3.—(1) Where a person makes the initial offer of units or derivatives of units in the Fund in any of the circumstances specified in section 282X(1)(a), (b), (c), (f) and (g) of the Act, he shall, subject to the conditions set out in paragraph (3), be exempt from the requirements under Subdivision (2) of Division 1A of Part XIII of the Act (other than section 282Q of the Act).(2) Where a person makes the initial offer of units or derivatives of units in the Fund in circumstances other than the circumstances specified in section 282X(1)(a), (b), (c), (f) and (g) of the Act —| (a) | he shall, subject to the conditions set out in paragraph (3) and the First Schedule, be exempt from —| (i) | the requirement under section 282C(1)(a) of the Act for the Fund to be a registered business trust; and | | (ii) | the requirements under sections 282F, 282G, 282L and 282T of the Act; and |
| | (b) | he shall, subject to the conditions set out in paragraph (6), be exempt from the requirements under section 282I(1) of the Act in respect of a relevant statement which —| (i) | is not made in connection with the offer concerned; | | (ii) | is not made for the sole benefit of the Fund; | | (iii) | does not relate specifically to the affairs of the Fund; and | | (iv) | is a correct and fair copy or a representation of, or an extract from, a statement made or information published by a source which the persons signing the prospectus or profile statement reasonably believe to be reliable. |
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(3) For the purposes of paragraphs (1) and (2)(a), the conditions are that —| (a) | no distribution is made out of the Fund to the holders of the units in the Fund unless the board of directors of the responsible entity issue a written statement that they are satisfied on reasonable grounds that, immediately after making the distribution, the Fund is able to fulfil the liabilities incurred by the responsible entity on behalf of the Fund as these liabilities fall due; | | (b) | the Fund is a managed investment scheme within the meaning of and is regulated as such under the Australia Corporations Act; | | (c) | the responsible entity shall ensure that the assets of the Fund are held separate and distinct from the assets of the responsible entity and the assets of all other schemes managed by the responsible entity; | | (d) | the responsible entity has procured an independent legal opinion that, in the event that the responsible entity becomes insolvent or is in financial difficulties, the constitutive documents of the Fund, read with the law governing the management and operation of the Fund —| (i) | do not enable, authorise or allow the responsible entity or its liquidator, provisional liquidator, receiver, receiver and manager, judicial manager, or an equivalent officer to apply; or | | (ii) | prohibit any of them from applying, |
| directly or indirectly the assets of the Fund to fulfil any liability incurred by the responsible entity, other than a liability incurred in managing or operating the Fund; |
| | (e) | the responsible entity has confirmed in writing to the Authority that the constitutive documents of the Fund, read with the prevailing law governing the management and operation of the Fund —| (i) | do not, and will not at any time during the period of the validity and operation of the Fund, enable, authorise or allow the responsible entity or its liquidator, provisional liquidator, receiver, receiver and manager, judicial manager, or an equivalent officer to apply; or | | (ii) | prohibit, at all times during the period of validity and operation of the Fund, any of them from applying, |
| the assets of the Fund to fulfil any liability incurred by the responsible entity (other than a liability incurred in managing or operating the Fund), in the event that the responsible entity becomes insolvent or is in financial difficulties; |
| | (f) | the responsible entity has included in the prospectus for the offer of units in the Fund —| (i) | the independent legal opinion referred to in sub-paragraph (d); or | | (ii) | a statement that such independent legal opinion has been obtained; |
| | (g) | the responsible entity shall not, without the prior approval of a majority of the number of votes of the holders of units in the Fund who, being entitled to do so, vote in person or, where proxies are allowed, by proxy present at a general meeting, exercise any power —| (i) | to issue units in the Fund; or | | (ii) | to make or grant an offer, agreement or option which would or might require units in the Fund to be issued; and |
| | (h) | the Fund has a primary listing on the Australian Stock Exchange. |
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(4) For the purposes of paragraph (3)(g), approval for the responsible entity to exercise any power to issue units in the Fund or to make or grant an offer, agreement or option which would or might require units in the Fund to be issued shall be deemed to have been given by a holder of units in the Fund (referred to in this paragraph as the relevant units) and at the time such holder subscribes for or purchases the relevant units if, and only if —| (a) | a statement of such deeming effect has been disclosed in a prominent place on the front page of the prospectus for the offer of the relevant units in Singapore; and | | (b) | either —| (i) | ASX Listing Rule 7.1 does not apply to the issue of units in the Fund or the making or grant of the offer, agreement or option by virtue of an exception set out in ASX Listing Rule 7.2; or | | (ii) | the aggregate of the number of units in the Fund to be issued and the total number of units in the Fund that have been issued within the period of 12 months preceding the date of the first-mentioned issue (or such other period as may be specified in ASX Listing Rule 7.1) does not exceed 15% of the total number of units in the Fund (or such other proportion of the total number of units in the Fund as may be specified in ASX Listing Rule 7.1). |
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(5) The reference to units in the Fund that have been issued in paragraph (4)(b)(ii) excludes the following:| (a) | units the issue of which were not subject to ASX Listing Rule 7.1 by virtue of an exception set out in ASX Listing Rule 7.2; and | | (b) | units that have been issued with the approval (not being a deemed approval referred to in paragraph (4)) of holders of units in the Fund. |
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(6) For the purposes of paragraph (2)(b), the conditions are that —| (a) | the expert who made the relevant statement, or on whose statement the relevant statement is based, is a person whom the persons signing the prospectus or profile statement reasonably believe to be an expert who —| (i) | has no material interest in the success of the issue or sale of the units or derivatives of units in the Fund; and | | (ii) | is not acting at the instigation of, or by arrangement with, the responsible entity (acting in its capacity as the responsible entity), a director of the responsible entity, a proposed director of the responsible entity, or a person who has a material interest in the success of the issue or sale of the units or derivatives of units in the Fund; and |
| | (b) | wherever the relevant statement appears in the prospectus or profile statement, there shall be included in the prospectus or profile statement, as the case may be —| (i) | a statement that the expert has not consented to the inclusion of the relevant statement for the purposes of section 282I of the Act and is thereby not liable for the relevant statement under sections 282N and 282O of the Act; | | (ii) | any disclaimer made by the expert in relation to reliance on the contents of the relevant statement which the persons signing the prospectus or profile statement, as the case may be, are reasonably aware; | | (iii) | a statement as to whether the persons signing the prospectus or profile statement, as the case may be, have verified the accuracy of the contents of the relevant statement; | | (iv) | a statement as to whether the persons signing the prospectus or profile statement, as the case may be, have included the relevant statement in its proper form and context in the prospectus or profile statement, as the case may be; and | | (v) | a proper citation identifying the source of, and the location within the source of, the relevant statement, including, where available, the following details of the source:| (A) | each author or editor; | | (B) | the title; | | (C) | the publication date and every revision date; and | | (D) | where the source is published on an Internet website, the uniform resource locator (URL) and version date. |
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