ASIC Class Order [CO 01/1543]

ASIC Class Order [CO 01/1543]

Takeover bids

This instrument is made under subsection 655A(1) of the Corporations Act 2001.

This compilation was prepared on 4 October 2005 taking into account amendments up to [CO 02/269].

Prepared by the Australian Securities and Investments Commission.

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

Under subsection  655A(1) of the Corporations Act 2001 (the Act) the Australian Securities and Investments Commission hereby declares that Chapter of the Act applies to all persons as if:

Formulating the takeover offer

1. subsection  617(2) were modified by omitting the words “offer period” and substituting the phrase “period from the date set by the bidder under subsection  633(2) to the end of the offer period”;

2. subsection 619(3) were modified by:

(a) inserting after the words “target's securities” where first appearing the words, “or such of those foreign holders as are specified in the bidder's statement,”; and

(b) in paragraph (a), deleting the words “foreign holders of the target's securities” and substituting the words “those foreign holders”;

(c) in subparagraph (b)(i), inserting after the words “foreign holders” the words, “or specified foreign holders,”;

3. paragraph  620(2)(b) were omitted and the following paragraphs substituted:

“(b) if the bidder is given the necessary transfer documents after the acceptance and before the end of the bid period and the offer is subject to a defeating condition at the time that the bidder is given the necessary transfer documents — by the end of whichever of the following periods ends earlier:

(i) 1 month after the takeover contract becomes unconditional; or

(ii) 21 days after the end of the offer period; or

(ba) if the bidder is given the necessary transfer documents after the acceptance and before the end of the bid period and the offer is unconditional at the time that the bidder is given the necessary transfer documents — by the end of whichever of the following periods ends earlier:

(i) 1 month after the bidder is given the necessary transfer documents; or

(ii) 21 days after the end of the offer period; or”;

4. paragraph  620(2)(c) were modified by omitting the words after “bid period” and substituting the following:

(i) if at the time the bidder is given the necessary transfer documents the takeover contract is unconditional, within 21 days after the bidder is given the necessary transfer documents; or

(ii) if at the time the bidder is given the necessary transfer documents the takeover contract is subject to a defeating condition that relates only to the happening of an event or circumstance referred to in subsection  652C(1) or (2), within 21 days after the takeover contract becomes unconditional.”;

5. subsection  623(1) were modified by:

(a) omitting the words “the offer period” and substituting the following:

“:(a) for an off-market bid — the offer period; or

(b) for a market bid — the bid period,”; and

(b) renumbering existing paragraphs (a) and (b) as  “(c)” and “(d)” respectively;

6. subsection  625(3) were modified by adding at the end of the subsection the following words:

 “The condition referred to in this subsection is not a defeating condition.”;

7. subsection  630(4) were modified by omitting the words “publishing” and “publish” and substituting in their respective places the words “giving” and “give”;

Detailed steps in an off-market bid

8. section  633 were modified by inserting the following new subsections after subsection  633(1):

“(1A) Despite any other provision of this Chapter, the copy of the bidder's statement and offer document that the bidder lodges with ASIC under item 2 of the table in subsection (1), sends to the target under item 3 of the table and sends to the operator of each relevant prescribed financial market under item 5 of the table may omit the following information:

(a) the date of the proposed offer or any other date that is related to or dependent on that date; and

(b) the name and address of holders of securities referred to in item 6 of the table.

 The bidder must include the information in the bidder's statement and offer document sent to the holders of securities under item 6 of the table in subsection (1).

(1B) Despite subsection  636(1), the copy of the bidder's statement and offer document that the bidder lodges with ASIC under item 2 of the table in subsection (1), sends to the target under item 3 of the table and sends to the operator of each relevant prescribed financial market under item 5 of the table may include the following information:

(a) details of the bidder's relevant interest and voting power referred to in paragraphs 636(1)(k) and 636(1)(l) as at the date of lodgment; or

(b) details of the consideration and benefits referred to in paragraphs  636(1)(h) and  636(1)(i) for the period of 4 months before the date of lodgment.

 The bidder's statement and offer document sent to holders of securities under item 6 of the table in subsection (1) must be updated to include the information in paragraph (a) as at the date of the bid and the information in paragraph (b) for the period of 4 months before the date of the bid.

(1C) If the bidder's statement and offer document:

(a) omits information under subsection (1A); or

(b) includes information under subsection (1B),

 the bidder must send to ASIC, the target and the operator of each relevant prescribed financial market at the time that the bidder sends its first bidder's statement and offer document to holders, a copy of those documents as sent to those holders.”

Bidder's statement content

9.  subsection 636(1) were modified by deleting paragraphs (g) and (ga) and substituting the following paragraphs:

“(g)  if any securities (other than managed investment products) are offered as consideration under the bid and:

(i)  the bidder is the body that has issued or will issue the securities; or

(ii)  the bidder is a person that controls that body; or

(iii)  that body agrees to the bidder offering, or authorises, arranges for or permits the bidder to offer the securities;

 all material that would be required for a prospectus for an offer of those securities by the bidder, or, if subparagraph (iii) applies, the body, under section 710 to 713;

(ga) if any managed investment products are offered as consideration under the bid and:

(i) the bidder is the responsible entity of the managed investment scheme; or

(ii) the bidder is a person who controls the responsible entity of the managed investment scheme; or

(iii) the responsible entity agrees to the bidder offering, or authorises, arranges for or permits the bidder to offer the securities;

 all material that would be required by section 1013C to be included in a Product Disclosure Statement given to a person in an issue situation (within the meaning of section 1012B) in relation to those managed investment products;”;

10. paragraph  636(1)(j) were modified by omitting the words “offer period” and substituting the words “period from the date set by the bidder under subsection  633(2) to the end of the offer period”;

11. subsection  636(3) were modified by adding at the end of the subsection the following sentence:

 “But the bidder's statement may include or be accompanied by a statement without the requirements in paragraphs (a) to (c) being met where:

(d) the statement was made in a document lodged with:

(i) ASIC; or

(ii) the operator of a prescribed financial market by a listed company, managed investment scheme or other body in compliance with the listing rules of the prescribed financial market;

(e) the bidder's statement:

(i) fairly represents the statement; or

(ii) includes, or is accompanied by, a correct and fair copy of the document or the part of the document that contains the statement; and

(f) if the bidder's statement is not accompanied by a copy of the document or part of document that contains the statement:

(i) the bidder gives a copy of the document or the part of the document that contains the statement to a holder who asks for it during the bid period free of charge; and

(ii) the bidder's statement:

(A) identifies the document or the part of the document that contains the statement; and

(B) informs holders of their right to obtain a copy of the document (or part) free of charge.”;

Target's statement

12. subsection  638(5) were modified by adding at the end of the subsection the following sentence:

 “But the target's statement may include or be accompanied by a statement without the requirements in paragraphs (a) to (c) being met where:

(d) the statement was made in a document lodged with:

(i) ASIC; or

(ii) the operator of a prescribed financial market by a listed company, managed investment scheme or other body in compliance with the listing rules of the prescribed financial market;

(e) the target's statement:

(i) fairly represents the statement; or

(ii) includes, or is accompanied by, a correct and fair copy of the document or the part of the document that contains the statement;

(f) if the target's statement is not accompanied by a copy of the document or part of document that contains the statement:

(i) the target gives a copy of the document or the part of the document that contains the statement to a holder who asks for it during the bid period free of charge; and

(ii) the target's statement:

(A) identifies the document or the part of the document that contains the statement; and

(B) informs holders of their right to obtain a copy of the document (or part) free of charge.”;

Varying offers

13. paragraph  650B(1)(h) were modified by inserting the word “or” after the word “additional”;

14. subsection  650C(2) were modified by:

(a) omitting the words “publication of” and substituting the words “bidder has given”; and

(b) omitting the word “publication” and substituting the words “bidder has given the notice”;

15. paragraph  650F(1)(a) were omitted and the following paragraph substituted:

“(a) if the condition relates only to the happening of an event or circumstance referred to in subsection  652C(1) or (2) — not later than 3 business days after the end of the offer period; or”; and

16. paragraph  650G(b) were modified by omitting the phrase “subsection  630(1) or (2)” and substituting “subsection  650F(1)”. 

Notes to ASIC Class Order [CO 01/1543]

Note 1

ASIC Class Order [CO 01/1543] (in force under subsection 655A(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