Financial Reporting Act (Overseas Issuers) Exemption Notice 2013
Financial Reporting Act (Overseas Issuers) Exemption Notice 2013: revoked, on 1 April 2014, pursuant to section 54(1) of the Financial Reporting Act 2013 (2013 No 101).
Reprint as at 1 April 2014
Financial Reporting Act (Overseas Issuers) Exemption Notice 2013
(SR 2013/62)
Financial Reporting Act (Overseas Issuers) Exemption Notice 2013: revoked, on 1 April 2014, pursuant to section 54(1) of the Financial Reporting Act 2013 (2013 No 101).
Note
Changes authorised by subpart 2 of Part 2 of the Legislation Act 2012 have been made in this official reprint.
Note 4 at the end of this reprint provides a list of the amendments incorporated.
This notice is administered by the Financial Markets Authority.
Pursuant to section 35A of the Financial Reporting Act 1993, the Financial Markets Authority gives the following notice (to which is appended a statement of reasons of the Financial Markets Authority).
Notice
1 Title
This notice is the Financial Reporting Act (Overseas Issuers) Exemption Notice 2013.
2 Commencement
This notice comes into force on the day after the date of its notification in the Gazette.
3 Revocation
This notice is revoked on the close of 28 February 2018.
4 Application
An exemption granted by this notice applies to the following accounting periods of an exempt issuer:
(a)
an accounting period of the issuer that commenced before the exemption is granted (including an accounting period that ended before the exemption is granted) if the exemption is granted before copies of financial statements or group financial statements for that period would, but for the exemptions contained in this notice, be required to be delivered for registration under section 18 of the Act; and
(b)
subsequent accounting periods.
5 Interpretation
(1)
In this notice, unless the context otherwise requires,—
Act means the Financial Reporting Act 1993
approved auditor means an accountant who is qualified under the law of the home jurisdiction to give an opinion as to whether specified financial statements comply with the overseas GAAP of that jurisdiction
exempt issuer means an issuer that—
(a)
is incorporated in a specified jurisdiction (its home jurisdiction); and
(b)
is required to comply with the same financial reporting requirements of the overseas legislation of its home jurisdiction that apply to listed issuers in the home jurisdiction; and
(c)
has specified financial statements prepared in respect of it; and
(d)
has offered or offers securities to the public in New Zealand in reliance on an exemption notice that is specified in Schedule 2 (or a notice that, with or without modification, replaces or corresponds to, or was replaced by or corresponded to, a notice specified in that schedule); and
(e)
has not offered and does not offer securities to the public in New Zealand otherwise than in reliance on 1 or more of the notices referred to in paragraph (d); and
(f)
is not a licensed insurer
home jurisdiction, in relation to an issuer, means a specified jurisdiction in which the issuer is incorporated
International Financial Reporting Standards means—
(a)
International Financial Reporting Standards and International Accounting Standards that have been issued or adopted by the International Accounting Standards Board in accordance with the constitution of the International Accounting Standards Committee Foundation; and
(b)
final interpretations by the International Financial Reporting Interpretations Committee approved by the International Accounting Standards Board in accordance with that constitution
overseas GAAP, in relation to an exempt issuer, means generally accepted accounting practice or principles in its home jurisdiction, as specified in the third column of Schedule 1
overseas legislation, in relation to an exempt issuer, means the legislation of its home jurisdiction, as specified in the second column of Schedule 1 (or legislation that, with or without modification, replaces or corresponds to that legislation)
scheme means a scheme (within the meaning of section 2 of the Securities Act 1978) in respect of which interests have been offered for subscription to the public in New Zealand
separate fund has the meaning given to that term under section 9A(1) of the Act
specified financial statements, in relation to an exempt issuer,—
(a)
means the financial statements that are required to be prepared in respect of either or both of the exempt issuer and its group, as applicable, in accordance with the laws of its home jurisdiction (including the overseas legislation); and
(b)
includes, in respect of an exempt issuer who is an issuer of securities in relation to a scheme, financial statements in respect of each scheme and, if the liabilities of the issuer or the scheme are limited to a separate fund, financial statements for that separate fund that are prepared in accordance with the laws of its home jurisdiction
specified jurisdiction means a jurisdiction specified in the first column of Schedule 1.
(2)
For the purposes of this notice, carries on business in New Zealand has the same meaning as in section 332 of the Companies Act 1993, except that an exempt issuer is not taken to carry on business in New Zealand merely because it has established or used a share transfer office or a share registration office in New Zealand.
(3)
Any term or expression that is defined in the Act and used, but not defined, in this notice has the same meaning as in the Act.
6 Exemptions for directors of exempt issuers
Every director of an exempt issuer is exempted from sections 10(1), 11, 13 to 16, and 18(1) of the Act in respect of the exempt issuer.
7 Conditions
(1)
The exemptions in clause 6 are subject to the conditions that—
Parent and/or group financial statements
(a)
the exempt issuer, in relation to its specified financial statements, complies with the laws of its home jurisdiction that relate to the preparation, content, audit, and public filing of those statements (including the overseas legislation); and
(b)
the specified financial statements of the exempt issuer comply with the overseas GAAP; and
(c)
if, in complying with the overseas GAAP, the specified financial statements do not give a true and fair view of the matters to which they relate, they are accompanied, when delivered to the Registrar for registration, by a statement in English containing information and explanations that will give a true and fair view of those matters; and
(d)
the specified financial statements of the exempt issuer are delivered to the Registrar for registration annually, and no later than the date on which the financial statements of the exempt issuer would, but for the exemption in clause 6, be required to be delivered for registration; and
(e)
the specified financial statements of the exempt issuer are, when delivered to the Registrar for registration, accompanied by a report by an approved auditor, issued either in the approved auditor’s own name or in the name of an audit firm of which the approved auditor is a partner, member, or employee, that complies with the requirements specified in the fourth column of Schedule 1; and
Branch financial statements
(f)
if the exempt issuer carries on business in New Zealand, the exempt issuer complies either with subparagraphs (i) to (v) or with subparagraph (vi) as follows:
Option 1: branch financial statements in accordance with overseas law
(i)
the exempt issuer prepares financial statements that comply with the laws of its home jurisdiction that relate to the preparation, content, and audit of financial statements in respect of either or both of its New Zealand business and its group’s New Zealand business, as applicable, as if that New Zealand business were conducted by a separate company or group incorporated in its home jurisdiction (branch financial statements); and
(ii)
the branch financial statements comply with the overseas GAAP; and
(iii)
if, in complying with the overseas GAAP, the branch financial statements do not give a true and fair view of the matters to which they relate, they are accompanied, when delivered to the Registrar for registration, by a statement in English containing information and explanations that will give a true and fair view of those matters; and
(iv)
the branch financial statements are delivered to the Registrar for registration annually, and no later than the date on which financial statements would, but for the exemptions in this notice, be required to be delivered for registration; and
(v)
the branch financial statements are accompanied, when delivered to the Registrar for registration, by a report by an approved auditor, issued either in the approved auditor’s own name or in the name of an audit firm of which the approved auditor is a partner, member, or employee, that complies with the requirements specified in the fourth column of Schedule 1; or
Option 2: branch financial statements in accordance with New Zealand law
(vi)
the exempt issuer prepares financial statements and, if applicable, group financial statements in respect of its, and its group’s, New Zealand business, as if that New Zealand business were conducted by a separate company or group incorporated in New Zealand, and the exempt issuer complies with the provisions of the Act that relate to the preparation, content, audit, and registration of those statements; and
All financial statements
(g)
all financial statements and auditor’s reports that are delivered to the Registrar by the exempt issuer are in English or accompanied by an English translation.
(2)
The exemption in clause 6 from section 18(1) of the Act is subject to the condition that the copy of all financial statements that are delivered to the Registrar by the exempt issuer includes, or is accompanied by, a statement to the effect that the exempt issuer has relied on this exemption notice in respect of its financial statements for the relevant accounting period.
8 Revocation
The Financial Reporting Act (Overseas Issuers) Exemption Notice 2009 (SR 2009/2) is revoked.
9 Transitional provision
Clause 7(1)(f) does not apply to an exempt issuer who relied on the Financial Reporting Act (Overseas Issuers) Exemption Notice 2009 in relation to an accounting period that commenced before the commencement of this notice.
Schedule 1 Specified jurisdictions, overseas legislation, GAAP, and auditor requirements
| Specified jurisdiction | Overseas legislation | Overseas GAAP | Auditor report requirements | |||
|---|---|---|---|---|---|---|
| Canada | Securities Act R.S.O. 1990, Chapter S.5 (Ontario) | Canadian equivalents to International Financial Reporting Standards | Section 78 of the Securities Act R.S.O. 1990, Chapter S.5 (Ontario) | |||
| France | The French Commercial Code | International Accounting Standards (within the meaning of Regulation (EC) No 1606/2002) | The French Commercial Code | |||
| Germany | The German Commercial Code (Handelsgesetzbuch) and the German Securities Trading Act (Wertpapierhandelsgesetz) | Generally accepted accounting principles in Germany or International Accounting Standards (within the meaning of Regulation (EC) No 1606/2002) | Section 37v of the Securities Trading Act (Wertpapierhandelsgesetz) | |||
| Republic of Ireland | Companies (Miscellaneous Provisions) Act 2009 (Ireland) and Companies Acts 1963–2012 (Ireland) | Generally accepted accounting principles in the United States of America or International Accounting Standards (within the meaning of Regulation (EC) No 1606/2002) | Companies Acts 1963–2012 (Ireland) or Title 17, Part 210 of the Code of Federal Regulations (US) | |||
| The Netherlands | Title 9 of Book 2 of the Civil Code of the Netherlands | International Accounting Standards (within the meaning of Regulation (EC) No 1606/2002) | Article 393 of Title 9 of Book 2 of the Civil Code of the Netherlands | |||
| Singapore | Companies Act (Singapore) | Singapore Financial Reporting Standards | Section 201 of the Companies Act (Singapore) | |||
| Switzerland | Swiss Code of Obligations | Generally accepted accounting principles in the United States of America or International Financial Reporting Standards | Articles 727–731a of the Swiss Code of Obligations | |||
| United Kingdom | Companies Act 2006 (UK) | Generally accepted accounting principles in the United Kingdom or International Accounting Standards (within the meaning of Regulation (EC) No 1606/2002) | Section 495 of the Companies Act 2006 (UK) | |||
| United States of America | Securities Exchange Act of 1934 (US) and the Code of Federal Regulations (US) | Generally accepted accounting principles in the United States of America | Title 17, Part 210 of the Code of Federal Regulations (US) |
Schedule 2 Qualifying Securities Act 1978 exemption notices
| Qualifying Securities Act 1978 exemption notices | Country of incorporation of overseas issuer (if relevant) | |
| Securities Act (Dividend Reinvestment) Exemption Notice 1998 | ||
| Securities Act (General Electric Company) Exemption Notice 2009 | United States of America | |
| Securities Act (Overseas Companies) Exemption Notice 2002 | ||
| Securities Act (Overseas Employee Share Purchase Schemes) Exemption Notice 2002 | ||
| Securities Act (Overseas Listed Issuers) Exemption Notice 2002 | ||
| Securities Act (PA Consulting Group Limited) Exemption Notice 2012 | United Kingdom | |
| Securities Act (PA Consulting Group Limited Restructure) Exemption Notice 2012 | United Kingdom | |
| Securities Act (Renewals and Variations) Exemption Notice 2002 (so far as that notice relates to variations that do not extend the time frame for payment by the issuer of money due, or to become due, under the existing securities) |
Dated at Wellington this 25th day of March 2013.
Sue Brown,
Head of Primary Regulatory Operations.
Statement of reasons
This notice comes into force on the day after the date of its notification in the Gazette and is revoked on 28 February 2018. This notice revokes and replaces the Financial Reporting Act (Overseas Issuers) Exemption Notice 2009.
This notice applies to directors of certain issuers incorporated in Canada, France, Germany, Ireland, The Netherlands, Singapore, Switzerland, the United Kingdom, and the United States of America.
The context is that issuers may use the notice where the issuer has relied, or is relying, on certain Securities Act 1978 exemptions listed in Schedule 2.
This notice exempts directors of those issuers from the following provisions of the Financial Reporting Act 1993 (the Act):
section 10(1) (obligation to prepare financial statements):
section 11 (content of financial statements):
sections 13 to 16 (obligations in respect of group financial statements and audit):
section 18(1) (registration of financial statements).
These exemptions are granted on the conditions that the issuer prepares the financial statements that they are required to prepare, and files them, under the financial reporting requirements of their respective home jurisdictions.
The principal changes from the Financial Reporting Act (Overseas Issuers) Exemption Notice 2009 are as follows:
Canada, Singapore, and Switzerland are added as specified jurisdictions:
this notice clarifies that the exemptions apply only if the issuer is regulated as an issuer for the purposes of financial reporting requirements of the jurisdiction in which it is incorporated:
the exemptions extend to financial statements prepared in respect of any New Zealand business of the issuer or its group, subject to conditions that require compliance either with the law of its home jurisdiction or New Zealand law in respect of branch financial statements:
issuers may continue to rely on the exemptions after ceasing to offer securities in New Zealand if their past offers meet the notice’s requirements:
the list of Securities Act 1978 exemptions in Schedule 2 is expanded:
a new condition is added that the overseas financial statements must be in English or accompanied by an English translation.
The Financial Markets Authority (FMA), after satisfying itself as to the matters set out in section 35A(2) of the Act, considers it appropriate to grant the exemptions because—
there will not be any significant detriment to subscribers as the exemptions only apply to issuers who have made offers of securities in reliance on the Securities Act 1978 exemptions, and who have not made any other public offers in New Zealand. These Securities Act 1978 exemptions recognise that the offers made under those exemptions are either incidental to or are an extension of an offer made overseas. They either allow overseas issuers to provide offer documents that comply with overseas requirements (including in relation to financial statements) or provide for reduced disclosure taking into account the nature of the offer and the fact that the investors already hold securities in that company or have some other relationship with the company. Therefore, the financial disclosure provided under the exemptions is consistent with the initial offer documents provided to the investors or the financial information which would have been available when the investors originally invested in that issuer:
FMA has had regard to the financial reporting and audit requirements that must be complied with by issuers in the jurisdictions to which this notice applies and considers they provide New Zealand securities holders with adequate financial information about companies in which they invest and that those jurisdictions have adequate regulatory and enforcement mechanisms:
the exemptions address the particular difficulties experienced by certain classes of issuers who extend offers of securities to a limited section of the public in New Zealand. The exemptions are not broader than what is reasonably necessary to address these difficulties and still require that group financial statements be filed in New Zealand.
Date of notification in Gazette: 28 March 2013.
Reprints notes
1 General
This is a reprint of the Financial Reporting Act (Overseas Issuers) Exemption Notice 2013 that incorporates all the amendments to that notice as at the date of the last amendment to it.
2 Legal status
Reprints are presumed to correctly state, as at the date of the reprint, the law enacted by the principal enactment and by any amendments to that enactment. Section 18 of the Legislation Act 2012 provides that this reprint, published in electronic form, has the status of an official version under section 17 of that Act. A printed version of the reprint produced directly from this official electronic version also has official status.
3 Editorial and format changes
Editorial and format changes to reprints are made using the powers under sections 24 to 26 of the Legislation Act 2012. See also http://www.pco.parliament.govt.nz/editorial-conventions/.
4 Amendments incorporated in this reprint
Financial Reporting Act 2013 (2013 No 101): section 54(1)