NEW ZEALAND Law and Practice Contributed by: David Weavers, Jesse Fairley and Matt Consedine, Russell McVeagh
9. Takeover Finance 9.1 Regulated Targets
9.2 Listed Targets There are two options for structuring change of control transactions in relation to listed compa- nies in New Zealand and certain other widely- held private companies that are deemed to be “code companies” . These are: • takeover offers under the Takeovers Regula- tions 2000 (the “Takeovers Code” ) and • schemes of arrangement ( “Schemes” ) under Part 15 of the Companies Act. Takeover Offers Under the Takeovers Code An offer under the Takeovers Code involves the offeror notifying the target of its intention to make an offer by issuing the target with a takeover notice, which must contain certain pre- scribed information. The target must then notify the exchange that a takeover notice has been received and provide this notice to any person that requests it. The offeror may then proceed by submitting an offer to offerees within the prescribed time period. There is no “put up or shut up” rules so a notice can lapse without an offer being made and a further notice of intention could also be given. An offer could be either: • a full offer (ie, an offer for all of the voting securities in the target): such an offer must be conditional on acceptances taking ownership or control over 50%; or • a partial offer (ie, an offer for less than 100% of the voting securities in the target): such an offer must be for sufficient shares to take the offeror’s holding over 50% of the voting rights.
Transactions in particular industries may give rise to specific requirements (such as notifica- tion and/or regulator approval requirements), including banking, financial services, insurance and oil and gas. The following also applies. Competition Rules A merger or acquisition that substantially less- ens competition in a market is illegal under the Commerce Act 1986, unless it is authorised by the Commerce Commission. The Commerce Commission will clear a merger or acquisition if it is satisfied that the transaction is not likely to substantially lessen competition in any New Zealand market. The Commerce Commission may also authorise a transaction that is likely to substantially lessen competition if it is satisfied that the transaction is likely to result in such a public benefit that it should be permitted. Overseas Investment The approval of the Overseas Investment Office may be required for an acquisition by an “over- seas person” if it will result in an overseas invest - ment in significant business assets, sensitive land (which includes residential land), farm land or fishing quotas. The Overseas Investment Office’s processes and approach to applying the regime is currently undergoing a comprehensive review and overhaul, with changes being aimed at simplifying assessments and streamlining processes to encourage more overseas invest- ment in New Zealand. Legislation is expected to be enacted by the end of 2025. Certain Funds See 9.2 Listed Targets .
321 CHAMBERS.COM
Powered by FlippingBook