ASIC Class Order [CO 00/0455]

ASIC Class Order [CO 00/455]

Collective action by institutional investors

This instrument has effect under subsections  655A(1) and  673(1) of the Corporations Act 2001.

This compilation was prepared on 4 October 2013 taking into account amendments up to [CO 13/854].

Prepared by the Australian Securities and Investments Commission.

Australian Securities and Investments Commission
Corporations Act 2001 — Subsections  655A(1) and  673(1) — Declaration

Pursuant to subsection 655A(1) of the Corporations Act 2001 (Act) the Australian Securities and Investments Commission (ASIC) hereby declares that Chapter 6 of the Act applies to the class of persons referred to in Schedule A, in the case referred to in Schedule B, as if section 609 of the Act were modified or varied by inserting after subsection 609(16) (as notionally inserted by ASIC Class Order [CO 12/1209]) the following subsections:

“Collective action by institutions

(18A) In this subsection and in subsections (18B) and (18C):

 institution means a body corporate whose primary functions are to:

(a)  pool the funds of persons to whom the body corporate owes a fiduciary duty, or a contractual duty under a life insurance policy; and

 (b)  invest the funds of any of the following:

(i)  a registered scheme;

(ii) a regulated superannuation fund, an approved deposit fund, a pooled superannuation trust or a public sector superannuation scheme within the meaning of the Superannuation Industry (Supervision) Act 1993;

(iii) a statutory fund of a registered life insurance company within the meaning of the Life Insurance Act 1995.

subject company means where a voting agreement is entered into, the company whose meeting is the subject of the voting agreement.

voting agreement means an agreement between two or more institutions relating to voting in a particular way, on a particular issue, or abstaining from voting, at a specified or a proposed meeting of a company in relation to which the institutions have voting power.

(18B) An institution does not have a relevant interest in, or voting power in relation to, securities merely because it has entered into a voting agreement with one or more institutions.

(18C) Institutions are not associates merely as a result of becoming parties to a voting agreement.”.

And pursuant to subsection  673(1) of the Act ASIC hereby declares that Chapter 6C of the Act applies to the class of persons described in Schedule A, in the case referred to in Schedule B, as if section  671B were modified or varied by inserting after subsection 671B(7) the following subsections:

“Collective action by institutions

 (8) For the purposes of this section, and of the definition of substantial holding in section 9, disregard any relevant interests or voting power in securities which is disregarded for the purposes of Chapter 6 because of  subsections 609(18A) to (18C)”

 (9) In this subsection and in subsections (10) to (16):

institution, subject company and voting agreement have the meanings given in subsection 609(18A).

meeting means the meeting of a subject company.

relevant event  means either:

(a) entering into a voting agreement; or

(b) a party to a voting agreement becoming aware of a change in relevant interests referred to in subsection (11) or (12).

 (10) Each party to a voting agreement must announce:

(a) the names of all the parties to the voting agreement;

(b) the name of the subject company;

(c) if the date and time of the meeting is known at the time of the announcement — the date and time of the meeting;

(d) otherwise — a description sufficient to identify the meeting;

(e) a description of the matter to be voted on at the meeting to which the voting agreement relates;

(f) a summary of the objectives of the action and how the parties to the voting agreement propose to vote on that matter;

(g) the relevant interests in voting shares of, and voting power in relation to, the subject company held by each party to the voting agreement; and

(h) the aggregate voting power and relevant interests in voting shares in the subject company of the parties to the voting agreement.

(11) Each party to a voting agreement must announce any movement of at least 1% in its holding in voting shares in the subject company from the last time an announcement was made pursuant to this subsection or subsection (10).

(12) Each party to a voting agreement must announce any movement of at least 5% in the aggregate holding in voting shares in the subject company of the parties to the voting agreement from the last time an announcement was made pursuant to this subsection or subsection (10).

(13) An announcement made pursuant to subsection (11) or (12) must refer to the announcement previously made pursuant to subsection (10).

(14) A copy of an announcement made pursuant to this section must be given to the subject company before 9.30 am on the next business day after the relevant event.

(15) If the subject company is listed, a copy of the announcement must be given to the operator of each relevant financial market before 9.30 am on the next business day after the relevant event. Otherwise, the announcement must be made by an advertisement in one or more newspapers which circulate throughout this jurisdiction, as soon as possible after the relevant event.

(16) An announcement under this section can be made by one party to the voting agreement, on behalf of itself and any or all the other parties to the voting agreement.”.

SCHEDULE A

1. An institution for so long as it is both a party to the voting agreement and an institution.

2. Any person who would, but for the operation of this Class Order, acquire a relevant interest in or voting power in relation to securities the subject of the voting agreement as a result of an institution entering into the voting agreement.

SCHEDULE B

The Class Order applies only where:

1. an institution would, but for the operation of this Class Order, have voting power of 5% or more in relation to the company whose meeting is the subject of the voting agreement;

2. no consideration (other than a promise to exercise a vote in a particular way) passes between any of the parties to the voting agreement or any other party in connection with, or as a result of, the voting agreement;

3. the parties to the voting agreement would not, apart from this Class Order, collectively have voting power of 20% or more in the company the subject of the voting agreement, after excluding voting power in relation to securities which are:

(a) held by a party to the agreement, or their associate, on trust for, as agent of, on behalf of or for the benefit of persons to whom the party owes a fiduciary duty; or

(b) held for a statutory fund for a registered life insurance company in respect of investment-linked products;

4. any party to the voting agreement can terminate its participation in the voting agreement at will;

5. the voting agreement specifies that it will terminate at the close of the meeting which is the subject of the voting agreement; and

6. the parties to the voting agreement make an announcement of the kind described in subsection 671B(10) as appearing above in this instrument not less than 7 days before the due date of the meeting which is the subject of the voting agreement.

Interpretation

For the purposes of Schedules A and B, institution and voting agreement have the meanings given to those terms above in this instrument.

Note:  In this instrument, this jurisdiction means Australia: Act, ss 5 and 9 (definition of “this jurisdiction”). 

Notes to ASIC Class Order [CO 00/455]

Note 1

ASIC Class Order [CO 00/455] (in force under subsections  655A(1) and  673(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

Table of Amendments

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