Commonwealth Consolidated Regulations

FOREIGN ACQUISITIONS AND TAKEOVERS REGULATIONS 1989 - REG 2AB

         (1)   A US enterprise is:

                (a)    an entity of a kind described in subregulations (2) to (4); or

               (b)    a branch of an entity (other than an entity that is a
US enterprise under paragraph (a)) that satisfies subregulation (5);

that is not disqualified under subregulation (6).

         (2)   The entity is constituted or organised under a law of the United States of America.

         (3)   The form in which the entity may be constituted or organised may be, but is not limited to, any of the following forms:

                (a)    a corporation;

               (b)    a trust;

                (c)    a partnership;

               (d)    a sole proprietorship;

                (e)    a joint venture;

                (f)    an unincorporated association.

         (4)   It is immaterial whether the entity:

                (a)    is carried on for profit; or

               (b)    is owned or controlled privately.

         (5)   If an entity is not described in subregulations (2) to (4), a branch of that entity is a US enterprise if the branch:

                (a)    is located in the United States of America; and

               (b)    is carrying on business activities in the United States of America:

                          (i)    in a way other than being solely a representative office; and

                         (ii)    in a way other than being engaged solely in agency activities, including the sale of goods or services that cannot reasonably be regarded as undertaken in the United States of America; and

                         (iii)    by having its administration in the United States of America.

         (6)   However, an entity or a branch of an entity is not a US enterprise if the Treasurer decides that this subregulation should apply to the entity or branch because:

                (a)    it is owned or controlled by a person or persons of a country other than the United States of America, and:

                          (i)    Australia does not maintain diplomatic relations with that country; or

                         (ii)    Australia adopts or maintains measures in relation to that country or a person of that country that have the effect of prohibiting transactions with the entity or branch; or

               (b)    it is owned or controlled by a person or persons of a country other than the United States of America (including Australia) and the entity or branch has no substantial business activities in the United States of America.