This Notice contains important information that should be read carefully by Participants and deals expressly with the Financial Products of BIQ and restrictions attaching to its Financial Products.
The following class of Financial Products has been included in Schedule 1 of the ASX Settlement Operating Rules as a FOR Financial Product effective Friday, 22 December 2017.
CHESS Depositary Interests (1 CDIs: 1 share) – U.S. Person Prohibited
What do I need to do and by when?
The CHESS Depositary Interests (CDIs) of BIQ (“BIQ's Financial Products”) are not permitted to be acquired at any time by, or for the account of benefit of, any U.S. Person (Annexed to this Notice is the full text of the definition of U.S. Person).
In order to ensure that foreign ownership restrictions can be monitored and that BIQ's Financial Products are not acquired by or for the account or benefit of any U.S. Person, ASX Settlement has agreed:
(a) To classify BIQ's Financial Products as FOR Financial Products under the ASX Settlement Operating Rules and to include BIQ's Financial Products in Schedule 1 of the ASX Settlement Operating Rules Procedures;
(b) To implement certain additional procedures as contemplated in Guidance Note 7 of the ASX Listing Rules (US Entities – Regulation S Offerings on ASX) and Guidance Note 13 of the ASX Settlement Operation Rules (Financial Products subject to Foreign Ownership Restrictions) in relation to BIQ's CDIs.
The following conditions apply to BIQ Financial Products as FOR Financial Products:
A “Foreign Person” is an “U.S. Person” as that term is defined in the annexure to this Notice.
Level of Foreign Ownership
The relevant Foreign Person ownership level is zero.
This means that no U.S. Person, as that term is defined, may acquire BIQ Financial Products (Existing stockholders of BIQ , including U.S Persons, may convert BIQ shares of common stock to CDIs where such shares are not subject to escrow or other restrictions on transfer under the U.S. Securities Act of 1933, as amended. ASX Settlement recommends seeking independent professional advice with respect to these holdings.)
BIQ's Financial Products are being offered and will be traded on the ASX market in reliance on the safe harbour provisions of Regulation S under the U.S. Securities Act of 1933 as amended. The status of FOR Financial Products to BIQ Financial Products under the ASX Settlement Operating Rules will be applied to BIQ's Financial Products.
BIQ, as Issuer of the Financial Products, has agreed to be bound by the additional obligations of an Issuer of FOR Financial Products under Rule 5.18 of the ASX Settlement Operating Rules.
Where the holder is currently designated as "F", and wishes to hold BIQ Financial Products, but is not a U.S. Person, a new holder record should be established for that holder designated as "D" for the purposes of holding BIQ Financial Products.
Where a holder is currently designated as "F" or "M", and is a U.S. Person, that person cannot acquire BIQ Financial Products.
Participants should liaise with clients intending to hold BIQ's Financial Products and make all necessary enquiries to ensure that those clients are not U.S. Persons, and that those clients that are U.S. Persons are made aware that they cannot acquire BIQ's Financial Products. Failure to do so may result in client loss. Similarly, Participants may be liable for any failure to establish a new Holder Record designated as “D” or effect a change of residency indicator where it is necessary.
Foreign and Mixed Holdings
BIQ's Financial Products cannot be acquired by a U.S. Person in holdings designated as "F" or "M" under any circumstances, as they may be subject to divestment action by BIQ as set out under the ASX Settlement Operating Rules.
Divestment Periods and Procedure
If the Foreign Ownership Percentage Level is breached, that is, if any U.S. Persons designated as “F” or “M” is registered as holding BIQ Financial Products, BIQ reserves the right, to the maximum extent permitted by law, to take divestment or forfeiture action in respect of those Financial Products.
Need more information?
Chris Mitchell, Officer, Post Trade Operations
any estate of which any executor or administrator is a US person;
organised or incorporated under the laws of any foreign jurisdiction, and
formed by a US person principally for the purpose of investing in securities not registered under the Securities Act, unless it is organised or incorporated, and owned by accredited investors (as defined in the Securities Act) who are not natural persons, estates or trusts.
any discretionary account or similar account (other than an estate or trust) held for the benefit or account of a non-US person by a dealer or other professional fiduciary organized, incorporated, or (if an individual) resident in the United States;
Any trust of which any professional fiduciary acting as trustee is a US person, if a trustee who is not a US person has sole or shared investment discretion with respect to the trust assets, and no beneficiary of the trust (and no settlor if the trust is revocable) is a US person;
The International Monetary Fund, the International Bank for Reconstruction and Development, the Inter-American Development Bank, the Asian Development Bank, the African Development Bank, the United Nations, and their agencies, affiliates and pension plans, and any other similar international organizations, their agencies, affiliates and pension plans.
“United States” means the United States of America, its territories and possessions, any State of the United States and the district of Columbia.