Allens Linklaters Takeovers-Handbook

The Allens handbook to
takeovers in Australia
Overview of Allens
Allens is a leading international law firm with partners, lawyers and corporate services
staff across Asia and Australia.
We work with many of the worlds leading organisations including 55 of the worlds top
100companies and more than 75 of Australias top 100 companies. Our clients recognise
us for our commerciality, professionalism, integrity and technical expertise.
We are praised for our innovative approach to complex work and delivering marketleading solutions to clients.
On 1 May 2012, we formed an integrated alliance with Linklaters. The alliance provides
our clients with access to market leading lawyers through a global network of 40 offices
across 29 countries, including to emerging markets in Africa, Asia and South America.
The alignment of our complementary practices enables us to offer an integrated service
to clients, with one point of contact, a unified team drawn from the best resources of
each firm, and consistent quality advice and support.
In Asia, the two firms have formed a joint venture to deliver market leading capabilities
in energy, resources and infrastructure projects work. The firms have also formed an
Indonesian joint venture, building on Allens existing association with Widyawan &
Partners. The strategic focus of the Indonesian joint venture is on energy, resources and
infrastructure, banking, capital markets, and mergers and acquisitions.
Further information about Allens can be found at: www.allens.com.au.
Market leading international M&A practice

Independent surveys consistently recognise our lawyers as the best M&A advisers
in Australia and the Asia region. Chambers Asia 2013 acknowledges that Allens
Corporate/M&A practice is particularly known for being able to mobilise a dedicated,
highly resourced team to tackle large and complex transactions. Cross-border M&A is
a particular specialisation, involving the co-ordination of large teams across different
jurisdictions, regularly working with local counsel.
We are pleased to have played a crucial role in the largest and most complex public
takeovers in Australias corporate history, including:
Rio Tintos response to BHP Billitons US$192 billion takeover offer and its
strategic alliance with Chinalco;
News Corporations separation of its A$75 billion media and entertainment business
and its publishing business;
St.George Banks A$67 billion merger with Westpac Banking Corporation;
Wesfarmers A$20 billion acquisition of Coles;
Fosters Groups response to the takeover by SABMiller for A$12.3 billion;
Qantas defence of the Macquarie led private equity consortiums A$11.1 billion
bid for the airline;
CEMEXs US$15.3 billion successful acquisition of Rinker; and
Newcrest Minings A$9.5 billion merger with Lihir Gold.
This corporate heavyweightremains a front runner in the market.

They put a great deal of effort and thought into protecting clients.
Chambers Asia 2013
About this handbook

This handbook provides an overview of:
the rules which govern takeovers of, and acquisitions of voting securities
in, Australian publicly listed companies and trusts;
how to undertake or respond to a takeover proposal for an Australian
publicly listed company or trust; and
the legal issues which commonly arise in Australian takeover transactions.
This handbook should not be relied on as a substitute for obtaining legal or
other professional advice. Should you require legal advice, please contact us.
This handbook is current as at January 2014.
Contents
Australian takeovers in brief
1. Introduction 10
2. The 20% rule and key concepts
13
3. Exceptions to the 20% rule
17
4. Takeovers regulators
19
5. Shareholding thresholds
22
6. Transaction structures
25
7. Takeover bids (for companies and trusts)
31
8. Schemes of arrangement (for companies)
38
9. Trust schemes (for trusts)
44
10. Strategic considerations for a prospective acquirer
50
11. Strategic considerations for a target
56
12. Other takeovers issues
61

1. Introduction
>> Takeovers in Australia are regulated by a combination
of legislation and regulatory policy.
>> The takeovers rules apply to acquisitions of ASXlisted Australian companies, ASX-listed Australian
managed investment schemes (being investment
trusts), and unlisted Australian companies with
more than 50 shareholders.
>> The takeovers rules reflect policies that:
the acquisition of control of an entity which is
subject to the takeovers rules takes place in an
efficient, competitive and informed market;
target shareholders have a reasonable time to

consider a proposed acquisition and are given
enough information to enable them to assess
the merits of the proposal; and
target shareholders have an equal opportunity
to participate in the benefits of a change of
control of a company (referred to as a control
transaction).
>> The most common takeover structures in Australia
are: an off-market takeover bid (for either a friendly
or hostile deal) and a scheme of arrangement (for a
friendly deal only).

>> A person cannot acquire a relevant interest in
voting securities of an entity that is subject to the
takeovers rules if that would result in any persons
voting power exceeding 20%, except via a specified
exception (such as a takeover bid).
>> The concept of relevant interest is extremely broad,
covering almost all situations where a person has
direct or indirect control over the voting or disposal
of a security.
>> A persons voting power in an entity is the aggregate
of that persons relevant interests in voting
securities and the relevant interests of that persons
associates, expressed as a percentage of all issued

voting securities.
>> The concept of association seeks to ascertain all
persons who should be considered as belonging to a
single securityholding bloc in relation to an entity. It
covers all entities within the same corporate group,
and persons who are deemed to be working together
for the purpose of influencing the composition
of the relevant entitys board of directors or its
management, or working together in relation to the
relevant entitys affairs.

>> There are various exceptions to the 20% rule.
>> These exceptions include acquisitions of relevant
interests: under a takeover bid, under a scheme of
arrangement, with target securityholder approval,
under a creep acquisition (ie. 3% every 6 months),

under a downstream acquisition (ie. acquisitions
of shares in listed entities which hold securities
in a target), under a rights issue, or as a result of
exercising a security interest.
>> The key takeovers regulators are the Australian
Securities and Investments Commission (ASIC) and
the Takeovers Panel.
>> Neither ASIC nor the Takeovers Panel has the power
to make upfront binding rulings on a proposed
structure or proposed course of action.
>> ASIC has general supervision of the Corporations Act

including the takeovers rules, and has the power to
modify and grant relief from the takeovers rules.
>> Courts play a very limited role in takeover

transactions conducted via a takeover bid structure.
However, courts play a vital role in takeover
transactions conducted via a scheme
of arrangement, in that a scheme requires
court approval.
>> The Takeovers Panel is the primary forum for

resolving takeover disputes. It has the power to
declare circumstances unacceptable (even if they
do not involve a breach of law) and to make
remedial orders.
>> The key shareholding thresholds in an ASX-listed
Australian company are: 5% (obligation to file
substantial holding notice), >10% (ability to block
compulsory acquisition), 15% (possible foreign
investment approval requirement), >20% (takeovers
threshold), >25% (ability to block scheme of

arrangement and special resolution), >50% (ability
to pass ordinary resolution), 75% (ability to pass
special resolution) and 90% (entitlement to
compulsory acquisition).
>> The most commonly used takeover structures are:
an off-market takeover bid (for either a company or
trust), a scheme of arrangement (for a company) and
a trust scheme (for a trust).
>> Other, less commonly used takeover structures

include: a selective capital reduction (for a company)
and a securityholder-approved transaction (for a
company or trust).
>> The majority of friendly deals are effected via a

scheme of arrangement or trust scheme, largely
because of their all-or-nothing outcomes.
7. Takeover bids (for companies and trusts)

>> A takeover bid can be used for either a friendly or
hostile acquisition of a company or trust.
there are no special deals for individual target

securityholders;
>> A takeover bid involves the making of individual

offers to purchase target securities at a specified bid
price.
there are no self-triggering bid conditions (for

off-market bids);
>> There are 2 types of takeover bid: an off market bid

and a market bid.
>> Virtually all takeover bids are off-market bids
because of the ability to include conditions.
>> Takeover bids are subject to the following key
rules that:
all offers must be the same;
the bid price cannot be lower than price which
the bidder paid for a target security within the
previous 4 months;
the bidder must issue a bidders statement

containing the offer terms and other
information;
the target must issue a targets
statement containing the target boards
recommendation; and
the bidder is entitled to compulsory
acquisition if it obtains a relevant interest
in at least 90% of the target securities (and
has acquired at least 75% of the securities it
offered to acquire).
the offer period to be no less than 1 month

and no more than 12 months;
8. Schemes of arrangement (for companies)

>> A scheme of arrangement can be used only for a
friendly acquisition of a company, and is frequently
used to effect 100% acquisitions.
the preparation by the target, with input from

the bidder, of a draft scheme booklet which is
given to ASIC for review;
>> A scheme of arrangement is a shareholder and

court-approved statutory arrangement between
a company and its shareholders that becomes
binding on all shareholders by operation of law.
the target seeking court approval for the

despatch of the scheme booklet to target
shareholders and court orders for the
convening of the shareholders meeting to
vote on the scheme (ie. the scheme meeting);
>> Schemes are subject to fewer prescriptive rules than

takeover bids and therefore can be more flexible,
but are supervised by ASIC and the courts.
>> A standard scheme involves:
a scheme implementation agreement
between the bidder and the target;
holding the scheme meeting;

implementation of the scheme;
implementing the scheme; and
de-listing the target from ASX.

>> A trust scheme can be used only for a friendly
acquisition of a trust, and is frequently used to effect
100% acquisitions.
>> A trust scheme resembles a company scheme of
arrangement, but without the requirement for court
approval.
>> Trust schemes are subject to fewer specific rules
than takeover bids and are therefore more flexible,
but the Takeovers Panel has oversight.
>> A standard trust scheme involves:

an implementation agreement between the bidder
and the target;
the bidder, of a draft explanatory memorandum
which is sent to ASIC for review before sending to
unitholders in advance of the unitholders meeting;
holding the unitholders meeting;
lodging the amended trust constitution with ASIC;
implementing the trust scheme; and

>> Threshold matters for a prospective acquirer to
consider include: transaction structure; whether
it is seeking 100% or just control; form of offer
consideration; due diligence requirements; friendly
or hostile deal; and the potential acquisition of a
pre-bid stake.
>> The initial approach to the target is usually
conducted verbally, and followed by a written
confidential, non-binding and indicative proposal.
The target generally has no obligation to announce
such a proposal - unless it ceases to become
confidential but could decide to do so for
strategic reasons.
The target may also require a standstill agreement

whereby the prospective acquirer cannot acquire
target securities for a specified period except under a
friendly transaction.
>> A prospective acquirer can seek to bolster its position
by acquiring a pre-bid stake (subject to the 20%
takeovers rule, insider trading rules, any need for
secrecy and other considerations).
>> If the target is not receptive to an approach, a
prospective acquirer can launch a hostile takeover
bid, make a bear hug announcement or initiate a
board spill.
>> If a target grants due diligence access it will

usually only do so on the basis of a confidentiality
agreement, which restricts the use of that
information to implement a friendly transaction.

>> The directors of an Australian company (or
responsible entity of an Australian trust) will, given
their fiduciary duties, usually seek to maximise
shareholder value and, to that end, will usually
consider the reasonableness of any takeover
proposal.
>> The overriding principles are that: (i) the directors
of an ASX-listed Australian company (and
responsible entity of a trust) must at all times act
bona fide in the interests of the company (or trust
unitholders), and for a proper purpose; and (ii)
target directors should not take actions, without
securityholder approval, which causes the defeat of
a control proposal.
>> A board can prepare for a possible takeover approach

by: preparing a takeover defence manual and
undertaking other pre-approach tasks, such as
monitoring the share register, maintaining
a valuation of itself, preparing for the grant of
due diligence to a bidder, and preparing draft
ASX announcements.
>> Key immediate decisions for a target following
receipt of a takeover proposal are whether to: make
an ASX announcement and engage with the bidder.
>> If the target board concludes a takeover proposal
to not be in the interests of shareholders, it should
consider an appropriate defence strategy. This could
involve seeking counter-bidders or establishing the
inadequacy of the bidders proposal.

Other takeovers issues which commonly arise or need
consideration include:
>> whether foreign investment approval is required;
>> whether competition clearance is required;
>> ASICs truth in takeovers policy which requires

persons to be bound by their public statements in
relation to a takeover; and
>> the acquisition or cancellation of target options and
other convertible securities.
> Introduction
>> Takeovers in Australia are regulated by a combination
of legislation and regulatory policy.
>> The takeovers rules apply to acquisitions of ASX-listed
Australian companies, ASX-listed Australian managed
investment schemes (being investment trusts), and
unlisted Australian companies with more than 50
shareholders.
>> The takeovers rules reflect policies that:
the acquisition of control of an entity which is
subject to the takeovers rules takes place in an
efficient, competitive and informed market;
target shareholders have a reasonable time to
consider a proposed acquisition and are given
enough information to enable them to assess the
merits of the proposal; and
target shareholders have an equal opportunity to
participate in the benefits of a change of control of
a company (referred to as a control transaction).
>> The most common takeover structures in Australia
are: an off-market takeover bid (for either a friendly
or hostile deal) and a scheme of arrangement (for a
friendly deal only).
1.1 What is a takeover?

In Australia, the term takeover is often used to refer
generically to the acquisition of control of a publicly listed
company. Usually that control is obtained upon ownership
of more than half of a companys voting shares. However,
in some cases, control can be obtained at a lower
shareholding interest if, as a practical matter, a person
can determine the composition of a companys board of
directors.
Sometimes, the term merger is used in lieu of takeover.
In Australia the term merger is more a commercial
concept than a legal one, often to describe an agreed
acquisition of one company by another. Unlike other
jurisdictions (such as the United States), there is no
practice in Australia to effect control transactions via a
true merger which results in the target company being
subsumed into the bidder company and the target
company ceasing to exist.
Control transactions in Australia most commonly involve
a bidder acquiring all (or at least a majority) of the voting
securities in the target, and the target becoming a
subsidiary of the bidder.
1.2 Regulatory framework

Takeovers in Australia are regulated by a combination of:
legislation: Part 5.1 and Chapter 6 of the Corporations
Act 2001 (Cth);
governmental policy: policy developed by the
Australian Securities and Investments Commission
(ASIC) (the national companies regulator) and the
Takeovers Panel (a specialist tribunal which resolves
takeover disputes); and
foreign investment rules set out in the Foreign

Acquisitions and Takeovers Act 1975 (Cth) and the
Governments foreign investment policy, where
proposed acquisitions requiring approval are
examined by the Australian Foreign Investment
Review Board (FIRB); and
other rules specific to an industry (such as banking,
broadcasting, aviation and gaming) which may
regulate control transactions.
The focus of this handbook, however, is on the takeovers
rules in the Corporations Act.
1.3 What entities are governed by

the takeovers rules?
The acquisition of interests in voting securities issued by
the following types of entities need to comply with the
Australian takeovers rules:
all Australian-incorporated companies listed on the
ASX;
all unlisted Australian-incorporated companies with
more than 50 shareholders; and
all Australian-registered managed investment
schemes listed on the ASX (these are normally listed
unit trusts).
The takeovers rules can also regulate the acquisition of
voting securities in entities (whether incorporated in
Australia or elsewhere) that hold or have interests in the
voting securities of an entity of a type mentioned above.
All persons, whether or not resident in Australia, must
comply with the takeovers rules.
stock exchange rules: to a lesser extent, the listing

rules of the ASX.
In addition, Australia has:
anti-trust rules set out in the Competition and
Consumer Act 2010 (Cth) which are administered
by the Australian Competition and Consumer
Commission;
1. Introduction
11
1.4 Fundamental principles
1.5 Transaction structures
The takeovers rules and policies are founded on the

following fundamental principles (set out at the
beginning of Chapter 6 of the Corporations Act):
A control transaction for an ASX-listed Australian

company or trust can be effected through one of various
takeover structures, either on a friendly or hostile basis. A
friendly deal is one that is supported by the target board
of directors.
the acquisition of control of a relevant entity (being

one of the types of entities described above) takes
place in an efficient, competitive and informed
market;
the security holders and directors of a relevant entity:
know the identity of any person who proposes to
acquire a substantial interest in entity;
The most common structures are the off-market takeover

bid (for either a friendly or hostile deal) and the scheme
of arrangement (for a friendly deal only). These structures
are discussed in this handbook.
have a reasonable time to consider the proposal;

and
are given enough information to assess the
merits of the proposal;
as far as practicable, the entitys securityholders
should all have a reasonable and equal opportunity
to participate in any benefits accruing to the entitys
securityholders through the proposal; and
an appropriate procedure is followed as a preliminary
to compulsory acquisition of the entitys securities
under the Corporations Act.
1. Introduction
12
> The 20%

rule and key
concepts
>> A person cannot acquire a relevant interest in voting
securities of an entity that is subject to the takeovers
rules if that would result in any persons voting power
exceeding 20%, except via a specified exception (such
as a takeover bid).
>> The concept of relevant interest is extremely broad,
covering almost all situations where a person has
direct or indirect control over the voting or disposal of
a security.
>> A persons voting power in an entity is the aggregate
of that persons relevant interests in voting securities
and the relevant interests of that persons associates,
expressed as a percentage of all issued voting securities.
>> The concept of association seeks to ascertain all persons
who should be considered as belonging to a single
security holding bloc in relation to an entity. It covers all
entities within the same corporate group, and persons
who are deemed to be working together for the purpose
of influencing the composition of the relevant entitys
board of directors or its management, or working
together in relation to the relevant entitys affairs.
2.1 The 20% rule

The basic takeover rule is that a person cannot acquire a
relevant interest in issued voting shares of an Australianincorporated company listed on the ASX (or issued voting
shares of an unlisted Australian-incorporated company
with more than 50 shareholders, or issued voting interests
in an Australian-registered managed investment scheme
listed on the ASX) if, because of that acquisition, that
persons or someone elses voting power in the relevant
entity:
increases from 20% or below to more than 20%; or
increases from a starting point that is above 20%
and below 90%, unless the acquisition occurs via a
specified exception (such as a takeover bid, scheme of
arrangement or with target shareholder approval).
This is commonly known as the 20% rule or 20%
takeovers threshold. At a basic level, the 20% rule means
that a person is limited to holding a 20% shareholding
interest in an ASX-listed company and cannot move
beyond that except via a specified exception.
2.2 Key concepts

The key concepts for the purposes of the 20% rule and the
takeovers regime generally are:
relevant interest;
association; and
voting power.
2.3 Relevant interest

As explained below, there are five ways in which a person
will have a relevant interest in voting shares in a company
or voting interests in a managed investment scheme
(ie. trust). More than one person can have a relevant
interest in the same parcel of shares at the same time. For
simplicity, the term shares rather than voting shares or
managed investment scheme interests is used below.
(a) Registered holder

A person who is the registered holder of shares
will have a relevant interest in those shares, unless
the person holds the shares as a bare trustee for
the beneficial holder (ie. the person can only deal

with or vote the shares upon the beneficial holders
instructions). Often a professional custodian or
nominee holder will be considered a bare trustee.
(b) Control over voting

A person who is not the registered holder of shares
but nevertheless has the power to exercise, or control
the exercise of, a right to vote attached to the shares
will also have a relevant interest in those shares.
The references to power and control are to be read
broadly, and include power or control that: is indirect,
or is express or implied, or is formal or informal,
or can be exercised as a result of an agreement or
practice (whether or not legally enforceable), or can
be made subject to restraint or restriction.
For instance, where a registered holder of shares has
conferred on another person the right to decide how
to vote the shares, whether on a single resolution or
for a specified period or otherwise, the other person
will have a relevant interest in the shares for so long
as that right exists. Also, an arrangement or practice
whereby a person other than the registered holder of
shares can determine how the shares are voted will
give that person a relevant interest in the shares.
However, there is an exception for proxy appointees
a person who is appointed by a registered holder
of shares to vote as a proxy at a single meeting of
shareholders and has not been provided any valuable
consideration for that appointment will not be taken
to have a relevant interest in the shares.
(c) Control over disposal

A person who is not the registered holder of shares
but has the power to dispose, or control the exercise
of, a power to dispose of the shares will have a
relevant interest in those shares. The references
to power and control are to be read broadly, and
includes power or control that: is indirect, or is
express or implied, or is formal or informal, or can
be exercised as a result of an agreement or practice
(whether or not legally enforceable), or can be made
subject to restraint or restriction.
14
There are various situations in which a person other

than the registered holder will be taken to have
control over the disposal of shares. These include, for
instance:
where the person has contracted to purchase shares
but completion has yet to occur;
where the persons consent is required for disposal of
the shares; and
where the person has a pre-emptive or other right
to purchase the shares before they can be offered for
sale to a third party.
There are various situations in which a person who
is taken to have control over the disposal of shares
will not be treated as having a relevant interest in the
shares. These include:
where a person has taken security interests over
the shares in the ordinary course of the persons
business of the provision of financial accommodation
(commonly known as the moneylender exemption);
where the person holds exchange-traded derivatives
over shares (prior to the obligation to make or take
delivery of the shares arising);
where the person has the benefit of pre-emptive
rights on the transfer of shares and those rights
are contained in a company constitution where all
shareholders have pre-emptive rights on the same
terms; and
where the person has entered into an agreement (eg.
to purchase shares) that is conditional upon target
shareholder approval or an ASIC exemption.
(d) Accelerated relevant interests

A person will be taken to have a relevant interest in
issued shares if:
the person has entered into an agreement with
another person with respect to the shares and
would have a relevant interest in the shares if the
agreement were performed (eg. entry into a share
purchase agreement confers on the purchaser a
relevant interest in the shares even if completion
occurs at a later date);
another person has given or gives the person an

enforceable right in relation to the shares whether
the right is enforceable now or in the future and
whether or not on the fulfilment of a condition
and the person would have a relevant interest in the
shares if the right is enforced (eg. if a person is given
a right to exercise votes attached to shares but that
right only arises upon the satisfaction of a certain
condition, the person has a relevant interest in the
shares and not only if and when the voting right
actually arises); or
another person has granted or grants an option to,
or has been or is granted an option by, the person
with respect to shares (in other words all parties to
a call option or put option arrangement in respect
of shares are taken to immediately have a relevant
interest in the shares, to the extent they do not have
a pre-existing relevant interest, upon the creation of
the option).
(e) Deemed relevant interests through

corporate groups
There are broad tracing provisions whereby each
entity within a corporate group (ie. the parent and all
of its controlled entities) is deemed to have a relevant
interest in any shares in which any group entity has a
relevant interest.
Specifically, a person is deemed to have a relevant
interest in any shares that any of the following has:
a body corporate, or managed investment scheme, in
which the persons voting power is above 20% (the
20% deeming rule); and
a body corporate, or managed investment scheme,
that the person controls (the control deeming rule).
The 20% deeming rule can apply only once in a chain
of entities, whereas the control deeming rule can
be applied multiple times in a chain. The rules can
result in a person breaching the basic 20% threshold
with respect to an ASX-listed company via upstream
acquisitions (eg. acquisitions of shares in a company
which either holds shares in the ASX-listed company
or which holds shares in a company which holds
shares in the ASX-listed company).
15
2.4 Voting power

A persons voting power in a company or managed
investment scheme is calculated by aggregating:
the relevant interests which the person holds in the
entitys voting shares or voting interests; and
the relevant interests which the persons associates
hold in the entitys voting shares or voting interests,
and expressing the result as a percentage of all voting
shares or voting interests on issue.
2.5 Association
The concept of association in the Corporations Act seeks
to ascertain all persons who should be considered as
belonging to a single securityholding bloc in relation to a
company or managed investment scheme. It is possible for
a person to be associated with another person even if they
do not also acquire a relevant interest in each others shares.
Two or more persons will be considered associates in
relation to a company or managed investment scheme
where:
they are companies belonging to the same corporate
group;
they have entered into a relevant agreement (being
an agreement, arrangement or understanding)
for the purpose of controlling or influencing the
composition of the board of the company or of the
entity which is the responsible entity of the managed
investment scheme or the conduct of the companys
or managed investment schemes affairs (where
conduct is broadly defined to include an entitys
business operations, internal management and the
exercise of voting rights attached to its securities)
this is known as the relevant agreement test; or
There is significant overlap between the relevant

agreement and acting in concert tests.
2.6 Practical application of the

20% rule
The 20% rule is not breached merely because a persons
voting power has exceeded 20%. For instance, if person A
holds 18% of a companys voting shares and becomes
associated with person B who holds 10%, each of person A
and person B will have voting power of 28% in the
company. However, if neither A nor B has a relevant
interest in each others shares, there is no breach of the
20% rule. This is because the rule only applies where there
is an acquisition of a relevant interest which results in a
persons voting power exceeding 20%.
This means that merely forming an association which
results in a persons voting power increasing beyond the
20% threshold is itself not unlawful. However, in practice,
there is a fine line between association and relevant
interest. Also, any person who has voting power of more
than 5% needs to publicly disclose that fact within two
business days via the filing of a substantial holding with
the ASX and the relevant entity, which must disclose how
the voting power (relevant interest and/or association)
arose.
As a final point, the 20% rule will apply to the acquisitions
of relevant interests between associates. Using the above
example, each of persons A and B will have voting power
of 28% as a result of their association. If A sought to
acquire Bs 10% stake its voting power will not increase
but in that circumstance the takeovers rules operate to
disregard the association for the purposes of the 20%
rule. Therefore A could not acquire Bs stake except via a
specified exception to the 20% rule.
they are acting or proposing to act in concert

(ie. with a common purpose and a meeting of the
minds) in relation to the companys or managed
investment schemes affairs (where conduct is
broadly defined to include an entitys business
operations, internal management and the exercise
of voting rights attached to its securities) this is
known as the acting in concert test.
16
> Exceptions
to the 20% rule
>> There are various exceptions to the 20% rule.
>> These exceptions include acquisitions of relevant
interests: under a takeover bid, under a scheme of
arrangement, with target securityholder approval,
under a creep acquisition (ie. 3% every 6 months),
under a downstream acquisition (ie. acquisitions of
shares in listed entities which hold securities in a
target), under a rights issue, or as a result of
exercising a security interest.
The 20% rule operates as a limit on how much a person

can acquire in an ASX-listed company or trust. Moving
beyond that threshold can only be done through one of a
number of specified exceptions. Unlike other jurisdictions,
there is no mandatory bid concept in the Australian
rules that allows a person to acquire a securityholding
or other relevant interest of more than 20% on the

basis that a follow-on general offer is made to all target
securityholders.
The following acquisitions of relevant interests in voting
securities are exempted from the 20% rule.
Takeover bid
Acquisition arising from acceptance of a takeover bid in accordance with Chapter 6

of the Corporations Act. This is discussed further in section 7. (Acquisitions on-market
during a takeover bid are also permitted in limited circumstances.)
Scheme of arrangement
Acquisition arising from a court-approved scheme of arrangement. This is discussed

further in section 8.
Securityholder approval
Acquisition approved by an ordinary resolution of securityholders of the relevant

entity. The following persons cannot vote in favour of the resolution: the acquirer,
the acquirers associates and the sellers. This exception cannot (without ASIC relief)
be used to acquire 100% of an entity because all target securityholders would be
excluded from voting in favour of the resolution. The exception is more commonly
used for new security issuances (ie. where new funds are injected into the entity),
rather than to transfer existing securities which normally does not provide any
direct benefit to securityholders other than the seller.
Creep acquisition
Acquisitions of up to 3% every 6 months from a starting point above 19%. Note that
a person who has acquired more than 20% under another exception must wait 6
months before it can make acquisitions under this exception.
Acquisition resulting from the acquisition of securities in an upstream entity (ie.
one which is listed on the ASX or on a specified foreign exchange) which itself has a
relevant interest in a downstream ASX-listed company or trust.
Downstream acquisition
However, a downstream acquisition may be considered unacceptable by the

Takeovers Panel where control of the downstream company appears to be a
significant purpose of the upstream acquisition (eg. if the shares in the downstream
company comprise over 50% of the upstream companys assets).
Rights issue
Acquisition resulting from pro-rata rights issues to securityholders. This exception

extends to underwriters of such rights issues. However, a purported reliance on the
rights issue exception may be found unacceptable by the Takeovers Panel where the
control effect of a rights issue exceeds what is reasonably necessary to raise funds.
Security interest
Acquisition resulting from enforcement of security interest taken over securities in

the ordinary course of the acquirers ordinary course of business of the provision of
financial accommodation.
18
>
Takeovers
regulators
>> The key takeovers regulators are the Australian
Securities and Investments Commission (ASIC) and the
Takeovers Panel.
>> ASIC has general supervision of the Corporations Act
including the takeovers rules, and has the power to
modify and grant relief from the takeovers rules.
>> The Takeovers Panel is the forum for resolving takeover
disputes. It has the power to declare circumstances
unacceptable (even if they do not involve a breach of
law) and to make remedial orders.
>> Neither ASIC nor the Takeovers Panel has the power to
make upfront binding rulings on a proposed structure
or proposed course of action.
>> Courts play a very limited role in takeover transactions
conducted via a takeover bid structure. However,
courts play a vital role in takeover transactions
conducted via a scheme of arrangement, in that a
scheme requires court approval.
4.1 Introduction
The takeovers rules in the Corporations Act are
administered by ASIC, with takeover disputes largely being
determined by the Takeovers Panel (other than schemes
of arrangement once they become subject to the courts
scrutiny). In the case of acquisitions of an ASX-listed
entity, the rules of the ASX also become relevant. The court
has a central role in considering and approving schemes
of arrangement, but otherwise has a limited role in
takeovers.
Other bodies also have a role in regulating control
transactions, depending on the circumstances. These
include the Australian Competition and Consumer
Commission in respect of competition matters, and the
Foreign Investment Review Board in respect of foreign
investment approval matters.
4.2 ASIC
ASIC is a government body which has general supervision
of all aspects of the Corporations Act including takeovers.
ASIC is invested with broad facilitative, regulatory and
enforcement powers including (insofar as they relate
to takeovers):
to modify and grant relief from provisions of the
takeovers rules in the Corporations Act, which
ASIC can (and has previously done) through policy
instruments called class orders which apply widely
or through transaction-specific modification and
relief instruments;
to review scheme booklets to be sent to target
shareholders in a company scheme of arrangement
before such booklets can be submitted to the court
for approval to despatch to shareholders;
to apply to the Takeovers Panel for declarations of
unacceptable circumstances and remedial orders,
and to make submissions on applications made
by others;
to investigate suspected breaches of the law and in
so doing require people to produce books or answer
questions; and
to seek civil penalties from the courts and to
commence certain prosecutions.
As part of its supervisory role ASIC has a practice of

reviewing takeover and takeover-related documents (such
as ASX announcements, bidders statements and targets
statements) and, if a document appears to raise a legal
or policy issue, making informal enquiries of the relevant
persons. These enquiries can be a precursor to a formal
investigation.
It must be noted that, other than making decisions
about applications for modifications of or relief from the
takeovers rules, ASIC does not (and does not have the
power to) provide upfront binding rulings on whether a
proposed course of action will comply the takeovers rules.
Nor is ASIC a forum for resolving takeover disputes that
role is performed by the Takeovers Panel.
4.3 Takeovers Panel

The Takeovers Panel is a specialist tribunal for resolving
takeover disputes. It has near-exclusive jurisdiction to hear
disputes in relation to a takeover bid, and broad nonexclusive jurisdiction in relation to control transactions
and acquisitions of voting securities that do not involve
a takeover bid. It also has jurisdiction to hear matters
relating to a proposed scheme of arrangement before the
courts are involved.
The Panels objective is to determine takeover disputes in
an efficient manner by focusing on commercial and policy
issues rather than technical legal points. To this end, the
Panel comprises part-time members appointed by the
government from the ranks of public company directors,
senior investment bankers, academics and lawyers. Each
application to the Panel is heard by a sitting Panel of three
of those members. The Panel is supported by a full-time
executive team.
The Panels primary power is to declare circumstances
unacceptable in relation to a takeover bid for, or the
control of, an Australian publicly listed company or trust.
The Panel can make such a declaration if it appears to the
Panel that the circumstances:
are unacceptable having regard to the effect that the
Panel is satisfied that the circumstances have had,
are having, will have or are likely to have on:
the control or potential control of a listed
company or listed managed investment scheme;
or
20
the acquisition or proposed acquisition of a

substantial interest in a listed company;
are otherwise unacceptable having regard to the
purposes of the takeovers rules (ie. the fundamental
principles in section 1.4); or
are unacceptable because they constitute or are likely
to constitute a breach of the black letter takeover
rules or the provisions relating to substantial
shareholding notices or tracing provisions,
and after having regard to the public interest.
The Panel has published a number of guidance notes

which discuss the policy the Panel considers relevant
in control transactions. Prior Panel decisions (roughly
15-35 each year since the Panel was established in 2000)
are also a useful source of guidance. However, it must
be noted that, unlike the London Takeover Panel, the
Australian Takeovers Panel does not (and does not have
the power to) provide upfront binding rulings on whether
a proposed course of action complies with the takeovers
rules or is immune from a declaration of unacceptable
circumstances.
If the Panel makes a declaration of unacceptable

circumstances, it has very broad powers to make orders
to protect the rights of persons (especially target security
holders) and to ensure that a takeover bid proceeds (as
far as possible) in a way that it would have proceeded if
the unacceptable circumstances had not occurred. This
includes divestment orders and orders affecting the rights
of third parties.
4.4 ASX
As with a court, the Panel cannot act of its own

accord. It can only make a declaration of unacceptable
circumstances in response to an application brought
by ASIC or an interested party (eg. a target entity, target
securityholder, or a competing bidder).
In respect of a takeover, the ASXs focus is to ensure that

ASX-listed entities comply with the ASX Listing Rules,
particularly the continuous disclosure obligations. In
short, each ASX-listed entity is obliged to disclose all
price-sensitive information once it becomes aware of that
information, unless the information falls within a limited
exception. ASX-listed entities who are the subject of a
confidential takeover approach need to be particularly
mindful of their continuous disclosure obligations.
However, the similarities to a court end there. Unlike a

court, the Panel does not make decisions on the basis
of black letter takeovers rules. The Panel is required to,
and in practice does, take a purposive approach to the
takeovers rules the upshot being that structures and
courses of action which technically avoid the operation
of any takeover rule but which may be inconsistent with
the fundamental takeovers principles are at risk of being
struck down by the Panel. Also, unlike a court the Panel is
not bound by rules of evidence, thereby giving the Panel
greater flexibility in determining what information it can
take into consideration when ruling on an application.
Further, unlike a court, virtually all Panel cases are
conducted by written submissions and involve a fairly
short timetable.
The ASX does not specifically regulate the manner in

which takeovers are conducted, aside from settlement
rules regarding the electronic processing of takeover
bid acceptances and other rules relating to reporting of
information and restrictions on security issuances by a
target entity following a takeover bid being announced.
4.5 The courts

Given the Takeovers Panels near-exclusive jurisdiction to
hear disputes in relation to takeover bids, courts play a
very limited role in takeover transactions conducted via
a takeover bid structure. In contrast, courts play a vital
role in takeover transactions conducted via a scheme of
arrangement structure namely to order the convening
of the scheme meeting and to confirm the scheme once
approved by target shareholders (which is required for
implementation of the scheme).
The Panel also has the power to review ASIC decisions

whether to grant modifications of or relief from the
takeovers rules. This power is not commonly exercised,
as relatively few applications for such review have been
made to date.
21
> Shareholding
thresholds
>> The key shareholding thresholds in an ASX-listed
Australian company are: 5% (obligation to file
substantial holding notice), >10% (ability to block
compulsory acquisition), 15% (possible foreign
investment approval requirement), >20% (takeovers
threshold), >25% (ability to block scheme of
arrangement and special resolution), >50% (ability
to pass ordinary resolution), 75% (ability to pass
special resolution) and 90% (entitlement to
compulsory acquisition).
The following table identifies the key shareholding thresholds in an ASX-listed company. For simplicity the table focuses
on companies only (but the same principles apply to the acquisition of interests in listed managed investment schemes).
Percentage (%)
of issued shares
Implications
5%
Substantial holding notice

A person who obtains voting power in 5% or more of an ASX-listed company is required to publicly
disclose that fact within 2 business days via the filing of a substantial holding notice. A persons voting
power consists of their own relevant interest in shares plus the relevant interests of their associates.
A further notice needs to be filed within 2 business days after each subsequent voting power change
of 1 percentage point or more, and after the person ceases to have voting power of 5% or more.
The notice must attach all documents which contributed to the voting power the person obtained, or
provide a written description of arrangements which are not in writing.
>10%
Blocking of compulsory acquisition

A person who has a greater than 10% shareholding interest in an ASX-listed company will be able to
prevent a majority shareholder from moving to 100% ownership through compulsory acquisition,
because the compulsory acquisition threshold is set at 90%.
Foreign investment approval for foreign government-owned entities
A foreign government investor (being, in broad terms, an entity owned or controlled by a foreign
government or an entity in which a foreign government owns more than 15% of its shares) is required
to obtain foreign investment (FIRB) approval for any acquisition of 10% or more of the shares in an
Australian company or the interests in an Australian trust. In some cases, approval is required for
acquisitions below the 10% threshold. The approval is required under the Australian Governments
foreign investment policy.
15%
Foreign investment approval for foreign persons

A foreign person is required to obtain foreign investment (FIRB) approval for any acquisition of
15% or more of an Australian companys shares where the company has gross assets of more than
A$248 million1, or where the proposed acquisition values the company at more than A$248 million2.
The approval is required under the Foreign Acquisitions and Takeovers Act.
(Note: The above does not apply to acquisitions of interests in trusts. As a general rule, approval
is required to acquire any interest in a trust where more than 50% of the trusts assets comprise
Australian urban land. In certain cases, the same applies to acquisitions of any shares in a company
that is similarly land-rich.)
>20%
Takeovers threshold
A person cannot acquire a relevant interest in a companys shares if it would result in that persons
or someone elses voting power in the company increasing from 20% or below to more than 20%,
or increasing from a starting point that is above 20% and below 90%, unless the acquisition occurs
via a specified exception (such as a takeover bid, scheme of arrangement or with target shareholder
approval).
1. The A$248 million threshold applies for calendar year 2014 and is subject to inflation-adjustment on an annual basis.
2. As above.
23
Percentage (%)
of issued shares
Implications
>25%
Blocking of scheme of arrangement

A person who owns or has voting control over 25% or more of a companys shares can unilaterally
block the approval of a takeover conducted by a scheme of arrangement, because one of the scheme
voting thresholds is approval by at least 75% of the votes cast on the scheme resolution. (In practice,
a person can normally block a scheme with less than a 25% interest given voter turnout at scheme
meetings is often substantially lower than 100%.)
Blocking of special resolutions
block the approval of a special resolution (see below regarding special resolution), because it requires
approval by at least 75% of the votes cast on the resolution. (In practice, a person can normally block
a special resolution with less than a 25% interest given voter turnout at company meetings is often
substantially lower than 100%.)
>50%
Passage of ordinary resolutions

A person who owns or has voting control over more than 50% of a companys shares can unilaterally
pass an ordinary resolution, because it requires approval by a majority of votes cast. Importantly,
directors can be appointed and removed by shareholders by ordinary resolution. (In practice, a person
can normally pass an ordinary resolution on their own with less than a 50% interest given voter
turnout at company meetings is often substantially lower than 100%.)
(Note: where there remain minority shareholders in a company, the companys directors cannot favour
the controlling shareholder over the others because the directors have a duty to consider the interests
of the company as a whole. Further, related party dealings that require shareholder approval will likely
need to be approved by the minority shareholders alone, with the controlling shareholder(s) excluded
from voting.)
75%
Passage of special resolutions

pass a special resolution, because it requires approval by at least 75% of the votes cast. Under the
Corporations Act, certain matters need to be passed by a special resolution of shareholders, eg.
amendments to the constitution, change of company name, change of company type, selective
reduction of capital, selective buy-back of shares and winding-up. (In practice, a person can normally
pass a special resolution on their own with less than a 75% interest given voter turnout at company
meetings is often substantially lower than 100%.)
(Note: where there remain minority shareholders in a company, the companys directors cannot favour
the controlling shareholder over the others because the directors have a duty to consider the interests
of the company as a whole. Further, related party dealings that require shareholder approval will likely
need to be approved by the minority shareholders alone, with the controlling shareholder(s) excluded
from voting.)
90%
Entitlement to compulsory acquisition

Generally speaking, where a person owns 90% or more of a companys shares they can compulsorily
acquire the remainder.
24
>
Transaction
structures
>> The most commonly used takeover structures are: an
off-market takeover bid (for either a company or trust),
a scheme of arrangement (for a company) and a trust
scheme (for a trust).
>> The majority of friendly deals are effected via a
scheme of arrangement or trust scheme, largely
because of their all-or-nothing outcomes.
>> Other, less commonly used takeover structures
include: a selective capital reduction (for a company)
and a securityholder-approved transaction (for a
company or trust).
6.1 Commonly used structures

By far the most common structures which are used to
acquire control of an ASX-listed company or trust are:
an off-market takeover bid, in the case of either a
company or trust (discussed in section 7);
a scheme of arrangement, in the case of a company
(discussed in section 8); and
a trust scheme, in the case of a trust (discussed in
section 9).
An off-market takeover bid can be used for either a
friendly or hostile deal, whereas a scheme of arrangement
and trust scheme can only be used in a friendly deal. A
friendly deal is one that has the support of the targets
board of directors. In Australia the majority of friendly
deals are effected via a scheme of arrangement or trust
scheme, rather than a takeover bid, largely because of
its all-or-nothing outcome. If the relevant scheme is
approved, the bidder will acquire 100% of the target but,
if it is not approved, the bidder will not acquire any target
securities. In contrast, under a takeover bid, the bidder
can only be certain of obtaining 100% if it reaches the
90% compulsory acquisition threshold, but to get to
that stage it is usually necessary to declare the bid
unconditional first.
A number of ASX-listed entities (predominantly in the

property trust sector) trade as stapled entity structures.
These structures comprise one or more entities which
are run as a combined economic unit and the securities
of which are quoted jointly. Such securities are known as
stapled securities. The common form of stapled entity
structure consists of a company and a unit trust, where
each share issued by the company is stapled to each
unit issued by the trust such that they cannot be traded
separately hence the term stapled security. Other
forms of stapled structures which are currently (or have
previously been) listed on the ASX include two or more
unit trusts, and two or more unit trusts plus a company.
A person seeking to acquire control of a stapled entity
structure needs to acquire all entities within the
structure. This can be achieved via simultaneous and
inter-conditional takeover bids for all entities within the
stapled structure, or simultaneous and inter-conditional
scheme(s) of arrangement and/or trust scheme(s). It is
not feasible to make a simultaneous takeover bid for one
entity within a structure, and to propose a scheme of
arrangement or trust scheme for another.
6.2 Bid vs scheme structure

The following table contains an overview of the
differences between an off-market takeover bid and a
scheme of arrangement as the structure for acquiring
100% of the shares in an ASX-listed Australian company.
For simplicity, the table looks only at company targets
(rather than trust targets as well). The table does not
canvass all the differences between the bid and scheme
structures, but focuses on those which are likely to be
decisive in choosing between the two approaches. It does
not address taxation or accounting differences.
26
Character
Threshold
Off-market takeover bid
Bidders initiative and control, subject to the

terms of any bid implementation agreement
with the target.
Targets initiative and control, subject to the terms

of a scheme implementation agreement with the
bidder.
Written offer by bidder to purchase all shares

held by target shareholders.
Target shareholder-approved and court-approved

arrangement between target and its shareholders
to either transfer shares to bidder in exchange
for specified consideration or have their shares
cancelled in exchange for specified consideration.
Can be conditional (ie. to produce an ALL OR

NOTHING result), or unconditional to get
as many target shares as bidder can, then
subsequently seek to move to compulsory
acquisition thresholds.
ALL OR NOTHING proposition: compulsory

acquisition irrelevant.
Compulsory acquisition requires:
Approval by a vote of shareholders by at least:
90% relevant interest in target shares; and
75% of votes cast; and
acquisitions of 75% of non bidderheld shares

by close of bid.
a majority by number of all target shareholders

present and voting (in person or by proxy).
Assuming that bidder commences with no

target shares, 90% relevant interest test is the
only relevant threshold.
Bidder is usually treated as a separate class,

assuming it owns target shares. Court has
discretion to waive the majority by number test.
Inaction (eg dead and lost shareholders) =

Rejection
Inaction = Acquiescence (ie less support required

at shareholder meeting)
A scheme involves a lower target shareholder
approval threshold than a takeover bid, because
of the 75% voting requirement versus the 90%
compulsory acquisition threshold plus the fact
that voter turnout at a scheme meeting is often
substantially less than 100%.
Role of regulators
and court
No court involvement unless a challenge to bid

by ASIC. All other challenges to Takeovers Panel,
not courts. ASIC has no formal review role.
Two court hearings: first, to order the

convening of the target shareholder meeting and
to approve despatch of the scheme booklet; and
second, to approve the scheme itself after the
shareholder meeting.
ASIC has formal review role and is required to
confirm to court whether it has any objections
to scheme.
27
Disclosure
Off-market takeover bid
Bidder prepares the offer document called a

Bidders Statement, which includes offer terms,
funding sources, intentions for target and all
other information known to bidder which is
material to target shareholders.
Target prepares scheme booklet (with notice of

court-ordered meeting): must contain certain
prescribed information. ASIC demands same level
of disclosure as a Bidders Statement and Targets
Statement combined.
Target responds with a Targets Statement which

contains the target directors recommendation
and all information known to the directors
which target shareholders would reasonably
require to make an informed assessment
whether or not to accept the takeover offer.
Conditions
Bid may be subject to conditions, though

there are restrictions on what conditions can
be imposed (eg. a condition cannot be within
bidder's control). Typical conditions include
minimum acceptance condition (eg. 90%
compulsory acquisition threshold), no material
target transactions, no 'prescribed occurrences
in relation to the target, and receipt of regulatory
approvals.
Courts are reluctant to approve schemes that are

conditional. However, it is permissible and usual
for a scheme implementation agreement between
a bidder and target to be subject to conditions
that must be satisfied or waived before the
scheme is approved by the court.
Experts report
Target's Statement only required to include

independent experts report if bidder has 30% or
more of target shares, or bidder and target have
one or more common directors.
Independent experts report practically always

included in scheme booklet, and ASIC and the
court expects inclusion of report.
Different
treatment
among holders
All target shareholders must be treated equally.
Target shareholders can be treated differently if

this is disclosed, though this could create separate
shareholder classes requiring separate votes.
Flexibility of
structure
Less flexible than a scheme in that related

transactions cannot be incorporated, and that
the offer can be varied only to increase offer price
and/or extend offer period. However, increase
to offer price or extension of offer period is a
straightforward process.
More flexible than a takeover bid in that related

transactions can be incorporated, and deal can
be varied in any manner. However, any variation
following despatch of shareholder documents
normally requires court approval.
Timing
Minimum of about two to three months.
Minimum of about two to three months.
28
6.3 Other structures

There are a number of alternative structures by which
a person can obtain control of an ASX-listed Australian
company or trust. These include the following.
(a) Selective capital reduction

(for a company only)
This structure can be used to enable a person to
acquire 100% of a companys shares. It involves a
reduction of the target companys share capital
through the cancellation of all issued shares other
than those held by the bidder, in exchange for
consideration from the company that is usually
funded by the bidder. The transaction requires target
shareholder approval under the capital reduction
provisions of the Corporations Act.
As with a scheme of arrangement, this structure
provides the benefit of an all-or-nothing outcome,
but without the requirement for ASIC sign-off
and court approval. However, the structure is not
frequently used as it has certain limitations and risks,
such as the following.
(Shareholder approval thresholds) A selective capital
reduction must be approved by two shareholder
resolutions:
first, a special resolution at a meeting of all
shareholders (ie. at least 75% of votes cast
voting in favour), with no votes being cast in
favour of the resolution by any shareholder
who is to receive consideration as part of the
reduction; and
second, a special resolution at a meeting of
only those shareholders whose shares will be
cancelled (ie. at least 75% of votes cast voting
in favour).
None of the minority shareholders can vote in

favour of the first resolution but they can vote
against. This means that the bidder needs to ensure
it holds a sufficient number of shares to overcome
any no votes by minority shareholders. For instance,
if the bidder holds 15% of the shares, shareholders
who hold only 5% in total can block the proposal.
(Requirement for capital) A selective capital
reduction can only occur to the extent that the target
company has sufficient share capital. Often the
proposed aggregate consideration is higher than the
share capital recorded in the targets accounts.
(Form of consideration) In most cases the form of
consideration for the reduction can only be cash. This
is because a person cannot be compelled to accept
shares under Australian law there is a requirement
that a person must consent to becoming a member
of a company. Where the bidder proposes to offer
its own shares as consideration, a scheme of
arrangement will be required because only under
a scheme structure will all target shareholders be
deemed to have consented to acquiring bidder
shares (except in certain circumstances where the
target companys constitution contains a deemed
consent provision).
(Additional requirements imposed on targets) A
company can only reduce its share capital if it is fair
and reasonable to the shareholders as a whole, and
if it does not materially prejudice the companys
ability to pay its creditors. If challenged in a court,
the company bears the onus of establishing that
the requirements have been complied with. These
requirements are not imposed on targets in the
bid or scheme structures. There is some support,
but no definitive law, for the view that the fair
and reasonableness requirement is satisfied if the
consideration falls within an independent experts
valuation range.
29
(Tax consequences) There is always a question of

whether the payment of consideration to minority
shareholders is treated as capital (such that
shareholders will pay capital gains tax on any gain,
as with the consideration received under a bid or
scheme), or whether the Australian Taxation Office
(the ATO) will determine that part or all of the
consideration should be treated as an unfranked
dividend. For a minority shareholder it is usually
preferable for the consideration to be treated as
capital (as any capital gain can be offset by capital
losses, or the shareholder can take advantage of
the capital gains tax discounting rules) rather than
as an unfranked dividend (as that will be treated as
income which is taxed at the shareholders marginal
income tax rate). An ATO ruling is usually necessary to
confirm the position.
The s611 item 7 structure is rarely used for

transactions involving the transfer of existing
securities as securityholders are usually unlikely to
approve a change of control where they receive no
direct benefit. The structure is more commonly used
for significant equity injections which result in the
issue of new securities.
(b) Securityholder-approved transaction

(for a company or trust)
This structure can be used to enable a person to
acquire a majority, but not 100%, of the issued
securities in a company or trust. It involves the
bidder being issued with, or acquiring from an
existing securityholder, such number of target
securities so as to result in the bidder obtaining a
majority interest. The transaction must be approved
by target securityholders under section 611 item 7
of the Corporations Act (which is an exception to
the 20% rule).
The reason why a person cannot use the s611 item
7 structure to acquire 100% ownership is because
of the voting restrictions on the transaction. A s611
item 7 transaction must be approved by an ordinary
resolution of securityholders, with no votes being
cast by the bidder or any person whose securities
are to be acquired. So if the bidder sought to
purchase 100% of the target securities there would
no securityholders qualified to vote in favour of the
resolution. ASIC policy is generally not to grant relief
from these voting restrictions.
30
> Takeover bids

(for companies and trusts)
>> A takeover bid can be used for either a friendly or
hostile acquisition of a company or trust.
>> A takeover bid involves the making of individual offers
to purchase target securities at a specified bid price.
>> There are two types of takeover bid: an off market bid;
and a market bid.
>> Virtually all takeover bids are off-market bids because
of the ability to include conditions.
>> Takeover bids are subject to the following key rules that:
all offers must be the same;
the bid price cannot be lower than the price which
the bidder paid for a target security within the
previous 4 months;
the offer period to be no less than 1 month and no
more than 12 months;
there are no special deals for individual target
securityholders;
there are no self-triggering bid conditions (for offmarket bids);
the bidder must issue a bidders statement
containing the offer terms and other information;
the target must issue a targets statement
containing the target boards recommendation; and
the bidder is entitled to compulsory acquisition if
it obtains a relevant interest in at least 90% of the
target securities (and has acquired at least 75% of
the securities it offered to acquire).
7.1 What is a takeover bid?

In general terms, a takeover bid involves a bidder making
individual purchase offers at a specified bid price to all
holders of securities in an ASX-listed Australian company
or trust. If, by the end of the offer period, the bidder has
received acceptances of the offers sufficient to give it
a relevant interest in 90% of the target securities (and
also acquired at least 75% of the securities it offered to
acquire), the bidder can proceed to compulsorily acquire
the remaining target securities at the bid price.
There are two types of takeover bid:
an off market bid (which may offer cash or other
consideration, may be subject to conditions, and may
be for 100% of the target securities or a specified
proportion of each target securityholders securities);
and
a market bid (which must be an unconditional
cash offer).
In an off-market bid, the bidder must make its offers to
target securityholders in writing in a document called
a bidders statement. The target must respond to that
by preparing and despatching to its securityholders a
document called a targets statement which contains the
target directors recommendation. In contrast, a market
bid (often called an on-market bid) involves the bidder
appointing a broker to stand in the ASX market and make
offers to acquire target securities at the specified bid
price, with acceptances being effected by the execution
of on-market trades rather than off-market acceptances.
Despite the offers being made on-market, a bidders
statement and targets statement still needs to be
prepared in a market bid.
7. Takeover bids
A takeover bid, whether an off-market or market bid,

can be used for either a friendly or hostile acquisition.
In a friendly deal, it is common for the bidder and target
to enter into a bid implementation agreement which
contains: the agreed key terms and conditions of the offer,
the targets obligations to recommend the bid, and various
other provisions dealing with the operation of the target
prior to the bidder obtaining control of the target. It is also
common for a bid implementation agreement to contain
deal protection mechanisms such as exclusivity provisions
(including no-shop and no-talk restrictions), rights to
match rival bidders and a break fee payable by the target
to the bidder in certain circumstances if the bid is not
successful. A bid implementation agreement is binding
only on the target and not on target shareholders.
Virtually all takeover bids are off-market bids because
of the ability to include conditions. For simplicity this
handbook focuses on the off market bid structure
involving an offer for 100% of a targets securities. This
section 7 focuses on the key takeover rules and features.
See sections 10 and 11 for a discussion of the strategic
considerations involved in planning or responding to a
takeover proposal.
32
7.2 Indicative timetable

Below is an indicative timetable for a basic off-market
takeover bid, which assumes that the bid becomes
unconditional, does not require any extensions and
Announcement
of intention to bid
Despatch of Bidder's
Statement: Offer opens
Service of
Bidders Statement
Day
0
Maximum
2-month period
Day
30
Offer closes &

compulsory
acquisition
commences
Release of
Target's Statement
Day
44
ASX delisting
of target
Conditions
notice date
Day
59
Day
68
Must be issued
within 15 days
after despatch of
Bidder's Statement
Must be
despatched within
14 to 28 days after service
(no earlier and no later)
7.3 Key takeover bid rules and

features
The rules governing an off-market takeover bid are
detailed in Chapter 6 of the Corporations Act, and
supplemented by ASIC and Takeovers Panel policies. Below
is a summary of the key takeover bid rules and features.
7. Takeover bids
proceeds to compulsory acquisition. It is also assumed

that there is no rival bidder and no regulatory action
which affects timing.
Day
75
Compulsory
acquisition completes
Day
85
Day
105
Minimum
1 month
offer period
Must be between
7 and 14 days
before end of
offer period
Suspension and
delisting
process usually
8 business days
(a) Bid announcement and 2-month rule

It is standard practice for a bidder to first announce
an intention to make a takeover bid for a target
before lodging and despatching its bidders
statement. The making of a bid announcement
triggers an obligation on the bidder to despatch its
bidders statements (which contain the takeover
offers) within 2 months. This is commonly known as
the 2-month rule. The terms and conditions of the
takeover offers must be the same or not substantially
less favourable (to target securityholders) than
33
those in the announcement. Because of this the

proposed offer conditions (see paragraph (h) below)
need to be set out in full or described in detail in the
announcement.
There are limited circumstances in which a bidder
need not follow through. These include where a
bidder could not reasonably be expected to proceed
with the takeover bid as a result of a change in
circumstances, eg. an offer condition being breached
or the bidder has been clearly overbid.
(b) Offers must be the same

All the offers made under the bid must be the same,
subject to certain statutory exceptions.
(c) Offer consideration

There are no restrictions on what can comprise offer
consideration. It can be in the form of cash (in any
currency), securities (whether quoted or unquoted)
or other non-cash assets, or a combination of those,
provided that all target securityholders are offered
the same thing. A bidder can offer consideration
alternatives (eg. cash or shares), again provided
that all target securityholders are offered the same
alternatives.
If the offer consideration comprises cash, the bidders
statement must contain details of the source of
that cash consideration (eg. cash at bank, funding
from parent entity, external debt financing or
equity raising). A bidder should not announce a bid
without either adequate funding arrangements
already in place or reasonable grounds to expect
that it will have sufficient unconditional funding in
place to satisfy acceptances when its offers become
unconditional. Reasonable grounds may still exist
even if any debt financing has not been formally
documented or remains subject to conditions to
drawdown at the time of announcement, but there
must be an enforceable commitment.
If the offer consideration comprises securities, the
bidders statement must contain prospectus-level
disclosure regarding the assets, liabilities, profits and
prospects of the issuing entity and particulars of the
securities being offered.
7. Takeover bids
The offer consideration can be increased, but not

reduced, during the course of a bid. All target
securityholders who have already accepted the bid
are entitled to receive any increase. If the bidder
acquires target securities on-market or otherwise
outside the takeover bid during the offer period at a
price higher than the bid price, the offer is deemed
to be increased to that price. If the original offer did
not include a cash-only consideration and the bidder
purchases target securities outside the bid for cash,
the bidder must give offerees who have accepted the
opportunity to elect to receive cash.
(d) Minimum bid price rule

The consideration offered for target securities must
equal or exceed the maximum consideration that
the bidder or an associate provided, or agreed to
provide, for a target security under any purchase or
agreement during the 4 months before the date of
the bid. There are particular rules for determining
the value of pre-bid non-cash consideration, and for
applying this rule where the consideration under the
bid is or includes scrip.
(e) Time limits for payment of consideration

In general terms, the offer consideration must be
paid or provided by the earlier of 1 month after
the offer is accepted (or if the offer is subject to
a defeating condition, within 1 month after the
contract becomes unconditional) and 21 days
after the end of the offer period. It is common for
bidders to accelerate payment timeframes to attract
acceptances, once the offer is unconditional.
(f) Length of offer period

The offers must remain open for at least one month.
The offer period can be extended by a further
period, subject to an aggregate offer period of not
more than 12 months. Most bids are made for the
minimum period of one month and then extended
as necessary to secure sufficient acceptances. If the
offer is conditional, any extension must be effected
before the status of conditions notice is filed (see
paragraph (h) below for a description of this notice).
The only exception to this is where a rival takeover
bid is announced or improved during that last
34
7-day period. The offer period will be automatically

extended if within the last 7 days the consideration
is improved or the bidders voting power increases
to more than 50%. In that case, the offer period is
extended by 14 days from the relevant event.
its offers, but must do so at least 7 days before the

offers close (the exception to this is what are called
prescribed occurrence conditions which are a very
narrow category of circumstances in relation to the
target see below).
If the offer period is extended by more than 1 month

(or by a cumulative period of more than 1 month)
while the offer remains conditional, every target
securityholder who accepted the offer before the
extension is entitled to withdraw their acceptance.
Common bid conditions include: minimum relevant

interest threshold (often 90% to tie in with the
compulsory acquisition threshold), regulatory
approvals (eg. FIRB or anti-trust), no material
adverse change in relation to the target, no material
transactions by the target, and no prescribed
occurrences in relation to the target (eg. no new
equity issues, no insolvency events, and no sale of the
main undertaking).
(g) Collateral benefits rule

The bidder cannot give or agree to give a benefit to
a person outside the benefits offered to all target
securityholders under the bid if it is likely to induce
the person to dispose of their securities or accept
the offer under the bid. Technically speaking, such
benefits (known as collateral benefits) are only
prohibited where given or offered during the offer
period, however, the Takeovers Panels application of
the fundamental takeover principle of equality of
opportunity means that there is a risk of the Panel
making a declaration of unacceptable circumstances
in relation to a benefit given in the four months prior
to the bid. As a general rule, a benefit is less likely to
constitute a prohibited collateral benefit if it is given
on arms-length terms, eg. the bidder acquiring an
asset from a target securityholder for no more than
market value.
(h) Conditions to the offers

An off-market bid can be made subject to conditions
which, if triggered, will enable the bidder to let its
bid lapse and all acceptances will be voided. There
are restrictions on what conditions can be imposed.
In particular, a condition cannot be self-triggering,
ie. dependent on the bidders opinion, events within
its control or events which are a direct result of
the bidders actions. This means that a general
due diligence condition is not possible, though it is
possible to craft due diligence-type conditions linked
to objectively determinable outcomes (eg. that the
target maintain a specified minimum cash position).
Also, there cannot be any maximum acceptance
condition (one triggered if acceptances exceed a
specified level). A bidder can waive conditions of
7. Takeover bids
The bidder must nominate a date, which must be

between 7 and 14 days before the end of the offer
period, on which it will notify the market on the
status of its bid conditions. This date will usually
be extended by the same period as any offer
period extension.
(i) Bidders statement

The offers despatched to target securityholders
must be accompanied by or contained in a bidders
statement. This document requires a considerable
amount of preparation on the part of the bidder and
its advisers. It is required to contain all information
material to a decision by a target securityholder
whether or not to accept the offer. It is also required
to contain a range of statutory disclosures, including:
a statement of the bidders intentions regarding the
continuation of and any major changes to be made to
the targets business, and the future employment of
present employees;
where cash is offered as consideration, the funding
sources of that cash; and
where securities are offered as consideration,
information to prospectus disclosure standard
regarding the assets, liabilities, profits and prospects
of the issuer and particulars of the securities being
offered.
The bidder cannot despatch its bidders statement
and offers to target securityholders earlier than 14
days after service of the bidders statement on the
35
target (unless the target directors consent to early

despatch, which often occurs in a friendly takeover
bid). A bidders statement must be despatched no
later than 28 days after service on the target, and
within 2 months after the bidder has announced its
intention to make a takeover bid.
In a hostile bid situation, the target board will
normally use the 14-day waiting period to review
the bidders statement to determine whether
there are any aspects which require clarification
for securityholders. If the bidders statement is
considered to be defective in any way, or appears
to contain material misstatements or omissions,
the target board can make an application to the
Takeovers Panel for a declaration of unacceptable
circumstances and orders for corrective disclosure.
In practical terms, any such application should be
brought no later than the end of the first 7 days of
that 14-day period.
(j) Targets statement

After receipt of the bidders statement, the target
must prepare and despatch to its securityholders
a targets statement responding to the bid. The
targets statement must contain a statement by
each target director recommending that the bid
be accepted, or not accepted, and giving reasons
for the recommendations, or reasons why a
recommendation has not been made. It must include
all information known to any target director that
target securityholders and their professional advisers
would reasonably require to make an informed
assessment whether to accept the bid.
Once the 14-day waiting period expires and the
bidder despatches the bidders statement to target
securityholders, the target then only has 15 days
to finalise preparation of its targets statement
and print and commence despatch of that targets
statement to its securityholders. This can place
considerable pressure on a target which is subject to
a hostile bid.
If the bidders voting power in the target is 30% or
more, or a director of the bidder is also a director
of the target, then the targets statement must be
accompanied by an independent experts report.
7. Takeover bids
That report must state whether, in the experts

opinion, the offer is fair and reasonable. It is also
possible that the target will wish to obtain an
independent experts report as part of its defence,
which would accompany the targets statement.
The independent experts report will be a long-form
report, giving a detailed assessment of the value of
the target and its securities, as well as a (usually less
detailed) assessment of the value of the bidders offer
consideration, if for example it includes scrip.
(k) Getting to 90% - the chicken and egg

A key issue for a bidder looking to acquire 100%
under a takeover bid is that, while the bid will be
subject to a 90% minimum acceptance condition,
institutional investors often will not accept while the
bid remains conditional. This means that bidders will
generally need to waive the offer conditions in order
to reach the 90% compulsory acquisition threshold.
One tool which has been developed to attempt to
deal with this issue is the institutional acceptance
facility, which has been used in numerous takeover
bids. The concept is simple. Rather than accepting
the bid at the outset, certain institutional target
securityholders are given the option of initially just
indicating their intention to do so. That is achieved
by the institution providing acceptance instructions
to a third-party trustee. The instructions either take
the form of a completed acceptance form or (if the
securities are held through a custodian) written
directions to the custodian. The trustee holds the
instructions until a specified trigger event occurs
most commonly the delivery of a notice by the
bidder confirming that, when combined with the
actual acceptances already received by the bidder,
the instructions will (when processed) result in
the bidder achieving acceptances for more than a
specified percentage of the target (such as 50% or
90%) and the bid will then become unconditional.
Upon the trigger event occurring, the trustee acts on
the instructions by delivering the acceptance forms
to the bidder and providing the directions to the
custodians. Hence, it is only at that point that the
institutional securityholders intentions to accept are
converted into actual acceptances of the bid. Up until
the trigger event occurring, the securityholders have
36
the ability to retract their instructions, and retain

full control over the voting and disposal of their
securities.
Such facilities have an in-built flexibility which makes
them attractive to bidders: they can be introduced
at any time during a bid and (within limits) the
bidder has a broad discretion as to what trigger
event applies. This flexibility is particularly useful.
A bidder has the opportunity of first assessing the
bids progress before having to commit to withdrawal
rights. If such rights become necessary, they can
then be tailored to the particular circumstances
prevailing the facility can be directed at the specific
securityholders that have concerns, and can be
structured with a trigger event that achieves the
precise outcome desired by the bidder.
(l) Compulsory acquisition

If at the end of the offer period the bidder has
received acceptances sufficient to give it relevant
interests in 90% or more of the targets voting
securities, the bidder can proceed to compulsorily
acquire the remainder at the bid price. This process
usually takes about 2 months to complete. In
theory the bidder can commence the compulsory
acquisition process during the offer period provided
the 90% threshold is met, but it is usual to wait until
the offer period has ended.
7. Takeover bids
(m) Liability regime

The Corporations Act contains a detailed liability
regime for misleading or deceptive statements or
conducts in relation to takeover transactions.
There is a specific regime covering bidders
statements and targets statements. Broadly, the
inclusion of a misleading or deceptive statement
in such a document, or an omission of required
information from such a document, is prohibited and
gives rise to a requirement to compensate any person
who suffered loss as a result, and can also give rise to
criminal liability. Each director of the bidder or target
automatically bears liability if the bidder or target (as
applicable) has issued a defective bidders statement
or targets statement (as applicable).
Defences against criminal and civil liability for a
defective bidders statement or targets statement
include: that the relevant person proves they did not
know the statement was misleading or deceptive or
that there was a relevant omission; or the relevant
person (if a director) proves that they placed
reasonable reliance on the companys management;
or the relevant person (if a company) proves that they
placed reasonable reliance on an external adviser. It is
common practice for bidders and targets to establish
due diligence processes to assist in establishing
these defences if required.
37
>
Schemes of
arrangement

(for companies)
>> A scheme of arrangement can be used only for a
friendly acquisition of a company, and is frequently
used to effect 100% acquisitions.
>> A scheme of arrangement is a shareholder and courtapproved statutory arrangement between a company
and its shareholders that becomes binding on all
shareholders by operation of law.
>> Schemes are subject to fewer prescriptive rules than
takeover bids and therefore can be more flexible, but
are supervised by ASIC and the courts.
>> A standard scheme involves:
a scheme implementation agreement between the
bidder and the target;
the preparation by the target, with input from the
bidder, of a draft scheme booklet which is given to
ASIC for review;
the target seeking court approval for the despatch
of the scheme booklet to target shareholders and
court orders for the convening of the shareholders
meeting to vote on the scheme (ie. the scheme
meeting);
holding the scheme meeting;
implementation of the scheme;
implementing the scheme; and
8.1 What is a scheme of

arrangement?
In general terms, a scheme of arrangement is a
shareholder and court-approved statutory arrangement
between a company and its shareholders that becomes
binding on all shareholders by operation of Part 5.1 of the
Corporations Act. The scheme structure can be used to
reconstruct a companys share capital, assets or liabilities.
The structure can also be used to effect a compromise
between a company and its creditors (which includes
option holders).
The scheme structure is frequently used to effect an
acquisition of 100% of the shares in a target company.
In fact, in a friendly deal the scheme structure is more
often used than the takeover bid structure. This is
largely because of its all-or-nothing outcome and the
potentially lower target shareholder approval threshold
(see section 6.2). A scheme acquisition may be done by
way of a cancellation scheme (ie. all shares not held by
the bidder are cancelled in exchange for the scheme
consideration) or a transfer scheme (ie. all shares not held
by the bidder are transferred to the bidder in exchange
for the scheme consideration). The transfer scheme is the
more commonly used type. As the bidder is not a party
Target announces
proposed scheme
ASIC
completes
review
Draft scheme
booklet given to
ASIC for review
Day
0
Day
42
Announcement
must occur
immediately after
signing of scheme
implementation
agreement
to the scheme, the court will usually require the bidder

to execute a deed poll in favour of target shareholders
undertaking to pay the scheme consideration (ie. the
purchase consideration) to them upon implementation.
Unlike a takeover bid, a scheme can only be used for a
friendly transaction, because it is the target (not the
bidder) that is required to produce and send to target
shareholders a document containing the scheme proposal
and certain other statutory information. Also, it is the
target which applies to the court for orders convening
the meeting(s) of its shareholders to vote on the scheme.
Following shareholder and court approvals, the scheme
will be implemented, resulting in the bidder owning 100%
of the shares in the target.
This section 8 focuses on the key scheme of arrangement
rules and features. See sections 10 and 11 for a discussion
of the strategic considerations involved in planning or
responding to a takeover proposal.

Below is an indicative timetable for a basic scheme
of arrangement, which assumes that the scheme is
successful, that there is no rival bidder and there are no
regulatory actions that will affect timing.
Day
60
Day
61
ASIC usually
requires at
least 14 days
to review
Allow about 6 weeks

to prepare the draft
scheme booklet
8. Schemes of arrangement
Court must approve despatch

of scheme booklet and order the
convening of scheme meeting
Day
90
Minimum
28 day
notice period
Scheme record
date
Scheme
effective
date
Scheme
meeting
of target
shareholders
First court
hearing
Day
57
Second court
hearing
Despatch of scheme booklet

to target shareholders
Day
93
Day
92
Day
100
Scheme is
effective
upon ASIC
lodgement of
court orders
Court approval
of scheme
is required
Scheme
implementation
date
Day
107
Usually up to
5 business
days after
record
date
Usually up to
5 business
days after
effective date
39
8.3 Key scheme rules and features

The rules in Part 5.1 of the Corporations Act governing a
scheme of arrangement are not as prescriptive as those
contained in Chapter 6 for a takeover bid. Many of the
rules applying to a takeover bid do not apply to a scheme.
However, the Part 5.1 scheme rules need to be read in
light of the numerous court decisions regarding schemes,
as well as ASIC policies, which more or less seek to reflect
the fundamental takeovers principles (see section 1.4).
Below is a summary of the key features of a scheme
transaction, having regard to the scheme rules.
(a) Scheme implementation agreement

While not required by law, it is universal practice for
a bidder and target to enter into an implementation
agreement in respect of a scheme. This is because
the proposal and implementation of a scheme
requires a joint bidder-target effort. In contrast,
a takeover bid involves the bidder and target
undertaking discrete roles with specific areas
of responsibility.
A scheme implementation agreement will usually
contain: the target boards obligations to pursue and
recommend the scheme, the targets obligations
to apply to the court for an order convening a
shareholders meeting to vote on the scheme,
the scheme purchase consideration, the bidders
obligations to provide the scheme consideration and
assist with the preparation of the scheme booklet to
target shareholders, the conditions to the scheme,
and various other provisions dealing with operation
of the target prior to scheme implementation.
It is also common for a scheme implementation
agreement to contain deal protection mechanisms
such as exclusivity provisions (including no-shop
and no-talk restrictions), rights to match rival
bidders and a break fee payable by the target to the
bidder in certain circumstances if the scheme is not
successful.
will have regard to when giving their approvals. For

instance, deal protection mechanisms generally
need to comply with Takeovers Panel policy (eg. notalk restrictions need to be subject to an exclusion
to enable superior proposals to be considered and
recommended, and a break fee cannot normally
exceed 1% of the targets equity value).
In respect of a scheme implementation agreement,
the regulatory focus is on disclosure. For instance,
there needs to be adequate disclosure of any
conditions to a scheme and of any matter known
to the bidder or target that can affect the likelihood
of implementation of the scheme. Note, though,
that unlike for takeover bids, scheme conditions can
be self-triggering (eg. a due diligence condition is
permitted). However, it is uncommon for targets to
agree to such conditions.
The signing of a scheme implementation agreement
triggers an obligation on an ASX-listed target
to make a market announcement. The form of
announcement should be agreed in advance
between the bidder and target. Normally, a scheme
announcement will contain the key terms and
conditions of the proposed scheme, the target
boards recommendation that shareholders vote in
favour of the scheme in the absence of a superior
proposal (and sometimes also subject to an
independent expert concluding that the scheme
is in the best interests of target shareholders), and
an indicative timetable. It is also common for the
scheme implementation agreement to be publicly
released in its entirety.
(Note: a scheme implementation agreement
is binding only on the target and not on target
shareholders. Only if and when the scheme is
approved by shareholders and then the court does it
become binding on target shareholders.)
For the most part, scheme implementation

agreements and schemes can contain whatever
provisions are agreed between the parties. However,
there are certain matters which ASIC and the court
40
(b) Scheme booklet

After the scheme implementation agreement is
signed, the parties complete preparation of the
explanatory memorandum (usually referred to
as a scheme booklet) which the target is required
by law to send to its shareholders in advance of
the scheme vote. A scheme booklet must contain
information about the scheme, the target directors
recommendation and other disclosures effectively
it must contain the same information that would
be in a bidders statement and a targets statement
if the transaction were effected via a takeover
bid instead. The scheme booklet must contain
information supplied by both the bidder and target
hence the need for the target to ensure the scheme
implementation agreement obliges the bidder to
provide the requisite information.
It is also common practice, and expected by ASIC
and the court, for a scheme booklet to include
or be accompanied by an independent experts
report commissioned by the target which states
whether, in the experts opinion, the scheme is in
the best interests of target shareholders. There is a
statutory requirement for the target to commission
an independent experts report where the bidders
voting power in the target is 30% or more, or a
director of the bidder is also a director of the target.
ASIC must be given a reasonable opportunity to
review and effectively approve the scheme booklet
it usually requires a review period of at least 14 days.
(c) First court hearing

Following ASICs review of the scheme booklet,
the target must apply to the court for orders to
approve the despatch of the scheme booklet and the
convening of the scheme shareholders meeting(s).
If there is more than one class of target shareholders
for the purposes of the scheme, each class must vote
separately on the scheme (see paragraph (e) below
on scheme classes).
The court cannot make those orders unless ASIC

has been given at least 14 days notice of the court
hearing and the court is satisfied that ASIC has
had a reasonable opportunity to examine the
proposed scheme and scheme booklet, and to make
submissions on those.
(d) Scheme meeting

The meeting of target shareholders to vote on
the scheme (ie. the scheme meeting) is usually
held about 28 days after the despatch of the
scheme booklet. For the scheme to be approved by
shareholders, it must be approved at meetings of
each class of shareholders as follows:
the scheme must be approved by a majority in
number of the target shareholders in the relevant
class who have cast votes on the resolution (but
note that the court has the power to waive this
requirement); and
the scheme must also be approved by 75% or
more of the votes cast on the resolution by target
shareholders in the relevant class.
If the bidder or its associates hold any target shares,
they must usually either refrain from voting or vote
in a separate class. The practice is for the bidder and
its associates to refrain from voting.
See paragraph (e) below on scheme classes.
(e) Scheme classes

The requirement for a scheme to be approved by
each class of shareholders makes the formation of
classes of utmost importance.
The rule is that, for the purposes of a scheme, a
class of shareholders are those whose rights are not
so dissimilar as to make it impossible for them to
consult together with a view to a common interest.
This involves an analysis of: the rights against the
company which are to be affected by the scheme;
and the new rights (if any) which the scheme gives,
by way of compromise or arrangement, to those
whose rights are to be so affected.
41
The concept of scheme classes should not be

confused with classes of shares. In a scheme context,
different classes can arise as between shareholders
who hold the same type of share (eg. ordinary
share). This is because a scheme can potentially
confer different benefits on different shareholders. A
clear-cut example of the creation of scheme classes
is where one set of target shareholders is offered a
specific type of scheme consideration (say, shares
in the bidder) whereas all other shareholders are
offered cash only. This is allowed in a scheme as the
collateral benefits rule in takeover bids do not apply
to schemes. Differential consideration is not possible
in a takeover bid given the collateral benefits rule
plus the requirement that all offers must be the same.
But it is rarely this straightforward. There are often
complex questions of whether scheme classes arise
where one target shareholder has entered into an
arrangement with the bidder that is separate from,
but conditional upon, the scheme (eg. an asset sale).
The general principle is that where the separate
arrangement is struck on arms-length terms there is
unlikely to be a class issue. However, it will depend on
the circumstances.
The creation of separate classes can be problematic
because it gives each class of shareholders an
effective veto right over the scheme.
Even where there are no separate classes, a Court
may take into account the fact that particular target
shareholders have extraneous commercial interests
when exercising the courts discretion in deciding
whether to approve a scheme. The Court can, as part
of its fairness discretion, disregard the votes of target
shareholders with extraneous interests.
(f) Second court hearing

If the scheme is approved by target shareholders and
all scheme conditions have been satisfied or waived,
the target returns to court for an order approving the
scheme. The court hearing usually occurs within a
day or two after the scheme meeting.
At that second court hearing the court does have
a discretion to refuse to approve the scheme. The
courts are normally reluctant to impose their own
commercial judgment in relation to a scheme that
has been approved by shareholders, except in very
limited circumstances such as where the relevant
scheme offends public policy. However, courts are not
permitted to approve a scheme unless: it is satisfied
that the scheme has not been proposed for the
purpose of avoiding the requirements of Chapter 6
(ie. to avoid using the takeover bid structure), or ASIC
issues a no-objection statement.
(g) Effective date and implementation

If the scheme is approved by the court, it takes effect
upon lodgement of the court order with ASIC. There
is normally a period of up to 2 weeks between the
day the scheme becomes effective and the date it
is implemented. This is to allow time for the target
to close its register, ascertain which persons are
registered shareholders as at the record date (usually
up to 1 week before the implementation date) and
prepare for the provision of scheme consideration.
On the implementation date:
all of the target shares other than those held by the
bidder are transferred to the bidder (in a transfer
scheme) or cancelled (in a cancellation scheme); and
the scheme consideration is provided to target
shareholders if it comprises cash this occurs via the
despatch of cheques, and it if comprises securities
this occurs via the issue of those securities.
42
(h) De-listing
Following scheme implementation the target is
then delisted on a date determined by the ASX upon
application by the target normally no more than a
few days after the implementation date.
(i) Liability regime

Unlike for takeover bids there is no specific liability
regime for scheme booklet disclosures. Rather,
a scheme booklet is subject to the general
misleading or deceptive conduct provisions in
the Corporations Act.
The target company has primary liability for a

scheme booklet, though any person who was
involved in a breach of the misleading and deceptive
conduct provisions will bear liability (eg. the
bidder will usually bear liability for bidder-provided
information). Despite the absence of statutory
defences, the directors of a target company can, in
practice, substantially reduce their liability exposure
by establishing a due diligence and verification
system similar to that devised for takeover bid
documents. Courts expect that target companies,
as well as bidder entities, will have established and
implemented such systems.
Under those provisions, if there is a statement or

omission in the scheme booklet that is misleading
or deceptive, any person who suffers loss or damage
as a result can recover the loss or damage from
the person who breached the obligation. There is
no specific defence to liability but a person can
seek relief from the court from liability to pay
compensation on the basis that the person acted
honestly and, having regard to all the circumstances,
ought fairly to be excused for the breach.
43
> Trust schemes

(for trusts)
>> A trust scheme can be used only for a friendly
acquisition of a trust, and is frequently used to effect
100% acquisitions.
>> A trust scheme resembles a company scheme of
arrangement, but without the requirement for
court approval.
>> Trust schemes are subject to fewer specific rules than
takeover bids and are therefore more flexible, but the
Takeovers Panel has oversight.
>> A standard trust scheme involves:
an implementation agreement between the bidder
and the target;
the bidder, of a draft explanatory memorandum
which is sent to ASIC for review before sending to
unitholders in advance of the unitholders meeting;
holding the unitholders meeting;
lodging the amended trust constitution with ASIC;
implementing the trust scheme; and
9.1 What is a trust scheme?

A trust scheme is a transaction structure which has been
developed by the market over the past 15 or so years to
effect a friendly acquisition of an ASX-listed trust - as an
alternative to a takeover bid. The structure is called a trust
scheme because in some ways it resembles a scheme of
arrangement for a company. However, ASX-listed trusts
(formally known as listed managed investment schemes)
cannot be the subject of a scheme of arrangement under
Part 5.1 of the Corporations Act.
In general terms, a trust scheme involves unitholders of
the target trust being asked to approve the transaction
and also amendments to the trust constitution that
will authorise the trustee (or responsible entity) to take
steps, the end result of which will be that the bidder
owns all of the units in the trust. Each ASX-listed trust
must have a responsible entity which is a company that
under the Corporations Act performs the dual role of
trustee and trust manager (though it is not uncommon
for a responsible entity to appoint a custodian to hold
trust property). In a takeover context, the directors of the
responsible entity of a target trust are commonly referred
to as the target directors. In this section 9, the terms
target, target directors and targets responsible entity
will be used interchangeably.
Generally, there are two kinds of trust schemes: transfer
schemes and redemption schemes.
A transfer scheme involves transferring all of the
issued units to the bidder (except units already held
by the bidder). The transfer price paid (or scrip issued)
by the bidder is passed on to the target unitholders.
From a practical perspective, the two types of schemes

follow similar procedures and have substantially the
same effect for the bidder and for target unitholders.
Which approach is used in a particular transaction will be
determined by a range of factors, including tax (for both
investors and the bidder), stamp duty and whether there
are any pre-emptive rights over the targets assets.
The trust scheme structure is frequently used to effect
an acquisition of 100% of the units in a target trust. In
fact, in a friendly deal the trust scheme structure is much
more often used than the takeover bid structure. This is
largely because of its all-or-nothing outcome and the
lower target unitholder approval threshold (similar to a
company scheme of arrangement - see section 6.2). As
the bidder is not a party to the trust scheme, the target
should require the bidder to execute a deed poll in favour
of target unitholders undertaking to pay the trust scheme
consideration (ie. the purchase consideration) to them
upon implementation.
This section 9 focuses on the key trust scheme rules
and features. It is prepared on the assumption that the
target is a stand-alone trust, not part of a stapled entity
structure. Where the trust is part of a stapled entity
structure (eg. trust stapled to a company), a trust scheme
would need to be inter-conditional with a scheme of
arrangement for the company side of the structure.
See sections 10 and 11 for a discussion of the strategic
considerations involved in planning or responding to a
takeover proposal.
A redemption scheme involves redeeming

(cancelling) all of the issued target units (except units
held by the bidder). A key issue is to determine how
best to ensure that the trust has the cash (or scrip)
needed to pay for the redemptions.
45

Below is an indicative timetable for a basic trust scheme,
which assumes that the trust schemes proceeds as a
transfer scheme, the trust scheme is successful, there is
no rival bidder, judicial review is not sought and there are
no regulatory actions which affect timing.
Target announces
proposed scheme
ASIC
completes review
Despatch of scheme
booklet to target
unitholders
Draft scheme
booklet given to
ASIC for review
Day
0
Meeting of
target unitholders
Day
42
Day
57
Day
59
Amended trust
constitution
lodged with ASIC
Day
81
Allow about 6 weeks

to prepare the
draft scheme booklet
9.3 Key trust scheme rules

and features
In contrast to a takeover and scheme of arrangement,
there is no specific statutory mechanism for a trust
scheme. It is based on a combination of s611 item 7 of the
Corporations Act (securityholder-approved transactions),
Takeovers Panel policy and general trust law. The Takeovers
Panel has assumed jurisdiction of disputes regarding a
trust scheme.
Below is a summary of the key features of a trust scheme
transaction, having regard to the relevant rules.
Day
82
Scheme
implementation
date
Day
96
Day
89
Usually up to
5 business days
after meeting
ASIC usually
requires at least
14 days to review
Announcement
must occur
immediately after
signing of scheme
implementation
agreement
Scheme
record date
Minimum 21 day
notice period
Usually up to
5 business days
after record date
(a) Implementation agreement

While not specifically required by law, it is universal
practice for a bidder and target (specifically,
the targets responsible entity) to enter into
an implementation agreement in respect of a
trust scheme. This is because the proposal and
implementation of a trust scheme requires a joint
bidder-target effort. In contrast, a takeover bid
involves the bidder and target undertaking discrete
roles with specific areas of responsibility.
An implementation agreement will usually contain:
the targets obligations to pursue and recommend
the trust scheme, the targets obligation to convene
a meeting of unitholders to vote on the trust
46
scheme, the trust scheme purchase consideration,

the bidders obligations to provide the trust scheme
consideration and assist with the preparation of
the trust scheme booklet to target unitholders, the
conditions to the trust scheme, and various other
provisions dealing with operation of the target prior
to trust scheme implementation. It is also common
for an implementation agreement to contain deal
protection mechanisms such as exclusivity provisions
(including no-shop and no-talk restrictions), rights
to match rival bidders and a break fee payable by the
target to the bidder in certain circumstances if the
trust scheme is not successful.
For the most part, implementation agreements can
contain whatever provisions are agreed between
the parties. However, the Takeovers Panels view
is that the takeover bid rules in Chapter 6 of the
Corporations Act should apply to trust schemes (eg.
no collateral benefits, minimum bid price rule and no
self-triggering conditions). In practice, though, any
departures from the takeover bid rules can largely be
addressed through disclosure to target unitholders
(eg. disclosure of any self-triggering conditions such
as bidder due diligence) or the creation of separate
classes of target unitholders for voting purposes
(eg. in situations where certain unitholders will
or may receive a benefit from the bidder which
is not available to other unitholders). In addition,
deal protection mechanisms in an implementation
agreement generally need to comply with Takeovers
Panel policy (eg. no-talk restrictions need to be
subject to an exclusion to enable superior proposals
to be considered and recommended, and a break
fee can usually not exceed 1% of the targets equity
value).
The signing of an implementation agreement
triggers an obligation on an ASX-listed target to make
a market announcement. The form of announcement
should be agreed in advance between the bidder
and target. Normally a scheme announcement will
contain the key terms and conditions of the deal,
the target boards recommendation that unitholders
vote in favour of the trust scheme in the absence of a
superior proposal (and sometimes also subject to an
independent expert concluding that the terms of
the trust scheme are fair and reasonable for target

unitholders), and an indicative timetable. It is also
common for the implementation agreement to be
publicly released in its entirety.
(Note: an implementation agreement is binding only
on the target and not on target unitholders. Only if
and when the scheme is approved by unitholders
and the amended target constitution is lodged with
ASIC does it become binding on target unitholders.)
(b) Explanatory memorandum

After the implementation agreement is signed, the
parties complete preparation of the explanatory
memorandum which the target responsible entity is
required, by law, to send to its unitholders in advance
of the scheme vote. An explanatory memorandum
must contain information about the trust scheme
(including the proposed amendments to the trust
constitution to enable the responsible entity to
implement the scheme), the target directors
recommendation and other disclosures effectively
it must contain the same information that would
be in a bidders statement and a targets statement
if the transaction were effected via a takeover
bid instead. The scheme booklet must contain
information supplied by both the bidder and
target hence the need for the target to ensure the
implementation agreement obliges the bidder to
provide the requisite information. If the consideration
for the scheme is a security, then the content
requirements for offering that type of security must
also generally be met.
It is also common practice, and expected by the
Takeovers Panel, for an explanatory memorandum
to include, or be accompanied by, an independent
experts report commissioned by the target which
states whether, in the experts opinion, the terms
of the scheme are fair and reasonable to target
unitholders.
Where the trust scheme requires unitholder approval
under s611 item 7 of the Corporations Act (see
paragraph (c) below), a draft of the explanatory
memorandum should be given to ASIC for its review
at least 14 days before despatch.
47
(c) Unitholders meeting

The meeting of target unitholders to vote on the
trust scheme is usually held about 21 to 28 days
(depending on the targets notice of meeting
requirements) after the despatch of the explanatory
memorandum.
Under a trust scheme that proceeds as a transfer
scheme, the targets unitholders will be required to
pass the following two resolutions:
an ordinary resolution (ie. a majority of votes cast)
to approve, for the purposes of s611 item 7 of the
Corporations Act, the bidder increasing its voting
power in the target above 20%; and
a special resolution (ie. at least 75% of votes cast)
under s601GC of the Corporations Act to amend
the targets constitution to enable the targets
responsible entity to implement the trust scheme.
An ASIC modification is required, and usually given,
to enable the unitholders not associated with
the bidder to vote in favour of the first resolution
(because s611 item 7 would otherwise prohibit
any unitholder who is to receive trust scheme
consideration to vote in favour of the trust scheme).
The bidder and its associates cannot vote in favour of
the first resolution.
The targets responsible entity and its associates are
not entitled to vote their interest on either resolution
(or on any unitholder resolution) if they have an
interest in the resolution or matter other than as a
unitholder.
It is the Takeovers Panels expectation that, where
a target unitholder is treated differently to others
(eg. receives a benefit from the bidder not available
to others), that target unitholder should not vote
in favour of the trust scheme or have their votes
disregarded.
(d) Effective date and implementation

If the trust scheme is approved by target unitholders
and becomes unconditional, the targets amended
constitution is lodged with ASIC and comes into
effect on lodgement. There is normally a period
of up to 2 weeks between the day the amended
constitution becomes effective and the date of

implementation of the trust scheme. This is to allow
time for the target to close its register, ascertain
which persons are registered unitholders as at
the record date (usually up to 1 week before the
implementation date) and prepare for the provision
of trust scheme consideration.
On the implementation date:
in a transfer scheme, all of the units other than
those already held by the bidder are transferred to
the bidder and unitholders receive the transfer price
paid by the bidder for those units (or, if applicable,
securities instead of cash); and
in a redemption scheme, all of the units other than
those held by the bidder are redeemed in exchange
for cash (or, if applicable, securities) in a cash-only
transaction the bidder might subscribe for and be
issued new units immediately before redemption so
as to fund the redemptions.
(e) Post-implementation
Following trust scheme implementation, the target
is delisted on a date determined by the ASX upon
application by the target normally no more than a
few days after the implementation date. The bidder
then arranges for the target to be removed as a
managed investment scheme. In addition, a bidder
will want to replace the targets responsible entity if
the bidder has not separately purchased that entity.
(f) Liability regime

Unlike for takeover bids, there is no specific liability
regime for trust scheme explanatory memorandum
disclosures, at least where the consideration is just
cash. Rather, an explanatory memorandum is subject
to the general misleading or deceptive conduct
provisions in the Corporations Act.
Under those provisions, if there is a statement or
omission in the explanatory memorandum which is
misleading or deceptive, any person who suffers loss
of damage as a result can recover the loss or damage
from the person who breached the obligation.
There is no specific defence to liability, but, a person
can seek relief from the court from liability to pay
48
compensation on the basis that the person acted

honestly and, having regard to all the circumstances,
ought fairly to be excused for the breach.
The target has primary liability for a trust scheme
explanatory memorandum, though any person
who was involved in a breach of the misleading
and deceptive conduct provisions will bear liability
(eg. the bidder will usually bear liability for bidderprovided information). Despite the absence
of statutory defences, the directors of a target
responsible entity can, in practice, substantially
reduce their liability exposure by establishing a due
diligence and verification system similar to that
devised for takeover bid documents.
If securities are included as consideration then the
liability regime applicable to the type or types of
security will apply to the explanatory memorandum
disclosures.
(g) Judicial advice

A target responsible entity can, but is not obliged to,
apply to a court for judicial advice in relation to the
trust scheme. The court is asked to confirm that the
responsible entity is justified in convening a meeting
of unitholders for the purpose of considering
resolutions to approve the trust scheme.
For trust schemes the customary approach is to first

seek confirmation by the court that the responsible
entity can call the meetings of unitholders and, if the
unitholders pass the required resolutions, then seek
confirmation that implementation of the transaction
can proceed.
Without judicial advice, in theory, disaffected
unitholders would have up to 12 years to attack the
transaction. In practice, the chances of a successful
challenge should decline steeply if unitholders failed
to act promptly.
There is no standard practice regarding seeking
judicial advice and trust schemes. However, judicial
advice will always be sought if the transaction also
involves a company scheme of arrangement to be
considered by the same court (eg. in relation to a
scheme for a stapled group involving a trust and a
company). This is because the judge will want to be
told about the whole transaction and have all the
participants before them.
In the past, judicial advice was not generally sought
for a trust scheme where a company scheme of
arrangement was not also required. However, it is
becoming more common.
A key advantage to obtaining judicial advice is that it

largely removes any practical risk of the responsible
entity being liable for breach of trust in proposing
and giving effect to the trust scheme (though it does
not shield against claims based on other grounds
such as breach of duty under the Corporations Act).
The principal drawbacks of seeking judicial advice are
time and cost, though the court process usually adds
at most an extra 1 to 2 weeks to the process.
49
10
>
Strategic
considerations
for a prospective
acquirer
>> Threshold matters for a prospective acquirer to consider
include: transaction structure; whether it is seeking 100%
or just control; form of offer consideration; due diligence
requirements; friendly or hostile deal; and the potential
acquisition of a pre-bid stake.
>> The initial approach to the target is usually conducted
verbally, and followed by a written confidential, nonbinding and indicative proposal. The target generally has
no obligation to announce such a proposal - unless it
ceases to become confidential but could decide to do so
for strategic reasons.
>> If a target grants due diligence access it will usually
only do so on the basis of a confidentiality agreement,
which restricts the use of that information to implement
a friendly transaction. The target may also require a
standstill agreement whereby the prospective acquirer
cannot acquire target securities for a specified period
except under a friendly transaction.
>> A prospective acquirer can seek to bolster its position by
acquiring a pre-bid stake (subject to the 20% takeovers
rule, insider trading rules, any need for secrecy and other
considerations).
>> If the target is not receptive to an approach, a
prospective acquirer can launch a hostile takeover bid,
make a bear hug announcement or initiate a board spill.
10.1 Threshold matters

In Australia, it has traditionally been difficult to
successfully conclude a control transaction without the
co-operation and favourable recommendation of the
targets board of directors at some point in the process.
It is therefore not surprising that a prospective acquirer
will almost always seek the upfront recommendation
of the target board. In a control context, the prospective
acquirers first contact with the target is customarily
a verbal, informal sounding-out (by the chairman or
a senior executive of the acquirer or by the acquirers
external financial adviser) of the targets appetite for a

control transaction. Depending on the outcome of that
discussion, the prospective acquirer would commonly
submit to the target a written, confidential, indicative and
non-binding proposal and seek due diligence.
But before any contact is made with the target, there
are some threshold matters that a prospective acquirer
will have considered with the assistance of its external
financial, legal and accounting advisers. These include the
following. (For simplicity the table looks only at company
targets (rather than trust targets as well).)
Transaction structure
Does the prospective acquirer have a preferred transaction structure takeover bid
or scheme of arrangement? See section 6.2.
Control or 100%?
Is the prospective acquirer seeking to acquire 100% of the target, or would it be

satisfied with simply obtaining a controlling interest and maintaining the targets
ASX listing? This will inform the decision on transaction structure a scheme of
arrangement is often ideal for a 100% acquisition, whereas a proportional takeover
bid is the only way to guarantee an acquisition of less than 100%. See sections 6, 7
and 8.
Offer consideration
How much is the prospective acquirer prepared to offer? Is the prospective acquirer
prepared to engage in a bidding war if a rival bidder emerges? If the offer/purchase
consideration is or comprises cash, how will that be funded through existing
cash reserves, existing or new debt facilities, new equity raising or otherwise? If the
consideration is or comprises equity securities issued by the prospective acquirer,
the prospective acquirer will need to be prepared to provide detailed information
about itself to target securityholders. If the prospective acquirer is a non-Australian
company but the target largely comprises Australian investors, is the prospective
acquirer prepared to undertake a secondary listing on ASX to attract target
securityholder acceptances?
Due diligence
How much due diligence on the target does the prospective acquirer need? It is
normal to seek due diligence access at the time of submitting a written proposal.
Ideally, the prospective acquirer will have a broad understanding of the target and
what are likely to be dealbreaker issues, based on publicly available information and
industry knowledge and experience.
Friendly or hostile
Will the prospective acquirer be prepared to undertake a hostile takeover bid if

the target is not receptive to a deal, or is the prospective acquirer only willing to
undertake a friendly transaction? To a large degree this will depend on whether the
prospective acquirer is prepared to undertake a transaction without the benefit of
detailed due diligence.
51
Pre-bid stake
Is the prospective acquirer interested in acquiring an initial stake in the target to

increase the chances of a successful deal, or to use as the platform for a hostile bid,
or to exert pressure on the target or to act as a blocking stake against rival bidders?
The prospective acquirers ability to acquire a pre-bid stake will be impacted by
insider trading rules to the extent it is granted due diligence or otherwise acquires
information that is confidential and price-sensitive.
Regulatory approvals
and conditions
What, if any, regulatory approvals does the prospective acquirer need in Australia
and elsewhere in order to undertake the deal, and what is the likelihood of
obtaining those approvals? Common regulatory approvals are Australian foreign
investment approval and competition approvals.
Public disclosures
Is the prospective acquirer comfortable with the risk of being outed as a potential
bidder for target, notwithstanding that it has submitted a confidential and nonbinding proposal? The target could voluntarily announce the indicative proposal or
be forced to do so under its continuous disclosure obligations.
Some of these matters are examined in more detail below.
10.2 The initial approach

A prospective acquirers initial approach to the target
is usually an informal, verbal one conducted between
the chairman or senior executives of the two entities
(or between respective external financial advisers). The
purpose of such approach is to sound-out the targets
appetite for a friendly control transaction. If it transpires
that the parties have fundamentally different views
on value which are unlikely to be bridged, then the
prospective acquirer might decide to leave things at
that. But if preliminary discussions indicate that a deal is
possible, the prospective acquirer might be encouraged to
submit a written proposal.
Written proposals are normally submitted on a
confidential, indicative and non-binding basis. There are
two key reasons for this.
(a) Confidentiality
First, there are strategic benefits for the prospective
acquirer in maintaining the confidentiality of
an approach. The submission of a confidential
takeover proposal will usually not trigger an ASX
announcement obligation on the targets part This
is because, while a takeover proposal will qualify
as price-sensitive information that an ASX-listed
target is prima facie obliged to disclose under its
ASX continuous disclosure obligations, there is an
exception for information that is confidential and

concerns an incomplete proposal or negotiation. A
confidential, indicative and non-binding proposal
falls within the exception.
Notwithstanding that, many companies have in
recent times voluntarily announced the receipt of a
confidential proposal whether to seek to generate
a bidding auction or due to a conservative approach
to disclosure, or otherwise. Unfortunately, there is
little that a prospective acquirer can do to prevent
this. Note that a targets announcement that it has
received an indicative proposal does not usually
impose on the prospective acquirer any obligation
to proceed with a takeover. Note also that an ASXlisted target is not required, under its continuous
disclosure obligations, to announce the receipt of an
incomplete and confidential proposal for so long as it
remains confidential.
Where the proposal is leaked in the media or to the
market, confidentiality may be lost and the target
will then be obliged to announce the receipt of
the proposal.
(b) Due diligence and board recommendation

Secondly, a prospective acquirer is often not willing
to be bound to proceed with a takeover unless and
until it has had an opportunity to conduct due
52
diligence on the target and has secured the target

boards recommendation. As a takeover offer cannot
be made subject to a general due diligence condition
(see section 7.3(h) above), if there are due diligence
issues to be addressed that will need to be done
ahead of the offer being announced. There may
be other pre-conditions which need to be satisfied,
such as the prospective acquirer obtaining indicative
financing commitments.
10.3 Due diligence and

confidentiality agreement
Given that ASX-listed entities in Australia are subject
to fairly extensive reporting requirements and have
an obligation to publicly release all price-sensitive
information (otherwise known as continuous disclosure
obligations), a preliminary due diligence exercise based
solely on publicly available information should give a
prospective acquirer a reasonable understanding of the
target and of what matters it should probe.
Obviously there are limits to relying on publicly available
information. Much information relating to a companys
business is not disclosed either because it is not pricesensitive or is price-sensitive but need not be disclosed
due to an exception to the continuous disclosure rules
(eg. the information is confidential and is generated
for internal management purposes or is a trade secret).
Information which may not be price-sensitive to an
investor and not publicly available can nonetheless be
commercially sensitive and of interest to a prospective
acquirer. For instance, internal management budgets and
forecasts are likely to affect value, as will the existence of
change of control provisions in contracts.
A target in most circumstances has no obligation to
provide due diligence access to any person, nor to provide
a particular level of access once granted. However, it
would be consistent with a boards duty to act in the
best interests of shareholders to take reasonable steps
to facilitate a proposal that, if implemented, would
maximise value for shareholders.
A target will almost always require a prospective acquirer

to sign a confidentiality agreement before granting
due diligence access. Under a standard confidentiality
agreement, the prospective acquirer agrees to keep due
diligence information confidential and to use it only for
the purposes of a target-recommended transaction.
10.4 Standstill agreement

Under a standstill agreement, the prospective acquirer
agrees not to acquire any interest in any securities in the
target for a specified period. From the targets perspective,
the standstill agreement serves a number of purposes:
i t enables a target board to enter into discussions
knowing that the other party will not then turn
hostile on the target, or acquire a stake to attempt
to block a competing transaction subsequently
recommended by the target board;
it means that if that other party does then acquire
target securities (assuming it can do so without
contravening insider trading laws), the target does
not have to prove that that party used confidential
information in acquiring the shares in breach of the
agreement only that the standstill agreement has
been triggered; and
it provides some protection for the target from
potential liability for tipping under the insider
trading provisions of the Corporations Act - tipping is
where a person discloses non-public, price-sensitive
information to a person who the first person believes
would be likely to acquire target shares.
10.5 Pre-bid acquisitions

A prospective acquirer may seek to acquire a pre-bid stake
in the target (ie. a relevant interest in target securities
in advance of acquiring securities under a control
transaction). A pre-bid stake can be used as a platform for
a hostile takeover bid, or to exert pressure on the target to
agree to a deal or to act as a blocking stake against rival
bidders. A pre-bid stake can take various forms, ranging
from conditional or unconditional security acquisitions to
put and call option arrangements to agreements to accept
a takeover bid or vote in favour of a scheme.
53
The key constraints and considerations relevant to a prebid acquisition are as follows.
(20% takeovers rule) The prospective acquirer must
ensure that it does not have a relevant interest in
more than 20% of the target securities, or otherwise
voting power of more than 20% in the target, as a
result of any pre-bid acquisitions. Otherwise it will
breach the 20% rule (see section 2).
(15% FIRB rule) If the prospective acquirer is a nonAustralian entity it may need to obtain Australian
foreign investment approval (FIRB approval) to move
beyond a 15% securityholding interest in the target
(or even lower interest in some circumstances)
(see section 5).
(Insider trading) If non-public price sensitive
information is provided by the target to the
prospective acquirer in the due diligence material,
technically this would prevent the prospective
acquirer from acquiring any target securities. This is
because such acquisitions would constitute unlawful
insider trading. (Note, though, that the insider
trading rules do not prohibit a prospective acquirer
from trading in target securities merely because the
prospective acquirer intends to make a takeover bid
this is because there is an own intentions exception).
(Substantial holding disclosures) Where the
prospective acquirer holds a relevant interest in 5%
or more of the targets voting securities, or otherwise
voting power of 5% of more in the target, as a
result of any pre-bid acquisitions, the prospective
acquirer will need to disclose its interest via the
filing of a substantial holding notice (see section
5). Importantly, a substantial holding notice must
have attached to it a copy of all relevant agreements,
such as the share purchase agreement or pre-bid
acceptance agreement (as applicable). Therefore,
where a prospective acquirer seeks to acquire a secret
pre-bid stake it should limit itself to less than a 5%
interest however, note that a prospective acquirers
relevant interests will need to be revealed if the
target issues tracing notices on the registered holder
of the relevant shares.
(Minimum bid price) The price which a prospective

bidder or an associate agrees to pay for target
securities within the 4 month period before a
takeover bid sets a floor price for the bid price (see
section 7.3(d)).
10.6 Going on the offensive

For a prospective acquirers perspective, the ideal
sequence of events is that the target responds favourably
to an approach, quickly grants due diligence access and
works co-operatively with the prospective acquirer in
negotiating and settling a bid or scheme implementation
agreement. However, a prospective acquirer should
consider its strategic options should the target reject an
indicative proposal and the prospective acquirer does
not wish to walk away. There are a number of options,
including as follows.
(a) Hostile takeover bid

The prospective acquirer can launch a hostile
takeover bid and thereby put its proposal directly
to target securityholders. The hostile bid option is
not suitable for everyone. Certain companies may
have a policy or practice of only undertaking friendly
deals hostile deals in Australia can be unpleasant
and protracted, and often involve Takeovers Panel
proceedings and public relations battles. Also, a
hostile bidder needs to be prepared to buy the target
without having undertaken detailed due diligence.
It is not permissible to make a bid subject to a
general due diligence condition, though it is possible
to craft due diligence-type conditions linked to
objectively determinable outcomes (eg. that the
target maintain a specified minimum cash position)
(see section 7.3(h)).
54
(b) Bear hug announcement

The prospective acquirer could unilaterally announce
that it has submitted an indicative and non-binding
proposal to the target, but stop short of announcing
a hostile takeover bid. The announcement would
set out the indicative terms and conditions of
the proposal, and outline why the prospective
acquirer believes it would be favourable for target
securityholders. This is known as a bear hug. The
aim is to pressure a target board to engage in
negotiations lest it be criticised by its securityholders
for failing to do so. The prospective acquirers
announcement needs to be carefully worded so that
it is not considered to trigger the 2-month rule for a
takeover bid (see section 7.3(a)).
(c) Board spill

If a prospective acquirer holds 5% or more of a
targets shares it can requisition a general meeting
of target shareholders to vote on changes to the
targets board of directors. Obviously, the larger the
shareholding, the more likelihood of success at the
general meeting.
55
11
>
Strategic
considerations
for a target
>> The directors of an Australian company (or responsible
entity of an Australian trust) will, given their fiduciary
duties, usually seek to maximise shareholder
value and, to that end, will usually consider the
reasonableness of any takeover proposal.
>> The overriding principles are that: (i) the directors of
an ASX-listed Australian company (and responsible
entity of a trust) must at all times act bona fide in the
interests of the company (or trust unitholders), and for
a proper purpose; and (ii) target directors should not
take actions, without securityholder approval, which
causes the defeat of a control proposal.
>> A board can prepare for a possible takeover approach
by: preparing a takeover defence manual and
undertaking other pre-approach tasks, such as
monitoring the share register, maintaining a valuation
of itself, preparing for the grant of due diligence to a
bidder, and preparing draft ASX announcements.
>> Key immediate decisions for a target following receipt
of a takeover proposal are whether to: make an ASX
announcement and engage with the bidder.
>> If the target board concludes a takeover proposal
to not be in the interests of shareholders, it should
consider an appropriate defence strategy. This could
involve seeking counter-bidders or establishing the
inadequacy of the bidders proposal.
11.1 Threshold matters

In planning and executing any takeover response strategy,
the directors of an ASX-listed Australian company need to
have regard to the following fundamental principles. (For
simplicity this section 11 refers to ASX-listed Australian
companies only but it is equally applicable to ASX-listed
Australian trusts.)
(a) Directors duties

Directors are at all times subject to fiduciary and
statutory obligations, including to act bona fide in
the interests of the company as a whole, and for a
proper purpose. Depending on the circumstances,
the directors can seek to discharge their duties in a
takeover proposal context by (among other things):
recommending or supporting a takeover proposal
which the directors reasonably consider to be in
shareholders interests, in the absence of a superior
proposal;
rejecting, or refusing to recommend or support, a
takeover proposal which the directors reasonably
consider to be at an undervalue;
engaging in discussions with a prospective acquirer
with a view to extracting a higher price;
seeking alternative superior proposals; or
investigating alternative transactions that do not
involve a change of control by a third party.
(b) Frustrating actions

The Takeovers Panel has developed a policy regarding
actions by a target which could cause a takeover bid
or genuine potential takeover bid to be withdrawn
or not proceeded with. These actions are known
as frustrating actions. In general terms, it is
unacceptable from a takeovers policy perspective
for target directors to take actions, without
shareholder approval, which causes the defeat of
a control proposal. The underlying principle is that
transactions that have an effect on the companys
control should be left to shareholders, not directors.
An action can constitute a frustrating action even
if it is consistent with a directors fiduciary duties.
For instance, if a takeover bid contains a condition
that the target not acquire any major assets and
the target nonetheless does so in breach of the
condition, the bidder can rely on the breach and walk
away. The target directors actions could constitute
frustrating actions.
Frustrating actions are not unlawful. However, the
Takeovers Panel has the power to make orders if it
declares actions to be unacceptable, eg. orders to
unwind a transaction or require it to be put to target
shareholders for approval.
Note that the frustrating actions policy does not
prevent a target from seeking alternatives to a bid
or recommending the rejection of a bid. Nor is it
intended to interfere with a targets ordinary course
of business. It is also important to note that the
frustrating actions policy only applies to takeover
bids, and not to takeover proposals to be conducted
via a scheme of arrangement.
57
11.2 Pre-approach planning

While the circumstances of every takeover proposal are
different and require decisions to be made at the time,
there are certain things that a companys board can do
to prepare for a possible takeover approach. A common
approach is for a company to prepare, in conjunction
with its legal and financial advisers, a takeover defence

manual which sets out some pre-approach work that can
be undertaken as well as the immediate actions to be
undertaken if a proposal is received.
A typical pre-approach defence plan would deal with the
following matters.
Subject matter
Description
Takeover defence team
The company should identify who is to be centrally involved in responding to a

takeover proposal. A defence team will usually include: company executives, directors,
financial advisers, legal advisers, accounting advisers and a public relations firm.
Monitoring of register
The company should regularly monitor who holds its shares, by examining the share
register (which will disclose registered holders) and substantial holding notices
(which will disclose persons who have voting power of more than 5%) and issuing
tracing notices to registered shareholders (usually in order to obtain details of
persons who have relevant interests of less than 5%). This exercise should reveal
whether any potential bidders have acquired interests in the companys shares.
Identify potential bidders
The company should compile a comprehensive list of potential bidders, and identify
potential alternatives to a takeover proposal, including internal proposals and break
up models. Integral to that process is an understanding of the synergy opportunities
open to potential bidders and understanding the particular characteristics of the
likely bidders.
Valuation
The company should commence and maintain a program of valuing itself and its
businesses according to various takeover scenarios. The analysis should include a
census of existing broker/analyst valuations.
Due diligence preparation
The company could establish an online data room containing material documents
to enable the prompt granting of due diligence access to a potential bidder. In
conjunction with this, a draft confidentiality and standstill agreement could be
drafted by the companys legal advisers (see sections 10.3 and 10.4). In addition,
the company could undertake a due diligence exercise on its material contracts, to
confirm the impact of a change of control transaction.
Communications protocol
There should be a protocol regulating who is authorised to speak on behalf of the

company to the media, shareholders, employees, customers, suppliers and other
persons in relation to takeover matters.
Draft announcements
The company should have ready a handful of draft ASX announcements that it can
quickly complete and release as immediate responses to a takeover proposal. It is
advisable to at least prepare a draft holding response which notes that a takeover
proposal has been received and that the board will consider it.
58
11.3 Immediate response to an

approach
As discussed in section 10.2, a prospective acquirer will
usually initiate contact verbally at a senior executive
or chairman level, and then follow that with a written,
confidential, indicative and non-binding proposal to
undertake a recommended takeover transaction.
In the event a company receives such a proposal, the key
immediate steps are normally as follows.
Inform the board and external advisers.
Consider whether an ASX announcement and/or
trading halt are necessary.
Commence various workstreams where applicable:
valuation stream this is focused on analysing
the value of the specific proposal compared
with potential counter-proposals and internally
generated alternatives (such as demerger, asset
sales and capital returns);
contestability stream - focusing on analysing
alternatives to the proposal, particularly if at an
undervalue;
communications stream responsible for
communicating and liaising with the companys
key stakeholders should the proposal cease to be
confidential; and
regulatory and legal stream - responsible for
ensuring compliance by the company with legal
and regulatory requirements, and monitoring
compliance by the prospective acquirer.
Having regard to the outputs of the valuation and

contestability streams, the board needs to decide
whether to engage with the prospective acquirer.
The board should not feel compelled to make an
immediate decision on whether to recommend the
proposal, and in most cases is not in a position to do
so where the proposal is indicative only. Normally
the threshold decision is whether to grant due
diligence to the prospective acquirer. It may be that
the board believes the proposal is at an undervalue,
but is nonetheless prepared to grant due diligence to
facilitate discussions on a possible price increase.
11.4 Defensive tactics

A targets course of action following the initial response
will depend on whether it decides to engage with the
bidder. A decision to engage can mark the first step
in an ultimately successful transaction. A decision to
reject a proposal can result in the bidder walking away
and the target continuing with its business as normal,
or alternatively can result in the bidder going on the
offensive, eg. making a hostile takeover bid (see section
10.6). If a takeover bid is made, the target board has
statutory obligations to respond to the bid (see section
7.2).
A target which is faced with a public takeover proposal at
what the target board considers to be at an undervalue
will obviously want to understand the constraints on
the range of defensive tactics at its disposal. As noted
earlier, all target director actions need to comply with
fiduciary duties and not fall foul of the Takeovers Panels
policy on frustrating actions. Given their fiduciary duties,
the directors of an Australian company (or responsible
entity of an Australian trust) will usually seek to maximise
shareholder value and, to that end, will usually consider
the reasonableness of any takeover proposal.
59
The table below contains a selection of possible

defensive actions, divided into those which are likely to
be acceptable from a fiduciary duties, Takeovers Panel
and regulatory perspective, and those which are unlikely
to be acceptable from that same perspective. It covers
actions which could be undertaken prior to or after
receipt of a takeover proposal, and it is assumed that the
Target actions LIKELY to be acceptable from a fiduciary

duties, Takeovers Panel and regulatory perspective
target board has reached an informed, reasonable view

that the relevant takeover proposal is at an undervalue
and not in the interests of shareholders. (Note that the
acceptability or otherwise of an action will depend on
the circumstances, so the below should not be taken as a
fixed checklist.)
Target actions UNLIKELY to be acceptable from a

fiduciary duties, Takeovers Panel and regulatory
perspective
Seeking or facilitating a higher rival proposal.
Establishing a US-style shareholder rights plan

which gives all shareholders, other than the
bidder, a right to subscribe for additional shares
at a discount.
Publicly criticising the commercial merits of the

proposal, such as its value, conditionality and
execution risk, vis--vis the prospects of the target
as a stand-alone entity.
Issue of shares to a friendly party where there is

no pressing need for the funds raised.
Taking action in the Takeovers Panel or the court

against what the target reasonably considers
to be unlawful or unacceptable conduct on the
bidders part (eg. alleged misleading statements
by the bidder).
Entering into pre-emptive rights arrangements

with third parties (such as joint venture counterparties) over significant company assets after a
takeover bid has been announced, or before a bid
has been announced and that is not immediately
disclosed to the market.
Commissioning an independent expert to

undertake a valuation of the company, which can
support a board recommendation to reject the
proposal.
Announcing or undertaking any action or

transaction that would breach a takeover bid
condition, and such action is not subject to
shareholder approval or not in the companys
ordinary course of business or was not disclosed
to the market prior to the receipt of a takeover
proposal.
Investigating alternative proposals (which

may ultimately need to be made subject to
shareholder approval) eg. demerger or sale of key
assets and subsequent capital return.
Incurring significant liabilities or materially

changing the terms of the companys debt
arrangements, which the company would not
otherwise have done.
60
> Other
takeovers
issues
>> Other takeovers issues which commonly arise or need
consideration include:
whether foreign investment approval is required;
whether competition clearance is required;
ASICs truth in takeovers policy which requires
persons to be bound by their public statements in
relation to a takeover; and
the acquisition or cancellation of target options
and other convertible securities.
12
Below is a sample of other takeovers issues which

commonly arise or need to be considered. This is by no
means an exhaustive list.
12.1 Foreign investment approval

Australia has a foreign investment approval regime
that regulates acquisitions by foreign persons of equity
securities in Australian companies and trusts, and of
Australian real property assets. The regime is set out in
the Foreign Acquisitions and Takeovers Act 1975 (Cth) and
the Australian Governments foreign investment policy. A
transaction that is subject to the approval regime should
not be implemented unless the Australian Treasurer
has approved the transaction via the issuance of a noobjection notice. Therefore, a takeover transaction that
needs approval must be conditional upon the receipt of
that approval.
In deciding whether to approve a proposed transaction,
the Treasurer acts on the advice of the Foreign Investment
Review Board (FIRB). The Treasurer can block proposals by
foreign persons that are contrary to the national interest,
or alternatively approve proposals on an unconditional
basis or subject to conditions. Whether a proposed
transaction is contrary to the national interest is assessed
on a case-by-case basis. There are no fixed rules but
the Australian Government typically considers these
factors: national security, competition, other Australian
Government policies (including tax), impact on the
economy and community, and character of the investor.
Applications for foreign investment approval are
submitted to FIRB. Results of FIRB applications are
usually known within 40 days of the application
(although this can be extended by up to an additional
90 days). In the vast majority of cases, approval is not a
takeover completion risk approval is granted for the
overwhelming majority of applications.
In very simple terms, foreign investment approval
(commonly known as FIRB approval) under the Foreign
Acquisitions and Takeovers Act will be required for
takeover transactions (ie. which result in a change of
control) where:
(acquirer is a foreign person) the prospective

acquirer is a foreign person ie. the acquirer is a
company or trust in which:
15% or more of the equity interests are owned
by a single company incorporated outside of
Australia or by a non-Australian individual; OR
40% or more of the equity interests are in
aggregate owned by companies incorporated
outside of Australia and non-Australian
individuals;
and
(target worth more than A$248 million or is land
rich) any of the following applies:
the target is an Australian-incorporated
company with gross assets of more than A$248
million3 as shown in the companys last audited
balance sheet; OR
the target is an Australian-incorporated
company whose equity interests are valued at
more than A$248 million4 based on the takeover
offer price per target share; OR
the target is a company (whether incorporated
within or outside of Australia) whose Australian
real property assets (excluding rural land)
represent more than 50% of the companys gross
assets as shown in the companys last audited
balance sheet; OR
the target is a unit trust (whether established
within or outside of Australia) whose Australian
real property assets (excluding rural land)
represent more than 50% of the trusts gross
assets as valued by an independent valuer not
more than 12 months before the proposed
takeover completion date.
(Note: In each of the first two scenarios above, up to
15% of the targets shares can be acquired in most
circumstances without FIRB approval so long as that
does not result in foreign persons in aggregate owning
more than 40% of the shares. However, in each of
the last two scenarios, the acquisition of any target
securities requires approval, though there are some
exceptions to this.)
3. The A$248 million threshold applies for calendar year 2014 and is subject to inflation-adjustment on an annual basis.
4. As above.
62
For US and New Zealand investors, the approval threshold

is A$1,078 million rather than A$248 million though the
A$248 million threshold still applies for certain sensitive
sectors such as media, telecommunications, transport and
the defence industry. All approval thresholds are inflationadjusted on an annual basis.
Separately, the policy requires a foreign government
investor (in general terms being an entity owned or
controlled by a foreign government, or an entity in
which a foreign government has more than a 15%
interest) to notify the Australian Government and obtain
prior approval for any proposal whereby the foreign
government or related entity will acquire:
an interest of 10% or more in an Australian business
or company irrespective of the value or gross assets
of that business or company; or
an interest of less than 10% in an Australian business
or company irrespective of the value or gross assets
of that business or company, where the foreign
government investor can use that investment to
influence or control the target (eg. via special voting
rights or board appointment rights) or where the
foreign government investor is building a strategic
stake in the business or company.
12.2 Competition clearance

Australia has a competition regime which is aimed at
restricting anti-competitive trade practices and protecting
consumers. The regime is set out in the Competition and
Consumer Act 2010 (Cth) (the CCA) which is administered
by a government regulator called the Australian
Competition and Consumer Commission (the ACCC).
Section 50 of the CCA prohibits acquisitions of shares and
assets that would have the effect or be likely to have the
effect of substantially lessening competition in a market
in Australia. The CCA contains a non-exhaustive list of
factors that determine whether an acquisition may have
that effect. These include:
potential constraints on the merged firm, such as the
degree of import competition, the height of barriers
to entry, and the degree of countervailing power; and
the characteristics of the market such as the nature
and extent of vertical integration and the likelihood
that the acquisition will result in the removal of a

vigorous and effective competitor.
There is no compulsory notification requirement under
the CCA. However, the ACCC expects to be notified of
takeover and merger proposals in advance where the
products of the relevant parties are either substitutes
or complements and the merged group will have a
post-merger market share greater than 20 per cent in
the relevant market. In addition, where a takeover
proposal will, or is likely to, raise competition concerns,
the relevant parties should seek Australian competition
clearance for the takeover.
The ACCC can investigate a merger even where a party
has not notified it of the takeover or merger proposal.
The ACCC has the power to apply for a court injunction to
prevent a proposed transaction from proceeding. Where
a transaction has been completed in breach of s50 of
the CCA, the ACCC can also apply for a divestiture order,
pecuniary penalties and an order declaring the transaction
void.
There are 3 processes by which clearance can be sought
from the ACCC:
(Informal clearance) An informal clearance
system has developed in Australia under which
parties proposing to acquire shares or assets may
approach the ACCC on an informal (and sometimes
confidential) basis for clearance. It is the dominant
method of obtaining clearance in Australia. There
is no set timeframe within which the ACCC must
reach a decision. As a general guide, if the ACCC
decides that the takeover proposal does not raise
any competition issues and does not require the
ACCC to conduct market enquiries, the parties may
be advised of this conclusion within 1 to 2 weeks.
Reviews that require market consultation and
are subsequently found not to raise competition
concerns will normally be completed within 6 to 8
weeks. When reviews require subsequent market
inquiries to consult on a statement of issues (a
statement of issues outlines the basis and facts on
which the ACCC has come to a preliminary view that
a proposed merger raises competition concerns that
require further investigation) or remedies, the total
review process is likely to be completed within 12
weeks, although may take longer in complex cases.
63
Although informal clearance decisions are not legally

binding on the ACCC, it will not, as a general rule,
subsequently contest a merger which it has cleared,
unless clearance was granted on the basis of false or
misleading information or relevant information was
otherwise withheld.
(Formal clearance) There is a formal clearance
procedure that is also conducted by the ACCC.
Where formal clearance is granted and any
conditions attached to the clearance are complied
with, an action cannot be brought by the ACCC
or third parties on the basis that the acquisition
contravenes s50 of the CCA. The ACCC has a 40
business day time limit to deal with an application
for formal clearance with the option to extend this
period by agreement or unilaterally to extend the
period by 20 business days if the ACCC decides that
the case is particularly complex or there are special
circumstances. The process is more costly (with a
$25,000 application fee), and less flexible, than the
informal clearance process.
(Authorisation) Since 2007, an application for
authorisation of a takeover proposal can be made
directly to the Australian Competition Tribunal.
This is a public statutory process and requires the
Tribunal to weigh the public benefits of the proposed
transaction against any lessening of competition.
The Tribunal must reach a determination on an
application for authorisation of a merger within 3
months of receiving a valid application this period
may be extended to 6 months in complex cases. If no
decision is made within this period, the Tribunal is
taken to have refused to grant the authorisation.
An acquisition that has already occurred cannot
be authorised.
Takeover proposals which are the subject of a formal
clearance or authorisation application cannot be
completed until a decision has been made by the relevant
authority. Although there is no requirement for the parties
not to complete a transaction when seeking informal
clearance from the ACCC, parties generally do not proceed
with transactions that are being considered by the ACCC
until they obtain clearance.
12.3 Truth in takeovers policy

A feature unique to the Australian takeovers market is
ASICs truth in takeovers policy. The policy is that where a
market participant makes a public statement (known as
a last and final statement) in the course of a takeover bid
that they will or will not do something in relation to the
bid, ASIC expects that the market participant will adhere
to that statement unless they have clearly and expressly
qualified it at the time of making it. The Takeovers Panel
generally expects likewise, although in practice it may grant
alternative remedies to requiring strict adherence to a last
and final statement (see below). A common example of a
last and final statement is a statement by a takeover bidder
that it will not increase its offer price or will not extend
its bid. The policy only refers expressly to takeover bids,
but ASIC and the Takeovers Panel regard it as extending to
schemes of arrangement.
The truth in takeovers policy is unique because it is not
founded on any specific rule that persons are bound by
their public statements. Rather, the regulators consider
that a persons departure from a last and final statement
could be in breach of the misleading or deceptive conduct
provisions of the Corporations Act. The rationale is that
buyers and sellers of securities are entitled to rely on
unqualified statements that a bidder, target or major
shareholder will do or not do something in relation to
the bid, and should not be exposed to loss if that party
subsequently acts contrary to the statement. For example,
if a bidder makes a statement that it will not increase its
offer price and subsequently departs from that statement
by announcing an increased offer price, a shareholder
who has sold on-market following the statement will
have missed the opportunity to participate in the increase.
Likewise, if a bidder makes a statement that it will not
extend its bid and subsequently does so, a shareholder
who has sold on-market may on the basis of the statement
may lose the opportunity of an increased offer during the
extended period.
The Takeovers Panel has shown a readiness to enforce
the policy and make declarations of unacceptable
circumstances where a bidder has departed from a last
and final statement. In particular, the Panel has in two
cases declared unacceptable circumstances where a
bidder has publicly stated that it would not increase its
64
offer price but subsequently did so. In both cases, the

Panel allowed the increased bid to proceed but ordered
the bidder to compensate certain shareholders who
traded in shares following the last and final statements.
The Panels decisions in those cases reflect a tension
between upholding the truth in takeovers policy and
ensuring that shareholders are not deprived of the best
possible price for their shares.
The forum in which a last and final statement is made
does not matter. An off-the-cuff comment by the CEO
of a bidder to a journalist which is then published in a
newspaper can attract the policy as much as a statement
in an ASX announcement. Therefore, bidders, targets,
major shareholders and other persons who play a
significant role in a takeover proposal need to be careful
in the public statements they make, and should seek legal
advice before making any last and final statements.
12.4 Options and other

convertible securities
Many ASX-listed Australian companies have employee
incentive plans which involve the granting of share
options or rights to executives. A person seeking to
acquire ownership of all of a companys shares should
make arrangements to acquire, or have cancelled, any
options, rights and other securities convertible into
shares. This is to avoid the highly undesirable situation
where a bidder has acquired 100% of the companys
shares but there remain options or rights on issue which,
if exercised, would result in the issue of shares to the
options or rights holders and the bidder ceasing to own
100% of the company. This is an issue because in that
situation the companys directors would need to take into
the account the interests of the minority shareholders,
and the company would be subject to the related
party transactions restrictions in the Corporations Act.
Furthermore, the exercise of the options or rights may,
depending on the circumstances, cause the target to exit
the bidders Australian tax consolidated group.
The common methods for acquiring or cancelling options

and rights (and other convertible securities) are as follows:
if the control transaction proceeds via a takeover bid:
the bidder making a simultaneous takeover bid
for each class of convertible securities; or
the bidder entering into contractual
arrangements with each convertible
securityholder and the target under which
the convertible securities are to be transferred
to the bidder or cancelled if the bidder obtains a
relevant interest in more than 50% of the targets
shares and the bid is unconditional; and
if the control transaction proceeds via a scheme of
arrangement:
the bidder proposing a simultaneous scheme
of arrangement for each class of convertible
securities; or
the bidder entering into contractual
arrangements with each convertible
securityholder and the target under which
the convertible securities are to be transferred
to the bidder or cancelled if the scheme
becomes effective.
To avoid any collateral benefit or unequal treatment
issues, the consideration provided for the acquisition
or cancellation of convertible securities should be no
greater than market value. For this purpose it is usual
to undertake a Black-Scholes or other valuation of the
convertible securities.
An alternative method of eliminating convertible
securities is to compulsorily acquire them. In general
terms, a person can compulsorily acquire a companys
convertible securities if the persons voting power in
the company is at least 90% and the person beneficially
owns at least 90% by value of all the shares and
convertible securities in the company. The consideration
payable is normally the fair market value of the
convertible securities.
65
Allens is an independent partnership operating in alliance with Linklaters LLP.
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About this handbook

3. Exceptions to the 20% rule

7. Takeover bids (for companies and trusts)

8. Schemes of arrangement (for companies)

9. Trust schemes (for trusts)

10. Strategic considerations for a prospective acquirer

11. Strategic considerations for a target

12. Other takeovers issues

Australian takeovers in brief

target shareholders have a reasonable time to

2. The 20% rule and key concepts

associates, expressed as a percentage of all issued

3. Exceptions to the 20% rule

Australian takeovers in brief

under a creep acquisition (ie. 3% every 6 months),

>> ASIC has general supervision of the Corporations Act

>> Courts play a very limited role in takeover

>> The Takeovers Panel is the primary forum for

threshold), >25% (ability to block scheme of

>> Other, less commonly used takeover structures

>> The majority of friendly deals are effected via a

Australian takeovers in brief

7. Takeover bids (for companies and trusts)

there are no special deals for individual target

>> A takeover bid involves the making of individual

there are no self-triggering bid conditions (for

>> There are 2 types of takeover bid: an off market bid

the bidder must issue a bidders statement

the offer period to be no less than 1 month

8. Schemes of arrangement (for companies)

the preparation by the target, with input from

>> A scheme of arrangement is a shareholder and

the target seeking court approval for the

>> Schemes are subject to fewer prescriptive rules than

Australian takeovers in brief

holding the scheme meeting;

9. Trust schemes (for trusts)

>> A standard trust scheme involves:

10. Strategic considerations for a prospective acquirer

The target may also require a standstill agreement

>> If a target grants due diligence access it will

Australian takeovers in brief

11. Strategic considerations for a target

>> A board can prepare for a possible takeover approach

12. Other takeovers issues

Australian takeovers in brief

>> ASICs truth in takeovers policy which requires

1.1 What is a takeover?

1.2 Regulatory framework

foreign investment rules set out in the Foreign

1.3 What entities are governed by

stock exchange rules: to a lesser extent, the listing

1.4 Fundamental principles

1.5 Transaction structures

The takeovers rules and policies are founded on the