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Niue Bank Act 1994 - Niue Bank Regulations 1994

NIUE

NIUE BANK REGULATIONS 1994

At Cabinet Chambers at Alofi this 22nd day of March 1994

Present:
The Ministers of Cabinet

PURSUANT to the Niue Bank Act 1994 the Ministers of Cabinet hereby make the following regulations.

REGULATIONS

1. Title and Commencement - (1) These regulations may be cited as the Niue Bank Regulations 1994.

(2) These regulations shall come into force on the ....... day of ......... 1994.

2. Interpretation – In these regulations, unless the context otherwise requires,

"Advertisement" means any form of communication made to the public or a section of the public for the purpose of promoting a Registered Bank, a Registered Bank's services, any security issued or to be issued by the Registered Bank or any other matter related to the Registered Bank;

"Monetary Board" or "Board" means the Board of the Niue Bank constituted by section 20 of the Act;

"Registered Bank" means a bank registered with the Niue Bank pursuant to Part V1 of the Act;

"The Act" means the Niue Bank Act 1994.

3. Administrative of Acts - The Niue Bank shall administer the following acts:

(a) The Offshore Insurance Act 1994;

(b) The Offshore Banking Act 1994;

(c) The Trustee Companies Act 1994; and

(d) The Niue Development Bonds Act 1994.

4. Content of Advertisements – (1) No advertisement shall contain any information, sound, image or other matter that is likely to deceive, mislead, or confuse with regard to any particular that is contained or referred to in the advertisement.

(2) No advertisement shall contain any information, sound, image, or other matter that is inconsistent with any prospectus referred to in the advertisement.

(3) No advertisement that refers to a registered prospectus shall contain, or be distributed with, a form of application to subscribe for securities.

(4) No advertisement shall state or imply that the securities to which it relates are guaranteed by any person without also stating -

(a) The name of the guarantors; and

(b) The nature and amount of the guarantee; and

(c) Whether or not the guarantee is secured, and if so, the nature and amount of the security;

Provided that subparagraphs (b) and (c) of this regulation shall not apply if the Crown is the guarantor and its guarantee is unconditional, or subject only to the condition that the issuer or any other person has failed to repay the securities.

(5) No advertisement shall -

(a) State the amount of assets or net assets, of any person or persons other than the total assets, or net assets, of the issuing group or borrowing group, or mortgagor under a contributory mortgage (as the case may be), or of a guarantor of the securities to which the advertisement relates; or

(b) State the amount of the total assets of the issuing group, borrowing group or mortgagor under a contributory mortgage, or guarantor without also stating with equal prominence the amount of the total liabilities of the group, mortgagor or guarantor; or

(c) State the amount of net assets or the amounts of the assets and liabilities in an issuing group, borrowing group, guarantor or mortgagor unless under a contributory mortgage unless the amounts shown appear in the most recent audited consolidated balance sheet of the group, mortgagor, or guarantor (being a balance sheet dated not earlier than 18 months before the date of distribution of the advertisement) and the advertisement states the date of the balance sheet as being the date at which the amount, or amounts, have been calculated.

(6) No advertisement shall state the amount of the authorised capital or issued capital of a registered bank unless that amount is described as such and the advertisement also states with equal prominence, and describes as such, the amount of the capital of the registered bank that is credited as paid up.

(7) No advertisement shall refer to any debt securities without also stating that either that the securities are unsecured or the nature and ranking in point of security of the securities.

(8) An advertisement shall not state or imply that participatory securities are secured, other than by use of the words "secured" accompanied by a statement of the nature and ranking in point of security of the securities.

(9) No advertisement shall contain a profit forecast unless the advertisement refers to a registered prospectus and the profit forecast is also combined in the registered prospectus.

(10) No advertisement shall be distributed to the public unless the certificate that complies with paragraph 11 of this regulation has been completed in respect of the advertisement at the time at which the advertisement is so distributed.

(11) A certificate for the purposes of paragraph 10 of this regulation shall be in the form set out in the Schedule to these regulations and shall be signed -

(a) By a person authorised by the board of directors of the registered bank to sign such certificates; or

(b) Where the registered bank has only one director resident in Niue, by that director; or

(c) in every other case by at least two persons, each of whom is one of the following persons -

(i) a director of the registered bank to which the advertisement relates; or

(ii) where none of the directors of the registered bank reside in New Zealand, a person authorised by the directors to sign such certificate.

(12) Paragraph 10 of this regulation shall not apply -

(a) In respect of an authorised advertisement that contains no information or a matter other than -

(i) the name, business address, postal address, telephone number, and telex number of the registered bank and the logo customarily used by the registered bank; and

(ii) a description of any securities being offered, the terms of the relevant offer and a brief description of any rights or privileges attaching thereto; and

(iii) a statement of the rate or rates of interest (if any) that may be earned by holding any securities being offered;

(b) In respect of any advertisement if the only difference between the advertisement and another advertisement in respect of which a certificate that complies with paragraph 11 of this regulation has been completed is that a rate or rates of interest shown in one of the advertisements differ from the rate or rates of interest shown in the other advertisement.

(13) Every certificate completed in respect of an advertisement for the purposes of this regulation shall be held by the registered bank to which the advertisement relates for at least 12 months from the date of the last distribution of the advertisement.

(14) If a registered bank fails to comply with paragraph 13 of this regulation, the registered bank and every principal officer thereof commits an offence:

Provided that it shall be a defence to a charge against a principal officer under this provision if the defendant proves that the disposal of the certificate by the registered bank took place without his knowledge or against his advice.

(15) Without limiting paragraph 16 of this regulation, every person commits an offence who -

(a) Being a publisher of a newspaper or magazine, distributes an advertisement to the public in contravention of paragraph 10 of this regulation by means of that newspaper or magazine;

(b) Being the operator of a broadcasting station, distributes an advertisement to the public in contravention of paragraph 10 of this regulation by means of a broadcasting station; or

(c) Being the exhibitor of a film distributes an advertisement to the public, in contravention of paragraph 10 of this regulation by means of exhibition of that film:

Provided that it should be a defence to a charge under this paragraph if the defendant proves that, at the time the advertisement was so distributed, he had reasonable grounds to believe, and did believe, that a certificate that complied with paragraph 10 of this regulation had been completed in respect of the advertisement.

(16) Without limiting paragraph 15 of this regulation, if an advertisement is distributed to the public in contravention of paragraph 10 of this regulation, the registered bank and every principal officer thereof, commits an offence:

Provided that it shall be a defence to a charge under this paragraph if -

(a) The defendant proves that the advertisement was distributed without his knowledge or against his advice; or

(b) The defendant is a principal officer and he proves that, at the time the advertisement was so distributed, he had reasonable grounds to believe, and did believe, that a certificate that complied with paragraph 10 of this regulation had been completed in respect of the advertisement.

(17) Every person who commits an offence against paragraphs 10 to 16 of this regulation is liable on summary conviction to a fine not exceeding $5,000.

(18) No advertisement shall state or imply that any securities to which it relates are made or may become authorised trust investments without also stating any conditions that remain to be fulfilled before the securities qualify as authorised investments under the Trusts Act 1994.

(19) No advertisement shall state that investment in the securities to which it may relate is safe or free from risk.

(20) No advertisement shall state the rate or rates of interest that may be earned by holding securities unless the advertisement states any minimum amount or amounts of the securities that would have to be held and any minimum of period or periods during which the securities would have to be held, in order to earn that rate or those rates.

(21) No advertisement shall -

(a) State a rate of interest payable in respect of a security that has been adjusted for the purposes of taking into account the incidence of taxation of the interest; or

(b) Otherwise refer to the taxation of interest earned by holding securities, - except that, subject to paragraphs 1 and 2 of this regulation, an advertisement may include a statement to the effect that in certain circumstances there may be tax advantages in holding the securities referred to in the investment and that (if applicable) there is set out in a prospectus a full statement of those advantages.

(22) The provisions of the International Business Companies Act 1994 shall continue to apply to international business companies incorporated or continued under that Act notwithstanding the provisions of this regulation.

_________

SCHEDULE

CERTIFICATE IN RESPECT OF ADVERTISEMENTS

I (or We) certify that –

(a) I (or We have) –

*(i) read

*(ii) seen

*(iii) listened to, the advertisement described in the Schedule to this certificate.

(b) The advertisement complies with the Niue Bank Act 1994 and the Niue Bank Regulations 1994.

(c) The advertisement does not contain any matter that -

(i) is likely to deceive, mislead or confuse with regard to any material particulars; or

*(ii) is inconsistent with any registered prospectus referred to in the advertisement.

Signature of Director (or Authorised Signatory):___________________________________

Date of Signing: ___________________________

Signature of Director (or Authorised Signatory): __________________________________

Date of Signing:___________________________

ADVERTISEMENT

(The description must be sufficient to enable the advertisement to be identified.)

*Delete if inapplicable

APPROVED by Cabinet at Cabinet Chambers, Fale Fono, Alofi, this 22nd day of March 1994.

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