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.4
-
EXPERTS' REPORTS AND VALUATIONS
SECTION 667A
EXPERT
'
S REPORT
CCH Note:
Section 667A is modified by the ASIC Corporations (Takeover Bids) Instrument 2023/683; and the ASIC Corporations (Compulsory Acquisitions and Buyouts) Instrument 2023/684.
667A(1)
An expert
'
s report under section
663B
,
664C
or
665B
must:
(a)
be prepared by a person nominated by ASIC under section
667AA
; and
(b)
state whether, in the expert
'
s opinion, the terms proposed in the notice give a fair value for the securities concerned; and
(c)
set out the reasons for forming that opinion.
Note: See section
667C
on valuation.
667A(2)
If the person giving the compulsory acquisition notice is relying on paragraph
664A(2)(c)
to give the notice, the expert
'
s report under section
664C
must also:
(a)
state whether, in the expert
'
s opinion, the person (either alone or together with a related body corporate) has full beneficial ownership in at least 90% by value of all the securities of the company that are shares or convertible into shares; and
(b)
set out the reasons for forming that opinion.
667A(3)
If the person giving the compulsory acquisition notice obtains 2 or more reports, each of which were obtained for the purposes of that notice, a copy of each report must be given to the holder of the securities.
667A(4)
An offence based on subsection
(3)
is an offence of strict liability.
Note: For
strict liability
, see section 6.1 of the
Criminal Code
.
History
S 667A(4) inserted by No 117 of 2001, s 3, Sch 1
[
242].
SECTION 667AA
EXPERT TO BE NOMINATED
CCH Note:
Section 667AA is modified by the ASIC Corporations (Takeover Bids) Instrument 2023/683; and the ASIC Corporations (Compulsory Acquisitions and Buyouts) Instrument 2023/684.
667AA(1)
A person who proposes to obtain an expert
'
s report for the purposes of section
663B
,
664C
or
665B
must request ASIC in writing to nominate a person to prepare the expert
'
s report.
667AA(2)
Within 14 days after receiving a request under subsection
(1)
, ASIC must nominate:
(a)
an appropriate person to prepare the report; or
(b)
up to 5 appropriate persons, one of whom the person making the request may choose to prepare the report.
667AA(3)
In determining whether a person is an appropriate person to prepare an expert
'
s report, and without limiting the matters that ASIC may consider, ASIC must consider the nature of the company to be valued.
SECTION 667B
EXPERT MUST NOT BE AN ASSOCIATE AND MUST DISCLOSE PRIOR DEALINGS AND RELATIONSHIPS
CCH Note:
Section 667B is modified by the ASIC Corporations (Takeover Bids) Instrument 2023/683; and the ASIC Corporations (Compulsory Acquisitions and Buyouts) Instrument 2023/684.
667B(1)
The expert who provides the report must not be an associate of:
(a)
the person giving the notice; or
(b)
the company that issued the securities.
667B(2)
The report must set out details of:
(a)
any relationship between the expert and:
(i)
the person giving the notice or an associate of the person giving the notice; or
(ii)
the company that issued the securities or an associate of the company;
including any circumstances in which the expert gives them advice, or acts on their behalf, in the proper performance of the functions attaching to the expert
'
s professional capacity or business relationship with them; and
(b)
any financial or other interest of the expert that could reasonably be regarded as being capable of affecting the expert
'
s ability to give an unbiased opinion in relation to the matter being reported on; and
(c)
any fee, payment or other benefit (whether direct or indirect) that the expert has received or will or may receive in connection with the report.
SECTION 667C
VALUATION OF SECURITIES
CCH Note:
Section 667C is modified by the ASIC Corporations (Takeover Bids) Instrument 2023/683; and the ASIC Corporations (Compulsory Acquisitions and Buyouts) Instrument 2023/684.
667C(1)
To determine what is fair value for securities for the purposes of this Chapter:
(a)
first, assess the value of the companyas a whole; and
(b)
then allocate that value among the classes of issued securities in the company (taking into account the relative financial risk, and voting and distribution rights, of the classes); and
(c)
then allocate the value of each class pro rata among the securities in that class (without allowing a premium or applying a discount for particular securities in that class).
667C(2)
Without limiting subsection
(1)
, in determining what is fair value for securities for the purposes of this Chapter, the consideration (if any) paid for securities in that class within the previous 6 months must be taken into account.