Takeovers Code Approval Amendment Regulations 2007
New rules 31 and 32 substituted
Rules 31 and 32 are revoked and the following rules substituted:
Variation of consideration and consideration alternatives
"(1)
If an offer does not contain alternative consideration options and a variation is made under rule 27(a) or 27(b), the additional consideration must be provided to every offeree who accepts the offer.
"(2)
If an offer contains alternative consideration options and a variation is made under rule 27(a) or 27(b), any offeree may accept the varied alternative or, if more than 1 alternative is varied, 1 of those varied alternatives.
"(3)
If a variation is made under rule 27(c), any offeree may accept that alternative.
"(4)
Subclauses (1) to (3) apply whether an offeree has accepted the offer before the variation or not.
"(5)
An offeree's acceptance of a consideration alternative under subclause (2) or (3) is only valid if the offeree complies with rule 32(2).
Procedure on variation of consideration and consideration alternatives
"(1)
If rule 31(1) applies after the consideration has been sent to offerees who have accepted the offer, the additional consideration must be sent, no later than 7 days after the date on which the offer is varied, to every offeree to whom the consideration under the offer was sent before the variation.
"(2)
If rule 31(2) or (3) applies after the consideration has been sent to offerees who have accepted the offer, and an offeree accepts a different consideration alternative, the acceptance by that offeree of a different consideration alternative is not valid unless the offeree repays or returns, with the form of acceptance of the different consideration alternative, the consideration already sent by the offeror and any documents necessary to revest the returned consideration in the offeror."
New rule 36 substituted
Rule 36 is revoked and the following rule substituted:
Acquisitions
"(1)
During the offer period, the offeror, any related company of the offeror, any person acting jointly or in concert with the offeror, or any of the directors of any of them, must not acquire any equity securities in the target company otherwise than under the offer unless-
"(a)
the offeror has made a full offer for cash, or a full offer with a cash alternative; and
"(b)
the acquisition is made no later than 14 days before the end of the offer period; and
"(c)
the acquisition is made only for cash; and
"(d)
the acquisition of any equity securities will not result in the offeror and the offeror's associates holding or controlling in total more than 20% of the voting rights in the target company (excluding any equity securities in respect of which the offeror has received acceptances of the offeror's offer), unless the offer has become unconditional; and
"(e)
notice is given under subclause (2) by the offeror.
"(2)
Notice of the acquisition of securities under subclause (1) must-
"(a)
be given no later than the day after the date of acquisition,-
"(i)
if any of the offeror, any holding company of the offeror, or the target company is a listed company or entity, to the target company, the registered exchange, and the Panel; or
"(ii)
if none of the offeror, any holding company of the offeror, or the target company is a listed company or entity, to the target company and the Panel; and
"(b)
state, in respect of the date of acquisition of the securities,-
"(i)
the aggregate number of securities, per class, acquired; and
"(ii)
the weighted average price, per class, paid."
Rule 41: Takeover notice
Rule 41 is amended by revoking subclause (2) and substituting the following subclauses:
"(2)
If the offer will include an offer of securities to which the Securities Act 1978 applies, the notice referred to in subclause (1) must be accompanied by a copy of every relevant document.
"(3)
In subclause (2),
every relevant document means every document that must be registered or lodged with, or produced to, any of the following persons or bodies for the offer to comply with the Securities Act 1978 (including any exemption granted under the Securities Act 1978 or any mutual recognition scheme established under that Act) or with the laws of any overseas jurisdiction in which the offer of the securities is to be made:
"(a)
the Registrar of Companies (including any equivalent person or body in an overseas jurisdiction):
"(b)
any regulatory body (including a regulator in an overseas jurisdiction):
"(c)
any offeree of the securities.
"(4)
The notice may contain, or be accompanied by, any additional information that the directors of the offeror determine could affect the decision of the offerees to accept or reject the offer."
New rule 41A inserted
The following rule is inserted after rule 41:
Offeror's notification obligations when takeover notice sent
"(1)
If the target company is a listed company, the offeror must send (electronically, if possible) to the registered exchange a copy of the documents that the offeror is required to send under rule 41.
"(2)
The offeror must send the documents to the registered exchange at the same time that the offeror sends the documents under rule 41.
"(3)
The offeror must send (electronically, if possible and if requested) within 1 day of receipt of the request, free of charge, a copy of the takeover notice and any of the documents that accompanied it under rule 41 to any person who requests them."
New rules 42 to 42B substituted
Rule 42 is revoked and the following rules substituted:
Target company's notification obligations when takeover notice received
"(1)
If it is a listed company, the target company must, immediately on receipt of a takeover notice,---
"(a)
notify the registered exchange in writing that a takeover notice has been received; and
"(b)
send (electronically, if possible) to the registered exchange a copy of the notice and the documents that accompanied it under rule 41.
"(2)
If it is not a listed company, the target company must, immediately on receipt of a takeover notice, do all that is reasonably practicable to ensure that every person to whom the offer will be made is given a notice in writing that states-
"(a)
that the target company has received a takeover notice; and
"(b)
the identity of the offeror; and
"(c)
the main terms and conditions of the proposed offer; and
"(d)
that a copy of the notice and any of the documents that accompanied it under rule 41 are available from the target company and the offeror free of charge on request.
"(3)
The target company must send (electronically, if possible and if requested) within 1 day of receipt of the request, free of charge, a copy of the takeover notice and of any of the documents that accompanied it under rule 41 to any person who requests them.
Target company must give offeror class notice
"(1)
In this rule,
class notice means a written notice by the target company containing a description of,-
"(a)
in the case of a full offer, each class of its equity securities whether voting or non-voting; or
"(b)
in the case of a partial offer, each class of its voting securities.
"(2)
Not later than 2 days after receiving a takeover notice, the target company must send the offeror a class notice.
"(3)
The class notice must contain sufficient information about each class of equity security (in the case of a full offer) or voting security (in the case of a partial offer) to enable-
"(a)
the offeror to formulate an offer; and
"(b)
an independent adviser to provide a report under rule 22.
"(4)
In subclause (3), sufficient information includes the terms of issue of each relevant class of security and the number of those securities on issue in each class, as at the date of the class notice.
Target company must send offeror copy of securities register
Not later than 2 days after the record date, the target company must send to the offeror, in electronic form (or in such other form as the target company and the offeror may agree), a copy of the target company's securities register relating to the securities to which the offer relates as at the record date."
New rules 43 to 43B substituted
Rule 43 is revoked and the following rules substituted:
Who are offerees
"(1)
The offerees in respect of an offer are the persons shown as the holders of securities in the target company to which the offer relates on the securities register of the target company as at the record date.
"(2)
Nothing in subclause (1) prevents the offeror from sending the offer to persons who acquire securities in the target company to which the offer relates after the record date.
Record date
"(1)
The offeror must send to the target company a notice in writing that specifies the record date for the purposes of the offer.
"(2)
The record date must not be more than 10 days before the date of the offer.
"(3)
The notice referred to in subclause (1) must be sent no later than 2 days before the record date.
"(4)
Before the offeror has sent the offer to the offerees, the offeror may change the record date to a later record date by giving a further notice or notices under subclause (1), and in that case subclauses (2) and (3) apply to that notice or those notices as well.
When offer must be sent
The offeror must send the offer to the offerees on a date that is-
"(a)
No later than 3 days after the date of the offer specified under rule 44(1)(c); and
"(b)
during the period beginning 14 days, and ending 30 days, after the takeover notice relating to the offer has been sent to the target company."
Rule 44: Offer document
(1)
Rule 44(1) is amended by revoking paragraph (b) and substituting the following paragraph:
"(b)
be on the same terms and conditions as those contained in or accompanying the takeover notice, except for-
"(i)
conditions that have been satisfied or waived; and
"(ii)
any variations to which the directors of the target company have given their prior written approval; and
"(iii)
subject to subclause (3), any variation that extends the offer to an additional class or classes of security; and
"(iv)
consequential amendments; and".
(2)
Rule 44(1)(d) is amended by revoking subparagraphs (ii) and (iii) and substituting the following subparagraphs:
"(ii)
any document required to accompany the takeover notice sent under rule 41(2) that is required by the Securities Act 1978 or any other applicable law to accompany an offer of securities; and
"(iii)
any additional information contained in, or that accompanied, the takeover notice under rule 41(4); and
"(iv)
a copy of the target company statement (if the target company statement has been given to the offeror under rule 46(a)(i))."
(3)
Rule 44(2) is amended by omitting "41(2)" and substituting "41(4)".
(4)
Rule 44 is amended by adding the following subclause:
"(3)
The offer may be varied to extend the offer to an additional class or classes of security without the approval of the directors of the target company if-
"(a)
the class or classes were not included in the terms or conditions contained in or accompanying the takeover notice but were included in the class notice given under rule 42A; and
"(b)
the offeror has sent a notice of the variation referred to in subclause (1)(b)(iii) to the target company not less than 7 days before the date of the offer; and
"(c)
the offeror has obtained a report or an amended report under rule 22 if any of rules 8(3) or 8(4) or 9(5) apply in relation to the offer as varied under subclause (1)(b)(iii); and
"(d)
the notice of variation referred to in paragraph (b) is accompanied by a report or an amended report (as the case may be) under rule 22."
New rule 47 substituted
Rule 47 is revoked and the following rule substituted:
Documents that must be sent to Panel or that Panel may require
"(1)
A copy of a notice, statement, or other document that must be given or sent under rules 41 to 46 (excluding rule 42B) and rule 48 must at the same time be given or sent to the Panel in hard copy and (if possible) in electronic form.
"(2)
The notice, statement, or other document must be given or sent to the Panel by or on behalf of the person who is responsible for giving or sending it under the relevant rule.
"(3)
On request by the Panel the target company must send to the Panel a copy of the securities register that the target company must send to the offeror under rule 42B, and in that case the Panel's copy must be in the same form as the offeror's copy.
"(4)
An offeror or target company or person acting on behalf of any of them who, in relation to an offer, publishes or sends to any offeree any statement or information that is not required to be published or sent by the rules of this code must, at the same time that the statement or information is published or sent, also send a copy of it to the Panel in hard copy and (if possible) in electronic form."
