Corporations Act 2001

CHAPTER 7 - FINANCIAL SERVICES AND MARKETS  

Note: This Chapter applies to a CCIV in a modified form: see Division 4 of Part 8B.7 .

PART 7.12 - MISCELLANEOUS  

Division 1A - Employee share schemes  

Subdivision E - Prohibitions and defences  

SECTION 1100ZH   MISSTATEMENT IN, OR OMISSION FROM, DISCLOSURE INFORMATION  

1100ZH(1)    
A person must not make an offer that is expressed to be made under this Division, or distribute an application form for such an offer, to ESS participants if paragraph 1100Q(1)(a) applies to the offer and there is:

(a)    a misleading or deceptive statement in:

(i) a document that purports to be an ESS offer document required by section 1100W for the offer; or

(ii) information that purports to be supporting information required under section 1100X for the offer; or

(b)    an omission of information from a document mentioned in subparagraph (a)(i) or (ii) that would result in the document or information being misleading or deceptive; or

(c)    a new circumstance that:

(i) has arisen during the application period for the offer mentioned in paragraph 1100W(2)(e) ; and

(ii) if the new circumstance had occurred before the offer was made, would have been required to be included in any of the documents mentioned in paragraph (a) .

1100ZH(2)    
For the purposes of subsection (1) , a person is taken to offer ESS interests to ESS participants at all times during which the participants may accept the offer.

Forecasts and other forward-looking statements

1100ZH(3)    
A person is taken to make a misleading statement about a future matter (including the doing of, or refusing to do, an act) if they do not have reasonable grounds for making the statement. This subsection does not limit the meaning of a reference to a misleading statement or a statement that is misleading in a material particular.

Offence if statement or new circumstance is materially adverse

1100ZH(4)    
A person commits an offence if:

(a)    the person contravenes subsection (1) ; and

(b)    the misleading or deceptive statement or omission, or the new circumstance, is materially adverse from the point of view of an ESS participant.

Defence - due diligence

1100ZH(5)    
A person does not commit an offence against subsection (4) because of a misleading or deceptive statement in, or an omission from, a document mentioned in paragraph (1)(a) if the person proves that the person:

(a)    made all inquiries (if any) that were reasonable in the circumstances; and

(b)    after doing so, believed on reasonable grounds that the statement was not misleading or deceptive.

Defence - lack of knowledge

1100ZH(6)    
A person does not commit an offence against subsection (4) because of a misleading or deceptive statement in a document mentioned in paragraph (1)(a) if the person proves that the person did not know that the statement was misleading or deceptive.

1100ZH(7)    
A person does not commit an offence against subsection (4) because of an omission from a document mentioned in paragraph (1)(a) in relation to a particular matter if the person proves that the person did not know that there was an omission from the document in relation to that matter.

1100ZH(8)    
A person does not commit an offence against subsection (4) because of a new circumstance that had arisen as mentioned in paragraph (1)(c) if the person did not know that the new circumstance had arisen.

Defence - reasonable reliance on information given by someone else

1100ZH(9)    
A person does not commit an offence against subsection (4) because of a misleading or deceptive statement in a document mentioned in paragraph (1)(a) if the person proves that the person placed reasonable reliance on information given to them by:

(a)    if the person is a body corporate or a responsible entity of a registered scheme - someone other than a director, employee or agent of the body corporate or responsible entity; or

(b)    if the person is an individual - someone other than an employee or agent of the individual.

1100ZH(10)    
For the purposes of subsection (9) , a person is not the agent of a body corporate or responsible entity merely because the person performs a particular professional or advisory function for the body corporate or responsible entity.

Defence - provision of updated information

1100ZH(11)    
A person does not commit an offence against subsection (4) because of a new circumstance that has arisen as mentioned in paragraph (1)(c) if the person proves that, as soon as reasonably practicable after the circumstance arose:

(a)    the documents mentioned in paragraph (1)(a) were updated to include all relevant information about the new circumstance; and

(b)    copies of those updated documents were given to the ESS participants.