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 .

SECTION 602  

602   PURPOSES OF CHAPTER  
The purposes of this Chapter are to ensure that:

(a)    the acquisition of control over:

(i) the voting shares in a listed company, or an unlisted company with more than 50 members; or

(ii) the voting shares in a listed body (other than a notified foreign passport fund); or

(iii) the voting interests in a listed registered scheme;

takes place in an efficient, competitive and informed market; and

(b)    the holders of the shares or interests, and the directors of the company or body or the responsible entity for the scheme:

(i) know the identity of any person who proposes to acquire a substantial interest in the company, body or scheme; and

(ii) have a reasonable time to consider the proposal; and

(iii) are given enough information to enable them to assess the merits of the proposal; and

(c)    as far as practicable, the holders of the relevant class of voting shares or interests all have a reasonable and equal opportunity to participate in any benefits accruing to the holders through any proposal under which a person would acquire a substantial interest in the company, body or scheme; and

(d)    an appropriate procedure is followed as a preliminary to compulsory acquisition of voting shares or interests or any other kind of securities under Part 6A.1 .

Note 1: To achieve the objectives referred to in paragraphs (a), (b) and (c), the prohibition in section 606 and the exceptions to it refer to interests in " voting shares " . To achieve the objective in paragraph (d), the provisions that deal with the takeover procedure refer more broadly to interests in " securities " .

Note 2: Subsection 92(3) defines securities for the purposes of this Chapter.

SECTION 602A   MEANING OF SUBSTANTIAL INTEREST  

602A(1)    
A reference in this Chapter to a substantial interest in a company, listed body (other than a notified foreign passport fund) or listed registered scheme is not to be read as being limited to an interest that is constituted by one or more of the following:

(a)    a relevant interest in securities in the company, body or scheme;

(b)    a legal or equitable interest in securities in the company, body or scheme;

(c)    a power or right in relation to:

(i) the company, body or scheme; or

(ii) securities in the company, body or scheme.

602A(2)    
A person does not have a substantial interest in the company, body or scheme for the purposes of this Chapter merely because the person has an interest in, or a relationship with, the company, body or scheme of a kind prescribed by the regulations for the purposes of this subsection.

602A(3)    

The regulations may provide that an interest of a particular kind is an interest that may constitute a substantial interest in a company, listed body (other than a notified foreign passport fund) or listed registered scheme for the purposes of this Chapter.

SECTION 603  

603   CHAPTER EXTENDS TO SOME LISTED BODIES THAT ARE NOT COMPANIES  
This Chapter applies to the acquisition of relevant interests in the securities of listed bodies that are not companies but are incorporated or formed in Australia in the same way as it applies to the acquisition of relevant interests in the securities of companies.

Note: Section 9 defines company and listed .

SECTION 604   CHAPTER EXTENDS TO LISTED REGISTERED SCHEMES  

604(1)    
This Chapter applies to the acquisition of relevant interests in the interests in a registered scheme that is also listed as if:

(a)    the scheme were a listed company; and

(b)    interests in the scheme were shares in the company; and

(c)    voting interests in the scheme were voting shares in the company; and

(d)    a meeting of the members of the scheme were a general meeting of the company; and

(e)    the obligations and powers that are imposed or conferred on the company were imposed or conferred on the responsible entity; and

(f)    the directors of the responsible entity were the directors of the company; and

(g)    the appointment of a responsible entity for the scheme were the election of a director of the company; and

(h)    the scheme ' s constitution were the company ' s constitution.

Note 1: Paragraph (g): See subsection 610(2) .

Note 2: Section 9 defines voting interest in a managed investment scheme.

604(2)    

The regulations may modify the operation of this Chapter as it applies in relation to the acquisition of interests in listed registered schemes.

SECTION 605   CLASSES OF SECURITIES  

605(1)    
Takeover bids are made for securities within a particular class. Similarly, compulsory acquisition and buy-out rights operate on securities within a particular class.

605(2)    
For the purposes of this Chapter and Chapters 6A and 6C , securities are not taken to be different classes merely because:

(a)    some of the securities are fully-paid and others are partly-paid; or

(b)    different amounts are paid up or remain unpaid on the securities.

SECTION 605A  

605A   CHAPTER DOES NOT APPLY TO MCIs  

This Chapter does not apply to MCIs.

PART 6.5 - THE TAKEOVER PROCEDURE  

Division 1 - The overall procedure  

SECTION 631   PROPOSING OR ANNOUNCING A BID  

631(1)    

A person contravenes this subsection if:

(a)    either alone or with other persons, the person publicly proposes to make a takeover bid for securities in a company; and

(b)    the person does not make offers for the securities under a takeover bid within 2 months after the proposal.

The terms and conditions of the bid must be the same as or not substantially less favourable than those in the public proposal.

Note: The Court has power under section 1325B to order a person to proceed with a bid.

631(1A)    

For the purposes of an offence based on subsection (1) , strict liability applies to paragraph (1)(b) and to the requirement that the terms and conditions of the bid must be the same as or not substantially less favourable than those in the public proposal.

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

Proposals if takeover bid not intended

631(2)    
A person must not publicly propose, either alone or with other persons, to make a takeover bid if:

(a)    the person knows the proposed bid will not be made, or is reckless as to whether the proposed bid is made; or

(b)    the person is reckless as to whether they will be able to perform their obligations relating to the takeover bid if a substantial proportion of the offers under the bid are accepted.

631(3)    
Section 1314 (continuing offences) and subsection 1324(2) (injunctions) do not apply in relation to a failure to make a takeover bid in accordance with a public proposal under subsection (1) .

Note: For liability and defences for contraventions of this section, see sections 670E and 670F .

SECTION 632  

632   OVERVIEW OF STEPS IN AN OFF-MARKET BID  

The following diagram gives an overview of the steps involved in an off-market bid.

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 . Sections648B 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 thetable 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 .

SECTION 634  

634   OVERVIEW OF STEPS IN A MARKET BID  

The following diagram gives an overview of the steps involved in a market bid.

SECTION 635   DETAILED STEPS IN A MARKET BID  

635(1)    

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

Steps in market bid	[ operative]
	Steps	Timing and relevant provisions
1	The bidder must prepare a bidder ' s statement.	See section 636 for content of statement
2	The bidder must have the bid announced to the relevant financial market.
3	The bidder must send a copy of the bidder ' s statement to the relevant market operator	To be done on the day the announcement is made
4	The bidder must send to the target:	To be done on the day the announcement is made
	•		a copy of the bidder ' s statement; and
	•		a copy of any other document that was sent with the bidder ' s statement to the relevant market operator.
5	The bidder must lodge with ASIC:	To be done on the day the announcement is made
	•		a copy of the bidder ' s statement; and
	•		a copy of any other document that was sent with the bidder ' s statement to the relevant market operator.
6	The bidder must send to each holder of bid class securities (other than the bidder):	Within 14 days after the announcement is made. Sections 648B and 648C provide for the manner in which documents may be sent to holders.
	•		a copy of the bidder ' s statement; and
	•		a copy of any other document that was sent with the bidder ' s statement to the relevant market operator.
7	The bidder must lodge with ASIC a copy of every other document sent to holders of bid class securities with the bidder ' s statement.	To be done no later than the day copies of the bidder ' s statement have been sent to all holders of bid class securities
8	The bidder must give the relevant market operator a copy of every other document sent to holders of bid class securities with the bidder ' s statement.	To be done no later than the day copies of the bidder ' s statement have been sent to all holders of bid class securities
9	The target must prepare a target ' s statement.	See section 638 for content of statement
10	The target must send a copy of the target ' s statement to the relevant market operator.	Within 14 days after the announcement is made
11	The target must send to the bidder:	To be done on the day the target sends a copy of the target ' s statement to the relevant market operator
	•		a copy of the target ' s statement; and
	•		a copy of any other document that was sent with the target ' s statement to the relevant market operator.
12	The target must lodge with ASIC:	To be done on the day the target sends a copy of the target ' s statement to the relevant market operator
	•		a copy of the target ' s statement; and
	•		a copy of any other document that was sent with the target ' s statement to the relevant market operator.
13	The target must send each holder of bid class securities:	Within 14 days after the announcement is made. Sections 648B and 648C provide for the manner in which documents may be sent to holders.
	•		a copy of the target ' s statement; and
	•		a copy of any other document that was sent with the target ' s statement to the relevant market operator.
14	The bidder must make offers for the securities under the bid through the relevant financial market.	To be done on the next day after the end of the 14 day period referred to in item 13. If the bidder does not make the offers at that time, the bidder contravenes this section. Item 2 of the table in section 611 covers offers made by the bidder on market during the 14 day period between the announcement and the making of the offers under the bid

635(2)    

An offence based on subsection (1) is an offence of strict liability.

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

Division 2 - The bidder ' s statement  

SECTION 636   BIDDER ' S STATEMENT CONTENT  

636(1)    
A bidder ' s statement must include the following:

(a)    the identity of the bidder;

(b)    the date of the statement;

(c)    if the target is a company or body - details of the bidder ' s intentions regarding:

(i) the continuation of the business of the target; and

(ii) any major changes to be made to the business of the target, including any redeployment of the fixed assets of the target; and

(iii) the future employment of the present employees of the target;

(d)    

if the target is a registered scheme - details of the bidder ' s intentions regarding:

(i) the continued operation of the scheme; and

(ii) any major changes to be made to the operation of the scheme, including any redeployment of scheme property; and

(iii) any plans to remove the current responsible entity and appoint a new responsible entity;

(e)    for an off-market bid - a statement that the bidder ' s statement has been lodged with ASIC but that ASIC takes no responsibility for the content of the statement;

(f)    in relation to the cash consideration (if any) offered under the bid - details of:

(i) the cash amounts (if any) held by the bidder for payment of the consideration; and

(ii) the identity of any other person who is to provide, directly or indirectly, cash consideration from that person ' s own funds; and

(iii) any arrangements under which cash will be provided by a person referred to in subparagraph (ii);

(g)    

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

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

(ii) a person who controls that body;

all material that would be required for a prospectus for an offer of those securities by the bidder under whichever of the following is applicable:

(iii) sections 710 to 713 ;

(iv) sections 713C to 713E ;

(ga)    

if any managed investment products are offered as consideration under the bid and the bidder is:

(i) the responsible entity of the registered scheme; or

(ii) a person who controls the responsible entity of the registered scheme;

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 in relation to those managed investment products;

(h)    if the bidder or an associate provided, or agreed to provide, consideration for a security in the bid class under a purchase or agreement during the 4 months before the date of the bid - the following information about the consideration:

(i) to the extent to which the consideration is a cash sum - the amount per security of the cash sum;

(ii) to the extent to which the consideration is quoted securities - the market price per security of those securities;

(iii) to the extent to which the consideration is neither a cash sum nor a quoted security - the value per security of that consideration;

(i)    if, during the period of 4 months before the date of the bid, the bidder or an associate gave, or offered to give or agreed to give a benefit to another person and the benefit was likely to induce the other person, or an associate, to:

(i) accept an offer under the bid; or

(ii) dispose of securities in the bid class;

and the benefit is not offered to all holders of securities in the bid class under the bid - details of the benefit;

(j)    if the bid is to extend to securities that come to be in the bid class during the offer period due to the conversion of or exercise of rights attached to other securities (see subsection 617(2) ) - a statement to that effect;

(k)    for an off-market bid - the following details in relation to each class of securities in the target:

(i) the total number of securities in the class;

(ii) the number of securities in the class that the bidder had a relevant interest in immediately before the first offer is sent (expressed as a number of securities or as a percentage of the totalnumber of securities in the class);

(l)    for an off-market bid - the bidder ' s voting power in the company;

(m)    any other information that:

(i) is material to the making of the decision by a holder of bid class securities whether to accept an offer under the bid; and

(ii) is known to the bidder; and

(iii) does not relate to the value of securities offered as consideration under the bid.

The information that the bidder must disclose under subparagraph (k)(i) and paragraph (l) must be only as up-to-date as it is reasonable to expect in the circumstances. The bidder does not have to disclose information under paragraph (m) if it would be unreasonable to require the bidder to do so because the information had previously been disclosed to the holders of bid class securities.

Note: Paragraph (b) - See subsection 637(2) for the date of the statement.

Expert ' s report on non-cash consideration provided for bid class securities in last 4 months

636(2)    
If the bidder ' s statement includes details of the value per share of consideration under subparagraph (1)(h)(iii) , the statement must include, or be accompanied by, a report by an expert that states whether, in the expert ' s opinion, the value stated is fair and reasonable and gives the reasons for forming that opinion.

Note: Subsections 648A(2) and (3) provide for the independence of the expert and disclosure of any association between the bidder and the expert or the target and the expert. A contravention of one of those subsections results in the bidder ' s statement not complying with this subsection.

Consent of person to whom statement attributed

636(3)    
The bidder ' s statement may only include, or be accompanied by, a statement by a person, or a statement said in the bidder ' s statement to be based on a statement by a person, if:

(a)    the person has consented to the statement being included in the bidder ' s statement, or accompanying it, in the form and context in which it is included; and

(b)    the bidder ' s statement states that the person has given this consent; and

(c)    the person has not withdrawn this consent before the bidder ' s statement is lodged with ASIC.

636(4)    
The bidder must keep the consent.

Strict liability offences

636(5)    

An offence based on subsection (3) or (4) is an offence of strict liability.

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

SECTION 637   BIDDER ' S STATEMENT FORMALITIES  
Approval

637(1)    
The copy of the bidder ' s statement that is lodged with ASIC must be approved by:

(a)    for a bidder that is a body corporate (other than a notified foreign passport fund):

(i) if the consideration offered under the bid is a cash sum only - a resolution passed by the directors of the bidder; or

(ii) otherwise - a unanimous resolution passed by all the directors of the bidder; or

(b)    for a bidder who is an individual - the bidder.

637(2)    
The bidder ' s statement must be dated. The date is the date on which it is lodged with ASIC.

Strict liability offences

637(3)    

An offence based on subsection (1) or (2) is an offence of strict liability.

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

Division 3 - The target ' s response  

SECTION 638   TARGET ' S STATEMENT CONTENT  

General requirement

638(1)    

A target ' s statement must include all the information that holders of bid class securities and their professional advisers would reasonably require to make an informed assessment whether to accept the offer under the bid.

638(1A)    

However, the statement must contain this information:

(a)    only to the extent to which it is reasonable for investors and their professional advisers to expect to find the information in the statement; and

(b)    only if the information is known to any of the directors of the target.

Note: A defendant bears an evidential burden in relation to the matters in subsection (1A) , see subsection 13.3(3) of the Criminal Code .

638(2)    
In deciding what information should be included under subsection (1) , have regard to:

(a)    the nature of the bid class securities; and

(b)    if the bid class securities are interests in a managed investment scheme - the nature of the scheme; and

(c)    the matters that the holders of bid class securities may reasonably be expected to know; and

(d)    the fact that certain matters may reasonably be expected to be known to their professional advisers; and

(e)    the time available to the target to prepare the statement.

Director ' s recommendations

638(3)    
A target ' s statement must contain a statement by each director of the target:

(a)    recommending that offers under the bid be accepted or not accepted, and giving reasons for the recommendation; or

(b)    giving reasons why a recommendation is not made.

638(4)    
The statement under subsection (3) must be made by:

(a)    if the target is under administration - the liquidator or administrator; or

(b)    if the target has executed a deed of company arrangement that has not yet terminated - the deed ' s administrator.

Consent of person to whom statement attributed

638(5)    
The target ' s statement may only include, or be accompanied by, a statement by a person, or a statement said in the target ' s statement to be based on a statement by a person, if:

(a)    the person has consented to the statement being included in the target ' s statement, or accompanying it, in the form and context in which it is included; and

(b)    the target ' s statement states that the person has given this consent; and

(c)    the person has not withdrawn this consent before the target ' s statement is lodged with ASIC.

638(6)    
The target must keep the consent.

Strict liability offences

638(7)    

An offence based on subsection (1) , (3) , (5) or (6) is an offence of strict liability.

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

SECTION 639   TARGET ' S STATEMENT FORMALITIES  
Approval

639(1)    
The copy of the target ' s statement that is lodged with ASIC must be approved by:

(a)    if paragraphs (b) and (c) do not apply - a resolution passed by the directors of the target; or

(b)    for a target that is under administration - the liquidator or administrator; or

(c)    for a target that has executed a deed of company arrangement that has not yet terminated - the deed ' s administrator.

Date

639(2)    
The target ' s statement must be dated. The date is the date on which it is lodged with ASIC.

Strict liability offences

639(3)    

An offence based on subsection (1) or (2) is an offence of strict liability.

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

SECTION 640   EXPERT ' S REPORT TO ACCOMPANY TARGET ' S STATEMENT IF BIDDER CONNECTED WITH TARGET  

640(1)    
If:

(a)    the bidder ' s voting power in the target is 30% or more; or

(b)    for a bidder who is, or includes, an individual - the bidder is a director of the target; or

(c)    for a bidder who is, or includes, a body corporate - a director of the bidder is a director of the target;

a target ' s statement given in accordance with section 638 must include, or be accompanied by, a report by an expert that states whether, in the expert ' s opinion, the takeover offers are fair and reasonable and gives the reasons for forming that opinion.

Note: Subsections 648A(2) and (3) provide for the independence of the expert and disclosure of any association between the target and the expert or the bidder and the expert. A contravention of one of those subsections results in the target ' s statement not complying with this subsection.

640(2)    
In determining whether the bidder ' s voting power in the target is 30% or more, calculate the bidder ' s voting power at the time the bidder ' s statement is sent to the target.

640(3)    

An offence based on subsection (1) is an offence of strict liability.

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

SECTION 641   TARGET MUST INFORM BIDDER ABOUT SECURITIES HOLDINGS  

Requirement to inform bidder and information that must be given

641(1)    

If the bidder has given a bidder ' s statement to the target and requested the target to give the bidder information in accordance with this section, the target must inform the bidder of:

(a)    the name and address of each person who, at a time specified by the bidder under subsection (2) , held securities:

(i) in the bid class; or

(ii) convertible into securities in the bid class; and

(aa)    

where the target knows an electronic address for the person because the person holds securities in the target, and believes on reasonable grounds that it is a current electronic address for the person for receiving electronic communications - that electronic address; and

(ab)    

where an election of the person to be sent documents by the target in physical form, or in electronic form, is in force under section 110E (disregarding subsection 110E(8) ) in relation to a kind of documents mentioned in subsection (1C) of this section - the fact that such an election is in force; and

(b)    the type, and number of each type, of those securities held by the person at the specified time.

641(1A)    

However, the target does not need to give information to the bidder about a person or their holding of securities unless the target knows the person ' s name.

Note: A defendant bears an evidential burden in relation to the matters in subsection (1A) , see subsection 13.3(3) of the Criminal Code .

641(1B)    

An offence based on subsection (1) is an offence of strict liability.

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

641(1C)    

For the purposes of paragraph (1)(ab) , the kinds of documents are:

(a)    all documents to which Division 2 of Part 1.2AA applies; or

(b)    one or more classes of documents that, taken together, include the documents mentioned in subsection 648CB(3) (documents relating to takeover bids).

Time at which target ' s information must be correct

641(2)    
The bidder ' s request must specify a day as at which the information must be correct. The day must be one that occurs after the day on which the bidder makes the request unless the target agrees to it being the day on which the bidder makes the request.

Form in which target must provide information

641(3)    
The target must give the information to the bidder:

(a)    in the form that the bidder requests; or

(b)    if the target is unable to comply with the request - in writing.

641(4)    
If the target must give the information to the bidder in electronic form, the information must be readable but the information need not be formatted for the bidder ' s preferred operating system.

Fee for provision of information

641(5)    
The target may require the bidder to pay an amount, not exceeding the prescribed amount, for the provision of the information to the bidder.

Time by which target must provide information

641(6)    
The target must give the information to the bidder no later than the latest of the following times:

(a)    the end of the second day after the day on which the bidder requested the information; or

(b)    the end of the next day after the day as at which the information must be correct; or

(c)    the time when the target receives the amount mentioned in subsection (5) .

SECTION 641A   USE OR DISCLOSURE OF INFORMATION OBTAINED FROM TARGET  

641A(1)    
A person (the first person ) contravenes this subsection if:

(a)    the target gives the bidder information under section 641 in relation to another person; and

(b)    the first person:

(i) is the bidder; or

(ii) obtains the information from the bidder (whether directly or indirectly); and

(c)    the first person uses or discloses the information; and

(d)    the use or disclosure is not for the purposes of sending a document, or otherwise complying with an obligation under this Act, in relation to:

(i) the takeover bid; or

(ii) a compulsory acquisition of securities under Part 6A.1 relating to the takeover bid.

Civil penalty:

(a) for an individual - 2,000 penalty units; and

(b) for a body corporate - 10,000 penalty units.

641A(2)    
Subsection (1) does not apply if the use or disclosure is required or permitted by a law of the Commonwealth or a prescribed law of a State or internal Territory.

641A(3)    
A person who contravenes subsection (1) is not guilty of an offence.

Note: Subsection (1) is a civil penalty provision (see section 1317E ).

SECTION 642   EXPENSES OF DIRECTORS OF TARGET COMPANIES  

642(1)    
If the target is a company or body, the directors of the target have a right to recover from the target any expenses they reasonably incur in the interest of members of the target and in relation to the takeover bid. The directors have this right regardless of anything contained in the target ' s constitution (if any).

642(2)    
If the target is a managed investment scheme, the responsible entity for the scheme has a right to recover from scheme property any expenses it reasonably incurs in the interest of members of the scheme and in relation to the takeover bid. The responsible entity has this right regardless of anything contained in the scheme ' s constitution.

Division 4 - Updating and correcting the bidder ' s statement and target ' s statement  

SECTION 643   SUPPLEMENTARY BIDDER ' S STATEMENT  

643(1)    
If a bidder becomes aware of:

(a)    a misleading or deceptive statement in the bidder ' s statement; or

(b)    an omission from the bidder ' s statement of information required by section 636 ; or

(c)    a new circumstance that:

(i) has arisen since the bidder ' s statement was lodged; and

(ii) would have been required by section 636 to be included in the bidder ' s statement if it had arisen before the bidder ' s statement was lodged;

that is material from the point of view of a holder of bid class securities, the bidder must prepare a supplementary bidder ' s statement that remedies this defect.

Note 1: The bidder must then send and lodge the supplementary bidder's statement in accordance with section 647 .

Note 2: Section 670A makes it an offence to give a bidder ' s statement after the bidder has become aware of a misleading or deceptive statement, omission or new circumstance that is material from the point of view of a holder of securities to whom the statement is given (unless the deficiency is corrected).

Note 3: The power to issue a supplementary bidder ' s statement is not limited to the situations dealt with in this section.

Note 4: This section applies to a bidder ' s statement that has already been previously supplemented.

643(2)    

For an offence based on subsection (1) , strict liability applies to the conduct, that the bidder must prepare a supplementary bidder ' s statement that remedies the defect.

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

SECTION 644   SUPPLEMENTARY TARGET ' S STATEMENT  

644(1)    
If a target becomes aware of:

(a)    a misleading or deceptive statement in the target ' s statement; or

(b)    an omission from the target ' s statement of information required by section 638 ; or

(c)    a new circumstance that:

(i) has arisen since the target ' s statement was lodged; and

(ii) would have been required by section 638 to be included in the target ' s statement if it had arisen before the target ' s statement was lodged;

that is material from the point of view of a holder of bid class securities, the target must prepare a supplementary target ' s statement that remedies this defect.

Note 1: The target must then send and lodge the supplementary target ' s statement in accordance with section 647 .

Note 2: Section 670A makes it an offence to give a target ' s statement after the target has become aware of a misleading or deceptive statement, omission or new circumstance that is material from the point of view of a holder of securities to whom the statement is given (unless the deficiency is corrected).

Note 3: The power to issue a supplementary target ' s statement is not limited to the situations dealt with in this section.

Note 4: This section applies to a target ' s statement that has already been previously supplemented.

644(2)    

For an offence based on subsection (1) , strict liability applies to the conduct, that the target must prepare a supplementary target ' s statement that remedies the defect.

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

SECTION 645   FORM OF SUPPLEMENTARY STATEMENT  
Identity as a supplementary statement

645(1)    
At the beginning of a supplementary bidder ' s or target ' s statement there must be:

(a)    a statement that it is a supplementary statement; and

(b)    an identification of the statement it supplements; and

(c)    an identification of any previous supplementary statements lodged with ASIC in relation to the bid; and

(d)    a statement that it is to be read together with the statement it supplements and any previous supplementary statements.

Approval of supplementary bidder ' s statement

645(2)    
The copy of the supplementary bidder ' s statement that is lodged with ASIC must be approved by:

(a)    for a bidder that is a body corporate:

(i) if the consideration offered under the bid is a cash sum only - a resolution passed by the directors of the bidder; or

(ii) otherwise - a unanimous resolution passed by all the directors of the bidder; or

(b)    for a bidder who is an individual - the bidder.

Approval of supplementary target ' s statement

645(3)    
The copy of a supplementary target's statement that is lodged with ASIC must be approved by:

(a)    if paragraphs (b) and (c) do not apply - a resolution passed by the directors of the target; or

(b)    for a target that is under administration - the liquidator or administrator; or

(c)    for a target that has executed a deed of company arrangement that has not yet terminated - the deed ' s administrator.

Date

645(4)    
A supplementary statement must be dated. The date is the date on which it is lodged with ASIC.

SECTION 646  

646   CONSEQUENCES OF LODGING A SUPPLEMENTARY STATEMENT  
If a supplementary statement is lodged with ASIC, for the purposes of the application of this Chapter and Chapter 6B to events that occur after the lodgment, the bidder ' s or target ' s statement is taken to be the original statement together with the supplementary statement.

SECTION 647   TO WHOM SUPPLEMENTARY STATEMENT MUST BE SENT  

647(1)    
A supplementary bidder ' s statement must be sent to the target as soon as practicable.

647(2)    
A supplementary target ' s statement must be sent to the bidder as soon as practicable.

647(3)    
Either kind of supplementary statement must as soon as practicable be:

(a)    lodged with ASIC; and

(b)    

if the bid class securities are quoted and the target is listed - sent to the operator of each declared financial market on which the target's securities are quoted; and

(c)    if the bid is an off-market bid and the bid class securities are not quoted - sent to all holders of bid class securities who have not accepted an offer under the bid.

Note: Sections 648B and 648C provide for the manner in which documents may be sent to holders.

647(4)    

An offence based on subsection (1) , (2) or (3) is an offence of strict liability.

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

Division 5 - General rules on takeover procedure  

Subdivision A - Experts ' reports  

SECTION 648A   EXPERTS ' REPORTS  

648A(1)    
If the bidder or target obtains 2 or more reports each of which could be used for the purposes of subparagraph 636(1)(h)(iii) or subsection 640(1) , the bidder ' s or target ' s statement must be accompanied by a copy of each report.

648A(1A)    

An offence based on subsection (1) is an offence of strict liability.

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

648A(2)    
The expert must be someone other than an associate of the bidder or target.

648A(3)    
The report must set out details of:

(a)    any relationship between the expert and:

(i) the bidder or an associate of the bidder; or

(ii) the target or an associate of the target;

including any circumstances in which the expert gives them advice, or acts on their behalf, in the proper performance of the functions attaching to the expert ' s professional capacity or business relationship with them; and

(b)    any financial or other interest of the expert that could reasonably be regarded as being capable of affecting the expert ' s ability to give an unbiased opinion in relation to the matter being reported on; and

(c)    any fee, payment or other benefit (whether direct or indirect) that the expert has received or will or may receive in connection with making the report.

Note: If the statement includes, or is accompanied by, the report, it must state that the expert has consented to this being done (see subsections 636(3) and 638(5) ).

Subdivision B - Sending documents to holders of securities  

SECTION 648B  

648B   ADDRESS AT WHICH BIDDER MAY SEND DOCUMENTS TO HOLDERS OF SECURITIES  

The bidder may send a document to a holder of securities for the purposes of this Chapter at the address shown for the holder in the information given to the bidder by the target under section 641 . This section does not limit the address (including the electronic address, if any) to which the document may be sent to the holder.

Note: Section 109X makes general provision for service of documents.

SECTION 648C   SENDING DOCUMENTS TO HOLDERS OF SECURITIES - GENERAL  

648C(1)    
This section applies if a document is required or permitted to be sent to a holder of securities under this Chapter.

Note 1: Division 2 of Part 1.2AA provides for technology neutral sending of documents.

Note 2: Section 109X makes general provision for service of documents.

648C(2)    
If the document is sent by sending the document in a physical form in accordance with paragraph 110D(1)(a) , or by sending information in a physical form in accordance with paragraph 110D(1)(b) , the document or information must be sent:

(a)    if the document or information is to be sent to the holder outside Australia - by pre-paid airmail post or by courier; or

(b)    if the document or information is to be sent to the holder in Australia - by pre-paid ordinary post or by courier.

648C(3)    
For the purposes of this Chapter, the document is taken to have been sent to the holder:

(a)    if the document is sent in a physical form in accordance with paragraph 110D(1)(a) :

(i) when the document is posted; or

(ii) if the document is sent by courier - when the document is given to the courier; or

(b)    if the document is sent by sending information in accordance with paragraph 110D(1)(b) (sending information in physical form that allows electronic access):

(i) when the information is posted; or

(ii) if the information is sent by courier - when the information is given to the courier; or

(c)    if the document is sent by sending an electronic communication in accordance with paragraph 110D(1)(c) - when the electronic communication is sent; or

(d)    if the document is sent by sending an electronic communication in accordance with paragraph 110D(1)(d) (sending information in electronic form allowing electronic access) - when the electronic communication is sent.

648C(4)    
This section applies to a requirement or permission to send a document, whether the expression send , give , serve or dispatch , or any other expression, is used.

SECTION 648CB   SENDING DOCUMENTS TO HOLDERS OF SECURITIES - EFFECT OF ELECTION BY HOLDER TO BE SENT DOCUMENTS BY TARGET IN PARTICULAR FORM  

648CB(1)    
This section applies if the target for a takeover bid has informed the bidder in accordance with paragraph 641(1)(ab) that an election of a holder of securities under section 110E to be sent documents in physical form or electronic form is in force.

648CB(2)    
An election of the holder under section 110E to be sent documents by the bidder in the relevant form is taken to be in force from the time the target informs the bidder of the election.

648CB(3)    
The election is taken to be made in relation to all documents required or permitted to be sent by the bidder under:

(a)    this Chapter; or

(b)    Part 6A.1 ; or

(c)    any other provision of this Act, to the extent that it relates to the provisions mentioned in paragraphs (a) and (b).

648CB(4)   
Subsection (2) has effect subject to any notification of withdrawal of the election received by the bidder from the holder of securities in accordance with paragraph 110E(7)(b) .

Subdivision C - Effect of proportional takeover approval provisions  

SECTION 648D   CONSTITUTION MAY CONTAIN PROPORTIONAL TAKEOVER APPROVAL PROVISIONS  

648D(1)    
Subject to this Subdivision, the constitution of a company may contain provisions to the effect that, if offers are made under a proportional takeover bid for securities of the company:

(a)    the registration of a transfer giving effect to a takeover contract for the bid is prohibited unless and until a resolution (an approving resolution ) to approve the bid is passed in accordance with the provisions; and

(b)    a person (other than the bidder or an associate of the bidder) who, as at the end of the day on which the first offer under the bid was made, held bid class securities is entitled to vote on an approving resolution; and

(c)    an approving resolution is to be voted on in whichever of the following ways is specified in the provisions:

(i) at a meeting, convened and conducted by the company, of the persons entitled to vote on the resolution;

(ii) by means of a postal ballot conducted by the company in accordance with a procedure set out in the provisions;

or, if the provisions so provide, in whichever of those ways is determined by the directors of the company; and

(d)    an approving resolution that has been voted on is taken to have been passed if the proportion that the number of votes in favour of the resolution bears to the total number of votes on the resolution is greater than the proportion specified in the provisions, and otherwise is taken to have been rejected.

The proportion specified under paragraph (d) must not exceed 50%.

Note: Section 9 defines proportional takeover bid . See paragraph 618(1)(b) .

648D(2)    
To be effective, an approving resolution in relation to a proportional takeover bid must be passed before the approving resolution deadline . The deadline is the 14th day before the last day of the bid period.

Note: In certain circumstances, an approving resolution will be taken to have been passed (see subsection 648E(3) ).

648D(3)    
Except to the extent to which a company ' s constitution provides otherwise:

(a)    the provisions that apply to a general meeting of the company apply, with such modifications as the circumstances require, to a meeting convened under the company ' s proportional takeover approval provisions; and

(b)    those provisions apply as if the meeting convened under the proportional takeover provisions were a general meeting of the company.

The provisions referred to in paragraph (a) may be the provisions of a law, provisions of the company ' s constitution or any other provisions.

SECTION 648E   RESOLUTION TO BE PUT IF PROPORTIONAL BID MADE  

648E(1)    
If:

(a)    a company's constitution contains proportional takeover approval provisions; and

(b)    offers are made under a proportional bid for a class of the company's securities;

then:

(c)    the company's directors must ensure that a resolution to approve the bid is voted on in accordance with those provisions before the approving resolution deadline; and

(d)    if the directors fail to ensure that a resolution of that kind is voted on before the deadline, each of the directors contravenes this subsection.

Note: Subsection 648D(2) sets the approving resolution deadline.

648E(2)    
If a resolution to approve the bid is voted on in accordance with the proportional takeover approval provisions before the approving resolution deadline, the company must, on or before the deadline, give:

(a)    the bidder; and

(b)    

if the company is listed - each relevant financial market;

a written notice stating that a resolution to approve the bid has been voted on and whether the resolution was passed or rejected.

648E(2A)    

An offence based on subsection (1) or (2) is an offence of strict liability.

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

648E(3)    
If no resolution to approve the bid has been voted on in accordance with the proportional takeover approval provisions as at the end of the day before the approving resolution deadline, a resolution to approve the bid is taken, for the purposes of those provisions, to have been passed in accordance with those provisions.

SECTION 648F  

648F   EFFECT OF REJECTION OF APPROVAL RESOLUTION  
If a resolution to approve the bid is voted on, in accordance with the proportional takeover approval provisions, before the approving resolution deadline and is rejected:

(a)    despite section 652A :

(i) all offers under the bid that have not been accepted as at the end of [ sic ] deadline; and

(ii) all offers under the bid that have been accepted, and from whose acceptance binding contracts have not resulted, as at the end of the deadline;

are taken to be withdrawn at the end of the deadline; and

(b)    as soon as practicable after the deadline, the bidder must return to each person who has accepted an offer referred to in subparagraph (a)(ii) any documents that the person sent the bidder with the acceptance of the offer; and

(c)    the bidder:

(i) is entitled to rescind; and

(ii) must rescind as soon as practicable after the deadline;

each binding takeover contract for the bid; and

(d)    a person who has accepted an offer made under the bid is entitled to rescind their takeover contract.

SECTION 648G   INCLUDING PROPORTIONAL TAKEOVER PROVISIONS IN CONSTITUTION  

648G(1)    
A company ' s proportional takeover approval provisions, unless sooner omitted from the constitution of the company, cease to apply at the end of:

(a)    unless paragraph (b) or (c) applies - 3 years;

(b)    if the constitution provides that the provisions apply for a specified period of less than 3 years and the provisions have not been renewed - the specified period; or

(c)    if the provisions have been renewed on at least one occasion and the resolution, or the most recent resolution, renewing the provisions states that the provisions are renewed for a specified period of less than 3 years - the specified period.

648G(2)    
The period referred to in subsection (1) starts:

(a)    if the provisions were contained in the company ' s constitution when it was incorporated or formed and have not been renewed - at that time; or

(b)    if the provisions were inserted in the company ' s constitution and have not been renewed - when the provisions were inserted; or

(c)    if the provisions have been renewed on at least one occasion - when the provisions were renewed, or last renewed.

648G(3)    
When the provisions cease to apply, the company ' s constitution is, by force of this subsection, altered by omitting the provisions.

648G(4)    
A company may renew its proportional takeover approval provisions. The provisions are to be renewed in the same manner as that in which the company could alter its constitution to insert proportional takeover approval provisions.

648G(5)    
With every notice that:

(a)    specifies the intention to propose:

(i) a resolution to alter a company ' s constitution by inserting proportional takeover approval provisions; or

(ii) a resolution to renew a company ' s proportional takeover approval provisions; and

(b)    is sent to a person who is entitled to vote on the proposed resolution;

the company must send a statement that:

(c)    explains the effect of the proposed provisions, or of the provisions proposed to be renewed; and

(d)    explains the reasons for proposing the resolution and sets out the factual matters and principles underlying those reasons; and

(e)    states whether, as at the day on which the statement is prepared, any of the directors of the company is aware of a proposal by a person to acquire, or to increase the extent of, a substantial interest in the company and, if so, explains the extent (if any) to which the proposal has influenced the decision to propose the resolution; and

(f)    for a proposed resolution to renew proportional takeover approval provisions - reviews both the advantages, and disadvantages, of the provisions proposed to be renewed for:

(i) the directors; and

(ii) the company ' s members;

during the period during which the provisions have been in effect; and

(g)    discusses both the potential advantages, and the potential disadvantages, of the proposed provisions, or of the provisions proposed to be renewed, for:

(i) the directors; and

(ii) the company ' s members.

648G(6)    
If, on a particular day, a company purports to:

(a)    alter its constitution by inserting proportional takeover approval provisions; or

(b)    renew its proportional takeover approval provisions;

then:

(c)    holders who together hold not less than 10% (by number) of the issued securities in a class of securities in the company to which the provisions apply may, within 21 days after that day, apply to the Court to have the purported alteration or renewal set aside to the extent to which it relates to that class; and

(d)    unless and until an application made under paragraph (c) is finally determined by the making of an order setting aside the purported alteration or renewal to that extent, the company is taken for all purposes (other than the purposes of an application of that kind):

(i) to have validly altered its constitution by inserting the provisions referred to in paragraph (a) applying to that class; or

(ii) to have validly renewed the provisions referred to in paragraph (b) applying to that class.

648G(7)    
An application under paragraph (6)(c) may be made, on behalf of the holders entitled to make the application, by a holder or holders appointed by them in writing.

648G(8)    
On an application under paragraph (6)(c) , the Court may make an order setting aside the purported alteration or renewal to the extent to which it applies to that class if it is satisfied that it is appropriate in all the circumstances to do so. Otherwise the Court must dismiss the application.

648G(9)    
Within 14 days after the day on which the Court makes an order of the kind referred to in subsection (8) in relation to a company, the company must lodge a copy of the order with ASIC.

648G(10)    

An offence based on subsection (5) or (9) is an offence of strict liability.

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

SECTION 648H  

648H   EFFECT OF SUBDIVISION  
This Subdivision applies notwithstanding anything contained in:

(a)    

the operating rules of a financial market; or

(b)    the constitution of a company; or

(c)    any agreement.

Subdivision D - Telephone monitoring