Notice

Orocobre Limited ("Orocobre") - ASX Settlement Operating Rule 5.18.2 inclusion of entitlements of Orocobre as "FOR" Financial Products

What's this about:
  • ASX Market
  • Clearing
  • Settlement
  • Operations
  • Market Data
  • Rules
  • Risk
  • Compliance
Notice reference number: 0048.18.01
Date published: 18/01/18
Effective as of: 19/01/18
Last updated: 24/01/18

The following class of Financial Products has been included in Schedule 1 of the ASX Settlement Operating Rules as a FOR Financial Product effective 19 January 2018. 

Issuer

Financial Product

ASX Code

Orocobre Limited

Entitlements – Excluded Investor

ORER

What do I need to do and by when?

Only “Eligible Persons” (as defined in the attachment to this Notice) are entitled to exercise Retail Entitlements (as that terms is defined in the Retail Entitlement Offer Information Booklet to be despatched to Eligible Persons on Tuesday, 23 January 2018), which are scheduled to commence trading under ASX Code ORER on a deferred settlement basis on Friday, 19 January 2018 ("ORE Financial Products”). Eligible Persons that purchase ORE Financial Products will need to complete an Entitlement and Acceptance Form that can be obtained from Orocobre’s share registry, Computershare Investor Services Pty Ltd, or by calling the Retail Entitlement Offer Information Line as set out in the Retail Entitlement Offer booklet.

Orocobre reserves the right to reject any Entitlement and Acceptance Form that it believes comes from a person who is not an Eligible Person. 

ORE Financial Products will trade generally on ASX; however, if ORE Financial Products are purchased in a transaction on ASX by a person that is not an Eligible Person (each, an "Excluded Investor"), such Excluded Investors will not be entitled to exercise their right to subscribe for new fully paid ordinary shares in Orocobre (“New Shares”). Further, any "Excluded U.S. Investor", as that term is defined in the attachment to this Bulletin, will not be entitled to acquire, hold or trade any ORE Financial Products.

ORE Financial Products which are not, or are not able to be, exercised will be sold through a retail shortfall bookbuild and any proceeds in excess of the offer price of $6.55 (Retail Premium)  (being the price at which Retail Entitlements are sold under the retail shortfall bookbuild (net of any applicable withholding taxes)) will be remitted proportionally to holders of those ORE Financial Products at the close of the Offer as set out in the Retail Entitlement Offer booklet. The Retail Premium, if any, is expected to be paid on or about Tuesday, 20 February 2018.

In order to ensure that foreign ownership restrictions can be monitored and that Excluded U.S. Investors do not acquire, hold or trade ORE Financial Products and Excluded Investors do not exercise any right to subscribe for New Shares, ASX Settlement has agreed:

(a)          to classify ORE Financial Products as FOR Financial Products under the ASX Settlement Operating Rules and to include ORE Financial Products in Schedule 1 of the ASX Settlement Operating Rules Procedures; and

(b)          to implement certain additional procedures as contemplated in Guidance Note 13 of the ASX Settlement Operation Rules (Financial Products subject to Foreign Ownership Restrictions) in relation to ORE Financial Products.

The following conditions apply to ORE Financial Products:

Foreign Person

A “Foreign Person” is an “Excluded Investor” as that term is defined in the attachment to this Bulletin.

Level of Foreign Ownership

The relevant Foreign Person ownership level is zero.

This means that no Excluded Investor, as that term is defined, may exercise any right to subscribe for New Shares for any ORE Financial Products they purchase or hold. Further, no Excluded U.S. Investor, as that term is defined, may acquire, hold or trade ORE Financial Products.

Orocobre, 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.

ORE 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 under the ASX Operating Rules will be applied to ORE Financial Products.

Where a holder is currently designated as "F" or "M", that person cannot exercise any right to subscribe for New Shares for any of ORE Financial Products they purchase or hold.

Where the holder is currently designated as "F", and wishes to hold ORE Financial Products, but is not an Excluded U.S. Investor, a new holder record should be established for that holder designated as "D" for the purposes of holding ORE Financial Products.

Where a holder is currently designated as "F" or "M", and is an Excluded U.S. Investor, that person cannot acquire, hold or trade any of ORE Financial Products.

Participants should liaise with clients intending to purchase or hold ORE Financial  Products and make all necessary enquiries to ensure that those clients who are Excluded Investors are made aware that they cannot exercise any right to subscribe for New Shares and that those clients who are Excluded U.S. Investors are made aware that they cannot acquire, hold or trade any of ORE 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. 

ORE Financial Products cannot be acquired or held by an Excluded U.S. Investor in holdings designated as "F" or "M" under any circumstances, as they may be subject to divestment action by Orocobre as set out under the ASX Settlement Operating Rules.

Need more information?

Issued by

Chris Mitchell, Officer, Post Trade Operations

Contact information

Chris Mitchell
1800 623 571
cad@asx.com.au

Attachment - Definitions of “Eligible Person”, "Excluded Investor" and "Excluded U.S. Investor" 

An "Excluded Investor" means any person who, as determined by Orocobre at its absolute discretion, is not an Eligible Person, and for the avoidance of doubt includes an Excluded U.S. Investor. 

An "Eligible New Investor" means any person who, as determined by Orocobre at its absolute discretion, is in:

•                     Australia;

•                     New Zealand;

•                     Austria, Luxembourg, Norway or Sweden (or is acquiring the Retail Entitlements or New Shares for any person who is in Austria, Luxembourg, Norway or Sweden), where each relevant person is a "qualified investor" within the meaning of the European Prospectus Directive (Directive 2003/71/EC) as amended and implemented in the relevant Member State of the European Economic Area;

•                     Canada (or is acquiring the Retail Entitlements or New Shares for any person who is in Canada), where each relevant person is an “accredited investor” within the meaning of NI 45-106 – Prospectus and Registration Exemptions, of the Canadian Securities Administrators;

•                     China (or is acquiring the Retail Entitlements or New Shares for any person who is in Germany), where each relevant person is a (i) "qualified domestic institutional investor" as approved by a relevant PRC regulatory authority to invest in overseas capital markets or (ii) sovereign wealth fund or quasi-government investment fund that has the authorisation to make overseas investment;

•                     France (or is acquiring the Retail Entitlements or New Shares for any person who is in France), where each relevant person is a "qualified investor" (investisseurs qualifiés) acting for their own account, as defined in and in accordance with Articles L.411-2-II-2, D.411-1, L.533-16, L.533-20, D.533-11, D.533-13, D.744-1, D.754-1 and D.764-1 of the French Monetary and Financial Code and any implementing regulation;

•                     Germany (or is acquiring the Retail Entitlements or New Shares for any person who is in Germany), where each relevant person is a "qualified investor" within the meaning of the European Prospectus Directive (Directive 2003/71/EC) as amended and implemented in Germany;

•                     Hong Kong (or is acquiring the Retail Entitlements or New Shares for any person who is in Hong Kong), where each relevant person is a "professional investor" as defined under the Securities and Futures Ordinance of Hong Kong (Cap. 571) of the Laws of Hong Kong;

•                     Japan (or is acquiring the Retail Entitlements or New Shares for any person who is in Japan), where each relevant person is subject to an exemption from the registration requirements and is otherwise in compliance with the Financial Instruments and Exchange Act of Japan (Law No. 25 of 1948, "FIEA") and any other applicable laws, regulations or ministerial guidelines of Japan;

•                     Singapore (or is acquiring the Retail Entitlements or New Shares for any person who is in Singapore), where each relevant person: (i) is an "institutional investor" or a "relevant person" (as such terms are defined in the Securities and Futures Act (Chap 289) of Singapore ("SFA")); (ii) will acquire the Retail Entitlements or New Shares in accordance with applicable provisions of the SFA; and (iii) acknowledges that the offer of the Retail Entitlements and New Shares is subject to the restrictions (including selling restrictions) set out in the SFA;

•                     Switzerland (or is acquiring the Retail Entitlements or New Shares for any person who is in Switzerland), where each relevant person is a qualified investor being regulated financial intermediaries such as banks, securities dealers, insurance institutions and fund management companies as well as institutional investors with professional treasury operations;

•                     United Kingdom (or is acquiring the Retail Entitlements or New Shares for any person who is in the United Kingdom), where each relevant person is: (i) a "qualified investor" within the meaning of Section 86(7) of the United Kingdom Financial Services and Markets Act 2000; and (ii) within the categories of persons referred to in Article 19(5) (investment professionals) or Article 49(2)(a) to (d) (high net worth companies, unincorporated associations, etc.) of the United Kingdom Financial Services and Markets Act 2000 (Financial Promotions) Order 2005, as amended, provided that in each case, such person is not in the United States and is not acting for the account or benefit of a person in the United States (to the extent such person will be holding Retail Entitlements or New Shares for the account or benefit of a person in the United States). 

 

An "Eligible Person" is a person who, as determined by Orocobre at its absolute discretion:

  • is an Eligible Retail Shareholder; or

  • is an Eligible New Investor. 

An "Eligible Retail Shareholder" is a person who, as determined by Orocobre at its absolute discretion:

  • is a registered holder of a Share as at the Record Date (being 7.00pm (AEST1) on 19 January 2018);

  • has a registered address on the Orocobre share register in Australia or New Zealand;

  • is not in the United States and is not acting for the account or benefit of a person in the United States (to the extent such person holds Shares for the account or benefit of a person in the United States);

  • was not invited to participate (other than as nominee, in respect of other underlying holdings) under the institutional component of the Offer, and was not treated as an ineligible institutional shareholder under the institutional component of the Offer; and

  • is eligible under all applicable securities laws to receive an offer under the Offer. 

An “Excluded U.S. Investor” means a holder of ORE Financial Products (or a person who seeks to be entered on the register as a holder of ORE Financial Products) who is in the United States or who is acting for the account or benefit of a person in the United States. 

"United States" means the United States of America, its territories and possessions, any State of the United States and the district of Columbia.

Disclaimer