ASIC Corporations (Takeovers—Accelerated Rights Issues) Instrument 2026/102

The instrument is narrowly focused; its main concepts are accelerated rights issues, exemptions under s 611, the new table item 10A, exempt investor, rights, and the specified disregarded matters. The Act’s general takeover prohibition on acquisitions of relevant interests in voting shares (Part 6.2) remains the background; the instrument provides a bespoke exception for particular issue structures that meet pre-existing item 10 conditions except for some features typical of accelerated rights structures (see s 5 and s 7).

Accelerated rights issue: The instrument does not attempt a free‑standing statutory definition labelled "accelerated rights issue". Instead, it tackles the mechanics that distinguish accelerated rights issues from ordinary rights issues by prescribing which departures from item 10’s paragraphs (d) and (e) are to be disregarded when testing whether an issue qualifies for the item 10 exception. Those departures are (a) preferential timing and truncated acceptance periods for "exempt investors", (b) issuance to exempt investors up to two months before issuance to non-exempt offerees, and (c) differential tradability of rights on a declared financial market between exempt and non-exempt offerees (s 7(a) insertion).

Item 10 exception and its modification: Item 10 in the table in s 611 is a pre-existing exception to the general prohibition in s 606 (this instrument references that framework in its simplified outline, s 5). The new item 10A operates as an amendment which treats an acquisition resulting from a securities issue as falling within the item 10 exception where the issue satisfies all item 10 conditions, with the specified disregarded features not counting against compliance with paragraphs (d) and (e) of item 10 (s 7(a) inserted text).

Exempt investor and rights: The instrument defines "exempt investor" by reference to the Act’s existing disclosure exemptions and wholesale client status: it is a person offered securities under circumstances not requiring disclosure under Part 6D.2 because of subsections 708(8) to (12), or a wholesale client as defined in s 761G (s 7 insertion). "Rights" means rights to be issued securities under the offers (s 7 insertion). The instrument relies on the Act for those statutory cross‑references.

Declared financial market and transitional note: The instrument notes that "declared financial market" is defined in s 9D of the Act and includes a transitional rule for markets previously prescribed by regulation, via s 1705F (note under the inserted text in s 7). This ties the tradability aspect to recognised markets under the Act.

Underwriter and sub‑underwriter acquisitions: The inserted item 10A expressly extends to acquisitions by a person as underwriter or sub-underwriter to the issue (s 7 insertion). Finally, the instrument amends subsections 615(1) and (2) to ensure the exceptions in items 10 and 10A are both captured by subsection 615’s language as to when those exceptions apply notwithstanding the condition wording in item 10 (s 7(b)).

The instrument’s scope identifies several discrete groups whose legal position is altered or clarified. First, issuers proposing rights offers and their boards and advisers are directly affected: the instrument permits certain accelerated features that would otherwise fail item 10’s paragraphs (d) and (e) to be disregarded when testing the exception in s 611 (s 7 inserted item 10A). That changes the compliance calculus for an issuer arranging a rights issue that seeks to rely on the takeover-related exception in item 10.

Second, exempt investors are singled out. The instrument defines "exempt investor" as persons who are offered securities in circumstances that do not need disclosure under Part 6D.2 because of subsections 708(8) to (12), or persons offered securities as wholesale clients as defined in s 761G (s 7 insertion). Practically, that means certain institutional investors, sophisticated investors or wholesale clients (as characterised by the Act) may receive preferential treatment in timing and tradability of rights under the terms of the instrument.

Third, non-exempt offerees, meaning persons to whom securities are offered who do not meet the exempt investor definition, are affected by the instrument’s specific treatment of trading rights: item 10A contemplates that non-exempt offerees will be able to trade rights on a declared financial market until a specified time for acceptances closes, whereas exempt investors may not be able to trade rights (s 7 insertion, clause (c)(i)-(ii)). That creates a legal distinction in market treatment within an offer.

Fourth, underwriters and sub-underwriters are explicitly within the instrument’s scope: the modified exception “extends to an acquisition by a person as underwriter to the issue or sub-underwriter” (end of insertion in s 7). That means acquisitions by underwriters of securities issued under accelerated rights issues are treated as falling within the modified item 10A exception where the other conditions are satisfied.

Fifth, market operators and brokers dealing in rights on “declared financial markets” are implicated because the instrument ties the tradability issue to such markets as defined in s 9D and transitional provision s 1705F (note following the insertion in s 7). Those operators must work within the offer terms that differentiate tradability between classes of offerees.

Finally, ASIC (the regulator) and the delegate who made the instrument are parties to the structural change: the instrument is made under s 655A(1) of the Act (s 3) and will be administered through the Act’s Chapter 6 enforcement and regulatory regime as modified by the instrument (s 7 opening words). The instrument’s temporal framing (commencement at registration or 1 April 2026 and repeal at 1 April 2031) also affects stakeholders’ planning horizons (ss 2, 8).

All of these effects are mechanical: who may receive offers earlier, who may have rights tradable on a declared market, and whether acquisitions by underwriters count as falling within the s 611 exception are changed by the insertion and textual amendment in s 7.

The instrument does not itself create new duties framed as criminal or civil obligations; rather it alters the statutory test under which certain acquisitions arising from rights issues are treated as exempt from Chapter 6 takeover prohibitions. The operative statement is that "Chapter 6 of the Act applies to all persons as if Part 6.2 of the Act were modified or varied as follows" and then specifies the textual changes (s 7). The change affects rights, duties and entitlements in the following concrete ways.

Who may do what: Where an issue of securities satisfies all of item 10’s conditions except for the matters set out in the inserted item 10A, that acquisition may be treated as falling within the item 10 exception and therefore will not contravene the general acquisition prohibition in Part 6.2 for the purposes of the Act (s 7 insertion). That means persons acquiring shares by subscription under the offers,whether ordinary offerees, exempt investors, underwriters or sub-underwriters,can acquire relevant interests in voting shares without triggering the s 606 prohibition if the issue is packaged to meet item 10 plus the 10A disregards.

Treatment of exempt investors: The instrument permits issuers to offer securities to exempt investors before other persons, or to give exempt investors a shorter acceptance period, without that timing difference defeating the item 10 test (s 7 insertion, clause (a)). It also permits the issuer to issue securities to exempt investors up to two months before securities are issued to other persons who are not exempt investors (clause (b)), again without those timings defeating item 10 compliance. Those features are rights granted by the modified statutory test: issuers and exempt investors can structure offers with those timing differentials and rely on the modified exception.

Trading of rights: The instrument allows a structure in which non-exempt offerees can trade rights on a declared financial market until a specified time for acceptances closes, while exempt investors are not able to trade rights (clause (c)(i)-(ii)). Practically, the instrument recognises and permits asymmetric tradability as a permissible feature that does not defeat the item 10 exception. That creates a particular market configuration that issuers, market participants and advisers must design and document within the offer terms.

Underwriters and sub-underwriters: The insertion expressly states the modified exception "extends to an acquisition by a person as underwriter to the issue or sub-underwriter" (s 7 insertion). Therefore an underwriter’s acquisition of securities in satisfaction of underwriting obligations is within the exception where the issue otherwise satisfies item 10 and the disregarded matters apply as permitted.

Interaction with subsection 615: The instrument amends subsections 615(1) and (2) to expand the textual reach of those subsections from item 10 to items 10 and 10A, clarifying that the exceptions created in both items are to be treated as applying "even though the conditions set out in [item 10]",that is, to capture the modified understandings of those conditions when testing reliance on the exception (s 7(b)). Practitioners should note that this is a textual change in the way subsection 615 operates when assessing whether the exception applies notwithstanding wording in item 10.

Documentary and disclosure duties: The instrument itself does not amend Part 6D.2 disclosure obligations; it defines "exempt investor" by reference to existing disclosure exemptions (s 7 insertion). Therefore, the issuer’s duty remains to determine whether a recipient falls within the disclosure exemption categories in subsections 708(8)-(12) or is a wholesale client under s 761G, and to abide by the offer terms that set out acceptance periods, timing of issue, and tradability of rights. Those determinations carry legal consequences because they determine whether the issuer can rely on item 10A as inserted.

Time-limited nature of the rights: The instrument is temporary in operation (s 8), so rights and duties it creates or admits into the statutory framework apply only while the instrument is in force, namely from commencement to repeal (ss 2, 8). That affects long-term contractual and compliance planning for issuers and advisers.

The instrument does not itself create new penalties or enforcement mechanisms. It operates by modifying how Chapter 6 of the Corporations Act applies,specifically, Part 6.2,so the enforcement and penalty framework remains that of the Act (s 7 opening words). The instrument does not list civil or criminal sanctions, nor does it add bespoke enforcement powers; instead, it changes the statutory test under which an acquisition may be treated as falling within an existing exception to the takeover acquisition prohibition in s 611 (s 7 insertion). Consequently, enforcement will follow whatever provisions of Chapter 6 apply to contraventions of the acquisition prohibition and related takeover rules, as those provisions operate after the modification specified in the instrument.

Subsection 615(1) and (2) textual change: The instrument amends subsections 615(1) and (2) to read as if the exceptions in items 10 and 10A apply even though the conditions set out in item 10 are stated in a particular way (s 7(b)). Any compliance failure arising from misapplication of the amended subsection 615 would therefore be assessed against the modified statutory language. The instrument alters the interpretive context; enforcement decisions will apply the modified wording when determining if an exception was available.

Regulatory oversight and instrument-making authority: The instrument was made under subsection 655A(1) of the Corporations Act (s 3). That is a parliamentary delegation of law-making authority to ASIC enabling the regulator to modify the operation of Part 6.2 in prescribed ways. Enforcement decisions, however, are routed through the Act’s standard enforcement architecture rather than through this instrument directly.

Time-limited repeal and retrospective risk: The instrument includes a repeal date (s 8). The instrument does not specify transitional enforcement arrangements on repeal; therefore, the treatment of offers, allocations and acquisitions made while the instrument is in force will depend on the Act as modified at the relevant time. Any enforcement action concerning conduct during the instrument’s operation will therefore examine whether the acquisition satisfied the modified tests in item 10A in force at that time.

No additional civil remedies or penalties are created: Because the instrument modifies statutory tests rather than creating novel offences, practitioners should treat existing civil and criminal provisions of the Corporations Act as the relevant enforcement mechanisms. The instrument itself does not change penalties, it changes the circumstances in which Chapter 6 prohibits or permits acquisitions.

This instrument is explicitly framed as modifying Part 6.2 of the Corporations Act 2001, so its principal legal interaction is with the Act itself and the specific sections to which it refers. The instrument is made under subsection 655A(1) of the Act (s 3), and it inserts item 10A into the table in section 611, amends subsections 615(1) and (2) and leaves the rest of Chapter 6 operative as if modified (s 7). The instrument also cross-references other statutory provisions for definitions and context that remain in the Act: subsections 708(8) to (12) in Part 6D.2 regarding disclosure exemptions, section 761G defining wholesale clients, section 9D defining declared financial market, and section 1705F providing a transitional rule for declared financial markets (note in inserted text). Those cross-references mean the instrument requires users to consult the Act for operational definitions and related obligations.

Interaction with disclosure law: The instrument’s definition of "exempt investor" points directly to Part 6D.2 disclosure exemptions (s 7 insertion). The instrument therefore interacts with the disclosure regime by making reliance on the exemption in item 10A conditional upon the issuer’s correct use of the disclosure exemptions in Part 6D.2. The instrument does not alter Part 6D.2; it relies on it. Practitioners must therefore ensure the offer’s disclosure profile is consistent with the circumstances listed in subsections 708(8)-(12) or wholesale client status under s 761G.

Interaction with market regulation: The instrument ties tradability of rights to the concept of a "declared financial market" (note under s 7 insertion) and cites the Act’s definition and a transitional provision (s 9D and s 1705F). That links the instrument’s operation to the regime governing the recognition and regulation of financial markets under the Act, and to any relevant regulations. It therefore interacts with market licensing and listing rules indirectly, insofar as tradability on a declared financial market is a permitted feature of the offer structure the instrument contemplates.

Interaction with existing ASIC instruments: The instrument repeals the earlier ASIC Corporations (Takeovers,Accelerated Rights Issues) Instrument 2015/1069 in full (Schedule 1). That is an internal regulatory housekeeping interaction: this instrument replaces or updates the 2015 instrument’s function for the period it is in force (see Schedule 1, and s 8). The repeal means that practitioners should not rely on the 2015 instrument once this instrument commences.

Temporal interaction with statutory delegation: The instrument is made under delegated authority in subsection 655A(1) (s 3). That statutory delegation interlocks with the legislative architecture by which ASIC may make legislative instruments modifying the application of Part 6.2. The instrument’s validity and operation therefore interact with the limits of that delegated authority, though the instrument itself does not elaborate those limits.

No express interaction with penalties or civil remedies: The instrument does not amend penalties or remedies in the Act; instead, it affects whether certain acquisitions fall within an exception to takeover prohibitions. Consequently, its interaction with enforcement statutes is indirect: it changes the statutory conditions that determine whether existing Chapter 6 prohibitions and sanctions are engaged.

In summary, the instrument is designed to operate within the Act’s existing architecture: it modifies the application of takeover exceptions, relies on existing disclosure, market and client-status provisions and replaces a prior ASIC instrument on the same subject. To understand the full legal effect, a user must read the instrument in concert with the referenced Act provisions.

This instrument is self-contained and short as to amendment history. It was made on 23 March 2026 and commences on the later of registration and 1 April 2026 (s 2). It expressly repeals the earlier ASIC Corporations (Takeovers,Accelerated Rights Issues) Instrument 2015/1069 in full (Schedule 1). The instrument itself is time-limited: it is repealed effective at the start of 1 April 2031 (s 8).

Key amendment actions effected by the instrument:

• Insertion of a new table item 10A in section 611 of the Corporations Act (s 7(a)). The insertion changes how acquisitions resulting from certain issues of securities are treated for takeover purposes, by directing that particular features of accelerated structures be disregarded when testing paragraph (d) and (e) of item 10.

• Amendment of the wording of subsections 615(1) and (2) to ensure that the exceptions in both items 10 and 10A apply even though the conditions set out in item 10 are expressed in a certain way; the text of subsection 615 is changed to substitute "The exceptions in items 10 and 10A of the table in section 611 apply..." in place of the former reference only to item 10 (s 7(b)). This is a technical amendment to the interplay between the exceptions and s 615’s saving provision.

• Repeal of the 2015 instrument (Schedule 1). The Schedule provides for the whole of ASIC Corporations (Takeovers,Accelerated Rights Issues) Instrument 2015/1069 to be repealed. There is no further transitional text in the instrument that purports to preserve the effect of the 2015 instrument beyond the commencement of this instrument; the 2015 instrument is entirely repealed (Schedule 1).

No other amendments to the Act are made by this document beyond the textual modifications described in s 7. The instrument’s limited life span (commencement date and repeal date) is part of its amendment history: it inserts temporary modifications to the operation of Part 6.2 for the operative period between commencement and repeal (ss 2, 8). Users should therefore track whether the instrument is re-made, allowed to lapse, or replaced at or before 1 April 2031.

The instrument’s authority is recorded: it is made under subsection 655A(1) (s 3), which is the delegating provision enabling ASIC to make such a legislative instrument. The instrument does not record any prior amendments to itself (it is freshly made), nor does it reference any other instruments except to repeal the 2015 instrument.

Practitioners should note that the instrument’s amendment effect is narrowly targeted and temporal: it changes how Chapter 6 applies during its operative period and removes the earlier ASIC instrument from the statute book, but it does not purport to make permanent amendments to the Corporations Act itself.

The instrument does not record any litigation history. It contains no references to court or tribunal decisions, nor to settled or pending litigation, and it does not cite case law (see full instrument). Because it operates by statutory modification rather than by administrative enforcement language, the instrument itself is a legislative instrument rather than an enforcement determination or adjudication.

While the instrument contains no litigation record, it introduces discrete interpretive points that could be the subject of future litigation or regulatory dispute if parties disagree about the application of item 10A to a particular accelerated rights issue. Those interpretive points are clear in the instrument and are therefore the natural loci for disputes:

• The meaning and application of "exempt investor" as defined by reference to subsections 708(8)-(12) and section 761G: disputes could arise about whether a particular offeree falls within the disclosure exemptions or the wholesale client definition cited in the instrument (s 7 insertion).

• The reach of the instruction to "disregard the following matters" when testing whether the offers satisfy the conditions set out in paragraphs (d) and (e) of item 10. Litigation could address whether certain fact patterns fall within the specific disregarded matters (timing differences, up-to-two-month early issue to exempt investors, and differential tradability), or whether they are materially different and therefore not covered by the disregard (s 7 insertion).

• The interpretation of the two-month rule in item 10A(b): legal disputes might focus on the precise calendar calculation of "no earlier than 2 months before" and whether circumstances such as partial issues, tranche settlements, or deferred settlement dates meet that timeframe (s 7 insertion).

• The clause that non-exempt offerees "are able to trade rights on a declared financial market until a specified time for acceptances of offers has closed" and that exempt investors "are not able to trade rights" in a given structure (s 7 insertion, clause (c)(i)-(ii)). Questions about what constitutes a "declared financial market" in practice and when the specified time for acceptances is fixed could lead to interpretive disputes. The instrument’s note cross-references s 9D and s 1705F for the definition of declared financial market.

• Issues as to whether acquisitions by underwriters or sub-underwriters properly fall within the scope of the modified exception in cases where underwriting arrangements are complex or where allocations to underwriters are effected in stages (s 7 insertion).

Because the instrument modifies the statutory test rather than imposing new penalties, litigation would likely concern interpretation and whether the statutory facts satisfy the modified exception; decisions would be anchored in the instrument’s text read with the referenced provisions of the Act. There is no litigation history in the instrument itself to report.

The instrument’s targeted modifications create a small set of traps and technical pitfalls that practitioners, issuers and advisers should watch for. The instrument is precise in its language; a failure to observe its narrow terms can be dispositive in whether an acquisition qualifies for the s 611 exception as modified.

1. Reliance on cross‑references: The instrument defines "exempt investor" by reference to subsections 708(8)-(12) and section 761G (s 7 insertion). Those sections are in Part 6D.2 and elsewhere in the Act; they delineate disclosure exemptions and the wholesale client tests. A common mistake would be to treat "exempt investor" as an ad hoc commercial category rather than a statutory one. If an issuer misclassifies recipients and some are not genuinely within the cross-referenced categories, the rationale for disregarding the matters in item 10A will not apply to those recipients (s 7 insertion).

2. Timing arithmetic and the two-month ceiling: Item 10A(b) allows securities to be issued to an exempt investor before securities are issued to other persons, "provided that under the terms of the offers any such issue to an exempt investor is to occur no earlier than 2 months before the issue of securities to other persons who are not exempt investors" (s 7 insertion). Practitioners must document and manage the exact timing terms in the offer; an uncontrolled early allocation or an ambiguous offer term could exceed the two-month limit and thereby void reliance on the modification.

3. Tradability asymmetry must fit the clause: Item 10A(c) contemplates that non-exempt offerees can trade rights on a declared financial market until the specified time for acceptances closes, while exempt investors cannot trade rights (s 7 insertion, clause (c)(i)-(ii)). This asymmetry must be reflected in the offer mechanics and market arrangements. If, for example, rights are inadvertently tradable by an exempt class, or market practice results in de facto trading outside the specified arrangements, that may undermine the reliance.

4. Declared financial market definition and transitional rule: The instrument’s note references s 9D and s 1705F for declared financial market (s 7 note). In the early period before a declaration under s 9D, a market previously prescribed by regulation is treated as a declared financial market under s 1705F. Misreading this transitional mechanism or assuming any trading venue qualifies could lead to non-compliance with the condition in clause (c)(i).

5. Underwriter and sub-underwriter acquisitions: The instrument extends the modified exception to underwriters and sub-underwriters (s 7 insertion). However, the scope of that extension depends on the underwriting arrangement being captured by the offer terms and by satisfying the item 10 conditions (subject to the specified disregards). Complex underwriting allocations, partial subscriptions, or contingent underwriting obligations could raise factual questions about whether the acquisition truly "results from an issue of securities" described in item 10A.

6. Temporal effect and repeal: The instrument will be repealed at 1 April 2031 (s 8). Issuers who enter into long-dated arrangements that assume the instrument’s continued operation may be exposed to changed legal tests after repeal. There is no transitional wording preserving rights beyond the repeal date in the instrument itself.

7. Narrow scope of the disregard: The insertion instructs to "disregard the following matters" for the purpose of determining compliance with paragraphs (d) and (e) of item 10 (s 7 insertion). The instrument does not state a general licence to depart from item 10 in any other way. Practitioners must not assume broader tolerances exist beyond the three explicit points specified.

8. Document drafting precision: Because the instrument’s relief is conditional on terms of offers (for example, that issue to an exempt investor is to occur no earlier than two months before issue to other persons), offer documentation must reflect those precise terms. Loose drafting or inconsistent documentation could result in non-availability of the modified exception.

9. No change to disclosure obligations per se: The instrument relies on existing disclosure exemptions; it does not modify Part 6D.2 (s 7 insertion and s 5). Confusing the instrument’s toleration of accelerated mechanics with a waiver of disclosure obligations would be an error.

10. Interaction with subsection 615: The amendment to subsections 615(1) and (2) expands the language to include items 10 and 10A (s 7(b)). Practitioners should ensure they read the amended subsections in their revised form when assessing whether an exception applies "even though" the conditions are phrased as they are in item 10.

These "gotchas" are all textually rooted in the instrument. The common theme is that the instrument provides tightly circumscribed tolerances for typical accelerated structures, but those tolerances are conditional on precise facts and precise drafting of offer terms and market arrangements.

Compliance under this instrument is largely a matter of structuring and documenting the rights offers and associated market arrangements so the acquisition results "from an issue of securities that satisfies all of the conditions set out in item 10," subject to the specific disregards set out in the new item 10A (s 7 insertion). The following steps are grounded in the instrument’s text.

1. Confirm eligibility of offerees as "exempt investors": For any offeree intended to receive the preferential treatment contemplated by the instrument, confirm they meet the statutory criteria referenced in item 10A: either they are offered securities in circumstances that do not need disclosure under Part 6D.2 because of subsections 708(8)-(12), or they qualify as a wholesale client as defined in s 761G (s 7 insertion). Maintain documentary evidence of the basis for each offeree’s classification.

2. Draft offer terms expressly and consistently: The instrument’s modifications operate "provided that" the offer satisfies item 10 conditions with the specified disregards. Draft the offer’s terms to: (a) set out the acceptance periods, including any shorter periods for exempt investors; (b) document the timing of planned issues so that any issue to exempt investors occurs no earlier than two months before issue to non-exempt offerees; and (c) specify whether rights for non-exempt offerees will be tradable on a declared financial market and whether exempt investors’ rights will be non‑tradable (s 7 insertion, clauses (a), (b), (c)). The two-month limit is a hard temporal boundary in the inserted text.

3. Structure tradability arrangements around declared financial markets: If the offer contemplates tradability for non-exempt offerees, ensure that the market in question is a "declared financial market" per s 9D or falls within the transitional coverage of s 1705F (note under s 7 insertion). Coordinate with market operators and brokers to ensure rights are tradable only in the permitted class and only until the specified time for acceptances closes.

4. Underwriting allocations: Where underwriters or sub‑underwriters are to receive securities, ensure underwriting arrangements are documented so the acquisition by the underwriter "results from an issue of securities" falling within the offer terms described in item 10A (s 7 insertion). Confirm that the underwriting acquisition is effected under the offer’s timing and acceptance terms that track the instrument’s conditions.

5. Retain audit and compliance records: Keep contemporaneous records showing the timing of offers, acceptances, allocations and any rights trading. The instrument’s safe harbour is factually contingent; documentary proof that the two‑month limit, acceptance periods, and tradability arrangements were as stated will support reliance on the modified exception.

6. Coordinate disclosure analysis: The instrument does not alter Part 6D.2. Conduct a formal disclosure assessment to determine whether the offers to non-exempt offerees require a disclosure document, and document the legal basis for treating some recipients as falling within subsections 708(8)-(12) or as wholesale clients under s 761G (s 7 insertion). Errors in treating recipients as exempt may eliminate entitlement to the modification.

7. Update takeover and corporate advisers: Boards and advisers should be briefed on the way the modified item 10A interacts with takeover constraints and subsection 615’s amended wording (s 7(b)). Ensure that any takeover advice or communications with shareholders reflect the offer mechanics and the legal basis for treating acquisitions as falling within the modified exception.

8. Plan for the instrument’s time limits: The instrument commences on the later of registration and 1 April 2026 and is repealed at 1 April 2031 (ss 2, 8). If an issuer is planning arrangements across the repeal date, obtain legal advice on the treatment of allocations and acquisitions after repeal. Do not assume the instrument will be re-made.

9. Avoid collateral departures from item 10: The instrument only permits the specified disregards for paragraphs (d) and (e) of item 10. Make sure the offer otherwise satisfies all item 10 conditions as they stand; do not rely on the instrument to excuse unrelated non-compliance with item 10.

10. Engage early with market counterparties: Because the instrument’s permitted structure can involve differential trading rights and timing, coordinate with market operators, clearing and settlement facilities, and brokers to ensure the offer’s market mechanics can be implemented operationally in the precise way documented.

If these steps are followed and documented, an issuer or arranger will have the factual record on which to justify reliance on the modified exception in item 10A. The instrument is technical and fact-dependent; compliance is primarily a matter of correct classification of offerees, precise timing, consistent offer documentation, and operational coordination with markets and underwriters.