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 6.10 - REVIEW AND INTERVENTION  

Division 2 - The Takeovers Panel  

Subdivision B - Unacceptable circumstances  

SECTION 657A   DECLARATION OF UNACCEPTABLE CIRCUMSTANCES  

657A(1)    

The Takeovers Panel may declare circumstances in relation to the affairs of a company to be unacceptable circumstances. Without limiting this, the Takeovers Panel may declare circumstances to be unacceptable circumstances whether or not the circumstances constitute a contravention of a provision of this Act.

Note: Sections 659B and 659C deal with court proceedings during and after a takeover bid.

657A(2)    

The Takeovers Panel may only declare circumstances to be unacceptable circumstances if it appears to the Takeovers Panel that the circumstances:

(a)    

are unacceptable having regard to the effect that the Takeovers Panel is satisfied the circumstances have had, are having, will have or are likely to have on:

(i) the control, or potential control, of the company or another company; or

(ii) the acquisition, or proposed acquisition, by a person of a substantial interest in the company or another company; or

(b)    

are otherwise unacceptable (whether in relation to the effect that the Takeovers Panel is satisfied the circumstances have had, are having, will have or are likely to have in relation to the company or another company or in relation to securities of the company or another company) having regard to the purposes of this Chapter set out in section 602 ; or

(c) are unacceptable because they:

(i) constituted, constitute, will constitute or are likely to constitute a contravention of a provision of this Chapter or of Chapter 6A , 6B or 6C ; or

(ii) gave or give rise to, or will or are likely to give rise to, a contravention of a provision of this Chapter or of Chapter 6A , 6B or 6C .

The Takeovers Panel may only make a declaration under this subsection, or only decline to make a declaration under this subsection, if it considers that doing so is not against the public interest after taking into account any policy considerations that the Takeovers Panel considers relevant.

657A(3)    

In exercising its powers under this section, the Takeovers Panel:

(a)    must have regard to:

(i) the purposes of this Chapter set out in section 602 ; and

(ii) the other provisions of this Chapter; and

(iii) the rules made under section 658C ; and

(iv) the matters specified in regulations made for the purposes of paragraph 195(3)(c) of the ASIC Act; and

(b)    may have regard to any other matters it considers relevant.

In having regard to the purpose set out in paragraph 602(c) in relation to an acquisition, or proposed acquisition, of a substantial interest in a company, body or scheme, the Takeovers Panel must take into account the actions of the directors of the company or body or the responsible entity for a scheme (including actions that caused the acquisition or proposed acquisition not to proceed or contributed to it not proceeding).

657A(4)    

The Takeovers Panel must give an opportunity to make submissions in relation to the matter to:

(a)    each person to whom a proposed declaration relates; and

(b)    each party to the proceedings; and

(c)    ASIC.

657A(5)    
The declaration must be in writing and published in the Gazette .

657A(6)    

As soon as practicable, the Takeovers Panel must give each person to whom the declaration relates:

(a)    a copy of the declaration; and

(b)    

a written statement of the Takeovers Panel ' s reasons for making the declaration.

657A(7)    

This section does not require the Takeovers Panel to perform a function, or exercise a power, in a particular way in a particular case.