CHAPTER 6A
-
COMPULSORY ACQUISITIONS AND BUY-OUTS
SECTION 660A
660A
CHAPTER EXTENDS TO SOME LISTED BODIES THAT ARE NOT COMPANIES
CCH Note:
Section 660A is modified by the ASIC Corporations (Takeover Bids) Instrument 2023/683; and the ASIC Corporations (Compulsory Acquisitions and Buyouts) Instrument 2023/684.
This Chapter extends to the acquisition of 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 securities of companies.
Note 1: Section
9
defines
company
and
listed
.
Note 2: This Chapter only applies to the acquisition of securities in a CCIV if the CCIV is a listed company: see section
1240E
.
History
S 660A amended by No 8 of 2022, s 3, Sch 2[161] and
[
162] (effective 1 July 2022).
SECTION 660B
CHAPTER EXTENDS TO LISTED REGISTERED SCHEMES
CCH Note:
Section 660B is modified by the ASIC Corporations (Takeover Bids) Instrument 2023/683; and the ASIC Corporations (Compulsory Acquisitions and Buyouts) Instrument 2023/684.
660B(1)
This Chapter extends to the acquisition of interests in a registered scheme that is also listed as if:
(a)
the scheme were a 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.
660B(2)
If Part
6A.1
applies to a scheme at the end of the bid period for a takeover, that Part continues to apply to the scheme in relation to the takeover bid even if the scheme ceases to be listed.
660B(3)
If Part
6A.2
applies to a scheme when a compulsory acquisition notice under section
664C
is lodged, that Part (including Division 2 of that Part) continues to apply to the scheme in relation to the notice even if the scheme ceases to be listed.
[
CCH Note:
S 660B(3) will be amended by No 69 of 2020, s 3, Sch 1[1019], by inserting
"
with the Registrar
"
after
"
lodged
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
660B(4)
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 660B(4) amended by No 61 of 2018, s 3, Sch 2[161] (effective 18 September 2018).
SECTION 660C
660C
CHAPTER DOES NOT APPLY TO MCIs
CCH Note:
Section 660C is modified by the ASIC Corporations (Takeover Bids) Instrument 2023/683; and the ASIC Corporations (Compulsory Acquisitions and Buyouts) Instrument 2023/684.
This Chapter does not apply to MCIs.
History
S 660C inserted by No 37 of 2019, s 3, Sch 2[10] (effective 6 April 2019).
PART 6A.1
-
COMPULSORY ACQUISITIONS AND BUY-OUTS FOLLOWING TAKEOVER BID
Division 1
-
Compulsory acquisition of bid class securities
CCH Note:
Division 1 is modified by the ASIC Corporations (Takeover Bids) Instrument 2023/683; and the ASIC Corporations (Compulsory Acquisitions and Buyouts) Instrument 2023/684.
SECTION 661A
COMPULSORY ACQUISITION POWER FOLLOWING TAKEOVER BID
CCH Note:
Section 661A is modified by the ASIC Corporations (Takeover Bids) Instrument 2023/683; and the ASIC Corporations (Compulsory Acquisitions and Buyouts) Instrument 2023/684.
Threshold for compulsory acquisition power
661A(1)
Under this subsection, the bidder under a takeover bid may compulsorily acquire any securities in the bid class if:
(a)
the bid is:
(i)
an off-market bid to acquire all the securities in the bid class; or
(ii)
a market bid; and
(b)
during, or at the end of, the offer period:
(i)
the bidder and their associates have relevant interests in at least 90% (by number) of the securities in the bid class; and
(ii)
the bidder and their associates have acquired at least 75% (by number) of the securities that the bidder offered to acquire under the bid (whether the acquisitions happened under the bid or otherwise).
This is so even if the bidder subsequently ceases to satisfy subparagraph (b)(i) because of the issue of further securities in the bid class.
Note: Subsection
92(3)
defines
securities
for the purposes of this Chapter.
661A(2)
For the purposes of subsection
(1)
, disregard any relevant interests that the bidder has merely because of the operation of subsection
608(3)
(relevant interest by 20% interest in body corporate).
Court may allow compulsory acquisition even if threshold not reached
661A(3)
Under this subsection, the bidder under a takeover bid may compulsorily acquire securities in the bid class with the approval of the Court.
Securities to be acquired
661A(4)
If the bidder compulsorily acquires securities in the bid class under subsection
(1)
or
(3)
, the bidder:
(a)
must acquire all the securities in the bid class:
(i)
which were issued or granted before the end of the offer period; and
(ii)
in which the bidder does not have a relevant interest; and
(b)
may elect to acquire all securities in the bid class:
(i)
that were issued or granted after the end of the offer period and before the notice under section
661B
is issued; and
(ii)
in which the bidder does not have a relevant interest;
but only if the bidder and their associates have relevant interests in at least 90% (by number) of the securities in the bid class when the bidder gives notice under section
661B
; and
(c)
if securities exist when the bidder gives the notice under section
661B
that:
(i)
will convert, or may be converted, to securities in the bid class; or
(ii)
confer rights to be issued securities in the bid class that may be exercised;
within the period of 6 weeks after the notice is given
-
may elect to acquire securities that come to be in the bid class during that period due to a conversion or exercise of the rights but only if the bidder and their associates have relevant interests in at least 90% of the securities (by number) in the bid class when the bidder gives notice under section
661B
; and
(d)
may elect to acquire any securities in the bid class in which the bidder has a relevant interest (no matter when they were issued or granted).
661A(5)
This section has effect despite anything in the constitution of the company whose securities are to be acquired.
SECTION 661B
COMPULSORY ACQUISITION NOTICE
CCH Note:
Section 661B is modified by the ASIC Corporations (Takeover Bids) Instrument 2023/683; and the ASIC Corporations (Compulsory Acquisitions and Buyouts) Instrument 2023/684.
Compulsory acquisition notice
661B(1)
To compulsorily acquire securities under subsection
661A(1)
or
(3)
, the bidder must:
(a)
prepare a notice in the prescribed form that:
(i)
informs the holders of the securities that the bidder is entitled to acquire their securities under that subsection; and
(ii)
informs the holders about the compulsory acquisition procedure under this Part, including:
(A)
their right under section
661D
to obtain the names and addresses of everyone else the bidder has given the notice to; and
(B)
their right under section
661E
to apply to the Court for an order that the securities not be compulsorily acquired; and
(b)
lodge the notice with ASIC; and
(c)
give the notice to each other person who is:
(i)
a holder of securities in the bid class; or
(ii)
if the bidder elects under paragraph
661A(4)(c)
to acquire securities that come to be in the bid class after the notice is given
-
a holder of the convertible securities referred to in that paragraph; and
(d)
give a copy to each relevant market operator on the same day as it is lodged with ASIC if the target is listed.
If alternative forms of consideration were offered under the takeover bid, the notice must specify which of those forms of consideration will apply to the acquisition of the holder's securities if the holder does not elect one of the forms under paragraph
661C(2)(a)
.
Note: Everyone who holds bid class securities on the day on which the notice is lodged with ASIC is entitled notice. Under section
661E
, anyone who holds the securities after that day may apply to the Court to stop the acquisition.
[
CCH Note:
S 661B(1) will be amended by No 69 of 2020, s 3, Sch 1[1020]
-
[
1023], by omitting
"
in the prescribed form
"
after
"
prepare a notice
"
in para (a), inserting para (a)(iii), substituting
"
the Registrar
"
for
"
ASIC
"
in para (b) and (d) and
"
the Registrar
"
for
"
ASIC
"
in the note, (effective 1 July 2026 or a day or days to be fixed by Proclamation). Para (a)(iii) will read:
(iii)
meets any requirements of the data standards; and]
History
S 661B(1) amended by No 122 of 2001, s 3, Sch 1, Pt 2
[
397].
Time for dispatching notices to holders
661B(2)
The bidder must dispatch the notices under paragraph
(1)(c)
:
(a)
during the offer period, or within 1 month after:
(i)
the end of offer period if the acquisition is under subsection
661A(1)
; or
(ii)
the court approval if the acquisition is under subsection
661A(3)
; and
(b)
on the day the bidder lodges the notice with ASIC or on the next business day.
The notices cannot be withdrawn.
[
CCH Note:
S 661B(2) will be amended by No 69 of 2020, s 3, Sch 1[1024], by substituting
"
the Registrar
"
for
"
ASIC
"
in para (b) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
Strict liability offences
661B(2A)
An offence based on subsection
(1)
or
(2)
is an offence of strict liability.
Note: For
strict liability
, see section
6.1
of the
Criminal Code
.
History
S 661B(2A) inserted by No 117 of 2001, s 3, Sch 1
[
231].
661B(3)
-
(4)
(Repealed by No 69 of 2023, s 3, Sch 1[43] and
[
44] (effective 15 September 2023).)
SECTION 661C
TERMS ON WHICH SECURITIES TO BE ACQUIRED
CCH Note:
Section 661C is modified by the ASIC Corporations (Takeover Bids) Instrument 2023/683; and the ASIC Corporations (Compulsory Acquisitions and Buyouts) Instrument 2023/684.
Same terms as takeover bid
661C(1)
The bidder may acquire the securities only on the terms that applied to the acquisition of securities under the takeover bid immediately before:
(a)
the notice under section
661B
is given if it is given before the end of the offer period;or
(b)
the end of the offer period if it is not.
Alternative forms of consideration under takeover bid
661C(2)
If alternative forms of consideration were offered under the takeover bid, the form of consideration that applies to the acquisition of the holder's securities is:
(a)
the form that the holder elects; or
(b)
the form set out in the compulsory acquisition notice under subsection
661B(1)
.
661C(3)
The holder makes an election under subsection
(2)
by giving the bidder a notice of the election by the later of:
(a)
1 month after the compulsory acquisition notice is given under section
661B
; or
(b)
14 days after the holder is given a statement under section
661D
if the holder asks for it.
661C(4)
The election must:
(a)
comply with the conditions specified in regulations made for the purposes of this paragraph that provide for the manner of making the election; or
(b)
if no such regulations are made
-
be in writing.
History
S 661C(4) substituted by No 122 of 2001, s 3, Sch 1, Pt 2
[
398].
SECTION 661D
HOLDER MAY OBTAIN NAMES AND ADDRESSES OF OTHER HOLDERS
CCH Note:
Section 661D is modified by the ASIC Corporations (Takeover Bids) Instrument 2023/683; and the ASIC Corporations (Compulsory Acquisitions and Buyouts) Instrument 2023/684.
661D(1)
Within 1 month after a compulsory acquisition notice in relation to securities in the bid class is lodged with ASIC under section
661B
, the holder of the securities may ask the bidder in writing for a written statement of the names and addresses (but not the electronic addresses) of everyone else the bidder has given the notice to. The bidder must give the holder the statement within 7 days after the request.
[
CCH Note:
S 661D(1) will be amended by No 69 of 2020, s 3, Sch 1[1025], by substituting
"
the Registrar
"
for
"
ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 661D(1) amended by No 69 of 2023, s 3, Sch 1[45] (effective 15 September 2023).
661D(2)
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 661D(2) inserted by No 117 of 2001, s 3, Sch 1
[
232].
SECTION 661E
HOLDER MAY APPLY TO COURT TO STOP ACQUISITION
CCH Note:
Section 661E is modified by the ASIC Corporations (Takeover Bids) Instrument 2023/683; and the ASIC Corporations (Compulsory Acquisitions and Buyouts) Instrument 2023/684.
661E(1)
The holder of securities covered by a compulsory acquisition notice under section
661B
may apply to the Court for an order that the securities not be compulsorily acquired under subsection
661A(1)
. The application must be made before the later of:
(a)
the end of 1 month after the holder is given notice under section
661B
; or
(b)
the end of 14 days after the holder is given a statement under section
661D
if the holder asks for it.
661E(2)
The Court may order that the securities not be compulsorily acquired under subsection
661A(1)
only if the Court is satisfied that the consideration is not fair value for the securities.
Note: See section
667C
on valuation.
661E(3)
If the Court makes an order under this section in relation to an acquisition of securities, the order applies to all holders who have applications to the Court pending for an order under this section in relation to the acquisition.
SECTION 661F
661F
SIGNPOST
-
COMPLETING THE ACQUISITION OF THE SECURITIES
CCH Note:
Section 661F is modified by the ASIC Corporations (Takeover Bids) Instrument 2023/683; and the ASIC Corporations (Compulsory Acquisitions and Buyouts) Instrument 2023/684.
See section
666A
to find out how to complete the acquisition.
Division 2
-
Compulsory buy-out of bid class securities
CCH Note:
Division 2 is modified by the ASIC Corporations (Takeover Bids) Instrument 2023/683; and the ASIC Corporations (Compulsory Acquisitions and Buyouts) Instrument 2023/684.
SECTION 662A
BIDDER MUST OFFER TO BUY OUT REMAINING HOLDERS OF BID CLASS SECURITIES
CCH Note:
Section 662A is modified by the ASIC Corporations (Takeover Bids) Instrument 2023/683; and the ASIC Corporations (Compulsory Acquisitions and Buyouts) Instrument 2023/684.
662A(1)
If the bidder and their associates have relevant interests in at least 90% of the securities (by number) in the bid class at the end of the offer period, the bidder must offer to buy out the remaining holders of bid class securities in accordance with sections
662B
and
662C
.
662A(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 662A(1A) inserted by No 117 of 2001, s 3, Sch 1
[
233].
662A(2)
This section does not apply to securities that are issued:
(a)
if the takeover bid was not subject to a defeating condition
-
after the end of the offer period; or
(b)
if the takeover bid was subject to a defeating condition
-
after the notice whether the bid is free from a defeating condition or not is given under subsection
630(3)
.
SECTION 662B
BIDDER TO TELL REMAINING HOLDERS OF THEIR RIGHT TO BE BOUGHT OUT
CCH Note:
Section 662B is modified by the ASIC Corporations (Takeover Bids) Instrument 2023/683; and the ASIC Corporations (Compulsory Acquisitions and Buyouts) Instrument 2023/684.
Notice to remaining holders of bid class securities
662B(1)
The bidder must:
(a)
prepare a notice in the prescribed form that:
(i)
states that the bidder and their associates have relevant interests in at least 90% (by number) of the securities in the bid class; and
(ii)
informs the holder of bid class securities about their right to be bought out under this Part; and
(iii)
sets out the terms on which the holder may be bought out; and
(b)
lodge the notice with ASIC; and
(c)
give the notice to each other person who:
(i)
is a holder of securities in the bid class on the day on which the notice is lodged with ASIC; and
(ii)
has not been given a compulsory acquisition notice under section
661B
when the notice under subsection
(2)
is given; and
(d)
give the notice to each relevant market operator on the same day as it is lodged with ASIC if the target is listed.
If alternative forms of consideration were offered under the takeover bid, the notice must specify which of those forms will apply to the acquisition of the holder
'
s securities if the holder does not give the bidder an election notice under subsection
662C(1)
.
Note: The notice is
[
sic
] be given to everyone who holds bid class securities on the day on which the notice is lodged with ASIC. Under section
662C
, anyone who acquires the securities after that day may require the bidder to acquire the securities.
[
CCH Note:
S 662B(1) will be amended by No 69 of 2020, s 3, Sch 1[1026]
-
[
1031], by omitting
"
in the prescribed form
"
after
"
prepare a notice
"
in para (a), inserting para (a)(iv), substituting
"
the Registrar
"
for
"
ASIC
"
in para (b), para (c)(i), para (d) and in the note, (effective 1 July 2026 or a day or days to be fixed by Proclamation). Para (a)(iv) will read:
(iv)
meets any requirements of the data standards; and]
History
S 662B(1) amended by No 122 of 2001, s 3, Sch 1, Pt 2
[
398A].
Time for dispatching notice to holders
662B(2)
The bidder must dispatch the notices under paragraph
(1)(c)
:
(a)
during, or within 1 month after the end of, the offer period; and
(b)
on the day the bidder lodges the notice with ASIC or on the next business day.
The notices cannot be withdrawn.
[
CCH Note:
S 662B(2) will be amended by No 69 of 2020, s 3, Sch 1[1032], by substituting
"
the Registrar
"
for
"
ASIC
"
in para (b), (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
662B(3)
-
(4)
(Repealed by No 69 of 2023, s 3, Sch 1[46] and
[
47] (effective 15 September 2023).)
SECTION 662C
RIGHT OF REMAINING HOLDER OF SECURITIES IN THE BID CLASS TO BE BOUGHT OUT
CCH Note:
Section 662C is modified by the ASIC Corporations (Takeover Bids) Instrument 2023/683; and the ASIC Corporations (Compulsory Acquisitions and Buyouts) Instrument 2023/684.
662C(1)
Within 1 month after notice is given in relation to securities under section
662B
, the holder of the securities may give the bidder written notice requiring the bidder to acquire the securities. If alternative forms of consideration were offered under the takeover bid, the holder may elect in the notice which of those forms will apply to the acquisition of the holder's securities.
662C(2)
The notice by the holder gives rise to a contract between the holder and the bidder for the sale of the securities on:
(a)
the terms that applied to the acquisition of securities under the bid immediately before the end of the offer period; or
(b)
if alternative forms of consideration applied at that time
-
on the terms that the bidder will provide:
(i)
the alternative specified by the holder in the notice under subsection
(1)
; or
(ii)
if the holder has not made an election under that subsection
-
the alternative set out in the bidder's notice under section
662B
; or
(c)
if the holder and the bidder agree on other terms
-
those terms.
Division 3
-
Compulsory buy-out of convertible securities
CCH Note:
Division 3 is modified by the ASIC Corporations (Takeover Bids) Instrument 2023/683; and the ASIC Corporations (Compulsory Acquisitions and Buyouts) Instrument 2023/684.
SECTION 663A
BIDDER MUST OFFER TO BUY OUT HOLDERS OF CONVERTIBLE SECURITIES
CCH Note:
Section 663A is modified by the ASIC Corporations (Takeover Bids) Instrument 2023/683; and the ASIC Corporations (Compulsory Acquisitions and Buyouts) Instrument 2023/684.
663A(1)
If the bidder and their associates have relevant interests inat least 90% of the securities (by number) in the bid class at the end of the offer period, the bidder must offer to buy out the holders of securities that are convertible into bid class securities in accordance with sections
663B
and
663C
. This section does not apply to securities if a takeover bid has been made for the convertible securities and a notice has been given under section
661B
or
662B
in relation to the convertible securities.
Note: For when securities are convertible into bid class securities, see the definition of
convertible securities
in section 9.
663A(2)
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 663A(2) inserted by No 117 of 2001, s 3, Sch 1
[
234].
SECTION 663B
BIDDER TO TELL HOLDERS OF CONVERTIBLE SECURITIES OF THEIR RIGHT TO BE BOUGHT OUT
CCH Note:
Section 663B is modified by the ASIC Corporations (Takeover Bids) Instrument 2023/683; and the ASIC Corporations (Compulsory Acquisitions and Buyouts) Instrument 2023/684.
Notice to holders of convertible securities
663B(1)
The bidder must:
(a)
prepare a notice in the prescribed form that:
(i)
states that the bidder and their associates have relevant interests in at least 90% of the securities (by number) in the bid class; and
(ii)
informs the holder of convertible securities about their right to be bought out under this Part; and
(iii)
sets out the terms on which the holder may be bought out; and
(b)
lodge the notice with ASIC; and
(c)
give each other person who is a holder of convertible securities:
(i)
the notice; and
(ii)
a copy of the expert
'
s report, or of all the experts
'
reports, under section
667A
; and
(d)
give a copy of those documents to each relevant market operator on the same day as it is lodged with ASIC if the target is listed.
Note 1: Subparagraph (a)(iii)
-
Section
667A
deals with the contents of an expert
'
s report.
Note 2: The notice is to be given to everyone who holds convertible securities on the day on which the notice is lodged with ASIC. Under section
663C
, anyone who acquires the securities after that day may require the bidder to acquire the securities.
[
CCH Note:
S 663B(1) will be amended by No 69 of 2020, s 3, Sch 1[1033]
-
[
1037], by omitting
"
in the prescribed form
"
after
"
prepare a notice
"
in para (a), inserting para (a)(iv) and substituting
"
the Registrar
"
for
"
ASIC
"
in para (b), (d) and in note 2, (effective 1 July 2026 or a day or days to be fixed by Proclamation). Para (a)(iv) will read:
(iv)
meets any requirements of the data standards; and]
History
S 663B(1) amended by No 122 of 2001, s 3, Sch 1, Pt 2
[
399].
Time for dispatching notice to holders
663B(2)
The bidder must dispatch the notices and reports under paragraph
(1)(c)
:
(a)
during, or within 1 month after the end of, the offer period; and
(b)
on the day the bidder lodges the notice with ASIC or on the next business day.
The notices cannot be withdrawn.
[
CCH Note:
S 663B(2) will be amended by No 69 of 2020, s 3, Sch 1[1038], by substituting
"
the Registrar
"
for
"
ASIC
"
in para (b) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
663B(3)
-
(4)
(Repealed by No 69 of 2023, s 3, Sch 1[48] and
[
49] (effective 15 September 2023).)
SECTION 663C
RIGHT OF HOLDERS OF CONVERTIBLE SECURITIES TO BE BOUGHT OUT
CCH Note:
Section 663C is modified by the ASIC Corporations (Takeover Bids) Instrument 2023/683; and the ASIC Corporations (Compulsory Acquisitions and Buyouts) Instrument 2023/684.
663C(1)
Within 1 month after notice under section
663B
is given in relation to convertible securities, the holder of the convertible securities may give the bidder a notice requiring the bidder to acquire the securities.
663C(2)
The holder
'
s notice gives rise to a contract between the holder and the bidder for the sale of the securities on:
(a)
the terms agreed to by the bidder and the holder; or
(b)
the terms determined by the Court on application by the holder.
663C(3)
If the Court makes a determination under paragraph
(2)(b)
in relation to the terms of sale for a holder
'
s securities of a particular class, the determination applies to all holders of securities in that class who have applications to the Court pending for a determination under that paragraph in relation to the terms of sale of their securities.