Information about ‘regulated offers’ must be disclosed in a product disclosure statement (PDS) and on the Disclose Register.
Information must include all material information about the offer of a financial product and be up-to-date, accurate and understandable.
The purpose of the information is to assist investors with their investment decisions.
Schedule 1 of the FMC Act sets out a series of statutory exclusions where lighter compliance paths are appropriate.
Making research and other information available to retail investors
We have developed an information sheet for brokers, issuers and research providers to encourage wider publication of research on IPOs for retail clients.
It clarifies that under NZ law there are no required black-out periods and that the FMC Act has a more flexible regime for retail advertising. It also provides examples of the typical controls we expect investment banking firms to have in place to manage conflicts of interest.
These obligations vary depending upon the type of issuer or offer, but generally include:
maintaining a register of regulated financial products they have issued
ensuring the register is audited or reviewed by a qualified auditor
keeping accounting records to support the preparation of compliant financial statements
ensuring their financial statements are audited at least once a year by a licensed auditor or registered audit firm
providing certain information (such as annual reports or financial statements) to investors on request.
Financial reporting obligations
As an FMC reporting entity, you must do all of the following:
keep proper accounting records to help you prepare compliant financial statements — records must be kept in English and a copy must be kept in NZ
prepare financial statements for your group's operations — those financial statements must comply with generally accepted accounting practice in NZ
have your financial statements audited by a licensed auditor or registered audit firm
lodge your financial statements and the auditor’s report on them with the Companies Office within 4 months after your balance date.
If you are an FMC reporting entity at any point during an accounting period, you are required to comply with these requirements for the full accounting period.
Maintain high standards of corporate governance and board behaviour
This handbook assists directors, executives and advisers of non-listed and public-sector companies, and other entities, to apply corporate governance principles to their particular entity. The principles do not impose any new legal obligations, and reporting against them is voluntary. However, the principles do set out standards for corporate governance that we believe directors and executives should apply, and report on, to their investors, shareholders and stakeholders.
A listed issuer is one who is party to a listing agreement with a licensed market operator for a licensed market.
Listed issuers must comply with the listing rules of the relevant licensed market, as set by the licensed market operator. These issuers, and certain persons related to them, also have ongoing disclosure obligations.
Listed issuers are required to disclose information to the market in accordance with any continuous disclosure provisions of the listing rules of the relevant licensed market.
The continuous disclosure provisions may vary between different licensed markets.
Directors and senior managers of listed issuers, and persons holding specified amounts of quoted voting products of a listed issuer are required to disclose certain information to the issuer and to the market by the FMC Act. Listed issuers are required to keep registers of that disclosed information.
Debt issuer relationships and accountabilities
The FMC Act encourages and expects increased supervisor interaction. The FMC Act supports this through the accountability and reporting framework it establishes. On an ongoing basis, your supervisor has a requirement to engage and monitor you more actively. You also have obligations to engage and interact effectively and collaboratively with your supervisor. We expect you to work effectively with your supervisor to ensure governing documents are effective and fit for purpose.
Your supervisor is your ‘front line’ compliance supervision relationship. This means you will first need to address issues raised by your supervisor directly with them, not with FMA. Your supervisor may seek our involvement if necessary or desirable. We will have an increased focus on working with and through your supervisor in the first instance wherever appropriate, rather than directly with you. In some circumstances, it may be appropriate for us to engage directly with you and in those cases, we will keep your supervisor informed.
Peer-to-peer lending borrowers obligations
Normally if you want to borrow money direct from the public, the FMC Act requires you to issue a product disclosure statement (PDS).
You do not need to prepare these documents if you are using a licensed peer-to-peer lending provider. Instead you will provide information about your loan request to your provider so they can present your request for investors to read.
Licensed providers are not obligated to accept you as a borrower. They will run some checks on you and if you've got a bad credit history they may decide they won't help you find money.
If you are accepted, you will become a client of the peer-to-peer lending service. The provider will ask you to sign a client agreement that details what you need to do so the provider can monitor and check you.
The service provider can charge for their services.
Crowdfunding issuers obligations
Under exemptions in financial markets law:
crowdfunding issuers don't need to prepare a product disclosure statement.
your crowdfunding service provider may be able to help you make a compliant offer.
the provider will ask you to sign a client agreement that details what you need to do so the provider can monitor and check you.
they may charge you for their services.
Fair dealing obligations
The FMC Act sets out minimum compliance standards of behaviour for people operating in the financial markets.
misleading or deceptive conduct
false or misleading representations
offers of financial products in the course of unsolicited meetings.
You must provide a written risk assessment of the money laundering and financing of terrorism activity you could expect in the course of running your business.
You are required to implement an anti-money laundering and countering financing of terrorism programme that includes procedures to detect, deter, manage and mitigate money laundering and the financing of terrorism.
You are required to appoint a compliance officer to administer and maintain your programme.
You are required to perform due diligence processes on your customers. This includes customer identification and verification of identity.
You are required to report suspicious transactions.
We offer a pre-registration review service to help issuers and their directors feel more confident that their offer documents are likely to satisfy our expectations. We focus on reviewing new, novel and complex offers.
To get your pre-registration review underway please contact us at email@example.com (ensure you insert "PDS HELP" in your subject line) or call us on 0800 434 566 (+64 3 962 2698 for overseas callers).
'voting products' is a defined term and includes ordinary shares and certain products that are convertible to ordinary shares.
This means issuers of non-voting equity products won’t be able to take advantage of the statutory exemption under the FMC Act, even if they were able to use it under the Financial Reporting Act 1993.
The 50-shareholder or parcels-of-shares rules are consistent with the Takeovers Code. The Takeovers Panel’s Guidance Note on Small Code Companies is useful to help how to count shareholders for this purpose.
Small personal offers
There are exclusions under Schedule 1 of the FMC Act that allow some offers to be made without having to provide all the usual documentation required, ie product disclosure statements.
One of those exclusions is for small personal offers of debt and equity - see clause 12 of Schedule 1. It allows you to make small offers over a 12-month period that can, in total, involve up to 20 investors and raise up to $2 million without having to produce full documentation. Any offer that would result in you exceeding either or both those limits requires full documentation under part 3 of the FMC Act.
If, over several 12-month periods, you gain more than 50 shareholders from small offers, you'll become a FMC reporting entity.
Companies that raise capital through a licensed crowdfunding platform, relying on classe 6 of Schedule 1, are not considered FMC reporting entities. This is because the offer is not considered a ‘regulated offer’ under the FMC Act.
Instead, these companies will be subject to the financial reporting requirements under the Companies Act 1993.