OTHER APPLICABLE COMMERCIAL LEGISLATION
This section provides a brief overview of some of the key commercially related pieces of legislation, in addition to those referred to elsewhere in this document.

Companies Act 1993
New Zealand's company law principally comprises:
The Companies Act 1993 (Companies Act), which governs the formation and operation of companies in New Zealand; and
The Financial Reporting Act 1993, which governs the financial reporting requirements of companies and other entities.

The Companies Act is distinct from the previous law, and most Commonwealth jurisdictions, in the following ways:
there is no distinction between public and private companies;
a company need only have one shareholder and there is no concept of par value, nominal value or the maintenance of share capital;
companies are not required to have a constitution (similar to memorandum and articles of association), but a constitution does enable a company to adopt certain permissive provisions under the Companies Act and also provides greater clarity and certainty for the company. As a result, having a constitution is generally advisable;
before a company can make distributions to its shareholders and undertake certain other transactions, the company must satisfy a “solvency test” as detailed in the Companies Act;
subject to protections for shareholders and creditors, a company may buy its own shares and finance the acquisition of its own shares; and
the approval of 75 percent of shareholders is required prior to the company entering into a major transaction (generally being a transaction which involves more than half the value of a company's assets).

The Companies Act also governs matters such as the powers of a company and its officers, the duties of directors, the conduct of meetings and liquidations.

Securities Act 1978
The Securities Act 1978 (Securities Act) provides minimum disclosure requirements for shares or other securities offered to the public. No shares or other securities may be offered to the public unless the offer is made in the form of, or accompanied by, an investment statement or a registered prospectus, or is made in the form of an authorised advertisement. Investment statements and registered prospectuses must comply with the Securities Act's requirements.
The main offer document for a security offered in New Zealand is the investment statement. While a prospectus must be registered, it need only be available on request. The NZSC has the power to exempt persons from compliance with certain disclosure requirements. Certain types of offers have specific standing exemptions.
The Securities Act does not apply to offers made otherwise than to the public. For example, it does not apply to offers made only to relatives or close business associates of the issuer and certain other classes of offerees. However, these and other exceptions are very limited.

Takeovers Act 1993
New Zealand has a takeovers regime governing changes of control in Code companies, being companies listed on a registered stock exchange, companies listed in the previous 12 months, and entities over a shareholder and asset threshold of 50 or more shareholders and assets valued at $NZ20 million or more.
Under the Takeovers Act 1993 and the Takeovers Code (Code), no person is permitted to become the holder or controller of 20% or more of the voting rights in a Code company. The Takeovers Panel regulates the Code and has the power to grant exemptions.
Where a person seeks to go beyond the 20% threshold, this can be done by:
a full offer for all of the securities in the Code company;
a partial offer to all holders so that more than 50% of the voting rights are acquired (or a lesser percentage approved by shareholders not associated with the offerer); or
an authorisation of non-associated shareholders.

The Code requires all shareholders to be treated equally, including as to price. If a shareholder holds or controls more than 50%, it may creep up 5% per year. Beyond 90%, compulsory acquisition provisions apply. The Code also prohibits defensive tactics. The penalties for breaches of the Code are fines up to $NZ500,000 for individuals and $NZ5 million for body corporates.

Securities Markets Act 1988
New Zealand has legislation governing trading in securities of listed entities with confidential price sensitive information (insider trading) and disclosure of large (5% or greater) shareholdings in listed entities (substantial security holder disclosure). Directors and officers of listed entities must also disclose trading in such entities as they trade.

Electronic Transactions Act 2002
The Electronic Transactions Act 2002 (ET Act) is based on the United Nations Commission on International Trade Law model which is intended to enable or facilitate the use of electronic technology in commerce and provide equal treatment of paper based documentation and computer based information.
The ET Act was formulated to adapt New Zealand legislation to developments in communications technology without necessitating the wholesale removal of the paper-based requirements or disturbing the legal concepts and approaches underlying those requirements. That is, the ET Act does not change the nature of legal obligations, rather it enables the use of electronic technology in transactions and information management. It achieves this in two ways. Firstly, the ET Act reduces the uncertainty surrounding the legal effect of electronic information, the time and place of dispatch, and the receipt of electronic communications. Secondly, the ET Act allows certain paper-based legal requirements, such as the requirement to be in writing, to include a signature or to retain documents, to be met by using functionality that is equivalent to electronic technology.
The ET Act does not attempt to define a computer-based equivalent to any paper-based legal requirement, rather the focus is on functions and how these can be fulfilled through electronic technology techniques. The ET Act covers technologies that are not strictly electronic, including electric, digital, magnetic, optical, electromagnetic, biometric and photonic means of communication.

Fair Trading Act 1986
The Fair Trading Act 1986 (Fair Trading Act) applies to all aspects of the promotion and sale of goods and services. It is intended to ensure that customers are given full and accurate information about goods and services. It prohibits certain unfair practices and sets out consumer information and product safety standards. It prohibits persons in trade engaging in misleading or deceptive conduct. The Fair Trading Act provides a significant degree of consumer protection. A breach of the Fair Trading Act can result in a substantial fine.

Consumer Guarantees Act 1993
The Consumer Guarantees Act 1993 (Consumer Guarantees Act) creates statutory guarantees to protect the consumer when purchasing goods and services. The Consumer Guarantees Act applies to the supply of goods or services by persons in trade (including manufacturers, importers and distributors) to a consumer.
A consumer is a person who buys goods or services of a kind ordinarily bought for their personal, domestic or household use, but not for resale, use in production or, in the case of goods, repair to goods or fixtures on land.
The Consumer Guarantees Act establishes statutory guarantees or remedies which include repair, replacement and refund. In addition, a consumer may seek damages for reasonably foreseeable losses resulting from the failure of goods or services to meet a statutory guarantee. Attempts to contract out of the Consumer Guarantees Act are prohibited and may lead to substantial fines.

Privacy Act 1993
The Privacy Act 1993 (Privacy Act) is designed to protect the privacy of individuals in relation to the collection, use, access, correction and disclosure of personal information about individuals. The Privacy Act establishes 12 privacy principles for the protection of personal information. In business, the application of the Privacy Act arises in areas such as sales and marketing, credit control and employment.

Personal Property Securities Act 1999
Unlike security interests (i.e. mortgages) taken over land, security interests granted and purportedly held in respect of personal property (e.g. movable property as well as intangible items such as book debts) must be registered on the Personal Properties Securities Register in order to gain priority status over any person who does not register or registers later in time in respect of the same property. The Personal Properties Securities Register is located on an interactive website (www.ppsr.govt.nz).
It is important to note that this personal properties securities registration system does not make unregistered securities invalid. The purpose of the system is to regulate the priority and effect of competing security interests in the same item or items of personal property. For example, as a general rule, security interests which are "perfected" (i.e. the security interest has actually been granted and registration has been completed) earlier in time will take priority over any other security interests (even if granted earlier in time) which are perfected later in time in respect of the same personal property. There are a number of exceptions to this rule. It is necessary to consider the effect of the Personal Properties Securities Act when purchasing the assets of a business for example, to ensure that any third party claims over assets are released or otherwise dealt with by agreement.

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