Clause 147

by deleting the words “Subdivisions (2) and (3) of this Division (other than section 257) shall not apply to an offer of securities” in subsection (1) and substituting the words “Subject to subsection (5), Subdivisions (2) and (3) of this Division (other than section 257) do not apply to an offer of securities or securities‑based derivatives contracts”;

by inserting, immediately after the word “securities” wherever it appears in subsections (1)(cc) and (ci) and (5), the words “or securities‑based derivatives contracts”;

by inserting, immediately after the words “offer of securities” in subsection (1)(cd), the words “or securities‑based derivatives contracts”;

by inserting, immediately after the words “whose securities” in subsection (1)(cd)(i) and (ii), the words “or securities‑based derivatives contracts”;

by deleting the words “a securities exchange” wherever they appear in subsection (1)(cd), (ce), (cf), (cg), (ch) and (d) and substituting in each case the words “an approved exchange”;

by inserting, immediately after paragraph (ci) of subsection (1), the following paragraphs:“(cj)it is an offer of units in a business trust, whose units are listed for quotation on an approved exchange, made to —

any existing unitholder of the business trust; or

any holder of any debenture of the trustee‑manager of the business trust that is issued by the trustee-manager of the business trust in its capacity as trustee‑manager of the business trust;

any existing unitholder of the business trust, where such derivatives of units may only be exercised or converted by the existing unitholder into units of the business trust; or

any holder of any debenture of the trustee‑manager of the business trust that is issued by the trustee‑manager of the business trust in its capacity as trustee‑manager of the business trust, where such derivatives of units may only be exercised or converted by the holder of debentures into units of the business trust;”;

by inserting, immediately after paragraph (d) of subsection (1), the following paragraph:“(da)it is an offer of units in a business trust (not being such excluded units in a business trust as may be prescribed by regulations made under section 341) that —

have been previously issued;

are listed for quotation or quoted on an approved exchange; and

are traded on the approved exchange;”;

by deleting paragraphs (e) and (f) of subsection (1) and substituting the following paragraphs:“(e)it is an offer of securities-based derivatives contracts (not being such excluded securities‑based derivatives contracts as may be prescribed by regulations made under section 341) that —

have been previously issued;

are listed for quotation or quoted on an approved exchange; and

are traded on the approved exchange;

it is an offer of securities-based derivatives contracts (not being such excluded securities‑based derivatives contracts as may be prescribed by regulations made under section 341) where —

the discharge of the obligations under, or the value of, the securities‑based derivatives contracts is determined wholly (whether directly or indirectly) by reference to, is derived from, or varies by reference to the value or amount of one or more securities indices; and

an application has been or will be made for permission for the securities‑based derivatives contracts to be listed for quotation or quoted on an approved exchange;

it is an offer of securities-based derivatives contracts (not being such excluded securities‑based derivatives contracts as may be prescribed by regulations made under section 341) where —

the obligations under the securities‑based derivatives contracts are to be discharged by one party to the other at some future time by cash settlement only;

all underlying securities of the securities‑based derivatives contracts have been previously issued and are listed for quotation on an organised market (not being such excluded organised market as may be prescribed by regulations made under section 341); and

either of the following is satisfied:

an application has been or will be made for permission for the securities‑based derivatives contracts to be listed for quotation or quoted on an approved exchange;

the offer complies with such disclosure requirements prescribed by regulations made under section 341;

it is an offer of securities-based derivatives contracts (not being such excluded securities‑based derivatives contracts as may be prescribed by regulations made under section 341) where —

the obligations under the securities-based derivatives contracts are to be discharged by one party to the other at some future time other than by cash settlement only;

all underlying securities of the securities‑based derivatives contracts have been previously issued and are listed for quotation on an approved exchange or a recognised securities exchange; and

an application has been or will be made for permission for the securities‑based derivatives contracts to be listed for quotation or quoted on an approved exchange;

it is made (whether or not in relation to securities or securities‑based derivatives contracts that have been previously issued) by an entity to a qualifying person, where the securities or securities‑based derivatives contracts are to be held by or for the benefit of the qualifying person and are the securities or securities‑based derivatives contracts of the entity or any of its related parties; or

it is made (whether or not in relation to securities or securities‑based derivatives contracts that have been previously issued) by a trustee‑manager of a business trust to a qualifying person, where the securities or securities‑based derivatives contracts are to be held by or for the benefit of the qualifying person and are the securities or securities‑based derivatives contracts of the business trust or any of its related parties.”;

by deleting subsections (1A) and (2) and substituting the following subsections:“(1A) An offer of securities or securities‑based derivatives contracts does not come within subsection (1)(d), (da) or (e) if —

the securities or securities-based derivatives contracts being offered are borrowed by the issuer from any of the following persons solely for the purpose of facilitating the offer of securities or securities‑based derivatives contracts by the issuer:

an existing shareholder of the issuer;

a holder of a debenture of the issuer;

(where the securities or securities‑based derivatives contracts offered are units or derivatives of units in a business trust) an existing holder of units or holder of derivatives of units in the business trust; or

a holder of units of shares or debentures of the issuer; and

such borrowing is made under an agreement or arrangement between the issuer and the person mentioned in paragraph (a) which promises the issue or allotment of securities or securities‑based derivatives contracts by the issuer to the person at the same time or shortly after the offer.(2) An offer of securities or securities‑based derivatives contracts comes within subsection (1)(i) or (j) only if no selling or promotional expenses are paid or incurred in connection with the offer other than those incurred —

for administrative or professional services; or

by way of commission or fee for services rendered by —

the holder of a capital markets services licence to deal in capital markets products that are securities or securities-based derivatives contracts;

an exempt person in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts;

a person who is licensed, approved, authorised or otherwise regulated under the laws, codes or other requirements of any foreign jurisdiction in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts; or

a person who is exempt from the laws, codes or requirements mentioned in sub‑paragraph (iii) in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts.”;

by deleting subsection (4) and substituting the following subsection:“(4) For the purposes of subsection (1)(i) and (j) —

a person is a qualifying person in relation to an entity if the person is —

a bona fide director or equivalent person, former director or equivalent person, consultant, adviser, employee or former employee of the entity or a related corporation of that entity (being a corporation); or

the spouse, widow, widower or a child, adopted child or stepchild below the age of 18, of such director or equivalent person, former director or equivalent person, employee or former employee; and

a person is a qualifying person in relation to a business trust if the person is —

a bona fide director or equivalent person, former director or equivalent person, consultant, adviser, employee or former employee of the trustee‑manager of the business trust or a related corporation of that trustee‑manager (being a corporation); or

the spouse, widow, widower or a child, adopted child or stepchild below the age of 18, of such director or equivalent person, former director or equivalent person, employee or former employee.”;

by deleting subsection (8A) and substituting the following subsection:“(8A) A person must not —

advertise an offer or intended offer of any securities or securities-based derivatives contracts mentioned in subsection (1)(d), (da) or (e); or

publish a statement that —

directly or indirectly, refers to an offer or intended offer of any securities or securities‑based derivatives contracts mentioned in subsection (1)(d), (da) or (e); or

is reasonably likely to induce persons to subscribe for or purchase the securities or securities‑based derivatives contracts to which the offer relates,unless the advertisement or publication complies with such requirements as may be prescribed by regulations made under section 341.”; and

by deleting paragraph (b) of subsection (9) and substituting the following paragraph:“(b)the shares or debentures, or units of shares or debentures, of which are not listed for quotation on any approved exchange.”.