Takeovers Act 1993

1: Short Title and commencement
1: This Act may be cited as the Takeovers Act 1993.
2: Except as provided in subsection (3), this Act shall come into force on 1 July 1994.
3: Section 17 Part 3 Section 1(3) replaced 1 June 2001 section 3 Takeovers Amendment Act 2001
2: Interpretation
1: In this Act, unless the context otherwise requires,— accounting period section 5(1) code company
a: has the meaning given to it in section 2A
b: includes, for the purpose set out in section 2AB company section 2(1) court director
a: in relation to a company, means a person occupying the position of a director of the company, by whatever name called; and
b: in relation to a partnership (other than a special partnership or a limited partnership), means a partner; and
c: in relation to a special partnership or a limited partnership, means a general partner; and
d: in relation to a body corporate or unincorporate not referred to in paragraphs (a) to (c), means a person occupying a position in the body corporate or unincorporate
e: in relation to any other person, means that person; and
f: includes a person in accordance with whose directions or instructions a person referred to in paragraphs (a) to (e) may be required or is accustomed to act in respect of the performance or exercise of duties or powers as, or comparable to those of, a director document
a: anything on which there is writing or any image; and
b: information recorded by means of any article or device (for example, a disk) from which information is capable of being reproduced with or without the aid of any other article or device; and
c: material subsequently derived from information recorded by that means financial product
a: means—
i: an equity security within the meaning of section 8
ii: a debt security, within the meaning of section 8
iii: a managed investment product, within the meaning of section 8
b: includes a financial product that is convertible, at the option of the product holder, into a financial product of the type referred to in paragraph (a)﻿(i), (ii), or (iii) FMA Part 2 licensed market section 6(1) licensed market operator section 6(1) listed issuer section 6(1) Minister overseas regulator Panel
a: means the Takeovers Panel established under Part 1
b: for the purposes of determining any matter or class of matter specified in a determination under section 7A section 7C(1)﻿(a) quoted Registrar Companies Act 1993 subsidiary sections 5 to 8 takeovers code section 19 voting right
a: during a period in which a payment or distribution (or part of a payment or distribution) in respect of the financial product
b: on a proposal that affects rights attached to the financial product
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.
2: In sections 32 33 33AA subpart 2 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. Section 2(1) accounting period inserted 13 January 2020 section 116(1) Regulatory Systems (Economic Development) Amendment Act 2019 Section 2(1) code company replaced 13 January 2020 section 116(2) Regulatory Systems (Economic Development) Amendment Act 2019 Section 2(1) company replaced 25 October 2006 section 4(1) Takeovers Amendment Act 2006 Section 2(1) court replaced 1 December 2002 section 4(1) Takeovers Amendment Act 2002 Section 2(1) director replaced 3 July 2014 section 31(2) Companies Amendment Act 2014 Section 2(1) director amended 31 March 2017 section 126 Regulatory Systems (Commercial Matters) Amendment Act 2017 Section 2(1) document replaced 1 December 2002 section 4(2) Takeovers Amendment Act 2002 Section 2(1) financial product inserted 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 2(1) FMA inserted 1 May 2011 section 82 Financial Markets Authority Act 2011 Section 2(1) licensed market inserted 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 2(1) licensed market operator inserted 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 2(1) listed issuer inserted 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 2(1) Minister replaced 1 October 1995 section 10(3) Department of Justice (Restructuring) Act 1995 Section 2(1) overseas regulator inserted 1 December 2002 section 4(3) Takeovers Amendment Act 2002 Section 2(1) Panel replaced 25 January 2005 section 200 Crown Entities Act 2004 Section 2(1) public issuer repealed 25 October 2006 section 4(4) Takeovers Amendment Act 2006 Section 2(1) quoted replaced 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 2(1) registered exchange repealed 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 2(1) registered exchange's market repealed 24 November 2009 section 23(1) Securities Markets Amendment Act 2009 Section 2(1) registered exchange's securities market repealed 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 2(1) Registrar inserted 1 June 2001 section 4 Takeovers Amendment Act 2001 Section 2(1) Securities Commission repealed 1 May 2011 section 82 Financial Markets Authority Act 2011 Section 2(1) security repealed 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 2(1) specified company repealed 7 July 2010 section 4(3) Takeovers Amendment Act 2010 Section 2(1) stock exchange repealed 1 December 2002 section 30 Securities Markets Amendment Act 2002 Section 2(1) subsidiary inserted 13 January 2020 section 116(1) Regulatory Systems (Economic Development) Amendment Act 2019 Section 2(1) takeovers code inserted 1 December 2002 section 4(3) Takeovers Amendment Act 2002 Section 2(1) voting right inserted 25 October 2006 section 4(3) Takeovers Amendment Act 2006 Section 2(1) voting right amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 2(1) voting right amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 2(2) replaced 25 October 2006 section 4(5) Takeovers Amendment Act 2006
2A: Meaning of code company
1: Code company a company—
a: that is
b: that was takeovers code
c: that—
i: has 50 or more shareholders and 50 or more share parcels; and
ii: is at least medium-sized.
2:
3: In this section, shareholder financial product
4: In this section, a company is at least medium-sized
a: the company has completed 1 or more accounting periods and either or both of the following are true:
i: on the last day of the company’s most recently completed accounting period, the total assets of the company and its subsidiaries (if any) are at least $30 million:
ii: in the most recently completed accounting period, the total revenue of the company and its subsidiaries (if any) is at least $15 million; or
b: the company has not completed its first accounting period and on the last day of the most recently completed month the total assets of the company and its subsidiaries (if any) are at least $30 million. Section 2A inserted 31 August 2012 section 5 Takeovers Amendment Act 2012 Section 2A(1) amended 13 January 2020 section 117(1) Regulatory Systems (Economic Development) Amendment Act 2019 Section 2A(1)﻿(a) replaced 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 2A(1)﻿(a) amended 13 January 2020 section 117(2) Regulatory Systems (Economic Development) Amendment Act 2019 Section 2A(1)﻿(b) amended 13 January 2020 section 117(3) Regulatory Systems (Economic Development) Amendment Act 2019 Section 2A(1)﻿(c) replaced 13 January 2020 section 117(4) Regulatory Systems (Economic Development) Amendment Act 2019 Section 2A(2) repealed 13 January 2020 section 117(5) Regulatory Systems (Economic Development) Amendment Act 2019 Section 2A(3) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 2A(4) inserted 13 January 2020 section 117(6) Regulatory Systems (Economic Development) Amendment Act 2019
2AB: Extended meaning of code company for purpose of completing code-regulated transactions
1: This section applies if a company ceases to be a code company within the meaning of section 2A(1)
2: The company continues to be treated as a code company for the purpose of completing the transaction or event, until the transaction or event is complete and all requirements of the code in relation to the transaction or event have been complied with.
3: For the purposes of subsection (2), if, as a result of the transaction or event, a person becomes a dominant owner in the company, completing the transaction or event Part 7
4: Subsection (2) does not prevent the company from again becoming a code company under section 2A(1)
5: In this section,—
a: dominant owner
b: words or expressions used in the definition of dominant owner have the same meanings as they have in the takeovers code:
c: a reference to rules in Part 7 Section 2AB inserted 13 January 2020 section 118 Regulatory Systems (Economic Development) Amendment Act 2019
2B: Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1AA Section 2B inserted 31 March 2017 section 127 Regulatory Systems (Commercial Matters) Amendment Act 2017
3: Act to bind the Crown
This Act binds the Crown.
4: Object of this Act
The object of this Act is to—
a: establish a panel to be called the Takeovers Panel
b: empower the Minister, in consultation with the Panel, to formulate and make recommendations concerning the takeovers code (which sets out the rules applying to takeovers of code companies
c: provide for the administration and enforcement of the takeovers code:
ca: provide criminal liability for false or misleading statements or information in relation to takeovers of code companies
d: empower the Panel to keep under review, and promote public understanding of, the law relating to takeovers of code companies
e: empower the Panel to co-operate with overseas regulators. Section 4(a) amended 1 December 2002 section 5(1) Takeovers Amendment Act 2002 Sections 4(b) replaced 1 December 2002 section 5(2) Takeovers Amendment Act 2002 Section 4(b) amended 7 July 2010 section 5 Takeovers Amendment Act 2010 Sections 4(c) replaced 1 December 2002 section 5(2) Takeovers Amendment Act 2002 Section 4(ca) inserted 25 October 2006 section 5 Takeovers Amendment Act 2006 Section 4(ca) amended 7 July 2010 section 5 Takeovers Amendment Act 2010 Sections 4(d) replaced 1 December 2002 section 5(2) Takeovers Amendment Act 2002 Section 4(d) amended 7 July 2010 section 5 Takeovers Amendment Act 2010 Sections 4(e) replaced 1 December 2002 section 5(2) Takeovers Amendment Act 2002
1: Takeovers Panel
5: Establishment of Takeovers Panel
1: There is hereby established a panel to be called the Takeovers Panel.
2: The Panel is a Crown entity for the purposes of section 7
3: The Crown Entities Act 2004
4: Members of the Panel are the board for the purposes of the Crown Entities Act 2004 Section 5(2) replaced 25 January 2005 section 200 Crown Entities Act 2004 Sections 5(3) inserted 25 January 2005 section 200 Crown Entities Act 2004 Sections 5(4) inserted 25 January 2005 section 200 Crown Entities Act 2004
6: Membership of Panel
1: The Panel shall consist of not less than 5 and not more than 11
2: Despite clause 1(2)
2A: The chairperson and any deputy chairperson of the Panel may only be removed from office as chairperson or deputy chairperson for just cause.
3: At least 1 member of the Panel must be a barrister, a solicitor, or a barrister and solicitor
4: The Minister must not recommend a person for appointment as a member of the Panel unless, in the opinion of the Minister, that person is qualified or experienced in business, accounting, or law.
5: Subsection (4) does not limit section 29 Section 6(1) amended 25 January 2005 section 200 Crown Entities Act 2004 Section 6(1) amended 1 December 2002 section 6(1) Takeovers Amendment Act 2002 Section 6(2) replaced 25 January 2005 section 200 Crown Entities Act 2004 Section 6(2A) inserted 25 January 2005 section 200 Crown Entities Act 2004 Section 6(3) amended 1 December 2002 section 6(2) Takeovers Amendment Act 2002 Section 6(4) replaced 25 January 2005 section 200 Crown Entities Act 2004 Section 6(5) inserted 25 January 2005 section 200 Crown Entities Act 2004
7: Associate members
Section 7 repealed 1 December 2002 section 7(1) Takeovers Amendment Act 2002
7A: Panel may act by divisions
1: The Panel or chairperson may determine that the powers of the Panel in relation to any matter or class of matters may be exercised by separate divisions of the Panel.
2: However, the Panel or chairperson must not determine that a separate division of the Panel may exercise—
a: any power in connection with the performance of its functions under section 8(1)﻿(a)
b: the power of the Panel to grant an exemption under section 45(1)﻿(c)
3: The Panel or chairperson may revoke or amend a determination made under subsection (1).
4: Every determination (or revocation or amendment of a determination) must be recorded in writing and signed by 3 members or the chairperson.
5: The powers in this section are an exception to clause 14
6: Clause 7 Section 7A replaced 1 December 2002 section 8 Takeovers Amendment Act 2002 Section 7A(2)﻿(b) amended 5 August 2013 section 77(3) Legislation Act 2012 Section 7A(5) inserted 25 January 2005 section 200 Crown Entities Act 2004 Section 7A(6) inserted 25 January 2005 section 200 Crown Entities Act 2004
7B: Membership and chairperson of division
1: Each division consists of the members who are assigned to it for the time being by the Panel or the chairperson.
1A: Each division must have at least 3 members.
2: If the members appointed to a division do not include either the chairperson or the deputy chairperson, the Panel or
3:
4: Section 7B inserted 1 June 2001 section 5(1) Takeovers Amendment Act 2001 Section 7B(1) replaced 1 December 2002 section 9(1) Takeovers Amendment Act 2002 Section 7B(1A) inserted 1 December 2002 section 9(1) Takeovers Amendment Act 2002 Section 7B(2) amended 1 December 2002 section 9(2) Takeovers Amendment Act 2002 Section 7B(3) repealed 25 January 2005 section 200 Crown Entities Act 2004 Section 7B(4) repealed 25 January 2005 section 200 Crown Entities Act 2004
7C: Powers of division
1: For the purposes of determining any matter or class of matter specified in a determination section 7A
a: the Panel consists determination
b: the powers of any such division are not affected by any changes or vacancies in its membership.
2: A division of the Panel may exercise powers of the Panel under this Act even though another division of the Panel is exercising powers of the Panel at the same time.
3: A resolution signed or assented to in writing (whether sent by post, delivery, or electronic communication) by all members of a division is as valid and effectual as if it had been passed at a meeting of that division duly called and constituted.
4: The resolution may consist of several documents containing the same resolution, each signed or assented to in writing by 1 or more members. Section 7C inserted 1 June 2001 section 5(1) Takeovers Amendment Act 2001 Section 7C(1) amended 1 December 2002 section 10(1) Takeovers Amendment Act 2002 Section 7C(1)﻿(a) amended 1 December 2002 section 10(1) Takeovers Amendment Act 2002 Section 7C(1)﻿(a) amended 1 December 2002 section 10(2) Takeovers Amendment Act 2002 Section 7C(3) inserted 31 August 2012 section 6 Takeovers Amendment Act 2012 Section 7C(4) inserted 31 August 2012 section 6 Takeovers Amendment Act 2012
8: Functions of Panel
1: The Panel has the following functions:
a: to keep under review the law relating to takeovers of code companies
b:
c: for the purposes of paragraph (a) code companies
d: to investigate any act or omission or practice for the purpose of exercising its powers and functions under Parts 3 4
e: to make determinations and orders and make applications to the court in accordance with Part 3
eaa: to make determinations in relation to the reimbursement of expenses under sections 47 to 53
ea: to co-operate with any overseas regulator and, for that purpose (but without limiting this function), to communicate, or make arrangements for communicating, to that overseas regulator information obtained by the Panel in the performance of its functions and powers (whether or not confidential) that the Panel considers may assist that overseas regulator in the performance of its functions:
eb: to consider applications for an order under section 236(1) section 236A
f: to promote public understanding of the law and practice relating to takeovers:
g: to perform such other functions as are conferred on it by this Act.
2: In the exercise of its functions and powers under Parts 3 4
3: Except as expressly provided otherwise in this or any other Act, the Panel must act independently in performing its statutory functions and duties, and exercising its statutory powers, under—
a: this Act; and
b: any other Act that expressly provides for the functions, powers, or duties of the Panel (other than the Crown Entities Act 2004 Section 8(1)﻿(a) replaced 1 December 2002 section 11(1) Takeovers Amendment Act 2002 Section 8(1)﻿(a) amended 7 July 2010 section 6(1) Takeovers Amendment Act 2010 Section 8(1)﻿(b) repealed 1 December 2002 section 11(1) Takeovers Amendment Act 2002 Section 8(1)﻿(c) amended 7 July 2010 section 6(1) Takeovers Amendment Act 2010 Section 8(1)﻿(c) amended 1 December 2002 section 11(2) Takeovers Amendment Act 2002 Section 8(1)﻿(d) amended 7 July 2010 section 6(2) Takeovers Amendment Act 2010 Section 8(1)﻿(eaa) inserted 31 March 2017 section 128 Regulatory Systems (Commercial Matters) Amendment Act 2017 Section 8(1)﻿(ea) inserted 1 December 2002 section 11(3) Takeovers Amendment Act 2002 Section 8(1)﻿(eb) inserted 3 July 2014 section 31(3) Companies Amendment Act 2014 Section 8(2) amended 7 July 2010 section 6(3) Takeovers Amendment Act 2010 Section 8(3) inserted 25 January 2005 section 200 Crown Entities Act 2004
9: Powers of Panel to take evidence
Section 9 repealed 1 December 2002 section 12 Takeovers Amendment Act 2002
10: Provisions relating to certain proceedings before Panel
Section 10 repealed 1 December 2002 section 12 Takeovers Amendment Act 2002
11: Protection from liability for Panel and members, officers, and employees
1: No proceedings, civil or criminal, shall lie against the Panel for anything it may do or fail to do in the course of the exercise or intended exercise of its functions, unless it is shown that the Panel acted without reasonable care or in bad faith.
2: No proceedings, civil or criminal, lie against any member of the Panel, or any officer or employee of the Panel, or any member of a committee of the Panel, for anything that person may do or say or fail to do or say in the course of the operations of the Panel, unless it is shown by the Panel that the person acted in bad faith.
3: Nothing in subsections (1) and (2) applies in respect of proceedings for—
a: an offence against section 78 section 78A section 105 section 105A
b: the offence of conspiring to commit an offence against section 78 section 78A section 105 section 105A
c: the offence of attempting to commit an offence against section 78 section 78A section 105 section 105A
3A: Section 59(3)
3B: Sections 122 to 126
3C: This section contains an exception to section 121
4:
5:
6:
7:
8:
9:
10: For the purposes of clause 3
11: 1986 No 5 s 106 s 39 Section 11 heading replaced 1 December 2002 section 13(1) Takeovers Amendment Act 2002 Section 11(2) replaced 25 January 2005 section 200 Crown Entities Act 2004 Section 11(3A) inserted 25 January 2005 section 200 Crown Entities Act 2004 Section 11(3B) inserted 25 January 2005 section 200 Crown Entities Act 2004 Section 11(3C) inserted 25 January 2005 section 200 Crown Entities Act 2004 Section 11(4) repealed 1 December 2002 section 13(3) Takeovers Amendment Act 2002 Section 11(5) repealed 1 December 2002 section 13(3) Takeovers Amendment Act 2002 Section 11(6) repealed 1 December 2002 section 13(3) Takeovers Amendment Act 2002 Section 11(7) repealed 1 December 2002 section 13(3) Takeovers Amendment Act 2002 Section 11(8) repealed 1 December 2002 section 13(3) Takeovers Amendment Act 2002 Section 11(9) repealed 1 December 2002 section 13(3) Takeovers Amendment Act 2002 Section 11(11) repealed 25 January 2005 section 200 Crown Entities Act 2004
12: Meetings
Section 12 repealed 1 December 2002 section 14 Takeovers Amendment Act 2002
13: Power to prohibit disclosure of information, documents, and evidence
Section 13 repealed 1 December 2002 section 14 Takeovers Amendment Act 2002
14: Delegation
1: The Panel may not delegate the powers in sections 31A, 31X 32 45(1)
2: In other respects, section 73 Section 14 replaced 25 January 2005 section 200 Crown Entities Act 2004 Section 14(1) amended 25 October 2006 section 6 Takeovers Amendment Act 2006
15: Powers
Section 15 repealed 25 January 2005 section 200 Crown Entities Act 2004
15A: Sharing of information and documents with FMA
1: The Panel may provide to the FMA any information, or a copy of any document, 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 FMA in the exercise of the FMA's powers or the performance of its functions and duties under any enactment.
2: The Panel may use any information, or a copy of any document, provided to it by the FMA under section 30
3: This section applies despite anything to the contrary in any contract, deed, or document.
4: Nothing in this section limits the Privacy Act 2020 Section 15A replaced 1 May 2011 section 82 Financial Markets Authority Act 2011 Section 15A(4) amended 1 December 2020 section 217 Privacy Act 2020
15B: Sharing of information and documents with Commerce Commission
1: The Panel may provide to the Commerce Commission any information, or a copy of any document, 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, or a copy of any document, provided to it by the Commerce Commission under section 99AA
3: This section applies despite anything to the contrary in any contract, deed, or document.
4: Nothing in this section limits the Privacy Act 2020 Section 15B replaced 1 May 2011 section 82 Financial Markets Authority Act 2011 Section 15B(2) amended 5 May 2022 section 46(2) Commerce Amendment Act 2022 Section 15B(4) amended 1 December 2020 section 217 Privacy Act 2020
15C: Sharing of information and documents with licensed market operators
1: The Panel may provide to a licensed market operator any information, or a copy of any document, 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 licensed market operator in the exercise of the operator’s powers, or the performance of its functions and duties, under any enactment or any market rules (within the meaning of section 6(1)
2: The Panel may use any information, or a copy of any document, provided to it by a licensed market operator under section 357 358
3: This section applies despite anything to the contrary in any contract, deed, or document.
4: Nothing in this section limits the Privacy Act 2020 Section 15C inserted 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 15C(4) amended 1 December 2020 section 217 Privacy Act 2020
16: Annual reports
Section 16 repealed 25 January 2005 section 200 Crown Entities Act 2004
17: Annual fee in respect of funding of Panel
1: Each code company
2: Any such fee shall be—
a: payable to the Registrar of Companies upon delivery to the Registrar of the company's annual return; and
b: payable in addition to any fee payable in respect of the annual return; and
c: recoverable by the Registrar in any court of competent jurisdiction as a debt due to the Crown.
3: The Registrar of Companies shall, as soon as practicable, remit to the Panel the fees paid under this section. Section 17(1) amended 7 July 2010 section 7 Takeovers Amendment Act 2010
17A: Panel deemed to be public authority
Section 17A repealed 25 January 2005 section 200 Crown Entities Act 2004
18: Further provisions applying to Panel
The provisions set out in Schedule 1 Section 18 amended 31 March 2017 section 129 Regulatory Systems (Commercial Matters) Amendment Act 2017
2: Takeovers code
19: Power to make takeovers code
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations setting out the rules applying to takeovers of code companies takeovers code
2: The Minister must formulate and make his or her recommendations in accordance with this Part.
3: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 19 replaced 1 December 2002 section 16 Takeovers Amendment Act 2002 Section 19(1) amended 7 July 2010 section 8 Takeovers Amendment Act 2010 Section 19(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
20: Objectives of takeovers code
1: In formulating recommendations concerning a takeovers code, the Minister
a: encouraging the efficient allocation of resources:
b: encouraging competition for the control of code companies
c: assisting in ensuring that the holders of financial products
d: promoting the international competitiveness of New Zealand's capital markets:
e: recognising that the holders of financial products
f: maintaining a proper relation between the costs of compliance with the code and the benefits resulting from it.
2: In formulating recommendations concerning a takeovers code, it is for the Minister to determine the weight that should be given to any particular objective or objectives referred to in subsection (1).
3:
4: Section 20(1) amended 1 December 2002 section 17(1) Takeovers Amendment Act 2002 Section 20(1)﻿(b) amended 7 July 2010 section 9 Takeovers Amendment Act 2010 Section 20(1)﻿(c) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 20(1)﻿(e) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 20(2) replaced 1 December 2002 section 17(2) Takeovers Amendment Act 2002 Section 20(3) repealed 1 December 2002 section 17(2) Takeovers Amendment Act 2002 Section 20(4) repealed 1 December 2002 section 17(2) Takeovers Amendment Act 2002
21: Matters to be considered by
Minister in making recommendations concerning Without limiting the matters that the Minister may consider, the Minister must, in formulating recommendations concerning
a: that advance notice and publicity should be given of takeovers:
b: that in a takeover, the code company financial product
c: that in a takeover, offers should be made to all financial product financial product financial product
d: that incremental acquisitions and partial bids should be permitted:
e: that there should be rules to determine the price or prices payable for the acquisition of financial products
f: for the compulsory acquisition of financial products code company financial product
g: for the regulation of defensive tactics. Section 21 heading amended 1 December 2002 section 18(1) Takeovers Amendment Act 2002 Section 21 amended 1 December 2002 section 18(2) Takeovers Amendment Act 2002 Section 21(b) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 21(b) amended 7 July 2010 section 10 Takeovers Amendment Act 2010 Section 21(c) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 21(e) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 21(f) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 21(f) amended 7 July 2010 section 10 Takeovers Amendment Act 2010
22: Specific provisions applying to takeovers code
Without limiting section 19 section 23
a: define the transactions or classes of transactions in relation to which the code applies and for that purpose define terms and expressions used in the code in such manner as it thinks fit:
b: prescribe the requirements in relation to offers and the making of offers to acquire financial products code company
c: prescribe the information, statements, certificates, and documents or other matters that must be supplied to a code company financial product code company
d: prescribe requirements for the registration by the Registrar of Companies of documents in connection with a takeover:
e: prescribe the duties and obligations of a code company code company Section 22 amended 1 December 2002 section 19 Takeovers Amendment Act 2002 Section 22(b) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 22(b) amended 7 July 2010 section 11 Takeovers Amendment Act 2010 Section 22(c) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 22(c) amended 7 July 2010 section 11 Takeovers Amendment Act 2010 Section 22(e) amended 7 July 2010 section 11 Takeovers Amendment Act 2010
23: Takeovers code not to apply in certain cases
Nothing in the takeovers code shall require any person to comply with the code—
a: by reason only of the fact that, on the coming into force of the code, a particular proportion of financial products code company
b: by reason of the acquisition of financial products code company Section 23(a) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 23(a) amended 7 July 2010 section 12 Takeovers Amendment Act 2010 Section 23(b) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 23(b) amended 7 July 2010 section 12 Takeovers Amendment Act 2010 Section 23(b) amended 1 December 2002 section 20 Takeovers Amendment Act 2002
23A: Takeovers code does not apply where court order under section 236 of Companies Act 1993
The takeovers code does not apply where the court has made an order under section 236(1) section 236A Section 23A inserted 3 July 2014 section 31(4) Companies Amendment Act 2014
24: Co-ordination with Australia
In formulating recommendations concerning a takeovers code, the Minister must have regard, as far as practicable, to any principles applying to the co-ordination of business law between Australia and New Zealand set out in any agreement or memorandum of understanding between the Governments of Australia and New Zealand. Section 24 replaced 1 December 2002 section 21 Takeovers Amendment Act 2002
25: Minister to consult Panel
The Minister must, in formulating recommendations concerning a takeovers code, consult the Panel. Section 25 replaced 1 December 2002 section 21 Takeovers Amendment Act 2002
26: Panel to consult with Minister
Section 26 repealed 1 December 2002 section 21 Takeovers Amendment Act 2002
27: Action taken by Takeover Panel Advisory Committee
Section 27 repealed 1 December 2002 section 21 Takeovers Amendment Act 2002
28: Approval of takeovers code
Section 28 repealed 1 December 2002 section 21 Takeovers Amendment Act 2002
29: Order in Council deemed to be regulation
Section 29 repealed 1 December 2002 section 21 Takeovers Amendment Act 2002
30: Minister may request formulation of further takeovers code
Section 30 repealed 1 December 2002 section 21 Takeovers Amendment Act 2002
31: Revocation of takeovers code
Section 31 repealed 1 December 2002 section 21 Takeovers Amendment Act 2002
3: Investigation and enforcement
Part 3 inserted 1 June 2001 section 9 Takeovers Amendment Act 2001 Part 3 Part number and heading: replaced section 22 Takeovers Amendment Act 2002
1: Investigation and enforcement by Panel
Subpart 1 heading: inserted 25 October 2006 section 8 Takeovers Amendment Act 2006 Panel's powers of inspection Heading: replaced section 22 Takeovers Amendment Act 2002
31A: Power to inspect documents
1: The Panel may, in accordance with section 31BA
a: require any person to produce for inspection any document kept by that person:
b: if necessary, require any person to reproduce, or assist in reproducing, in usable form, information recorded in that document:
c: inspect and make records of that document:
d: for the purpose of making records of that document, take possession of that document, or any article or thing that the Panel reasonably requires to make a record of that document, and remove the document, article, or thing from the premises where it is kept for the period of time that is reasonable in the circumstances.
2: Documents may be required under this section either specifically, generally, or by class, nature, content, or effect. Section 31A replaced 1 December 2002 section 22 Takeovers Amendment Act 2002
31B: Power to request or approve Registrar or authorised person to inspect documents
1: The Panel may, in accordance with sections 31BA 31BB section 31A(1)
2: A request or approval under subsection (1) may relate to a particular case, or a class or classes of cases, specified by the Panel.
3: The fact that the Registrar, or any person authorised by the Panel or Registrar, does, or attempts to do, any of the things in section 31A(1)
4: This section applies despite section 73 Section 31B replaced 1 December 2002 section 22 Takeovers Amendment Act 2002 Section 31B(4) inserted 25 January 2005 section 200 Crown Entities Act 2004
31BA: Limits on exercise of power to inspect documents
The Panel may only carry out an inspection under section 31A section 31B
a: the inspection is for the purposes of—
i: this Act:
ii: complying with the request of an overseas regulator under section 31P
b: the Panel first considers, along with any other relevant matters, any matters relating to the necessity or expediency of carrying out an inspection (for example, whether it is practicable to obtain the information from other sources or by other means in the time available). Section 31BA inserted 1 December 2002 section 22 Takeovers Amendment Act 2002
31BB: Requirements for persons authorised to inspect documents
1: The Panel or Registrar must not authorise a person to carry out an inspection under section 31A
2: A person authorised by the Panel or Registrar to carry out an inspection under section 31A Section 31BB inserted 1 December 2002 section 22 Takeovers Amendment Act 2002
31C: Disclosure of information from inspection
1: On the direction of the Panel or Registrar, a person who has made an inspection under section 31A
a: this Act, the Financial Markets Authority Act 2011 Schedule 1
b: detecting and prosecuting offences against any enactments other than those referred to in paragraph (a)
c: assisting the Panel to comply with the request of an overseas regulator under section 31P
2: The Minister may, by written notice, require the Panel or Registrar to give a direction under subsection (1), and the Panel or Registrar must comply with that requirement.
2A: Section 115
3: The Panel may, by written notice, require the Registrar to give a direction under subsection (1), and the Registrar must comply with that requirement.
4: This section is subject to section 31X section 44 Financial Markets Authority Act 2011 Section 31C replaced 1 December 2002 section 23 Takeovers Amendment Act 2002 Section 31C(1)﻿(a) replaced 1 May 2011 section 82 Financial Markets Authority Act 2011 Section 31C(1)﻿(b) amended 1 May 2011 section 82 Financial Markets Authority Act 2011 Section 31C(2A) inserted 25 January 2005 section 200 Crown Entities Act 2004 Section 31C(4) amended 1 May 2011 section 82 Financial Markets Authority Act 2011
31D: Powers not limited
Sections 31A 31B 31C Panel, Registrar, Companies Act 1993 1978 No 103 s 67(7) Section 31D inserted 1 June 2001 section 9 Takeovers Amendment Act 2001 Section 31D amended 1 December 2002 section 24 Takeovers Amendment Act 2002
31E: Non-disclosure of information from inspection
A person must not communicate to any other person any information acquired in the course of an inspection under section 31A
a: in accordance with section 31C
b: for the purposes of this Act, the Financial Markets Authority Act 2011 Schedule 1
c: in accordance with the Official Information Act 1982 Privacy Act 2020
d: in the course of any criminal proceedings (but subject to the limitation in section 31C(1)﻿(b) 1978 No 103 s 67A(1) Section 31E inserted 1 June 2001 section 9 Takeovers Amendment Act 2001 Section 31E(b) replaced 1 May 2011 section 82 Financial Markets Authority Act 2011 Section 31E(c) amended 1 December 2020 section 217 Privacy Act 2020 Section 31E(d) amended 1 December 2002 section 25(2) Takeovers Amendment Act 2002
31EA: No privilege against self-incrimination
Section 33B section 31A Section 31EA inserted 1 December 2002 section 26 Takeovers Amendment Act 2002
31EB: Protections from liability for persons exercising powers of inspection
Without limiting any other statutory protection from liability, no person is liable for any act done or omitted to be done by the person in the performance or intended performance of the person's powers under section 31A section 31C section 31E Section 31EB inserted 1 December 2002 section 26 Takeovers Amendment Act 2002 Offences Heading repealed 1 December 2002 section 27 Takeovers Amendment Act 2002
31F: Offences
1: Every person commits an offence who—
a: refuses or fails, without reasonable excuse, to produce any document for inspection, or reproduce or assist in reproducing, in usable form, information recorded in that document, when required to do so under section 31A
b: wilfully resists or obstructs, or deceives or attempts to deceive, the Panel or Registrar, or any person authorised by the Panel or Registrar, in carrying out an inspection under section 31A
c: is not the Panel, the Registrar, or a person authorised by the Panel or Registrar to carry out an inspection under section 31A
d: wilfully contravenes section 31E
2: Every person who commits an offence against subsection (1) is liable on Section 31F replaced 1 December 2002 section 28 Takeovers Amendment Act 2002 Section 31F(2) amended] 1 July 2013 section 413 Criminal Procedure Act 2011 Appeals Heading repealed 1 December 2002 section 29 Takeovers Amendment Act 2002
31G: Rights of appeal
A person who is aggrieved by an act or decision of the Panel or Panel or sections 31A to 31C 1978 No 103 ss 68(1) 69A(1) Section 31G inserted 1 June 2001 section 9 Takeovers Amendment Act 2001 Section 31G amended 1 December 2002 section 30 Takeovers Amendment Act 2002
31H: Time for appeal
An appeal under section 31G
a: within 21 days of the date on which the person was notified of the act, decision, or refusal; or
b: within any longer time allowed by the court. 1978 No 103 ss 68(1) 69A(1) Section 31H inserted 1 June 2001 section 9 Takeovers Amendment Act 2001
31I: Situation while appeal pending
While any appeal made under section 31G
a: the Panel or Panel or the sections 31A to 31C
b: no person is excused from fulfilling his or her obligations under any of those sections by reason of the appeal; and
c: information that is obtained as a result of an inspection to which the appeal relates is not admissible as evidence in any criminal proceedings against the person to whom the information relates. 1978 No 103 s 68(3) Section 31I inserted 1 June 2001 section 9 Takeovers Amendment Act 2001 Section 31I(a) amended 1 December 2002 section 31(1) Takeovers Amendment Act 2002 Section 31I(a) amended 1 December 2002 section 31(2) Takeovers Amendment Act 2002
31J: Determination of appeal
The court must determine the appeal by either dismissing the appeal or giving such directions or making such determination in the matter as it thinks fit. 1978 No 103 ss 68(2) 69A(2) Section 31J inserted 1 June 2001 section 9 Takeovers Amendment Act 2001
31K: Requirements where appeal allowed
To the extent that an appeal in respect of an act or decision of the Panel or Panel or sections 31A to 31C
a: the Panel or Panel or Panel or section 31A(1)﻿(c)
b: no information acquired under paragraph (a) or paragraph (b) of section 31A(1) 1978 No 103 s 68(3) Section 31K inserted 1 June 2001 section 9 Takeovers Amendment Act 2001 Section 31K amended 1 December 2002 section 32 Takeovers Amendment Act 2002 Section 31K(a) amended 1 December 2002 section 32 Takeovers Amendment Act 2002 Panel's powers for receiving evidence Heading inserted 1 December 2002 section 33 Takeovers Amendment Act 2002
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) does not apply, and the evidence must be received at a meeting of the Panel; and
b: the meeting must not be held by a method under clause 8(b) Section 31L replaced 25 October 2006 section 9 Takeovers Amendment Act 2006
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 Section 31M replaced 25 October 2006 section 9 Takeovers Amendment Act 2006
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. Section 31MA inserted 25 October 2006 section 9 Takeovers Amendment Act 2006
31N: Power to summon witnesses
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: The summons must be in writing, be signed by a member of the Panel, and state—
a: the date and time when, and the place where, the person must attend; and
b: the documents or information that the person is required to provide (either generally, specifically, or by class, nature, content, or effect); and
c: the person's right to request that the person
d: the penalty for failing to attend under section 44
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. 1978 No 103 s 18(3) s 9(3) Section 31N inserted 1 December 2002 section 33 Takeovers Amendment Act 2002 Section 31N(1) replaced 25 October 2006 section 10(1) Takeovers Amendment Act 2006 Section 31N(2)﻿(c) amended 25 October 2006 section 10(2) Takeovers Amendment Act 2006 Section 31N(3) replaced 25 October 2006 section 10(3) Takeovers Amendment Act 2006
31O: Witnesses' expenses
1: If a person has appeared as a witness (whether summoned or not), the Panel may, if it thinks fit, order any sum to be paid to that witness for his or her expenses.
2: That sum must not exceed the amount that would be payable to the witness if his or her attendance had been as a witness for the Crown in a criminal case in accordance with regulations for the time being in force for the payment of witnesses for the Crown in criminal cases. 1978 No 103 s 18(5) s 9(5) Section 31O inserted 1 December 2002 section 33 Takeovers Amendment Act 2002 Exercise of inspection and evidence powers for overseas regulators Heading: inserted 1 December 2002 section 33 Takeovers Amendment Act 2002
31P: Power of Panel to act on requests of overseas regulators
1: An overseas regulator may request the Panel to inquire into any matter related to the functions of that overseas regulator.
2: The Panel may obtain information, documents, or evidence that, in the Panel's opinion, is likely to assist the Panel in complying with that request by—
a: exercising its powers of inspection under this Part:
b: exercising its powers to receive evidence and summon witnesses under this Part.
3: The Panel may transmit the information, documents, or evidence obtained by it to the overseas regulator in the manner that the Panel thinks fit. Section 31P inserted 1 December 2002 section 33 Takeovers Amendment Act 2002
31Q: Panel's consideration of requests
1: The Panel may comply with a request under section 31P
a: compliance will not substantially affect the performance of its other functions; and
b: it is appropriate to do so after taking into account any matters the Panel thinks relevant; and
c: the Minister has given his or her approval for the Panel to comply with the request.
2: The Minister's approval may relate to a particular request, or a class or classes of requests, specified by the Minister.
3: The matters the Panel may take into account under subsection (1) include, without limitation,—
a: whether the Panel is likely to be able to obtain the requested information, documents, or evidence:
b: the cost to the Panel of complying with the request:
c: whether the overseas regulator could more conveniently have the request satisfied from another source:
d: the extent to which the functions of the overseas regulator correspond with the functions of the Panel:
e: whether the overseas regulator would be likely to comply with a similar request made by the Panel and whether any arrangement with the overseas regulator to that effect exists:
f: whether, in the Panel's opinion, it would be more appropriate for the request to be dealt with under the Mutual Assistance in Criminal Matters Act 1992 Section 31Q inserted 1 December 2002 section 33 Takeovers Amendment Act 2002
31R: Conditions that may be imposed on providing information to overseas regulators
1: The Panel may impose any conditions in relation to providing information, documents, or evidence to an overseas regulator (whether in compliance with a request of an overseas regulator or otherwise).
2: Those conditions may include, without limitation, conditions relating to—
a: maintaining the confidentiality of anything provided (in particular, information that is personal information within the meaning of the Privacy Act 2020
b: the storing of, use of, or access to anything provided:
c: the copying, returning, or disposing of copies of documents provided:
d: payment of the costs incurred by the Panel in providing anything or in generally complying with a request. Section 31R inserted 1 December 2002 section 33 Takeovers Amendment Act 2002 Section 31R(2)﻿(a) amended 1 December 2020 section 217 Privacy Act 2020
31S: Undertakings to be obtained before providing certain information to overseas regulators
The Panel must not provide any information, evidence, or documents obtained from a person by a summons under section 31N
a: will not be used by the overseas regulator as evidence in criminal proceedings against the person (other than a proceeding in respect of the falsity of the person's testimony); and
b: to the extent to which it is within the ability of the overseas regulator to ensure, will not be used by any other person, authority, or agency as evidence in proceedings of that kind. Section 31S inserted 1 December 2002 section 33 Takeovers Amendment Act 2002 Panel's power to accept undertakings Heading inserted 1 December 2002 section 33 Takeovers Amendment Act 2002
31T: Panel may accept undertakings
1: The Panel may accept a written undertaking given by, or on behalf of, a person in connection with a matter in relation to which the Panel is exercising any of its powers or performing any of its functions under this Act or any other Act.
2: The person may withdraw or vary the undertaking with the consent of the Panel. Section 31T inserted 1 December 2002 section 33 Takeovers Amendment Act 2002
31U: Enforcement of undertakings
1: If the Panel considers that a person who has given an undertaking under section 31T
2: The court may make any of the following orders if it is satisfied that the person has breached a term of the undertaking:
a: an order directing the person to comply with that term:
b: an order directing the person to pay to the Crown an amount not exceeding the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach:
c: any order that the court thinks appropriate directing the person to compensate any other person who has suffered loss, injury, or damage as a result of the breach:
d: an order for any consequential relief that the court thinks appropriate. Section 31U inserted 1 December 2002 section 33 Takeovers Amendment Act 2002 Proceedings before Panel Heading inserted 1 December 2002 section 33 Takeovers Amendment Act 2002
31V: Right to be heard and represented at proceedings before Panel
1: At any meeting of the Panel held for the purposes of section 32
2: Subject to subsection (1), at any meeting of the Panel held for the purposes of this Act, the Panel must allow to be heard and represented any person who applies to the Panel for leave to be heard and represented and who, in the opinion of the Panel, is a person who ought to be heard or whose appearance or representation will assist the Panel in its consideration of the matter before it.
3: Every meeting of the Panel or of a division of the Panel that is held for the purposes of section 31X section 32
a: who is a barrister, a solicitor, or a barrister and solicitor of the High Court of New Zealand of not less than 7 years' practice; or
b: who—
i: is enrolled as a barrister, as a solicitor, as a barrister and solicitor, or as a legal practitioner of the High Court of Australia, of any federal court of Australia, or of the Supreme Court of any State or Territory of Australia; and
ii: has not less than 7 years' practice. 1978 No 103 s 19(1), (2) s 10 Section 31V inserted 1 December 2002 section 33 Takeovers Amendment Act 2002
31W: Panel to hear proceedings in private
The Panel may decide whether to hold any meeting or any part of a meeting in public or in private. 1993 No 107 s 12 Section 31W inserted 1 December 2002 section 33 Takeovers Amendment Act 2002
31X: Power to make confidentiality orders
1: The Panel may, on its own initiative or on the application of any person, make an order prohibiting—
a: the publication or communication of any information, document, or evidence that is provided or obtained in connection with any inquiry or other proceedings of the Panel:
b: the giving of evidence involving any such information, document, or evidence.
2: The Panel may make the order on the terms and conditions (if any) that it thinks fit.
3: An order under subsection (1) may be expressed to have effect from the commencement of any inquiry or other proceedings of the Panel to the end of that inquiry or proceedings.
4: At the end of the inquiry or proceedings, the Official Information Act 1982 1978 No 103 s 19(5)﻿(b), (6) s 13 Section 31X inserted 1 December 2002 section 33 Takeovers Amendment Act 2002 Enforcement of takeovers code by Panel Heading replaced 1 December 2002 section 34 Takeovers Amendment Act 2002
32: Panel's powers in respect of compliance with takeovers code
1: The Panel may at any time, if it considers that a person may not have acted or may not be acting or may intend not to act in compliance with the takeovers code, after giving that person such written notice of the meeting as the Panel considers appropriate in the circumstances, but in no case exceeding 7 days, hold a meeting for the purpose of determining whether to exercise its powers under this section.
2: Where the Panel gives a notice under subsection (1), it may make a temporary
3: Following the meeting specified in subsection (1), the Panel may make a determination—
a: that it is satisfied that the person has acted or is acting or intends to act in compliance with the takeovers code; or
b: that it is not satisfied that the person has acted or is acting or intends to act in compliance with the takeovers code.
3A: If the Panel makes a determination under subsection (3), the Panel must, as soon as reasonably practicable, give written notice of its reasons for the determination to the person the determination concerns.
4: Where the Panel makes a determination on reasonable grounds under subsection (3)﻿(b), the Panel may, at any time before the close of the second day after the date for which the meeting was convened,—
a: make a temporary temporary
b: make an order continuing any temporary temporary
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.
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.
5: An order
6: The Panel may vary the
7: The Panel may revoke the Section 32(2) amended 25 October 2006 section 11(1) Takeovers Amendment Act 2006 Section 32(3A) inserted 25 October 2006 section 11(2) Takeovers Amendment Act 2006 Section 32(4)﻿(a) amended 25 October 2006 section 11(3) Takeovers Amendment Act 2006 Section 32(4)﻿(b) amended 25 October 2006 section 11(3) Takeovers Amendment Act 2006 Section 32(4)﻿(c) inserted 25 October 2006 section 11(4) Takeovers Amendment Act 2006 Section 32(4)﻿(d) inserted 25 October 2006 section 11(4) Takeovers Amendment Act 2006 Section 32(4A) inserted 25 October 2006 section 11(5) Takeovers Amendment Act 2006 Section 32(5) inserted 1 December 2002 section 35 Takeovers Amendment Act 2002 Section 32(5) amended 25 October 2006 section 11(6) Takeovers Amendment Act 2006 Section 32(6) inserted 1 December 2002 section 35 Takeovers Amendment Act 2002 Section 32(6) amended 25 October 2006 section 11(7) Takeovers Amendment Act 2006 Section 32(7) inserted 1 December 2002 section 35 Takeovers Amendment Act 2002 Section 32(7) amended 25 October 2006 section 11(7) Takeovers Amendment Act 2006
33: Temporary restraining For the purposes of section 32 temporary
a: restraining a person from acquiring financial products code company financial products
b: restraining a person from disposing of financial products code company financial products
c: restraining a person from exercising the right to vote attaching to financial products code company financial products
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)
e: directing the code company financial products
f: directing the code company financial products
g: directing the code company financial products
h: for the purpose of securing compliance with any such order, an order directing a person to do or refrain from doing a specified act. Section 33 heading amended 25 October 2006 section 12(1) Takeovers Amendment Act 2006 Section 33 amended 25 October 2006 section 12(2) Takeovers Amendment Act 2006 Section 33(a) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 33(a) amended 7 July 2010 section 13 Takeovers Amendment Act 2010 Section 33(b) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 33(b) amended 7 July 2010 section 13 Takeovers Amendment Act 2010 Section 33(c) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 33(c) amended 7 July 2010 section 13 Takeovers Amendment Act 2010 Section 33(d) replaced 25 October 2006 section 12(3) Takeovers Amendment Act 2006 Section 33(e) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 33(e) amended 7 July 2010 section 13 Takeovers Amendment Act 2010 Section 33(f) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 33(f) amended 7 July 2010 section 13 Takeovers Amendment Act 2010 Section 33(g) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 33(g) amended 7 July 2010 section 13 Takeovers Amendment Act 2010
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. Section 33AA inserted 25 October 2006 section 13 Takeovers Amendment Act 2006 Miscellaneous provisions for investigation and enforcement by Panel Heading inserted 1 December 2002 section 36 Takeovers Amendment Act 2002
33A: Witnesses and counsel to have privileges of witnesses and counsel in court
1: Every person has the same privileges in relation to providing information and documents to, and answering questions before, the Panel, a member, officer, or employee of the Panel, or a person authorised by the Panel under section 31B
2: Every person appearing as counsel before the Panel, or a member, officer, or employee of the Panel, has the same privileges as counsel have in proceedings before a court.
3: Every person has the same privileges in relation to providing information and documents to the Registrar, or a person authorised by the Registrar under section 31B
4: This section is subject to section 33B Section 33A inserted 1 December 2002 section 36 Takeovers Amendment Act 2002
33B: No privilege against self-incrimination
No person is excused from answering any question or providing any information or document under this Act on the ground that to do so would or might incriminate or tend to incriminate that person. 1993 No 107 s 11(4) Section 33B inserted 1 December 2002 section 36 Takeovers Amendment Act 2002
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), is not admissible in—
i: criminal proceedings against that person; or
ii: proceedings under this Act or the Financial Markets Conduct Act 2013
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) Section 33C replaced 25 October 2006 section 14 Takeovers Amendment Act 2006 Section 33C(1)﻿(a)﻿(ii) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013
33D: Limitation on disclosure of information obtained in Panel's operations
1: No court or other person may require a member, an officer, or an employee of the Panel, any delegate of the Panel, any expert appointed by the Panel, or any other person present at a meeting of the Panel to—
a: give evidence in court or in any proceedings of a judicial nature of anything coming to his or her knowledge in connection with the operations of the Panel; or
b: make discovery of a document or produce a document for inspection in court or in any proceedings of a judicial nature if the document was provided or obtained in connection with the operations of the Panel.
2: Subsection (1) does not apply to—
a: proceedings in respect of the falsity of any testimony; or
b: proceedings to which the Panel is a party; or
c: proceedings in respect of—
i: an offence against section 78 78AA(1) 78A(1) 105 105A 105B
ii: the offence of conspiring to commit an offence against section 78 78AA(1) 78A(1) 105 105A 105B
iii: the offence of attempting to commit an offence against section 78 78AA(1) 78A(1) 105 105A 105B
3: This section does not limit the application of the Official Information Act 1982 1978 No 103 s 28(4), (5) 1993 No 107 s 11(7), (8) Section 33D inserted 1 December 2002 section 36 Takeovers Amendment Act 2002 Section 33D(2)﻿(c)﻿(i) amended 28 September 2017 section 335 Intelligence and Security Act 2017 Section 33D(2)﻿(c)﻿(ii) amended 28 September 2017 section 335 Intelligence and Security Act 2017 Section 33D(2)﻿(c)﻿(iii) amended 28 September 2017 section 335 Intelligence and Security Act 2017
2: Enforcement by court
Subpart 2 heading: inserted 25 October 2006 section 16 Takeovers Amendment Act 2006 Overview of enforcement powers and civil remedies Heading replaced 25 October 2006 section 16 Takeovers Amendment Act 2006
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. Section 33E replaced 25 October 2006 section 16 Takeovers Amendment Act 2006 Injunctions Heading inserted 25 October 2006 section 16 Takeovers Amendment Act 2006
33F: What court may injunct
The court may, on application by any person in accordance with section 35 Section 33F inserted 25 October 2006 section 16 Takeovers Amendment Act 2006
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) apply whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind.
4: Subsections (1)﻿(b) and (2) apply whether or not—
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. Section 33G inserted 25 October 2006 section 16 Takeovers Amendment Act 2006
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. Section 33H inserted 25 October 2006 section 16 Takeovers Amendment Act 2006 Various civil remedy orders Heading inserted 25 October 2006 section 16 Takeovers Amendment Act 2006
33I: When court may make various civil remedy orders
The court may, on application by any person in accordance with section 35 section 33J Section 33I inserted 25 October 2006 section 16 Takeovers Amendment Act 2006
33J: Terms of various civil remedy orders
A civil remedy order under section 33I
a: restrain the exercise of rights attaching to financial products
b: restrain the issue or allotment of financial products financial products
c: restrain the acquisition or disposal of financial products financial products
d: direct the disposal of financial products
e: require financial products financial products
f: cancel an agreement for the acquisition or disposal of financial products
g: vest financial products
h: declare an agreement for the acquisition of financial products financial products
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. Section 33J inserted 25 October 2006 section 16 Takeovers Amendment Act 2006 Section 33J(a) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 33J(b) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 33J(c) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 33J(d) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 33J(e) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 33J(f) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 33J(g) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 33J(h) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Compensatory orders Heading inserted 25 October 2006 section 16 Takeovers Amendment Act 2006
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. Section 33K inserted 25 October 2006 section 16 Takeovers Amendment Act 2006
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. Section 33L inserted 25 October 2006 section 16 Takeovers Amendment Act 2006 Pecuniary penalty orders and declarations of contravention Heading inserted 25 October 2006 section 16 Takeovers Amendment Act 2006
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 33O
c: may order the person to pay a pecuniary penalty that the court considers appropriate to the Crown ( see sections 33P 33Q
i: materially prejudices the interests of offerees, the code company
ii: is likely to materially damage the integrity or reputation of any of New Zealand's financial
iii: is otherwise serious. Section 33M inserted 25 October 2006 section 16 Takeovers Amendment Act 2006 Section 33M(c)﻿(i) amended 7 July 2010 section 14 Takeovers Amendment Act 2010 Section 33M(c)﻿(ii) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013
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 Section 33N inserted 25 October 2006 section 16 Takeovers Amendment Act 2006
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 code company Section 33O inserted 25 October 2006 section 16 Takeovers Amendment Act 2006 Section 33O(e) amended 7 July 2010 section 15 Takeovers Amendment Act 2010
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. Section 33P inserted 25 October 2006 section 16 Takeovers Amendment Act 2006
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 financial
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. Section 33Q inserted 25 October 2006 section 16 Takeovers Amendment Act 2006 Section 33Q(c) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013
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. Section 33R inserted 25 October 2006 section 16 Takeovers Amendment Act 2006 General Heading inserted 25 October 2006 section 16 Takeovers Amendment Act 2006
34: Court may make orders
Section 34 repealed 25 October 2006 section 15 Takeovers Amendment Act 2006
35: Persons who may apply
1: Where the Panel makes a determination under section 32(3)﻿(b) section 33F 33I 33K
a: the Panel:
b: if the code company's financial products are, or were at any material time, quoted on a licensed market, the licensed market operator:
c: the code company
d: a member or financial product code company
e: a person who was a member or financial product code company
f: 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 financial products code company
g: with the leave of the court, any other person.
2: A person referred to in any of paragraphs (b) to (f) of subsection (1) is not entitled to make an application to the court unless—
a: the Panel has consented to the making of the application; or
b: that person has requested the Panel in writing to make an application to the court itself and the Panel has not made such an application before the expiration of 10 days after receiving the request.
3: Where a request is made to the Panel to hold a meeting under section 32(1) section 32(3) section 33F 33I 33K
a: if the code company's financial products are, or were at any material time, quoted on a licensed market, the licensed market operator:
b: the code company
c: a member or financial product code company
d: a person who was a member or financial product code company
e: 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 financial products code company
f: with the leave of the court, any other person.
4: If the Panel makes a determination under section 32(3)﻿(b) section 33M Section 35(1) amended 25 October 2006 section 17(1) Takeovers Amendment Act 2006 Section 35(1)﻿(b) replaced 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 35(1)﻿(c) amended 7 July 2010 section 16(2) Takeovers Amendment Act 2010 Section 35(1)﻿(d) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 35(1)﻿(d) amended 7 July 2010 section 16(2) Takeovers Amendment Act 2010 Section 35(1)﻿(e) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 35(1)﻿(e) amended 7 July 2010 section 16(2) Takeovers Amendment Act 2010 Section 35(1)﻿(f) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 35(1)﻿(f) amended 7 July 2010 section 16(2) Takeovers Amendment Act 2010 Section 35(3) amended 25 October 2006 section 17(2) Takeovers Amendment Act 2006 Section 35(3)﻿(a) replaced 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 35(3)﻿(b) amended 7 July 2010 section 16(2) Takeovers Amendment Act 2010 Section 35(3)﻿(c) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 35(3)﻿(c) amended 7 July 2010 section 16(2) Takeovers Amendment Act 2010 Section 35(3)﻿(d) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 35(3)﻿(d) amended 7 July 2010 section 16(2) Takeovers Amendment Act 2010 Section 35(3)﻿(e) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 35(3)﻿(e) amended 7 July 2010 section 16(2) Takeovers Amendment Act 2010 Section 35(4) replaced 25 October 2006 section 17(3) Takeovers Amendment Act 2006
36: Orders
Section 36 repealed 25 October 2006 section 18 Takeovers Amendment Act 2006
37: Interim orders
Section 37 repealed 25 October 2006 section 18 Takeovers Amendment Act 2006
38: Court may have regard to determinations and recommendations by Panel
1: The court may, in determining any application under this subpart section 32(3)
2: The court may, in determining whether to make any order under section 33I 33K section 32 Section 38(1) amended 25 October 2006 section 19(1) Takeovers Amendment Act 2006 Section 38(2) amended 25 October 2006 section 19(2) Takeovers Amendment Act 2006
39: Orders directing disposal of securities
Section 39 repealed 25 October 2006 section 20 Takeovers Amendment Act 2006
40: Revocation, variation, and suspension of orders
Section 40 repealed 25 October 2006 section 20 Takeovers Amendment Act 2006
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. Section 41 replaced 25 October 2006 section 21 Takeovers Amendment Act 2006
42: Court may require person to give evidence or produce documents relating to interests in
financial products
1: The court may, in any application under this subpart
a: has or had any direct or indirect interest in or right to any financial product code company
b: has or had any direct or indirect right to exercise any voting rights attaching to any such financial product order any person to—
c: attend before the court and be examined on oath or affirmation; or
d: produce documents in that person's possession or under that person's control.
2: An order under subsection (1) may be made on the application of any person who is a party to the application under this subpart Section 42 heading amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 42(1) amended 25 October 2006 section 22(1) Takeovers Amendment Act 2006 Section 42(1)﻿(a) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 42(1)﻿(a) amended 7 July 2010 section 17 Takeovers Amendment Act 2010 Section 42(1)﻿(b) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 42(2) amended 25 October 2006 section 22(2) Takeovers Amendment Act 2006
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 financial products financial products Section 43 replaced 25 October 2006 section 23 Takeovers Amendment Act 2006 Section 43 examples amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013
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 1 or more of the provisions, but no person is liable to more than 1 pecuniary penalty order for the same conduct. Section 43A inserted 25 October 2006 section 23 Takeovers Amendment Act 2006
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). Section 43B inserted 25 October 2006 section 23 Takeovers Amendment Act 2006
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. Section 43C inserted 25 October 2006 section 23 Takeovers Amendment Act 2006
3: Offences
Subpart 3 heading inserted 25 October 2006 section 24 Takeovers Amendment Act 2006 General offences Heading inserted 25 October 2006 section 24 Takeovers Amendment Act 2006
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
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) if its representative refuses or fails to appear before the Panel to give evidence, refuses to take an oath or affirmation as a witness, refuses to answer any question, or refuses or fails to provide any document or information that the body corporate is required to provide.
4: A person must not act in contravention of any order made by the Panel under section 31X section 32
5: Every person who contravenes this section commits an offence and is liable on Section 44 replaced 25 October 2006 section 24 Takeovers Amendment Act 2006 Section 44(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 44(5) amended 1 July 2013 section 413 Criminal Procedure Act 2011
44A: Conviction of offence under section 44 excluded in certain cases
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
3: In proceedings for an offence against section 44 Section 44A inserted 25 October 2006 section 24 Takeovers Amendment Act 2006 Section 44A(3) inserted 1 July 2013 section 413 Criminal Procedure Act 2011 False or misleading statement or information Heading inserted 25 October 2006 section 24 Takeovers Amendment Act 2006
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 financial products code company
ii: have the effect of increasing, reducing, maintaining, or stabilising the price for trading in those financial products
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 financial products Section 44B inserted 29 February 2008 section 24 Takeovers Amendment Act 2006 Section 44B(1)﻿(b)﻿(i) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 44B(1)﻿(b)﻿(i) amended 7 July 2010 section 18 Takeovers Amendment Act 2010 Section 44B(1)﻿(b)﻿(ii) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 44B(2) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013
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. Section 44C inserted 29 February 2008 section 24 Takeovers Amendment Act 2006 Section 44C(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011
44D: Exception for disclosure by investment advisers or brokers
Section 44D repealed 1 July 2011 section 50 Financial Advisers Amendment Act 2010
44E: Fair Trading Act 1986 excluded
The Fair Trading Act 1986 does not apply to conduct 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. Section 44E inserted 29 February 2008 section 24 Takeovers Amendment Act 2006
4: Other court orders
Subpart 4 heading inserted 25 October 2006 section 24 Takeovers Amendment Act 2006 Management bans Heading inserted 25 October 2006 section 24 Takeovers Amendment Act 2006
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 section 44C
b: A has, while a director of an incorporated or unincorporated body,—
i: persistently contravened this Act, the Companies Act 1993 the Financial Markets Conduct Act 2013 Financial Markets Supervisors Act 2011
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 Section 44F inserted 25 October 2006 section 24 Takeovers Amendment Act 2006 Section 44F(b)﻿(i) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013
44G: Terms of management banning orders
1: A management banning order may, permanently or for a period specified in the order
2: The court may make a management banning order permanent or for a period longer than 10 years only in the most serious of cases for which an order may be made. Section 44G inserted 25 October 2006 section 24 Takeovers Amendment Act 2006 Section 44G(1) amended 1 April 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 44G(2) inserted 1 April 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013
44H: Offence of contravening management banning order
An individual who acts in contravention of a management banning order under section 44F Section 44H inserted 25 October 2006 section 24 Takeovers Amendment Act 2006 Section 44H amended 1 July 2013 section 413 Criminal Procedure Act 2011
44I: Only 1 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 subpart 6 section 383 Section 44I inserted 25 October 2006 section 24 Takeovers Amendment Act 2006 Section 44I amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013
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 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 Section 44J inserted 25 October 2006 section 24 Takeovers Amendment Act 2006 Section 44J(3) amended 1 July 2013 section 413 Criminal Procedure Act 2011
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 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. Section 44K inserted 25 October 2006 section 24 Takeovers Amendment Act 2006 Orders to preserve assets to satisfy claims Heading inserted 25 October 2006 section 24 Takeovers Amendment Act 2006
44L: When court may prohibit payment or transfer of money,
financial products
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 person section 12(1) liable financial products relevant person Corporations Act 2001 s 1323(1) (Aust) Section 44L inserted 25 October 2006 section 24 Takeovers Amendment Act 2006 Section 44L heading amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 44L(3) associated person replaced 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 44L(3) liable amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013
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, financial products
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, financial products financial products financial products
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 financial products financial products
f: an order requiring the relevant person, or any person holding money, financial products financial products
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) to property of a person includes a reference to property that the person holds otherwise than as sole beneficial owner, for example,—
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. Corporations Act 2001 s 1323(1), (2A), (6) (Aust) Section 44M inserted 25 October 2006 section 24 Takeovers Amendment Act 2006 Section 44M(1)﻿(a) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 44M(1)﻿(c) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 44M(1)﻿(e) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 44M(1)﻿(f) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013
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. Corporations Act 2001 s 1323(3), (4) (Aust) Section 44N inserted 25 October 2006 section 24 Takeovers Amendment Act 2006
44O: Relationship with other law
1: Nothing in sections 44L to 44N
2: This section has effect subject to the Insolvency Act 1967 Corporations Act 2001 s 1323(7), (8) (Aust) Section 44O inserted 25 October 2006 section 24 Takeovers Amendment Act 2006
44P: Offence
A person commits an offence who contravenes an order by the court under section 44M 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. Corporations Act 2001 s 1323(9), (10) (Aust) Section 44P inserted 25 October 2006 section 24 Takeovers Amendment Act 2006 Section 44P amended 1 July 2013 section 413 Criminal Procedure Act 2011
5: General
Subpart 5 heading inserted 25 October 2006 section 24 Takeovers Amendment Act 2006
44PA: Time limit for commencing proceedings for offence under section 44H, 44J, or 44P
Despite anything to the contrary in section 25 section 44H 44J 44P Section 44PA inserted 1 July 2013 section 413 Criminal Procedure Act 2011
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 the following:
a: proceedings for offences against this Act:
b: proceedings in relation to recovery or enforcement as referred to in sections 52 53
c: proceedings for appeals under section 31G Section 44Q replaced 31 March 2017 section 130 Regulatory Systems (Commercial Matters) Amendment Act 2017
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. Section 44R inserted 25 October 2006 section 24 Takeovers Amendment Act 2006
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. Section 44S inserted 25 October 2006 section 24 Takeovers Amendment Act 2006
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. Section 44T inserted 25 October 2006 section 24 Takeovers Amendment Act 2006
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. Section 44U inserted 25 October 2006 section 24 Takeovers Amendment Act 2006
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 code company's financial products are, or were at any material time, quoted on a licensed market, the licensed market operator:
d: the code 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 financial product code company
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 financial products code company
h: a person directed to be given notice of the application:
i: with the leave of the court, any other person. Section 44V inserted 25 October 2006 section 24 Takeovers Amendment Act 2006 Section 44V(c) replaced 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 44V(d) amended 7 July 2010 section 19(2) Takeovers Amendment Act 2010 Section 44V(f) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 44V(f) amended 7 July 2010 section 19(2) Takeovers Amendment Act 2010 Section 44V(g) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 44V(g) amended 7 July 2010 section 19(2) Takeovers Amendment Act 2010
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. Section 44W inserted 25 October 2006 section 24 Takeovers Amendment Act 2006
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. Section 44X inserted 25 October 2006 section 24 Takeovers Amendment Act 2006
4: Miscellaneous
Part 4 heading replaced 25 October 2006 section 25 Takeovers Amendment Act 2006 Exemptions and regulations Heading inserted 31 March 2017 section 131 Regulatory Systems (Commercial Matters) Amendment Act 2017
45: Panel may grant exemptions
1: The Panel may, in its discretion and subject to such terms and conditions (if any) as it thinks fit, exempt from compliance with any provision of the takeovers code—
a: any person, transaction, or offer:
b: any class of persons, transactions, or offers associated with or involving a particular code company or entity:
c: any class of persons, transactions, or offers that is not associated with or does not involve a particular code company or entity.
2: An exemption may be granted in respect of past acts or omissions only under subsection (1)﻿(a).
3:
4:
5: An exemption under this section is secondary legislation ( see Part 3
6: The Panel’s reasons for granting an exemption under this section must be published , and presented to the House of Representatives,
a: why it is appropriate that the exemption is granted; and
b: how the exemption is consistent with the objectives of the takeovers code.
7: Subsections (4) to section 45A The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under subsection (1)﻿(a) or (b). Legislation Act 2019 requirements for secondary legislation made under subsection (1)﻿(a) or (b) Publication The maker must: LA19 ss 73 74(1)﻿(a) cl 14 •	notify it in the Gazette •	publish it on a website maintained by, or on behalf of, the Panel •	make it available in printed form for purchase on request by members of the public •	Subsection (6) must also be complied with However, the compliance with requirement to publish may be deferred if the maker is satisfied on reasonable grounds that it is proper defer publication on the ground of commercial confidentiality Presentation The Minister must present it to the House of Representatives, unless the exemption in Schedule 3 LA19 s 114 Sch 3 Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under subsection (1)﻿(c). Legislation Act 2019 requirements for secondary legislation made under subsection (1)﻿(c) Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 45 replaced 5 August 2013 section 77(3) Legislation Act 2012 Section 45(3) repealed 28 October 2021 section 3 Secondary Legislation Act 2021 Section 45(4) repealed 28 October 2021 section 3 Secondary Legislation Act 2021 Section 45(5) replaced 28 October 2021 section 3 Secondary Legislation Act 2021 Section 45(6) amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 45(7) amended 28 October 2021 section 3 Secondary Legislation Act 2021
45A: Variation and revocation of exemptions
1: The Panel may vary or revoke an exemption granted under section 45
2: Section 45(1) to (5) Section 45A replaced 28 October 2021 section 3 Secondary Legislation Act 2021
46: Regulations
1: The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:
a:
b: prescribing an annual fee in respect of the funding of the Panel that is payable in accordance with section 17
c: prescribing the fees and charges payable, or the rate at which fees and charges are to be calculated, for the purposes of this Act:
ca: without limiting paragraph (c), prescribing fees and charges that the Panel may require to be paid to it—
i: in connection with the exercise by the Panel of any power or function conferred on it by this Act:
ii: on an application to the Panel to exercise any power or function conferred on it by this Act:
cb: authorising the Panel to require payment of any costs incurred by the Panel:
d: providing for such other matters as are contemplated by or necessary for giving full effect to the provisions of this Act and for its due administration.
2: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 46(1)﻿(a) repealed 1 June 2001 section 11(1) Takeovers Amendment Act 2001 Section 46(1)﻿(c) replaced 1 June 2001 section 11(2) Takeovers Amendment Act 2001 Section 46(1)﻿(ca) inserted 1 June 2001 section 11(2) Takeovers Amendment Act 2001 Section 46(1)﻿(cb) inserted 1 June 2001 section 11(2) Takeovers Amendment Act 2001 Section 46(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Reimbursement of expenses incurred in connection with offer or takeover notice Heading inserted 31 March 2017 section 132 Regulatory Systems (Commercial Matters) Amendment Act 2017
47: Interpretation for sections 48 to 53
In sections 48 to 53
a: equity security:
b: offer:
c: offeror:
d: takeover notice:
e: target company. Section 47 replaced 31 March 2017 section 132 Regulatory Systems (Commercial Matters) Amendment Act 2017
48: Reimbursement of directors
1: Despite anything in the constitution of a target company, each director of the target company is entitled to be reimbursed by the target company for any expenses properly incurred by the director on behalf, and in the interests, of holders of equity securities of the target company in relation to the offer or takeover notice.
2: The amount to be reimbursed to a director is the amount—
a: agreed between the director and the target company; or
b: determined by the Panel on an application made by the director or the target company ( see section 50 Section 48 replaced 31 March 2017 section 132 Regulatory Systems (Commercial Matters) Amendment Act 2017
49: Reimbursement of target company
1: A target company is entitled to be reimbursed by the offeror for any expenses properly incurred by the target company in relation to the offer or takeover notice, whether as a result of section 48
2: The amount to be reimbursed to the target company is the amount—
a: agreed between the target company and the offeror; or
b: determined by the Panel on an application made by the target company or the offeror ( see section 50 Section 49 replaced 31 March 2017 section 132 Regulatory Systems (Commercial Matters) Amendment Act 2017
50: Determinations by Panel of amount to be reimbursed
If the Panel receives an application under section 48(2)﻿(b) 49(2)﻿(b)
a: determine the amount to be reimbursed for the purposes of section 48(2)﻿(b) 49(2)﻿(b)
b: order that amount to be paid, as the case may be,—
i: by the target company to the director; or
ii: by the offeror to the target company. Section 50 replaced 31 March 2017 section 132 Regulatory Systems (Commercial Matters) Amendment Act 2017
51: Appeals against Panel’s determination
1: The director or the target company may appeal to the High Court against the Panel’s determination for the purposes of section 48(2)﻿(b)
2: The target company or the offeror may appeal to the High Court against the Panel’s determination for the purposes of section 49(2)﻿(b)
3: An appeal under this section must be made—
a: within 21 days of the date on which the appellant was notified of the Panel’s determination; or
b: within any longer time allowed by the High Court.
4: The High Court must determine the appeal by either dismissing the appeal or giving such directions or making such determination in the matter as it thinks fit. Section 51 inserted 31 March 2017 section 132 Regulatory Systems (Commercial Matters) Amendment Act 2017
52: Enforcement of agreement of amount to be reimbursed
If the amount to be reimbursed is agreed, the amount is recoverable as a debt due in any court of competent jurisdiction, as the case may be,—
a: by the director from the target company; or
b: by the target company from the offeror. Section 52 inserted 31 March 2017 section 132 Regulatory Systems (Commercial Matters) Amendment Act 2017
53: Enforcement of Panel’s order for payment of amount to be reimbursed
1: If the amount to be reimbursed is determined by the Panel, the Panel’s order under section 50
2: In this section, court
a: the District Court, if the amount to be reimbursed is no more than $350,000; or
b: the High Court, if the amount to be reimbursed is more than $350,000. Section 53 inserted 31 March 2017 section 132 Regulatory Systems (Commercial Matters) Amendment Act 2017