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 6.5 - THE TAKEOVER PROCEDURE  

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 total number 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 .