This Notice contains important information that should be read carefully by Participants and deals expressly with the Financial Products of PVS and restrictions attaching to its Financial Products.
The following class of Financial Products will be included in Schedule 1 of the ASX Settlement Operating Rules as an FOR Financial Product effective Monday, 2 July 2018.
Pivotal Systems Corporation
CHESS Depositary Interests 1:1 –Excluded U.S. Person Prohibited
The CHESS Depositary Interests issued by PVS (“PVS’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 PVS'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 PVS’s Financial Products as FOR Financial Products under the ASX Settlement Operating Rules and to include PVS’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 Operating Rules (Financial Products subject to Foreign Ownership Restrictions) in relation to PVS’s CDIs.
The following conditions apply to PVS CHESS Depositary Interests 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 PVS Financial Products. (Existing stockholders of PVS, including U.S Persons, may convert PVS 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.)
PVS’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, and the no-action letter dated 7 January 2000 given to ASX by the United States Securities and Exchange Commission (“SEC”) in respect of offerings on the ASX market. That relief was given subject to compliance with certain procedures described in the no-action letter. Certain of these procedures can be satisfied by the application of the status of FOR Financial Products to PVS Financial Products under the ASX Settlement Operating Rules. The status of FOR Financial Products to PVS Financial Products under the ASX Settlement Operating Rules will be applied to PVS’s Financial Products.
PVS, 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 PVS 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 PVS Financial Products.
Where a holder is currently designated as "F" or "M", and is a U.S. Person, that person cannot acquire PVS Financial Products.
Participants should liaise with clients intending to hold PVS’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 PVS 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
PVS'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 PVS 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 PVS Financial Products, PVS reserves the right, to the maximum extent permitted by law, to take divestment or forfeiture action in respect of those Financial Products.
Nehali Dani, Post Trade Operations
"US person" means:
· any natural person resident in the United States;
· any partnership or corporation organized or incorporated under the laws of the United States;
· any estate of which any executor or administrator is a US person;
· any trust of which any trustee is a US person;
· any agency or branch of a foreign entity located in the United States;
· any non-discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary for the benefit or account of a US person;
· any discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary organized, incorporated, or (if an individual) resident in the United States; and
· any partnership or corporation if:
· 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.
The following are not "US persons":
· 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 estate of which any professional fiduciary acting as executor or administrator is a US person if:
· an executor or administrator of the estate who is not a US. person has sole or shared investment discretion with respect to the assets of the estate; and
· the estate is governed by foreign law;
· 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;
· An employee benefit plan established and administered in accordance with the law of a country other than the United States and customary practices and documentation of such country;
· Any agency or branch of a US person located outside the United States if:
· The agency or branch operates for valid business reasons; and
· The agency or branch is engaged in the business of insurance or banking and is subject to substantive insurance or banking regulation, respectively, in the jurisdiction where located; and
· 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:
United States of America, its territories and possessions, and any State of the United States, and the District of Columbia.