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.7 - MISCELLANEOUS  

SECTION 669A   SENDING DOCUMENTS  

669A(1)    
This section applies to any document that is required or permitted to be sent to a person (the recipient ) 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.

669A(2)    
Without limiting the manner in which the document may be sent, the document may be sent to the recipient by giving it to the recipient personally.

669A(3)    
For the purposes of this Chapter, the document is taken to have been sent to the recipient:

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

(i) 3 days after the document is posted; or

(ii) if the document is sent by courier - 3 days after 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) 3 days after the information is posted; or

(ii) if the information is sent by courier - 3 days after 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.

669A(4)    
This section does not apply to a document that is required or permitted to be sent by or to ASIC under this Chapter.

669A(5)    
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.

CHAPTER 6B - RIGHTS AND LIABILITIES IN RELATION TO CHAPTER 6 AND 6A MATTERS  

SECTION 670A   MISSTATEMENTS IN, OR OMISSIONS FROM, TAKEOVER AND COMPULSORY ACQUISITION AND BUY-OUT DOCUMENTS  

670A(1)    
A person must not give:

(a)    a bidder ' s statement;

(b)    a takeover offer document;

(c)    a notice of variation of a takeover offer;

(d)    a target ' s statement;

(e)    a compulsory acquisition notice under section 661B or 664C ;

(f)    a compulsory buy-out notice under section 662B , 663B or 665B ;

(g)    a report that is included in, or accompanies, a statement or notice referred to in paragraphs (a) to (f);

if there is:

(h)    for all documents - a misleading or deceptive statement in the document; or

(i)    for a bidder ' s statement or target ' s statement - an omission from the document of material required by section 636 or 638 ; or

(j)    for a bidder ' s statement or a target ' s statement - a new circumstance that:

(i) has arisen since the document was lodged; and

(ii) would have been required by section 636 or 638 to be included in the document if it had arisen before the document was lodged; or

(k)    for an expert ' s report under subsection 636(2) or section 640 , 663B , 664C or 665B - an omission from the report of material required by subsection 648A(3) or 667B(2) .

Note 1: See section 670D for defences.

Note 2: Section 1041H imposes liabilities in respect of other conduct related to the dealings in securities.

Forecasts and other forward-looking statement

670A(2)    
A person is taken to make a misleading statement about a future matter (including the doing of, or refusing to do, an act) if they do not have reasonable grounds for making the statement. This subsection does not limit the meaning of a reference to a misleading statement or a statement that is misleading in a material particular.

Offence if statement, omission or new matter materially adverse

670A(3)    
A person commits an offence if they contravene subsection (1) and:

(a)    the misleading or deceptive statement; or

(b)    the omission or new circumstance;

is materially adverse from the point of view of the holder of securities to whom the document is given.

Civil liability

670A(4)    

A person contravenes this subsection if:

(a)    the person contravenes subsection (1) ; and

(b)    either:

(i) the misleading or deceptive statement; or

(ii) the omission or new circumstance;

is materially adverse from the point of view of the holder of securities to whom the document is given.

Note: This subsection is a civil penalty provision (see section 1317E ).

SECTION 670B   RIGHT TO RECOVER FOR LOSS OR DAMAGE RESULTING FROM CONTRAVENTION  

670B(1)    
A person who suffers loss or damage that results from a contravention of subsection 670A(1) may recover the amount of the loss or damage from a person referred to in the following table if the loss or damage is one that the table makes the person liable for. This is so even if the person did not commit, and was not involved in, the contravention.

People liable on the document	[ operative table ]
	For these documents
	these people …	… are liable for loss or damages caused by
	bidder's statement or takeover offer document
1	the bidder	any contravention of subsection 670A(1) in relation to the document
2	each director of a bidder that is a body if the consideration offered under the bid is not a cash sum only	any contravention of subsection 670A(1) in relation to the document
3	a director of a bidder that is a body (other than a notified foreign passport fund) unless the director proves that they:	any contravention of subsection 670A(1) in relation to the document
	(a)	were not present when the directors resolved to adopt the statement or offer document; or	See also items 10 and 11.
	(b)	voted against the resolution;
	if the consideration offered under the bid is a cash sum only
	notice of variation of a takeover offer
4	the bidder	any contravention of subsection 670A(1) in relation to the document
5	a director of a bidder that is a body	any contravention of subsection 670A(1) in relation to the document
			See also items 10 and 11.
	a target's statement
6	the target	any contravention of subsection 670A(1) in relation to the document
7	a director of the target unless the director proves that they:	any contravention of subsection 670A(1) in relation to the document
	(a)	were not present when the directors resolved to adopt the statement; or	See also items 10 and 11.
	(b)	voted against the resolution
	a compulsory acquisition or compulsory buy-out notice
8	the person giving the notice	any contravention of subsection 670A(1) in relation to the document
9	a director of a body corporate (other than a notified foreign passport fund) giving the notice unless the director proves that they:	any contravention of subsection 670A(1) in relation to the document See also items 10 and 11.
	(a)	were not present when the directors resolved to give the notice; or
	(b)	voted against the resolution
9A	if a notified foreign passport fund is giving the notice, a director of the operator of the fund unless the director proves that they:	any contravention of subsection 670A(1) in relation to the document
	(a)	were not present when the directors resolved to give the notice; or	See also items 10 and 11.
	(b)	voted against the resolution
	all documents
10	a person named in the document, with their consent, as having made a statement:	the inclusion of the statement in the document
	(a)	that is included in the document; or
	(b)	on which a statement made in the document is based
11	a person who contravenes, or is involved in a contravention of, subsection 670A(1)	that contravention

670B(2)    
An action under subsection (1) may begin at any time within 6 years after the day on which the cause of action arose.

670B(3)    
This Chapter does not affect any liability that a person has under any other law.

Note: Conduct that contravenes subsection 670A(1) is expressly excluded from the operation of section 1041H .

SECTION 670C   PEOPLE LIABLE ON TAKEOVER OR COMPULSORY ACQUISITION STATEMENT TO INFORM MAKER ABOUT DEFICIENCIES IN THE STATEMENT  

670C(1)    
A person referred to in the table in subsection 670B(1) in relation to a document must notify the issuer of the document in writing as soon as practicable if they become aware during the bid period or objection period that:

(a)    a material statement in the document is misleading or deceptive; or

(b)    there is a material omission from the document of information required by section 636 , 638 or 640 ; or

(c)    a material new circumstance that:

(i) has arisen since the document was lodged; and

(ii) would have been required by section 636 , 638 or 640 to be included in the document if it had arisen before the document was lodged.

670C(2)    

An expert whose report accompanies, or is included in, a target's statement under section 640 must notify the target in writing as soon as practicable if they become aware during the bid period or objection period that:

(a)    a material statement in the report is misleading or deceptive; or

(b)    there has been a significant change affecting information included in the report.

670C(3)    

An expert whose report accompanies, or is included in, a bidder's statement under subsection 636(2) must notify the bidder in writing as soon as practicable if they become aware during the bid period or objection period that:

(a)    a material statement in the report is misleading or deceptive; or

(b)    there has been a significant change affecting information included in the report.

670C(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 .

SECTION 670D   DEFENCES AGAINST PROSECUTIONS UNDER SUBSECTION 670A(3) AND ACTIONS UNDER SECTION 670B  
Not knowing statement misleading or deceptive

670D(1)    
A person does not commit an offence against subsection 670A(3) , and is not liable under section 670B for a contravention of subsection 670A(1) , because of a misleading or deceptive statement in a document if the person proves that they did not know that the statement was misleading or deceptive.

Not knowing there was an omission

670D(2)    
A person does not commit an offence against subsection 670A(3) , and is not liable under section 670B for a contravention of subsection 670A(1) , because of an omission from a document in relation to a particular matter if the person proves that they did not know that there was an omission from the document in relation to that matter.

Reasonable reliance on information given by someone else - statements and omissions

670D(3)    
A person does not commit an offence against subsection 670A(3) , and is not liable under section 670B for a contravention against subsection 670A(1) , because of a misleading or deceptive statement in, or an omission from, a document if the person proves that they placed reasonable reliance on information given to them by:

(a)    if the person is a body - someone other than a director, employee or agent of the body; or

(b)    if the person is an individual - someone other than an employee or agent of the individual.

670D(4)    
For the purposes of subsection (3) , a person is not the agent of a body or individual merely because they perform a particular professional or advisory function for the body or individual.

Withdrawal of consent - statements and omissions

670D(5)    
A person who is named in a document as:

(a)    making a statement included in the document; or

(b)    making a statement on the basis of which a statement is included in the document;

does not commit an offence against subsection 670A(3) , and is not liable under section 670B for a contravention against subsection 670A(1) , because of a misleading or deceptive statement in, or an omission from, a document if the person proves that they publicly withdrew their consent to being named in the document in that way.

Unawareness of new matter

670D(6)    
A person does not commit an offence against subsection 670A(3) , and is not liable under section 670B for a contravention of subsection 670A(1) , because of a new circumstance that has arisen since the document was lodged if the person proves that they were not aware of the matter.

SECTION 670E   LIABILITY FOR PROPOSING A BID OR NOT CARRYING THROUGH WITH BID  

670E(1)   [ Recovery for reliance on bid]  

A person who:

(a) enters into a transaction relating to securities in reliance on:

(i) a public proposal for a takeover bid; or

(ii) an announcement of a market bid; and

(b) suffers loss or damage that results from a contravention of section 631:

may recover the amount of the loss or damage from:

(c) the person who contravened the section; or

(d) any person involved in the contravention.

670E(2)   [ Amount of compensation]  

To determine the amount of compensation payable under subsection (1), deduct the price of the securities at which the transaction was entered into from the price of the securities at which the transaction would have been likely to be entered into if the proposal or announcement had not been made.

SECTION 670F  

670F   DEFENCES  
A person does not commit an offence under subsection 631(1) or (2), and is not liable under section 670E for a contravention of those subsections if the person proves that they could not reasonably have been expected to comply with those subsections because:

(a) at the time of the proposal or announcement, circumstances existed that the person did not know of and could not reasonably have been expected to know of; or

(b) after the proposal or announcement, a change in circumstances occurred that was not caused, directly or indirectly, by the person.