ASIC Corporations (Minimum Bid Price) Instrument 2026/101

The technical core is a targeted variation of the Corporations Act minimum bid price rule, s621, implemented by treating Chapter 6 as modified in the ways described in s7. The instrument works through three conceptual mechanisms: an exception for exogenous falls in quoted security value tied to corporate actions by the target; preferential valuation and intra-group pricing rules that permit discounts for related recipients; and a bidder-controlled valuation window for quoted securities used as takeover consideration.

1. Exception for dividend/share-split related falls: The new subsection 621(3A) allows offers below the general minimum where the decrease in the value of the bid class results from either (i) the target declaring a cash dividend, or (ii) converting shares into a larger number under s254H. The market operator must change the basis of quotation to indicate that trading in that class no longer carries the entitlement to the dividend or to the larger number of shares, and that change must occur after the relevant purchase or agreement was made and on or before the date of the bid. If securities are quoted on multiple markets, the provision applies relative to the market operator that first changes the basis of quotation (see inserted subsection 621(3A) and its Note).

2. Intra-group/nominee exceptions: Inserted subsection 621(3B) permits a bidder to offer below the minimum to specified entities that are within the bidder’s wholly-owned corporate group, and to nominees or bare trustees for those bodies, subject to a precondition: if the offer is made to a body corporate or its nominee or bare trustee, the bidder must have first obtained the written consent of the body for it or its nominee or bare trustee to receive the offer, and that consent must acknowledge that the value of the consideration being offered is less than would otherwise be required by subsection (3). The wording makes consent a condition to lawfully making such an offer (inserted subsection 621(3B)).

3. Bidder-controlled valuation window for quoted securities: Inserted subsection 621(4A) allows the bidder to choose a time within five business days before the date of the bid at which to ascertain the value of any quoted securities included in the consideration. That valuation must use the volume weighted average market price, calculated during the two full trading days immediately before the chosen time. Critical timing constraints apply: the two-day trading period used for the VWAP must not start until at least five trading days have elapsed after the first day the bidder has sent a copy of its bidder’s statement and offer document to the target under item 3 of subsection 633(1) and to each approved financial market on which the target’s securities are quoted. The bidder’s statement (required by item 6 of s633(1)) must state the ascertained value and the valuation method, including the trading days used (inserted subsection 621(4A)).

Definitions: Inserted subsection 621(4B) defines approved financial market to include declared financial markets and approved foreign markets, and defines quoted security as a security in a quoted class. The instrument includes notes clarifying the meaning of declared financial market and the notional insertion of the approved foreign market definition via a 2017 instrument (inserted subsection 621(4B) and attendant notes).

Mechanically, these are carve-outs and procedural rules layered onto the statutory minimum price framework; they operate as conditions that must be satisfied to lawfully pay or offer less than the minimum consideration prescribed by subsection 621(3). The instrument leaves the remainder of Chapter 6 intact but applies those chapters as if the specified variations existed (s7 opening line).

Directly affected parties are bidders in takeover bids, target companies whose securities are in the bid class, persons within the bidder’s wholly-owned group, nominees and bare trustees for those bodies, operators of the approved financial markets on which the target’s securities are quoted, and recipients of bidder’s statements.

Bidders: The instrument changes bidders’ legal options. Bidders may propose consideration below the statutory minimum in specified, narrow situations: where quoted securities in the bid class have fallen in value due to a target-declared cash dividend or share consolidation into a larger number under s254H (see inserted subsection 621(3A)); where the offer is made to specified intra-group entities or their nominees or bare trustees and prior written consent has been obtained acknowledging the lower consideration (inserted subsection 621(3B)); and where the bidder offers quoted securities as consideration and values those quoted securities under the VWAP method within the five business day window permitted (inserted subsection 621(4A)). Each of these options introduces procedural steps and documentary requirements the bidder must satisfy before offering less than the statutory minimum.

Target companies: Targets that declare cash dividends, or use share conversion under s254H, may experience a reduction in the statutory protection that the minimum bid price ordinarily gives their shareholders. The instrument conditions any permitted reduction on a market operator changing the basis of quotation to signify the loss of entitlement, and on timing (subsection 621(3A)). Targets therefore may become deciding actors in the timing and signalling that enable a bidder to lawfully offer less than the minimum price.

Wholly-owned group members and nominees/bare trustees: The instrument identifies specific intra-group recipients who can lawfully receive consideration below the minimum. The recipients must give written consent acknowledging the lower value; that consent is a precondition to the bidder’s ability to lawfully make the offer (inserted subsection 621(3B)). Nominees and bare trustees acting for these bodies are included, but the requirement for prior written consent remains.

Market operators and approved financial markets: Market operators must process changes to the basis of quotation. The instrument ties the availability of the dividend/share-split exception to the market operator changing the basis of quotation after the relevant purchase or agreement and on or before the date of the bid (inserted subsection 621(3A)(b)(i)-(ii)). If multiple markets quote the bid class, the rule refers to whichever market operator first changes the basis of quotation, creating a potential race condition among market operators, and a consequential dependency on the market operator’s action to enable the bidder’s option.

Regulatory and disclosure recipients: The instrument requires that the bidder’s statement include the ascertained value and the valuation method where quoted securities are part of the consideration (inserted subsection 621(4A)(c)). The bidder must also send copies of the bidder’s statement and offer document to the target and to each approved financial market as required by item 3 of subsection 633(1), because the timing constraints for when the VWAP period may start are tied to those transmissions (inserted subsection 621(4A)(b)).

Indirectly affected parties include existing shareholders who are not members of the bidder’s group: shareholders may receive offers that are for less than the otherwise mandatory minimum under the Act in the limited circumstances described. The instrument does not create a general exemption from the minimum; it creates discrete exceptions that change how the statutory protection for shareholders operates in these facts.

The instrument changes existing duties and creates new procedural obligations by conditioning the availability of lower consideration on compliance with documentary and timing requirements. These duties and rights are embedded in the modified Chapter 6 language inserted by s7.

Bidder duties and rights

• Right to offer less than s621(3) minimum in specified situations. The bidder has a statutory right to offer consideration below the minimum if the conditions in inserted subsections 621(3A) or 621(3B) are satisfied, or if the valuation rules in 621(4A) for quoted securities are complied with (see s7(b)-(c)).

• Duty to obtain written consent where offering to intra-group bodies. If the offer is made to a body referred to in 621(3B)(a) or (b), or to its nominee or bare trustee, the bidder must first obtain the written consent of that body for it or its nominee or bare trustee to receive the offer, and that consent must acknowledge the lower value of the consideration (inserted subsection 621(3B)). The requirement is a precondition to lawfully making such an offer.

• Duty to observe market timing and proof of valuation. For quoted securities included in consideration, the bidder must choose a valuation time within five business days before the bid date and calculate the VWAP for the two full trading days before that time. The two-day VWAP period must not start until at least five trading days have elapsed after the first day the bidder sent its bidder’s statement and offer document to the target and each approved financial market (inserted subsection 621(4A)(a)-(b)). The bidder must include the ascertained value and valuation method in the bidder’s statement as required by item 6 of s633(1) (inserted subsection 621(4A)(c)).

• Duty to send required documents to target and markets. The starting point for the VWAP timing depends on the bidder having sent its bidder’s statement and offer document under item 3 of s633(1) to the target and each approved financial market; this creates a specific transmission obligation that affects when valuation can legitimately commence (inserted subsection 621(4A)(b)).

Target duties and rights

• Market-based triggering event is partly controlled by the target’s corporate actions. If the target declares a cash dividend or converts shares to a larger number under s254H, the bidder may be able to lawfully offer less than the minimum if the market operator changes the basis of quotation to signal entitlement is lost. Targets therefore imperil or enable the fall-in-value exception by choosing such corporate actions; this implicates target directors’ choices but does not impose new statutory duties on targets in the instrument itself.

Market operator duties and rights

• Duty to change basis of quotation. The availability of the dividend/share-split exception requires that the market operator change the basis of quotation to signify that trading in the class no longer carries entitlements. The instrument ties the exception to that market operator action and, where securities are quoted on multiple markets, to whichever operator first changes the basis of quotation (inserted subsection 621(3A)(b) and its Note).

Nominees and bare trustees

• Right to receive below-minimum offers only with prior written consent. A nominee or bare trustee may receive an offer that is less than the statutory minimum provided the relevant written consent condition is satisfied (inserted subsection 621(3B)).

Regulatory and disclosure duties

• Bidder’s statement disclosure obligations. The bidder must include the ascertained value and the valuation method in the bidder’s statement, as required by item 6 of s633(1), which is incorporated by reference in inserted subsection 621(4A)(c).

Enforcement and implied duties

• The instrument does not itself create new penalties or separate enforcement powers; rather, it modifies how Chapter 6 is to apply (s7 opening line). In practice, compliance will be judged against the modified statutory text. Failure to follow the procedural prerequisites the instrument inserts (for example failing to obtain the required written consent, failing to send bidder documents to the target or markets, or failing to include the required valuation disclosure) would remove the legal basis for offering less than the minimum and may expose the bidder to whatever consequences the Corporations Act attaches to non-compliance with Chapter 6. The instrument therefore imposes compliance-critical duties that determine whether a below-minimum offer is permitted.

The instrument itself contains no new penalty regime. It operates by treating Chapter 6 as if modified, meaning enforcement and penalties remain those provided by the Corporations Act for contraventions of Chapter 6 requirements (see s7 opening sentence). The instrument inserts conditions and documentary prerequisites that determine whether the statutory minimum is lawfully varied in specific circumstances; non-compliance with those inserted conditions would remove the statutory basis for any lower offer and leave the bidder potentially exposed to the usual legal consequences for breach of Chapter 6.

Key enforcement-relevant features in the instrument

• Procedural preconditions as compliance triggers. Subsection 621(3B) requires written consent from specified bodies, acknowledging the lower consideration, before a bidder may offer less. Subsection 621(4A) requires specific VWAP calculation methods, a timing restriction tied to sending bidder documents to the target and market operators, and an inclusion of valuation detail in the bidder’s statement. These provisions convert otherwise optional business choices into compliance gates. A failure to meet them would logically mean the bidder could not rely on the exception or valuation rule to justify offering below the statutory minimum.

• Reliance on market operator actions. The dividend/share-split exception in subsection 621(3A) depends on the market operator changing the basis of quotation to signify loss of entitlement. That creates a factual predicate that must be demonstrated for the exception to apply. If a bidder claims the subsection applies but the market operator did not change the basis of quotation within the required timeframe, enforcement authorities or interested parties could challenge the legal validity of the lower offer.

• No novel sanctions within the instrument. The instrument does not insert penalty clauses. Existing enforcement remedies in the Corporations Act for breach of takeover bid rules remain the mechanism for response, whether civil remedies, civil penalties, or other regulatory actions as available under the Act. The instrument’s text does not alter those remedies, and it does not itself state them.

• Administrative record and disclosure requirements support enforcement. Because the bidder must include the valuation result and methodology in the bidder’s statement (inserted subsection 621(4A)(c)) and must obtain and retain written consents under subsection 621(3B), there will be documentary evidence available to regulators, target boards and shareholders, and to courts, for assessing compliance. These disclosure obligations therefore aid detection and adjudication of compliance failures.

Practical enforcement implications

• The enforcement question will typically be whether the prerequisites the instrument prescribes have been satisfied at the relevant times. The instrument makes timing a central compliance element; enforcement will turn on transactional records showing when the bidder sent its documents to the target and markets, the market operator’s public or private change to basis of quotation, the written consents from intra-group recipients or nominees, and the bidder’s statement content. The instrument does not define processes for dispute resolution between market operators, bidders and targets where timing or market signals are contested; those matters would be resolved under existing Corporations Act mechanisms or by market operator rules.

• Temporary nature of the deviations. Because the instrument self-repeals on 1 April 2031 (s8), any enforcement attention will be constrained to bids taking place while the instrument is in force. After repeal, the pre-2026 statutory baseline would apply unless replaced or amended by further instruments or legislation.

The instrument explicitly functions by altering Chapter 6 of the Corporations Act 2001, and it references existing definitions and instruments within the Corporations Act framework. It does not purport to create standalone regulatory obligations outside the Corporations Act; rather, it modifies how the Act’s takeover rules operate. The text contains cross-references and interpretative notes that connect the instrument to related sections and prior instruments.

Interaction points contained in the instrument

• Modification of Chapter 6. The instrument states that Chapter 6 applies to all persons as if specified provisions were modified or varied (s7 opening line). Therefore, any legal analysis of takeover transactions while the instrument is in force must view Chapter 6 through the lens of the inserted subsections.

• Connection to s621 of the Corporations Act. The instrument directly amends the operation of subsection 621(3) and subsection 621(4), by inserting new subsections 621(3A), 621(3B) and 621(4A)-(4B) (s7(b)-(c)). This produces specific exceptions and valuation rules that interact with the general minimum bid price rule.

• Interaction with s254H. The instrument permits lower offers where the decrease resulted from the target converting its shares into a larger number under section 254H (inserted subsection 621(3A)(a)(ii)). That creates a direct substantive nexus between the statutory rules governing reductions in nominal share units and takeover valuation protection.

• Interaction with market operation rules and definitions. Inserted subsection 621(3A)(b) makes the market operator’s change to the basis of quotation a legal trigger. Inserted subsection 621(4B) defines approved financial market to include a declared financial market and an approved foreign market, and the instrument includes notes referencing section 9D and section 1705F concerning declared financial markets, and a notional insertion by another ASIC instrument regarding approved foreign markets. These references link the instrument to the broader regulatory architecture that determines which markets are recognised and how they are treated under the Corporations Act.

• Interaction with the disclosure regime in s633(1). The valuation timing rule in inserted subsection 621(4A)(b) ties the start of the two-day VWAP calculation period to the elapsed time after the bidder has sent its bidder’s statement and offer document under item 3 of subsection 633(1) to the target and each approved financial market. Inserted subsection 621(4A)(c) mandates that the bidder’s statement required to be sent by item 6 of subsection 633(1) include valuation details. The instrument therefore integrates with the bidder’s statement and offer document transmission and content requirements under s633(1).

• Overlap where securities are quoted on multiple markets. The instrument anticipates multi-market quotation and contains a specific rule: if bid class securities are quoted on more than one approved financial market, the market operator that first changes the basis of quotation determines the application of subsection 621(3A)(b). That creates a multi-jurisdictional coordination effect between market operators.

What the instrument does not change

• The instrument does not change the rest of Chapter 6 except as expressly varied by s7. It does not substitute for or repeal other takeover protections not referenced. It also does not itself modify enforcement powers or penalties in the Corporations Act; rather, it modifies substantive and procedural aspects of minimum bid price calculations and related disclosure paths.

Practical compliance interactions

• Because the instrument relies on market operator actions, it presupposes interplay between a bidder’s statutory compliance and market operator procedures. Market operator rules and operational capacities will affect whether and when the market operator can change a basis of quotation, and those practical constraints will influence whether the conditions in 621(3A) can be satisfied. The instrument leaves the mechanics of how market operators implement basis of quotation changes to their rules and processes; it does not specify those processes.

• The instrument’s references to declared financial market, approved foreign market, and associated definitions require bidders and advisers to confirm which markets qualify, and whether any notional or transitional arrangements continue to apply, in order to determine the applicability of the valuation and timing rules.

This instrument is self-contained and concise. Key features of its amendment history are contained within the instrument itself.

• Making and authority. The instrument is made under subsection 655A(1) of the Corporations Act 2001 (s3). Amanda Zeller, an ASIC delegate, signed the instrument on 23 March 2026; the instrument commences on the later of its registration and 1 April 2026 (s2).

• Substantive insertions. Section 7 implements the operative changes by specifying that Chapter 6 applies as if certain paragraphs and subsections were inserted. The instrument inserts:

  • A new paragraph after 619(2)(d), labelled (da), to permit differences in offers attributable to lower consideration for persons mentioned in subsection 621(3B).

  • A new subsection 621(3A) that permits consideration below the minimum where quoted securities have decreased in value due to a target-declared cash dividend or share conversion under s254H, subject to market operator timing conditions.

  • A new subsection 621(3B) that permits lower consideration to particular intra-group bodies and their nominees/bare trustees, conditioned on prior written consent acknowledging the lower value.

  • New subsections 621(4A) and 621(4B) that set out valuation rules for quoted securities used as takeover consideration, and definitions of approved financial market and quoted security for the purposes of these subsections.

• Transitional and definitional notes. The instrument includes notes referencing section 9D for declared financial market, and section 1705F for transitional treatment of formerly prescribed financial markets until declarations are made. The instrument also notes that the definition of approved foreign market is notionally inserted by ASIC Corporations (Definition of Approved Foreign Market) Instrument 2017/669. Those notes form part of the instrument’s interpretative guidance.

• Repeal of previous instrument. Schedule 1 repeals ASIC Corporations (Minimum Bid Price) Instrument 2015/1068 in its entirety. The repeal is effective as of the instrument’s commencement (Schedule 1).

• Sunset. The instrument is repealed at the start of 1 April 2031 (s8), creating a five-year operational window from its commencement date. The instrument therefore represents a time-limited modification to how minimum bid price rules operate under the Corporations Act.

There are no further amending instruments shown in the text provided. The instrument presents its amendments as insertions into the operation of Chapter 6 rather than as standalone permanent changes to the Act.

The instrument text contains no litigation history. It does not reference any judicial decisions, nor does it summarise litigation arising from its predecessors. The instrument repeals the earlier ASIC Corporations (Minimum Bid Price) Instrument 2015/1068 (Schedule 1), but it does not record any cases, determinations or disputes concerning that prior instrument.

Because the instrument operates by modifying Chapter 6 of the Corporations Act as though particular subsections were inserted, any legal challenges arising from the operation of those inserts,such as disputes over whether the market operator changed the basis of quotation in time, whether the VWAP calculation complied with the inserted subsections, or whether the required written consents were obtained,would be addressed within the ordinary Courts and tribunal mechanisms that apply to the Corporations Act and to takeover regulation. The instrument itself does not set out adjudicative processes or past judicial interpretations.

Practitioners should note that the instrument introduces factual and temporal predicates that could be contested in litigation. For example, disputes could arise over:

• Whether the decrease in value resulted from a cash dividend declaration or a s254H share conversion, and whether the market operator’s change to the basis of quotation occurred within the required timeframe (inserted subsection 621(3A)).

• Whether a recipient’s written consent satisfies the statutory requirement and whether it unambiguously acknowledges that the value of the consideration is less than would otherwise be required (inserted subsection 621(3B)).

• Whether the VWAP calculation methodology and the start date for the valuation period complied with the requirement that the period not start until at least five trading days after the bidder sent its bidder’s statement and offer document to the target and each approved financial market (inserted subsection 621(4A)(a)-(b)).

Any litigation arising would therefore focus on the statutory facts and the documentary trail the instrument requires. The instrument itself contains no report of past litigation nor does it identify any existing judicial authority interpreting equivalent provisions.

The instrument creates several practical and timing-sensitive traps that advisers must manage carefully. These are matters the instrument makes dispositive by conditioning the availability of below-minimum offers on documentary acts and market operator signalling.

1. Timing of market operator change as a legal trigger. The dividend/share-split exception in subsection 621(3A) requires that the date on which the market operator changes the basis of quotation to signify that trading no longer carries the entitlement is after the date of the relevant purchase or agreement and on or before the date of the bid. The instrument expressly states that where securities are quoted on more than one approved financial market, the paragraph applies in relation to whichever market operator first changes the basis of quotation. That creates a race condition and a dependency on a market operator’s action to enable the bidder’s option. If the market operator does not change the basis of quotation in the required window, the exception will not be available regardless of the target’s corporate action.

2. Narrow legal causes of fall in value. The inserted subsection 621(3A) limits permitted decreases in value to two specific causes: (a) a cash dividend declared by the target; and (b) conversion of shares into a larger number under s254H. Market falls for other reasons,market volatility, adverse announcements, changes in investor sentiment,are not captured. The legal entitlement to offer less is therefore constrained to particular corporate actions, not general market movements.

3. Written consent requirement is a precondition, not a formality. For intra-group offers under subsection 621(3B), the bidder must first obtain written consent from the body corporate for it or its nominee or bare trustee to receive the offer, and the consent must acknowledge that the value of the consideration is less than would otherwise be required. That consent is a statutory precondition; without it the bidder cannot lawfully make the lower offer to those recipients.

4. Valuation window constraints and sequencing. Where quoted securities form part of consideration, inserted subsection 621(4A) allows the bidder to choose a valuation time within five business days before the bid date, but the VWAP period used to calculate value must be the two full trading days before that chosen time and must not start until at least five trading days have elapsed after the first day the bidder sent its bidder’s statement and offer document to the target and each approved financial market under item 3 of s633(1). This sequencing requirement means a bidder cannot rush to value quoted consideration until the mandatory waiting period has elapsed from the initial document dispatch. Failing to observe the five trading day delay, or miscomputing trading days versus business days, will invalidate reliance on the valuation method the instrument permits.

5. Mandatory disclosure in the bidder’s statement. The bidder must disclose the ascertained value and the valuation method in its bidder’s statement as required by item 6 of s633(1) (inserted subsection 621(4A)(c)). Omitting required valuation information from the bidder’s statement risks invalidating the bidder’s reliance on the valuation rule and exposes the bidder to the standard consequences for deficient bidder statements under Chapter 6.

6. Definition and transitional complexity of approved financial markets. The instrument’s definition of approved financial market references declared financial markets and approved foreign markets, and includes a note that declared financial market is defined in s9D and that, until a first declaration is made, markets previously prescribed by former regulation 1.0.02A are taken to be declared under s1705F. The notional insertion of the approved foreign market definition by a 2017 instrument is also noted. Practitioners must verify which markets qualify as declared or approved foreign markets at the relevant time; incorrect assumptions about market status will affect both the VWAP timing start point and the treatment under subsection 621(3A).

7. Interaction with multiple markets. The instrument chooses the market operator that first changes the basis of quotation to determine application of subsection 621(3A)(b) where a security is quoted on multiple markets. This can produce disputes about which operator acted first, whether the basis of quotation change was effective, and the legal consequences for the timing of the bid. Bidders and targets should preserve timestamps and public announcements concerning basis-of-quotation changes.

8. Temporary nature may affect strategic timing. The instrument is due to be repealed on 1 April 2031 (s8). Parties considering structuring takeover offers around the instrument’s exceptions must account for the fact the relief is time-limited and may not be extended. This temporal constraint affects deal planning and may create incentives to accelerate bids into the instrument’s life.

9. No substitute for full shareholder protections. The instrument does not remove other Chapter 6 protections or change the Act except as expressly modified. Bidders must still satisfy all other statutory obligations and cannot rely on the instrument to bypass unrelated takeover rules.

10. Documentation and evidentiary burden falls on bidders. Because the instrument conditions relief on documentary acts and market operator events, bidders carry the burden of demonstrating compliance through records: written consents, copies of bidder’s statement transmission to target and markets with dates, calculation spreadsheets for VWAP showing the two full trading days, and public or private evidence of market operator basis-of-quotation changes. Poor record-keeping will be costly.

The instrument imposes discrete preconditions and procedural requirements. Compliance is a matter of sequencing, documentation, and corroborating market operator actions. The following practical checklist sets out concrete steps, with cross-references to the statutory inserts in s7 that implement the requirements.

Preliminary assessment

1. Determine whether the bid class securities are quoted securities. The special valuation and dividend/share-split exceptions apply only to quoted securities, as defined in the inserted subsection 621(4B). Confirm whether the class of securities proposed to be acquired is quoted on an approved financial market.

2. Identify whether any of the specific legal events have occurred that would support a lower offer. Ask whether the decrease in value is because the target declared a cash dividend or converted shares into a larger number under s254H, for the purposes of subsection 621(3A).

Documenting and using the dividend/share-split exception (subsection 621(3A))

3. If relying on subsection 621(3A), establish a contemporaneous record of the relevant purchase or agreement date. The market operator’s basis-of-quotation change must be after the date the relevant purchase or agreement was made and on or before the bid date. Preserve the date of any pre-bid purchases or agreements.

4. Track and verify the market operator’s change to the basis of quotation. Obtain formal evidence from the market operator that its basis of quotation was changed, including timestamps and the content of any public notices. Where the security is quoted on more than one market, identify which market operator first made the change; the instrument applies the rule relative to the operator that first changes the basis of quotation.

Documenting and using the intra-group exception (subsection 621(3B))

5. Obtain written consent in advance. Before making an offer that would be below the minimum to any body in subsections 621(3B)(a) or (b) or to its nominee or bare trustee, obtain the written consent of that body for it or its nominee or bare trustee to receive the offer. That consent must acknowledge explicitly that the consideration being offered is less than would otherwise be required by subsection 621(3). Keep an original signed consent and evidence of its date.

6. Treat consent as a strict precondition. Do not proceed with an offer to the intra-group entity or its nominee until you have the written consent in place. The instrument’s language makes this a statutory precondition; the absence of consent eliminates the legal basis for the lower offer.

Valuation of quoted securities used as consideration (subsection 621(4A))

7. Run the sequencing clock. If the bidder intends to include quoted securities in the offer consideration and to value them under the permitted VWAP rule, first send a copy of the bidder’s statement and offer document to the target under item 3 of subsection 633(1), and to each approved financial market on which the target’s securities are quoted. Record the exact date and method of dispatch.

8. Wait the required five trading days for the VWAP start rule. The two full trading days used to calculate the VWAP must not start until at least five trading days have elapsed after the first day that the bidder has sent the bidder’s statement and offer document to the target and each approved financial market (inserted subsection 621(4A)(b)). Ensure that your valuation schedule accounts for trading days specific to the market(s) concerned.

9. Choose a valuation time within five business days before the bid date. The bidder may choose the valuation time within the five business days before the date of the bid. Confirm whether ‘business days’ and ‘trading days’ differ for the market(s) in question and schedule accordingly.

10. Calculate the VWAP over the two full trading days immediately before the chosen time. Use the standard volume weighted average market price calculation over the two full trading days that immediately precede your chosen valuation time. Maintain working papers and calculation files that show the trading days used and the VWAP computation.

11. Include valuation details in the bidder’s statement. The bidder’s statement required to be sent by item 6 of subsection 633(1) must include: the ascertained value of the quoted securities, and details of the valuation method required by subsection 621(4A)(a), including the trading days used. Ensure the bidder’s statement contains the full valuation disclosure before sending under item 6 obligations.

Transmission and record-keeping

12. Keep contemporaneous, timestamped evidence of all communications with market operators and the target. Because the instrument ties legal availability to the timing of transmissions and market operator actions, preserve emails, courier receipts, exchange confirmations, and published market notices.

13. Preserve copies of all written consents. For intra-group offers, keep the original signed consent and any related communications that could bear on the scope of what was consented to.

14. Maintain audit trails for VWAP calculations. Store the data feeds, trade-level data, calculations and outputs used to derive the VWAP, including a clear record of which trading days were used and that those trading days satisfied the five trading day delay requirement.

Cross-border and market status checks

15. Confirm approved financial market status. Use the definitions and transitional notes in the instrument to establish which markets count as declared financial markets or approved foreign markets at the relevant time. If the market status is ambiguous, obtain written confirmation from market operators or from ASIC where available.

16. Account for securities quoted on multiple markets. If the target’s securities are quoted on more than one approved financial market, prepare for potential coordination issues and collect evidence as to which market operator first changed the basis of quotation in any dividend/share-split scenario.

Legal and governance controls

17. Board approvals and adviser confirmations. Ensure that the bidder’s board resolutions, adviser opinions and internal sign-offs reflect the reliance on the instrument and its prerequisites. Document legal advice regarding why the conditions are satisfied.

18. Contingency planning. Prepare alternative offer mechanics in case the requisite market operator action does not occur within the required window or in case consents are not obtained. Do not assume the instrument supplies a backstop to business failures in timing.

19. Sunset awareness. Plan for the instrument’s repeal on 1 April 2031. If a transaction spans the instrument’s repeal date, seek advice on whether the deal needs to be restructured or accelerated to fall within the instrument’s life.

20. Compliance certification. Consider including a compliance certification annex in the bidder’s board minute and adviser confirmations, certifying that the documentary and timing conditions required by the instrument have been met and are supported by the records retained.

Following this checklist and preserving a complete documentary trail will be necessary to rely on the instrument’s exceptions. Because the instrument does not modify enforcement mechanisms, prosecution or civil remedies for non-compliance will be pursued under the Corporations Act framework that remains applicable.