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 724   CHOICES OPEN TO PERSON MAKING THE OFFER IF DISCLOSURE DOCUMENT CONDITION NOT MET OR DISCLOSURE DOCUMENT DEFECTIVE  

724(1)  
If a person offers securities under a disclosure document and:


(a) the disclosure document states that the securities will not be issued or transferred unless:


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

(ii) a minimum amount raised;
and that condition is not satisfied within 4 months after the date of the disclosure document; or


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


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

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


(c) the person becomes aware that:


(i) the disclosure document contains a misleading or deceptive statement; or

(ii) there is an omission from the disclosure document of information required by section 710 , 711 , 712 , 713 , 713C , 713D , 713E , 714 or 715 ;
that is materially adverse from the point of view of an investor; or


(d) the person becomes aware of a new circumstance that:


(i) has arisen since the disclosure document was lodged; and

(ii) would have been required by section 710 , 711 , 712 , 713 , 713C , 713D , 713E , 714 or 715 to be included in the disclosure document if it had arisen before the disclosure document was lodged; and

(iii) is materially adverse from the point of view of an investor;

the person must deal under subsection (2) with any applications for the securities made under the disclosure document that have not resulted in an issue or transfer of the securities. For the purpose of working out whether a condition referred to in paragraph (a) has been satisfied, a person who has agreed to take securities as underwriter is taken to have applied for those securities.

724(1A)  


An offence based on subsection (1) is an offence of strict liability.

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

724(2)  
The person must either:


(a) repay the money received by the person from the applicants; or


(b) give the applicants:


(i) the documents required by subsection (3); and

(ii) 1 month to withdraw their application and be repaid; or


(c) issue or transfer the securities to the applicants and give them:


(i) the documents required by subsection (3); and

(ii) 1 month to withdraw their application and be repaid.

Note: Sections 719 and 719A deal with lodging supplementary and replacement documents. Section 728 makes it an offence for a person to offer securities if the disclosure document is deficient in a way that is material from the point of view of an investor.

724(3)  


The documents to be given are set out in the following table:


Documents to be given [ operative ]
Circumstances Documents
1 the sole disclosure document is a prospectus (other than a 2-part simple corporate bonds prospectus) a supplementary or replacement prospectus that corrects the deficiency or changes the terms of the offer
1A the disclosure document is a 2-part simple corporate bonds prospectus a supplementary or replacement document that corrects the deficiencies or changes the terms of the offer
2 the disclosure documents are a prospectus and a profile statement and subsection (1) applies to the prospectus a statement that sets out the changes needed to the prospectus to correct the deficiency or change the terms of offer; and
a statement that the person is entitled to a copy of the prospectus free of charge
3 the disclosure documents are a prospectus and a profile statement and subsection (1) applies to the profile statement
Note that item 2 and this item may both apply to the offer.
a supplementary or replacement profile statement that corrects the deficiency or changes the terms of the offer
4 the disclosure document is an offer information statement a supplementary or replacement offer information statement that corrects the deficiency or changes the terms of the offer


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