Corporations Act 2001

CHAPTER 6A - COMPULSORY ACQUISITIONS AND BUY-OUTS  

SECTION 660A  

660A   CHAPTER EXTENDS TO SOME LISTED BODIES THAT ARE NOT COMPANIES  
This Chapter extends to the acquisition of 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 securities of companies.

Note 1: Section 9 defines company and listed .

Note 2: This Chapter only applies to the acquisition of securities in a CCIV if the CCIV is a listed company: see section 1240E .

SECTION 660B   CHAPTER EXTENDS TO LISTED REGISTERED SCHEMES  

660B(1)    
This Chapter extends to the acquisition of interests in a registered scheme that is also listed as if:

(a)    the scheme were a 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.

660B(2)    
If Part 6A.1 applies to a scheme at the end of the bid period for a takeover, that Part continues to apply to the scheme in relation to the takeover bid even if the scheme ceases to be listed.

660B(3)    
If Part 6A.2 applies to a scheme when a compulsory acquisition notice under section 664C is lodged, that Part (including Division 2 of that Part) continues to apply to the scheme in relation to the notice even if the scheme ceases to be listed.

660B(4)    

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

SECTION 660C  

660C   CHAPTER DOES NOT APPLY TO MCIs  

This Chapter does not apply to MCIs.

PART 6A.4 - EXPERTS ' REPORTS AND VALUATIONS  

SECTION 667A   EXPERT ' S REPORT  

667A(1)    
An expert ' s report under section 663B , 664C or 665B must:

(a)    be prepared by a person nominated by ASIC under section 667AA ; and

(b)    state whether, in the expert ' s opinion, the terms proposed in the notice give a fair value for the securities concerned; and

(c)    set out the reasons for forming that opinion.

Note: See section 667C on valuation.

667A(2)    
If the person giving the compulsory acquisition notice is relying on paragraph 664A(2)(c) to give the notice, the expert ' s report under section 664C must also:

(a)    state whether, in the expert ' s opinion, the person (either alone or together with a related body corporate) has full beneficial ownership in at least 90% by value of all the securities of the company that are shares or convertible into shares; and

(b)    set out the reasons for forming that opinion.

667A(3)    
If the person giving the compulsory acquisition notice obtains 2 or more reports, each of which were obtained for the purposes of that notice, a copy of each report must be given to the holder of the securities.

667A(4)    

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

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

SECTION 667AA   EXPERT TO BE NOMINATED  

667AA(1)    
A person who proposes to obtain an expert ' s report for the purposes of section 663B , 664C or 665B must request ASIC in writing to nominate a person to prepare the expert ' s report.

667AA(2)    
Within 14 days after receiving a request under subsection (1) , ASIC must nominate:

(a)    an appropriate person to prepare the report; or

(b)    up to 5 appropriate persons, one of whom the person making the request may choose to prepare the report.

667AA(3)    
In determining whether a person is an appropriate person to prepare an expert ' s report, and without limiting the matters that ASIC may consider, ASIC must consider the nature of the company to be valued.

SECTION 667B   EXPERT MUST NOT BE AN ASSOCIATE AND MUST DISCLOSE PRIOR DEALINGS AND RELATIONSHIPS  

667B(1)    
The expert who provides the report must not be an associate of:

(a)    the person giving the notice; or

(b)    the company that issued the securities.

667B(2)    
The report must set out details of:

(a)    any relationship between the expert and:

(i) the person giving the notice or an associate of the person giving the notice; or

(ii) the company that issued the securities or an associate of the company;

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 the report.

SECTION 667C   VALUATION OF SECURITIES  

667C(1)    
To determine what is fair value for securities for the purposes of this Chapter:

(a)    first, assess the value of the company as a whole; and

(b)    then allocate that value among the classes of issued securities in the company (taking into account the relative financial risk, and voting and distribution rights, of the classes); and

(c)    then allocate the value of each class pro rata among the securities in that class (without allowing a premium or applying a discount for particular securities in that class).

667C(2)    
Without limiting subsection (1) , in determining what is fair value for securities for the purposes of this Chapter, the consideration (if any) paid for securities in that class within the previous 6 months must be taken into account.