What your Directors and Officers Insurance doesn’t cover

We were recently asked by PMG Funds (PMG) to share our expertise on limited partnerships (LPs) for commercial property investments. As a fund manager, PMG aim to structure each of their funds to maximise benefits for investors. Some of PMG\'s wholesale funds are structured as LPs. The LP structure enables them to simplify how they manage operational aspects of the investment, while allowing investors to play a more passive role while rental income flows through. What is an LP? An LP is a business structure with at least one general partner (GP) that assumes unlimited personal liability, so the investors don\'t have to. For PMG\'s LPs, investors pool their money together to purchase and/or develop property by contributing capital and becoming limited partners. Investors have limited liability and leave management to a fund manager and a property manager. The GP usually has no economic interest in the LP which is entirely held by the investor limited partners. In PMG’s fund structures, the LP will enter into a management agreement with a fund manager that will administer the LP. This agreement clearly sets out the powers and fees of the fund manager, which gives investors transparency to how their money is being used and the fees that are charged. So what\'s so great about LPs? Limited risk - investors only risk the money they have contributed to the LP. Every investment comes with inherent risk and the LP/GP structure is a shield to that risk. If something drastic happens and creditor and/or solvency claims start to appear, investors don\'t have to worry about being personally liable. Their purpose (in PMG\'s case) is real estate - the investment is simple - through the purchase of commercial property, investors receive net income. Tax simplicity - LP’s are look-through for tax. The only tax accounting required is on the investor\'s personal income. This means there is no double taxation or other complexities like those related to distributions from a company. Private - unlike registered companies where shareholder registers are public, an LP’s register is not public. The only public part is the GP company (registered with the Companies Office) which shows the GP company as the owner of the GP. This is the only thing the public will see in relation to the fund, so LPs are a great thing if you don\'t want the world to see your investments. The GP gets to do all the work - and the LP, as an investor, get to sit back, relax and receive the returns! The management agreement also creates incentive for the manager to do a good job - and make investors returns - some of the fees are awarded purely on success of the property fund, meaning that manager and investor interests are aligned. If you have any questions about how LPs work or would like further explanation on the legal side of things, please contact our corporate and finance team.

One of the major risks of being a director is the liability you face if the company fails. Thanks to a new decision from the High Court, this risk has just become a lot higher. When a company fails, directors often face a risk that they will be sued for having breached their director duties. Traditionally this has meant a claim by liquidators saying that the directors should have liquidated the company more quickly when problems arose. While directors are entitled to make a reasonable attempt to trade out of difficulty, Courts have repeatedly required directors in difficult circumstances to exercise “sober judgement” in deciding whether a company has any prospect of returning to solvency. Fundamentally, this approach has meant that directors must compare the impact of immediate liquidation with what will happen if they delay. Where directors are confident that they can improve a company’s financial outlook, they have been justified in continuing to trade even if the company does not ultimately return to the black. The decision of the High Court in Mainzeal Property and Construction Limited (In Liq) v Yan challenges this approach and creates a new risk for directors that they will be exposed to claims that they could have traded their company better even if liquidation was not a realistic option. Under the Companies Act 1993, directors owe a range of duties to the companies that they lead. These include duties to act in good faith and in the best interests of the company, and duties not to trade recklessly or to take on any obligations that the company cannot reasonably expect to meet. Underlying each of these different duties is a fundamental expectation that directors will act reasonably in carrying out their role. In practice, what this means is that Courts considering challenges against directors have not applied a strict level of scrutiny to their actions but instead have asked whether their actions can be justified in commercial terms. Directors are not expected to make the right decision every time but only to make decisions that are reasonable when measured against the circumstances in which they find themselves. This is of real importance to directors in carrying out their role. Directors need to be able to understand and assess what their duties mean and to ensure that they stay within them. The vast majority of directors who face legal claims have attempted to act appropriately and the law should assist directors in being able to carry out this task well. For this reason, an objective standard for measuring directors’ compliance with their duties is an important part of the law of companies in New Zealand. At least since 1993 when the present Companies Act was implemented, this objective standard has been provided by a direct comparison to a hypothetical earlier liquidation. By considering whether a director should have liquidated his or her company sooner, the Courts have given directors a standard against which to measure their own conduct. Directors have been entitled to ask: can I reasonably make the situation better for myself by continuing onwards? The decision in Mainzeal has thrown this objective standard into doubt. In that decision Justice Cooke of the High Court held that Mainzeal would have been worse off if its directors had liquidated the company sooner. From the period of time where financial trouble became obvious, to the actual date of liquidation, the directors significantly improved the company’s financial circumstances, probably saving the company’s creditors millions of dollars in the process. Nevertheless the Court was not satisfied that this meant that the directors had acted appropriately and instead asked the question whether there was a different course of action the directors could have taken to better protect the company. Justice Cooke considered that if the directors of Mainzeal had threatened to resign their roles then its Chinese parent company would have been much more likely to provide additional funding. His Honour considered that this could have averted the ultimate liquidity crisis that toppled the company. Accordingly he found that the directors had traded recklessly and were, at least partly, responsible for the company’s ultimate failure. It was for this reason that the Judge ordered the directors to pay a combined total of $36m of damages to the company’s liquidators. The Mainzeal decision introduces new risks for directors. This is not limited only to major companies with foreign parents, but to directors to all sorts of companies. The Court’s decision indicates that Judges may now look at how the directors have traded their company and assess whether there were better alternatives available. If the Court, in a hindsight exercise, considers that a better road existed, then the directors may be required to pay the difference between what the Court considers could have been achieved and what was ultimately the creditors’ loss in the liquidation. It has long been the case that directors of companies in difficult circumstances are required to take a sober judgement about whether to continue trading. This duty has now intensified. It is no longer enough for directors to consider whether liquidating a company is the best way out of trouble and reasonable directors may need to show that they have taken legal and accounting advice about their alternatives before making any decisions about how they try to trade out of trouble. This places directors in a more difficult position and may mean that some directors choose not to take on roles in more risky industries or that they expect a greater level of compensation for the roles that they do take on. Fundamentally, it will mean that in order to protect themselves, directors need to engage more with expert advisors and to take advantage of the protections that directors enjoy when they are acting on the basis of expert advice. The decision in Mainzeal is now going to the Court of Appeal and no doubt, that Court will have a lot to say about the new approach which the High Court has created. In the meantime, however, directors are now on notice that the standard they will be held to may be higher than what they had expected. Holland Beckett has a wide team of commercial and company law experts who are well equipped to advise companies in a range of industries who are encountering financial difficulties. Our team is able to give clear and pragmatic advice to directors about their own risks and about the pathways that are open to them to avoid personal liability in the event of a company failure. This Article is based off an article that was published in the New Zealand Law Journal in June 2019

Introduction The new Financial Markets Conduct Act (“Act”) has changed the way in which disclosure in the financial markets sector is made, and to whom. Disclosure requirements were previously scattered throughout legislation and case law and it was often difficult to work out which investors required disclosure. This article provides a brief overview of the changes around disclosure. These should make it easier to determine when disclosure is required and may be particularly helpful for small businesses seeking to raise capital, but minimise compliance costs. Key Changes Disclosure is required if an offer is a “regulated offer”. An offer is a regulated offer if one person to whom the offer is made requires disclosure. If everyone to whom an offer is made does not require disclosure, an offer is not a regulated offer. This means that for the same offer, disclosure may be required to some investors, but not others. If an offer is regulated, disclosure is made through a product disclosure statement (“PDS”) and an online registry. The form and content of the PDS is heavily prescribed by regulations but generally the PDS will contain a key summary, with further content sitting behind it. Continuous disclosure is required through an online registry. This should help keep compliance costs down. Previously, if disclosure was not made to an individual to whom disclosure should have been made, the offer was void. Now failure to make disclosure to one party does not void all of the offers made, just that individual one. Exclusions If you are a small business looking to raise capital you may not need to go to lengths of disclosure. There are a number of investors who are excluded from disclosure requirements. Generally, disclosure is not required where investors are: sophisticated enough to access relevant information; or have a sufficiently close relationship to the issuer to enable them to access the information. The broad exclusions are: Wholesale investors. Close business associates. Relatives. Small offers. Some of these exclusions are carried through from the existing legislation and are now defined more clearly. Some exclusions are new, designed to create more flexibility. The “wholesale investor” covers most of those people who were considered “habitual investors” with some additions. Wholesale investors now includes “eligible investors” which allows an investor to “self-certify” that they are exempt from requiring disclosure. The certification requirements differ slightly depending on the type of financial product, but generally a person needs to certify that they have sufficient experience to assess the merits of the offer, and that they understand the consequences. A lawyer, accountant or financial advisor needs to confirm the certification. Another new exclusion is “small offers” for equity or debt securities. Disclosure is not required where the following circumstances apply: The number of persons does not exceed 20 in any 12 month period; The amount raised does not exceed $2 million in any 12 month period; and The offer may only be accepted by a person who is “likely to be interested” in the offer OR who has an annual gross income of over $200,000 in the last two income years OR who are controlled by that person. Conclusion You should always obtain advice as to whether or not disclosure is required before making an offer. Please get in touch with us if you have any questions about disclosure and your obligations. We would be happy to provide assistance.