3rd April 2013
In this month’s edition we look the Foreign Investment Review Board’s policy for 2013, which contains two important substantive changes relating to government-related entities and the types of investments by them.
3rd April 2013
Gilbert + Tobin has contributed the Australian chapter in the Private Equity publication of Getting the Deal Through 2013. Reproduced with permission from Law Business Research Ltd. This article was first published in Getting the Deal Through – Private Equity 2013, (published in February 2013; contributing editor: Casey Cogut of Simpson Thacher & Bartlett LLP). For further information please visit www.GettingTheDealThrough.com
3rd April 2013
By Adam Laura, Deborah Johns, Peter Feros
Gilbert + Tobin has contributed the Australian chapter in the Private Equity publication of Getting the Deal Through 2013. Reproduced with permission from Law Business Research Ltd. This article was first published in Getting the Deal Through – Private Equity 2013, (published in February 2013; contributing editor: Casey Cogut of Simpson Thacher & Bartlett LLP). For further information please visit www.GettingTheDealThrough.com
5th December 2012
In an important victory for the Takeovers Panel, the Federal Court has upheld the Panel’s decision in CMI Limited [2011] ATP 4 and in the process confirmed the legitimacy of the Panel’s practice of deciding issues of association on the basis of inferences drawn from partial evidence and patterns of behaviour.
5th December 2012
One of the most difficult governance issues that can arise for a target board in the context of a potential takeover is when a substantial shareholder has a nominee director on the board. There are extremely limited rights under general law for a target to exclude such a nominee from participation in board meetings and from provision of information in connection with a defence and this needs to be borne in mind when preparing a takeover defence.
5th December 2012
In this month’s edition we look at whether a nominee director be excluded from board participation during a takeover and the Federal Court’s decision in CMI Limited.
5th November 2012
By David Clee, Alex Brown, Joshua Fast
The recent decisions of the Takeovers Panel in Mission NewEnergy Limited [2012] ATP and Mission NewEnergy Limited 01R [2012] ATP have confirmed that, while the Takeovers Panel takes the anti-competitive effects of lock-up devices very seriously, it is prepared to adopt a pragmatic approach to their acceptability when dealing with companies in severe financial distress.
5th November 2012
By Neil Pathak, Sarah Duerdoth, Joshua Fast
Treasury has recently issued a scoping paper in relation to takeover law reform. We discuss the areas listed for potential reform and consider whether reform is really needed given the perceived concerns and current economic and financial conditions.
5th November 2012
In this month’s edition we look at takeover law reform and the Takeovers Panel decision in Mission NewEnergy Limited.
31st August 2012
The Takeover Panel’s recent decision in Minemakers Limited 02 ATP 13 shows that, while an independent expert’s report can be challenged through the Takeovers Panel, the expert’s report must be patently incorrect or unreasonable, or the independence of the expert must be compromised, before the Takeovers Panel will intervene. This outcome was confirmed following an application for review.
31st August 2012
By Neil Pathak, Alex Brown, Roisin Kennedy
Directors in receipt of a confidential takeover approach often face a difficult decision whether to disclose it or not. That decision can have serious ramifications for the company’s share price and media and regulatory scrutiny. The recent trend seems to be towards early disclosure of takeover approaches – we question whether that is actually a good thing for shareholders and also market integrity.
31st August 2012
In this month’s edition we examine whether to disclose or not disclose in response to receiving a takeover approach and consider the implications of a recent Takeovers Panel decision for hostile bidders wishing to challenge alleged defects in an independent expert’s report.
1st June 2012
A recent decision of the Delaware Court of Chancery, which is the leading US court on company law cases, provides a timely reminder for parties to potential M+A transactions that care needs to be taken in drafting confidentiality agreements to avoid unintended limitations on future conduct.
1st June 2012
The recent merger of Whitehaven Coal Limited (Whitehaven) and Aston Resources Limited (Aston) has put collateral benefits in schemes of arrangement back on the radar.
1st June 2012
In this month’s edition we consider collateral benefits in schemes of arrangement and a recent US case of interest to prospective hostile bidders.
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.
11th April 2012
Gilbert + Tobin has contributed the Australian chapter in the Private Equity publication of Getting the Deal Through 2012. Reproduced with permission from Law Business Research Ltd. This article was first published in Getting the Deal Through – Private Equity 2012, (published in February, 2012; contributing editor: Casey Cogut, Simpson Thacher & Bartlett LLP). For further information please visit www.GettingTheDealThrough.com
11th April 2012
Gilbert + Tobin has contributed the Australian chapter in the Private Equity publication of Getting the Deal Through 2012. Reproduced with permission from Law Business Research Ltd. This article was first published in Getting the Deal Through – Private Equity 2012, (published in February, 2012; contributing editor: Casey Cogut, Simpson Thacher & Bartlett LLP). For further information please visit www.GettingTheDealThrough.com
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 Rachel Launders, Jordan Kent
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 Peter Cook, Rachael Bassil, 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.
9th March 2012
Gilbert + Tobin’s leading private equity (PE) team has been recognised in both Chambers Asia Pacific 2012 and Best Lawyers 2012, two leading independent legal surveys.
29th February 2012
By Kirish Kularajah, Deborah Johns
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 Janine Ryan, Adam D'Andreti
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.
30th November 2011
By David Clee, Kate Merrifield
Recent times have been challenging to say the least.
30th November 2011
By Adam D'Andreti, Rosamond Sayer, Ilona Roze
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 [...]
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.
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 John Schembri, Hiroshi Narushima
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
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.
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.
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 Alex Kauye, David Clee
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.
30th June 2011
By Alex Kauye, David Clee
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 Neil Pathak, Nirangjan Nagarajah
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 Madeleine Kulakauskas, Tim Gordon, David Clee
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.
31st May 2011
By Tim Gordon
After consultation, the Takeovers Panel (Panel) has released amendments to guidance note 15 (GN15) which sets out the Panel’s approach to the use of trust schemes to effect mergers by listed trusts and managed investment schemes.
31st May 2011
By Alastair Corrigall, Rachael Bassil
James Warburton was employed as chief sales and digital officer at Seven Media. An opportunity arose to move across to Network Ten (Ten) as chief executive officer. Mr Warburton accepted that position on 2 March 2011, intending to commence his new role on 14 July 2011.
31st May 2011
By Bryan Pointon, Adam D'Andreti, Andrew Crook
A Part 5.1 scheme of arrangement recently proposed by Redflex Holdings Limited (Redflex) has raised for consideration the possibility that bidders who seek to obtain control of a company by way of a scheme may have flexibility to improve scheme consideration shortly prior to the meeting of shareholders without delaying that meeting. While this approach has not recently been approved by a court, it offers the potential for schemes to become a more flexible takeover device.
31st May 2011
By Neil Pathak, Nirangjan Nagarajah
The Takeovers Panel recently reissued its guidance note 12 on frustrating action. The revised guidance note clarifies that the policy does not apply to schemes and formulates a limited ‘put up or shut up’ rule for Australia.
