Governor Olli Rehn: Dialling back monetary restraint
Private & public capital raisings pjm presentation
1. Private & Public Company Capital Raisings – Legal Issues Paul Miller Partner, Deutsch Miller Institute of Chartered Accountants Tuesday, 8 June 2010 Disclaimer: This presentation provides a general overview only of the topic materials and should not be treated as or relied upon as professional advice.
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3. s706 – an offer of securities for issue needs disclosure to investors under this Part unless section 708 or 708AA says otherwise
49. For unquoted shares - only a very vanilla advertising “tombstone” statement is allowed
50. For quoted securities – due to general regulation of information, limited regulation on advertising – requirement to refer to availability of disclosure document 8
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52. ASIC’s view: a meeting or telephone call is “unsolicited” unless it takes place in response to a “positive specific or informed request”9
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54. Specific civil and criminal liability under the Corporations Act for defective disclosure documents – Part 6D.3 - fault based liability
55. Key provision is s728 – re disclosure documents - covers misleading/deceptive statements, omissions or new circumstances
56. A contravention may lead to a liability to compensate investors. Contravention may also lead to criminal liability
57. Defences: due diligence (made all enquiries); lack of knowledge; reasonable reliance (expert’s report); and other defences10
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59. Covers any misleading conduct in relation to a financial product or financial services. Engaging in conduct includes: dealing in a financial product; and issuing a financial product
60. Overlap with s12DA of the ASIC Act – which applies to conduct in trade or commerce in relation to financial services
70. Limitations on type of persons who can invest and amount of money that can be invested
71. No restrictions on advertising to “sophisticated persons” – note 20/12 offers are restricted
72. No due diligence defences available for misleading or deceptive conduct13
73. Paul Miller Paul is a Corporate Partner at corporate and commercial boutique Sydney law firm Deutsch Miller, which specialises in transactional, advisory and litigation work. Paul has around 10 years experience as a partner at top firms in both Australia and the UK advising listed and unlisted companies on various fundraising transactions. Paul left Atanaskovic Hartnell, a leading Sydney boutique firm, last year with 2 other partners to set up Deutsch Miller. Paul has significant transactional experience obtained in the Sydney and London markets across the full spectrum of transactional and advisory work, in areas that include capital raisings, flotations, joint ventures, mergers & acquisitions, MBOs, venture capital/private equity and a variety of commercial contracts. Deutsch Miller acts for corporates, boards, individual directors/ officers and high net worth individuals. Contact Details: paul.miller@deutschmiller.com 02 9210 7773 www.deutschmiller.com 14