Employee share schemes – changes to requirements

What is it?

ASIC has replaced Class Order [CO 03/184] Employee shares schemes with two new class orders in relation to employee incentive schemes.  Class order [CO 14/1000] Employee incentive schemes: Listed bodies and Class Order [14/1001] Employee incentive schemes: Unlisted bodies.  The new class orders exempt offers made under compliant plans from disclosure requirements governing the offer of securities, and operate in conjunction with existing exemptions such as those in s708 of the Corporations Act 2001.

What does it mean?

The new class orders require that a Notice of Reliance (Form CF08) is lodged with ASIC at any time before making an offer under a complying employee incentive scheme, but in any event no later than one month after the first reliance on either of the new class orders.  GrilloHiggins can review your existing employee incentive schemes to ensure compliance with the new class order and assist you with lodgement of Form CF08.

What are the main changes?

Under the previous class order, companies were required to submit copies of employee incentive scheme invitations and disclosure documents to ASIC.   This has now been replaced by lodgement of a one-off Notice of Reliance (although ASIC retains the power to request copies of these documents).  Companies are still required to provide eligible participants with the appropriate invitations and disclosure documents.


 

LISTED COMPANIES

  • Relief now extends to cover incentive rights over shares
  • Trusts (5% holding limit), contribution plans and loans can all still be utilised
  • To be eligible, a listed company needs to have had its securities quoted for the three months prior to issue (instead of 12 months) and cannot have been suspended from quotation for more than 5 days (instead of 2 days) in the previous 12 months
  • Offers made in reliance on the class order within the last 3 years must not exceed 5% of the total issued capital of the company

 

UNLISTED COMPANIES

  • Wholly owned subsidiaries of the issuer can now also make offers
  • Relief now extends to fully paid voting ordinary shares, options over ordinary shares, and incentive rights over ordinary shares
  • Trust structures can be utilised (20% holding limit), however, contribution plans and loans are not permitted
  • There are additional requirements for unlisted companies, including that an offer cannot be valued at more than $5000 per annum per participant and an obligation to provide participants with an audited financial or special purpose report

 

What happens to existing schemes?

Class Order [CO 03/184] and the relevant parts of Class Order [CO 04/671] Disclosure for on-sale of securities and other financial products that apply to employee share schemes will be discontinued.  To facilitate the movement from the former employee share scheme policy to the new revised policy, [CO 14/1000] and [CO 14/1001] grant transitional relief to enable those relying on the previous policy requirements to continue operating their existing employee share schemes with equivalent relief.

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