23-263MR ASIC remakes sunsetting legislative instruments on takeovers, compulsory acquisitions and relevant interests

In response to CP 365, ASIC has remade seven legislative instruments related to takeovers, compulsory acquisitions, and relevant interests. These instruments were set to automatically sunset on 1 October 2023 if not remade. The remade instruments are as follows:
– [CO 12/1209], has been restructured and is now represented by ASIC Corporations (Relevant Interests, ASIC and ASIC Chairperson) Instrument 2023/194.
– [CO 13/519], originally related to certain matters concerning Responsible Entities, has been reconstituted into ASIC Corporations (Changing the Responsible Entity) Instrument 2023/681.
– [CO 13/521], which formerly addressed issues related to Takeover Bids, has been reissued as ASIC Corporations (Takeover Bids) Instrument 2023/683.
– [CO 13/522], previously associated with Compulsory Acquisitions and Buyouts, has been restructured into ASIC Corporations (Compulsory Acquisitions and Buyouts) Instrument 2023/684.
– [CO 13/524], focusing on the obligations of a bidder in relation to substantial holding notices, has been reformulated into ASIC Corporations (Bidder Giving Substantial Holding Notice) Instrument 2023/685.
– [CO 13/525], which provided disclosure relief for scrip bids and schemes of arrangement, has been reissued as ASIC Corporations (On-Sale Disclosure Relief for Scrip Bids and Schemes of Arrangement) Instrument 2023/686.
– [CO 13/526], concerning matters regarding warrants, relevant interests, and associations, has been remade into ASIC Corporations (Warrants: Relevant Interests and Associations) Instrument 2023/687.
– [CO 13/528], originally addressing statements by replacement bidders and targets, has undergone a transformation and is now represented by ASIC Corporations (Replacement Bidder’s and Target’s Statements) Instrument 2023/688.
These new instruments likely contain updated regulations and provisions relevant to the respective areas of corporate and financial oversight mentioned in the original class orders. It is advisable for market participants, businesses, and financial professionals to review these new instruments to ensure compliance with the latest regulatory requirements.
These instruments were remade following public consultation on CP 365 (see eventit=18492), which took place between 30 November 2022 and 23 January 2023. Four non-confidential responses were received during this period, and the respondents‘ input is appreciated.
The primary focus of CP 365 was to remake several class orders into new legislative instruments while providing relief in certain areas. Key proposals included continuing relief for relevant interests, changing the responsible entity, amendments to money lending exceptions.
However, after carefully evaluating the responses received in response to CP 365, ASIC will not proceed with the proposed amendment to modify the money lending exception in s609(1) as initially outlined in [CO 13/520]. Also, given the incorporation of [CO 13/520] into the Corporations Act, it rendered its remake unnecessary. Nevertheless, ASIC’s proposals and responses regarding [CO 13/520] modifications are included in this report. Furthermore, in the process of reevaluating [CO 13/521], ASIC determined not to extend the applicability of s617(2) to encompass bid class securities issued after the date specified in s633(2). This decision has been reached due to the potential complications that could arise from such an extension.
Respondents mainly supported the proposals outlined in CP 365. Therefore, ASIC has remade each class order (except [CO 13/520]) into a new legislative instrument, with most changes proposed in CP 365, for a five-year period. This duration aims to provide industry certainty and flexibility for potential amendments to primary laws or regulations.
The main issues raised by respondents related to various aspects, including relief for CCIVs, money lending exceptions, non-IPO voluntary escrow relief, acceptance facilities, derivatives, bid class securities, the definition of ’securities,‘ payment of bid consideration, small parcel acceptances, paper acceptances in CHESS, and certain phrases used in statements.
As a consequence, ASIC has addressed these matters comprehensively in this report. Yet this report is not an exhaustive summary of all responses or questions from CP 365. Certain class orders, supported by respondents, have been remade with relevant changes, and they are now embodied in new legislative instruments.