Corporations Act 2001

CHAPTER 6 - TAKEOVERS  

Note: This Chapter only applies to acquisitions of interests in a CCIV if the CCIV is a listed company: see Division 1 of Part 8B.7 .

PART 6.5 - THE TAKEOVER PROCEDURE  

Division 1 - The overall procedure  

SECTION 633   DETAILED STEPS IN AN OFF-MARKET BID  

633(1)    

The following table provides for the steps that a bidder must take to make an effective off-market bid and the steps that a target must take when an off-market bid is made.

Steps in off-market bid	[ operative table]
	Steps	Timing and relevant provisions
1	The bidder must prepare:	See section 636 for content of statement.
	•	a bidder ' s statement; and
	•	if the bidder ' s statement does not set out all the terms of the offer - an offer document that sets out the other terms of the offer.
2	The bidder must lodge a copy of the bidder ' s statement and offer document with ASIC.
3	The bidder must send a copy of the bidder ' s statement and offer document to the target.	To be done on the day the bidder ' s statement is lodged or within 21 days afterwards
4	The bidder must lodge with ASIC a notice stating that the bidder ' s statement and offer document have been sent to the target.	To be done on the day the bidder ' s statement is sent to the target
5	The bidder must send a copy of the bidder ' s statement and offer document to the operator of each declared financial market on which the target ' s securities are quoted.	To be done on the day the bidder ' s statement is sent to the target See also subsection (5) .
6	The bidder must send the bidder ' s statement and offers to each person (other than the bidder) who holds:	To be done:
		•	within a 3 day period; and
		•	within 14 - 28 days after the bidder ' s statement is sent to the target
	•			securities in the bid class; or
	•	if the bid extends to securities that come to be in the bid class due to the conversion of or exercise of rights attached to other securities (see subsection 617(2) ) - the other securities;	The directors of the target may agree that the offers and accompanying documents be sent earlier. See also subsections (5) and (6) . Item 2 of the table in section 611 covers offers made by the bidder on-market during the period between the lodgment of the bidder ' s statement and the making of the offers under the bid . Sections 648B and 648C provide for the manner in which documents may be sent to holders .
	as at the date set by the bidder under subsection (2). The offers must be made on the terms set out in the bidder ' s statement and the offer document lodged with ASIC under item 2.
7	The bidder must send a notice to the target that the bidder ' s statement and offers have been sent as required by item 6. The notice must state the date of the offers.	To be done on the day all offers have been sent as required by item 6 See subsection 620(1) on date of offer .
8	The bidder must send a notice that offers have been sent as required by item 6 to the operator of each declared financial market on which the target ' s securities are quoted.	To be done on the day all offers have been sent as required by item 6
9	The bidder must lodge with ASIC a notice that offers have been sent as required by item 6.	To be done on the day all offers have been sent as required by item 6
10	The target must prepare a target ' s statement.	See section 638 for content of statement .
11	The target must send the target ' s statement (and any accompanying report) to the bidder.	To be done no later than 15 days after the target receives a notice that all offers have been sent as required by item 6
12	The target must send a copy of the target ' s statement (and any accompanying report) to each person who holds:	To be done:
		•	no earlier than the day on which the target sends the target ' s statement to
	•	securities in the bid class; or		the bidder; and
	•	if the bid extends to securities that come to be in the bid class due to the conversion of or exercise of rights attached to other securities (see subsection 617(2) ) - the other securities;	•	no later than 15 days after the target receives a notice that all offers have been sent as required by item 6
			Sections 648B and 648C provide for the manner in which documents may be sent to holders .
	as at the date set by the bidder under subsection (2).
13	The target must lodge a copy of the target ' s statement (and any accompanying report) with ASIC.	To be done on the day the target ' s statement is sent to the bidder See also subsection (7) .
14	The target must send a copy of the target ' s statement (and any accompanying report) to the operator of each declared financial market on which the target ' s securities are quoted.	To be done on the day the target ' s statement is sent to the bidder See also subsection (7)

Date for determining holders of securities

633(2)    
The people to whom information is to be sent under items 6 and 12 of the table in subsection (1) are the holders of the securities referred to in those items as at the date set by the bidder in:

(a)    the bidder ' s statement; or

(b)    a separate written notice given to the target on or before the date set by the bidder.

Note: The bidder may set the date when the bidder asks the target for a list of members under section 641 .

633(3)    
The date set by the bidder must be:

(a)    on or after the date on which the bidder gives the bidder ' s statement, or the separate written notice, to the target; and

(b)    on or before the date on which the first offers under the bid are made to holders of the securities.

633(4)    
As soon as practicable after setting the day, the bidder must give notice of it by:

(a)    

if the securities in the bid class are quoted - giving the notice to the relevant market operator; or

(b)    otherwise - lodging the notice with ASIC.

Information to be sent with bidder ' s statement

633(5)    
A bidder ' s statement required to be sent under item 5 or 6 in the table in subsection (1) must be sent together with any other information sent by the bidder to the target with the statement.

Information to be sent with notices that offers have been sent

633(6)    
If the bidder sends the people to whom the bidder ' s statement is sent under item 6 of the table in subsection (1) additional information together with the bidder ' s statement and the offer, the bidder must also include that information in any notice under item 7, 8 or 9 of the table.

Information to be sent with target ' s statement.

633(7)    
If the target sends the people to whom the target ' s statement is sent under item 12 of the table in subsection (1) additional information together with the target ' s statement, the target must also include that information in any notice under item 13 or 14 of the table.

Strict liability offences

633(8)    

An offence based on this section is an offence of strict liability.

Note: For strict liability , see section 6.1 of the Criminal Code .