Corporations Act 2001

CHAPTER 8 - MUTUAL RECOGNITION OF SECURITIES OFFERS  

PART 8.2 - FOREIGN OFFERS THAT ARE RECOGNISED IN THIS JURISDICTION  

Division 1 - Recognised offers  

SECTION 1200B   MEANING OF RECOGNISED OFFER  

1200B(1)    
An offer of securities becomes a recognised offer , in relation to a recognised jurisdiction, on the day the offer is first made in this jurisdiction, if the conditions in section 1200C are met in relation to the offer on that day.

1200B(2)    
The offer continues to be a recognised offer after that day, even if a condition in section 1200C ceases to be met after that day.

1200B(3)    
If, at the time an offer is first made in this jurisdiction, the offer would be a recognised offer but for a failure to meet the condition in subsection 1200C(5) or (6) that ASIC is satisfied is minor or technical, ASIC may declare in writing that the offer is a recognised offer within the meaning of subsection (1) .

1200B(4)    
IfASIC makes a declaration under subsection (3) in relation to an offer, the condition is taken to have been met at the time the offer was first made in this jurisdiction.

1200B(5)    
A declaration under subsection (3) is not a legislative instrument.

SECTION 1200C   CONDITIONS THAT MUST BE MET TO BE A RECOGNISED OFFER  

1200C(1)    
For the purposes of subsection 1200B(1) , the conditions that must be met are those set out in this section.

1200C(2)    
The person offering the securities must be:

(a)    a person incorporated by or under the law of the recognised jurisdiction; or

(b)    a natural person resident in the recognised jurisdiction; or

(c)    a legal person established by or under the law of the recognised jurisdiction; or

(d)    a person of a kind prescribed by regulations made in relation to the recognised jurisdiction for the purposes of this paragraph.

1200C(3)    
The person offering the securities must not be banned under section 1200P .

1200C(4)    
The offer must be an offer of a kind prescribed by the regulations in relation to the recognised jurisdiction.

1200C(5)    
At least 14 days before the day on which the offer is first made in this jurisdiction, the person making the offer must have lodged with ASIC:

(a)    a notice in the prescribed form (if any) of the person ' s intention to make a recognised offer; and

(b)    the documents and information required to be lodged under section 1200D .

1200C(6)    
If:

(a)    before the offer is first made in this jurisdiction; and

(b)    after a document or information was lodged with ASIC under section 1200D ;

either:

(c)    an event of a kind mentioned in the table in subsection 1200G(9) happened; or

(d)    the address for service in this jurisdiction of the person proposing to offer the securities changed;

the person making the offer must have lodged with ASIC:

(e)    if paragraph (c) applies - the document or information that would have been required to have been lodged under subsection 1200G(9) for the event if that subsection had applied; and

(f)    if paragraph (d) applies - the changed address for service.

SECTION 1200D   REQUIRED DOCUMENTS AND INFORMATION  

1200D(1)    
For the purposes of paragraph 1200C(5)(b) , the documents and information required to be lodged under this section are:

(a)    any offer document required by the law of the recognised jurisdiction; and

(b)    the warning statement that is to be included with an offer document in this jurisdiction (which, if regulations are in force for the purposes of section 1200E , must comply with those regulations); and

(c)    unless paragraph (d) applies - the constitution of the body whose securities are to be the subject of the offer; and

(d)    if the securities that are to be the subject of the offer are interests in a managed investment scheme, rights or interests in such interests, or options to acquire such interests by way of issue - the constituent document of the scheme; and

(e)    details, in the prescribed form (if any), of any exemption from the securities law of the recognised jurisdiction that applies, but not exclusively, to the offer or to the offeror in relation to the offer; and

(f)    if the offeror is relying on subsection (2) - notice of the document or information that is not being lodged because of the offeror ' s reliance on that subsection; and

(g)    an address for service in this jurisdiction, in the prescribed form (if any); and

(h)    a copy of any exemption from the securities law of the recognised jurisdiction that applies exclusively to the offer or to the offeror; and

(i)    any other documents or information prescribed by the regulations.

1200D(2)    
For the purposes of this Chapter, a person is taken to have lodged a document or information under this section if:

(a)    the document or information has been lodged under Division 2 or 3 of Part 5B.2 ; or

(b)    the document or information is not required to be lodged because of section 601CDA or 601CTA .

1200D(3)    
For the purposes of this Chapter, a person is taken to have lodged a document or information under this section if the person lodged the document or information in compliance with subsection 1200C(6) .

SECTION 1200E  

1200E   WARNING STATEMENT  

The regulations may, in relation to offer documents used in this jurisdiction for recognised offers, prescribe either or both of the following:

(a)    statements to be included with those documents that relate to the status of an offer as a recognised offer and the laws that regulate the offer;

(b)    details to be given in statements to be included with those documents that relate to the status of an offer as a recognised offer and the laws that regulate the offer.

Division 2 - Effect of a recognised offer  

SECTION 1200F   EFFECT OF A RECOGNISED OFFER  

1200F(1)    

The provisions listed in the table do not apply, in relation to a recognised offer, to the things specified in the table for those provisions.

Note: Recognised offers must comply with Division 3 instead.

Provisions that do not apply in relation to a recognised offer
Item	These provisions:	do not apply, in relation to the offer, to:
1	Chapter 2L	if the recognised offer is an offer of debentures - the offeror.
2	Chapter 5C	if the recognised offer is an offer of interests in a managed investment scheme - the operator of the managed investment scheme.
3	Chapter 6D	(a)	the recognised offer; or
		(b)	the offeror of the recognised offer; or
		(c)	any offer document for the offer.
4	Parts 7.6 , 7.7 and 7.8 , other than section 992A	(a)	the issue or disposal of a security under the recognised offer; or
		(b)	general advice contained in any offer document for the offer; or
		(c)	general advice contained in an advertisement for the recognised offer issued by, or on behalf of, the offeror; or
		(d)	the provision of a custodial or depository service in relation to interests in a managed investment scheme that are the subject of the recognised offer.
5	Part 7.9 , other than sections 1020AB , 1020AC , 1020AD and 1020B	the offeror of the recognised offer.

1200F(2)    
Despite subsection (1) , the regulations may:

(a)    apply a provision listed in the table in subsection (1) to a person or class of persons; or

(b)    apply a provision listed in the table in subsection (1) to a security or class of securities; or

(c)    provide that a provision listed in the table in subsection (1) applies with the modifications specified in the regulations.

Division 3 - Ongoing conditions for recognised offers  

SECTION 1200G   OFFERING CONDITIONS  

When the offering conditions apply

1200G(1)    
The offering conditions in this section apply in relation to a recognised offer until the recognised offer closes in this jurisdiction.

Note: Failure to comply with an offering condition is an offence (see sections 1200Q and 1311 ).

Offering conditions

1200G(2)    
The offer must be made in the recognised jurisdiction as well as in this jurisdiction.

1200G(3)    
The offeror must meet the conditions in subsections 1200C(2) and (3).

1200G(4)    
The offer must meet the condition in subsection 1200C(4) .

1200G(5)    
The offer must comply with the law of the recognised jurisdiction.

1200G(6)    
There must be no person concerned in the management of the offeror:

(a) who is disqualified from managing corporations for the purposes of Part 2D.6 ; or

(b) who is disqualified from being concerned in the management of the offeror under the law of the recognised jurisdiction; or

(c) who is subject to a banning order; or

(d) who is subject to a court order under paragraph 921A(2)(a) .

1200G(7)    
An offer document provided to a person in this jurisdiction must have included with it:

(a) the warning statement lodged under subsection 1200D(1) for that offer document; or

(b) if a changed warning statement is lodged with ASIC under subsection 1200G(9) - the changed warning statement.

1200G(8)    
The offeror must, on request by a person in this jurisdiction, provide a copy of the constitution or constituent document lodged under paragraph 1200D(1)(c) or (d).

1200G(9)    
If an event mentioned in an item of this table occurs in relation to the offer or offeror, the offeror must lodge with ASIC the document, statement or notice specified in the table for that event, by the time specified for that event.

Offering condition under subsection (9)
Item	If:	the offeror must lodge with ASIC:	by this time:
1	a change is made to an offer document, or any other document, required by the law of the recognised jurisdiction in relation to the offer	a copy of the document as changed	no later than 7 days after the day on which the offeror notified (or should have notified) the home regulator of the change.
2	a change is made to the warning statement that is included with the offer document in this jurisdiction	a copy of the warning statement as changed	no later than 7 days after the day on which the offeror notified (or should have notified) the home regulator of the change.
3	a supplementary or replacement offer document is required by the law of the recognised jurisdiction	a copy of the supplementary or replacement offer document	no later than 7 days after the day on which the supplementary or replacement offer document is (or should have been) lodged with the home regulator.
4	a change is made to the constitution or constituent document lodged under paragraph 1200D(1)(c) or (d)	a copy of the constitution or constituent document as changed	no later than 7 days after the day on which the offeror notified (or should have notified) the home regulator of the change.
5	the home regulator makes, changes or revokes an exemption that applies, but not exclusively, to the offer or the offeror under the law of the recognised jurisdiction	written notice in the prescribed form (if any) of the details of the exemption, change or revocation	no later than 14 days after the making, change or revocation occurs.
6	the home regulator makes, changes or revokes an exemption that applies exclusively to the offer or the offeror under the law of the recognised jurisdiction	a copy of the exemption, the exemption as changed, or notice in the prescribed form (if any) of the details of the revocation	no later than 7 days after the making, change or revocation occurs.
7	the home regulator begins enforcement action, or exercises a power it has under law, in relation to the offeror or offer	written notice in the prescribed form (if any) of the details of the action taken or power exercised	no later than 7 days after the action is taken or the power is exercised.

1200G(10)    
For the purposes of this Chapter, a person is taken to have lodged a document under subsection (9) if:

(a) the document has been lodged under Division 2 or 3 of Part 5B.2 ; or

(b) the document is not required to be lodged because of section 601CDA or 601CTA .

1200G(11)    
If:

(a) an event mentioned in the table in subsection (9) occurs while the offering conditions in this section apply; and

(b) the time by which an offeror is required to lodge a document, statement or notice with ASIC because of that event is after the offering conditions cease to apply;

then, for the purposes of this section and paragraph 1200Q(1)(b) , the offering conditions are taken to continue to apply until that time in relation to the offer to the extent necessary to require the offeror to lodge the document, statement or information by that time.

1200G(12)    
The offer must meet any other conditions prescribed by the regulations.

Home regulator

1200G(13)    
For the purposes of subsection (9), the home regulator for a recognised jurisdiction is an authority in the recognised jurisdiction whose functions under the law of the recognised jurisdiction include functions equivalent to any of those of ASIC under this Act and that is prescribed by the regulations as the home regulator for that jurisdiction.

1200G(14)    
If there is more than one authority in a recognised jurisdiction whose functions include functions under the law of the recognised jurisdiction equivalent to any of those of ASIC under this Act and that is prescribed under subsection (13), the regulations may prescribe the matters in relation to which that authority is to be regarded as the home regulator.

SECTION 1200H   ADDRESS FOR SERVICE CONDITION  

When the address for service condition applies

1200H(1)    
The address for service condition in this section applies in relation to a recognised offer:

(a)    until the end of the last day on which a person who resides in this jurisdiction could acquire securities under the offer; and

(b)    if a person who resides in this jurisdiction acquires securities under the offer - at all times when the offeror ' s records indicate that someone who resides in this jurisdiction holds securities in the class of securities that was the subject of the recognised offer.

Note: Failure to comply with the address for service condition is an offence (see sections 1200Q and 1311 ).

Address for service condition

1200H(2)    
The offeror must lodge with ASIC written notice, in the prescribed form (if any), of any change in its address for service in this jurisdiction, no later than the end of the seventh day after the day on which the address changed.

1200H(3)    
If:

(a)    the offeror ' s address for service in this jurisdiction changes while the address for service condition in this section applies; and

(b)    the time by which the offeror is required to lodge notice with ASIC because of the change is after the address for service condition ceases to apply;

then, for the purposes of this section and subparagraph 1200Q(2)(b)(i) , the address for service condition is taken to continue to apply until that time to the extent necessary to require the offeror to lodge notice by that time.

SECTION 1200J   DISPUTE RESOLUTION CONDITION  

1200J(1)   When the dispute resolution condition applies.  

The dispute resolution condition in this section applies, to a person who is or who has been the offeror of a recognised offer, at all times when the person ' s records indicate that someone who resides in this jurisdiction holds securities in the class of securities that was the subject of the recognised offer.

Note: Failure to comply with the dispute resolution condition is an offence (see sections 1200Q and 1311 ).

1200J(2)   Dispute resolution condition.  

The person must have a dispute resolution process that complies with subsection 1017G(2) , if the recognised offer was an offer of:

(a) interests in a managed investment scheme; or

(b) rights or interests in such interests, or options to acquire such interests by way of issue.

1200J(3)   Exemption from the dispute resolution condition.  

ASIC may, on application by a person in the prescribed form (if any), grant the person an exemption from the dispute resolution condition in this section, subject to any conditions specified in the exemption.

1200J(4)   [ Person with exemption deemed to comply with condition]  

If ASIC grants a person an exemption under subsection (3), then, for the purposes of this Chapter, the person is taken to comply with the dispute resolution condition in this section for so long as the exemption is in force.

1200J(5)   [ ASIC may vary or revoke exemption]  

ASIC may, in relation to an exemption under subsection (3):

(a) vary, or impose, a condition in relation to the exemption; or

(b) revoke the exemption.

1200J(6)   [ Time that variation or revocation takes effect]  

A variation, imposition or revocation under subsection (5) takes effect:

(a) if the person has an address for service in this jurisdiction - when it is served on the person at that address; or

(b) if the person does not have an address for service in this jurisdiction - on publication in the Gazette .

Division 4 - Modification of provisions of this Act  

SECTION 1200K  

1200K   ADDITIONAL OPERATION OF SECTION 675 (CONTINUOUS DISCLOSURE)  

In relation to a disclosing entity that has been the offeror of a recognised offer, sections 675 and 675A also have the operation they would have if paragraphs 675(2)(c) and 675A(2)(c) were replaced by the following paragraph:

(c) the information is not required, by the law of the recognised jurisdiction to which the offer relates, to be included in a supplementary or replacement offer document; and

SECTION 1200L   PRE-OFFER ADVERTISING  

Offers that need a disclosure document

1200L(1)    
Subsection 734(4) also has the operation it would have if:

(a)    the reference in that subsection to a disclosure document that has been lodged with ASIC were a reference to an offer document lodged with ASIC for the purposes of this Chapter; and

(b)    the reference in that subsection to section 739 were a reference to section 1200N .

1200L(2)    
Subsection 734(5) also has the operation it would have if:

(a)    references in that subsection to a disclosure document were references to an offer document that complies with the law of a recognised jurisdiction; and

(b)    references in that subsection to completing an application form were references to completing an application process under the law of that recognised jurisdiction.

1200L(3)    
Subsection 734(6) also has the operation it would have if:

(a)    references in that subsection to a disclosure document were references to an offer document lodged with ASIC for the purposes of this Chapter; and

(b)    references in that subsection to completing an application form were references to completing an application process under the law of the recognised jurisdiction to which the offer relates.

Offers that need a Product Disclosure Statement

1200L(4)    
Subsection 1018A(2) also has the operation it would have if:

(a)    a reference in that subsection to a Product Disclosure Statement were a reference to an offer document that complies with the law of a recognised jurisdiction; and

(b)    a reference in that subsection to sale offers to which section 1012C will apply were a reference to sale offers to which section 1012C would apply ifthe financial product, when made available, were not made available under a recognised offer.

1200L(5)    
Subsection 1018A(3) also has, in relation to subsection 1018A(2) , the operation it would have if:

(a)    the reference in that subsection to a Product Disclosure Statement were a reference to an offer document that complies with the law of a recognised jurisdiction; and

(b)    the reference to section 1020E were a reference to section 1200N .

SECTION 1200M  

1200M   MODIFICATION BY THE REGULATIONS  

The regulations may modify a provision of this Act in relation to its application in respect of a recognised offer or a proposed offer of securities that may become a recognised offer.

Division 5 - ASIC ' s powers in relation to recognised offers  

SECTION 1200N   STOP ORDERS  

1200N(1)    
If, in relation to a thing mentioned in an item of this table, ASIC is satisfied of the matters specified in the table item for that thing, ASIC may make either or both of the orders specified in the table item about that thing.

Stop orders
Item	If, in relation to:	ASIC is satisfied that:	ASIC may order:
1	(a)	an offer document lodged under paragraph 1200D(1)(a); or	there is a misleading or deceptive statement in, or a material omission from, the document, statement or information	(a)	that no offers, issues, sales or transfers of the securities to which the document, statement or information relates be made while the order is in force;
	(b)	a warning statement lodged under paragraph 1200D(1)(b); or		(b)	that specified conduct in respect of those securities, or in respect of the document, statement or information, must not be engaged in while the order is in force.
	(c)	a document or information lodged under paragraph 1200D(1)(i)
2	a document, statement or notice lodged under subsection 1200G(9)	the change results in there being a misleading or deceptive statement in, or a material omission from, the document, statement or notice	(a)	that no offers, issues, sales or transfers of the securities to which the document, statement or notice relates be made while the order is in force;
			(b)	that specified conduct in respect of those securities, or in respect of the document, statement or notice, must not be engaged in while the order is in force.
3	(a)	an advertisement of securities the subject of a recognised offer; or	there is a misleading or deceptive statement in, or a material omission from, the advertisement or statement	(a)	that no offers, issues, sales or transfers of the securities to which the advertisement or statement relates be made while the order is in force;
	(b)	a published statement that is reasonably likely to induce people to acquire securities the subject of a recognised offer		(b)	that specified conduct in respect of those securities, or in respect of the advertisement or statement, must not be engaged in while the order is in force.
4	an offer document lodged under paragraph 1200D(1)(a)	a new circumstance has arisen since lodgment and that circumstance would have been required by the law of the recognised jurisdiction to be included in the offer document, if the circumstance had arisen before the document was lodged with the home regulator (as defined in subsection 1200G(13) )	(a)	that no offers, issues, sales or transfers of the securities to which the document relates be made while the order is in force;
			(b)	that specified conduct in respect of those securities, or in respect of the document, must not be engaged in while the order is in force.
5	a notice of intention to make a recognised offer lodged under paragraph 1200C(5)(a)	one or more of the requirements in section 1200C is not met in relation to the proposed offer	(a)	that no offers, issues, sales or transfers of the securities that are proposed to be offered be made while the order is in force;
			(b)	that specified conduct in respect of those securities must not be engaged in while the order is in force.
6	a recognised offer	an offering condition in section 1200G , the address for service condition in section 1200H or the dispute resolution condition in section 1200J is not being met	(a)	that no offers, issues, sales or transfers of the securities be made while the order is in force;
			(b)	that specified conduct in respect of those securities must not be engaged in while the order is in force.

1200N(2)    
The order may include a statement that specified conduct engaged in contrary to the order will be regarded as not meeting a specified ongoing condition in Division 3 .

1200N(3)    
Before making an order under subsection (1), ASIC must:

(a)    hold a hearing; and

(b)    give a reasonable opportunity to any interested people to make oral or written submissions to ASIC on whether an order should be made.

1200N(4)    
If ASIC considers that any delay in making an order under subsection (1) pending the holding of a hearing would be prejudicial to the public interest, ASIC may make an interim order. The interim order may be made without holding a hearing and lasts for 21 days after the day on which it is made unless revoked before then.

1200N(5)    
At any time during the hearing, ASIC may make an interim order. The interim order lasts until:

(a)    ASIC makes an order under subsection (1) after the conclusion of the hearing; or

(b)    the interim order is revoked;

whichever happens first.

1200N(6)    
An order under subsection (1), (4) or (5) must be in writing and must be served on the person who is ordered not to offer, issue, sell or transfer securities or not to engage in specified conduct.

1200N(7)    
The person on whom the order is served must take reasonable steps to ensure that other people who engage in conduct to which the order applies are aware of the order.

Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).

1200N(8)    
The person on whom the order is served, or a person who is aware of the order, must not engage in conduct contrary to the order.

Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).

1200N(9)    
A statement under subsection (2) has effect accordingly in relation to a person on whom the order is served, or who is aware of it, who engages in conduct contrary to the order. This applies in addition to any other consequence that is provided for in this Act.

SECTION 1200P   BAN ON MAKING SUBSEQUENT RECOGNISED OFFERS  

1200P(1)   [ ASIC may ban persons from making offers]  

ASIC may declare in writing that a person is, for the time specified in the declaration (which must be no longer than 5 years from the day the declaration takes effect), banned from making a recognised offer if:

(a) the person, or an associate of the person, has been convicted (whether or not in this jurisdiction) of an offence constituted by conduct engaged in in relation to a recognised offer; or

(b) a court in this jurisdiction has made a civil penalty order against the person, or an associate of the person, for a contravention in relation to a recognised offer; or

(c) a court in a recognised jurisdiction has made an order against the person, or an associate of the person, for a contravention of the law of the recognised jurisdiction (other than an offence) in relation to an offer that is a recognised offer in this jurisdiction.

1200P(2)   [ Procedure before declaration of ban]  

Before making the declaration, ASIC must give the person an opportunity:

(a) to appear, or be represented, at a hearing before ASIC that takes place in private; or

(b) to make submissions to ASIC on the matter.

This subsection does not apply if the person does not have an address for service in this jurisdiction.

1200P(3)   [ ASIC may vary or cancel ban]  

ASIC may, in writing, vary or cancel the declaration, on ASIC ' s own initiative or on application lodged by the person in the prescribed form (if any) together with any prescribed documents, if ASIC is satisfied that a circumstance on which ASIC based the declaration has changed.

1200P(4)   [ Procedure if ASIC proposes to reject application to vary or cancel ban]  

If ASIC proposes to reject an application by the person to vary or cancel the declaration, ASIC must give the person an opportunity:

(a) to appear, or be represented, at a hearing before ASIC that takes place in private; or

(b) to make submissions to ASIC on the matter.

1200P(5)   [ Time that declaration takes effect]  

The declaration, and any variation or cancellation of the declaration, takes effect:

(a) if the person to whom the declaration applies has an address for service in this jurisdiction - when it is served on the person at that address; or

(b) if the person to whom the declaration applies does not have an address for service in this jurisdiction - when it is published in the Gazette under subsection (7).

1200P(6)   [ Declaration must include statement of reasons]  

A declaration that is served on a person under paragraph (5)(a) must be accompanied by a statement of ASIC ' s reasons for the declaration.

1200P(7)   [ Notice in the Gazette ]  

ASIC must publish a notice in the Gazette as soon as practicable after making, varying or cancelling the declaration. The notice:

(a) must state when the action takes or took effect; and

(b) in the case of the making of a declaration - set out a copy of the declaration; and

(c) in the case of the varying of a declaration - set out a copy of the declaration as varied.

1200P(8)   [ Declaration not a legislative instrument]  

A declaration under this section is not a legislative instrument.

SECTION 1200Q   OFFENCE OF BREACHING AN ONGOING CONDITION  

1200Q(1)   [ Offence: s 1200G condition not met]  

A person commits an offence if, at any particular time:

(a) the person is the offeror of a recognised offer; and

(b) an offering condition in section 1200G applies in relation to the offer; and

(c) the condition is not met in relation to the offer.

1200Q(2)   [ Offence: address for service or dispute resolution conditions not met]  

A person commits an offence if:

(a) the person is or has been the offeror of a recognised offer; and

(b) at any particular time:

(i) the address for service condition in section 1200H ; or

(ii) the dispute resolution condition in section 1200J ;

applies in relation to the offer; and

(c) the condition is not met in relation to the offer.

Division 6 - Miscellaneous  

SECTION 1200R   SERVICE OF DOCUMENTS  

1200R(1)    
For the purposes of any law, a document may be served on a person who is, or who has been, the offeror of a recognised offer by leaving it at, or posting it to, the person ' s address for service in this jurisdiction.

1200R(2)    
The person ' s address for service in this jurisdiction is:

(a)    the address lodged under paragraph 1200D(1)(g) ; or

(b)    if a change to that address has been lodged with ASIC under section 1200H - the changed address, on and from the later of:

(i) the day that is 7 days after the day on which the change (or, if more than one change has been lodged, the latest change) was lodged; or

(ii) the day specified in the notice of change as the day from which the change is to take effect.

1200R(3)    
This section does not affect:

(a)    any other provision of this Act, or any provision of another law, that permits a document to be served in a different way; or

(b)    the power of a court to authorise a document to be served in a different way.

1200R(4)    
This section does not apply in relation to a person who is, or who has been, the offeror of a recognised offer if the address for service condition in section 1200H does not apply to the person.