Commonwealth Consolidated Acts

FOREIGN ACQUISITIONS AND TAKEOVERS ACT 1975 - SECT 40

  (1)   An action is a significant action if the conditions in this section are met.

First condition--kinds of action

  (2)   The first condition is that the action is any of the following:

  (a)   to acquire a direct interest in an Australian entity that is an agribusiness;

  (b)   to acquire interests in securities in an entity;

  (c)   to issue securities in an entity;

  (d)   to enter an agreement:

  (i)   relating to the affairs of the entity; and

  (ii)   under which one or more senior officers of the entity will be under an obligation to act in accordance with the directions, instructions or wishes of a foreign person who holds a substantial interest in the entity (or of an associate of such a foreign person);

  (e)   to alter a constituent document of the entity as a result of which one or more senior officers of the entity will be under an obligation to act in accordance with the directions, instructions or wishes of a foreign person who holds a substantial interest in the entity (or of an associate of such a foreign person).

Note:   An action mentioned in any of paragraphs   (2)(b) to (e) may be taken in relation to an Australian entity that is an agribusiness (see section   42).

Second condition--threshold

  (3)   The second condition is that the threshold test is met in relation to the entity (see Subdivision B of Division   4).

Third condition--kinds of entities covered

  (4)   The third condition (except if paragraph   (2)(a) applies) is that the entity is the following:

  (a)   for an acquisition of interests in shares or an issue of shares:

  (i)   a corporation that is a relevant entity that carries on an Australian business, whether alone or together with one or more other persons; or

  (ii)   the holding entity of such a corporation;

  (b)   for any other action relating to a corporation:

  (i)   an Australian corporation that carries on an Australian business, whether alone or together with one or more other persons; or

  (ii)   the holding entity (other than a foreign corporation) of such a corporation;

  (c)   for an action relating to a unit trust:

  (i)   an Australian unit trust; or

  (ii)   a holding entity of an Australian unit trust.

Last condition--action taken by a foreign person

  (5)   If paragraph   (2)(a) applies, the last condition is that the action is or is to be taken by a foreign person.

Last condition--action results in change in control

  (6)   If any of paragraphs   (2)(b) to (e) apply, the last condition is that there would be or has been a change in control of the entity as a result of the action (see Subdivision C of Division   4).

  (7)   However, the last condition in subsection   (6) is not required to be met if:

  (a)   paragraph   (2)(b) applies and the action is or is to be taken by a foreign person who controls the entity (whether alone or together with one or more associates) immediately before the action is or is to be taken; or

  (b)   paragraph   (2)(c) applies and a foreign person controls the entity (whether alone or together with one or more associates) immediately before the action is or is to be taken.