ASIC Corporations (On-Sale Disclosure Relief for Scrip Bids and Schemes of Arrangement) Instrument 2023/686

The instrument rests on a compact set of concepts that determine eligibility and the operational effect of the exemption. These concepts are defined in s 4 and revisited in the operative s 5.

• Scrip consideration. The term is defined broadly to capture securities transferred to a nominee under the terms of an off-market bid as described in subsection 619(3), securities offered for sale through a security sale facility, securities offered for sale through a takeover-related small parcel sale facility, and securities issued under a right to acquire securities that have been transferred or offered in accordance with those paragraphs (s 4). The definition therefore includes both transferred securities and rights attached to them that are offered through specified sale mechanisms.

• Offer for sale. The instrument explicitly states that an "offer for sale" includes an invitation to purchase (s 4). That expands the universe of transactions to which the exemption might apply beyond strictly executed sales, to encompass solicitations or invitations to acquire scrip consideration.

• Security sale facility and takeover-related small parcel sale facility. These two facility types are defined with parallel elements. For takeover bids, a security sale facility requires (i) that the bid’s consideration includes scrip consideration, (ii) the bidder appoints a nominee and transfers to the nominee scrip not acquired by non-participants (or the right to acquire it), and (iii) the nominee sells the scrip or right and distributes to non-participants their proportion of the proceeds net of expenses; and (iv) the facility’s terms and conditions are disclosed in the bidder’s statement (s 4). For Part 5.1 schemes, the equivalent elements are that scrip consideration is to be issued, non-acquired scrip (or rights) are sold and net proceeds distributed, and the terms are disclosed in the explanatory statement (s 4).

• Non-participants. The instrument identifies non-participants differently for takeover bids and Part 5.1 schemes (s 4). For takeover bids, a non-participant is a holder who accepted an offer under the bid and elected not to acquire scrip consideration. For Part 5.1 schemes, a non-participant includes persons offered but electing not to acquire scrip consideration, and persons not offered scrip consideration because they are foreign holders or would otherwise receive a small parcel of scrip consideration.

• Minimum parcel and small parcel. The "minimum parcel" is either the marketable parcel/minimum parcel defined in the operating rules of the relevant prescribed financial market, or, absent such a definition, a parcel valued at not less than $500 using the closing price on that market (s 4). The "small parcel" for a non-participant in a Part 5.1 scheme is a parcel that is not a minimum parcel per market rules, calculated using the highest closing price in a defined period that begins on the day the explanatory statement is registered with ASIC and ends the day an office copy of the Court order is lodged with ASIC (s 4). These definitions create objective thresholds that determine who will be a non-participant by reason of small holdings.

• Linkage to other ASIC instruments. The definitions include notes that subsection 619(3) is notionally substituted into the Act by ASIC Corporations (Takeover Bids) Instrument 2023/683, and that subsection 619(4) is notionally inserted into the Act by the same instrument (s 4 notes). Those cross-references indicate that the deployment of scrip handling and nominee-sale mechanics depends on parallel ASIC instrument changes.

• Temporal scope. The instrument is temporary, operational from the day after registration and repealed at the start of 1 October 2028 (ss 2 and 6).

These main concepts together define which offers for sale of scrip consideration are exempted from the specific on-sale disclosure obligations referenced in s 5, and they impose procedural preconditions on the sale and distribution mechanisms by requiring disclosure of the facility terms in bidder’s statements or explanatory statements.

The instrument identifies several categories of actors and stakeholders, either directly through defined terms or indirectly by the mechanics of the exemption.

• Persons who make offers for sale of scrip consideration. The primary legal beneficiary of the instrument is any person who makes an offer for sale of scrip consideration as defined in s 4. That includes sellers of scrip transferred to nominees under off-market bids, sellers under security sale facilities and takeover-related small parcel sale facilities, and sellers of rights to acquire such securities. The relief in s 5(1) removes the obligation to comply with specific on-sale disclosure subsections for those offers.

• Bidders and scheme proponents. For takeover bids that include scrip consideration the bidder is functionally subject to the security sale facility requirements in s 4(a). For Part 5.1 schemes the scheme proponent or responsible person designing the scheme will need to incorporate the sale facility mechanics as described in s 4(b). Those actors design the process and are the entities most likely to make use of the exemption indirectly by establishing facilities for selling scrip not taken by non-participants.

• Nominees. The security sale facility definition contemplates appointment of a nominee to receive and sell scrip or rights not acquired by non-participants and distribute net proceeds (s 4). Nominees are therefore central decision-makers in execution of the sale and distribution. The instrument does not modify other legal obligations that nominees may have, but it expressly contemplates their role in the sale and distribution mechanics.

• Non-participants. The definitions identify holders who will be classified as non-participants and therefore be the recipients of net proceeds from sale of scrip or rights. For takeover bids non-participants are holders who accepted an offer and elected not to acquire scrip consideration (s 4). For schemes, non-participants include those offered but electing not to acquire, and persons not offered because they are foreign holders or would otherwise receive a small parcel (s 4). Whether an investor is a non-participant will determine whether their scrip or rights may be sold through a facility and whether the exemption applies to the sale offering.

• Security markets and market participants. The definition of minimum parcel ties the instrument to the operating rules of any prescribed financial market on which the securities are quoted (s 4). That draws in market operators, registry services and clearing arrangements when calculating minimum parcels and small parcels using closing price data within specified periods.

• Advisers and recommenders. Section 5(2) relieves a person who makes a recommendation to acquire scrip consideration from compliance with subsection 1012A(3) to the extent it applies to acquisitions by transfer in circumstances covered by s 1012C(6). This affects persons preparing recommendation communications in relation to scrip transfers within the specified circumstances.

• ASIC and registries. ASIC is the registerer of the explanatory statement under subsection 412(6) and lodger of office copies of Court orders under subsection 411(10); those timings feed into the small parcel calculation (s 4). The instrument therefore requires engagement with ASIC’s registration processes and court filing processes to determine threshold calculations.

• Foreign holders. The definitions explicitly recognise that foreign holders may be excluded from being offered scrip consideration under a Part 5.1 scheme, in which case they are treated as non-participants (s 4). This affects cross-border holdings and raises procedural effects for scheme design and communication with foreign securityholders.

Each affected category faces specific actions: those making offers for sale will no longer have to comply with the particular subsections exempted; bidders and scheme proponents must still disclose facility terms in the bidder’s statement or explanatory statement per the facility definitions; nominees must sell and distribute net proceeds; registries and ASIC timelines affect small parcel calculations; and advisers must assess whether their recommendation-related obligations are reduced for transfers in the particular circumstances.

The instrument alters legal obligations only by removing particular disclosure duties in clearly defined circumstances; it does not itself create new rights to acquire securities. The operative change is confined to the relief in s 5 and the definitional scaffolding in s 4 that shapes what the relief covers.

• Relief from specified disclosure subsections. Under s 5(1) a person making an offer for sale of scrip consideration does not have to comply with subsection 707(3) of the Act, and does not have to comply with subsection 1012C(3) insofar as that subsection would otherwise apply to an offer that takes place in the circumstances covered by subsection 1012C(6). The instrument therefore removes those statutory obligations in the enumerated situations. The instrument does not itself restate the content of the exempted subsections; it simply disapplies them for the specified offers for sale.

• Relief for recommenders. Section 5(2) disapplies subsection 1012A(3) of the Act for persons who recommend acquisition of scrip consideration, to the extent the recommendation concerns acquisition by transfer in the circumstances covered by subsection 1012C(6). This narrows a recommenders’ statutory duty in that narrow context.

• Facility disclosure remains required. The definitions of both security sale facility and the scheme-related facility include an express prerequisite that the terms and conditions of the facility are disclosed in the bidder’s statement (s 4(a)(ii)) or explanatory statement (s 4(b)(ii)). That requirement is not subject to the exemption in s 5 and therefore continues to be a duty on bidders and scheme proponents. In practice that means some pre-sale disclosure obligations remain: the instrument removes specific on-sale disclosure duties, but the facility itself must be described to participants in the bidder’s statement or explanatory statement.

• Calculation and procedural duties related to parcels. Persons designing the sale facility and communicating with securityholders must determine whether holdings qualify as minimum parcels or small parcels under the instrument’s definitions (s 4). The minimum parcel will either be that defined by market operating rules or a not-less-than-$500 parcel valued at closing price. The small parcel for schemes requires calculation using the highest closing price over a specified registration-to-lodgement period. Those calculations impose operational duties on registries, bidders, scheme proponents and their advisers.

• Interaction with nominee duties. The security sale facility definitions require nominees to sell scrip or rights not acquired by non-participants and distribute net proceeds to non-participants (s 4). Nominees therefore have operational duties to execute sale and distribution in accordance with the facility terms that must be disclosed.

• Temporal limitation as a duty for planning. The instrument’s repeal date, s 6, creates a calendar-bound planning duty. Persons relying on the exemption must account for its sunset at the start of 1 October 2028 and plan any transactional timetables and document drafting accordingly.

• No change to other Act obligations within instrument. The instrument does not purport to amend or override other obligations in the Act beyond the specific subsections named. It does not create express new enforcement mechanisms, licensing obligations, or rights of action; it operates as an exemption from specified disclosure duties in the prescribed scenarios.

In short, the key duties removed are limited statutory disclosure subsections for specified offers for sale and recommendations concerning acquisition by transfer; the key continuing duties are disclosure of the facility terms in bidder’s statements and explanatory statements, accurate parcel calculations, and the operational sale and distribution obligations of nominees and facility operators.

The instrument itself does not create new criminal offences, civil penalties or enforcement procedures; it is an exemption instrument that operates by disapplying specified statutory requirements in tightly defined circumstances. The text of the instrument does not specify penalties, nor does it purport to modify the general enforcement regime of the Corporations Act 2001.

• No penalties in the instrument. There are no penalty provisions, enforcement processes, or administrative sanctions set out within the instrument’s text. The instrument’s operative effect is to relieve persons who make offers for sale of scrip consideration from having to comply with specific subsections of the Act (s 5). It does not address the enforcement framework that applies if other provisions of the Act are breached.

• Enforcement remains via the Act. Because the instrument operates under the authority conferred by ss 741(1) and 1020F(1) of the Act (s 3), general enforcement of the Act’s provisions that are not disapplied remains available to regulators, courts and other enforcement agencies as provided by the Act. The instrument does not extinguish those enforcement powers or provide affirmative immunity from other statutory or common law obligations.

• Continuing disclosure and procedural duties carry enforcement risk. The definitions of security sale facility and scheme facility require that the facility terms be disclosed in the bidder’s statement or explanatory statement (s 4). Persons who fail to disclose those terms as required by other provisions of the Act may remain subject to enforcement action under the Act notwithstanding the exemption in s 5. The instrument therefore narrows but does not eliminate the regulatory perimeter applicable to takeover bids and schemes: failure to comply with the remaining applicable obligations may still attract enforcement.

• ASIC’s role. The instrument is made by a delegate of ASIC (the instrument records the maker in the preamble) and is exercisable under statutory powers in the Act (s 3). ASIC’s usual oversight and enforcement functions in relation to compliance with the Act, bidder’s statements, explanatory statements and scheme processes therefore continue, as the instrument does not displace ASIC’s authority except to the limited extent of the exemptions.

Users of the exemption should therefore be mindful that the instrument removes only specific statutory disclosure obligations. Other requirements contained in the Act, in market operator rules referenced by the definitions, and in related ASIC instruments that the text cross-references (for example the note references to ASIC Corporations (Takeover Bids) Instrument 2023/683) remain in force and enforceable unless separately modified.

This instrument is tightly interwoven with the Corporations Act 2001 and with other ASIC instruments that the text expressly references. Its interaction is primarily by negative operation: it disapplies specified disclosure subsections where certain conditions are met, and it references other statutory and regulatory materials that determine the boundaries of that disapplication.

• Operative authority within the Act. The instrument is made under subsections 741(1) and 1020F(1) of the Act (s 3). Those sections are the statutory delegations permitting ASIC to make instruments that disapply or modify certain requirements. The instrument therefore functions as an exercise of delegated regulatory power under the Corporations Act.

• Connection to substantive Act provisions. The exemptions in s 5 explicitly reference subsections 707(3), 1012C(3), 1012C(6), and 1012A(3) of the Act. The instrument does not restate the substantive content of those subsections but disapplies their operation in the particular circumstances described. Consequently the instrument’s practical effect depends entirely on how those Act provisions apply in any given transaction.

• Linkage to parallel ASIC instrument. The definitions include notes stating that subsection 619(3) is notionally substituted into the Act and subsection 619(4) is notionally inserted into the Act by ASIC Corporations (Takeover Bids) Instrument 2023/683 (s 4 notes). That cross-reference indicates that the regime for scrip transferred to nominees and takeover-related small parcel sale facilities is conceptually aligned with the changes made by Instrument 2023/683. In other words, the availability and mechanics of scrip consideration and related sale facilities are intended to operate together with the modifications effected by the other ASIC instrument.

• Market operating rules. The minimum parcel definition defers to the operating rules of any prescribed financial market on which the securities are quoted where those rules define "marketable parcel" or "minimum parcel" (s 4). Thus, the instrument interacts with exchange rules and market operator definitions in determining thresholds for parcel sizes. If market operating rules lack such a definition, the instrument creates an alternative objective $500 threshold based on closing price.

• Court and ASIC timing processes. The small parcel calculation for Part 5.1 schemes uses timing anchored to ASIC’s registration of the explanatory statement under subsection 412(6) and to lodging an office copy of the Court order with ASIC under subsection 411(10) (s 4). That means court processes under Part 5.1 and ASIC’s registrarial processes determine eligibility for small parcel treatment.

• Continuity of other statutory duties. While the instrument disapplies particular disclosure subsections, it does not purport to repeal or modify other statutory duties. The definitions require disclosure of facility terms in bidder’s statements or explanatory statements (s 4), so interplay with the statutory obligations to prepare accurate and complete bidder’s statements and explanatory statements remains, and these obligations are subject to normal Act-based remedies and enforcement.

• No express interaction with other statutes. The text contains no express amendments to other Commonwealth statutes, taxation law, foreign investment rules or state laws. Any interaction with those laws will be contextual and dependent upon the substance of the underlying transactions; the instrument itself remains an administrative exemption within the Corporations Act framework.

In sum, the instrument sits as a focused, time-limited regulatory tweak within the Corporations Act ecosystem and is intended to operate alongside other ASIC instruments (notably Instrument 2023/683) and market operator rules that define parcel thresholds and handle nominee sale mechanics. It disapplies specified Act subsections but leaves intact the broader statutory, market-rule and court-anchored processes that govern takeover bids and Part 5.1 schemes.

The instrument’s own text sets out a limited and explicit lifecycle. There are no amendments recorded in the text supplied. The key chronological and drafting facts recorded in the instrument are as follows.

• Date and maker. The instrument is dated 22 September 2023 and is made by Amanda Zeller, delegate of the Australian Securities and Investments Commission. That maker information appears on the instrument’s cover/preamble.

• Commencement. Section 2 provides that the instrument commences on the day after it is registered on the Federal Register of Legislation. There is a note directing the reader to the register at www.legislation.gov.au. The instrument therefore takes effect upon registration, not upon the date printed on the instrument.

• Legislative authority. Section 3 records that the instrument is made under subsections 741(1) and 1020F(1) of the Corporations Act 2001. Those citations identify the statutory delegation enabling ASIC to make such an instrument.

• Repeal. Section 6 provides that the instrument is repealed at the start of 1 October 2028. The repeal is express and fixed; there is no power in the instrument text to extend or vary the repeal date. The instrument is thus temporary in nature with a prescribed sunset.

• Cross-references to other ASIC instruments. The definitions include notes that tie certain notional amendments into the Act by reference to ASIC Corporations (Takeover Bids) Instrument 2023/683. Those notes indicate that the conceptual operation of this instrument is intended to interlock with that other ASIC instrument. The instrument’s history therefore is linked to contemporaneous instrument-making activity by ASIC in relation to takeover bid provisions.

• No amendments recorded within the text. The supplied text contains no amending provisions, transitional provisions beyond the definitions and operational sections, or savings clauses. It is a stand-alone instrument that rescinds nothing and is itself time-limited.

Users should therefore treat this as a discrete 2023 instrument commencing upon registration and ending at the start of 1 October 2028, with conceptual linkages to ASIC's other takeover-related instruments but no internal amendment history in the text provided.

The instrument as provided contains no record of litigation. There are no cases cited in the instrument, no references to judicial interpretation, and no transitional judicial rulings recorded in the text.

• No cases named or cited. The instrument does not reference any judicial decisions or legal challenges. It is purely a delegated legislative instrument setting out an exemption.

• No interlocutory or declaratory history in the text. The instrument does not include transitional provisions that arose from litigation nor does it contain notes of contested application.

• Practical consequence. Because the instrument is an administrative exemption framed within the Act, any litigation that may arise in relation to its operation in future (for example disputes about whether a particular offer falls within the exemption) would be founded on the statutory definitions and the extant provisions of the Corporations Act. The instrument itself does not indicate any existing litigation precedents or guidance.

• Monitoring point. Practitioners should monitor any subsequent judicial treatment of the interaction between s 5 of this instrument and the Act’s other provisions (notably the provisions referenced in s 5 and the takeover/scheme processes referenced in s 4). The absence of litigation history in the instrument means that questions of statutory construction, the meaning of "offer for sale" in context, the precise application of 1012C(6) circumstances, or disputes about parcel calculations are unresolved in the instrument and would be resolved in the usual judicial forums if contested.

In short, the instrument contains no litigation history or case law references; it stands as an administrative exemption without recorded judicial engagement in the text provided.

The instrument’s limited scope, definitional precision and temporal limits create several operational pitfalls and points where parties can misstep if they do not read the text carefully.

• Narrow scope of the exemption. The exemption in s 5 removes compliance only with subsection 707(3), and only with subsection 1012C(3) insofar as that subsection would otherwise apply in the circumstances covered by subsection 1012C(6). Section 5(2) similarly only disapplies subsection 1012A(3) insofar as it applies to acquisitions by transfer in circumstances covered by subsection 1012C(6). The instrument therefore does not provide blanket relief from all on-sale disclosure obligations; it disapplies specific subsections and does so only to the limited extent described. Practitioners should not assume broader relief beyond the named subsections.

• Dependency on subsection 1012C(6). The exemption’s application to several of the disapplied duties depends on whether the offer or transfer occurs "in the circumstances covered by subsection 1012C(6) of the Act" (s 5(1)(b) and s 5(2)). The instrument does not itself define those circumstances. This creates a gating issue: whether the exemption applies in a given transaction depends on the content and application of s 1012C(6), which is external to the instrument. Users must therefore confirm that the factual circumstances of the offer or transfer fall within the scope of s 1012C(6).

• Facility disclosure requirement remains. Although the instrument exempts certain on-sale disclosure obligations, the definitions of security sale facility and the scheme facility explicitly require that the terms and conditions of the facility be disclosed in the bidder’s statement or explanatory statement (s 4(a)(ii) and s 4(b)(ii)). If those disclosures are not properly made, the exemption will not shield a person from other Act obligations and potential enforcement. The instrument therefore does not eliminate all disclosure obligations; it relocates some disclosures upstream into bidder’s statements and explanatory statements.

• Parcel definitions can be technical and time-sensitive. The minimum parcel may be defined in market operating rules or otherwise defaults to a $500 valuation using the closing price (s 4). For small parcels in Part 5.1 schemes the valuation uses the highest closing price during a period that begins on the day the explanatory statement is registered under subsection 412(6) and ends on the day an office copy of the Court order is lodged with ASIC under subsection 411(10) (s 4). These definitions require careful coordination with market data and with ASIC and Court filing dates. Mis-timing the valuation window or misapplying market rules can change who is a non-participant and therefore change who is affected by the facility and the exemption.

• Foreign holder carve-out for schemes. For Part 5.1 schemes, persons not offered scrip consideration because they are foreign holders are treated as non-participants (s 4(b)(i)(ii)(A)). That creates a common scenario where foreign holders are excluded from being offered scrip and therefore may receive cash proceeds from a nominee sale. Practitioners must check whether exclusion of foreign holders is necessary or optional under scheme terms and whether the exclusion triggers particular treatment under other regulatory regimes.

• Dependence on other ASIC instruments. The definitions contain notes that certain subsections are notionally inserted or substituted into the Act by ASIC Corporations (Takeover Bids) Instrument 2023/683 (s 4 notes). That means the practical availability of the exemption may depend on the content and operation of that other instrument. Parties should ensure both instruments are read together in transaction drafting.

• Sunset date. The instrument is repealed at the start of 1 October 2028 (s 6). Any arrangements that rely on the exemption must account for the sunsetting of the instrument. Offers, sales or recommendations executed after repeal will not benefit from the s 5 relief. There is no power within this instrument to extend the repeal date; any extension would require a new instrument.

• "Offer for sale" includes invitations. The definition that "offer for sale includes an invitation to purchase" (s 4) means that marketing solicitations or invitations to bidders/offerees could fall within the exemption’s scope or outside it depending on context. Parties should be careful in drafting communications to understand whether those communications constitute an "offer for sale" and whether the exemption is being invoked appropriately.

• No change to other legal obligations. The instrument does not address other legal frameworks such as exchange rules beyond parcel definitions, nominee fiduciary duties, tax consequences, continuous disclosure obligations unrelated to the specific disapplied subsections, or contractual obligations with registries and platforms. Parties should not construe the exemption as releasing them from obligations outside the named subsections.

These "gotchas" are concrete operational traps that follow directly from the instrument’s language: narrow disapplication, dependence on other statutory paragraphs and on other ASIC instruments, continuing upstream disclosure duties, technical parcel valuation rules and a fixed sunset. They will require careful transaction management and coordination with advisers, registries, ASIC registrations, and court lodgements.

The instrument’s text implies a clear compliance checklist focused on transaction design, disclosure drafting, parcel calculations and timing. Compliance is principally about ensuring that an intended sale of scrip consideration fits the instrument’s definitions and that the continuing disclosure and operational requirements are met.

1. Confirm qualification for the exemption.

   • Identify whether the securities to be offered for sale qualify as "scrip consideration" under s 4. If the securities are transferred to a nominee under an off-market bid, offered for sale through a security sale facility, offered for sale through a takeover-related small parcel sale facility, or issued under a right to acquire securities transferred or offered in accordance with those paragraphs, they fit the statutory definition.
   • Determine whether the particular offer for sale takes place in the circumstances covered by subsection 1012C(6) of the Act where the exemption depends on that. The instrument ties relief to that subsection; the instrument itself does not define 1012C(6), so confirm through the Act whether the factual circumstances match.

2. Draft bidder’s statement or explanatory statement to disclose facility terms.

   • Both defined facility types require that "the terms and conditions of the facility are disclosed in the bidder’s statement" (s 4(a)(ii)) or "in the explanatory statement for the scheme" (s 4(b)(ii)). Ensure the bidder’s statement or explanatory statement includes full and accurate terms of the security sale facility or scheme sale facility, including how the nominee will operate, sale mechanics, fees and expenses to be deducted, and the manner of distribution of net proceeds to non-participants.

3. Define and document nominee appointment and powers.

   • The facility definition requires appointment of a nominee and transfer to the nominee of scrip that is not acquired by non-participants (s 4). Draft appointment documents and transfer mechanics to ensure the nominee has the authority to sell the scrip or rights and to distribute proceeds, and ensure the nominee’s obligations are consistent with the facility terms disclosed.

4. Calculate minimum parcel and small parcel thresholds accurately.

   • For minimum parcel, check the market operating rules of any prescribed financial market on which the securities are quoted to see if "marketable parcel" or "minimum parcel" is defined; if not, use a $500 valuation based on the closing price on the relevant market (s 4).
   • For small parcel calculations in Part 5.1 schemes, calculate small parcels using the highest closing price published by the relevant financial market during the period beginning on the day the explanatory statement is registered by ASIC under subsection 412(6) and ending on the day an office copy of the Court order is lodged with ASIC under subsection 411(10) (s 4). Coordinate registrarial and court filings to ensure these dates are recorded and used correctly.

5. Identify non-participants and communicate options.

   • For takeover bids, identify holders who accepted an offer and elected not to acquire scrip consideration as non-participants (s 4). For schemes, identify persons who were offered and elected not to acquire, and those excluded because they are foreign holders or would otherwise receive a small parcel (s 4(b)). Communicate to those holders how their scrip or rights will be handled via the facility and the deductions that will be applied.

6. Ensure sales are executed and proceeds distributed per disclosed terms.

   • The nominee must sell the scrip or rights and distribute to non-participants their proportion of the proceeds net of expenses (s 4). Operational processes for sale, expense calculation, net distribution and payment to recipients should match the disclosed terms. Keep records showing sale dates, sale prices, expenses deducted and distributions paid.

7. Align communications with the "offer for sale includes an invitation to purchase" definition.

   • Where communications to holders include invitations to purchase, assess whether those communications constitute an "offer for sale" for the purposes of the instrument. Ensure those invitations are consistent with the facility terms disclosed and that exclusion or inclusion decisions are documented.

8. Coordinate with ASIC and court processes for timing-sensitive steps.

   • The small parcel valuation window depends on ASIC registration under subsection 412(6) and lodging of the court order under subsection 411(10) (s 4). Plan to obtain and record those filings and registration dates promptly and maintain documentary evidence to support parcel calculations.

9. Monitor the repeal date and plan for sunset.

   • The instrument is repealed at the start of 1 October 2028 (s 6). Schedule transaction milestones and communication strategies to ensure that offers for sale reliant on the exemption occur while the instrument is in force. If transactions may span the repeal date, obtain legal advice on fallback obligations post-repeal.

10. Read in conjunction with ASIC Corporations (Takeover Bids) Instrument 2023/683.

• The instrument’s notes say subsection 619(3) is notionally substituted and subsection 619(4) notionally inserted into the Act by Instrument 2023/683 (s 4 notes). Ensure that the mechanics presumed by this instrument are available under the takeover bid instrument and that the two instruments’ drafting aligns in practice.

11. Document legal positions and board resolutions.

• Obtain board-level approvals for use of the facility, document decision-making about offering scrip consideration, and retain signed copies of notices to holders and the disclosed facility terms. Keep legal analysis on whether the transaction facts meet the conditions tied to s 1012C(6).

12. Keep records for potential regulatory review.

• Because the instrument disapplies particular disclosure duties but does not eliminate ASIC’s supervisory role, maintain thorough records of disclosure to bidders, explanatory statements, sale mechanics, parcel calculations, nominee appointment, sales and distributions to support the position that the exemption was correctly applied.

This is a text-driven compliance checklist grounded in the instrument. Parties should not assume the exemption removes other legal obligations, and should integrate the above steps into their standard takeover and scheme operating procedures.