Takeovers Code Approval Amendment Regulations 2007
New rule 49A inserted
The following rule is inserted after rule 49:
Offeror must notify Panel, etc, of increases in acceptances of offer
"(1)
The offeror must as soon as practicable notify the Panel and the target company in writing on each occasion when the total level of acceptances received for each class of equity securities subject to the offer increases by 1% or more of the total issued equity securities in each class in the target company.
"(2)
If the target company or the offeror or any holding company of the offeror is a listed company or entity, the offeror must provide the registered exchange with the same notification that is required under subclause (1)."
New rule 54 substituted
Rule 54 is revoked and the following rule substituted:
Acquisition notice
"(1)
The dominant owner must send to the outstanding security holders a notice in writing (the acquisition notice) that complies with rule 55.
"(2)
If the dominant owner becomes the dominant owner by reason of acceptances of an offer (whether or not the dominant owner has also acquired equity securities under rule 36), the acquisition notice must be sent not later than 30 days after the end of the offer period.
"(3)
If subclause (2) does not apply, the acquisition notice must be sent not later than 30 days after the dominant owner becomes the dominant owner.
"(4)
A copy of the acquisition notice must be---
"(a)
sent immediately to the code company, the Panel, and (if the code company is a listed company) the registered exchange; and
"(b)
delivered immediately to the Registrar of Companies for registration."
Rule 55: Contents of acquisition notice
(1)
Rule 55 is amended by revoking paragraph (c) and substituting the following paragraphs:
"(c)
unless rule 56A applies, specify the consideration to be provided for the outstanding securities; and
"(ca)
if rule 56A applies, state-
"(i)
the alternative consideration options; and
"(ii)
the procedure for nominating an alternative consideration option; and
"(iii)
what happens if an outstanding security holder does not nominate an alternative consideration option; and".
(2)
Rule 55(f) is amended by inserting, before the words "be accompanied", the words "subject to subclause (2),".
(3)
Rule 55 is amended by adding the following subclause as subclause (2):
"(2)
If rule 56A applies, the instrument of transfer must provide for the outstanding security holder to nominate an alternative consideration option."
Rule 56: Dominant owner through acceptances of offer
Rule 56 is amended by revoking subclause (3) and substituting the following subclause:
"(3)
In subclause (2), equity securities controlled by the dominant owner or held or controlled by associates of the dominant owner are not included for the purposes of calculating the following:
"(a)
the acceptances of the offer:
"(b)
the equity securities that were the subject of the offer."
New rule 56A inserted
The following rule is inserted after rule 56:
Alternative consideration options
"(1)
This rule applies if rule 56 applies and the offer provided for alternative consideration options.
"(2)
If the offer provided for alternative consideration options, an outstanding security holder may nominate 1 of those options as the consideration payable and the dominant owner must provide that consideration.
"(3)
If the offer provided for alternative consideration options with a default consideration, and an outstanding security holder does not nominate 1 of the options, the dominant owner must provide the default consideration.
"(4)
If the offer provided for alternative consideration options without a default consideration, and an outstanding security holder does not nominate 1 of the options, the dominant owner must provide the consideration containing the greatest cash component.
"(5)
In this rule, default consideration means the consideration that was specified in the offer document to be payable if an accepting offeree did not nominate 1 of the alternative consideration options."
Rule 57: Determination of consideration in other cases
(1)
Rule 57 is amended by revoking subclause (1) and substituting the following subclauses:
"(1)
If the consideration cannot be established under rule 56, the consideration specified in the acquisition notice-
"(a)
must be a cash sum certified as fair and reasonable by an independent adviser; or
"(b)
if a person becomes the dominant owner by reason of acceptances of an offer (whether or not the dominant owner has also acquired equity securities under rule 36) and the consideration under the offer was a cash sum or included a cash alternative, must be the same cash sum or cash alternative provided as consideration under the offer for equity securities of the same class.
"(1A)
The consideration specified under subclause (1) is the consideration payable for the outstanding securities."
(2)
Rule 57(2) is amended by omitting "(1)(b)" and substituting "(1A)".
(3)
Rule 57 is amended by revoking subclause (5) and substituting the following subclauses:
"(5)
On receipt of the independent adviser's certificate required under subclause (1)(a), the dominant owner must send a copy of it free of charge-
"(a)
immediately to the Panel and, if the target company is a listed company, to the registered exchange; and
"(b)
on request to any other person within 1 day of receipt of the request.
"(6)
On receipt of the expert determination required under subclause (3), the dominant owner must send a copy of it free of charge---
"(a)
immediately to the Panel and, if the target company is a listed company, to the registered exchange; and
"(b)
on request to any other person within 1 day of receipt of the request."
Rule 60: Payment of consideration to outstanding security holder
Rule 60 is amended by revoking subclause (1) and substituting the following subclause:
"(1)
If an outstanding security holder returns to the dominant owner the documents referred to in rule 59, the dominant owner must, within 7 days after the dominant owner receives those documents, send to the outstanding security holder---
"(a)
the consideration specified in the acquisition notice; or
"(b)
if rule 56A applies, the consideration that is payable under that rule."
Rule 61: Delivery of consideration to code company
Rule 61(1) is amended by revoking paragraph (a) and substituting the following paragraph:
"(a)
deliver to the code company-
"(i)
the consideration specified in the acquisition notice; or
"(ii)
if rule 56A applies, the consideration that is payable under that rule; and".
New heading to Schedule 1 substituted
The heading to Schedule 1 is omitted and the following heading substituted: "Information that must be contained in, or must accompany, takeover notice and offer document".
New clause 4 of Schedule 1 substituted
Schedule 1 is amended by revoking clause 4 and substituting the following clause:
Advice statement
"A statement in the following form, to be set out in a prominent position at the front of the offer document:
"IMPORTANT
"If you are in doubt as to any aspect of this offer, you should consult your financial or legal adviser.
"If you have sold all your shares in [name of target company] to which this offer applies, you should immediately hand this offer document and the accompanying acceptance form to the purchaser or the agent (eg the broker) through whom the sale was made, to be passed to the purchaser.
"[Name of target company]'s target company statement, together with an independent adviser's report on the merits of this offer [and another independent adviser's report on the fairness and reasonableness of the consideration and terms of this offer as between classes of securities]* either accompanies this offer or will be sent to you within 14 days and should be read in conjunction with this offer.
*omit if rule 22 report not required".
