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STATEMENT OF INTENT
2006/2007 - 2009
2. THE NATURE AND SCOPE OF THE PANEL'S FUNCTIONS AND INTENDED OPERATIONS
2.1 Section 8 of the Act sets out the present functions of the Panel. The functions of the Panel are:
- to keep under review the law relating to takeovers of specified companies and to recommend to the Minister any changes to that law that it considers necessary;
- for the purposes of paragraph (a), to keep under review practices relating to takeovers of specified companies;
- to investigate any act or omission or practice for the purpose of exercising its powers and functions under Part III of the Takeovers Act 1993;
- to make determinations and orders and make applications to the Court in accordance with Part III of the Act;
- to co-operate with any overseas regulator and, for that purpose (but without limiting this function), to communicate, or make arrangements for communicating, to that overseas regulator information obtained by the Panel in the performance of its functions and powers (whether or not confidential) that the Panel considers may assist that overseas regulator in the performance of its functions;
- to promote public understanding of the law and practice relating to takeovers; and
- to perform such other functions as are conferred on it by the Act.
2.2 The Panel intends to continue to undertake a number of operational activities in the coming years including:
- Enforcement activities, ranging from reviewing takeover documents, investigating complaints, convening formal meetings to exercise its enforcement powers and seeking orders from the Courts where necessary. Because of the widening of the Panel's powers arising from the passage of the Securities Legislation Bill the Panel expects to undertake an expanded level of enforcement activity in the coming year as market participants test the scope of the Panel's new powers and how it will use them;
- Approval activities, including the approval of independent advisers and the appointment of independent experts when required under the Code. The level of these activities undertaken is determined by market demand. The Panel sets high standards of competence and independence for approving independent advisers and does not intend to lower its standards. However, the Panel always welcomes new advisers to the market;
- Exemption activities, including the consideration and granting of individual and class exemptions for a range of events and transactions that are covered by the Code but where some relief from its requirements is appropriate. The level of these activities is also dependent on market demand. When granting exemptions the Panel must ensure they are appropriate and consistent with the objectives of the Code;
- Educational activities, including publication of Code Word and the issue of practice notes and guidance notes to inform the market about the Panel's decisions and policies and to assist practitioners in the market to understand how the Panel views various issues. This is particularly important in 2006/2007 because of the technical changes made to the Code and the broadening of the scope of the Act and Code through the Securities Legislation Bill.
2.3 The Panel also intends to undertake a number of policy and market review activities in 2006/2007 and beyond. The Panel is responsible for keeping under review the provisions of takeovers law and making recommendations to the Minister for changes to that law where appropriate. This is likely to involve:
- Working with a group of key market participants to investigate and develop responses to issues including the inter-relationship between the Securities Act and the Takeovers Act when takeover offers involving scrip as consideration are involved;
- Analysis of comments received on a discussion paper issued by the Panel concerning the interaction between the provisions of company law and takeovers law as they apply to schemes of arrangement effected under part XV of the Companies Act 1993;
- Preparation and publication of a discussion paper considering possible changes that could be made to the law relating to schemes of arrangement and amalgamations to provide greater consistency with the principles of the Code where code companies are involved; and
- Reviewing the terms of the Panel's class exemptions from time to time to ensure they remain relevant and appropriate.
2.4 The Panel intends to continue with the publication of its occasional newsletter, Code Word, as a means of explaining changes to the Code and the Act. Code Word is also used to explain key Panel decisions and to publish guidance notes and practice notes. The Panel expects to publish 3 editions of Code Word during each year. The Panel Chairman also plans to give public speeches about the Code to relevant conferences and other meetings as a means of improving the market's understanding of takeover matters.
2.5 There will be special attention given in Code Word and in public speeches to explain the changes to takeovers law being made through the Securities Legislation Bill and the technical amendments to the Code. The Panel's website www.takeovers.govt.nz is kept up-to-date with all publications, policy statements, texts of speeches, and other guidance issued or published by the Panel.
2.6 The Panel intends to continue liaising with overseas regulatory bodies involved in regulating takeovers markets in other countries. This involves the Chairman being a member of the Australian Takeovers Panel and a member of the Australian Panel being a member of the New Zealand Panel. It involves ongoing telephone and email communication where needed. It also involves attendance at overseas conferences of takeovers regulators when opportunities arise.
2.7 The relationships developed through these contacts have proved invaluable where transactions occurring in both jurisdictions have been involved. They provide a very good understanding of how the laws in each jurisdiction function "from the inside". They allow for quick access to authoritative views about regulatory policy in each country.
2.8 The Panel considers it is very important to get feedback from market participants about its performance. For this purpose a group of Panel members and the executive plans to visit the most active legal and advisory firms on a one-on-one basis to obtain direct feedback. The Panel will also conduct group meetings with other interested market participants. There are expected to be around 16 meetings during the year. The Panel will take account of feedback about the operation of the Code and the performance of the Panel. The format of these meetings may be varied from year to year.
2.9 Informal feedback is obtained through the members' networks of contacts in the business and professional fields. The Panel also monitors media comment on takeovers issues and the performance of the Panel.
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