7th May 2012
By Andrew Floro, Rachel Launders, Kate Meikle, Gail Spark
The High Court handed down two decisions on the James Hardie case last Thursday, which raise some interesting issues for companies and senior management, on how ASIC can be expected to conduct civil penalty proceedings, and potential exposure for senior management who may, without realising it, have liability as an “officer”, because of the role they carry out.
30th April 2012
By Kobi Devenish, Rachel Launders
Guidance Note 17 – Rights Issues (GN 17) sets out the approach adopted by the Takeovers Panel (the Panel) in relation to rights issues that have the potential to affect control. The recent decision by the Panel in Real Estate Capital Partners USA Property Trust [2012] ATP 6 (Real Estate Capital Partners), in which a declaration of unacceptable circumstances was made, has confirmed the approach of the Panel as set out in GN 17 and reinforced the need for directors to take all reasonable steps to mitigate the potential control impact of a rights issue.
30th April 2012
The payment of special and ordinary dividends prior to completion of public company takeovers has been a common theme in many recent transactions. A significant attraction for shareholders is the opportunity to access franking credits in the target which, in certain circumstances, may not be of significant benefit to an acquirer (eg private equity fund acquirers and non-residents in treaty countries which benefit from low or nil dividend withholding tax rates).
30th April 2012
In this month’s edition we consider the benefits of paying a special dividend in the context of a public M&A transaction, and highlight the Takeovers Panel’s continuing interest in rights issues that may have an impact on control.
29th March 2012
Despite the recent improvement in Australian M&A activity, a number of strategically sensible transactions are still not getting done because of the inability of the parties to agree on price. In recognition of these volatile economic times acquirers will often take a conservative approach to placing value on the future performance of a company, while target companies are still trying to achieve the highest value for their shareholders, leading to a potential price gap between the parties.
29th March 2012
By Jordan Kent, Rachel Launders
Recent moves by the Australian Securities Exchange (ASX) and the Australian Securities and Investments Commission (ASIC) will make it easier for small to mid cap companies to raise equity.
29th March 2012
By Rachael Bassil, Peter Cook, Nirangjan Nagarajah
The Takeovers Panel’s recent decisions in the matter involving Ludowici Limited serves as a timely reminder to all takeover participants of the importance of taking care with public statements in relation to a takeover bid or scheme of arrangement.
29th March 2012
In this month’s edition we consider the Takeovers Panel’s most recent comments on “Truth in Takeovers” in the context of a live auction, promising signs from ASX and ASIC for fundraising by small to mid cap companies, and recent trends in the use of contingent consideration in control transactions.
22nd March 2012
By Jane Hogan, Rachel Launders, Kathy Zgouras
This update provides a summary of key recent legal developments, particularly relevant to in-house counsel, on Legislation and Cases.
29th February 2012
By Deborah Johns, Kirish Kularajah
After two years at $231 million, the standard monetary threshold for notifiable transactions has increased to $244 million. Recent controversy around acquisitions by foreign persons of agricultural land in Australia has once again put Australian foreign investment rules into the spotlight, potentially impacting M&A activity in both the agribusiness and mining sectors.
29th February 2012
By David Clee, Alex Kauye
The recent decision of the Takeovers Panel (Panel) in RCL Group Limited (RCL Group) has put “poison pills” back on the radar. In RCL Group, the Panel declined to conduct proceedings in relation to the operation of a contractual right given to Torchlight Real Estate Fund Limited (Torchlight) under the terms of its corporate facility agreement with ASX-listed, RCL Group Limited (RCL).
29th February 2012
By Adam D'Andreti, Janine Ryan
There has been a strong resurgence in the hybrid securities market, which had been largely dormant since the onset of the GFC, with a number of recent issues by financial issuers (including ANZ, Westpac and Colonial) and corporate issuers (including Woolworths, Origin Energy, Tabcorp and AGL Energy).
29th February 2012
In this month’s edition we consider the strong resurgence in the hybrid securities market in Australia, recent comments on “poison pills” by the Takeovers Panel and current developments in Australia’s foreign investment rules.
14th February 2012
Following summer holidays, the Australia Day long weekend – and the sporting delights of the Australian Open final and the test series – it’s time to roll up the sleeves and return to business in earnest. The question then, is what does 2012 hold for the Australian M&A market? It’s no easy question, given the twists and turns of local and international economics, politics and financial markets of recent times. Indeed only one thing is certain: nothing is certain.
9th December 2011
By Jane Hogan, Rachel Launders, Kathy Zgouras
This update provides a summary of key recent legal developments, particularly relevant to in-house counsel, on Legislation and proposed legislation, ASIC, ASX and Cases.
30th November 2011
By David Clee, Kate Merrifield
Recent times have been challenging to say the least.
30th November 2011
By Adam D'Andreti, Ilona Roze, Rosamond Sayer
ASIC’s new guidance on prospectus disclosure
On 10 November 2011, ASIC released Regulatory Guide 228 Prospectuses: Effective disclosure for retail investors (RG 228) following industry consultation on draft guidance set out in Consultation Paper 155 (CP 155)1. The new regulatory guide contains the most comprehensive guidance provided to date by ASIC on how it will interpret [...]
30th November 2011
In our April edition of M&A Perspectives we discussed some recent Takeover Panel cases (eg ACS/Hochtief/Leighton) and some interesting potential transactions (CGNPC Uranium/Kalahari/Extract) concerning downstream acquisitions.
29th November 2011
By Julie Athanasoff, Rani John
In the recent Federal Court decision of Stratford Sun Limited v OM Holdings Limited [2011] FCA 1275, a shareholder of OM Holdings Limited (OMH), Stratford Sun Limited (SSL), unsuccessfully claimed that meeting materials provided by OMH in relation to a global offering of OMH shares and proposed dual listing of OMH on the Hong Kong Stock Exchange (HKSE) were misleading and in breach of the ASX Listing Rules. The Court’s decision offers some useful guidance on the level of disclosure required in meeting materials for share offerings, particularly where allottees have not been identified at the time of the offer. Click here to read the key messages for companies and advisers.
24th November 2011
By Rachel Launders, Carmen Wong
The two strikes rule has garnered considerable press coverage during the recent AGM season – the first since the introduction of the rule (discussed in our 23 June 2011 update).
31st October 2011
In this month’s edition we consider the state of play in LBO finance markets, recent changes to ASIC’s regulatory guidance on schemes of arrangement and a recent judicial decision which provides guidance on the ability of responsible entities to unilaterally amend scheme constitutions.
31st October 2011
By Hiroshi Narushima, John Schembri
The ongoing fragility of the global economic recovery and credit markets has continued to restrain deal flow in the Australian private equity market in 2011.
31st October 2011
By Bob Ker, Adam Laura
The Corporations Act 2001 (Cth) (Corporations Act) permits the responsible entity (RE) of a registered managed investment scheme to unilaterally amend the scheme’s constitution if the RE reasonably considers that the change will not adversely affect members’ rights.
31st October 2011
By Nirangjan Nagarajah, Carmen Wong
On 22 September 2011, ASIC published its revised Regulatory Guide 60 (RG 60) that outlines its approach to schemes, following industry consultation and an internal policy review since the last update in 2009.
27th October 2011
By Jane Hogan, Rachel Launders, Kathy Zgouras
This update provides a summary of key recent legal developments, particularly relevant to in-house counsel, on Legislation and proposed legislation, ASIC, ASX and Cases.
30th September 2011
In this month’s edition we consider the composition of classes for schemes of arrangement, the recent run of ‘hostile’ bids and issues relating to them and the recently announced changes to the foreign investment approval process for the acquisition of mining exploration projects by SOEs.
30th September 2011
By Jordan Kent, Rachel Launders
One of the most difficult issues that arises in a scheme of arrangement (whether used to acquire control of a company or to effect a demerger) is the determination of whether any group of shareholders should be treated as a separate class for the purpose of voting on the scheme.
30th September 2011
By David Clee, Alex Kauye
In recent times, we have seen a number of high profile bids announced without the support of the target company. The most notable of these are the current bids for Macarthur Coal and Foster’s. Traditionally, these have been known as ‘hostile’ bids. However, bidders nowadays are sure to distance their bid from any suggestion of hostility, with public statements focusing on delivering value to target shareholders and emphasising a willingness to work with the target to successfully execute the bid.
30th September 2011
By Alex Brown
In a recent press interview the Federal Treasurer, the Honourable Wayne Swan MP, announced a significant departure from the existing policy in respect to the investment by SOEs in Australian mining exploration companies.
22nd September 2011
By Jane Hogan, Rachel Launders, Kathy Zgouras
This update provides a summary of key recent legal developments, particularly relevant to in-house counsel, on Legislation and proposed legislation, ASIC and Cases.
31st August 2011
In this month’s edition we consider debt funding for takeover bids, commercial and legal issues relating to the recent run of joint bids in Australia and insider trading issues associated with block trades. We also take a look at G+T news and recent deals G+T has been advising on.
31st August 2011
By Rachael Bassil, Adam D'Andreti
The $3.3 billion sale by Royal Dutch Shell of part of its shareholding in Woodside, and the complete exits of Nine Entertainment Co. and the Canadian Pension Plan Investment Board from their investments, respectively, in carsales.com and Transurban, demonstrate that block trades remain a viable option for substantial securityholders who are looking to sell down their investment. In each of those trades, the broker managing the sale also underwrote it.
31st August 2011
There is no doubt that M&A transactions are taking longer and are harder to complete these days. The difficulties can arise in many different shapes and forms. Bid funding can be hard to obtain, the perceived risks can be high, regulatory issues can get in the way and significant shareholders may not be sellers. What is the panacea for these problems?
31st August 2011
By David Clee, Peter Cook, John Schembri
A feature of Australian M&A activity in calendar year 2011 has been the comeback of the takeover bid as a preferred means for effecting significant public corporate control transactions.
19th August 2011
This update provides a summary of key recent legal developments, particularly relevant to in-house counsel, on Legislation and proposed legislation, ASX and Cases.
17th August 2011
By Julie Athanasoff, Rachel Launders
On 10 August 2011, the Australian Securities and Investments Commission (ASIC) provided guidance in respect of an inconsistency between two recent amendments to the Corporations Act 2011 (Cth) (the Act) regarding key management personnel (KMP) and their closely related parties1, and proxy voting on resolutions directly or indirectly connected to the remuneration of KMP.
29th July 2011
In this month’s edition we consider the state of the M&A Nation at the halfway point for 2011, underwriting for a rights issue and the Takeovers Panel’s decision in Viento Group Limited 02 [2011] ATP 12.
29th July 2011
Having reached the halfway point for 2011 it is an opportune time to reflect on the year to date and crystal ball gaze into the rest of the year.
29th July 2011
As the Australian credit market has not yet returned to the buoyant state enjoyed prior to the global financial crisis, companies continue to explore rights issues as a way of raising funds. Given the potential change of control impacts associated with a rights issue, listed companies need to consider how to structure any underwriting of a rights issue to avoid an application to the Takeovers Panel (the Panel) to prevent the transaction.
29th July 2011
By David Clee, Alex Kauye
The remarkable run of association cases before the Takeovers Panel this year has continued into July, with the Panel now having considered no less than seven alleged instances of undisclosed associations in 2011.
21st July 2011
This update provides a summary of key recent legal developments, particularly relevant to in-house counsel, on Legislation and proposed legislation, ASX and Cases.
6th July 2011
The decision of the Federal Court in Australian Securities & Investments Commission v Healey & Ors [2011] FCA 717 has no doubt raised anxiety levels for a number of non-executive directors, concerned that they must now become experts in accounting standards.
30th June 2011
This update provides a summary of key recent legal developments, particularly relevant to in-house counsel, on Legislation and proposed legislation, ASIC, ASX and Cases.
30th June 2011
In this month’s edition we consider the decisions of the Takeovers Panel in oOh!media and Premium Income Fund and ASIC’s Consultation Paper 159, which proposes amendments to ASIC’s policy regarding shareholder approved acquisitions.
30th June 2011
By David Clee, Alex Kauye
Background
In the March edition of M+A Perspectives, we looked at the decisions of the Takeovers Panel in Viento, Brockman and CMI which shed some light on when the Panel will, and will not, infer that an association exists. Since that time, the Panel has considered several more allegations of undisclosed associations, including those relating to ComOps and Bentley Capital. The latest of these is the curious case of oOh!media, a Panel proceeding which related to complicated call option arrangements.
30th June 2011
By Nirangjan Nagarajah, Neil Pathak
ASIC has recently re-written its long outdated Regulatory Guide 74: Acquisitions approved by members. It has released a revised draft regulatory guide as an attachment to a consultation paper giving the market an opportunity to comment on its proposed new guidance.
30th June 2011
By David Clee, Tim Gordon, Madeleine Kulakauskas
In Premium Income Fund [2011] ATP 10, the Takeovers Panel made a declaration of unacceptable circumstances in relation to ALF Finance’s conditional off-market bid for all of the units in Premium Income Fund (PIF). PIF is listed on the National Stock Exchange (NSX). Its responsible entity is Wellington Capital.
23rd June 2011
On 20 June 2011, the Corporations Amendment (Improving Accountability on Director and Executive Remuneration) Bill was passed by the Senate, giving effect to the Government’s response to the Productivity Commission’s post-GFC report on executive remuneration.
31st May 2011
This update provides a summary of key recent legal developments, particularly relevant to in-house counsel, on Legislation and proposed legislation, ASIC, ASX and Cases.
31st May 2011
In this month’s edition we consider updates to the Takeovers Panel’s policy on frustrating action, recent practice for improving scheme consideration close to the shareholder meeting, restraints of trade in management equity plans following the Warburton case and independent expert’s reports for trust schemes.
