THE CORPORATIONS LAW

CHAPTER 6 - TAKEOVERS

PART 6.1 - PROHIBITED ACQUISITIONS OF RELEVANT INTERESTS IN VOTING SHARES

SECTION 609   SITUATIONS NOT GIVING RISE TO RELEVANT INTERESTS  

609(1)  Money lending and financial accommodation.  

A person does not have a relevant interest in securities merely because of a mortgage, charge or other security taken for the purpose of a transaction entered into by the person if:

(a)  the mortgage, charge or security is taken or acquired in the ordinary course of the person's business of providing financial services and on ordinary commercial terms; and

(b)  the person whose property is subject to the mortgage, charge or security is not an associate of the person.

Note:

Sections 11 to 17 define associate .

609(2)  Nominees and other trustees.  

A person who would otherwise have a relevant interest in securities as a bare trustee does not have a relevant interest in the securities if a beneficiary under the trust has a relevant interest in the securities because of a presently enforceable and unconditional right of the kind referred to in subsection 608(8).

Note:

This subsection will often apply to a person who holds securities as a nominee.

609(3)  Holding of securities by securities dealer.  

A securities dealer does not have a relevant interest in securities merely because they hold securities on behalf of someone else in the ordinary course of their securities business.

609(4)  Shares covered by buy-backs.  

A person does not have a relevant interest in a company's shares if the relevant interest would arise merely because the company has entered into an agreement to buy back the shares.

609(5)  Proxies.  

A person does not have a relevant interest in securities merely because the person has been appointed to vote as a proxy or representative at a meeting of members, or of a class of members, of the company, body or managed investment scheme if:

(a)  the appointment is for one meeting only; and

(b)  neither the person nor any associate gives valuable consideration for the appointment.

609(6)  Exchange traded options and futures contracts.  

A person does not have a relevant interest in securities merely because of:

(a)  an exchange traded option over the securities; or

(b)  a right to acquire the securities given by a futures contract.

This subsection stops applying to the relevant interest when the obligation to make or take delivery of the securities arises.

Note:

Without this subsection, subsection 608(8) would create a relevant interest from the option or contract.

609(7)  Conditional agreements.  

A person does not have a relevant interest in securities merely because of an agreement if the agreement:

(a)  is conditional on:

(i) a resolution under item 7 in the table in section 611 being passed; or

(ii) ASIC exempting the acquisition under the agreement from the provisions of this Chapter under section 655A; and

(b)  does not confer any control over, or power to substantially influence, the exercise of a voting right attached to the securities; and

(c)  does not restrict disposal of the securities for more than 3 months from the date when the agreement is entered into.

The person acquires a relevant interest in the securities when the condition referred to in paragraph (a) is satisfied.

609(8)  Pre-emptive rights.  

A member of a company, body or managed investment scheme does not have a relevant interest in securities of the company, body or scheme merely because the company's, body's or scheme's constitution gives members pre-emptive rights on the transfer of the securities if all members have pre-emptive rights on the same terms.

609(9)  Director of body corporate holding securities.  

A person does not have a relevant interest in securities merely because:

(a)  the person is a director of a body corporate; and

(b)  the body corporate has a relevant interest in those securities.

609(10)  Prescribed exclusions.  

A person does not have a relevant interest in securities in the circumstances specified in the regulations. The regulations may provide that interests in securities are not relevant interests subject to specified conditions.