Corporations Act 2001

CHAPTER 6D - FUNDRAISING  

PART 6D.2 - DISCLOSURE TO INVESTORS ABOUT SECURITIES (OTHER THAN FOR CSF OFFERS)  

Division 2 - Offers that need disclosure to investors  

SECTION 708A   SALE OFFERS THAT DO NOT NEED DISCLOSURE  

Sale offers to which this section applies

708A(1)    
This section applies to an offer (the sale offer ) of a body ' s securities (the relevant securities ) for sale by a person if:

(a)    but for subsection (5) , (11) or (12) , disclosure to investors under this Part would be required by subsection 707(3) for the sale offer; and

(b)    the securities were not issued by the body with the purpose referred to in subparagraph 707(3)(b)(i) ; and

(c)    a determination under subsection (2) was not in force in relation to the body at the time when the relevant securities were issued.

708A(1A)    

This section also applies to an offer (the sale offer ) of a body ' s securities (the relevant securities ) for sale by a person if:

(a)    but for subsection (5) , disclosure to investors under this Part would be required by subsection 707(5) for the sale offer; and

(b)    the securities were not sold by the controller with the purpose referred to in subparagraph 707(5)(c)(i) ; and

(c)    a determination under subsection (2) was not in force in relation to the body at the time when the relevant securities were issued.

Determination by ASIC

708A(2)    
ASIC may make a determination under this subsection if ASIC is satisfied that in the previous 12 months the body contravened any of the following provisions:

(a)    subsection 283AA(1) , 283AB(1) or 283AC(1) ;

(b)    the provisions of Chapter 2M as they apply to the body;

(c)    

section 674 , 674A , 675 or 675A ;

(d)    section 724 or 728 ;

(e)    subsection (9) of this section; or

(f)    section 1308 as that section applies to a notice under subsection (5) of this section.

708A(3)    
The determination must be made in writing and a copy must be published in the Gazette as soon as practicable after the determination is made.

708A(4)    
A failure to publish a copy of the determination does not affect the validity of the determination.

Sale offer of quoted securities - case 1

708A(5)    
The sale offer does not need disclosure to investors under this Part if:

(a)    

the relevant securities are in a class of securities that were quoted securities at all times in the 3 months before the day on which the relevant securities were issued; and

(b)    

trading in that class of securities on a declared financial market on which they were quoted was not suspended for more than a total of 5 days during the shorter of the period during which the class of securities were quoted, and the period of 12 months before the day on which the relevant securities were issued; and

(c)    

no exemption under section 111AS or 111AT covered the body, or any person as director or auditor of the body, at any time during the relevant period referred to in paragraph (b) ; and

(d)    

no order under section 340 or 341 covered the body, or any person as director or auditor of the body, at any time during the relevant period referred to in paragraph (b) ; and

(e)    

either:

(i) if this section applies because of subsection (1) - the body gives the relevant market operator for the body a notice that complies with subsection (6) before the sale offer is made; or

(ii) if this section applies because of subsection (1A) - both the body, and the controller, give the relevant market operator for the body a notice that complies with subsection (6) before the sale offer is made.

708A(6)    
A notice complies with this subsection if the notice:

(a)    is given within 5 business days after the day on which the relevant securities were issued by the body; and

(b)    states that the body issued the relevant securities without disclosure to investors under this Part; and

(c)    states that the notice is being given under paragraph (5)(e) ; and

(d)    

states that, as at the date of the notice, the body has complied with:

(i) the provisions of Chapter 2M as they apply to the body; and

(ii) sections 674 and 674A ; and

(e)    sets out any information that is excluded information as at the date of the notice (see subsections (7) and (8) ).

Note 1: A person is taken not to contravene section 727 if a notice purports to comply with this subsection but does not actually comply with this subsection: see subsection 727(5) .

Note 2: A notice must not be false or misleading in a material particular, or omit anything that would render it misleading in a material respect: see sections 1308 and 1309 . The body has an obligation to correct a defective notice: see subsection (9) of this section.

708A(7)    
For the purposes of subsection (6) , excluded information is information:

(a)    that has been excluded from a continuous disclosure notice in accordance with the listing rules of the relevant market operator to whom that notice is required to be given; and

(b)    that investors and their professional advisers would reasonably require for the purpose of making an informed assessment of:

(i) the assets and liabilities, financial position and performance, profits and losses and prospects of the body; or

(ii) the rights and liabilities attaching to the relevant securities.

708A(8)    
The notice given under subsection (5) must contain any excluded information only to the extent to which it is reasonable for investors and their professional advisers to expect to find the information in a disclosure document.

Obligation to correct defective notice

708A(9)    
The body contravenes this subsection if:

(a)    the notice given under subsection (5) is defective; and

(b)    the body becomes aware of the defect in the notice within 12 months after the relevant securities are issued; and

(c)    the body does not, within a reasonable time after becoming aware of the defect, give the relevant market operator a notice that sets out the information necessary to correct the defect.

708A(10)    
For the purposes of subsection (9) , the notice under subsection (5) is defective if the notice:

(a)    does not comply with paragraph (6)(e) ; or

(b)    is false or misleading in a material particular; or

(c)    has omitted from it a matter or thing the omission of which renders the notice misleading in a material respect.

Sale offer of quoted securities - case 2

708A(11)    
The sale offer does not need disclosure to investors under this Part if:

(a)    the relevant securities are in a class of securities that are quoted securities of the body; and

(b)    either:

(i) a prospectus is lodged with ASIC on or after the day on which the relevant securities were issued but before the day on which the sale offer is made; or

(ii) a prospectus is lodged with ASIC before the day on which the relevant securities are issued and offers of securities that have been made under the prospectus are still open for acceptance on the day on which the relevant securities were issued; and

(c)    the prospectus is for an offer of securities issued by the body that are in the same class of securities as the relevant securities.

Sale offer of quoted securities - case 3

708A(12)    
This subsection is satisfied if:

(a)    the body offered to issue securities under a prospectus; and

(b)    the body issued the relevant securities to:

(i) a person (the underwriter ) named in that prospectus as an underwriter of the issue; or

(ii) a person nominated by the underwriter; and

(c)    the relevant securities were issued to the underwriter, or the person nominated by the underwriter, at or about the time that persons who applied for securities under the prospectus were issued with those securities; and

(d)    the relevant securities are in a class of securities that were quoted securities of the body.