CHAPTER 6
-
TAKEOVERS
Note: This Chapter only applies to acquisitions of interests in a CCIV if the CCIV is a listed company: see Division
1
of Part
8B.7
.
History
Ch 6 amended by No 8 of 2022, s 3, Sch 2[160] (effective 1 July 2022).
SECTION 602
602
PURPOSES OF CHAPTER
CCH Note:
Section 602 is modified by the ASIC Corporations (Takeover Bids) Instrument 2023/683; the ASIC Corporations (Warrants: Relevant Interests and Associations) Instrument 2023/687; and the ASIC Corporations (Replacement Bidder
'
s and Target
'
s Statements) Instrument 2023/688.
The purposes of this Chapter are to ensure that:
(a)
the acquisition of control over:
(i)
the voting shares in a listed company, or an unlisted company with more than 50 members; or
(ii)
the voting shares in a listed body (other than a notified foreign passport fund); or
(iii)
the voting interests in a listed registered scheme;
takes place in an efficient, competitive and informed market; and
(b)
the holders of the shares or interests, and the directors of the company or body or the responsible entity for the scheme:
(i)
know the identity of any person who proposes to acquire a substantial interest in the company, body or scheme; and
(ii)
have a reasonable time to consider the proposal; and
(iii)
are given enough information to enable them to assess the merits of the proposal; and
(c)
as far as practicable, the holders of the relevant class of voting shares or interests all have a reasonable and equal opportunity to participate in any benefits accruing to the holders through any proposal under which a person would acquire a substantial interest in the company, body or scheme; and
(d)
an appropriate procedure is followed as a preliminary to compulsory acquisition of voting shares or interests or any other kind of securities under Part
6A.1
.
Note 1: To achieve the objectives referred to in paragraphs (a), (b) and (c), the prohibition in section 606 and the exceptions to it refer to interests in
"
voting shares
"
. To achieve the objective in paragraph (d), the provisions that deal with the takeover procedure refer more broadly to interests in
"
securities
"
.
Note 2: Subsection 92(3) defines
securities
for the purposes of this Chapter.
History
S 602 amended by No 61 of 2018, s 3, Sch 2[148] and
[
149] (effective 18 September 2018).
SECTION 602A
MEANING OF SUBSTANTIAL INTEREST
CCH Note:
Section 602A is modified by the ASIC Corporations (Takeover Bids) Instrument 2023/683; the ASIC Corporations (Warrants: Relevant Interests and Associations) Instrument 2023/687; and the ASIC Corporations (Replacement Bidder
'
s and Target
'
s Statements) Instrument 2023/688.
602A(1)
A reference in this Chapter to a
substantial interest
in a company, listed body (other than a notified foreign passport fund) or listed registered scheme is not to be read as being limited to an interest that is constituted by one or more of the following:
(a)
a relevant interest in securities in the company, body or scheme;
(b)
a legal or equitable interest in securities in the company, body or scheme;
(c)
a power or right in relation to:
(i)
the company, body or scheme; or
(ii)
securities in the company, body or scheme.
History
S 602A(1) amended by No 61 of 2018, s 3, Sch 2[150] (effective 18 September 2018).
602A(2)
A person does not have a
substantial interest
in the company, body or scheme for the purposes of this Chapter merely because the person has an interest in, or a relationship with, the company, body or scheme of a kind prescribed by the regulations for the purposes of this subsection.
602A(3)
The regulations may provide that an interest of a particular kind is an interest that may constitute a substantial interest in a company, listed body (other than a notified foreign passport fund) or listed registered scheme for the purposes of this Chapter.
History
S 602A(3) amended by No 61 of 2018, s 3, Sch 2[150] (effective 18 September 2018).
S 602A inserted by No 64 of 2007, Sch 1
[
2].
SECTION 603
603
CHAPTER EXTENDS TO SOME LISTED BODIES THAT ARE NOT COMPANIES
CCH Note:
Section 603 is modified by the ASIC Corporations (Takeover Bids) Instrument 2023/683; the ASIC Corporations (Warrants: Relevant Interests and Associations) Instrument 2023/687; and the ASIC Corporations (Replacement Bidder
'
s and Target
'
s Statements) Instrument 2023/688.
This Chapter applies to the acquisition of relevant interests in the securities of listed bodies that are not companies but are incorporated or formed in Australia in the same way as it applies to the acquisition of relevant interests in the securities of companies.
Note: Section 9 defines
company
and
listed
.
SECTION 604
CHAPTER EXTENDS TO LISTED REGISTERED SCHEMES
CCH Note:
Section 604 is modified by the ASIC Corporations (Takeover Bids) Instrument 2023/683; the ASIC Corporations (Warrants: Relevant Interests and Associations) Instrument 2023/687; and the ASIC Corporations (Replacement Bidder
'
s and Target
'
s Statements) Instrument 2023/688.
604(1)
This Chapter applies to the acquisition of relevant interests in the interests in a registered scheme that is also listed as if:
(a)
the scheme were a listed company; and
(b)
interests in the scheme were shares in the company; and
(c)
voting interests in the scheme were voting shares in the company; and
(d)
a meeting of the members of the scheme were a general meeting of the company; and
(e)
the obligations and powers that are imposed or conferred on the company were imposed or conferred on the responsible entity; and
(f)
the directors of the responsible entity were the directors of the company; and
(g)
the appointment of a responsible entity for the scheme were the election of a director of the company; and
(h)
the scheme
'
s constitution were the company
'
s constitution.
Note 1: Paragraph (g): See subsection
610(2)
.
Note 2: Section
9
defines
voting interest
in a managed investment scheme.
604(2)
The regulations may modify the operation of this Chapter as it applies in relation to the acquisition of interests in listed registered schemes.
History
S 604(2) amended by No 61 of 2018, s 3, Sch 2[152] (effective 18 September 2018).
SECTION 605
CLASSES OF SECURITIES
CCH Note:
Section 605 is modified by the ASIC Corporations (Takeover Bids) Instrument 2023/683; the ASIC Corporations (Warrants: Relevant Interests and Associations) Instrument 2023/687; and the ASIC Corporations (Replacement Bidder
'
s and Target
'
s Statements) Instrument 2023/688.
605(1)
Takeover bids are made for securities within a particular class. Similarly, compulsory acquisition and buy-out rights operate on securities within a particular class.
605(2)
For the purposes of this Chapter and Chapters
6A
and
6C
, securities are not taken to be different classes merely because:
(a)
some of the securities are fully-paid and others are partly-paid; or
(b)
different amounts are paid up or remain unpaid on the securities.
SECTION 605A
605A
CHAPTER DOES NOT APPLY TO MCIs
CCH Note:
Section 605A is modified by the ASIC Corporations (Takeover Bids) Instrument 2023/683; the ASIC Corporations (Warrants: Relevant Interests and Associations) Instrument 2023/687; and the ASIC Corporations (Replacement Bidder
'
s and Target
'
s Statements) Instrument 2023/688.
This Chapter does not apply to MCIs.
History
S 605A inserted by No 37 of 2019, s 3, Sch 2[9] (effective 6 April 2019).
PART 6.9
-
OTHER ACTIVITIES DURING THE BID PERIOD
SECTION 654A
BIDDER NOT TO DISPOSE OF SECURITIES DURING THE BID PERIOD
CCH Note:
Section 654A is modified by the ASIC Corporations (Takeover Bids) Instrument 2023/683; the ASIC Corporations (Warrants: Relevant Interests and Associations) Instrument 2023/687; and the ASIC Corporations (Replacement Bidder
'
s and Target
'
s Statements) Instrument 2023/688.
654A(1)
The bidder must not dispose of any securities in the bid class during the bid period.
654A(1A)
An offence based on subsection
(1)
is an offence of strict liability.
Note: For
strict liability
, see section 6.1 of the
Criminal Code
.
History
S 654A(1A) inserted by No 117 of 2001, s 3, Sch 1
[
227].
654A(2)
Subsection
(1)
does not apply to a disposal of securities by the bidder if:
(a)
someone else who is not an associate of the bidder makes an offer, or improves the consideration offered, under a takeover bid for securities in the bid class after the bidder's statement is given to the target; and
(b)
the bidder disposes of the securities after the offer is made or the consideration is improved.
Note: A defendant bears an evidential burden in relation to the matters in subsection
(2)
, see subsection 13.3(3) of the
Criminal Code
.
History
S 654A(2) (Note) inserted by No 117 of 2001, s 3, Sch 1
[
228].
SECTION 654B
654B
DISCLOSURES ABOUT SUBSTANTIAL SHAREHOLDINGS IN LISTED COMPANIES
CCH Note:
Section 654B is modified by the ASIC Corporations (Takeover Bids) Instrument 2023/683; the ASIC Corporations (Warrants: Relevant Interests and Associations) Instrument 2023/687; and the ASIC Corporations (Replacement Bidder
's and Target
'
s Statements) Instrument 2023/688.
During the bid period, substantial shareholding notices that need to be lodged under section
671B
must be lodged by 9.30 am the next business day (rather than the usual 2 business days).
[
CCH Note:
S 654B will be amended by No 69 of 2020, s 3, Sch 1[1016], by substituting
"
given
"
for
"
lodged
"
(wherever occurring) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
SECTION 654C
DISCLOSURES ABOUT SUBSTANTIAL SHAREHOLDINGS IN UNLISTED COMPANIES
CCH Note:
Section 654C is modified by the ASIC Corporations (Takeover Bids) Instrument 2023/683; the ASIC Corporations (Warrants: Relevant Interests and Associations) Instrument 2023/687; and the ASIC Corporations (Replacement Bidder
'
s and Target
'
s Statements) Instrument 2023/688.
654C(1)
A bidder making a bid for securities of an unlisted company must give the target a notice stating the bidder
'
s voting power in the target if, at a particular time during the bid period, the bidder
'
s voting power in the target rises from below a percentage in the following list to that percentage or higher:
(a)
25%;
(b)
50%;
(c)
75%;
(d)
90%.
654C(2)
The notice must be given as soon as practicable, and in any event within 2 business days, after the rise in voting power occurred.
654C(3)
The target must:
(a)
make the notice available at its registered office for inspection without charge by any holder of bid class securities during the bid period; and
(b)
lodge the notice with ASIC.
[
CCH Note 1:
S 654C(3) will be amended by No 69 of 2020, s 3, Sch 1[1017], by substituting
"
the Registrar
"
for
"
ASIC
"
in para (b) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
[
CCH Note 2:
S 654C(3A) will be inserted by No 69 of 2020, s 3, Sch 1[1018] (effective 1 July 2026 or a day or days to be fixed by Proclamation). S 654C(3A) will read:
654C(3A)
The lodgement must meet any requirements of the data standards.]
654C(4)
An offence based on subsection
(1)
or
(3)
is an offence of strict liability.
Note: For
strict liability
, see section
6.1
of the
Criminal Code
.
History
S 654C(4) inserted by No 117 of 2001, s 3, Sch 1
[
229].