FOREIGN ACQUISITIONS AND TAKEOVERS AMENDMENT BILL 2010

i Foreign Acquisitions and Takeovers Amendment Bill 2009 No. , 2009

Contents

1 Short

title

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2 Commencement

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3 Schedule(s)

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Schedule 1--Amendments

Foreign Acquisitions and Takeovers Act 1975

Schedule 2--Transitional provisions

Foreign Acquisitions and Takeovers Amendment Bill 2009 No. , 2009 1

A Bill for an Act to amend the Foreign Acquisitions

and Takeovers Act 1975, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Foreign Acquisitions and Takeovers

Amendment Act 2009.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Foreign Acquisitions and Takeovers Amendment Bill 2009 No. , 2009

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedule 1

12 February 2009.

12 February

2009

3. Schedule 2

The day this Act receives the Royal Assent.

Note:

This table relates only to the provisions of this Act as originally

passed by both Houses of the Parliament and assented to. It will not be

expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Amendments Schedule 1

Foreign Acquisitions and Takeovers Amendment Bill 2009 No. , 2009 3

Schedule 1--Amendments

Foreign Acquisitions and Takeovers Act 1975

1 Subsection 5(1)

Insert:

aggregate substantial interest in a corporation has the meaning

given by subsection 9(1A).

2 Subsection 5(1)

Insert:

potential voting power has the meaning given by subsection 14(2).

3 Subsection 5(1) (paragraph (b) of the definition of share)

Omit "or 26".

4 Subsection 5(1)

Insert:

substantial interest in a corporation has the meaning given by

subsection 9(1).

5 Subsection 5(1)

Insert:

voting power has the meaning given by subsection 14(1).

6 At the end of paragraphs 5(4)(a) and (c)

Add "and".

7 After paragraph 5(4)(c)

Insert:

(d) acquiring an asset or a share;

8 Subsection 9(1)

Repeal the subsection, substitute:

Schedule 1 Amendments

4 Foreign Acquisitions and Takeovers Amendment Bill 2009 No. , 2009

(1) For the purposes of this Act, a person is taken to hold a substantial

interest in a corporation if the person, alone or together with any

associate or associates of the person:

(a) is in a position to control not less than 15% of the voting

power in the corporation; or

(b) is in a position to control not less than 15% of the potential

voting power in the corporation; or

corporation; or

(d) would hold interests in not less than 15% of the issued shares

in the corporation, if shares in the corporation were issued as

the result of the exercise of all rights of a kind mentioned in

subsection 11(2A).

(1A) For the purposes of this Act, 2 or more persons are taken to hold an

aggregate substantial interest in a corporation if they, together

with any associate or associates of any of them:

(a) are in a position to control not less than 40% of the voting

power in the corporation; or

(b) are in a position to control not less than 40% of the potential

voting power in the corporation; or

corporation; or

(d) would hold interests in not less than 40% of the issued shares

in the corporation, if shares in the corporation were issued as

the result of the exercise of all rights of a kind mentioned in

subsection 11(2A).

9 After subsection 11(2)

Insert:

(2A) To avoid doubt, a right covered by paragraph (2)(b) or (c) includes

a right under an instrument, agreement or arrangement, whether the

right is exercisable presently or in the future and whether on the

fulfilment of a condition or not.

Example: A

convertible

note.

10 Section 14

Before "In this Act", insert "(1)".

Amendments Schedule 1

Foreign Acquisitions and Takeovers Amendment Bill 2009 No. , 2009 5

Note:

The heading to section 14 is altered by omitting "Voting power" and substituting

"Voting power and potential voting power".

11 Section 14

Omit "voting power", substitute "voting power".

12 At the end of section 14

Add:

(2) In this Act, a reference to potential voting power in a corporation

is a reference to the voting power in the corporation, on the

assumption that the votes that might be cast at a general meeting of

the corporation included each vote that:

(a) because of the exercise of a right (whether the right is

exercisable presently or in the future and whether on the

fulfilment of a condition or not), might come to exist in the

future; and

(b) if it came into existence, might be cast at a general meeting

of the corporation.

13 After paragraph 18(3)(a)

Insert:

(aa) be in a position to control more of the total potential voting

power in the corporation than:

(i) such proportion of the total potential voting power in

the corporation as is equal to the proportion of the total

potential voting power in the corporation at the time of

the coming into operation of the first-mentioned order

that that foreign person, together with any associate or

associates of that person, was in a position to control at

that time; or

(ii) such greater proportion (if any) of the total potential

voting power in the corporation as is specified in the

order; or

14 Paragraph 20(5)(a)

After "determine the policy of the corporation", insert "in relation to

any matter".

15 Paragraph 21(5)(a)

Schedule 1 Amendments

6 Foreign Acquisitions and Takeovers Amendment Bill 2009 No. , 2009

After "determine the policy of the business", insert "in relation to any

matter".

16 Paragraph 26(2)(a)

Omit "acquires a substantial shareholding", substitute "acquires a

substantial interest".

17 Paragraph 26(2)(b)

Omit "acquire a substantial shareholding", substitute "acquire a

substantial interest".

18 Paragraph 26(3)(b)

Omit "the acquisition of the interests in the shares", substitute "the

acquisition of the substantial interest".

19 Subsection 26(5A)

Omit "the acquisition of a substantial shareholding", substitute "the

acquisition of a substantial interest".

20 Subsection 26(6)

Repeal the subsection, substitute:

(6) In this section, a reference to an agreement by virtue of which a

person acquires a substantial interest in a corporation is a reference

to an agreement by virtue of which:

(a)

the

person:

(i) starts to hold a substantial interest in the corporation; or

(ii) would start to hold a substantial interest in the

corporation on the assumption that the person held

interests in shares that are interests that he or she has

offered to acquire; or

(iii) would start to hold a substantial interest in the

corporation on the assumption that the person held

rights to votes that might be cast at a general meeting of

the corporation that are rights that he or she has offered

to acquire; or

(b) if the person already holds a substantial interest in the

corporation--any of the following conditions are satisfied:

Amendments Schedule 1

Foreign Acquisitions and Takeovers Amendment Bill 2009 No. , 2009 7

(i) the person becomes in a position to control more of the

voting power or potential voting power in the

corporation;

(ii) the person starts to hold additional interests in the issued

shares in the corporation;

(iii) the person would start to hold additional interests in the

issued shares in the corporation, if shares in the

corporation were issued as the result of the exercise of

all rights of a kind mentioned in subsection 11(2A).

21 Subsection 26(7)

After "interests in shares" (wherever occurring), insert "or rights".

Schedule 2 Transitional provisions

8 Foreign Acquisitions and Takeovers Amendment Bill 2009 No. , 2009

Schedule 2--Transitional provisions

1 Transitional--arrangements entered into between

12 February 2009 and commencement

(1)

This item applies if:

(a) a person enters into an arrangement in the period:

(i) starting on 12 February 2009; and

(ii) ending on the day on which this item commences; and

(b) by entering into the arrangement, the person:

(i) would not have committed an offence under subsection

26(2) of the Foreign Acquisitions and Takeovers Act

1975 (disregarding the amendments made by

Schedule 1 to this Act); and

(ii) would (apart from subitem (2)) have committed an

offence under subsection 26(2) of the Foreign

Acquisitions and Takeovers Act 1975 (as amended by

Schedule 1 to this Act).

Note:

The amendments in Schedule 1 are taken to have commenced on 12 February 2009.

(2)

The person is taken not to have committed the offence mentioned in

subparagraph (1)(b)(ii).

(3)

Section 25 of the Foreign Acquisitions and Takeovers Act 1975 applies

to the arrangement as if:

(a) the arrangement were still a proposed arrangement; and

(b) paragraphs (1C)(b), (1D)(b) and (2)(b) and

subparagraph (3)(c)(ii) of that section were omitted.

(4)

Without limiting section 27 of that Act, a form prescribed for the

purposes of that section may deal with notification of an arrangement to

which this item applies.

2 Transitional--requirement to give notice after

commencement of certain pre-commencement

arrangements

A person commits an offence if:

(a) the person enters into an arrangement in the period:

(i) starting on 12 February 2009; and

Transitional provisions Schedule 2

Foreign Acquisitions and Takeovers Amendment Bill 2009 No. , 2009 9

(ii) ending on the day on which this item commences; and

(b) by entering into the arrangement, the person:

(i) would not have committed an offence under subsection

26(2) of the Foreign Acquisitions and Takeovers Act

1975 (disregarding the amendments made by

Schedule 1 to this Act); and

(ii) would (apart from subitem 1(2)) have committed an

offence under subsection 26(2) of the Foreign

Acquisitions and Takeovers Act 1975 (as amended by

Schedule 1 to this Act); and

for the purposes of section 25 of that Act in respect of the

arrangement within 30 days after the day on which this item

commences.

Penalty: 500 penalty units or imprisonment for 2 years, or both.

Commonwealth of Australia Bills

FOREIGN ACQUISITIONS AND TAKEOVERS AMENDMENT BILL 2010