Australian Securities and Investments Commission Class Order [CO 00/2338] (Cth)

ASIC Class Order [CO 00/2338]

Relief from the minimum bid price principle — s621(3)

This instrument has effect under s655A(1) of the Corporations Act 2001.

This compilation was prepared on 21 June 2013 taking into account amendments up to [CO 13/518]. See the table at the end of this class order.

Prepared by the Australian Securities and Investments Commission.

Australian Securities and Investments Commission
Corporations Act 2001 — Subsection 655A(1) — Declaration and Variation

Pursuant to subsection 655A(1) of the Corporations Act 2001 (the “Act”) the Australian Securities and Investments Commission (“ASIC”) hereby declares that Chapter 6 of the Act applies to all bidders as if section 621 were modified or varied by:

1     inserting after subsection 621(3) the following new subsections:

“(3A)   Despite subsection (3) the consideration offered for securities in the bid class under a takeover bid may be less than the maximum consideration under a purchase or agreement during the 4 months before the date of the bid to the extent of a decrease in the value of securities in the bid class if:

(a)     the decrease resulted from the target:

(i)    declaring a cash dividend; or

(ii)   converting its shares into a larger number under section 254H; and

(b)     the date on which the operator of the relevant approved financial market changes the basis of quotation for the class of securities to which the takeover bid relates to signify that trading in that class no longer carries the entitlement to the dividend or larger number of shares, is after the relevant purchase or agreement and at or before the date of the bid.

(3B)     Despite subsection (3) the bidder may offer consideration under a takeover bid that is less than the maximum consideration under a purchase or agreement during the 4 months before the date of the bid if the consideration is offered to any of:

(a)     a wholly-owned subsidiary of the bidder;

(b)     if the bidder is a wholly-owned subsidiary, its holding company or the holding company's wholly-owned subsidiaries; or

(c)     a nominee or bare trustee of bid class securities for the bidder or bodies referred to in paragraphs (a) or (b),

and provided that if the offer is made to a body referred to in paragraphs (a) or (b) or to its nominee or bare trustee the body must first have given the bidder its written consent for it or its nominee or bare trustee to receive the offer, which consent must acknowledge that the value of the consideration being offered is less than the value that would otherwise be required by subsection (3).

(3C)     For the purposes of subsection (3B), a body corporate is deemed to be a wholly-owned subsidiary of a holding company (including the bidder) if the first body corporate is a wholly-owned subsidiary of an intermediate body corporate that is the holding company's wholly-owned subsidiary (including a body corporate that is the holding company's wholly owned subsidiary by another operation or other operations of this subsection).”; and

2     inserting after subsection 621(4) the following new subsections:

“(4A)   Despite subsection (4), the bidder may ascertain the value of quoted securities that it offers as consideration under the takeover bid at any time of its choosing up to 5 business days before the date of the takeover bid if:

(a)     the bidder values the quoted securities by calculating the volume weighted average market price of those securities in the ordinary course of trading on the relevant approved financial market during the 2 full trading days before the chosen time;

(b)     the bidder includes in the bidder's statement the following:

(i)      the value of the quoted securities ascertained under paragraph (a); and

(ii)     details of the valuation method required to be applied by paragraph (a), including the trading days on which the valuation is based; and

(c)     the period of trading on which the valuation is based does not start until at least 5 trading days have elapsed after the day that the bidder sends a copy of the bidder's statement and offer document:

(i)      to the target under item 3 of subsection 633(1); and

(ii)     to each approved financial market on which the target's securities are quoted under item 5 of subsection 633(1).

(4B)     For the purposes of subsections (3) to (4A):

(a)     “approved financial market” in relation to quoted securities that the bidder offers as consideration means a prescribed financial market and also each of the following financial markets:

(i)      American Stock Exchange;

(ii)     Borsa Italiana;

(iii)    Bursa Malaysia Main Board and Bursa Malaysia Second Board;

(iv)    Euronext Amsterdam;

(v)     Euronext Paris;

(vi)    Frankfurt Stock Exchange;

(vii)   Hong Kong Stock Exchange;

(viii)  JSE;

(ix)    London Stock Exchange;

(x)     NASDAQ Stock Market;

(xi)    New York Stock Exchange;

(xii)   New Zealand Exchange;

(xiii)  Singapore Exchange;

(xiv)  SWX Swiss Exchange;

(xv)   Tokyo Stock Exchange;

(xvi)  Toronto Stock Exchange; and

 (b)    “quoted security” includes a security quoted on an approved financial market.

Notes to ASIC Class Order [CO 00/2338]

Note 1

ASIC Class Order [CO 00/2338] (in force under s655A(1) of the Corporations Act 2001) as shown in this compilation comprises that Class Order amended as indicated in the tables below.

Table of Instruments

Instrument number	Date of making or FRLI registration	Date of commencement	Application, saving or transitional provisions
[CO 00/2338]	15/12/2000 (see F2006B01605)	15/12/2000
[CO 02/258]	3/3/2002 (see F2006B01606)	11/3/2002	-
[CO 05/770]	7/10/2005 (see F2005L03044)	7/10/2005	-
[CO 07/300]	2/7/2007 (see F2007L02064)	2/7/2007	-
[CO 13/518]	21/6/2013 (see F2013L01102)	21/6/2013	-

Table of Amendments

ad. = added or inserted     am. = amended     rep. = repealed     rs. = repealed and substituted

Provision affected	How affected
Class Order.................	am. [CO 02/258] and [CO 13/518]
Para 1..........................	am. [CO 02/258]
Para 2..........................	am. [CO 05/770] and [CO 07/300]
Para 3..........................	am. [CO 02/258]