Foreign Acquisitions and Takeovers Act 1975
PART 2
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ACTIONS TO WHICH THIS ACT APPLIES
Division 2
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Meaning of significant action
SECTION 40
MEANING OF
SIGNIFICANT ACTION
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ENTITIES
40(1)
An action is a significant action if the conditions in this section are met.
First condition - kinds of action
40(2)
The first condition is that the action is any of the following:
(a) to acquire a direct interest in an Australian entity that is an agribusiness;
(b) to acquire interests in securities in an entity;
(c) to issue securities in an entity;
(d) to enter an agreement:
(e) to alter a constituent document of the entity as a result of which one or more senior officers of the entity will be under an obligation to act in accordance with the directions, instructions or wishes of a foreign person who holds a substantial interest in the entity (or of an associate of such a foreign person).
Second condition - threshold
40(3)
The second condition is that the threshold test is met in relation to the entity (see Subdivision B of Division 4 ).
Third condition - kinds of entities covered
40(4)
The third condition (except if paragraph (2)(a) applies) is that the entity is the following:
(a) for an acquisition of interests in shares or an issue of shares:
(b) for any other action relating to a corporation:
(c) for an action relating to a unit trust:
Last condition - action taken by a foreign person
40(5)
If paragraph (2)(a) applies, the last condition is that the action is or is to be taken by a foreign person.
Last condition - action results in change in control
40(6)
If any of paragraphs (2)(b) to (e) apply, the last condition is that there would be or has been a change in control of the entity as a result of the action (see Subdivision C of Division 4 ).
40(7)
However, the last condition in subsection (6) is not required to be met if: (a) paragraph (2)(b) applies and the action is or is to be taken by a foreign person who controls the entity (whether alone or together with one or more associates) immediately before the action is or is to be taken; or (b) paragraph (2)(c) applies and a foreign person controls the entity (whether alone or together with one or more associates) immediately before the action is or is to be taken.
View history note
Hide history noteAn action is a significant action if the conditions in this section are met.
First condition - kinds of action
40(2)
The first condition is that the action is any of the following:
(a) to acquire a direct interest in an Australian entity that is an agribusiness;
(b) to acquire interests in securities in an entity;
(c) to issue securities in an entity;
(d) to enter an agreement:
(i) relating to the affairs of the entity; and
(ii) under which one or more senior officers of the entity will be under an obligation to act in accordance with the directions, instructions or wishes of a foreign person who holds a substantial interest in the entity (or of an associate of such a foreign person);
(e) to alter a constituent document of the entity as a result of which one or more senior officers of the entity will be under an obligation to act in accordance with the directions, instructions or wishes of a foreign person who holds a substantial interest in the entity (or of an associate of such a foreign person).
Note: An action mentioned in any of paragraphs (2)(b) to (e) may be taken in relation to an Australian entity that is an agribusiness (see section 42 ).
Second condition - threshold
40(3)
The second condition is that the threshold test is met in relation to the entity (see Subdivision B of Division 4 ).
Third condition - kinds of entities covered
40(4)
The third condition (except if paragraph (2)(a) applies) is that the entity is the following:
(a) for an acquisition of interests in shares or an issue of shares:
(i) a corporation that is a relevant entity that carries on an Australian business, whether alone or together with one or more other persons; or
(ii) the holding entity of such a corporation;
(b) for any other action relating to a corporation:
(i) an Australian corporation that carries on an Australian business, whether alone or together with one or more other persons; or
(ii) the holding entity (other than a foreign corporation) of such a corporation;
(c) for an action relating to a unit trust:
(i) an Australian unit trust; or
(ii) a holding entity of an Australian unit trust.
Last condition - action taken by a foreign person
40(5)
If paragraph (2)(a) applies, the last condition is that the action is or is to be taken by a foreign person.
Last condition - action results in change in control
40(6)
If any of paragraphs (2)(b) to (e) apply, the last condition is that there would be or has been a change in control of the entity as a result of the action (see Subdivision C of Division 4 ).
40(7)
However, the last condition in subsection (6) is not required to be met if: (a) paragraph (2)(b) applies and the action is or is to be taken by a foreign person who controls the entity (whether alone or together with one or more associates) immediately before the action is or is to be taken; or (b) paragraph (2)(c) applies and a foreign person controls the entity (whether alone or together with one or more associates) immediately before the action is or is to be taken.