Corporations Act 2001

CHAPTER 6D - FUNDRAISING  

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

Division 5 - Procedure for offering securities  

SECTION 723   ISSUING OR TRANSFERRING THE SECURITIES UNDER A DISCLOSURE DOCUMENT  

723(1)   Applications must be made on form included in, or accompanied by, disclosure document.  

If an offer of securities needs a disclosure document, the securities may only be issued or transferred in response to an application form. The securities may only be issued or transferred if the person issuing or transferring them has reasonable grounds to believe that:

(a) the form was included in, or accompanied by:

(i) the disclosure document; or

(ii) if subsection 721(2) allows a profile statement to be used - the prospectus or the profile statement;

when the form was distributed by the person issuing or transferring the securities; or

(b) the form was copied, or directly derived, by the person making the application from a form referred to in paragraph (a).

723(2)   Minimum subscription condition must be fulfilled before issue or transfer.  

If a disclosure document for an offer of securities states that the securities will not be issued or transferred unless:

(a) applications for a minimum number of the securities are received; or

(b) a minimum amount is raised;

the person making the offer must not issue or transfer any of the securities until that condition is satisfied. For the purpose of working out whether the condition has been satisfied, a person who has agreed to take securities as underwriter is taken to have applied for those securities.

Note 1: Under section 722, the application money must be held in trust until the issue or transfer of the securities.

Note 2: This subsection prevents the issue or transfer of the securities not only to those who apply for them in response to the disclosure document but also to those who do not need to apply for them (for example, because they are to take the securities under an underwriting agreement).

723(3)   Issue or transfer void if quotation condition not fulfilled.  

If a disclosure document for an offer of securities states or implies that the securities are to be quoted on a financial market (whether in Australia or elsewhere) and:

(a) an application for the admission of the securities to quotation is not made within 7 days after the date of the disclosure document; or

(b) the securities are not admitted to quotation within 3 months after the date of the disclosure document;

then:

(c) an issue or transfer of securities in response to an application made under the disclosure document is void; and

(d) the person offering the securities must return the money received by the person from the applicants as soon as practicable.

723(4)   Strict liability offences.  

An offence based on subsection (1), (2) or (3) is an offence of strict liability.

Note: For strict liability , see section 6.1 of the Criminal Code .