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.2
-
GENERAL COMPULSORY ACQUISITIONS AND BUY-OUTS
Division 1
-
Compulsory acquisition of securities by 90% holder
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 664A
THRESHOLD FOR GENERAL COMPULSORY ACQUISITION POWER
CCH Note:
Section 664A is modified by the ASIC Corporations (Takeover Bids) Instrument 2023/683; and the ASIC Corporations (Compulsory Acquisitions and Buyouts) Instrument 2023/684.
90% holder
-
holder of 90% of securities in particular class
664A(1)
A person is a 90% holder in relation to a class of securities of a company if the person holds, either alone or with a related body corporate, full beneficial interests in at least 90% of the securities (by number) in that class.
90% holder
-
holder with 90% voting power and 90% of whole company or scheme
664A(2)
A person is also a 90% holder in relation to a class of securities of a company if:
(a)
the securities in the class are shares or convertible into shares; and
(b)
the person
'
s voting power in the company is at least 90%; and
(c)
the person holds, either alone or with a related body corporate, full beneficial interests in at least 90% by value of all the securities of the company that are either shares or convertible into shares.
Note: Subsection
667A(2)
provides that the expert
'
s report that accompanies the compulsory acquisition notice must support the paragraph (c) condition.
90% holder may acquire remainder of securities in class
664A(3)
Under this section, a 90% holder in relation to a class of securities of a company may compulsorily acquire all the securities in that class in which neither the person nor any related bodies corporate has full beneficial interests if either:
(a)
the holders of securities in that class (if any) who have objected to the acquisition between them hold less than 10% by value of those remaining securities at the end of the objection period set out in the notice under paragraph
664C(1)(b)
; or
(b)
the Court approves the acquisition under section
664F
.
If subsection
(2)
applies to the 90% holder, the holder may compulsorily acquire securities in a class only if the holder gives compulsory acquisition notices in relation to all classes of shares and securities convertible into shares of which they do not already have full beneficial ownership.
Note: Subsection
92(3)
defines
securities
for the purposes of this Chapter.
664A(4)
This section has effect despite anything in the constitution of the company whose securities are to be acquired.
664A(5)
This Part does not apply to shares that give the shareholder, as a shareholder, a right to occupy or use real property that the company owns or holds under lease, whether the right is a lease or licence or a contractual right.
664A(6)
The 90% holder
'
s power to compulsorily acquire securities under a notice given under section
664C
ends if the 90% holder contravenes section
664D
by offering benefits outside the terms proposed in the compulsory acquisition notice under section
664C
.
SECTION 664AA
664AA
TIME LIMIT ON EXERCISING COMPULSORY ACQUISITION POWER
CCH Note:
Section 664AA is modified by the ASIC Corporations (Takeover Bids) Instrument 2023/683; and the ASIC Corporations (Compulsory Acquisitions and Buyouts) Instrument 2023/684.
The 90% holder in relation to a class of securities of a company may compulsorily acquire securities in that class under section
664A
only if the holder lodges the compulsory acquisition notice for the acquisition with ASIC under paragraph
664C(2)(a)
within whichever of the following periods ends last:
(a)
the period of 12 months that started on 13 March 2000; or
(b)
the period of 6 months after the 90% holder becomes the 90% holder in relation to that class.
[
CCH Note:
S 664AA will be amended by No 69 of 2020, s 3, Sch 1[1039], by substituting
"
the Registrar
"
for
"
ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
SECTION 664B
THE TERMS FOR COMPULSORY ACQUISITION
CCH Note:
Section 664B is modified by the ASIC Corporations (Takeover Bids) Instrument 2023/683; and the ASIC Corporations (Compulsory Acquisitions and Buyouts) Instrument 2023/684.
664B(1)
The 90% holder may acquire the securities in the class for a cash sum only and, subject to subsection
(2)
, must pay the same amount for each security in the class acquired.
History
S 664B(1) amended by No 122 of 2001, s 3, Sch 3, Pt 1
[
24].
664B(2)
The 90% holder may pay different amounts for the securities in the class acquired if the differences are attributable to either or both of the following:
(a)
the fact that there are differences in the accrued dividend or distribution entitlements of the securities;
(b)
the fact that there are differences in the amounts paid up, or that remain unpaid, on the securities.
History
S 664B(2) inserted by No 122 of 2001, s 3, Sch 3, Pt 1
[
25].
SECTION 664C
COMPULSORY ACQUISITION NOTICE
CCH Note:
Section 664C 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
664C(1)
To compulsorily acquire securities under section
664A
, the 90% holder must prepare a notice in the prescribed form that:
(a)
sets out the cash sum for which the 90% holder proposes to acquire the securities; and
(b)
specifies a period of at least 1 month during which the holders may return the objection forms; and
(c)
informs the holders about the compulsory acquisition procedure under this Part, including:
(i)
their right to obtain the names and addresses of the other holders of securities in that class from the company register; and
(ii)
their right to object to the acquisition by returning the objection form that accompanies the notice within the period specified in the notice; and
(d)
gives details of the consideration given for any securities in that class that the 90% holder or an associate has purchased within the last 12 months; and
(e)
discloses any other information that is:
(i)
known to the 90% holder or any related bodies corporate; and
(ii)
material to deciding whether to object to the acquisition; and
(iii)
not disclosed in an expert
'
s report under section
667A
.
[
CCH Note:
S 664C(1) will be amended by No 69 of 2020, s 3, Sch 1[1040] and
[
1041], by omitting
"
in the prescribed form
"
after
"
prepare a notice
"
and inserting para (f) (effective 1 July 2026 or a day or days to be fixed by Proclamation). Para (f) will read:
; and (f)
meets any requirements of the data standards.]
664C(2)
The 90% holder must then:
(a)
lodge the notice with ASIC; and
(b)
give each other person (other than a related body corporate) who is a holder of securities in the class on the day on which the notice is lodged with ASIC:
(i)
the notice; and
(ii)
a copy of the expert
'
s report, or of all experts
'
reports, under section
667A
; and
(iii)
an objection form; and
(c)
give the company copies of those documents; and
(d)
give copies of those documents to the relevant market operator if the company is listed.
Note: Everyone who holds the securities on the day on which the notice is lodged with ASIC is entitled to notice. Under subsection
664E(1)
, anyone who acquires the securities during the objection period may object to the acquisition.
[
CCH Note:
S 664C(2) will be amended by No 69 of 2020, s 3, Sch 1[1042] and
[
1043], by substituting
"
the Registrar
"
for
"
ASIC
"
in para (a), (b) and in the note, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 664C(2) amended by No 122 of 2001, s 3, Sch 1, Pt 2
[
400].
Time for dispatching notice to holders
664C(3)
The 90% holder must dispatch the notices under paragraph
(2)(b)
on the day the 90% holder lodges the notice with ASIC or on the next business day.
[
CCH Note:
S 664C(3) will be amended by No 69 of 2020, s 3, Sch 1[1044], by substituting
"
the Registrar
"
for
"
ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
664C(4)
-
(5)
(Repealed by No 69 of 2023, s 3, Sch 1[50] and
[
51] (effective 15 September 2023).)
Notice not to be withdrawn
664C(6)
The 90% holder may not:
(a)
withdraw a notice under this section; or
(b)
if the 90% holder has given a notice under this section in relation to those securities and the objection period for that notice has not ended
-
give another notice under this section in relation to securities.
SECTION 664D
BENEFITS OUTSIDE COMPULSORY ACQUISITION PROCEDURE
CCH Note:
Section 664D is modified by the ASIC Corporations (Takeover Bids) Instrument 2023/683; and the ASIC Corporations (Compulsory Acquisitions and Buyouts) Instrument 2023/684.
664D(1)
If the 90% holder gives a notice under section
664C
to compulsorily acquire securities, the 90% holder or an associate must not offer, give or agree to give a benefit to a person during the objection period if:
(a)
the benefit is likely to induce the person, or an associate of the person, to:
(i)
dispose of securities in that class; or
(ii)
not object to the acquisition of those securities under the notice; and
(b)
the benefit is not provided for in the notice.
664D(2)
If the 90% holder proposes to give a notice under section
664C
to acquire securities within the next 4 months, the 90% holder or an associate must not offer, give or agree to give a benefit to a person if:
(a)
the benefit is likely to induce the person, or an associate of the person, to:
(i)
dispose of securities in that class; or
(ii)
not object to the acquisition of those securities under the notice; and
(b)
the benefit is not proposed to be provided for in the notice.
664D(3)
If the 90% holder gives a notice under section
664C
to compulsorily acquire securities, the 90% holder or an associate must not give a benefit to a person:
(a)
within 1 month after the end of the objection period (see subsection
664F(2)
); or
(b)
during any proceedings by the Court to determine an application under subsection
664F(1)
by the 90% holder;
if:
(c)
the benefit is likely to induce the person, or an associate of the person, to:
(i)
not object, or pursue an objection, to the acquisition of those securities under the notice; or
(ii)
dispose of securities in that class; and
(d)
the benefit is not offered to all holders of securities in that class under the notice.
664D(3A)
An offence based on subsection
(1)
,
(2)
or
(3)
is an offence of strict liability.
Note: For
strict liability
, see section 6.1 of the
Criminal Code
.
History
S 664D(3A) inserted by No 117 of 2001, s 3, Sch 1
[
235].
664D(4)
This section does not prohibit simultaneous notices under section
664C
to compulsorily acquire different classes of securities in the company.
SECTION 664E
HOLDER
'
S RIGHT TO OBJECT TO THE ACQUISITION
CCH Note:
Section 664E is modified by the ASIC Corporations (Takeover Bids) Instrument 2023/683; and the ASIC Corporations (Compulsory Acquisitions and Buyouts) Instrument 2023/684.
664E(1)
A person who holds securities covered by the compulsory acquisition notice may object to the acquisition of the securities by signing an objection form and giving it to the 90% holder. The objection:
(a)
relates to all securities that are covered by the notice and are held by the person at the end of the objection period; and
(b)
cannot be withdrawn.
History
S 664E(1) amended by No 69 of 2023, s 3, Sch 1[52] (effective 15 September 2023).
664E(2)
The 90% holder must lodge with ASIC a copy of any objection form given under subsection
(1)
as soon as practicable after it is given.
[
CCH Note:
S 664E(2) will be amended by No 69 of 2020, s 3, Sch 1[1044] and
[
1045], by substituting
"
the Registrar
"
for
"
ASIC
"
and inserting
"
Lodgement of the copy must meet any requirements of the data standards.
"
at the end of subsection, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 664E(2) amended by No 69 of 2023, s 3, Sch 1[53] (effective 15 September 2023).
664E(3)
As soon as practicable after the end of the objection period, the 90% holder must:
(a)
prepare a list that sets out:
(i)
the names of people who hold securities covered by the compulsory acquisition notice and have objected to the acquisition; and
(ii)
details of the securities they hold; and
(b)
lodge the list with ASIC; and
(c)
give a copy of the list to the company; and
(d)
if the company is listed
-
give a copy to the relevant market operator.
[
CCH Note:
S 664E(3) will be amended by No 69 of 2020, s 3, Sch 1[1046], by substituting
"
the Registrar
"
for
"
ASIC
"
in para (b) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 664E(3) amended by No 122 of 2001, s 3, Sch 1, Pt 2
[
401].
[
CCH Note:
S 664E(3A) will be inserted by No 69 of 2020, s 3, Sch 1[1047] (effective 1 July 2026 or a day or days to be fixed by Proclamation). S 664E(3A) will read:
664E(3A)
Lodgement of the list with the Registrar must meet any requirements of the data standards.]
664E(4)
If people who hold at least 10% of the securities covered by the compulsory acquisition notice object to the acquisition before the end of the objection period, the 90% holder must give everyone to whom the compulsory acquisition notice was sent under section
664C
:
(a)
a notice that the proposed acquisition will not occur; or
(b)
a notice that the 90% holder has applied to the Court for approval of the acquisition under section
664F
;
within 1 month after the end of the objection period.
664E(5)
An offence based on subsection
(2)
,
(3)
or
(4)
is an offence of strict liability.
Note: For
strict liability
, see section
6.1
of the
Criminal Code
.
History
S 664E(5) inserted by No 117 of 2001, s 3, Sch 1
[
236].
SECTION 664F
THE COURT
'
S POWER TO APPROVE ACQUISITION
CCH Note:
Section 664F is modified by the ASIC Corporations (Takeover Bids) Instrument 2023/683; and the ASIC Corporations (Compulsory Acquisitions and Buyouts) Instrument 2023/684.
664F(1)
If people who hold at least 10% of the securities covered by the compulsory acquisition notice object to the acquisition before the end of the objection period, the 90% holder may apply to the Court for approval of the acquisition of the securities covered by the notice.
664F(2)
The 90% holder must apply within 1 month after the end of the objection period.
664F(3)
If the 90% holder establishes that the terms set out in the compulsory acquisition notice give a fair value for the securities, the Court must approve the acquisition of the securities on those terms. Otherwise it must confirm that the acquisition will not take place.
Note: See section
667C
on valuation.
664F(4)
The 90% holder must bear the costs that a person incurs on legal proceedings in relation to the application unless the Court is satisfied that the person acted improperly, vexatiously or otherwise unreasonably. The 90% holder must bear their own costs.
SECTION 664G
664G
SIGNPOST
-
COMPLETING THE ACQUISITION OF THE SECURITIES
CCH Note:
Section 664G 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
for how to complete the acquisition.
Division 2
-
Compulsory buy-out of convertible securities by 100% holder
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 665A
100% HOLDER MUST OFFER TO BUY OUT HOLDERS OF CONVERTIBLE SECURITIES
CCH Note:
Section 665A is modified by the ASIC Corporations (Takeover Bids) Instrument 2023/683; and the ASIC Corporations (Compulsory Acquisitions and Buyouts) Instrument 2023/684.
665A(1)
A person is a 100% holder of securities in a class if the person, either alone or with a related body corporate, holds full beneficial interests in all the securities in the class.
665A(2)
A 100% holder in relation to a class of securities (the
main class
) who becomes a 100% holder through compulsory acquisitions under this Part must offer to buy out the holders of securities in another class that are convertible into main class securities in accordance with sections
665B
and
665C
. This subsection does not apply to securities if a notice is given in relation to the securities under section
661B
,
662B
or
664C
.
Note: For when securities are convertible into main class securities, see the definition ofconvertible securities
in section
9
.
665A(3)
An offence based on subsection
(2)
is an offence of strict liability.
Note: For
strict liability
, see section 6.1 of the
Criminal Code
.
History
S 665A(3) inserted by No 117 of 2001, s 3, Sch 1
[
237].
SECTION 665B
100% HOLDER TO TELL HOLDERS OF CONVERTIBLE SECURITIES OF THEIR RIGHT TO BE BOUGHT OUT
CCH Note:
Section 665B 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
665B(1)
The 100% holder must:
(a)
prepare a notice in the prescribed form that:
(i)
states that the person giving the notice has acquired all the securities in the main class; and
(ii)
sets out the information that was included in the compulsory acquisition notice given in relation to securities in the main class under paragraphs
664C(1)(d)
and (e); and
(iii)
sets out the cash sum for which they are willing to acquire the convertible securities; and
(iv)
informs the holder of convertible securities about their right to be bought out under this Part; and
(b)
lodge the notice with ASIC; and
(c)
give each other person who is a holder of convertible securities on the day on which the notice is lodged with ASIC:
(i)
the notice; and
(ii)
a copy of the expert
'
s report, or all experts
'
reports, under section
667A
; and
(d)
give a copy of the documents to the company that issued the securities; and
(e)
give a copy of the documents to each relevant market operator on the same day as it is lodged with ASIC if the company is listed.
Note 1: Subparagraph (a)(iv)
-
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
665C
, anyone who holds the securities after that day may require the 100% holder to acquire the securities.
[
CCH Note:
S 665B(1) will be amended by No 69 of 2020, s 3, Sch 1[1048]
-
[
1051], by omitting
"
in the prescribed form
"
after
"
prepare a notice
"
in para (a), inserting para (a)(v) and substituting
"
the Registrar
"
for
"
ASIC
"
in para (b), (c), (e) and in note 2, (effective 1 July 2026 or a day or days to be fixed by Proclamation). Para (a)(v) will read:
(v)
meets any requirements of the data standards; and]
History
S 665B(1) amended by No 122 of 2001, s 3, Sch 1, Pt 2
[
402].
[
CCH Note:
S 665B(1A) will be inserted by No 69 of 2020, s 3, Sch 1[1052] (effective 1 July 2026 or a day or days to be fixed by Proclamation). S 665B(1A) will read:
Lodgement requirements
665B(1A)
Lodgement of the notice with the Registrar must meet any requirements of the data standards.]
Time for dispatching notice to holders
665B(2)
The 100% holder must dispatch the notices and reports under paragraph
(1)(c)
:
(a)
within 1 month after they become the 100% holder; and
(b)
on the day the 100% holder lodges the notice with ASIC or on the next business day.
The notices cannot be withdrawn.
[
CCH Note:
S 665B(2) will be amended by No 69 of 2020, s 3, Sch 1[1053], by substituting
"
the Registrar
"
for
"
ASIC
"
in para (b) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
665B(3)
-
(4)
(Repealed by No 69 of 2023, s 3, Sch 1[54] and
[
55] (effective 15 September 2023).)
SECTION 665C
RIGHT OF HOLDERS OF CONVERTIBLE SECURITIES TO BE BOUGHT OUT
CCH Note:
Section 665C is modified by the ASIC Corporations (Takeover Bids) Instrument 2023/683; and the ASIC Corporations (Compulsory Acquisitions and Buyouts) Instrument 2023/684.
665C(1)
Within 1 month after notice under section
665B
is given in relation to convertible securities, the holder of the convertible securities may give the 100% holder a notice requiring the 100% holder to acquire the securities.
665C(2)
The notice by the holder of convertible securities gives rise to a contract between the holder and the 100% holder for the sale of the securities on:
(a)
terms agreed to by the 100% holder and the holder of the convertible securities; or
(b)
the terms determined by the Court on application by the holder of the convertible securities.
665C(3)
If the Court makes a determination under paragraph
(2)(b)
in relation to the terms of sale for a holder
'
s convertible securities of a particular class, the determination applies to all holders of convertible 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 convertible securities.
Division 3
-
Notice that person has become 85% holder of a class of securities
History
Div 3 (comprising s 665D and 665E) repealed by No 101 of 2007, s 3, Sch 1, Pt 1
[
69] (effective 28 June 2007).