What is the main source of law authorising this entity form?

Companies Act 1993 (Companies Act).

Give a brief summary of the entity form:

Does the entity possess separate legal personality?

A limited liability company (LLC) has separate legal personality from its shareholders and directors.

(Maximum) period of existence

There is no minimum or maximum period of existence; an LLC is incorporated for an indefinite period.

Governing document(s)

The LLC may, but is not required, to have a Constitution. The Constitution may negate, modify, or extend, to the extent permitted by the Companies Act, the provisions of the Companies Act. If a Constitution is adopted, this must be registered on the publicly available online register of the NZ Companies Office. If the LLC does not have a Constitution, the provisions of the Companies Act will apply to govern the LLC. The LLC may, but is not required to, have a Shareholders’ Agreement between some or all of its shareholders. If a Shareholders’ Agreement is adopted, it is not publicly available and does not need to be registered with the NZ Companies Office.

Liability of incorporators / shareholders

Shareholders are not personally liable for the debts of the LLC, except to the extent to which the shares held by a shareholder are not fully paid (and subject to limited instances of piercing the corporate veil).

(Governing) bodies

The business and affairs of the LLC must be managed by, or under the direction or supervision of, the Board of Directors. Directors are subject to a number of statutory and common law obligations. Subject to any restrictions in the Constitution or Shareholders’ Agreement (if any), the Board of Directors may delegate its powers.

Other particularities

Director, shareholder, and ultimate holding company details must be registered with the NZ Companies Office and are publicly available on an online register administered by the New Zealand Companies Office.

Can this type of entity be involved in international transactions and restructurings (e.g. cross border mergers, asset acquisitions, equity acquisitions, etc.)?

An LLC has full capacity and powers to carry on and undertake any business or activity, to do any act, or enter into any transaction. This includes entering into restructurings (including mergers and amalgamations) and to acquire international assets and international securities, or to be subject to an international acquisition. This may be subject to Overseas Investment Office (OIO) approval where the value of the transactions or New Zealand assets exceeds NZ$100 million in value, or the transactions involve sensitive land (such as residential land, farm land, land adjoining parks, rivers, the coast and so on – even where only used under lease, not owned).

There is a separate OIO notification regime for transactions involving strategically important businesses. Strategically important businesses are businesses operating on industries that are, due to legislation, considered to be strategically important such as military, duel-use technology, ports or air[orts, electricity, water, telecommunications, and financial market infrastructure.

 

Can this type of entity be publicly listed or held?

Yes, subject to meeting the requirements of the relevant exchange.

Can this type of entity be used for a non-profit or charitable organization?

Yes. The LLC will need to meet the requirements for registration of charitable entities. For example (without limitation), the LLC must have a Constitution that includes special provisions in respect of the charitable nature of the LLC.

Give a brief summary of the process of incorporation, formation, or organization, including:

Main documents required

• Application to reserve company name;
• Documents for the registration of the directors and shareholders, including consents, and identity verification information
• Company details (for example, registered office and address for service, financial year end, and number of shares)
• Constitution (if to be adopted)

Involvement of notary, company register, governmental authorities

Documents to be filed with the NZ Companies Office, with most details available on the publicly available online register.

Timing (estimate)

Assuming the name reservation is approved, and all company, shareholder, and director information is in order, incorporation can be completed within 1 – 2 business days.

Main costs, including registration and similar fees (excluding legal fees)

Main costs of incorporation (excluding legal and accounting fees) are NZ Companies Office fees for name reservation and incorporation – as at July 2022, NZ$128.74 (excluding GST of 15%, if applicable).

Is a description of the anticipated business or purpose of the entity required for incorporation, formation or organization?

The anticipated business or purpose of the LLC does not need to be specified on incorporation (although it may be).

Minimum number of incorporators / shareholders and residency requirements

There must be at least one shareholder. There are no shareholder residency requirements. However, overseas shareholders may be subject to further identity verification requirements.

Minimum number of directors (or other applicable officers) and residency requirements

An LLC must have a minimum of one director. This minimum may be increased by the Constitution or Shareholders’ Agreement (if any).

An LLC must have at least one director that is:

• a New Zealand resident (while there is no specific definition/test for residency under the Companies Act, this is generally considered to be met if the director is physically present in NZ for a total of more than 183 days in a 12-month period); or
• an Australian resident who is a director of an Australian company.

Minimum share capital, or equivalent, and payment requirements (including opening a bank account)

There is no minimum share capital requirement. An LLC must have at least one share on incorporation.

Is the physical presence of incorporators / directors required in the jurisdiction for incorporation, formation or organization?

No, provided the director residency requirement specified above is met.

Is a tax identification number, or equivalent, required? If so, how is it obtained?

No, not required.

If desired, an application can be made for an IRD number (that is, register for tax with NZ’s Inland Revenue Department), register as an employer, and register for goods and services tax (GST) when you incorporate the LLC online with the NZ Companies Office. To do so, you must provide:

• an IRD number for each director and shareholder of the LLC (unless they don’t have one, for example, if a director or shareholder is based overseas); and
• a Business Industry Code (BIC) for the LLC, classifying the LLC by the service it provides.

 

What is the title of the applicable company registry?

New Zealand Companies Office.

What types of information must be filed at the (company) register, and which of them will it be publicly available, e.g.:

The following information must be filed with the NZ Companies Office:

• Director details (full name, date and place of birth, and address details)
• Shareholder details
• Ultimate holding company details (if any)
• Company details, including number of shares, registered office and address for service, and financial year end
• Constitution (if any)
• Financial statements (if required under financial reporting legislation)

All of the above information will be publicly available, except for the date and place of birth details of the directors.

If the LLC goes into voluntary administration, receivership, or liquidation, the administrator, receiver, or liquidator must file a notice of appointment with the NZ Companies Office, which will be publicly available.

What is the title of the executive body and its members? What are their main duties, tasks and responsibilities?

The Board of Directors

The business and affairs of the LLC must be managed by, or under the direction or supervision of, the Board of Directors.

Directors are subject to a number of statutory and common law obligations, including obligations to act in the best interests of the LLC , to not engage in reckless trading, and to exercise power as a director for a proper purpose.

Subject to any restrictions in the Constitution or Shareholders’ Agreement (if any), the Board of Directors may delegate its powers.

How are the members of the executive body appointed, dismissed and replaced?

The initial directors are appointed on incorporation.

Except as provided otherwise by the Constitution or Shareholders’ Agreement (if any), directors can be appointed, removed, or replaced by ordinary (simple majority) resolution of the shareholders.

A person cannot be appointed as director unless they have consented in writing to be a director, and are not disqualified in accordance with the Companies Act (for example, if they are under 18, if they are an undischarged bankrupt, or if they have been prohibited from acting as a director or taking part in the management of a company).

A director may resign at any time (subject to the minimum director and residency requirements continuing to be met) by notice in writing.

A director will cease to be a director if the director becomes disqualified in accordance with the Companies Act (see above).

Is it possible to appoint corporate directors or must all directors be natural persons?

No, it is not possible to have a corporate director.

Is there a requirement to have non-executive directors? How are they appointed, dismissed and replaced? Do non-executive directors serve on a separate body (two-tier structure) or can a one-tier board (with executive and non-executives) be appointed, or is some alternate structure used?

No, there is no requirement to have non-executive directors.

The Board of Directors would be considered a one-tier Board regardless of the composition of executive/non-executive directors.

What is the title of the body of owners / shareholders / members, and what are the main tasks / responsibilities / powers of that body?

Title is “shareholders".

Shareholders are obliged to:

• pay any unpaid share capital in accordance with calls made by the LLC or as otherwise provided in the terms of issue of the shares;
• to comply with any obligations set out in the terms of issue of the shares;
• to comply with the Constitution and Shareholders’ Agreement (if any and, in the case of any Shareholders’ Agreement, only if they are a party to that Shareholders’ Agreement).

Shareholders have the rights provided to them under the Companies Act. These rights include:

• the right to attend annual general meeting of shareholders, and any special meetings of shareholders;
• the right to call a special meeting of shareholders if the appropriate shareholding threshold is met;
• the right to certain information relating to the LLC and to inspect certain records of the LLC;
• the right to appoint, remove, and replace directors by ordinary resolution (except as provided otherwise by the Constitution or Shareholders’ Agreement (if any)).

Shareholders who hold shares with voting rights are required to vote on certain matters in relation to which the Board of Directors may only take action if approved by the shareholders by special resolution (being a resolution approved by not less than 75% of the votes of the shareholders entitled to vote and voting on the question), except as provided otherwise by the Constitution or Shareholders’ Agreement (if any)). This includes:

• amending the Constitution (if any);
• approving major transactions of the LLC (generally, transactions exceeding half the value of the company’s assets); approving an amalgamation of the LLC; and
• approving the liquidation of the LLC.

What are the majority and quorum requirements for decisions by the shareholders? Can they be varied or changed?

Except as provided otherwise by the Constitution or Shareholders’ Agreement (if any):

• a quorum for a meeting of shareholders is those shareholders who together hold a majority of the votes.
• an ordinary resolution is passed by a simple majority of the votes of the shareholders entitled to vote and voting on the question;
• A special resolution is passed by a not less than 75% of the votes of the shareholders entitled to vote and voting on the question.

A written resolution may be validly passed as if it had been passed at a meeting of the shareholders if it is signed by:

• 75% in number of the shareholders entitled to vote; and
• shareholders who together hold not less than 75% of the voting shares.

The special resolution/written resolution threshold may be increased by the Constitution or Shareholders’ Agreement (if any).

Any special governance regimes (e.g. depending on size, being listed at a stock exchange, or other criteria)?

An LLC that is “large” as defined in the financial reporting legislation is required to comply with certain financial reporting obligations.

A listed company must comply with the listing rules of the exchange on which it is listed.

An LLC which is a “Code Company” is subject to the Takeovers Code. The Takeovers Code regulates changes of control of Code Companies (involving increases above 20% in the ownership of voting rights by a shareholder and its associates in a Code Company). An LLC will be a Code Company if it is:

• an LLC listed on the NZX (the New Zealand Stock Exchange); or
• has 50 or more shareholders and 50 or more parcels of shares and is at least medium- sized.

A company is at least medium-sized if the company has completed one or more accounting periods and the total assets of the company and its subsidiaries (if any) are at east NZ$30 million or its total revenue is at least NZ$15 million. Alternatively, if the company has not completed its first accounting period and on the last day of the most recently completed month the total assets of the company and its subsidiaries (if any) are at least NZ$30 million.

What are the periodic accounting obligations incumbent upon the entity? To whom must those accounts be submitted?

The Board of Directors must ensure that complete and accurate accounting records are kept.

An LLC (except those with income and expenses less than NZ$30,000) must prepare certain financial statements in accordance with the NZ Inland Revenue Department minimum requirements (as provided under tax legislation).

Entities defined as “large” are required to have financial statements prepared in accordance with GAAP within 5 months of balance date, and large companies will generally be required to have those audited and filed with the NZ .

Companies Office (see Financial Reporting Act 2013). The large thresholds refer to the last 2 financial years, and depends on the shareholding of the LLC:

• if not a subsidiary of an overseas entity, large means assets>NZ$60 million or revenue>$30 million (no requirement to file if less than 25% overseas owned); and
• if a subsidiary of an overseas entity, large means assets>NZ$20 million or revenue>$10 million

An LLC with 10 or more shareholders, but which does not meet the large thresholds, must comply with the large financial reporting requirements to prepare and audit (but not file), unless opted out by at least 95% of the votes.

An LLC that is not large and that has less than 10 shareholders may opt into the large financial reporting requirements to prepare and audit (but not file) if required by at least 5% of the votes.

Is the entity permitted to determine its own financial year?

Yes, subject to obtaining approval of the NZ Inland Revenue Department.

Is the entity subject to any statutory (external) auditor obligations?

Potentially. See accounting obligations response above. If an auditor is required, the auditor is to be appointed by the shareholders at the annual general meeting of shareholders.

Requirements to appoint other persons (officers, secretary, internal auditor / accountants). If so, what are their functions? Are there any residency requirements?

No mandatory requirement to appoint a secretary or other officers.

What is the title designated for 'ownership interests' (e.g. shares, quota, interests, membership)?

Shares.

Are different classes of ownership interests possible? If so, what are some examples of different classes?

Yes, different classes of shares are possible. Without limitation, shares may be in different classes that are:

redeemable;

confer preferential rights to distributions;

confer special, limited, or conditional voting rights;

not confer voting rights.

The classes of shares may be set out in the Constitution (if any), or in the terms of issue of the particular shares.

What documentation is required for the transfer of ownership interests?

Registrable share transfer form signed by the transferor. If the shares are not fully paid or otherwise impose a liability on the transferee, the share transfer form must also be signed by the transferee.

If a share certificate has been issued (not common in NZ), the share certificate must be provided, or evidence as to its loss or destruction.

If there is a Constitution or Shareholders’ Agreement, evidence that any specified transfer obligations have been complied with.

Are there any additional formal requirements required for the transfer of ownership (notary, approvals, stamping, filings, corporate records)?

The transfer of shares is completed by the entry of the name of the transferee in the Share Register of the LLC.

Are there any applicable stamp duties imposed when transferring ownership interests?

No.

How are shares issued? (including information on payment obligations, registration requirements)

Except as provided otherwise by the Constitution or Shareholders’ Agreement (if any):

• the Board of Directors may issue shares in the LLC at any time, to any person, and in any number, provided it complies with the Companies Act;
• the existing shareholders have pre-emptive rights to acquire the new shares.

Except where the shares are issued with the consent of all entitled persons, the Board of Directors must resolve and certify that the consideration for and terms of issue of the shares are fair and reasonable to the LLC and all existing shareholders.

On the issue of new shares, the Board of Directors must update the Share Register and file notice of the share issue with the NZ Companies Register.

Further information on equity contributions, e.g., non-cash payments on shares, (share premium) contributions without issuances of shares, can partially paid shares/ownership interests be permitted and what are the restrictions on them?

Except where the shares are issued with the consent of all entitled persons, the Board of Directors must determine the reasonable present cash value of any non-cash consideration, and resolve and certify that the non-cash consideration is fair and reasonable to the LLC and all existing shareholders.

Share premium, or further equity contributions, without issuing further shares, are not possible, unless the same formed part of the terms of issue of existing shares held.

Any requirements with respect to share cancellation, share repurchase and other capital reductions

An LLC can only purchase its own shares if it has adopted a Constitution that permits it to do so. If so, then (unless otherwise permitted with the consent of all entitled persons), the LLC must comply with the requirements set out in the Companies Act, including a requirement for the Board of Directors to resolve and certify that the acquisition is in the best interests of the LLC and that the consideration for the acquisition is fair and reasonable to the LLC, and that the LLC will, immediately after the shares are acquired, be solvent. On acquisition, the shares will be cancelled, provided that (if permitted by the Constitution), the LLC may hold up to 5% of each class of its shares as Treasury Stock.

The Companies Act sets out provisions for the redemption of redeemable shares. Among other things, then (unless otherwise permitted with the consent of all entitled persons) the LLC must not exercise an option to redeem shares unless, before the exercise of the option the Board of Directors has resolved and certified that the redemption is in the best interests of the LLC and that the consideration for the redemption is fair and reasonable to the LLC, and that the LLC will, immediately after the shares are redeemed, be solvent.

Any requirements with respect to distributions to shareholders?

The Board of Directors must resolve and certify that the LLC will be solvent after making any proposed distribution to shareholders.

Unless otherwise permitted with the consent of all entitled persons, the LLC must not authorise a dividend in respect of some but not all the shares in a class (but a pro-rata amount can be paid if the share is not fully paid.

Can the owners or shareholders adopt a restrictive or governing agreement among themselves such as a Shareholders Agreement?

Yes. The Constitution (if any) may provide that the Shareholders’ Agreement will prevail over the Constitution to the extent permitted by law.

Which are the typical annual maintenance costs of maintaining the existence and legal good standing of such an entity (excluding legal fees)?

An LLC must complete an annual return with the NZ Companies Office. As at April 2021, the NZ Companies Office filing fee (excluding legal fees) is NZ$46 (excluding GST of 15%, if applicable).

What are the general corporate tax rates? (Specify if there is a national versus local distinction).

As at April 2021, a flat corporate income tax rate of 28%.

Summary of any specific matters, e.g. recent or prospective major legal developments

New Zealand has been named by the World Bank Doing Business 2020 Report as the number 1 jurisdiction for ease of doing business. One of the measures that make up the overall ease of doing business ranking is time and cost of starting a business. New Zealand has been the top ranked country in the world on this measure for over 10 years.

A significant construction company in New Zealand, Mainzeal Property and Construction Ltd., had its appeal heard in New Zealand’s highest court (the Supreme Court) n 2022. The case revolves around the now former directors of the company and whether their management of the company’s affairs was “within the sphere of legitimate business risk-taking” or outside of such scope and thus a breach of their duties as directors. The directors relied on its related overseas company to provide receivables to remain solvent. The company became insolvent when its related overseas company did not support it as had been anticipated by its directors. The company was put into receivership and subsequently into liquidation in 2013. The Supreme Court judgment is highly anticipated as the ruling may have a significant impact on how directors act in light of their duties under the Companies Act and, in turn, how corporate entities are governed. In the Court of Appeals judgment, the Court observed that the Companies Act “should be reviewed to ensure it provides a coherent and practicably workable regime for the protection of creditors where directors decide to keep trading in circumstances where a company is insolvent or near-insolvent”. The authors anticipate that no immediate changes will be adopted by Parliament in the near term.