The Takeovers Code Approval Amendment Regulations 2013 amend the Takeovers Code with effect from 1 June 2013. The amendments arise out of various discussion papers by the Takeovers Panel and its subsequent recommendations to the Minister of Commerce in the period 2009 to 2012. Those documents are available on the Panel's website here.

The majority of the amendments are technical only (to correct various drafting anomalies and inconsistencies in the Takeovers Code). However, the following substantive amendments have also been made to the Code: 

  • Defeating conditions: The Code has been amended to narrow the scope for offerors to abort offers by relying on a condition. New Rule 25(1A) will prevent an offeror from invoking a condition:

    • where it would be "unreasonable" to do so; or

    • that restricts the target company's ordinary course of business.

  • Offeror's intentions for the target company: New clause 14 of Schedule 1 to the Code provides that the offeror must include a statement in its offer document in relation to its intentions about:

    • material changes to the business activities or assets of the target group;

    • material changes to the capital structure of the target company (including dividend policy);

    • any other information about the likelihood of changes to the target group that could reasonably be expected to be material to the making of a decision by an offeree to accept or reject the offer.

  • Notice of conditions not satisfied or waived: Under new rule 49C, if an offer is still subject to one or more conditions, the offeror must send a notice during the second to last week of the offer period outlining which conditions remain to be satisfied and which conditions have been satisfied or waived. This notice must be sent to the target company, the Takeovers Panel and, if the target company's voting securities are listed, NZX.

The regulations also improve processes in the Code's regime for partial takeover offers. The amendments relate to the procedure for shareholder approval of certain partial offers, clarify the position of custodians who accept offers on behalf of persons who do not hold shares directly in the target company, and provide for additional information to be made to shareholders in partial offers.