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ASIC Class Order [CO 08/25]

Authoritative Version
CO 08/25 Orders/ASIC Class Orders as made
This Class Order modifies various provisions in Chapter 6D and Part 7.9 of the Corporations Act 2001 (the Act) to ensure the effective operation of the exemptions under sections 708A and 1012DA of the Act for sale offers made within 12 months of an earlier sale by a controller.
Administered by: Treasury
Registered 06 Mar 2008
Tabling HistoryDate
Tabled HR11-Mar-2008
Tabled Senate11-Mar-2008
Date of repeal 17 Mar 2016
Repealed by ASIC Corporations (Repeal) Instrument 2016/171

Australian Securities and Investments Commission
Corporations Act 2001 — Subsections 741(1) and 1020F(1) — Declaration

 

 

Enabling legislation

 

1.         The Australian Securities and Investments Commission (ASIC) makes this instrument under subsections 741(1) and 1020F(1) of the Corporations Act 2001 (the Act).

Title

2.         This instrument is ASIC Class Order [CO 08/25].

 

Commencement

 

3.         This instrument commences on the date it is registered under the Legislative Instruments Act 2003.

                       

Note:       An instrument is registered when it is recorded on the Federal Register of Legislative Instruments (FRLI) in electronic form: see Legislative Instruments Act 2003, s 4 (definition of register).  The FRLI may be accessed at http://www.frli.gov.au/.

 

Declaration Chapter 6D

 

4.         Chapter 6D of the Act applies to all persons as if subsection 707(5) of the Act were modified or varied by omitting “section 708” and substituting “section 708 or 708A”.

 

5.         Chapter 6D of the Act applies to all persons as if section 708A of the Act were modified or varied as follows:

 

(a)        in paragraph 708A(1A)(c) omit “when the relevant securities were issued.”, substitute “when the relevant securities were sold by the controller.”;

 

(b)        omit paragraph 708A(5)(a), substitute:

“(a)      the relevant securities are in a class of securities that were

quoted securities at all times in the following period:

 

(i)       if this section applies because of subsection (1) —
3 months before the day on which the relevant securities were issued; or

 

(ii)      if this section applies because of subsection (1A) —
3 months before the day on which the relevant securities were sold by the controller; and”;

(c)        omit paragraph 708A(5)(b), substitute:

 

“(b)      trading in that class of securities on a prescribed financial market on which they were quoted was not suspended for more than a total of 5 days during:

 

(i)       if this section applies because of subsection (1) —
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; or 

 

(ii)      if this section applies because of subsection (1A) —
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 sold by the controller; and”;

 

(d)        omit paragraph 708A(6)(a), substitute:

 

“(a)      is given:

 

(i)       if this section applies because of subsection (1) —
within 5 business days after the day on which the relevant securities were issued by the body; or

 

(ii)      if this section applies because of subsection (1A) —
within 5 business days after the day on which the relevant securities were sold by the controller; and”;

(e)        omit paragraph 708A(6)(b), substitute:

 

            “(b)      states that:

 

(i)       if this section applies because of subsection (1) —
the body issued the relevant securities without disclosure to investors under this Part; or

 

(ii)      if this section applies because of subsection (1A) —
the controller sold the securities without disclosure to investors under this Part; and”; and

 

(f)         omit subsection 708A(9), substitute:

 

Obligation to correct defective notice

 

(9)        A person contravenes this subsection if:

 

(a)      where the person is the body:

 

(i)     the notice given under paragraph (5)(e) is defective; and

 

(ii)    the body becomes aware of the defect in the notice within the following period:

 

(A)   if this section applies because of subsection (1) — 12 months after the relevant securities are issued; or

 

(B)   if this section applies because of subsection (1A) — 12 months after the relevant securities are sold by the controller; and

 

(iii)   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;

 

(b)      where the person is the controller:

 

(i)     the notice given under subparagraph (5)(e)(ii) is defective; and

 

(ii)    the controller becomes aware of the defect in the notice within 12 months after the relevant securities are sold by the controller; and

 

(iii)   the controller does not, within a reasonable time after becoming aware of the defect, make the body aware of the defect.”.

 

Declaration — Part 7.9

 

6.         Part 7.9 of the Act applies in relation to all persons as if paragraph 1012C(9)(b) of the Act were modified or varied by omitting “within 12 months after issue,” and substituting “within 12 months after their sale by the controller,”.

 

7.         Part 7.9 of the Act applies in relation to all persons as if section 1012DA of the Act were modified or varied as follows:

 

(a)        in paragraph 1012DA(1A)(d) omit “when the relevant product was issued.”, substitute “when the relevant product was sold by the controller.”;

 

(b)        omit paragraph 1012DA(5)(a), substitute:

“(a)      the relevant product is in a class of financial products that were

quoted securities at all times in the following period:

 

(i)       if the regulated person is not required under subsection (1) to give a Product Disclosure Statement — 3 months before the day on which the relevant product was issued; or

 

(ii)      if the regulated person is not required under subsection (1A) to give a Product Disclosure Statement — 3 months before the day on which the relevant product was sold by the controller; and”;

(c)        omit paragraph 1012DA(5)(b), substitute:

 

“(b)      trading in that class of financial products on a prescribed financial market on which they were quoted was not suspended for more than a total of 5 days during:

 

(i)       if the regulated person is not required under subsection (1) to give a Product Disclosure Statement — the shorter of the period during which the class of financial product was quoted, and the period of 12 months before the day on which the relevant product was issued; or

 

(ii)      if the regulated person is not required under subsection (1A) to give a Product Disclosure Statement — the shorter of the period during which the class of financial product was quoted, and the period of 12 months before the day on which the relevant financial product was sold by the controller; and”;

 

(d)        omit paragraph 1012DA(6)(a), substitute:

 

“(a)      is given:

 

(i)       if the regulated person is not required under subsection (1) to give a Product Disclosure Statement — within 5 business days after the day on which the relevant financial product was issued; or

 

(ii)      if the regulated person is not required under subsection (1A) to give a Product Disclosure Statement — within 5 business days after the day on which the relevant financial product was sold by the controller; and”;

 

(e)        omit paragraph 1012DA(6)(b), substitute:

 

            “(b)      states that:

 

(i)         if the regulated person is not required under subsection (1) to give a Product Disclosure Statement — the relevant financial product was issued without a Product Disclosure Statement for the relevant product being prepared; or

 

(ii)        if the regulated person is not required under subsection (1A) to give a Product Disclosure Statement — the relevant financial product was sold by the controller without a Product Disclosure Statement for the relevant product being prepared; and”; and

 

(f)         omit subsection 1012DA(9), substitute:

 

Obligation to correct defective notice

 

(9)        A person contravenes this subsection if:

 

(a)      where the person is the issuer:

 

(i)     the notice given under paragraph (5)(e) is defective; and

 

(ii)    the issuer becomes aware of the defect in the notice within the following period:

 

(A)   if the regulated person is not required under subsection (1) to give a Product Disclosure Statement  — 12 months after the relevant product is issued; or

 

(B)   if the regulated person is not required under subsection (1A) to give a Product Disclosure Statement — 12 months after the relevant product is sold by the controller; and

 

(iii)   the issuer 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;

 

(b)      where the person is the controller:

 

(i)     the notice given under subparagraph (5)(e)(ii) is defective; and

 

(ii)    the controller becomes aware of the defect in the notice within 12 months after the relevant product is sold by the controller; and

 

(iii)   the controller does not, within a reasonable time after becoming aware of the defect, make the issuer aware of the defect.”.

 

 

Dated this 3rd day of March 2008

 

 

 

 

 

Signed by Brendan Byrne

as a delegate of the Australian Securities and Investments Commission