The disclosure requirements
An offer of financial products for issue requires disclosure to an investor unless an exclusion is available under the FMCA. Disclosure under the FMCA requires:
a product disclosure statement (PDS) to be prepared, registered and disclosed to the investors (other than those to whom an exclusion applies). The PDS is aimed at non-expert investors and required to contain specified information, and be concise and worded in plain English; and
other material information that is not included in the PDS is required to be registered on an online public register.
An offer of existing financial products for sale will ordinarily not attract disclosure requirements. However where an issuer is involved in the sale process or attempting to avoid the disclosure requirements by using a sale process, the FMCA will require disclosure.
The term financial products in the FMCA is very broad and covers debt, equity, managed investment products and derivatives.
The exclusions under the FMCA fall within two broad categories:
1. offers to investors that are capable of making an informed decision to invest; and
2. offers that are too small to justify compliance.
Over a series of articles, we have provided an overview of four of the exclusions that we consider will be most useful. You can view each article by clicking the link in the relevant box.
Limited disclosure may still apply
It is important to note that even if an offer is made in reliance on an exclusion, the FMCA may still impose short-form disclosure, warning statements or other requirements on the offeror.
Also, the “fair dealing” provisions of the FMCA that prohibit misleading or deceptive conduct, and representations that are false, misleading, or unsubstantiated, apply to all offers of financial products made to New Zealand investors.
Detailed rules apply
A range of complex laws and regulations apply to those offering financial products to New Zealand investors. Those rules contain severe sanctions for breach. Our article series provides a general summary of some of those rules. Specific advice should be obtained in relation to proposed marketing, offering or selling of financial products.
Disclaimer: This article is a general summary of complex laws and regulations that contain severe sanctions for breach and is not intended as legal advice. Specific legal advice should be obtained in relation to proposed marketing, offering or selling of financial products.
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