1.1 This undertaking is offered to the Securities Commission for acceptance under section 69J of the Securities Act 1978 by:
a. ANZ National Bank Limited ("ANZN")
Level 6, 1 Victoria Street
1 -9 Victoria Street
b.ING (NZ) Limited ("ING (NZ)")
ASB Bank Centre
135 Albert Street
2.1 The Commerce Commission has investigated alleged contraventions of the Fair Trading Act 1986 by ING (NZ) and other entities in relation to the marketing, promotion and sale of the ING Diversified Yield Fund and ING Regular Income Fund (together the "Funds").
2.2 ANZN, ING (NZ) and the Commerce Commission have entered into the Commerce Commission Settlement Deed as attached to this enforceable undertaking. Under the Commerce Commission Settlement Deed, ING (NZ) and ANZN acknowledge that some of their conduct in relation to the Funds may have breached the Fair Trading Act 1986 and have agreed to make further payments to eligible investors in the aggregate amount of NZ$45 million. The Commerce Commission has agreed that it will not issue civil or criminal proceedings against ANZN, ING (NZ) and/or each of their Related Parties in relation to the Funds and will not issue civil proceedings against any other person in relation to the Funds.
2.3 The background to the Commerce Commission's investigation is set out in the Commerce Commission Settlement Deed.
3.1 ING (NZ) acknowledges that the Securities Commission might consider that some of ING (NZ)'s alleged breaches of the Fair Trading Act the subject of the Commerce Commission Settlement Deed, if prosecuted and proven, may constitute breaches of the Securities Act 1978 or other securities laws.
3.2 ING (NZ) acknowledges the Securities Commission's concerns about the Funds and wishes to ensure ongoing compliance with the Securities Act 1978 and other securities laws.
3.3 Given the investigation conducted by the Commerce Commission, the Securities Commission has not separately investigated the conduct and disclosure matters the subject of the Commerce Commission Settlement Deed. The Securities Commission has considered the Commerce Commission Settlement Deed and is of the view that it achieves an appropriate outcome for investors in the Funds.
3.4 ING (NZ) and ANZN have offered the undertakings set out below. The Securities Commission has agreed to accept these undertakings under section 69J of the Securities Act 1978.
4.1 ING (NZ) undertakes to engage an external party reasonably acceptable to the Securities Commission to complete, by 1 February 2011 (or a later date agreed between the Parties), an audit and review of the following ING (NZ) procedures and processes to the extent that they relate to ING (NZ)'s business of developing and offering investment products to the public:
and to subsequently implement the recommendations of that review.
4.2 ING (NZ) undertakes to, by 1 April 2011 (or a later date agreed between the Parties), provide to the Securities Commission a confidential report on the findings and recommendations of the audit and review referred to in paragraph 4.1 above.
4.3 ANZN undertakes to facilitate and assist the ING (NZ) audit, review and implementation as set out in paragraph 4.1 above.