• About
• Publications
• Exemptions
• Notices
• What's new?
• International
• Speeches
• Information for investors
• Contact us
• Site map
• Home

FORMAT FOR AN APPLICATION FOR AN EXEMPTION - SECTION 35A FINANCIAL REPORTING ACT 1993

Download the format as Word document

Who is applying?
Give the full name, address and corporate status of the person(s) seeking the exemption.

Describe how the applicant is an 'issuer' within the definition provided by the Financial Reporting Act.

State the jurisdiction in which the applicant is incorporated or constituted, and any securities exchanges upon which its securities are listed.

What securities are being offered?
Describe any offers of securities which the applicant has made and any securities which have subsequently been allotted, which are relevant to the application. It would be helpful to give some background to the transactions and then specific details e.g. the type of securities, details of the offer, parties to the offer, details of target subscribers, etc.

State whether the applicant has relied upon any exemptions from the Securities Act 1978 in making these offers and allotting the securities.

What do you want an exemption from?
Give the provisions of the Act from which the exemption is sought and any conditions of exemption you consider appropriate.

Please note that the Commission must not grant an exemption to directors of an overseas issuer unless it is satisfied that the extent of the exemption is not broader than what is reasonably necessary to address the matters that gave rise to the exemption.

Why are you seeking this exemption?
Explain, for each provision of the Act from which the exemption is sought, why the exemption is wanted and give full reasons which may justify an exemption.

Are there any precedents?
Identify any existing exemption notices which are similar to the exemption sought and which may provide a precedent for your application. State how the notices are similar to and different from the exemption you are seeking.

What effects will there be on prospective investors?
Describe how your proposed exemption may affect prospective investors and any costs and benefits to them.

What effects will there be on the issuer?
Describe the effects on the issuer, and the relative costs and benefits, of (a) having and (b) not having the exemption.

Please note that the Commission cannot grant an exemption to directors of an overseas issuer unless it is satisfied that the exemption would not cause significant detriment to subscribers for the securities of the issuer that are members of the public in New Zealand, having regard to the financial reporting requirements that must be complied with in relation to the issuer under the law in force in the country where the issuer is incorporated or constituted.

When assessing an application for an exemption under section 35A of the Financial Reporting Act, the Commission will take into account the following (along with any other matters relevant to a particular application):

1. the financial reporting requirements in force in the country where the issuer is incorporated;
2. the legal standing of the financial reporting requirements;
3. the enforceability of the financial reporting requirements;
4. the ease with which New Zealand authorities could, if necessary, obtain cooperation from home jurisdiction in any investigation.

To assist it to consider an application, the Commission will require a detailed description of these matters as they apply to the applicant and the applicant's jurisdiction.

Factors which the Commission has identified that may also be relevant in making its assessment under section 35A include:

1. whether under section 14 of the FRA 1993 the Registrar of Companies has accepted financial statements that comply with the law of the overseas country in question on the basis that the requirements of that law are substantially the same as those of the FRA 1993;
2. whether the Commission has previously granted an exemption for overseas issuers from the disclosure, record keeping, audit, and registry obligations of the Securities Act 1978 on the basis that the Commission has undertaken a similar assessment as would be required under section 35A(2) of the FRA 1993. The Commission notes that in relation to these jurisdictions it would have to reassess the same factors but from the point of view of financial reporting obligations rather than securities law only;
3. the additional cost that would be associated with preparing information which meets the full requirements of the FRA 1993, and whether this outweighs the benefit that would be achieved by having that information available for investors; and
4. the breadth of the exemption required in any particular case.

Please ensure you provide information which addresses these factors in full.

Supporting documents
You need to supply the relevant documents to support your application. These could include the following documents or most recent drafts:

1. the most recent financial statements
2. details of incorporation
3. copies of applicable financial reporting laws and standards, or references to where these can be obtained electronically.
4. a draft exemption notice

Time frame
If your application is urgent specify the dates when a decision is needed and when any exemption granted needs to be gazetted. Give reasons for seeking urgent consideration.

Download the format as Word document