Corporations Act 2001
A target ' s statement must include all the information that holders of bid class securities and their professional advisers would reasonably require to make an informed assessment whether to accept the offer under the bid.
[ CCH Note: S 638(1AA) will be inserted by No 69 of 2020, s 3, Sch 1 (effective 22 June 2022 or a day or days to be fixed by Proclamation). S 638(1AA) will read:
Lodgement of the statement must meet any requirements of the data standards.]
However, the statement must contain this information:
(a) only to the extent to which it is reasonable for investors and their professional advisers to expect to find the information in the statement; and
(b) only if the information is known to any of the directors of the target.
Note: A defendant bears an evidential burden in relation to the matters in subsection (1A), see subsection 13.3(3) of the Criminal Code .
In deciding what information should be included under subsection (1), have regard to:
(a) the nature of the bid class securities; and
(b) if the bid class securities are interests in a managed investment scheme - the nature of the scheme; and
(c) the matters that the holders of bid class securities may reasonably be expected to know; and
(d) the fact that certain matters may reasonably be expected to be known to their professional advisers; and
(e) the time available to the target to prepare the statement. Director ' s recommendations 638(3)
A target ' s statement must contain a statement by each director of the target:
(a) recommending that offers under the bid be accepted or not accepted, and giving reasons for the recommendation; or
(b) giving reasons why a recommendation is not made. 638(4)
The statement under subsection (3) must be made by:
(a) if the target is under administration - the liquidator or administrator; or
(b) if the target has executed a deed of company arrangement that has not yet terminated - the deed's administrator. Consent of person to whom statement attributed 638(5)
The target ' s statement may only include, or be accompanied by, a statement by a person, or a statement said in the target ' s statement to be based on a statement by a person, if:
(a) the person has consented to the statement being included in the target ' s statement, or accompanying it, in the form and context in which it is included; and
(b) the target ' s statement states that the person has given this consent; and
(c) the person has not withdrawn this consent before the target ' s statement is lodged with ASIC.
[ CCH Note: S 638(5) will be amended by No 69 of 2020, s 3, Sch 1, by substituting " the Registrar " for " ASIC " in para (c) (effective 22 June 2022 or a day or days to be fixed by Proclamation).]
The target must keep the consent. Strict liability offences 638(7)
An offence based on subsection (1), (3), (5) or (6) is an offence of strict liability.
Note: For strict liability , see section 6.1 of the Criminal Code .
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