Remaking ASIC class order on share and interest sale facilities

Legislative instruments, such as class orders, are repealed automatically, or sunset, after 10 years, unless action is taken to extend them.

ASIC is proposing to remake Class Order [CO/08/10] Share and interest sale facilities, which sunsets on 1 April 2018. ASIC believes that the class order is operating effectively and efficiently, and continues to form a necessary and useful part of the legislative framework.

The proposal is open for consultation until 18 March 2016.

Sale facilities are a convenient and cost effective way for smaller holders of shares and interests in managed investment schemes to:

  1. sell their shares or interests at or near their current market value; or
  2. purchase more shares or interests of the same class.

The facilities share the same basic features including:

  1. holders are invited to participate in the facility by the issuer of their shares or interests;
  2. the shares or interests of participants in the facility are sold on a licensed market or approved foreign market by an AFS licensee in batches over a specified period of time;
  3. the proceeds of sale are pooled;
  4. participants are paid a volume weighted average price on all shares or interests sold in this way less reasonable expenses of operating the facility (unless these are picked by the issuer).

Some issuers may also offer a purchase facility to smaller holders to encourage them to acquire more shares or interests.

The facilities may be a “managed investment scheme” for the purposes of Chapter 5C of the Corporations Act 2001. If a facility was a managed investment scheme it may be required to be registered, hold an AFS licence and have a Product Disclosure Statement.

The operation of some facilities may also be prohibited offers under the Corporations Act.

[CO 08/10] exempts issuers of shares and interests who operate a sale facility or related purchase facility from the requirements relating to managed investment schemes and the application of the relevant sections dealing with prohibited offers.

ASIC noted that without the relief provided by the class order issuers may not able to offer these facilities to their members which would disadvantage both issuers and members. ASIC was also satisfied that there was adequate disclosure to participants. Finally, ASIC concluded that those sections of the Corporations Act that may have prohibited the offers made though these facilities were not intended to apply to them.

For these reasons ASIC proposes to extend the relief given by the class order beyond its sunset date of 1 April 2018. A copy of the proposed new legislative instrument is available on the ASIC web site at www.asci.gov.au/cp under CP 252.

Post by John Kell

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