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ASIC Class Order [CO 03/636]

Authoritative Version
CO 03/636 Orders/ASIC Class Orders as made
This Class Order modifies section 661A of the Corporations Act 2001 so that if a bidder compulsorily acquires bid class securities it may also compulsorily acquire non-transferable employee securities. For certainty, it modifies the compulsory acquisition provisions so that non-transferable employee securities can be transferred in completion of a compulsory acquistion despite any restrictions on transfer under the terms of issue of the securities.
Administered by: Treasury
General Comments: This Class Order was published in the Australian Securities and Investments Commission Gazette on 30 September 2003.
Registered 09 Mar 2007
Gazetted 30 Sep 2003
Date of repeal 21 Jun 2013
Repealed by ASIC Class Order [CO 13/518]

Australian Securities and Investments Commission
Corporations Act 2001 — Paragraphs 350(1)(b) and 669(1)(b) — Approval and Declaration

 

 

Under paragraph 669(1)(b) of the Corporations Act 2001 (the “Act”) the Australian Securities and Investments Commission (“ASIC”) declares that Chapter 6A of the Act applies to all persons in the case set out in the Schedule as if:

 

1.    section 661A of the Act were modified or varied by:

 

(a)   adding at the end of subsection (1):

 

“If the bidder compulsorily acquires securities in the bid class under this subsection, the bidder may also compulsorily acquire securities (non‑transferable securities) in a different class where:

 

(a)   the constitution of the company that issued the non-transferable securities or the terms of issue of the non-transferable securities restrict their transfer; and

 

(b)   the non-transferable securities would be in the bid class but for the restriction referred to in paragraph (a); and

 

(c)   if all the non-transferable securities were securities in the bid class, they would not exceed 10% of the securities in the bid class (by number, worked out at the end of the offer period).”;

 

(b)   adding after subsection (4):

 

“(4A)     If the bidder compulsorily acquires non-transferable securities under subsection (1), the bidder:

 

(a)   must acquire all the non-transferable securities:

 

(i)    which were issued or granted before the end of the offer period; and

 

(ii)   in which the bidder does not have a relevant interest; and

 

(b)   may elect to acquire any non-transferable securities in which the bidder has a relevant interest (no matter when they were issued or granted).”; and


 

(c)   adding at the end of subsection (5):

 

“For the avoidance of doubt, this section also has effect despite anything in the terms of issue of the securities to be acquired.”;

 

2.    subsection 661B(1) of the Act were modified or varied by:

 

(a)   omitting from subparagraph (c)(ii) “and” and substituting “or”; and

 

(b)   adding after subparagraph (c)(ii):

 

“(iii) if the bidder elects to acquire non-transferable securities under subsection 661A(1) — a holder of the non-transferable securities; and”;

 

3.    subsection 661D(1) of the Act were modified or varied by omitting “in the bid class”;

 

4.    subsection 664A(4) of the Act were modified or varied by adding at the end:

 

“For the avoidance of doubt, this section also has effect despite anything in the terms of issue of the securities to be acquired.”; and

 

5.    subsection 666B(2) of the Act were modified or varied by adding at the end:

 

“For the avoidance of doubt, if the person acquiring the securities complies with subsection (1), the transfer of the securities to the person is effective notwithstanding any restrictions on transfer of the securities contained in the constitution of the company that issued the securities or the terms of issue of the securities.”.

 

 

And for the purposes of paragraphs 350(1)(b) and 661B(1)(a) of the Act, ASIC approves for use by a bidder who elects to compulsorily acquire non-transferable securities under subsection 661A(1) of the Act as notionally modified or varied by this instrument, a form in terms of ASIC Form 6021 modified by omitting paragraph 2 and substituting:

 

“2.   You are, or are entitled to be, registered as the holder of:

 

(a)   securities in respect of which an offer was made, but have not accepted the takeover offer; and/or

 

(b)   securities issued under an employee share scheme to which restrictions on transfer apply, being [insert a description of the class of the non-transferable employee securities].”.

 

Schedule

 

The compulsory acquisition of a security issued under a scheme to or for the benefit of employees or non-executive directors of the company that issued the security or of a related body corporate of it in relation to their employment or services.

 

Dated this 22nd day of September 2003

 

 

 

 

Signed by Stephen Yen, PSM
as a delegate of the Australian Securities and Investments Commission