ASIC Corporations (Non-Traditional Rights Issues) Instrument 2016/84 (Cth)

ASIC Corporations (Non-Traditional Rights Issues) Instrument 2016/84 I, Grant Moodie, delegate of the Australian Securities and Investments Commission, make the following legislative instrument.

Date 9 March 2016

Grant Moodie

Contents

Part 1—Preliminary 1 Name of legislative instrument 2 Commencement 3 Authority 4 Definitions Part 2—Declaration 5 Meaning of "rights issue" 6 Rights issues and related issues that do not need disclosure 7 Rights issues and related issues for which PDS is not required 8 Sale offer of quoted securities issued under rights issue 9 Transfer or sale of quoted financial products issued under rights issue

Part 1—Preliminary

1 Name of legislative instrument This instrument is ASIC Corporations (Non-Traditional Rights Issues) Instrument 2016/84.

2 Commencement This instrument commences on the day after it is registered on the Federal Register of Legislation. Note: The register may be accessed at www.legislation.gov.au.

3 Authority This instrument is made under sections 741 and 1020F of the Corporations Act 2001.

4 Definitions In this instrument: Act means the Corporations Act 2001.

Part 2—Declaration

5 Meaning of "rights issue" (1) Chapter 6D of the Act applies to all persons as if subsection 9A(1) were modified or varied as follows: (a) omit subparagraph (b)(ii), substitute: "(ii) if the conditions in subsection (3) are met—such an offer is made to: (A) every person with a registered address in Australia or New Zealand; and (B) every other person (if any) with a registered address outside Australia and New Zealand to whom the body decides to make offers, who holds securities in that class;"; and (b) at the end of subsection (1) insert: "Note: Paragraph (b) covers offers made to persons because they hold securities in the relevant class. It does not cover offers made to persons in some other capacity, for example, because they hold securities which are convertible into securities in the relevant class. Accordingly, these other offers do not affect whether the conditions in paragraph (b) or (c) are met.". (2) Part 7.9 of the Act applies in relation to all persons as if subsection 9A(2) were modified or varied as follows: (a) omit subparagraph (b)(ii), substitute: "(ii) if the conditions in subsection (3) are met—such an offer is made to: (A) every person with a registered address in Australia or New Zealand; and (B) every other person (if any) with a registered address outside Australia and New Zealand to whom the responsible entity decides to make offers, who holds interests in that class;"; and (b) at the end of subsection (2) insert: "Note: Paragraph (b) covers offers made to persons because they hold interests in the relevant class. It does not cover offers made to persons in some other capacity, for example, because they hold financial products which are convertible into interests in the relevant class. Accordingly, these other offers do not affect whether the conditions in paragraph (b) or (c) are met.". (3) Chapter 6D and Part 7.9 of the Act respectively apply to, and in relation to, all persons as if section 9A were modified or varied as follows: (a) omit paragraph (3)(c), substitute: "(c) if the invitation to apply for, or the right to be issued with, the securities or interests is able to be assigned—the body or responsible entity: (i) advises each non-resident in that place that a process will be conducted under which the securities or interests that would otherwise have been offered to the non-resident, or the invitations to apply for or rights to be issued with the securities or interests, will be offered for issue or sale to other persons; and (ii) advises each non-resident of the main features of the process; and (iii) advises each non-resident that they will be sent any net proceeds to which they are entitled from the issue or sale of the securities, interests, invitations or rights under the process. Note: Paragraph (c) has no application where the invitation to apply for, or the right to be issued with, the securities or interests is not able to be assigned. In such a case, there is no failure to meet the conditions in this subsection merely because the body or responsible entity decides to conduct a process of the kind described in that paragraph, whether in whole or in part."; (b) omit subsection (4), substitute: "(4) For the purpose of determining whether an offer of a body's securities or an offer of interests in a managed investment scheme (as the case requires) satisfies the conditions in subsection (1) or (2), disregard the following matters: (a) some or all persons who are offered securities or interests as an exempt investor may: (i) receive the offer before other persons to whom offers are made; or (ii) be given a period of time to accept the offer which is less than the period of time given to other persons to whom offers are made; (b) the securities or interests may be issued to a person as an exempt investor before securities or interests are issued to other persons under the offer, provided that any such issue to an exempt investor occurs no earlier than 2 months before the issue of securities or interests to other persons who are not exempt investors; (c) in relation to any securities or interests offered to but not accepted by some or all of the persons to whom the offers were first made: (i) processes are conducted at different times under which the securities or interests, or the invitations to apply for or rights to be issued with those securities or interests, are offered for issue or sale to exempt investors; and (ii) payments are made at different times of any net proceeds of issues or sales under those processes to the persons to whom the securities, interests, invitations or rights were first offered; (d) an offer made in the circumstance referred to in paragraph 708AA(13)(a) or 1012DAA(13)(a); (e) the rounding up or down of the number of securities or interests offered to a person to a whole number; and (f) persons who are offered securities or interests other than as exempt investors may be entitled to trade rights to be issued with securities or interests during a period of time ending before the time by which they may accept the offer. (5) For the purposes of this section: (a) exempt investor means a person: (a) offered securities in circumstances that do not need disclosure under Part 6D.2 because of subsections 708(8) to (12); or (b) offered interests as a wholesale client (as defined in section 761G); process, in relation to an offer of securities or interests or invitations to apply for or rights to be issued with the securities or interests, includes: (a) the appointment of a nominee: (i) to whom the securities, interests, invitations or rights are issued; (ii) who sells the securities, interests, invitations or rights; and (b) persons or classes of persons being invited to make offers to acquire: (i) the securities or interests; (ii) the invitations or rights on the condition that an application is made under the invitation or the rights are exercised; Note: The issue and sale of securities or interests under the terms of an offer referred to in section 615 is a process for the purposes of this section. (b) a reference to an offer of securities or interests includes a reference to an invitation to apply for the issue of securities or interests; and (c) a reference to accepting an offer of securities or interests includes a reference to making an application for the securities or interests.".