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New Zealand Securities Commission |
Last Updated: 19 April 2014
Ref: 500-080 / #22256
OFFICE OF PO BOX 1179
SECURITIES COMMISSION TELEPHONE 729-830
LEVEL 6 GREENOCK HOUSE 102-112 LAMBTON QUAY –39 THE
TERRACE WELLINGTON 1 NZ
5 July, 1984
SECURITIES COMMISSION BULLETIN NO. 3
PREPARING TO “GO PUBLIC”
company. The leading case is Gluckstein v. Barnes [1900] UKLawRpAC 21; [1900] A.C. 240, a decision of the
House of Lords. Members of a syndicate agreed to purchase a property for
140,000 pounds, and to resell it for 180,000 pounds to a
public company promoted
by them. Before settlement of the purchase, they bought up mortgages on the
property at a discount of 20,000
pounds. On settlement, having paid 140,000
pounds to the vendor, they received from the vendor the full amount of the
mortgages
thus realising a profit of 20,000 pounds. In the prospectus for the
public company, the syndicate expressly referred to the profit
of 40,000 pounds,
being the difference between the buying and selling prices for the property, but
did not refer to the profit of
20,000 pounds on the mortgages. After the
company failed, a member of the syndicate was held liable for the 20,000.
Perhaps there
is room for argument as to the precise nature of the liability
established by the case. In some of the judgments it is said that
liability
rested on the statement in the prospectus that the syndicate had paid 140,000
pounds, when in fact, allowing for the discount,
they had paid only 120,000
pounds. Other commentators have suggested that it was a simple case of a secret
profit taken by fiduciaries
which they could not be allowed to keep. Whatever
technical basis might be taken, the robustness of the view of the Law Lords that
such conduct would not be tolerated is indicated by the concluding sentences of
the speech of Lord Macnaghten. On the question whether
the member of the
syndicate was entitled to contribution from the others, his Lordship said,
“He can bring an action at law
if he likes. If he hesitates to take that
course, or takes it and fails, then his only remedy lies in an appeal to that
sense of
honour which is popularly supposed to exist among robbers of a humbler
type.” In the Antipodes, it has been necessary so far
to apply this case
only in New South Wales (Hermann v. Charny [1976] 1 NSWLR
261).
3.1 The financial statements that are required under clauses 8 and 23 to 38 of the First
Schedule;
3.2 The disclosures regarding a business or subsidiary, acquired by the
issuing group within the preceding 2 years, or proposed to
be acquired, that are
required under clause 11 of the First Schedule;
3.3 The disclosures regarding the interests of directors in material
transactions that are required under clause 15 of the First Schedule;
3.4 The disclosures regarding the interests of promoters in material transactions that are required under clause 16 of the First Schedule.
There are also three relevant general requirements:-
3.5 Statements regarding material contracts made within 2 years are required under clause
17 of the First Schedule, in addition to the requirement to lodge copies of the contracts with the registered prospectus.
3.6 Particulars of “any material matters relating to the offer of
securities” that are not elsewhere contained in the
prospectus (except
contracts entered into in the ordinary course of business) are required under
clause 40 of the First Schedule.
3.7 If a statement required to be included would be misleading if additional
information were not also included, the additional information
must be included
(Reg. 5.(1)).
4.1 Are the draft statements misleading in the absence of further
information? (Reg. 5(1))
4.2 Do the draft statements cover all the material matters relating to the
offer of securities? (Clauses 17 and 40, First Schedule)
These are questions of judgment and degree. An example will illustrate them. Where a public issuer buys assets from a director or promoter, relative or a company described in clauses 15 and 16, specific disclosures are required under these clauses.
That is not to say that in all other cases in which a director or promoter has an interest, disclosure is not required. It depends on the question whether the interest is material
to the offer of securities. Where the assets are items of stock acquired at market prices, the interest will usually not be material to the offer of securities, and no
particular disclosure will be required. But where the assets are substantial
items of property, or the assets and undertaking of
a business including
goodwill, the details,
including the nature of the directors’or promoters’interest, could well be material and require disclosure under clauses 17 and 40. So far, the Commission has
intervened under s.44 of the Act in two cases after the registration of the prospectus to consider whether additional disclosure should have been made, and in one case
additional disclosures were required.
5.1 An existing company may increase its capital and offer the new shares for
public subscription. (Section 7)
5.2 The shareholders of an existing company may offer to sell shares to the
public, sometimes after a bonus issue, sometimes after
receiving a special
distribution, and usually at a price exceeding par. (Section 8)
5.3 A new public company may be formed which acquires the share capital of an
existing company or companies and makes a public issue
of securities to meet the
cost or to repay bridging finance. Each existing company becomes a subsidiary
of the public company. (Section
9)
5.4 A new public company may be formed which acquires some or all of the
assets and undertakings of an existing company or companies
and makes a public
issue of securities to meet the cost or to repay bridging finance. In these
cases, existing companies remain
in the ownership of their existing
shareholders. (Section 10)
Many refinements are possible. Indeed, sometimes a chain of transactions is constructed involving numerous companies created for the purpose of arranging
affairs in the manner desired by the promoters. It is clear that promoters and directors can arrange matters to take benefits and profits in a variety of ways.
7. Increase of capital
7.1 The simplest and most direct method for a company to “go
public” is to increase its share capital and make a public
offer of the
new shares. This process entails striking a balance between the interests of
the existing shareholders and the new
public investors. Various methods are
available to do it.
7.2 The issuer may declare a special dividend or distribution or make a bonus
issue of securities to existing members before making
the public offer. If that
is done within the accounting periods referred to in clauses 8 and 23 to 38 of
the First Schedule, the
facts will be disclosed in the statements required under
those clauses; if it is done after
the close of the latest accounting period, the information should be disclosed as a material matter under clause 40.
7.3 Before making the public offer, the issuer may grant options to take up additional securities on terms settled when the options are granted. Where the option price is set at a premium over par, it may be taken as an indication of confidence on the part of
the grantees of the options. Disclosures regarding options are required under clause
13 of the First Schedule.
7.4 The public offer may be made at a premium, which becomes locked into the share premium account of the issuer for the benefit of new and existing shareholders alike. Disclosures of the terms of the offer are required under clauses 1 and 21 of the First Schedule, and of the terms of other material contracts and offers under clauses 17 and
40. In a recent issue of 12.5 million 20 cent shares, 7.5 million shares were allotted at
par to the promoters and nominees, and 5 million shares were allotted to the
public at the price of 50 cents per share (i.e. at a
premium of 30 cents per
share). The resulting premium of $1.5 million paid entirely by the public and
held by the company, is thus
attributable pro rata to the shareholdings, i.e.
$900,000 to the promoters and nominees, and $600,000 to the public shareholders.
Terms of this kind should be carefully explained in the prospectus.
8. Members’Offer to Sell Shares
8.1 New Zealand statute law has 2 provisions about offers by shareholders to
sell all or part of their holdings to the public. They
are section 6 of the
Securities Act 1978, and section 457 of the Companies Act 1955.
8.2 Section 6 of the Securities Act applies where the shares were allotted with a view to being offered by the allottee for sale to the public. Where the shares are so offered within 6 mo nths after the original allotment or where the shares are so offered before they are fully paid up, there is a presumption that the original allotment was made with a view to offering the securities for sale. In England, this is a common method of marketing an issue. The issue is taken up by an “issuing house” for resale to the
public. The procedure has been used in New Zealand, but here the offers have
usually been made by a parent company wishing to introduce
New Zealand
shareholders to its New Zealand subsidiary. A notable recent example was the
offer by Australia and New Zealand Banking
Group Limited (the Australian parent
company) of 6,674,500 ordinary shares of $1 each fully paid up in the capital of
ANZ Banking
Group (New Zealand) Limited made on 1 February 1980 at the price of
$1.75 per share. In these cases, the full requirements of the
Securities Act
relating to the prospectus and advertising now apply.
8.3 Section 457 of the Companies Act 1955 applies where an existing shareholder makes
a public offer of part or all of his holding which he had taken up otherwise than with a
view to resale. The Securities Act does not apply to such a case (section
6), but the offer must be made in conformity with section
457 of the Companies
Act 1955, and must be accompanied by a statement in writing of the matters
mentioned in that section, or by a prospectus that complies with
the Securities
Act.
8.4 Vending shareholders often take benefits from the company before
reselling their shares to the public offerees. Such benefits
may take the form
of a bonus issue of
securities or a special dividend (not infrequently distributing capital
profits). Moreover, the vending shareholders usually fix their
selling prices at
a figure greater than the consideration received by the company for the
shares.
8.5 The facts of the matters mentioned in para. 8.4 will usually be apparent
from the accounting information required under the First
Schedule to the
Securities Regulations, especially clause 23 (balance sheet, 24 (capital and
reserves), 37 (comparative figures)
and 1 and 21 (terms of the offer and
securities), but if the facts are not thus disclosed, particular attention
should be given to
the question of disclosing them under clause 40 (other
material matters).
9. Holding company’s offer after acquiring a subsidiary
9.1 The requirements of the First Schedule that apply where a public issuer
has recently (i.e. within the past 2 years) acquired a
subsidiary, or discloses
in the prospectus that it intends to acquire equity securities that will result
in a company becoming a
subsidiary, are directed towards securing disclosure in
the prospectus of:-
(a) the prescribed financial information about the subsidiary where it is material
(clause 11); and
(b) the considerations paid by and accruing to, and the profits accruing to, the directors and promoters (clauses 15(4) and 16).
9.2 Disclosure of financial information under clause 11 is required where the
consideration for the acquisition of the subsidiary
(or proposed subsidiary) is
more than one-fifth of the amount of the total tangible assets shown in the
balance sheet of the issuing
group that is included in the prospectus under
clause 23(1). Where the subsidiary or proposed subsidiary is itself a holding
company,
each company in the subsidiary’s group becomes a subsidiary of
the public issuer. In that respect, the regulations adopt the
definitions
contained in section 158, Companies Act 1955 – see Reg. 2, definitions of
“ho lding company” and “subsidiary”. Nevertheless, the
relevant clauses
(11, 8 and 23 to 38) require the disclosure of information
about the group (defined in Reg. 2) being the group that has been or is
proposed
to be acquired by the public issuer.
9.3 A difficulty arises in cases where such a group has only recently been
assembled, with the consequence that the accounts for that
group (as defined)
will not cover the accounting periods mentioned in clause 11. In those cases,
the Commission considers that clause
40 requires disclosure of the
pre-acquisition figures for those accounting periods in respect of each
subsidiary where they are material.
9.4 The Commission is keeping the operation of clause 11 under review,
welcomes enquiries in cases of difficulty, will consider making
use of the
exemption power under section 5(5) of the Act in appropriate cases, and will
consider proposals for amendments to the
clause in the light of
experience.
9.5 Disclosures under clauses 15(4) and 16(2) are required in respect of
material transactions within the previous 5 years, or which
are to be entered
into, between the public issuer or a subsidiary and a director or promoter, his
relatives or companies in which
he and his relatives held a majority of the
shares. Disclosures are required
about the property, its cost, and the price paid or payable. It should be noted that, to avoid overlap, the definition of a promoter in the Regulations excludes a director.
9.6 A material transaction is defined in Reg. 2 as a transaction whereby real
or personal property is acquired by a person from another
person – being
property the value of which is material to any of the parties to the
transaction.
9.7 Clauses 15(4) and 16(2) are narrowly drawn to cover the plain cases and
to avoid a multiplicity of immaterial information in complicated
cases, as where
a company is formed to acquire a number of businesses or divisions from existing
companies, or as where companies
with common directors have many transactions
with each other.
9.8 It is possible to avoid the terms of clauses 15(4) and 16(2) by careful construction of a series of transactions. Thus, where a promoter or director acquires shares in a company which sells assets to the issuer, disclosure of the cost of the shares is not required by these clauses. Similarly, where a third party (other than one described in the clauses) is interposed who acquires an asset from the promoter or director and on- sells it to the issuer, disclosure of the cost to the promoter or director is not required
by these clauses. But in each of these cases, and in any other where promoters or
directors take a profit, directly or indirectly, from transactions culminating with the issuer, whether or not clause 15 or 16 applies, careful consideration should be given to the question whether disclosure is required under clause 40. Thus, where directors of the issuer had purchased the shares of a company which sold substantially the whole
of its assets to the issuer, the Commission considered that disclosure of the cost of the shares should be made under clause 40.
10. Company’s offer after a Purchase of Assets
10.1 The requirements of the First Schedule relating to the purchase of a
business by a public issuer are also contained in clauses
11, 15(4) and 16,
which have been briefly reviewed in section 9 above.
10.2 Where the business is being purchased from a company, it is undesirable
to include corporate items in the disclosures. Where,
for example, an existing
company sells its assets and undertaking including goodwill as a going concern,
it is not appropriate to
show shareholders’funds and reserves. Those are
corporate items relating to the affairs of the vending company – they
do
not relate to the items being sold. A simple statement of assets sold and
liabilities assumed, that reconciles with the consideration,
is required.
Similarly, corporate items should not be included in the profit and loss
accounts. The results of the business transferred,
rather than the profits of
the vending company, are the required disclosures.
10.3. Disclosures of directors’and promoters’interests in
respect of the sale of assets are required under clauses 15
and 16. These have
been outlined in paras. 9.5 to 9.9 above.
11. Conclusion
Promoters and directors are placed by the law under a duty to make full and frank disclosure of all matters that are material when securities are offered to the public.
The detailed clauses in the Schedules are not an exhaustive code. The general
duty of
disclosure is especially strict when a promoter or director has a material interest in any aspect of the matter. In such cases, the conflict of duty and interest should be recognised and the interest should be fully exposed in the prospectus.
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