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In a recent case, the Federal Court of Australia considered the validity of shareholder proxy forms that are forwarded via an intermediary to the company holding the general meeting. Justice McKerracher found that, although there is no express requirement under the Corporations Act, for practical reasons, proxy forms should be returned directly to the company holding the general meeting, rather than via an intermediate party

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A significant recent development for 'take-private' offers in Australia is the inclusion of an unlisted scrip offer to shareholders (ie 'stub equity'), as an alternative to cash, to facilitate continued investment in the underlying business. Partner Tom Story and Senior Associate Julian Donnan report on the use of 'stub equity' in take-private transactions and provide an overview of the key legal issues

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In a recent decision, the Takeovers Panel has provided additional guidance on the application of its policy regarding frustrating action, and may well have added to the armoury of bidders at the expense of target companies. Partner Robert Pick reports

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The Parliamentary Joint Committee on Corporations and Financial Services has inquired into the engagement and participation of shareholders in the corporate governance of companies in its report titled Better Shareholders - Better Company: Shareholder Engagement and Participation in Australia. Partner David Robb and Lawyer Jessica Choong report

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The Takeovers Panel has published its final position on the giving of collateral benefits in the context of control transactions. Partner Andrew Finch and Senior Associate Vida Wongseelashote report

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The Takeovers Panel has released Guidance Note 20 to assist market participants to understand the Panel's approach to disclosure of equity derivatives, particularly the circumstances in which positions taken by parties to equity derivatives must be disclosed to the market even though no 'relevant interest' may have been acquired. Partner Jeremy Low and Senior Associate Julian Donnan outline those circumstances, the position with respect to market makers, and the content and timing for disclosure

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The regulator of Singapore's securities industry, the Monetary Authority of Singapore, has undertaken consultation with a wide range of stakeholders on proposed amendments to the principal legislation governing the securities industry - the Securities and Futures Act and the Financial Advisors Act. AAR TSMP Partners Robert Clarke and Stefanie Yuen Thio, and Senior Associate Krista Bowie, provide a brief overview of the proposed legislative amendments

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The Singapore Exchange has warned directors and financial advisers of listed companies to pay particular attention to the interests of shareholders when assessing the commercial terms of acquisitions supported by profit guarantees. Partners Robert Clarke and Stefanie Yuen Thio, Senior Associate Ian Stewart and Lawyer Jonathan Teo report on the use of profit guarantees and the recommendations of the Singapore Exchange

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Federal Treasurer Wayne Swan has announced a set of six principles that are to be applied by the Federal Government when it considers applications to invest in Australia by foreign governments and their agencies. The announcement follows the recent high-profile investments by State-owned or State-controlled enterprises and sovereign wealth funds in iconic global corporations. Partner Alex Ding, Senior Associate Mark Malinas and Articled Clerk Magnus Mason report

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The ACCC has released for public consultation its much anticipated Draft Merger Guidelines 2008. This is the first update since publication of the 1999 merger guidelines. Partners David Brewster and Jacqueline Downes and Lawyer Helen Anness report

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In our Focus: Funds Management - March 2007, we reviewed an ASIC consultation paper regarding a proposed policy on the regulation of buy-backs of interests in listed managed investment schemes. ASIC has now issued class order relief which enables the responsible entity of a listed scheme to buy back interests that are traded on the Australian Stock Exchange. Partner Lynne Jensen discusses the conditions of relief

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The High Court has handed down its reasons for the orders it made last year in the Alinta litigation. The court's reasons confirm that the Takeovers Panel has the power to declare 'unacceptable circumstances' based on contraventions of the Corporations Act 2001. Partners Paul Nicols and Andrew Finch and Senior Associate Chris Peadon report

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The Australian Securities and Investments Commission has released two new regulatory guides relating to expert reports - Regulatory Guide 111: Content of Expert Reports and Regulatory Guide 112: Independence of Experts - to replace its previous policies on independent expert reports. Lawyers Christalyne Look and Deborah Doctor examine these new guides

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The High Court has overturned a decision of the Full Federal Court that had cast uncertainty over the future of the Takeovers Panel. As Lawyer Shelley Golden reports, today's historic decision restores the full powers of the Panel as Australia's principal takeover dispute resolution forum

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Amendments to the Corporations Act 2001 (Cth) might limit organised campaigns designed to 'spoil' scheme mergers. Partner Andrew Finch looks at the new provisions

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The revised Corporate Governance Principles and Recommendations released by the ASX Corporate Governance Council constitute a refinement rather than a rewriting of the existing Principles and Recommendations. Partner Steve Clifford, Consultant Professor Bryan Horrigan and Senior Associate Simon Lewis survey the key changes and highlight the impact for ASX listed entities

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The Trade Practices Legislation Amendment Act (No 1) 2006 (Cth) introduced a 'formal' statutory merger clearance process similar to that used in jurisdictions such as the United States and Europe. Despite the current record level of merger and acquisition activity in Australia, no applicant has employed the formal clearance process since it became effective on 1 January 2007. Partner David Brewster and Articled Clerk Julian Anderson examine why businesses have chosen to ignore this process

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The merger provisions of the Competition Act (Chapter 50B) of Singapore came into force on 1 July this year. Allens Arthur Robinson TSMP Director Stefanie Yuen Thio and Allens Arthur Robinson TSMP Partner Robert Clarke and Lawyer Brooke Nicholls look at some of the key features.

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Following a public consultation process, the Takeovers Panel has published its final position on the issue of insider participation in control transactions. This issue has come into sharper focus recently with an increasing number of high-profile public-to-private transactions involving private equity where the implementation of management incentive plans is considered a key element to the success of the transaction.

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The Australian Communications and Media Authority's Media Diversity Report was published on 30 May 2007. It sets out details of the ownership of the regulated media platforms in each commercial radio licence area in Australia and it provides details about the points regime that is central to the administration of the new media ownership laws that came into force on 4 April 2007. Partner Ian McGill reports

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The NSW Court of Appeal has upheld earlier findings that Geoffrey Vines, a former chief financial officer of GIO Australia Holdings Ltd, contravened his duty of care in respect of profit forecasts made during a takeover bid. The judgment helps clarify the responsibilities of company executives, particularly when preparing profit forecasts during takeovers. Partner Jon Webster and Lawyer Christine Swan report

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Two recent releases from the Australian Securities and Investments Commission give us an insight into how the regulator attempts to respond flexibly to suspected breaches of the law. For business, however, this flexibility gives rise to what will often be a difficult choice: should the business fight ASIC or compromise and accept a 'softer' penalty? Partner Guy Foster and Senior Associate Matthew McLennan look at the two procedures

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On 20 April 2007, the Government of Vietnam passed Decree 69/2007/ND-CP on Purchase by Foreign Investors of Shareholding in Vietnamese Commercial Banks (Decree 69). Partner Bill Magennis and Lawyer Julia Howes look at some of the key changes

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The Takeovers Panel has released a draft Guidance Note and issues paper relating to insider participation in control transactions. Partner Ewen Crouch and Lawyers Matthew Ireland and Mark Boyd-Boland, discuss the reasons behind the development of these guidelines, their key points and how bidders and target companies should proceed with takeover negotiations

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On Wednesday 14 February 2007, the Federal Government introduced into Parliament legislation aimed at shoring up the position of the Takeovers Panel as Australia's principal takeover dispute resolution forum. Partner Greg Bosmans looks at the key proposed changes and their implications

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In this edition: Australian media and ownership law changes; The importance of being a financial product; Tax promoter penalty rules; and more ...

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Companies and their directors are unlikely to face drastic changes to the law of directors' duties to make companies more socially responsible, if (as is likely) the Federal Government accepts the latest recommendations of its Corporations and Markets Advisory Committee in its recently released report, The Social Responsibility of Corporations.

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Recent changes to Australia's foreign investment policy mean that foreign investors will face a lower regulatory burden when undertaking takeovers or reconstructions involving small-to-medium Australian businesses. Partner Wendy Rae and lawyer Damian Jacobs consider the impact of these changes

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The US Department of Justice has begun an investigation into the conduct of private equity firms in the United States and whether their participation in 'club' deals is potentially anti-competitive. Partner Carolyn Oddie discusses the key aspects of these investigations and the implications for Australian consortium participants

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Australian businesses are attracting increasing interest from US financial sponsors, particularly private equity funds. As a guide for US financial sponsors considering a going-private transaction in Australia, Partner David Wenger and Senior Associate Tom Story provide an overview of the key differences between the applicable regulatory frameworks in the US and Australia

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Australian businesses are attracting increasing interest from US financial sponsors, particularly private equity funds. As a guide for US financial sponsors considering a going-private transaction in Australia, Partner David Wenger and Senior Associate Tom Story provide an overview of the key differences between the applicable regulatory frameworks in the US and Australia

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The increasing involvement of private equity funds in acquisition transactions is leading to a blurring of boundaries in the financing conditions adopted in public and private acquisitions. Partner Phillip Cornwell, Senior Associate Douglas Fung and Lawyer Dorothy Pawlukowski look at recent developments in the conditionality of leveraged funding for public and private acquisitions

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The financing package for the acquisition this year of the Myer department store business is an example of what may be a growing trend of private equity players partially financing their acquisitions through public offers of listed debt securities. Partner Robert Pick looks at the specific debt securities in this deal and whether we are likely to see more like them in the future

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The financing package for the acquisition this year of the Myer department store business is an example of what may be a growing trend of private equity players partially financing their acquisitions through public offers of listed debt securities. Partner Robert Pick looks at the specific debt securities in this deal and whether we are likely to see more like them in the future

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On 8 August 2006, six ministries of the People's Republic of China jointly issued the Regulations Related to Foreign Investors Merger and Acquisition of Domestic Enterprises ([2006] No. 10). The Regulations, which take effect on 8 September 2006, establish new rules for foreign investors acquiring interests in PRC domestic companies. Partner Campbell Davidson and Lawyers Toby Grainger and Wayne Wang report on the key aspects of the Regulations

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In an important policy statement on media mergers, the Australian Competition and Consumer Commission has indicated that the established demarcation of media markets is declining in relevance. Instead, the supply and acquisition of content will be the ACCC's principal focus. Senior Associate Jacqueline Downes discusses the ACCC's new approach

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The Corporations and Markets Advisory Committee has issued its Corporate Duties Below Board Level Report. Partner Wendy Rae discusses the recommendations made in the Report

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A recent Full Federal Court case has considered, on appeal, whether rights and obligations under a licence agreement, particularly the right to terminate, can be assigned.

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The Federal Budget announced this month included a package of measures to increase activity in the venture capital sector. Partner Steve Clifford and Lawyer Jonathan de Ridder discuss the new measures and give background to the legal structures already in place for venture capitalists

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The Federal Budget announced this month included a package of measures to increase activity in the venture capital sector. Partner Steve Clifford and Lawyer Jonathan de Ridder discuss the new measures and give background to the legal structures already in place for venture capitalists

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In this edition: Governance of corporate groups; Corporate social responsibility - new direction in directors' duties?; ASIC scrutiny of 'poison pills' and other entrenchment devices; and more ...

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A recent Federal Court decision may make it easier for corporate groups to continue to benefit from widely used accounting relief. Senior Associate Gadi Bloch and Lawyer Alex Brown discuss the case and its implications

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Senior Associate Della Stanley and Lawyer Gabi Crafti consider the implications of an unsuccessful appeal by the administrators and a creditor of a company in administration from a primary judge's decision that a shareholder who acquired his shares on-market was entitled to be treated as a creditor of that company

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The release on 14 March 2006 of a discussion paper on media reform options, Meeting the Digital Challenge, Reforming Australia's media in the digital age (Discussion Paper), invites submissions on the package of reforms set out in the Discussion Paper by 18 April 2006. Partner Ian McGill and Special Counsel Page Henty explain

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Australian companies and corporate executives must stay updated on current governmental inquiries into possible reform of corporate law to enhance corporate social responsibility and 'triple bottom line' reporting. AAR Consultant, Professor Bryan Horrigan, says they should also consider making individual or industry submissions

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The Federal Government has been urged to reform the 'dividends out of profits' rule in the Corporations Act. Partner Jon Webster and Articled Clerk Daniel Allender report

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A recent NSW Supreme Court decision that three former officers of GIO Insurance Limited, a subsidiary of GIO Australia Holdings Limited, breached their duties during a takeover bid by AMP Insurance Holdings Pty Ltd for GIO Australia in late 1998 further clarifies the roles and responsibilities of company executives. Lawyer Christine Swan and Partner Jon Webster report

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Two recent Panel decisions shed some light on the use of cash-settled swaps in takeovers. Partner Cameron Price and Senior Associate Jonathon Mant report that there may be wider implications as even the validity of the Panel system is called into question

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A recent Federal Court decision that it may not be possible to assign or pass on a right to terminate a contract to a purchaser following a business acquisition will have significant commercial impact. Articled Clerk Erica Rundle and Partner Wendy Rae report

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The extent to which corporate officers and other individuals may be held personally liable is considered in two recently released Corporations and Markets Advisory Committee discussion papers. Senior Associate Katrina Bobeff and Lawyer Christine Swan explain

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We look at a variety of tax issues associated with mergers and acquisitions: roll-over relief for employee share schemes; new loss recoupment rules; tax rulings on scrip for scrip rollover relief; and the recent decision in the Dick Smith Electronics case

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Securing acceptances for a takeover, even if it is uncontested and recommended by target directors, can be a drawn-out process, particularly as institutional investors are often reluctant to accept a bid early. Partner Greg Bosmans examines various analogous methods of addressing this issue and their effectiveness in giving takeovers momentum

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The Takeovers Panel provided guidance on its view of 'association' during the recent bidding war for National Foods. Lawyer Elizabeth Bennett and Partner Jon Webster explain that the Panel's comments will provide clarity as to the extent of adequate disclosure required by a target's shareholders, and guidance for the situations in which companies will be considered 'associates' in a takeover context

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In recent weeks, a surge in M&A activity on the back of strong corporate earnings and a buoyant broader economy has led the ASX All Ordinaries Index to all-time highs

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A Takeovers Panel review has allowed the Emperor Mines Limited rights issue to proceed. Senior Associate Tom Story looks at the decision, which helps clarify the position of a major shareholder that is underwriting the capital raising of a company in financial difficulties

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The ACCC's new Guideline for Informal Merger Review is intended to make the informal merger clearance process more open and informed. Understanding and giving effect to the Guideline's requirements will be critical to gaining the ACCC's informal clearance for a merger in a timely manner. Senior Associate Emma Marsh and Lawyer Yvonne Schmaedeke report

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Partner Steve Clifford and Lawyer Wei-Ee Cheah outline the history of Village Roadshow's battle to reduce its share capital and consider the implications of the latest Takeovers Panel decision

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The Takeovers Panel announced its decision in the Australian Leisure & Hospitality Group Limited 03 proceedings on Friday, 22 October. Lawyer Andrew Edington outlines the details of the bidding war for ALH and examines the Panel's decision

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ASIC has recently taken a strict approach to failures to comply with the conditions of accounting relief commonly relied upon by corporate groups. Partner Greg Bosmans and Lawyer Kaelene McLennan report that ASIC's stance may mean that many corporate groups are unwittingly ineligible for the relief

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Partner Guy Foster and Senior Associate Kim Reid provide an overview of the High Court's decision in Rich v Australian Securities and Investments Commission and its consequences for the conduct of litigation with regulators

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Corporate governance continues to be a major issue on Australia's corporate reform agenda in 2004. Partner Richard Alcock, Senior Associate Carl Bicego and paralegal Andrew Daly report on the recent CLERP 9 developments

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In this edition, we look at the AMP demerger, the classification of optionholders under schemes of arrangements, the Takeovers Panel's recent draft guidance note on financing arrangements for takeovers, ASIC's policy proposal paper on 'associates' and CAMAC's final report on insider trading

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Partner Stuart McCulloch and Senior Associate Kim Reid consider whether communications between lawyers and investment bankers who act for the same client in a transaction are protected by legal professional privilege

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In this edition, we look at the CLERP 9 Exposure Draft Bill; the Takeovers Panel decision in Grand Hotels; a draft guidance note on trust schemes; the TVG bid for PowerTel; and AACo's application to injunct the Stanbroke sale

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The Federal Government's proposal to empower ASIC to issue 'on-the-spot' fines raises practical issues for listed entities. Partner Greg Bosmans and Lawyer James McConvill also report that the further CLERP 9 proposal to extend disclosure liability for individuals will create uncertainty for officers and advisers

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Partner John Cooper and Lawyer Krista Bowie review the civil penalties imposed on directors in the Water Wheel case, which clearly illustrates the importance of directors upholding their duties and the potential personal liabilities for not doing so

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The recently released draft CLERP 9 Bill sets out the Government's proposed legislative response on audit reform and corporate disclosure, as well as incorporating recommendations made by Justice Owen in the HIH Royal Commission Report. As Partner Richard Alcock and Senior Associate Carl Bicego explain, the amendments will impact on the design of executive remuneration policies and their disclosure to shareholders

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Promoting whistleblowing needs to be done carefully to avoid opening the doors to an institutionalised gossip session. Partner Professor Bob Baxt and Senior Associate Cathy Heeley outline how to implement an appropriate whistleblowing policy

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This edition of In the deal describes the issues considered by the Queensland Supreme Court in the first court hearing concerning the proposed M.I.M. scheme of arrangement. The court rejected a number of opposition arguments, concerning adequacy of disclosure, avoidance of Chapter 6, and monitoring of pre-meeting communications with shareholders

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Issues about director and executive remuneration have been raised again as a result of the recently passed Corporations Amendment (Repayment of Directors' Bonuses) Act 2003,as Partner Professor Bob Baxt and Lawyer Helen Horsington explain

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Partner Deborah Chew and Senior Associate Gerry Cawson from our Private Equity team consider some of the issues facing a director approached by a private equity investor in relation to a potential management buy-out

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The Report of the HIH Royal Commission was tabled in the Federal Parliament in April. Partner Richard Alcock and Senior Associate Carl Bicego explain that the report provides authoritative support for the one-size-does-NOT-fit-all policy foundation of the ASX Corporate Governance Council recommendations on principles of good corporate governance and best practice

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The ASX Corporate Governance Council is to be commended for creating a well-articulated and comprehensive corporate governance framework with its Corporate Governance Best Practice Recommendations. The ASX now faces the challenge of preserving flexibility in the system, as partner Richard Alcock explains

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Prescriptive laws may have been avoided but prescriptive disclosure has arrived with the release of the ASX Corporate Governance Council's Best Practice Recommendations on 31 March 2003. As John Cadell and Richard Alcock explain, listed companies should start considering these issues as soon as possible.

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The Takeovers Panel considered three applications in relation to Burns Philp's takeover bid for Goodman Fielder Limited. Partner Tim Bednall analyses the reasons for decision of the Takeovers Panel in response to each application

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Capital markets can be profoundly affected by the prospect of war and military action. Recent international events have significantly changed how issuers and underwriters need to approach the uncertainties associated with war and acts of terrorism. Partner Warwick Painter and Lawyer Mary-Jane Harvey examine the strategies that can be adopted now to cope with an increasingly uncertain future.

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Contrary to press commentary about Justice Austin's decision in the <i>ASIC v Rich </i>preliminary proceedings, the court did not hold that chairmen now have a duty to ensure that only financially competent people are appointed finance directors, that all statements to the ASX are accurate, and that a company takes reasonable steps to ensure that it maintains sufficient cash reserves to continue its existing operations. As AAR Partner Richard Alcock and Senior Associate Carl Bicego report, the court's substantive response on directors' duties is yet to be revealed.

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Senior Associates Gerry Cawson and Judith Taylor from our private equity team consider the new tax concessions relating to venture capital investments in Australia