Here's the FMA's statement on Bernard Whimp:
The Financial Markets Authority (FMA) has today issued a warning about unsolicited offers that may be made by Mr Bernard Whimp and entities associated with him. Shareholders are warned to treat any such offer with great caution and to seek advice from a registered financial adviser, lawyer, accountant, Community Law Centre or Citizen’s Advice Bureau.
FMA has today given notice to Mr Whimp, and a number of limited partnerships associated with him, that it will consider requiring them, and any person associated with them, to ensure any unsolicited offer they make contains a copy of the warning in a prominent position. Mr Whimp has three days to make submissions, which FMA will consider before making its decision on Friday 6 May.
This is the first use of powers under the Financial Markets Authority Act 2011.
Limited partnerships associated with Mr Whimp have previously made unsolicited offers to buy shares directly from shareholders at less than market price, or where the sellers have to wait for up to 10 years for payment.
“FMA issued this warning because it considers it is not in shareholders’ interests to accept such offers,” said FMA CEO Sean Hughes. “Any shareholder who receives such an offer needs further information to enable them to make an informed decision about whether to sell their shares. The warning provides that information.”
“FMA considers that a fair, efficient and transparent financial market requires investors to make fully informed decisions with the best information available to them.” The warning can be found at www.fma.govt.nz.
FMA regulates New Zealand’s financial markets. Our main objective is to promote fair, efficient and transparent financial markets. To find out more about us and for help with investing, see www.fma.govt.nz. Under section 49 of the Financial Markets Authority Act 2011, if FMA has issued a warning, it may make an order that requires any offer documents of the type specified in the order to contain a copy of the warning in a prominent position, or be accompanied by a copy of the FMA warning (a warning disclosure order).
Before making a warning disclosure order, FMA must first: (a) have issued a warning about any matter relating to a relevant person;
(b) give the relevant person at least three working days written notice that FMA may make a warning disclosure order and the reasons why FMA is considering exercising that power;
(c) give the relevant person an opportunity to make written submissions and to be heard on the matter within that notice period; and
(d) have regard to whether exercising the power contributes to its function of promoting the confident and informed participation of businesses, investors and consumers in the financial markets.
A ‘relevant person’ includes a person who is or has engaged in conduct that involves dealings in securities. A person who does not comply with an order made by FMA under section 49 of the Financial Markets Authority Act 2011 commits an offence and is liable on summary conviction to a fine of up to $300,000.
Read the FMA's earlier statement below and see a Double Shot Interview with CEO Sean Hughes here or above:
Restoring investor confidence in New Zealand's financial markets is the major goal of the new Financial Markets Authority which was formally established today.
FMA chairman, Simon Allen, said New Zealand's economic prospects depended on lifting international and domestic investor confidence in the country's capital markets.
"Broadening and deepening our financial markets to ensure local businesses have access to the capital they need to grow is our overriding objective," he said. "To achieve that investors have to regard New Zealand as a good place to invest."
"FMA's intent is to establish clearer and more consistent rules for market participants, improve market intelligence and surveillance, and be more visible and proactive in regulation and enforcement as well as raise the standards of financial advisers," said Mr Allen.
FMA is the new Crown entity that has taken over the functions of the Securities Commission and the Government Actuary, which have been disestablished, and consolidates other regulatory functions from the Ministry of Economic Development.
Mr Allen said both he, the new nine member and three associate member FMA Board and executive team led by Chief Executive Sean Hughes, were conscious of the enormous challenge they faced in achieving a turnaround in investor confidence in the current negative environment in which investors have suffered large losses in finance company and other company collapses in recent years combined with the fall out of the global financial crisis.
"We can and will set clearer rules for how markets and businesses should operate to a higher standard, and we will more consistently and strongly enforce those rules," he said. "However, New Zealand cannot regulate its way to improved standards of market behaviour, company performance and corporate governance."
"Ultimately, if New Zealand is to seriously lift its game, it requires all market participants including professional company directors running New Zealand businesses to take these new rules and responsibilities of conduct, governance and integrity very seriously."
"In that sense, we are all in this together, and I can't over-emphasise that enough," he added.
Chief Executive Sean Hughes said that FMA had new powers, new functions, a greater mandate and significantly increased budget compared to its predecessors.
"Over time investors can expect access to more timely and better quality information and higher standards of financial advice on which to make their investment decisions. And the market generally can expect FMA to act more quickly and efficiently in market surveillance, intervention and, where necessary, enforcement if the new rules are deliberately flouted."
Mr Hughes said a key FMA goal was to lift standards of corporate governance. Another priority was the previously announced review of the pipeline of existing and potential prosecutions and investigations inherited by FMA from the former Securities Commission.
(Update adds Whimp warning).