ASIC Corporations (Non-Traditional Rights Issues) Instrument 2026/98

The instrument builds around a small set of recurring technical concepts in the Act and changes how those concepts operate in practice. The main concepts are rights issue, related issue, exempt investor, process (for assignment/sale of rights), relevant period, and the interplay between disclosure/PDS exemptions and later resale or transfer of issued securities or products.

• Rights issue (s 7). The instrument modifies s 9A(1) and s 9A(2) of the Act so that an offer described as a rights issue may, if particular conditions in the newly inserted subsection (3) are met, be treated as having been made to every person with a registered address in Australia or New Zealand, and to other persons outside those jurisdictions to whom the offering entity decides to make offers (s 7(1)-(2)). That change removes the effect of the former subparagraph that could have narrowed the persons to whom a rights issue is regarded as being made. The instrument also reworks the conditions in s 9A(3), including the information and process obligations in cases where invitations are assignable (s 7(3)(a)).

• Related issue (s 8(13), s 9(13)). The instrument introduces a defined concept “related issue” to capture offers closely tied to rights issues which, depending on the circumstances, are to be treated as part of the same disclosure regime. The two key limbs are: (a) offers of the same class of securities first offered under the rights issue but not accepted and re‑offered to persons who were participants in the rights issue, where the re‑offer is made no later than two months after the first offer; and (b) offers made to holders of convertible securities where the convertible terms require the offer and the issuer satisfies certain procedural conditions. The definition includes rules about how to treat acceptance and conversion calculations (s 8(13)-(15), s 9(13)-(15)).

• Exempt investor (s 7(5)). For the purposes of s 9A (as modified), “exempt investor” is defined to include persons who are offered securities without disclosure under the Act’s existing exemptions (s 708(8)-(12)), and persons who are wholesale clients under s 761G. The definition is important because the instrument allows certain timing and sequencing advantages for exempt investors (for example, earlier receipt of offers or earlier issuance) to be disregarded in the statutory tests for whether the conditions for a rights issue exemption are met (s 7(3)(c)(a) and (d); new s 9A(4)).

• Process and nominee (s 7(5)(b) and notes). The instrument clarifies that “process” in relation to offers includes appointment of a nominee who may be issued the securities or rights and who may sell them, and that it can include inviting persons or classes of persons to make offers to acquire securities or rights on the condition they apply , explicitly capturing nominee and top‑up practices and confirming that section 615 sale/issue processes are processes for these purposes (s 7(5)(b) and note).

• Relevant period and continuous notification (s 8(11), s 9(11)). The concept “relevant period” is the time from when the notice is given under paragraph 2(f) (the timing for market‑operator notice) up to the last issue under the rights or related issue. If the issuer becomes aware during that period of excluded information that would need to be included if the notice had been given at that later time, or of a material change affecting control or its consequences, it must notify the market operator “as soon as practicable but in any event before the end of the relevant period” (s 8(11), s 9(11)). This creates an ongoing duty to update the market operator during the rights/related issue lifecycle.

• Stapled securities (s 8(16), s 9(16)). The instrument treats component securities of a stapled security as being in a different quoted class when they can only be traded together, and treats the component class as suspended when the stapled security’s trading is suspended. This is a technical rule to align rights/related issue treatment with market trading mechanics.

• Sale offer exemptions for post‑issue trading (s 10, s 11). The instrument inserts a new sale‑offer exemption (708A(12A) and 12B for securities; 1012DA(12A) and 12B for financial products) which provides that sale offers of securities/products issued under a rights or related issue do not need disclosure/provide a PDS, provided (a) the securities/products belong to a class that was quoted for all of the three months before issuance and (b) the rights/related issue did not need disclosure or PDS in the first place.

These concepts interact: whether a later resale requires disclosure depends on (i) whether the original issuance qualified as a rights issue or related issue under the modified definitions, (ii) whether the class was quoted for the preceding three months, (iii) timing of notices to the market operator, and (iv) whether the issuer updates the market operator during the "relevant period" where necessary.

The instrument changes obligations and entitlements that affect multiple groups, and it shifts decision‑points among them. The primary affected parties are issuers (bodies corporate and registered scheme issuers), regulated persons (as defined by s 1011B of the Act) and market operators. Secondary affected parties include holders of securities (including holders with registered addresses in Australia, New Zealand and elsewhere), holders of convertible securities, exempt investors, nominees, financial advisers and prospective purchasers in secondary markets.

• Issuing entities: Bodies issuing quoted securities and issuers of quoted financial products are directly affected. The changes operate by modifying how Chapter 6D (disclosure) and Part 7.9 (PDS) apply to such issuers for rights issues and related issues (see s 7-11). Issuers that design and carry out rights issues must apply the modified tests in s 9A (as varied by s 7) and must satisfy added procedural elements such as the market operator notice timing (s 8(2)(f), s 9(2)(f)) and the obligation to give update notices during the relevant period if excluded information or material changes arise (s 8(12), s 9(12)).

• Regulated persons and financial advisers: The instrument affects regulated persons who give financial advice or facilitate transfers/sales of quoted financial products. Modifications to s 1012DA (s 11) alter when a regulated person does not need to give a PDS for transfers/sales of products issued under a rights or related issue. It alters the conditions under which regulated persons may rely on PDS exemptions, which affects advice, client communications, and compliance processes.

• Security holders and prospective investors: Holders with registered addresses in Australia or New Zealand are explicitly treated as being within the scope of a rights issue where conditions in the modified s 9A(1) are met (s 7(1)). The issuer has discretion whether to make offers to persons outside Australia and New Zealand (s 7(1)(B)). Exempt investors (including wholesale clients and those eligible for other Articled exemptions under ss 708(8)-(12)) may receive offers earlier, be given shorter acceptance windows, or have securities issued earlier than non‑exempt holders , these timing differentials are expressly permitted to be disregarded for statutory tests (new s 9A(4) per s 7(3)(c)).

• Nominees and intermediaries: The instrument explicitly recognises nomination processes (s 7(5)(b)); nominees appointed to receive securities, rights, or invitations and then sell them are treated as part of a permissible “process”. Intermediaries organising re‑offers to exempt investors or conducting processes to sell unaccepted entitlements are affected by the technical relief and must ensure compliance with the notices and timing conditions.

• Market operators and exchanges: The instrument alters the trigger timing for the notice that must be given to the relevant market operator , the reference is now to “first offer” under the rights issue or an earlier time if required by the market operator (s 8(2)(f), s 9(2)(f)). It also imposes a continuing duty to update the market operator during the relevant period if new excluded information or a material change affecting control arises (s 8(12), s 9(12)). Market operators may therefore determine earlier notice times and will receive ongoing updates; they are therefore an important regulatory interface.

• Holders of convertible securities: Where convertible securities require offers on conversion, the instrument treats such offers as related issues provided the issuer follows the relevant convertible terms and timing rules (s 8(13)(b), s 9(13)(b)). Convertible holders and issuers must apply the conversion‑number rules in s 8(15)/s 9(15) where market prices are relevant.

• Secondary market purchasers and sellers: The sale‑offer exemptions (s 10 and s 11) affect persons dealing in the secondary market in securities or financial products issued under a rights or related issue. If conditions are met (class quoted for three months prior, original rights issue did not require disclosure/PDS), sale offers or transfers may proceed without disclosure/PDS obligations that otherwise would arise.

Groups that will see little direct change include retail investors in jurisdictions to which the issuer legitimately chooses not to offer rights, but they may be indirectly affected if issuer decisions about where to offer change market supply or liquidity.

The instrument creates, varies or clarifies specific duties and rights principally by changing how provisions of the Corporations Act apply. The following lists the major duties that arise from the instrument, with references to the sections of the instrument that create them.

• Duty to give market operator notice at the prescribed time (s 8(b), s 9(b)). Where a rights issue is being conducted, the issuer must give the market operator the notice required by the Act at the time the Act prescribes as the "first offer" under the rights issue or at any earlier time required by the market operator. The textual change shifts the timing reference from a previously stated point to the event "first offer" or earlier if the market operator mandates it (s 8(2)(f); s 9(2)(f)).

• Ongoing duty to update the market operator during the “relevant period” (s 8 inserted subsection (12); s 9 inserted subsection (12)). If, after the initial notice and before the last issue under the rights or related issue, the issuer becomes aware of information that would be excluded information but would need to be included in a contemporaneous notice, or there is a material change to the potential effect on control or its consequences, the issuer must give the relevant market operator a notice setting out details of the information or material change as soon as practicable and in any event before the end of the relevant period (s 8(12); s 9(12)).

• Duty to advise non‑residents where invitations are assignable (s 7(3)(a) substituting 9A(3)(c)). If an invitation or right is assignable, the offering entity must advise each non‑resident in that place (a) that a process will be conducted under which the securities or invitations or rights that would otherwise have been offered to the non‑resident will be offered for issue or sale to other persons; (b) the main features of the process; and (c) that any net proceeds to which the non‑resident is entitled from any sale under the process will be sent to them (s 7(3)(a) substituting 9A(3)(c)).

• Right to treat offers differently for exempt investors (s 7(3)(c) and new 9A(4)). The modified s 9A(4) specifies matters that must be disregarded when determining whether an offer satisfies the rights issue conditions. These include (a) that exempt investors may receive offers before others or have shorter acceptance periods; (b) that securities may be issued to exempt investors up to two months earlier than to non‑exempt investors; (c) that processes for unaccepted securities may be conducted at different times in relation to exempt investors; (d) that some offers may be made in the circumstances covered by the new related‑issue paragraph; (e) rounding up/down of securities; and (f) that persons offered securities other than exempt investors may be entitled to trade rights in a period that ends before acceptance closes (new 9A(4)).

• Right/obligation to use nominee processes as part of permissible “process” (s 7(5)(b)). The modified definition of “process” includes appointment of a nominee who is issued the securities and sells them. This formalises the acceptability of nominee sales mechanisms provided the statutory conditions are met.

• Specific conditions for sale/transfers without disclosure or PDS (s 10(12A), s 11(12A)). A sale offer of quoted securities/products issued under a rights or related issue does not need disclosure (or a PDS) where the securities/products were in a class that was quoted for all of the three months before issuance and the rights/related issue itself did not need disclosure/PDS (s 10(12A); s 11(12A)). Issuers and sellers therefore have an entitlement to rely on the exemption subject to those technical tests.

• Treatment of stapled securities for class and suspension of trading (s 8(16), s 9(16)). Where a component security can only be traded as part of a stapled security, it is taken to be in a separate class of quoted securities for the rights issue tests; trading in that taken class is treated as suspended when trading in the stapled securities is suspended.

• Convertible securities conversion rules (s 8(15), s 9(15)). If convertible terms require reference to the price at which securities/products are traded on a declared financial market to determine conversion numbers, the instrument instructs how to calculate that number: either by reference to trading over the period ending on the record date or at the particular time on the record date, as provided in the convertible terms.

Operationally, the instrument shifts certain decision rights to issuers: whether to make offers to persons outside Australia/New Zealand (s 7(1)(B)); whether to conduct processes by appointing nominees; and whether to treat subsequent offers as related issues (s 8(13), s 9(13)). Market operators also have practical control to require earlier notice timing (s 8(2)(f), s 9(2)(f)). Regulated persons have the right to withhold a PDS when the technical exemption conditions are met (s 11(12A)), subject to the instrument’s conditions.

The instrument itself is an ASIC legislative instrument that modifies the way specified sections of the Corporations Act apply. It does not create new criminal offences or new penalty regimes in its text. Instead, it functions by changing the application of sections of the Corporations Act (for example, s 9A, s 708AA, s 708A, s 1012DAA, s 1012DA) and leaves enforcement to the Act’s existing compliance and enforcement arrangements.

Practical enforcement consequences to note from the instrument’s operation include:

• Compliance testing remains under the Corporations Act framework. The instrument modifies the statutory tests for when an offer does or does not require disclosure or a PDS or when sale offers/transfers require disclosure; compliance or contravention must therefore be assessed against these modified statutory texts. Any contravention of those statutory obligations will be a contravention of the Corporations Act provisions as they apply following the instrument (see s 3 stating authority under subsections 741(1) and 1020F(1)).

• Market operator functions and oversight. The instrument gives market operators an express role in specifying an earlier notice time and receiving ongoing update notices about excluded information or material changes during the relevant period (s 8(2)(f), s 8(12); s 9(2)(f), s 9(12)). Enforcement of timing and content obligations in those notices will be handled through the Act and the market operator’s regulatory architecture; the instrument does not create separate enforcement tools.

• Administrative consequences for non‑compliance. The modifications introduce procedural duties (for example, the obligation to provide updated notices during the relevant period). Failure to satisfy such duties would manifest as non‑compliance with the relevant Act provisions as modified and therefore expose the entity to enforcement action under the Corporations Act remedies and sanctioning mechanisms that apply to contraventions. The instrument does not specify particular penalties.

• Sunset and repeal risk. The instrument sunsets at the start of 1 April 2031 (s 12). That means legal relief that market participants rely upon will cease to apply after that date unless extended. Transactions with timelines that span past the sunset date must be evaluated for transitional or terminating effects; failure to account for the instrument’s expiry could produce unexpected compliance gaps.

Because the instrument operates by changing how the Act’s disclosure/PDS obligations are applied, practitioners should assume that standard enforcement pathways in the Corporations Act (civil penalty regimes, criminal offences where applicable, administrative and ASIC powers in relation to market disclosure and PDS obligations) remain the mechanisms through which any contravention will be addressed. The instrument itself does not set out or vary the Act’s enforcement penalties in its text.

This instrument interacts with, and is framed within, several key statutory and regulatory features referenced in the instrument text and with other ASIC instruments. All interactions are those expressly referenced in the instrument.

• Corporations Act 2001 (the Act). The instrument is expressly made under subsections 741(1) and 1020F(1) of the Corporations Act (s 3). It operates by modifying the application or content of the Act’s sections: notably s 9A (definition/application of rights issue), s 708AA (Chapter 6D disclosure exemptions for rights issues), s 708A (sale offers of quoted securities), s 1012DAA and s 1012DA (PDS and transfers/sales of quoted financial products), and s 1012DA (transfers or sales of quoted financial products). It therefore directly alters how these statutory obligations apply to offers and to post‑issuance sales/transfers.

• Market operator rules and declared financial markets. The instrument gives market operators the ability to require earlier notice than “first offer” under rights issues (s 8(2)(f) and s 9(2)(f)). It also references declared financial markets in relation to conversion pricing and notes that declared financial market is defined in s 9D and that pre‑declaration markets may be treated as declared under transitional arrangements (s 8(15) and the note referencing s 9D and s 1705F). This creates interaction with market listing rules, operating rules and any timing obligations those rules impose.

• Existing disclosure exemptions and wholesale client rules. “Exempt investor” is defined to include persons who are offered securities in circumstances that do not need disclosure because of subsections 708(8)-(12), and wholesale clients as defined in s 761G (s 7(5)). Thus the instrument integrates with the Act’s pre‑existing exemptions for particular classes of investor; their definitions and operation remain relevant in determining who can be treated as an exempt investor under the modified s 9A.

• Other ASIC instruments. The instrument cross‑references other ASIC legislative instruments that notionally insert subsections into the Act (for example, ASIC Corporations (Sale Offers: Securities Issued on Conversion of Convertible Notes) Instrument 2026/96, ASIC Corporations (Regulatory Capital Securities) Instrument 2026/88, and ASIC Corporations (Sale Offers That Do Not Need Disclosure) Instrument 2026/94) (see s 10(a) notes). That means the practical reach of disclosure exemptions and sale offer cases may be affected by the operation of those other instruments and any notional insertions they make.

• Rules applicable to stapled securities and conversion mechanics. The instrument sets specific interaction rules for component securities of stapled securities and for convertible securities needing market price references (s 8(16), s 8(15)). Where underlying contractual terms or market rules determine conversion prices or trading mechanics, those contract and market rules interlock with the instrument’s statutory amendments.

• Repeal of prior ASIC instrument. The instrument repeals ASIC Corporations (Non‑Traditional Rights Issues) Instrument 2016/84 in Schedule 1. That repeal means that any legal positions or relief that rested on the 2016 instrument will now be governed by the 2026 instrument’s text and not by the 2016 instrument. Practitioners must therefore consider transitional arrangements, if any, and ensure reliance is on the correct instrument.

• Sunset and temporal interaction. The contained sunset (s 12) affects contractual planning and regulatory timelines. Transactions that span the instrument’s operative period must take into account that relief ceases at the start of 1 April 2031. That can interact with contractual terms, continuous disclosure timelines, and prospectus/PDS planning.

• Interaction with Part 6D.2 and Part 7.9 regimes. The instrument amends how Chapter 6D and Part 7.9 are to apply to certain offerings and post‑issuance transfers. This means that other provisions of those Parts (for example, existing disclosure format and content rules, remedies and compliance provisions) remain relevant but need to be read in light of the instrument’s variations. For example, where the instrument allows a related issue to be disregarded for disclosure purposes, other duties triggered under the same Parts may or may not apply; those effects must be tested against the modified statutory text.

Overall, the instrument sits as a targeted modification within the Corporations Act framework and relies on, and interacts with, market operator rules, convertible securities contracts, existing disclosure exemptions and other ASIC instruments. Practitioners must interpret these interactions in the context of the exact substituted and inserted text the instrument delivers (see ss 7-11).

This instrument is a single ASIC legislative instrument: ASIC Corporations (Non‑Traditional Rights Issues) Instrument 2026/98. The instrument text contains its making date and commencement rules, its repeal schedule, and its repeal of a prior instrument.

• Made and signature date. The instrument is signed by Amanda Zeller as delegate of the Australian Securities and Investments Commission with an effective date block showing 23 March 2026 (title block and signature page). That is the instrument’s stated making date.

• Commencement. The instrument commences on the later of the day after it is registered on the Federal Register of Legislation and 1 April 2026 (s 2). The instrument notes the register location and the commencement timing, so legal effect begins only after registration and the specified calendar date.

• Authority. The instrument is made under subsections 741(1) and 1020F(1) of the Corporations Act 2001 (s 3), indicating ASIC’s power to make an instrument of this kind under those provisions of the Act.

• Repeal and sunset. The instrument contains its own repeal provision. Section 12 expresses that the instrument is repealed at the start of 1 April 2031. That creates a finite operative life of approximately five years from its intended commencement date. Schedule 1 repeals the earlier ASIC Corporations (Non‑Traditional Rights Issues) Instrument 2016/84 in full (Schedule 1 item 1).

• Relationship to earlier instrument (2016). The instrument repeals the entire 2016 instrument (Schedule 1). It therefore replaces any relief that had previously been given by that instrument with the new text. No transitional text is included in the instrument that preserves any particular 2016‑era arrangements beyond the plain repeal and new operative text; practitioners should therefore treat the 2026 instrument as the operative legislative position for the period 2026-2031.

• Cross‑references to other 2026 ASIC instruments. The instrument contains notes that other ASIC instruments notionally insert related subsections into the Corporations Act, for example the instruments mentioned in s 10(a) and accompanying note regarding sale offers on conversion and regulatory capital securities. Those cross‑references indicate a coordinated package of ASIC instruments in the 2026 series dealing with sale offers, convertible notes and regulatory capital securities. The instrument itself does not set out those notional insertions; practitioners must review the referenced instruments for their integrated effect.

There is no additional amendment history recorded in this instrument beyond the 2016 instrument’s repeal and the single‑instrument lifecycle here. The instrument’s sunset means it is explicitly time‑limited; any extension, replacement, or statutory incorporation beyond 1 April 2031 would require further legislative or regulatory action.

The instrument text contains no case citations and does not record any litigation concerning the instrument. It makes no reference to judicial interpretations or pending court proceedings. As a matter of the instrument content:

• There is no litigation history provided in the instrument text. The instrument is silent as to any judicial consideration or challenge to either the 2016 instrument it repeals or the 2026 instrument itself.

• Practitioners should note that the instrument alters the statutory text they will apply when preparing, advising on, or litigating rights issues and related offers. Because the instrument modifies how statutory tests apply (for example, for disclosure or PDS exemptions), disputes that concern whether conduct satisfied the modified statutory tests will be litigable under the Corporations Act provisions as they operate with these variations.

• The instrument also cross‑references other ASIC instruments that notionally insert related subsections and are likely to be relevant in litigation about sale offers and conversion issues (s 10(a) and corresponding note). Any litigation over those issues would need combined analysis of the notional insertions together with this instrument’s text.

• Given the instrument’s explicit definitions (for example, “related issue”, “exempt investor”, “process”) and the introduction of duties to update the relevant market operator during the relevant period, future disputes are likely to focus on factual questions about timing (for example, when was the “first offer” for notice purposes), knowledge (when did the issuer “become aware” of excluded information), and process (whether the steps taken conform with the meanings given to “process” and nominee sales). The instrument itself, however, contains no litigation record.

If parties require judicial precedents or case law applying these modified provisions, they must look to subsequent court or tribunal decisions after these amendments take effect. The instrument does not provide transitional litigation guidance or precedent.

The instrument contains a number of technical traps and timing risks that can produce compliance surprises if practitioners or issuers do not plan for them. The following are concrete “gotchas” drawn from the instrument’s text.

• Market operator may require earlier notice than “first offer”. The timing for the notice to the relevant market operator is now “first offer” under the rights issue or any earlier time required by the market operator (s 8(2)(f), s 9(2)(f)). If issuers assume “first offer” is the earliest notice point and do not check market operator rules, they may miss an earlier notice deadline and render the notice defective under the modified paragraphs (s 8(10)(a) as amended).

• Ongoing duty to update during the relevant period creates a monitoring obligation. Once the initial notice is given, the issuer must monitor continuously through to the last issue under the rights or related issue for excluded information that would need to be included or for material changes affecting control or consequences, and must give the market operator an update before the end of the relevant period (new s 8(12) and s 9(12)). That imposes a potentially operationally heavy requirement to log, escalate and assess new information during the issue lifecycle, and to do so in tight time windows.

• Exempt investors can be advantaged without invalidating the rights exemption. The instrument expressly permits timing differentials and earlier issuance to exempt investors to be disregarded in the statutory tests (new s 9A(4)). That means issuers can legally give privileged treatment to exempt investors (for example, wholesale clients) but must be careful that the documentation and procedures actually comply with the formal definition of “exempt investor” (s 7(5)) and that the differential treatment is recorded and consistent with the disclosure to the market operator where required.

• “Related issue” timing is tight and binary. The related issue limb (s 8(13)(a)) captures re‑offers made no later than two months after the first offer. That two‑month limit is a bright line: offers made outside that window may not qualify as related issues and so may require disclosure or a PDS. Careful scheduling and record‑keeping of offer dates is therefore essential.

• Convertible terms can create complex calculation obligations. Where convertible securities require use of market trading prices to determine conversion numbers, the instrument instructs how to determine the price (s 8(15); s 9(15)). These calculations may rely on trading over a period ending on the record date or the price at a particular time on the record date. Where conversion mechanics are tied to such trading prices, issuers must ensure accurate price determination and retain supporting market data.

• Nominee sales are an explicit “process” and can have distributional effects. The instrument includes appointment of a nominee who is issued the securities and who sells them as an explicit process (s 7(5)(b)). Using nominees can affect secondary market liquidity, pricing and the identity of eventual holders; issuers must ensure that nominee sales fit within the disclosure/PDS exemptions’ other conditions and that non‑resident holders receive the required notices where invitations are assignable (s 7(3)(a)).

• Stapled securities are treated as distinct classes only while they are non‑separable. The instrument takes component securities of a stapled security to be in a different class when they can only be traded as part of the stapled security (s 8(16); s 9(16)). That means rights issue treatment may change depending on whether the component can be traded separately at the relevant time. Practitioners should map trading status carefully.

• Sale offer/post‑issue exemptions require a three‑month quoted history. The sale offer exemption for securities/products issued under a rights or related issue requires the class to have been quoted for all of the three months before issuance (s 10(12A); s 11(12A)). If an issuer or seller relies on that exemption but the quoted history falls short, the sale offer may trigger disclosure/PDS obligations unexpectedly.

• Sunset risk. The instrument repeals itself at the start of 1 April 2031 (s 12). Transactions with long tail issuance timing that push elements beyond that date risk falling outside the instrument’s relief; agreements that assume indefinite availability of these modifications may become non‑compliant when the instrument expires.

• Repeal of 2016 instrument. The blanket repeal of the 2016 instrument (Schedule 1) means any precedents or market practice built around that instrument must be rechecked against the 2026 instrument’s different text. Do not assume unchanged practice.

• Definitions depend on other provisions. The instrument’s operation relies on the definitions and exemptions in other parts of the Act (for example, wholesale client under s 761G, and exemptions under ss 708(8)-(12)). Misreading those linked definitions or assuming simplified meanings may cause errors when testing whether someone is an “exempt investor” or whether a prior exemption applies.

• “Become aware” standard is fact‑sensitive. The update obligation in new s 8(12)/s 9(12) triggers when the body or issuer “becomes aware” of excluded information or material change. Determining the moment of awareness may be contested in a dispute; issuers should adopt conservative internal notice and escalation policies to mitigate timing disputes.

Each gotcha arises from specific instrument provisions; implementors should map these against transaction timelines, market operator rules, convertible security documentation, and nominee processes to avoid non‑compliance.

Below is a practical, source‑grounded compliance checklist and recommended operating steps based on the instrument text (ss 2-12, Schedule 1). This checklist assumes the issuer or regulated person intends to rely on the modified rights issue and related post‑issue sale/transfer exemptions.

1. Confirm commencement and expiry dates.

   • Ensure the transaction will occur while the instrument is in force. The instrument commences on the later of registration and 1 April 2026 (s 2) and is repealed at the start of 1 April 2031 (s 12). Plan timelines so that issue and any related processes, including the last issue under a rights/related issue, occur before the sunset or account for alternative arrangements after repeal.

2. Determine whether the offer qualifies as a rights issue under the modified s 9A.

   • Apply the modified definitions and conditions set out in s 7. Check the substituted text of s 9A(1) and s 9A(2) (s 7(1)-(2)) for territorial application and ensure offers to persons outside Australia and New Zealand are undertaken only where the entity decides to make offers to them (s 7(1)(B)). When invitations are assignable, ensure the entity complies with the substituted 9A(3)(c) obligations (s 7(3)(a)).

3. Identify exempt investors and document eligibility.

   • Use the instrument’s definition of exempt investor (s 7(5)) which includes persons offered securities under ss 708(8)-(12) and wholesale clients under s 761G. Maintain a clear record of each holder’s status and any steps taken to verify eligibility.

4. Plan notices to the relevant market operator.

   • Determine the correct trigger date for the notice: either the day the “first offer” is made under the rights issue or any earlier time required by the market operator (s 8(2)(f); s 9(2)(f)). Check market operator rules and confirm whether they require earlier notice. Prepare the notice content to meet the Act’s requirements and to be capable of being updated if necessary.

5. Implement a continuous monitoring and escalation protocol for the “relevant period”.

   • The “relevant period” runs from the date the notice was given under paragraph (2)(f) to the last issue under the rights or related issue (see s 8(12) and s 9(12)). Put in place procedures to detect “excluded information” that would require inclusion if the notice had been given later and to identify material changes to control or consequences. Establish an internal timetable, names, roles and decision escalation points to ensure any required update notice is given “as soon as practicable but in any event before the end of the relevant period” (s 8(12); s 9(12)).

6. If invitations/rights are assignable, prepare the required advice to non‑residents.

   • Where an invitation or right is assignable, the offering entity must advise each non‑resident in the place that a process will be conducted, the main features of the process, and that any net proceeds from an issue or sale will be sent to them (s 7(3)(a)). Draft template notices and retention records demonstrating delivery and content.

7. Document any “processes” and nominee arrangements.

   • If a nominee will be appointed to receive securities or rights and sell them as part of a process (s 7(5)(b)), ensure nominee agreements, sale mechanics, and communications to holders (including non‑residents) align with the process description that was given. Record the nominee’s terms, sale authority and distribution processes.

8. Check the “related issue” rules and scheduling for any re‑offers or convertible security offers.

   • If planning any re‑offers to persons who were first offered but did not accept under the rights issue, ensure those re‑offers occur within two months of the first offer (s 8(13)(a)(iii)). If convertible securities are involved, verify that offers required by convertible terms are made to all required holders and that the number of securities to be offered to each holder is no greater than the number that would be required on conversion (s 8(13)(b)). For conversion pricing, apply the market price calculation method specified by the convertible terms as required by s 8(15).

9. Validate whether the sale‑offer/post‑issue transfer exemption applies.

   • For sale offers of securities or transfers/sales of financial products issued under a rights or related issue to be exempt from disclosure/PDS, confirm that: (a) the relevant securities/products were issued under a rights issue or a related issue (s 10(12A); s 11(12A)); (b) the class was quoted securities for all of the three months before issuance (s 10(12A)(b); s 11(12A)(b)); and (c) the rights/related issue did not need disclosure or a PDS in the first place (s 10(12A)(c); s 11(12A)(c)). Keep documentary evidence of the quoted status for the three‑month period.

10. Address stapled securities mechanics.

    • If component securities are only tradable as part of a stapled security, treat the component security as being in a separate class for rights issue tests (s 8(16); s 9(16)). Check trading suspension interplay: when trading in stapled securities is suspended, the taken class is treated as suspended.

11. Coordinate with regulated persons and advisers.

    • For regulated persons (s 11), confirm when they do not have to provide a PDS for transfers or sales, and ensure adviser procedures for giving or withholding PDSs are updated to reflect the modified s 1012DA. Document each client engagement and the legal basis relied upon for not providing a PDS.

12. Maintain records and evidence.

    • Keep contemporaneous records that prove the timing of notices, the content given to market operators and to non‑residents, the status of holders as exempt investors, the quoted history of a security class for the three months before issuance, conversion calculations, and nominee process documentation. These records are the primary evidence if compliance or knowledge timing is disputed.

13. Review contractual documentation for cross‑dependencies.

    • Check convertible security terms, underwriting agreements, investor communications, nominee agreements, and any broker engagement letters to ensure they do not require conflicting steps that would breach the modified Act provisions. For example, confirm that convertible terms’ required offers can be made to the required holders in the required form and timing per s 8(13)(b).

14. Plan for sunset.

    • Because the instrument expires on 1 April 2031, ensure that any long‑term arrangements which rely on this instrument’s relief either complete before that date or have contingency arrangements. For transactions with ongoing issuance mechanics spanning the sunset, document planned post‑sunset compliance options.

15. Obtain legal sign‑off and engage with the market operator early.

    • Given the market operator’s potential to require earlier notice, obtain written confirmation from the market operator about the timing and content of any required notices and seek ASIC or market operator guidance where unusual facts arise. Ensure legal counsel reviews notices before submission and that internal sign‑off thresholds are adhered to.

These steps follow directly from the statutory changes made by the instrument (see ss 7-11 and s 12). They address the principal operational and documentary duties the instrument imposes and aim to reduce execution risk from timing, monitoring and documentation shortfalls.