heading above section 33E 33E 34
16: New subpart 2 inserted
The following subpart is inserted before section 35
2: Enforcement by Court
Overview of enforcement powers and civil remedies
33E: Overview of enforcement powers and civil remedies
1: The following enforcement orders and remedies ( civil remedy orders
a: an injunction:
b: a civil remedy order under section 33I
c: a compensatory order:
d: a pecuniary penalty order and declaration of contravention (on application by the Panel only).
2: See section 2(2)
3: This section is a guide only to the general scheme and effect of this subpart. Injunctions
33F: What Court may injunct
The Court may, on application by any person in accordance with section 35
33G: When Court may grant injunctions and interim injunctions
1: The Court may grant an injunction restraining a person from engaging in conduct of a particular kind if—
a: it is satisfied that the person has engaged in conduct of that kind; or
b: it appears to the Court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind.
2: The Court may grant an interim injunction restraining a person from engaging in conduct of a particular kind if in its opinion it is desirable to do so.
3: Subsections (1)(a) and (2)
4: Subsections (1)(b) and (2)
a: the person has previously engaged in conduct of that kind:
b: there is an imminent danger of substantial damage to any other person if that person engages in conduct of that kind.
33H: Undertaking as to damages not required by Panel
1: If the Panel applies to the Court for the grant of an interim injunction under this subpart, the Court must not, as a condition of granting an interim injunction, require the Panel to give an undertaking as to damages.
2: However, in determining the Panel's application for the grant of an interim injunction, the Court must not take into account that the Panel is not required to give an undertaking as to damages. Various civil remedy orders
33I: When Court may make various civil remedy orders
The Court may, on application by any person in accordance with section 35 section 33J
33J: Terms of various civil remedy orders
A civil remedy order under section 33I
a: restrain the exercise of rights attaching to securities or declare an exercise of those rights to be void and of no effect:
b: restrain the issue or allotment of securities or restrain any distribution due in relation to securities:
c: restrain the acquisition or disposal of securities or of interests in or rights relating to them or restrain the registration of any transfer or transmission of securities:
d: direct the disposal of securities or of interests in or rights relating to them (including the person or class of persons to which they must, or must not, be disposed of) and direct the payment of the proceeds of any disposal:
e: require securities to be forfeited and require the public issuer to cancel the forfeited securities:
f: cancel an agreement for the acquisition or disposal of securities or interests in or rights relating to them:
g: vest securities or interests in or rights relating to them in a trustee for sale on the terms and conditions the Court thinks fit:
h: declare an agreement for the acquisition of securities or interests in or rights relating to them to be voidable at the option of the person from whom the securities or interests or rights were acquired:
i: if a contract is entered into in contravention of the takeovers code, or a contract contains a provision which, if given effect to, would contravene the takeovers code,—
i: vary the contract, in such manner as the Court thinks fit:
ii: cancel the contract:
iii: require any person who is a party to the contract to make restitution or pay compensation to any other person who is a party to the contract:
j: prohibit or restrict a person from making any statement or distributing any document that is or that may reasonably be expected to constitute a contravention of the takeovers code:
k: direct a person to disclose in accordance with the order information for the purpose of securing compliance with the takeovers code even though the time for doing so may have expired:
l: direct a person to publish, at the person's own expense, in the manner and at the times specified in the order corrective statements that are specified in, or are to be determined in accordance with, the order:
m: require a person to comply with any provision of the takeovers code even though the time for doing so may have expired. Compensatory orders
33K: When Court may make compensatory orders
1: The Court may make a compensatory order, on application by any person in accordance with section 35
a: there is a contravention of the takeovers code; and
b: a person (the aggrieved person
2: The Court may make a compensatory order whether or not the aggrieved person is a party to the proceedings.
33L: Terms of compensatory orders
If section 33K
a: direct the person in contravention to pay to the aggrieved person the amount of the loss or damage:
b: direct the person in contravention to refund money or return property to the aggrieved person:
c: if a contract has been entered into between the person in contravention and the aggrieved person,—
i: vary the contract or any collateral arrangement as specified in the order and, if the Court thinks fit, declare the contract or arrangement to have had effect as so varied on and after a date before the order was made, as specified in the order:
ii: cancel the contract and, if the Court thinks fit, declare the cancellation to have had effect on and after a date before the order was made, as specified in the order:
iii: require the person in contravention to take any action the Court thinks fit to reinstate the parties as near as may be possible to their former positions. Pecuniary penalty orders and declarations of contravention
33M: When Court may make pecuniary penalty orders and declarations of contravention
If the Panel applies for a pecuniary penalty order against a person under this Act in accordance with section 35
a: must determine whether the person has contravened the takeovers code; and
b: must make a declaration of contravention ( see sections 33N and 33O
c: may order the person to pay a pecuniary penalty that the Court considers appropriate to the Crown ( see sections 33P and 33Q
i: materially prejudices the interests of offerees, the specified company, the offeror or acquirer, competing offerors, or any other person involved in or affected by a transaction or event that is or will be regulated by the takeovers code, or that is incidental or preliminary to a transaction or event of that kind; or
ii: is likely to materially damage the integrity or reputation of any of New Zealand's securities markets; or
iii: is otherwise serious.
33N: Purpose and effect of declarations of contravention
1: The purpose of a declaration of contravention is to enable an applicant for a civil remedy order under section 33I section 33K
2: Accordingly, a declaration of contravention is conclusive evidence of the matters that must be stated in it under section 33O
33O: What declarations of contravention must state
A declaration of contravention must state the following:
a: the court that made the declaration; and
b: the provision of the takeovers code to which the contravention relates or, if the contravention is of an exemption, both the term or condition contravened and the takeovers code provision to which the exemption relates; and
c: the person in contravention; and
d: the conduct that constituted the contravention and, if a transaction constituted the contravention, the transaction; and
e: the specified company to which the conduct related.
33P: Maximum amount of pecuniary penalty
The maximum amount of a pecuniary penalty is $500,000 for an individual and $5,000,000 for a body corporate, for each contravention.
33Q: Considerations for Court in determining pecuniary penalty
In determining an appropriate pecuniary penalty, the Court must have regard to all relevant matters, including—
a: the principles contained in the takeovers code; and
b: the nature and extent of the contravention; and
c: the likelihood, nature, and extent of any damage to the integrity or reputation of any of New Zealand's securities markets because of the contravention; and
d: the nature and extent of any loss or damage suffered by a person referred to in section 33M(c)(i)
e: the circumstances in which the contravention took place; and
f: whether or not the person in contravention has previously been found by the Court in proceedings under this Act to have engaged in any similar conduct.
33R: Court must order that recovery from pecuniary penalty be applied to Panel's actual costs
If the Court orders that a person pay a pecuniary penalty, and the proceedings were brought (in whole or in part) by the Panel, the Court must also order that the penalty must be applied first to pay the Panel's actual costs in bringing the proceedings. General .
17: Persons who may apply
1: Section 35(1) section 34 of this Act section 33F, 33I, or 33K
2: Section 35(3) section 34 of this Act section 33F, 33I, or 33K
3: Section 35 subsection (4)
4: If the Panel makes a determination under section 32(3)(b) section 33M
18: Sections 36 and 37 repealed
Sections 36 37
19: Court may have regard to determinations and recommendations by Panel
1: Section 38(1) section 34 of this Act this subpart
2: Section 38(2) section 36 of this Act section 33I or 33K
20: Sections 39 and 40 repealed
Sections 39 40
21: New section 41 substituted
Section 41
41: Court may excuse contravention
1: If the Court is satisfied that a person has, by any act or omission, contravened the takeovers code, but that the contravention ought to be excused, the Court may (by order) declare that the act or omission was not a contravention of the code.
2: In considering whether the contravention should be excused, the Court may have regard to—
a: inadvertence or mistake on the part of the person concerned:
b: whether the person was aware of a relevant factor or circumstance:
c: circumstances beyond that person's control:
d: any other matters that the Court thinks fit.
3: The order has effect according to its tenor.
22: Court may require person to give evidence or produce documents relating to interests in securities
1: Section 42(1) section 34 of this Act this subpart
2: Section 42(2) section 34 of this Act this subpart
23: New sections 43 to 43C substituted
Section 43
43: More than 1 civil remedy order may be made for same conduct
The Court may make a civil remedy order of one kind against a person even though the Court has made another civil remedy order of a different kind against the person for the same conduct. Examples The Court may make a compensatory order and a pecuniary penalty order for the same conduct. The Court may make a civil remedy order requiring forfeiture of securities and declaring a previous exercise of voting rights attaching to those securities to be void.
43A: Only 1 pecuniary penalty order may be made for same conduct
If conduct by a person constitutes a contravention of 2 or more provisions of the takeovers code, proceedings may be brought against that person for the contravention of any one or more of the provisions, but no person is liable to more than one pecuniary penalty order for the same conduct.
43B: Standard of proof for civil remedies
The proceedings under this subpart are civil proceedings and the usual rules of the Court and rules of evidence and procedure for civil proceedings apply (including the standard of proof).
43C: Time limit for applying for civil remedies
1: An application for a civil remedy order under section 33I section 33M
2: The usual time limits apply to all applications for other civil remedy orders.
3: However, an application for a compensatory order in respect of a contravention may be made at any time within 6 months after the date on which a declaration of contravention is made, even if the usual time limit has expired.
24: New heading and subparts 3, 4, and 5 substituted
Section 44
3: Offences
General offences
44: General offences
1: A person must not—
a: furnish information, produce a document, or give evidence to the Panel or a member, officer, or employee of the Panel knowing it to be false or misleading; or
b: attempt to deceive or knowingly mislead the Panel or a member, officer, or employee of the Panel in relation to any matter before it.
2: A person who has been summoned to appear before the Panel or a member, officer, or employee of the Panel must not, without reasonable excuse,—
a: refuse or fail to appear before the Panel to give evidence:
b: refuse to take an oath or affirmation as a witness:
c: refuse to answer any question:
d: refuse or fail to provide any document or information that the person is required to provide.
3: A body corporate contravenes subsection (2)
4: A person must not act in contravention of any order made by the Panel under section 31X or section 32
5: Every person who contravenes this section commits an offence and is liable on summary conviction to a fine not exceeding $300,000 and, if the offence is a continuing one, to a further fine not exceeding $10,000 for every day or part of a day during which the offence is committed.
44A: Conviction of offence under
section 44
1: A person must not be convicted of an offence under section 44
a: the contravention related to matters that were immaterial to the relevant matter before the Panel; or
b: the contravention ought reasonably to be excused, having regard to all the circumstances of the case.
2: A director of a body corporate must not be convicted of an offence under section 44 False or misleading statement or information
44B: False or misleading statement or information
1: A person must not make a statement or disseminate information, in relation to any transaction or event regulated by the takeovers code or incidental or preliminary to a transaction or event that is or is likely to be regulated by the takeovers code, if—
a: a material aspect of the statement or information is false or the statement or information is materially misleading; and
b: the statement or information is likely to—
i: induce a person to trade, or hold, the securities of a specified company; or
ii: have the effect of increasing, reducing, maintaining, or stabilising the price for trading in those securities; or
iii: induce a person to vote for, or to vote against, a transaction that is or is likely to be regulated by the takeovers code, or to abstain from voting in respect of that transaction.
2: In this section, trade
44C: Criminal liability for false or misleading statement or information
1: A person who contravenes section 44B
2: A person who commits an offence against subsection (1)
a: in the case of an individual, imprisonment for a term not exceeding 5 years or a fine not exceeding $300,000, or to both:
b: in the case of a body corporate, a fine not exceeding $1,000,000.
44D: Exception for disclosure by investment advisers or brokers
Section 44B Part 4 of the Securities Markets Act 1988 Part 4 of that Act
44E: Fair Trading Act 1986 The Fair Trading Act 1986
4: Other Court orders
Management bans
44F: When Court may make management banning orders
The Court may, on application by any person referred to in section 35(1)(a) to (g) A
a: A has been convicted of an offence against either section 44 or section 44C
b: A has, while a director of an incorporated or unincorporated body,—
i: persistently contravened this Act, the Companies Act 1993 Securities Markets Act 1988 Securities Act 1978
ii: if the incorporated or unincorporated body has so contravened, persistently failed to take all reasonable steps to obtain compliance with those Acts or the code; or
c: A has been prohibited in an overseas jurisdiction from carrying on activities that the Court is satisfied are substantially similar to any of the activities referred to in section 44G
44G: Terms of management banning orders
A management banning order may, for a period stated in the order of 10 years or less, prohibit or restrict the person (without the leave of the Court) from being a director or promoter of, or in any way (whether directly or indirectly) being concerned or taking part in the management of, an incorporated or unincorporated body (other than an overseas company, or an incorporated or unincorporated body, that does not carry on business in New Zealand).
44H: Offence of contravening management banning order
An individual who acts in contravention of a management banning order under section 44F
44I: Only one management banning order may be made for same conduct
If conduct by a person constitutes grounds for making an order under any 1 or more of section 44F of this Act section 60A of the Securities Act 1978 section 43F of the Securities Markets Act 1988 section 383 of the Companies Act 1993
44J: Persons automatically banned from management
1: This section applies to a person if the person has been convicted of an offence against either section 44 or section 44C
2: The person must not, for the period of 5 years after the conviction or making of the order (without the leave of the Court) be a director or promoter of, or in any way (whether directly or indirectly) be concerned or take part in the management of, an incorporated or unincorporated body (other than an overseas company, or an incorporated or unincorporated body, that does not carry on business in New Zealand).
3: An individual who acts in contravention of this section commits an offence and is liable, on conviction on indictment to imprisonment for a term not exceeding 3 years or to a fine not exceeding $100,000, or to both.
44K: General provisions for bans and banning orders
1: The Registrar of the Court must, as soon as practicable after the making of a management banning order under section 44F
a: give notice to the Registrar of Companies and the Panel that the order has been made; and
b: give notice in the Gazette
2: A person intending to apply for the leave of the Court under section 44G or section 44J
3: The Panel, and any other person that the Court thinks fit, may attend and be heard at the hearing of the application. Orders to preserve assets to satisfy claims
44L: When Court may prohibit payment or transfer of money, securities, or other property
1: This section applies if—
a: an investigation is being carried out under this Act in relation to an act or omission by a person, being an act or omission that constitutes or may constitute a contravention of this Act or the takeovers code; or
b: a prosecution has begun against a person for a contravention of this Act; or
c: a civil proceeding has begun against a person under this Act.
2: The Court may, on application by the Panel or by an aggrieved person, make 1 or more of the orders listed in section 44M
3: In this section and section 44M aggrieved person associated persons
a: persons who are relatives within the meaning of the Income Tax Act 2004
b: persons who are partners to whom the Partnership Act 1908
c: bodies corporate that consist of substantially the same shareholders or are under the control of the same persons; or
d: a body corporate and a person who has the power, directly or indirectly, to exercise, or control the exercise of, the right to vote attached to 25% or more of the voting securities of the body corporate; or
e: a body corporate and a person who is a director or principal officer of the body corporate liable relevant person subsection (1) Section 1323(1), Corporations Act 2001
44M: What orders may be made
1: The orders that may be made under section 44L
a: an order prohibiting the relevant person from transferring, charging, or otherwise dealing with money, securities, or other property held or controlled by the relevant person:
b: an order prohibiting a person who is indebted to the relevant person or to an associated person of the relevant person from making a payment in total or partial discharge of the debt to, or to another person at the direction or request of, the person to whom the debt is owed:
c: an order prohibiting a person holding money, securities, or other property, on behalf of the relevant person, or on behalf of an associated person of the relevant person, from paying all or any of the money, or transferring, or otherwise parting with possession of, the securities or other property, to, or to another person at the direction or request of, the person on whose behalf the money, securities, or other property, is or are held:
d: an order prohibiting the taking or sending out of New Zealand by a person of money of the relevant person or of an associated person of the relevant person:
e: an order prohibiting the taking, sending, or transfer by a person of securities or other property of the relevant person, or of an associated person of the relevant person from a place in New Zealand to a place outside New Zealand (including the transfer of securities from a register in New Zealand to a register outside New Zealand):
f: an order requiring the relevant person, or any person holding money, securities, or other property on behalf of the relevant person or an associated person of the relevant person, to pay or transfer money, securities, or other property to a specified person to be held on trust pending determination of the investigation, prosecution, or civil proceeding:
g: an order appointing,—
i: if the relevant person is a natural person, a receiver or trustee, having any powers that the Court orders, of the property or of part of the property of that person; or
ii: if the relevant person is a body corporate, a receiver or receiver and manager, having any powers that the Court orders, of the property or of part of the property of that person:
h: if the relevant person is a natural person, an order requiring that person to deliver up to the Court his or her passport and any other documents that the Court thinks fit:
i: if the relevant person is a natural person, an order prohibiting that person from leaving New Zealand, without the consent of the Court.
2: A reference in subsection (1)(e) or (g)
a: as trustee for, as nominee for, or otherwise on behalf of or on account of, another person; or
b: in a fiduciary capacity.
3: An order may be expressed to operate for a specified period or until the order is discharged by a further order under this section. Section 1323(1), (2A), (6), Corporations Act 2001
44N: Interim orders
1: If an application is made to the Court for an order under section 44L
2: The Court must not require the applicant or any other person, as a condition of granting an interim order under this section, to give an undertaking as to damages.
3: In determining an application for the grant of an interim order, the Court must not take into account that the applicant is not required to give an undertaking as to damages. Section 1323(3), (4), Corporations Act 2001
44O: Relationship with other law
1: Nothing in sections 44L to 44N
2: This section has effect subject to the Insolvency Act 1967 Section 1323(7), (8) Corporations Act 2001
44P: Offence
A person commits an offence who contravenes an order by the Court under section 44M or section 44N
a: in the case of an individual, to imprisonment to a term not exceeding 3 years or to a fine not exceeding $100,000, or both:
b: in the case of a body corporate, to a fine not exceeding $300,000. Section 1323(9), (10), Corporations Act 2001
5: General
44Q: Jurisdiction of Courts in New Zealand
The High Court has exclusive jurisdiction to hear and determine proceedings in New Zealand under this Act, other than proceedings for offences against this Act or appeals under section 31G
44R: Court may order payment of Panel's costs
If the Panel brings proceedings under this Part and the Court makes any order against a person under this Part, the Court may also order that person to pay the Panel's costs and expenses in bringing the proceedings.
44S: Orders to secure compliance
The Court may, for the purpose of securing compliance with any order it makes under this Part, direct a person to do or refrain from doing a specified act.
44T: Giving notice of applications for Court orders
Before making an order under this Part, the Court may direct the person making the application for the order to—
a: give notice of the application to those persons the Court thinks fit:
b: publish notice of the application in the manner the Court thinks fit.
44U: General provisions as to Court's orders
1: An order under this Part may be made on the terms and conditions the Court thinks fit.
2: The Court may revoke, vary, or suspend an order made under this Part on the terms and conditions the Court thinks fit.
44V: Persons entitled to appear before Court
The following persons are entitled to appear and be heard at the hearing of an application to the Court under this Part:
a: the applicant:
b: the Panel:
c: if the specified company's securities are, or were at the material time, quoted on a registered exchange's market, that registered exchange:
d: the specified company:
e: a person who is alleged to have suffered, or to be likely to suffer, loss or damage because of an alleged contravention of this Act or the takeovers code (whether that person or another person makes the allegation):
f: a person who was a security holder of the specified company at the time that the conduct to which the application relates occurred:
g: a person who, at any time within the period of 6 months before the making of the application, has made an offer or offers to acquire securities in the specified company in accordance with the takeovers code:
h: a person directed to be given notice of the application:
i: with the leave of the Court, any other person.
44W: Knowledge of matters presumed if employee or agent knows matters
In any proceedings under this Act, it is presumed, in the absence of proof to the contrary established on the balance of probabilities, that a person knew, at a material time, of any matter if, at that time, an employee or agent of that person knew of the matter in his or her capacity as employee or agent.
44X: No pecuniary penalty and fine for same conduct
A person cannot be ordered to pay a pecuniary penalty and be liable for a fine under this Act for the same conduct.
25: New Part 4 heading substituted
The heading above section 45
4: Miscellaneous
. Amendments to takeovers code
26: Takeovers code substituted
Sections 27 to 29 Schedule Takeovers Code Approval Order 2000
27: Interpretation
1: Rule 3(1) code company code company
a: is a party to a listing agreement with a registered exchange and has securities that confer voting rights quoted on the registered exchange's market; or
b: was within paragraph (a)
c: has 50 or more shareholders .
2: Rule 3(1) engaging in conduct
a: omitting to do an act; or
b: making it known that an act will or will not be done .
3: Rule 3
3: The definition of code company specified company
28: Offer period
Rule 24
4: If the offer period is extended by the Panel by order made under section 32 of the Act
29: New Part 8 added
The following Part is added after rule 63
8: Market manipulation
64: Misleading or deceptive conduct
1: A person must not engage in conduct that is—
a: conduct in relation to any transaction or event that is regulated by this code; and
b: misleading or deceptive or likely to mislead or deceive.
2: A person must not engage in conduct that is—
a: incidental or preliminary to a transaction or event that is or is likely to be regulated by this code; and
b: misleading or deceptive or likely to mislead or deceive.
65: Exception for disclosure by investment advisers or brokers
Rule 64 Part 4 of the Securities Markets Act 1988 Part 4 of that Act Amendments to replace references to takeovers schemes
30: Amendments to replace references to takeovers schemes
1: Section 67C(4) Companies Act 1993 a takeover scheme under section 4 of the Companies Amendment Act 1963 a takeover offer made under the takeovers code in force under the Takeovers Act 1993
2: Section 26(3) Co-operative Companies Act 1996 a takeover scheme under section 4 of the Companies Amendment Act 1963 a takeover offer made under the takeovers code in force under the Takeovers Act 1993 Transitional provisions
31: Transitional provision for acquisitions made or committed to before commencement of this section
No amendment made by this Act requires a person to comply with the principal Act or the code—
a: by reason only of the fact that, on the commencement of this section, a particular proportion of securities have been acquired in a code company
b: by reason of the acquisition of securities in a code company Section 31(a) amended 7 July 2010 section 20 Takeovers Amendment Act 2010 Section 31(b) amended 7 July 2010 section 20 Takeovers Amendment Act 2010
32: Transitional provision for existing offences and contraventions
1: The principal Act and the code continue to have effect as if they were not amended by this Act for the purpose of—
a: investigating an existing offence or contravention:
b: commencing or completing proceedings for an existing offence or contravention:
c: imposing a penalty or other remedy, or making an order, in relation to an existing offence or contravention.
2: In this section, existing offence or contravention