Downstream acquisition made easier

The Australian Securities and Investments Commission (ASIC) has approved certain overseas stock exchanges as "safe harbours" from Australian takeover laws. There are 14 safe harbour exchanges, including major exchanges such as London, New York, Hong Kong, Tokyo and Frankfurt. Previously, the acquisition of shares in a foreign company which itself owned shares in an Australian company could have been considered as an indirect takeover of the Australian company, leading to the need for a separate takeover bid in Australia or special permission from ASIC. The effect of the approval is that the acquisition of shares in a foreign company listed on these exchanges and which itself owns shares in an Australian company will not breach the takeover provisions of the Corporations Law. The approval will last for six months and then be reviewed. Both ASIC and the Corporations and Securities (Takeovers) Panel will, however, monitor downstream acquisitions on these exchanges, and may intervene where either:

  • The shares in the downstream company comprise a substantial part of the assets of the upstream body corporate (in most circumstances, over 50%).
  • Control of the downstream company is a main purpose of the upstream acquisition.

Source: Securities and Investments Commission Information Release, Clayton Utz

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