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 6.6 - VARIATION OF OFFERS  

Division 3 - Off-market bids (automatic variations)  

SECTION 651A   OFF-MARKET BID - EFFECT ON BID CONSIDERATION OF PURCHASES MADE OUTSIDE BID  
Effect of purchases outside bid on offers made under the bid

651A(1)    
The offers made under an off-market bid, and the takeover contracts, are varied under this section if:

(a)    the bidder purchases securities in the bid class outside the bid during the bid period; and

(b)    the consideration for that purchase consists solely of a cash sum; and

(c)    either:

(i) the consideration, or 1 of the forms of consideration, payable under the bid consists of a cash sum only and the consideration referred to in paragraph (b) is higher than the cash sum payable for the securities under the bid; or

(ii) a cash sum only is not the consideration, or 1 of the forms of consideration, payable under the bid.

Note 1: Section 9 defines takeover contract

Note 2: The effect of section 623 is that the purchase outside the bid has to be made through an on-market transaction (see subsection 623(1) and paragraph 623(3)(b) ).

Effect on unaccepted cash offers

651A(2)    
If:

(a)    one of the forms of consideration offered to a person under an off-market bid is a cash sum only; and

(b)    the person has not accepted the offer before the purchase outside the bid occurs;

the cash sum is taken to be increased to the highest outside purchase price before the offer is accepted.

Effect on cash offers already accepted

651A(3)    
The consideration payable for each security covered by a takeover contract arising from the acceptance of an offer for a cash sum only is increased to the highest outside purchase price. If the person who accepted the offer has already received the whole or any part of the consideration under the contract, they are entitled to receive the increase in consideration immediately.

Effect on non-cash offers accepted at any time during bid period

651A(4)    
If:

(a)    a person accepts an offer under a bid at any time during the bid period; and

(b)    the consideration paid or provided, or to be paid or provided, under the takeover contract arising from the acceptance of the offer does not consist of a cash sum only;

then:

(c)    the person may elect to take as consideration for each security covered by the takeover contract a cash sum equal to the highest outside purchase price instead of the consideration they originally accepted; and

(d)    the bidder must give the person a written notice of their right to make the election within 14 days after the end of the offer period.

Note: Section 651B says how the election is to be exercised.

651A(5)    

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

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