Companies (Acquisition of Shares) Act 1980 (Cth)
COMPANIES (ACQUISITION OF SHARES) ACT 1980
- Reprinted as at 31 October 1987 (#DATE 31:10:1987)
- Reprinted as at 31 October 1987 (#DATE 31:10:1987)
*1* The Companies (Acquisition of Shares) Act 1980 as shown in this reprint comprises Act No. 64, 1980 amended as indicated in the Tables below. Table of Acts ------------------------------------------------------------------------------ -- Application, saving or Number Date Date of transitional Act and year of Assent commencement provisions ------------------------------------------------------------------------------ -- Companies (Acquisition 64, 1980 28 May 1980 1 July 1981 (see of Shares) Act 1980 Gazette 1981, No. S118, p. 1) Companies (Acquisition 2, 1981 5 Mar 1981 1 July 1981 (see - of Shares) Amendment Act s. 2 and Gazette 1981 1981 No. S118, p. 1) Companies (Acquisition 94, 1981 18 June Part II (ss. - of Shares) Amendment Act 1981 3-9): 1 Oct 1981 (No. 2) 1981 (see Gazette 1981, No. S191, p. 1) Part III (ss. 10 and 11): 1 Oct 1983 (see Gazette 1983, No. S215, p. 1) Part IV (ss. 12-22): 1 July 1982 (see s. 2(3) and Gazette 1982, No. S124, p. 1) Remainder: Royal Assent Companies and Securities 153, 1981 26 Oct 1981 Part III (ss. 5-7): - Legislation 1 Mar 1982 (see (Miscellaneous Gazette 1982, No. Amendments) Act 1981 S36, p. 1)(a) Statue Law 26, 1982 7 May 1982 Part XVI: (ss. 129- - (Miscellaneous 133): 4 June 1982 (b) Amendments) Act (No. 1) 1982 Companies and Securities 108, 1983 8 Dec 1983 Ss. 1 and 2: Royal - Legislation Assent (Miscellaneous Remainder: 1 Jan Amendments) Act 1983 1984 (see Gazette 1983, No. S324, p. 1) Companies and Securities 192, 1985 16 Dec 1985 Ss. 3-28: 31 Mar - Legislation 1986 (see Gazette (Miscellaneous 1986, No. S120, p. 1) Amendments (c) Act 1985 Companies and Securities 68, 1986 24 Jne 1986 Part III (ss. - Legislation Amendment 13-15): 1 Jan 1987 Act 1986 (see Gazette 1986, No. S653, p. 1) Remainder: Royal Assent Companies and Securities 74, 1986 24 June 1 July 1986 (see - Legislation Amendment 1986 s. 2 and Gazette (Futures Industry) Act 1986, No. S306, p. 1) 1986 Australian Stock 6, 1987 13 Mar 1987 Part I (ss. 1 and - Exchange and National 2): Royal Assent Guarantee Fund Act 1987 Remainder: 1 Apr 1987 (see Gazette 1987, No. S57, p. 1) ------------------------------------------------------------------------------ -- (a) The Companies (Acquisition of Shares) Act 1980 was amended by Part III (sections 5-7) only of the Companies and Securities Legislation (Miscellaneous Amendments) Act 1981, subsection 2 (2) of which provides as follows: "(2) Parts II, III, IV and VI shall come into operation on such date as is, or on such respective dates as are, fixed by Proclamation." (b) The Companies (Acquisition of Shares) Act 1980 was amended by Part XVI (sections 129-133) only of the Statute Law (Miscellaneous Amendments) Act (No. 1) 1982, sub-section 2 (12) of which provides as follows: "(12) The remaining provisions of this Act shall come into operation on the twenty-eighth day after the day on which this Act receives the Royal Assent." (c) The Companies (Acquisition of Shares) Act 1980 was amended by sections 3-28 only of the Companies and Securities Legislation (Miscellaneous Amendments) Act 1985, sub-sections 2 (1) and (3)-(6) of which provide as follows: "(1) Subject to this section, the provisions of this Act shall come into operation on such day as is, or on such respective days as are, fixed by Proclamation. "(3) Sections 7, 9, 11 to 17 (inclusive), 21 and 22 shall come into operation on a day to be fixed by Proclamation. "(4) Section 24 and sub-section 25 (1) shall come into operation on a day to be fixed by Proclamation, not being a day that is earlier than the day on which sub-section 25 (2) comes into operation. "(5) Sub-section 25 (2) and sections 26, 127, 128, 198 and 199 shall come into operation on a day to be fixed by Proclamation. "(6) Sections 27 and 69 shall come into operation on a day to be fixed by Proclamation." Table of Amendments ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted ------------------------------------------------------------------------------ -- Provision affected How affected ------------------------------------------------------------------------------ -- S. 5 . . . . . . . . . . . rs. No. 94, 1981 S. 6 . . . . . . . . . . . am. No. 94, 1981; No. 192, 1985; No. 6, 1987 S. 7 . . . . . . . . . . . am. No. 94, 1981; No. 26, 1982; No. 192, 1985 S. 8 . . . . . . . . . . . am. No. 94, 1981; No. 108, 1983; No. 192, 1985; No. 68, 1986; No. 6, 1987 S. 8A . . . . . . . . . . . ad. No. 192, 1985 S. 9 . . . . . . . . . . . am. No. 94, 1981; No. 192, 1985 S. 11 . . . . . . . . . . . am. No. 2, 1981 S. 12 . . . . . . . . . . . am. Nos. 2 and 94, 1981 S. 13 . . . . . . . . . . . am. No. 192, 1985; No. 68, 1986 S. 14 . . . . . . . . . . . am. No. 2, 1981; No. 192, 1985 S. 15 . . . . . . . . . . . am. No. 192, 1985 S. 16 . . . . . . . . . . . am. Nos. 2 and 94, 1981; No. 108, 1983; No. 192, 1985; No. 68, 1986 S. 17 . . . . . . . . . . . am. Nos. 2 and 94, 1981; No. 192, 1985; No. 68, 1986; No. 6, 1987 S. 18 . . . . . . . . . . . am. No. 94, 1981; No. 192, 1985 S. 20 . . . . . . . . . . . am. No. 94, 1981 S. 21 . . . . . . . . . . . rs. No. 192, 1985 S. 22 . . . . . . . . . . . am. No. 2, 1981; No. 108, 1983; No. 192, 1985 S. 23 . . . . . . . . . . . am. No. 2, 1981; No. 108, 1983 S. 24 . . . . . . . . . . . am. No. 192, 1985 S. 25 . . . . . . . . . . . rs. No. 68, 1986 Ss. 25A - 25C . . . . . . . ad. No. 68, 1986 S. 26 . . . . . . . . . . . am. No. 192, 1985 rep. No. 68, 1986 S. 27 . . . . . . . . . . . rs. No. 2, 1981 am. No. 192, 1985 S. 28 . . . . . . . . . . . am. No. 192, 1985; No. 6, 1987 S. 29 . . . . . . . . . . . rep. No. 192, 1985 S. 31 . . . . . . . . . . . am. No. 94, 1981 Ss. 31A, 31B . . . . . . . ad. No. 68, 1986 S. 32 . . . . . . . . . . . am. No. 192, 1985 Ss. 33, 34 . . . . . . . . am. No. 6, 1987 S. 37 . . . . . . . . . . . am. No. 2, 1981 S. 38 . . . . . . . . . . . am. Nos. 2 and 94, 1981 S. 39 . . . . . . . . . . . am. No. 94, 1981; No. 192, 1985 S. 39A . . . . . . . . . . ad. No. 192, 1985 S. 39B . . . . . . . . . . ad. No. 68, 1986 S. 42 am. No. 2, 1981; No. 108, 1983; No. 192, 1985; No. 68, 1986 Ss. 43, 44 . . . . . . . . am. No. 108, 1983 Ss. 45 - 47 . . . . . . . . am. No. 108, 1983; No. 192, 1985 S. 48 . . . . . . . . . . . am. No. 2, 1981 S. 49 . . . . . . . . . . . am. No. 94, 1981; No. 26, 1982; No. 108, 1983; No. 192, 1985 S. 49A . . . . . . . . . . ad. No. 2, 1981 rep. No. 94, 1981 S. 52 . . . . . . . . . . . rs. No. 192, 1985 S. 53 . . . . . . . . . . . am. No. 94, 1981; No. 192, 1985; No. 68, 1986 S. 54 . . . . . . . . . . . am. No. 2, 1981 rep. No. 192, 1985 S. 56 . . . . . . . . . . . am. No. 192, 1985; No. 74, 1986 Ss. 57, 58 . . . . . . . . am. No. 108, 1983 S. 60 . . . . . . . . . . . am. Nos. 2 and 153, 1981; No. 26, 1982 rs. No. 108, 1983 S. 60A . . . . . . . . . . ad. No. 26, 1982 am. No. 108, 1983 S. 62 . . . . . . . . . . . am. No. 192, 1985 Ss. 63, 64 . . . . . . . . rep. No. 192, 1985 Schedule . . . . . . . . . am. Nos. 2, 94 and 153, 1981; No. 108, 1983; No. 192, 1985 ------------------------------------------------------------------------------ --
COMPANIES (ACQUISITION OF SHARES) ACT 1980 - TABLE OF PROVISIONS TABLE
TABLE OF PROVISIONS PART I - PRELIMINARY
Section
1. Short title
2. Commencement
3. Object
4. Repeal
5. Incorporation
6. Definitions
7. Acquistion and disposal of, and entitlement to, shares, and associated persons
8. Other interpretative and evidentiary provisions
8A. Approved manner of dispatch
9. Relevant interests in shares
10. Persons to whom Act applies
PART II - CONTROL OF ACQUISTION OF SHARES
11. Restriction on acquisition of shares
12. Acquisitions to which section 11 does not apply
13. Acquisition of shares permitted in certain circumstances
14. Pari passu allotments
15. Acquisition of not more than 3% of voting shares permitted in each 6 months
16. Take-over offers
17. Take-over announcements
PART III - PROVISIONS RELATING TO TAKE-OVER OFFERS
18. Registration of Part A statements and offers
19. Extension of time for paying consideration
20. Take-over offers not to be subject to certain terms or conditions
21. Withdrawal of offers
22. Part B statement
23. Offeror connected with target company
24. Notice of offers to be served
25. Acceptance of take-over offers by third parties
25A. Acceptance of take-over offers by trustees, nominees, & c.
25B. Avoidance of odd lots where take-over offer relates to proportion of offeree's shares
25C. Offeror not entitled to bid for balance where take-over offer relates to proportion of offeree's shares
27. Variation of take-over offers
28. Declaration where take-over offers are conditional
30. Take-over offers subject to conditions
31. Effect of acquiring shares otherwise than under take-over scheme
31A. Constituent documents of a company may require a resolution approving certain acquisitions of shares in the company
31B. Provisions relating to the inclusion, effect and renewal of take-over approval provisions
PART IV - PROVISIONS RELATING TO TAKE-OVER ANNOUNCEMENTS
32. Part D statement
33. Withdrawal of on-market offers
34. Suspension of acceptance of offers made by virtue of take-over announcement
PART V - PROVISIONS RELATING TO BOTH TAKE-OVER OFFERS AND TAKE-OVER ANNOUNCEMENTS
35. Restriction on disposal of shares by offeror or on-market offeror
36. Obligations of target company to provide information
37. Forecasts of profits
38. Statements on asset valuations
39. Notification of acquisitions and disposals of shares
39A. Notification of offeror's entitlement
39B. Persons selling shares before the making of take-over offers or of a take-over announcement not to be given additional benefits in certain cases
40. Offerees or on-market offerees not to be given benefits except under take-over scheme or take-over announcement
41. Expenses of directors of target company
42. Provisions relating to dissenting shareholders
43. Rights of remaining shareholders and holders of options and notes
PART VI - MISCELLANEOUS
44. Liability for mis-statements
45. Orders where prohibited acquisitions take place
46. Orders where offers not dispatched pursuant to Part A statement
47. Orders to protect interests of certain persons
48. Court may excuse contravention or non-compliance due to inadvertence, & c.
49. Miscellaneous provisions relating to orders
50. Unfair or unconscionable agreements, payments or benefits
51. Recording of resolutions
52. Announcements of proposed take-over bids
53. Offences
55. Officers in default
56. Service of documents and publication of notices
57. Power to exempt from compliance with Act
58. Power to declare that Act applies as if modified
59. Commission to take account of certain matters
60. Power of Commission to declare acquisition of shares or other conduct to be unacceptable
60A. Power of Commission to make certain orders
61. Power of Commission to intervene in proceedings
62. Regulations
SCHEDULE
PART A - STATEMENT TO BE FURNISHED BY OFFEROR
PART B - STATEMENT TO BE FURNISHED BY TARGET COMPANY TO WHICH TAKE-OVER SCHEME RELATES
PART C - STATEMENT TO BE FURNISHED BY ON-MARKET OFFEROR
PART D - STATEMENT TO BE FURNISHED BY TARGET COMPANY TO WHICH TAKE-OVER ANNOUNCEMENT RELATES
COMPANIES (ACQUISITION OF SHARES) ACT 1980 - LONG TITLE SECT
An Act relating to the acquisition of shares in companies incorporated in the Australian Capital Territory and matters connected therewith
COMPANIES (ACQUISITION OF SHARES) ACT 1980 - PART I
PART I - PRELIMINARY
COMPANIES (ACQUISITION OF SHARES) ACT 1980 - SECT 1
Short titleSECT
1. This Act may be cited as the Companies (Acquisition of Shares) Act 1980.*1* SEE NOTES TO FIRST ARTICLE OF THIS CHAPTER .
COMPANIES (ACQUISITION OF SHARES) ACT 1980 - SECT 2
CommencementSECT
2. This Act shall come into operation on a date to be fixed by Proclamation.*1* SEE NOTES TO FIRST ARTICLE OF THIS CHAPTER .
COMPANIES (ACQUISITION OF SHARES) ACT 1980 - SECT 3
ObjectSECT
3. The object of this Act is to regulate the acquisition of shares in companies incorporated in the Australian Capital Territory and this Act has effect, and shall be construed, accordingly.
COMPANIES (ACQUISITION OF SHARES) ACT 1980 - SECT 4
RepealSECT
4. Part VIB of, and the Tenth Schedule to, the Companies Ordinance 1962 are repealed.
COMPANIES (ACQUISITION OF SHARES) ACT 1980 - SECT 5
IncorporationSECT
5. (1) Subject to this Act and the Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980, the Companies Act 1981 is incorporated, and shall be read as one, with this Act as if this Act were part of the Companies Act 1981 and any regulations under the Companies Act 1981 shall have effect for the purposes of the Companies Act 1981 as so incorporated with this Act. (2) For the purposes of the operation of the Companies Act 1981 and regulations under that Act and the performance of functions and the exercise of powers under that Act or those regulations, with respect to the provisions of, or matters relating to or arising under, this Act - (a) references in the Companies Act 1981 or those regulations to documents submitted to, or lodged with, the Commission shall be construed as references to documents submitted to, or lodged with, the Commission under this Act; and (b) references in those regulations to the Companies Act 1981 shall be construed as references to that Act as incorporated with this Act by reason of sub-section (1).
COMPANIES (ACQUISITION OF SHARES) ACT 1980 - SECT 6
DefinitionsSECT
6. In this Act, unless the contrary intention appears - "board", in relation to a body corporate, means the committee of management, board of directors, council or other governing authority of the body corporate; "business rules", in relation to a securities exchange, means rules, regulations or by-laws - (a) governing the activities or conduct of the securities exchange or of its members; or (b) governing the activities or conduct of other persons in relation to the stock market of the securities exchange, being rules, regulations or by-laws made by the securities exchange or contained in any of the constituent documents of the securities exchange, but does not include rules, regulations or by-laws that are listing rules of the securities exchange; "company" means a company as defined by sub-section 5 (1) of the Companies Act 1981 and includes a body corporate incorporated in the Territory that has a share capital; "convertible note" has the same meaning as in Division 3A of Part III of the Income Tax Assessment Act 1936; "dealer" means a member of the Exchange; "Exchange" means Australian Stock Exchange Limited; "Exchange subsidiary" means a securities exchange, or a stock exchange, that is a subsidiary of the Exchange; "home stock exchange", in relation to a stock exchange listed company, means the stock exchange designated to the company, for the purposes of the Exchange's listing rules, as the company's Home Exchange; "invitation", except in the definition of "stock market", means a statement, however expressed, that is not an offer but expressly or impliedly invites a holder of shares to offer to dispose of shares or a holder of a right, being a right to acquire a share or an interest in a share under an option, to dispose of the right; "listed company" means a company that has been admitted to the official list of a securities exchange and has not been removed from that official list; "listing rules", in relation to a securities exchange, means rules, regulations or by-laws governing or relating to - (a) the admission to, or removal from, the official list of the securities exchange of bodies corporate, governments, unincorporate bodies or other persons for the purposes of the quotation on the stock market of the securities exchange of securities of, or made available by, bodies corporate, governments, unincorporate bodies or other persons and for other purposes; or (b) the activities or conduct of bodies corporate, governments, unincorporate bodies and other persons who are admitted to that list, whether those rules, regulations or by-laws - (c) are made by the securities exchange or are contained in any of the constituent documents of the securities exchange; or (d) are made by another person and adopted by the securities exchange; "marketable parcel", in relation to shares in a listed company, means a marketable parcel of shares in that listed company within the meaning of the relevant business rules or listing rules of a notifiable securities exchange in relation to that listed company; "non-voting share", in relation to a company, means an issued share in the company that is not a voting share; "notifiable securities exchange", in relation to a listed company, means a securities exchange, being - (a) in the case of a stock exchange listed company - the home stock exchange of the company; or (b) in any case - a securities exchange (other than the Exchange), or a stock exchange (other than the Exchange), to whose official list the company has been admitted and from whose official list the company has not been removed; "offeror" means - (a) a person who dispatches or proposes to dispatch a take-over offer, whether he dispatches or proposes to dispatch the offer himself or by an agent or nominee; or (b) 2 or more persons who together dispatch or propose to dispatch a take-over offer, whether they dispatch or propose to dispatch the offer themselves or by an agent or nominee; "on-market offeror" means - (a) a person who makes, or proposes to make, offers to acquire shares in accordance with section 17; or (b) 2 or more persons who together make, or propose to make, offers to acquire shares in accordance with section 17; "Part A statement" means a statement in writing that complies with the requirements of Part A of the Schedule and of sub-section 16 (2A); "Part B statement" means a statement in writing that complies with the requirements of Part B of the Schedule; "Part C statement" means a statement in writing that complies with the requirements of Part C of the Schedule; "Part D statement" means a statement in writing that complies with the requirements of Part D of the Schedule; "prescribed condition", in relation to a take-over offer, means - (a) a condition that will, in circumstances referred to in the condition, result in the rescission of, or entitle the offeror to rescind, a contract that results from an acceptance of the offer; or (b) a condition that prevents a binding contract from resulting from an acceptance of the offer unless or until the condition is fulfilled; "prescribed occurrence", in relation to a target company, means - (a) any one or more of the provisions of the constituent documents of the target company or of a subsidiary of the target company being altered in any of the ways mentioned in sub-section 121(1) of the Companies Act 1981; (b) the target company or a subsidiary of the target company resolving to reduce its share capital in any way; (c) the target company or a subsidiary of the target company making an allotment of, or granting an option to subscribe for, any of its shares, or agreeing to make such an allotment or grant such an option; (d) the target company or a subsidiary of the target company issuing, or agreeing to issue, convertible notes; (e) the target company or a subsidiary of the target company disposing, or agreeing to dispose, of the whole, or a substantial part, of its business or property; (f) the target company or a subsidiary of the target company charging, or agreeing to charge, the whole, or a substantial part, of its business or property; (g) the target company or a subsidiary of the target company resolving that it be wound up; (h) the appointment of a provisional liquidator of the target company or of a subsidiary of the target company; (j) the making of an order by a court for the winding up of the target company or of a subsidiary of the target company; (k) the target company or a subsidiary of the target company being placed under official management; or (l) the appointment of a receiver, or a receiver and manager, in relation to the whole, or a substantial part, of the property of the target company or of a subsidiary of the target company; "quotation", in relation to securities, in relation to a stock market of a securities exchange, includes the displaying or providing, on a stock market of the securities exchange, of information concerning - (a) in a case where offers to sell, purchase or exchange the securities at particular prices, or for particular consideration, are made or accepted on that stock market - those prices or that consideration; (b) in a case where offers or invitations are made on that stock market, being offers or invitations that are intended, or may reasonably be expected, to result, whether directly or indirectly, in the making or acceptance of offers to sell, purchase or exchange the securities at particular prices, or for particular consideration - those prices or that consideration; or (c) in any case - the price at which, or the consideration for which, particular persons, or particular classes of persons, propose, or may reasonably be expected, to sell, purchase or exchange the securities; "recorded", in relation to a dealing in shares in a listed company, means recorded by a securities exchange; "relevant official meeting", in relation to an announcement relating to shares included in a class of shares in a company, means an official meeting of the Exchange:
(a) held on a stock market of the company's home stock exchange; and (b) of a kind at which shares included in that class are usually dealt in; whether or not shares included in that class are dealt in at that official meeting; "renounceable option" means an option to have an allotment of shares in a corporation made to the holder of the option, being an option that is capable of being assigned; "representative", in relation to a dealer, includes:
(a) in any case - an employee of the dealer; and (b) if the dealer is a partner in a partnership that carries on a business of dealing in securities:
(i) another partner in the partnership; or (ii) an employee of the partnership; "securities exchange" means the Exchange or a body corporate (whether or not incorporated in the Territory) that is declared by the regulations to be a securities exchange for the purposes of this Act; "stock exchange" means the Exchange or a body corporate (whether or not incorporated in the Territory) that is declared by the regulations to be a stock exchange for the purposes of this Act; "stock exchange listed company" means a company that has been admitted to the official list of the Exchange and that has not been removed from that official list; "take-over announcement" means an announcement made in accordance with section 17; "take-over offer" means an offer to acquire shares made under a take-over scheme; "take-over scheme" means a take-over scheme referred to in section 16; "target company" means - (a) in relation to a take-over offer - the company for the acquisition of shares in which that offer has been, or is proposed to be, dispatched; (b) in relation to a take-over scheme - the company shares in which are proposed to be acquired under the scheme; and (c) in relation to a take-over announcement - the company in relation to shares in which the take-over announcement has been, or is proposed to be, made; "trading", in relation to securities, in relation to a stock market, includes - (a) making or accepting on that stock market offers to sell, purchase or exchange the securities; and (b) making on that stock market offers or invitations that are intended, or may reasonably be expected, to result, whether directly or indirectly, in the making or acceptance of offers to sell, purchase or exchange the securities; "trading day", in relation to a securities exchange, means a day on which a stock market of the securities exchange is open for trading in securities.
COMPANIES (ACQUISITION OF SHARES) ACT 1980 - SECT 7
Acquisition and disposal of, and entitlement to, shares, and associated
personsSECT
7. (1) For the purposes of this Act, a person shall be taken to acquire shares in a company (in this sub-section referred to as the "shares concerned") if, and only if - (a) he acquires a relevant interest in the shares concerned as a direct or indirect result of a transaction entered into by him or on his behalf in relation to those shares, in relation to any other securities of that company or in relation to securities of any other corporation; or (b) he acquires any legal or equitable interest in securities of that company or in securities of any other corporation and, as a direct or indirect result of the acquisition, another person acquires a relevant interest in the shares concerned. (2) For the purposes of this Act, a person shall be taken to dispose of shares in a company if, and only if, having a relevant interest in those shares, he ceases to have a relevant interest in those shares as a result of the doing of any act, the entering into of any transaction or the occurrence of any circumstance.
(3) For the purposes of this Act, the shares in a company (in this subsection and sub-section (4) referred to as the "relevant company") to which a person (in this sub-section and sub-section (4) referred to as the "person concerned"), being the relevant company or any other person, is entitled include - (a) shares in which the person concerned has a relevant interest; and (b) except where the person concerned is a nominee corporation in respect of which a certificate by the Commission is in force under sub-section (8) or under the provision of a law of a participating State or of a participating Territory that corresponds with that sub-section - shares in which a person who is an associate of the person concerned has a relevant interest.
(4) A reference in paragraph (3) (b) to a person who is an associate of the person concerned shall be construed as a reference to - (a) if the person concerned is a corporation - (i) a director or secretary of the corporation; (ii) a corporation (including the relevant company) that is related to the person concerned; or (iii) a director or secretary of such a related corporation; (b) a person (including the relevant company) with whom the person concerned has, or proposes to enter into, an agreement, arrangement, understanding or undertaking, whether formal or informal and whether express or implied - (i) by reason of which the first-mentioned person, or the person concerned, may exercise, may directly or indirectly control the exercise of, or may substantially influence the exercise of, any voting power attached to shares in the relevant company; (ii) with a view to controlling or influencing the composition of the board of directors, or the conduct of affairs, of the relevant company; (iii) under which the first-mentioned person may acquire from the person concerned, or the person concerned may acquire from the first-mentioned person, shares in the relevant company; or (iv) under which the first-mentioned person, or the person concerned, may be required to dispose of shares in the relevant company in accordance with the directions of the person concerned, or of the first-mentioned person, as the case may be; (c) a person (including the relevant company) in concert with whom the person concerned is acting, or proposes to act, in relation to the acquisition or proposed acquisition of shares in the relevant company; (d) a person (including the relevant company) with whom the person concerned is, or proposes to become, associated, whether formally or informally with a view to controlling or influencing the composition of the board of directors, or the conduct of affairs, of the relevant company; (e) a person (including the relevant company) with whom the person concerned is, by virtue of the regulations, to be regarded as associated in relation to the acquisition or proposed acquisition of shares in the relevant company; (f) a person (including the relevant company) with whom the person concerned is, or proposes to become, associated, whether formally or informally, in any other way in relation to shares in the relevant company; (g) if the person concerned has entered into, or proposes to enter into, a transaction, or has done, or proposes to do, any other act or thing, with a view to becoming associated with another person (including the relevant company) as mentioned in paragraph (b), (c), (d), (e) or (f) - that other person.
(5) A reference in this Act other than sub-section (4) to a person associated with another person shall be construed as a reference to - (a) if the other person is a corporation - (i) a director or secretary of the corporation; (ii) a corporation that is related to the other person; or (iii) a director or secretary of such a related corporation; (b) where the matter to which the reference relates is a take-over offer or take-over announcement relating to shares in a company (including, in a case where the other person is a company, the other person), or the extent of a power to exercise, or to control the exercise of, the voting power attached to voting shares in a corporation (including, in a case where the other person is a corporation, the other person) - a person (including the company or corporation, as the case may be) with whom the other person has, or proposes to enter into, an agreement, arrangement, understanding or undertaking, whether formal or informal and whether express or implied - (i) by reason of which the first-mentioned person, or the other person, may exercise, may directly or indirectly control the exercise of, or may substantially influence the exercise of, any voting power attached to a share in the company or corporation, as the case may be; (ii) with a view to controlling or influencing the composition of the board of directors, or the conduct of affairs, of the company or corporation, as the case may be; (iii) under which the first-mentioned person may acquire from the other person, or the other person may acquire from the first-mentioned person, shares in the company or corporation, as the case may be; (iv) under which the first-mentioned person, or the other person, may be required to dispose of shares in the company or corporation, as the case may be, in accordance with the directions of the other person, or of the first-mentioned person, as the case may be; (c) a person in concert with whom the other person is acting, or proposes to act, in respect of the matter to which the reference relates; (d) a person with whom the other person is, by virtue of the regulations, to be regarded as associated in respect of the matter to which the reference relates; (e) a person with whom the other person is, or proposes to become, associated, whether formally or informally, in any other way in respect of the matter to which the reference relates; or (f) if the other person has entered into, or proposes to enter into, a transaction, or has done, or proposes to do, any other act or thing, with a view to becoming associated with a person as mentioned in paragraph (b), (c), (d) or (e) - that last-mentioned person.
(6) A person shall not be taken to be an associate of another person by virtue of paragraph (4) (b), (c), (d), (f) or (g) or to be associated with another person by virtue of paragraph (5) (b), (c), (e) or (f) by reason only that - (a) one of those persons furnishes advice to, or acts on behalf of, the other person in the proper performance of the functions attaching to his professional capacity or to his business relationship with the other person; (b) without limiting the generality of paragraph (a), where the ordinary business of one of those persons includes dealing in securities - specific instructions are given to the person by or on behalf of the other person to acquire shares on behalf of the other person in the ordinary course of that business; (c) one of those persons - (i) has dispatched or proposes to dispatch to the other person a take-over offer in relation to shares in a company held by the other person; or (ii) has made, or proposes to make, a take-over announcement that relates to shares held by the other person; or (d) the other person has been appointed by the first-mentioned person as a proxy or representative to exercise, at a meeting of members or of a class of members of a company, votes attached to shares of which the first-mentioned person is the holder, where the relevant interest of that person in those shares that arises by reason of his appointment as a proxy or representative would be disregarded under sub-section 9 (8) by reason of paragraph (e) of that subsection.
(7) For the purposes of paragraphs (4) (b) and (5) (b), it is immaterial that the power of a person to exercise, control the exercise of, or influence the exercise of, voting power is in any way qualified.
(8) The Commission may, in its discretion, issue to a nominee corporation a certificate declaring the nominee corporation to be an approved nominee corporation for the purposes of this section and may at any time, in its discretion, by notice in writing to the nominee corporation, revoke the certificate.
COMPANIES (ACQUISITION OF SHARES) ACT 1980 - SECT 8
Other interpretative and evidentiary provisionsSECT
8. (1) For the purposes of this Act, where the shares in a company are not divided into 2 or more classes, those shares shall be deemed to constitute a class. (3) Unless the contrary intention appears, a reference in this Act to the period during which an offer under a take-over scheme or made by virtue of a take-over announcement remains open shall, in the case of an offer that is accepted, be construed as a reference to the period during which the offer would have remained open if it had not been accepted.
(4) In relation to a company the whole or a portion of the share capital of which consists of stock, a reference in this Act to a number of shares (including a number expressed as a percentage) shall, in relation to an amount of stock, be construed as a reference to the amount of stock that represents that number of shares.
(5) For the purposes of this Act - (a) a parcel of shares in a listed company constitutes an odd lot if the number of shares in that parcel is less than one marketable parcel of shares in that company; and (b) if the number of shares in a parcel of shares in a listed company is greater than one marketable parcel of shares in that company and, after excluding so many of the shares in that parcel as constitute a marketable parcel or marketable parcels of shares in that company, a number of shares remains, that remaining number of shares constitutes an odd lot.
(6) In this Act - (a) a reference to an offeror or an on-market offeror shall, if 2 or more persons constitute an offeror or an on-market offeror, be construed as a reference to those persons or either or any of them; and (b) a reference to a person associated with an offeror or an on-market offeror shall, if 2 or more persons constitute an offeror or an on-market offeror, be construed as a reference to a person associated with those persons or with either or any of them.
(7) In this Act, a reference to entering into a transaction in relation to shares includes - (a) a reference to entering into or becoming a party to an agreement, arrangement, understanding or undertaking, whether formal or informal and whether express or implied, in relation to shares; and (b) a reference to exercising an option to have shares allotted.
(8) In this Act, a reference to a corporation or to a body corporate includes a reference to an unincorporated society, association or other body that is for the time being declared by the Commission, by notice in writing published in the Gazette, to be a corporation or to be a body corporate, as the case may be, for the purposes of this Act.
(9) A reference in sub-section 13 (3) or 40 (3) to an acquisition of shares in a company at an official meeting of a securities exchange in the ordinary course of trading on the stock market of that securities exchange does not include a reference to an acquisition of shares pursuant to a transaction that, when it is reported to the relevant securities exchange, is, pursuant to the business rules or listing rules of that securities exchange, described as "special".
(9A) Unless the contrary intention appears, a reference in this Act to a stock market of a securities exchange or of a stock exchange includes, in the case of the Exchange, a reference to a stock market of a securities exchange, or of a stock exchange, as the case may be, that is a subsidiary of the Exchange.
(9B) For the purposes of this Act, an announcement that a representative of a dealer makes, on behalf of the dealer, at an official meeting of the Exchange shall be deemed to be made by the dealer.
(10) In any proceedings under or arising out of this Act, a person shall, in the absence of proof to the contrary, be presumed to have been aware at a particular time of a fact or occurrence of which an employee or agent of the person having duties or acting on behalf of his employer or principal in connection with the matter to which the proceedings relate was aware at the time.
(11) In determining, for the purposes of a provision of this Act, whether or not a person's contravention of such a provision was due - (a) to the person's inadvertence or mistake or to the person not being aware of a relevant fact or occurrence; or (b) to the person's inadvertence or mistake or to circumstances beyond the person's control, the person's ignorance of, or a mistake on the person's part concerning, a matter of law shall be disregarded.
COMPANIES (ACQUISITION OF SHARES) ACT 1980 - SECT 8A
Approved manner of dispatchSECT
8A. (1) For the purposes of this Act, a person (in this sub-section referred to as the "relevant person") shall be taken to dispatch a document to another person (in this sub-section referred to as the "other person") in an approved manner if, and only if, the relevant person dispatches the document to the other person - (a) in a case where, at the time when the relevant person dispatches the document to the other person, there is in force in relation to the document, or in relation to a class of documents that includes the document, a direction under sub-section (2) served on the person - in the manner specified in the direction; (b) in a case where, at the time when the relevant person dispatches the document to the other person, there is in force in relation to the document, or in relation to a class of documents that includes the document, an approval under sub-section (3) served on the person - in the manner specified in the approval or in the prescribed manner; or (c) in any other case - in the prescribed manner. (2) The Commission may, by instrument in writing served on a person, direct the person to dispatch in a specified manner - (a) a specified document that the person proposes to dispatch under this Act; or (b) documents included in a specified class of documents that the person proposes to dispatch under this Act.
(3) The Commission may, on application by a person, approve, by instrument in writing served on the person, the dispatch by the person in a specified manner of - (a) a specified document that the person proposes to dispatch under this Act; or (b) documents included in a specified class of documents that the person proposes to dispatch under this Act.
(4) Notwithstanding sub-section (1), a person who, before the commencement of section 7 of the Companies and Securities Legislation (Miscellaneous Amendments) Act 1985, dispatched a document in a manner approved by the Commission shall be deemed, for the purposes of this Act as in force after that commencement, to have dispatched the document in an approved manner.
COMPANIES (ACQUISITION OF SHARES) ACT 1980 - SECT 9
Relevant interests in sharesSECT
9. (1) Subject to this section, a person has a relevant interest in a share in a corporation for the purposes of this Act if that person has power - (a) where the share is a voting share - to exercise, or to control the exercise of, the right to vote attached to that share; or (b) to dispose of, or to exercise control over the disposal of, that share whether or not it is a voting share. (2) It is immaterial for the purposes of this section whether the power of a person - (a) to exercise, or to control the exercise of, the right to vote attached to a voting share; or (b) to dispose of, or to exercise control over the disposal of, a share, is express or implied or formal or informal, is exercisable alone or jointly with another person or other persons, cannot be related to a particular share, or is, or is capable of being made, subject to restraint or restriction, and any such power exercisable by a person jointly with another person or other persons shall, for those purposes, be deemed to be exercisable by either or any of those persons.
(3) A reference in this section to power or control includes a reference to power or control that is direct or indirect or is, or is capable of being, exercised as a result of, or by means of, or in breach of, or by revocation of, trusts, agreements, arrangements, understandings and practices, or any of them, whether or not they are enforceable, and a reference in this section to a controlling interest includes a reference to such an interest as gives control.
(4) Without limiting the generality of sub-sections (1), (2) and (3), where a body corporate has, or is by virtue of this section to be deemed to have, power - (a) to exercise, or to control the exercise of, the right to vote attached to a voting share; or (b) to dispose of, or to exercise control over the disposal of, a share, and - (c) the body corporate is, or its directors are, accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of a person in relation to the exercise of the power; or (d) a person has a controlling interest in the body corporate, that person shall, for the purpose of this section, be deemed to have the same power in relation to that share as the body corporate has or is to be deemed to have.
(5) Where a body corporate has, or is by virtue of this section (other than this sub-section) to be deemed to have, power - (a) to exercise, or to control the exercise of, the right to vote attached to a voting share; or (b) to dispose of, or to exercise control over the disposal of, a share, a person (in this sub-section referred to as the "relevant person") shall, for the purposes of this section, be deemed to have the same power in relation to that share as the body corporate has, or is to be deemed to have, if - (c) the relevant person has; (d) a person associated with the relevant person has; (e) persons associated with the relevant person together have; or (f) the relevant person and a person or persons associated with the relevant person together have, the power to exercise, or to control the exercise of, the voting power attached to not less than the prescribed percentage of the voting shares in the body corporate.
(6) Where a person - (a) has entered into an agreement with respect to an issued share; (b) has a right relating to an issued share, whether the right is enforceable presently or in the future and whether on the fulfilment of a condition or not; or (c) has an option with respect to an issued share, and, on performance of the agreement, enforcement of the right or exercise of the option, as the case may be, that person would have a relevant interest in the share, he shall, for the purposes of this section, be deemed to have that relevant interest in the share.
(7) For the purposes of this section, where a body corporate is to be deemed, by virtue of sub-section (6), to have a relevant interest in a share in a corporation and - (a) the body corporate is, or its directors are, accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of a person in relation to the exercise of, or the control of the exercise of, the right to vote attached to shares in the corporation, or in relation to the disposal of, or the exercise of control over the disposal of, shares in the corporation; (b) a person has a controlling interest in the body corporate; or (c) a person has power to exercise, or to control the exercise of, the voting power attached to not less than the prescribed percentage of the voting shares in the body corporate, that person shall be deemed to have a relevant interest in that share.
(8) A relevant interest in a share shall be disregarded - (a) if the ordinary business of the person who has the relevant interest includes the lending of money and he has authority to exercise his powers as the holder of the relevant interest only by reason of a security given for the purposes of a transaction entered into in the ordinary course of business in connection with the lending of money, not being a transaction entered into with a person associated with the first-mentioned person; (b) if the relevant interest is that of a person who has it by reason of his holding a prescribed office; (c) if the share is subject to a trust, the relevant interest is that of a trustee and - (i) a beneficiary is to be deemed, by virtue of sub-section (6), to have a relevant interest in the share by virtue of a presently enforceable and unconditional right referred to in paragraph (b) of that sub-section; or (ii) the trustee is a bare trustee; (d) if the ordinary business of the person who has the relevant interest includes dealing in securities and he has authority to exercise his powers as the holder of the relevant interest only by reason of instructions given to him by or on behalf of another person to dispose of that share on behalf of the other person in the ordinary course of business; or (e) if the relevant interest is that of a person who has it by reason only of his having been appointed as a proxy or representative to vote at a particular meeting of members, or of a class of members, of a corporation, not being an appointment in return for the making of which the person or a person associated with the person provided valuable consideration.
(9) For the purposes of sub-paragraph (8) (c) (ii), a trustee shall not be taken not to be a bare trustee by reason only of the fact that the trustee is entitled in his capacity as a trustee to be remunerated out of the income or property of the trust.
(9A) A corporation may, by virtue of this section, be taken or deemed, for the purposes of this Act, to have a relevant interest in a share in the corporation itself.
(10) A relevant interest in a share shall not be disregarded by reason only of - (a) its remoteness; or (b) the manner in which it arose.
(11) A reference in this section to the prescribed percentage is a reference to 20% or, where a lesser percentage is prescribed by regulations in force for the time being for the purposes of section 11, a reference to that lesser percentage.
COMPANIES (ACQUISITION OF SHARES) ACT 1980 - SECT 10
Persons to whom Act appliesSECT
10. (1) This Act applies to and in relation to all natural persons, whether resident in the Territory or in Australia or not and whether Australian citizens or not, and to all bodies corporate or unincorporate, whether incorporated or carrying on business in the Territory or in Australia or not, and extends to acts done or omitted to be done outside the Territory, whether in Australia or not. (2) Nothing in sub-section (1) extends the definition of "company" in section 6 so as to include a body corporate that is not incorporated in the Territory.
COMPANIES (ACQUISITION OF SHARES) ACT 1980 - PART II
PART II - CONTROL OF ACQUISITION OF SHARES
COMPANIES (ACQUISITION OF SHARES) ACT 1980 - SECT 11
Restriction on acquisition of sharesSECT
11. (1) Except as provided by this Act, a person shall not, either alone or together with another person or other persons, acquire shares in a company if any person who is not entitled to any voting shares in the company or is entitled to less than the prescribed percentage of the voting shares in the company would, immediately after the acquisition, be entitled to more than the prescribed percentage of the voting shares in the company. (2) Except as provided by this Act, a person shall not, either alone or together with another person or other persons, acquire shares in a company if any person (in this sub-section referred to as a "relevant person") who is entitled to not less than the prescribed percentage, but less than 90%, of the voting shares in the company would, immediately after the acquisition, be entitled to a greater percentage of the number of voting shares in the company than the percentage to which that relevant person was entitled immediately before the acquisition.
(3) A person shall not offer to acquire, or issue an invitation in relation to, shares in a company if the person is prohibited by sub-section (1) or (2) from acquiring those shares.
(4) It is a defence to a prosecution for a contravention of this section if the defendant establishes that the contravention was due to his inadvertence or mistake or to his not being aware of a relevant fact or occurrence.
(5) An acquisition of shares is not invalid by reason of a contravention of this section.
(7) A reference in this section to the prescribed percentage is a reference to 20% or, where a lesser percentage is prescribed by regulations in force for the time being for the purposes of this section, a reference to that lesser percentage.
COMPANIES (ACQUISITION OF SHARES) ACT 1980 - SECT 12
Acquisitions to which section 11 does not applySECT
12. Section 11 does not apply to or in relation to - (a) an acquisition of shares by will or by operation of law; (b) an acquisition of shares by virtue of an allotment or purchase pursuant to a prospectus - (i) in relation to an invitation to the public to subscribe for or purchase the shares or an offer to the public to accept subscriptions for or to sell the shares; and (ii) a copy of which has been registered under Division 1 of Part IV of the Companies Act 1981 or under the corresponding provisions of a previous law of the Territory; (c) an acquisition of shares in a company by virtue of an allotment made in accordance with a proposal particulars of which were set out in a prospectus where - (i) the prospectus was the first prospectus issued by the company; (ii) the person who acquired the shares was a promoter in respect of the prospectus; and (iii) a copy of the prospectus has been registered under Division 1 of Part IV of the Companies Act 1981 or under the corresponding provisions of a previous law of the Territory; (d) an acquisition of shares by virtue of an allotment or purchase of shares pursuant to - (i) an underwriting agreement particulars of which were set out in a prospectus a copy of which has been registered under Division 1 of Part IV of the Companies Act 1981 or under the corresponding provisions of a previous law of the Territory; or (ii) a sub-underwriting agreement that is related to such an underwriting agreement, where the prospectus contained an invitation to the public to subscribe for or purchase the shares or an offer to the public to accept subscriptions for or to sell the shares; (e) an acquisition of shares by virtue of an allotment made by a company that has not commenced any business and has not exercised any borrowing power; (ea) an acquisition of shares pursuant to a compromise or arrangement approved by the Court under Part VIII of the Companies Act 1981; (f) an acquisition of shares pursuant to section 409 of the Companies Act 1981 or under a corresponding provision of a previous law of the Territory. (g) an acquisition of shares in a company by virtue of an allotment or purchase where the company has agreed to the allotment or purchase by a resolution passed at a general meeting at which no votes were cast in relation to the resolution in respect of any shares held by - (i) the person to whom the first-mentioned shares were to be allotted or by whom or from whom the first-mentioned shares were to be purchased, as the case may be; or (ii) a person associated with a person referred to in sub-paragraph (i); (h) an acquisition of shares resulting from the exercise by a person of a renounceable option or of an option or right granted or conferred by a convertible note, where, if the person had acquired the shares at the time when he acquired the renounceable option or the convertible note, as the case may be, the acquisition of the shares would not, by reason of sub-section 13 (3), have contravened this Act; (j) an acquisition of shares by a person as a result of the acceptance by that person of a take-over offer, where the shares constituted, or formed part of, the consideration for the take-over offer; (k) an acquisition of shares in a company as a result of the acquisition of shares in another corporation that are listed for quotation on the stock market of a stock exchange; (l) an acquisition of shares by a person whose ordinary business includes the lending of money where the acquisition results from the exercise by that person of a power in relation to the shares conferred on or vested in him pursuant to, by reason of or in connection with a transaction in connection with the lending of money entered into by him in the ordinary course of that business, not being a transaction entered into with a person associated with the first-mentioned person; (m) an acquisition of forfeited shares at an auction conducted at a place at which, or by a facility by means of which, a stock exchange maintains or provides a stock market; (n) any other acquisition of shares made in a prescribed manner or in prescribed circumstances; or (o) any other acquisition of shares approved by the Commission in writing.
COMPANIES (ACQUISITION OF SHARES) ACT 1980 - SECT 13
Acquisition of shares permitted in certain circumstancesSECT
13. (1) Section 11 does not - (a) prohibit the acquisition of shares in a company that does not have more than 15 members; or (b) prohibit the acquisition of shares in a proprietary company that has more than 15 members where the members of the company have consented in writing to the provisions of this Act not applying to or with respect to the acquisition, if the acquisition would not result in - (c) a contravention of section 11 in relation to the acquisition of shares in another company; or (d) a contravention of a provision of a law of a State or of another Territory that corresponds with section 11 in relation to the acquisition of shares in a corporation in relation to which that provision applies. (2) For the purposes of sub-section (1), 2 or more persons holding jointly shares in a company shall be deemed to be one member of the company.
(3) Subject to sub-section (4), section 11 does not - (a) prohibit the acquisition of shares in a company at an official meeting of a stock exchange, in the ordinary course of trading on the stock market of that stock exchange, during the period commencing when a Part A statement relating to offers under a relevant take-over scheme in respect of shares in that company of the same class as the first-mentioned shares is served on the company and ending at the expiration of 28 days after the day on which the Part A statement is served or, if take-over offers are dispatched pursuant to the Part A statement within those 28 days, at the expiration of the period during which those take-over offers remain open, by the offeror under that take-over scheme; or (b) prohibit the acquisition of shares in a company at an official meeting of a stock exchange, in the ordinary course of trading on the stock market of that stock exchange, during the period commencing when a take-over announcement is made in relation to shares in that company of the same class as the first-mentioned shares and ending at the expiration of the period in which offers constituted by that announcement remain open, by the on-market offeror who caused the announcement to be made.
(4) For the purposes of sub-section (3), a take-over scheme is a relevant take-over scheme if, and only if - (a) the offers under the take-over scheme are made in accordance with sub-paragraph 16(2)(a)(i); and (b) no offer under the take-over scheme is subject to any prescribed condition other than any one or more of the following conditions:
(ii) a condition that a prescribed occurrence in relation to the target company does not take place; (iii) any other condition approved by the Commission.
(5) Where - (a) a Part A statement relating to offers under a take-over scheme is served on a company; (b) after the Part A statement is served the offeror referred to in the Part A statement acquires shares in the target company; (c) the acquisition of those shares would, but for paragraph (3) (a), have contravened section 11; and (d) the offeror does not dispatch the offers to which the Part A statement relates within the period of 28 days after the Part A statement is served on the target company, the offeror is not entitled, without the consent of the Commission, to exercise, or to authorize another person to exercise, any voting rights attached to the shares referred to in paragraph (b) of this sub-section.
COMPANIES (ACQUISITION OF SHARES) ACT 1980 - SECT 14
Pari passu allotmentsSECT
14. (1) Section 11 does not prohibit the acquisition of shares in a company pursuant to an allotment if - (a) the requirements set out in sub-section (2) have been complied with in relation to the allotment; and (b) the allotment - (i) is made to a person as a result of the acceptance by that person of an offer made to him in accordance with paragraph (2) (b); (ii) is made to a person in his capacity as an underwriter or sub-underwriter in relation to the allotment; or (iii) is made to a nominee in accordance with sub-section (3). (2) The requirements referred to in sub-section (1) are as follows:
(a) the directors of the company shall pass a resolution agreeing to make available a number of shares in, or ascertained in accordance with, the resolution for allotment to all persons who were registered as the holders of shares in the company, or to all persons who were registered as the holders of voting shares in the company, on the date specified in the resolution; (b) the company shall make an offer to each person to allot to him such number of those shares as he agrees to subscribe for, being a number that does not exceed the number specified in the offer in accordance with paragraph (c); and (c) the number of shares to be specified in an offer for the purposes of paragraph (b) is the number that bears to the total number of shares agreed to be made available in accordance with paragraph (a) as nearly as practicable the same proportion as the number of shares in the company, or the number of voting shares in the company, as the case may be, held by the person to whom the offer is made immediately before the date specified in the resolution bears to the total number of shares in the company, or the total number of voting shares in the company, as the case may be, immediately before that date.
(3) A company shall be deemed to comply with the requirements of sub-section (2) in relation to the holders of shares in the company whose addresses as shown in the register of members are places outside Australia and the external Territories (in this sub-section referred to as "foreign shareholders") if the company, in lieu of making offers to the foreign shareholders in accordance with sub-section (2) - (a) allots to a nominee approved - (i) where the company is a stock exchange listed company - by the stock exchange that is the home stock exchange in relation to the company; or (ii) where the company is not a stock exchange listed company - by the Commission, a number of shares equal to the number of shares in respect of which the company would, but for this sub-section, be required to make offers to foreign shareholders in accordance with sub-section (2); (b) causes the shares so allotted to be offered for sale in such manner, at such price and on such other terms and conditions as are approved by that stock exchange or the Commission, as the case may be; and (c) pays to each of the foreign shareholders so much of the amount (if any) remaining after deducting from the proceeds of sale - (i) the expenses of the sale; and (ii) the amounts (if any) payable to the company in respect of the allotment of the shares, as bears to that remaining amount the same proportion as the number of shares in respect of which the company would, but for this sub-section, be required to make an offer to the foreign shareholder concerned in accordance with sub-section (2) bears to the total number of shares allotted to the nominee in accordance with paragraph (a) of this sub-section.
COMPANIES (ACQUISITION OF SHARES) ACT 1980 - SECT 15
Acquisition of not more than 3% of voting shares permitted
in each 6 months
SECT
15. (1) Section 11 does not prohibit an acquisition of voting shares in a company by reason of the effect of the acquisition on the entitlement to voting shares in the company of a person (in this section referred to as a "relevant person") if the relevant person has been entitled to not less than the prescribed percentage of the voting shares in the company for a continuous period of not less than 6 months immediately preceding the acquisition and the number ascertained in accordance with the formula 100 (a + b - c) _______________ does not exceed 3, where - d a is the number of voting shares to be acquired; b is the number of voting shares in the company that were acquired by any person during the period of 6 months immediately preceding the first-mentioned acquisition, being voting shares the acquisition of which by the person concerned increased the number of voting shares in the company to which the relevant person was entitled, other than voting shares acquired by the person concerned pursuant to an allotment in relation to which sub-section 14 (1) applies, being an allotment made to the person concerned as a result of his acceptance of an offer made to him in accordance with paragraph 14 (2) (b); c is the number of voting shares in the company that were disposed of by any person during the period of 6 months immediately preceding the first-mentioned acquisition, being voting shares the disposal of which by the person concerned decreased the number of voting shares in the company to which the relevant person was entitled; d is the number of voting shares in the company. (2) A reference in sub-section (1) to the prescribed percentage is - (a) a reference to 19%; or (b) where a lesser percentage is prescribed by regulations in force for the time being for the purposes of this section - a reference to that lesser percentage.
COMPANIES (ACQUISITION OF SHARES) ACT 1980 - SECT 16
Take-over offersSECT
16. (1) Section 11 does not prohibit the acquisition of shares in a company as a result of the acceptance of offers to acquire those shares made under a take-over scheme in relation to that company. (2) For the purposes of this Act, offers to acquire shares are made under a take-over scheme if, and only if, the offers relate only to shares included in a class of shares (in this section referred to as the "relevant class of shares") and - (a) one of the following sub-paragraphs is applicable in relation to the offers:
(i) each offer relates to all the shares in the target company included in the relevant class of shares that the offeree holds; (ii) each offer relates to a proportion of the shares in the target company included in the relevant class of shares that the offeree holds, being a proportion that is the same in respect of each offer; (b) the offers are the same disregarding - (i) the fact that the offerees are different persons and the fact that the number of shares that may be acquired under each offer is limited by the number of shares held by the offeree; and (ii) any differences in the consideration specified for each share in the offers that are attributable only to the fact that the offers relate to shares having different accrued dividend entitlements or relate to shares on which different amounts are paid up; (c) the offeror dispatches an offer in an approved manner to each holder of shares in the target company (other than the offeror) included in the relevant class of shares; (d) the offeror has, not earlier than 28 days and not later than 14 days before the offers are dispatched, served on the target company - (i) a Part A statement relating to the offers that - (A) is signed, where the offeror is, or includes, a natural person or natural persons, by that person or by each of those persons and, where the offeror is, or includes, a corporation or corporations, by not less than 2 directors of the corporation, or by 2 directors of each of those corporations, authorized so to sign pursuant to a resolution passed at a meeting of the directors, or, in the case of a corporation that has only one director, by that director; and (B) has endorsed on it a statement that a copy of the Part A statement has been registered by the Commission and that the Commission takes no responsibility as to its contents and specifying the date on which the copy was so registered; and (ii) a copy of one of the proposed offers to which the Part A statement referred to in sub-paragraph (i) relates, being a copy that need not include the name or address of the offeree, the date that the offer will bear or any other date that is related to or dependent upon that date or the particulars referred to in sub-paragraph (f) (iv); (e) the offeror has, on the day on which the Part A statement is served under paragraph (d) - (i) lodged with the Commission a notice in writing stating that the Part A statement has been so served; and (ii) if the target company is a listed company - served on each notifiable securities exchange in relation to that company a copy of each of the documents served on that company in accordance with paragraph (d); (f) each offer is in writing and - (i) bears the same date, being a date that is not more than 3 days before the date on which the offer is dispatched and is not later than the date on which the offer is dispatched; (ii) states that the offer will, unless withdrawn, remain open during a period ending on a specified date, being a date that is not earlier than one month, or later than 6 months, after the date that the offer bears; (iv) specifies, in relation to each class of shares in the target company - (A) the total number of shares included in the class; and (B) the number of shares included in the class to which the offeror was entitled immediately before the offer was dispatched (which may be expressed as a number of shares or as a percentage of the total number of shares included in the class); (v) in the case of an offer that is subject to a prescribed condition - specifies a date, being a date that is not less than 7 days and not more than 14 days before the end of the period during which the offer remains open, for the publication of the notice referred to in sub-section 28 (4); (vi) sets out how the obligations of the offeror are to be satisfied; (vii) contains a provision setting out when the obligations of the offeror are to be satisfied, being a provision under which the consideration for the offer is, if the offer is accepted, to be paid or provided - (A) in the case of an offer that is not subject to a prescribed condition - on or before the thirtieth day after the offer is accepted; or (B) in the case of an offer that is subject to a prescribed condition - on or before the thirtieth day after the offer is accepted, or the offer, or the contract resulting from the acceptance of the offer, becomes unconditional, whichever happens later, or, if that day is later than the twenty-first day after the end of the period during which the offer would, if it had not been accepted, have remained open, on or before the lastmentioned day; and (viii) is accompanied by - (A) a copy of the Part A statement referred to in subparagraph (d) (i); and (B) if the target company has, not later than 14 days after receipt of that Part A statement, given to the offeror a Part B statement in relation to the offers - a copy of that Part B statement and a copy of any report that accompanied that Part B statement.
(g) in a case where - (i) the consideration that under each of the offers is to be paid or provided for the acquisition of the shares to which the offer relates consists solely of a cash sum or includes alternative considerations one of which consists solely of a cash sum; and (ii) during the period of 4 months ending on the day on which the first of the offers is dispatched, the offeror, or a person associated with the offeror, purchased or agreed to purchase shares in the target company included in the relevant class of shares, the amount per share of that cash sum is not less than - (iii) unless sub-paragraph (iv) applies - the highest price per share paid or agreed to be paid, pursuant to such a purchase or agreement to purchase, for any of the shares first referred to in sub-paragraph (ii); or (iv) if the target company, at any time during that period - (A) made, agreed to make, or announced a proposal to make, or to agree to make, an allotment of any of its shares; (B) granted, agreed to grant, or announced a proposal to grant, or to agree to grant, an option to subscribe for any of its shares; (C) issued, agreed to issue, or announced a proposal to issue, or to agree to issue, convertible notes; or (D) declared, or announced a proposal to declare, a dividend, and an approval by the Commission of an amount in relation to the offers is in force under sub-section (2AB) - the lastmentioned amount; (h) none of the offers is subject to a condition (however expressed, and whatever the purported effect of fulfilment or failure of the condition) the fulfilment or failure of which depends on, or depends on matters including, one or both of the following matters:
(i) whether the number of shares in respect of which the offeror receives an acceptance or acceptances of one or more of the offers exceeds a particular number of shares; (ii) whether the number of offers accepted exceeds a particular number, however the particular number was, or is to be, determined, whether or not the particular number is specified in the condition and, if the particular number is so specfied, however the particular number is expressed; and (j) without limiting the generality of paragraph (h), none of the offers is subject to a condition (however expressed) that permits the offeror to acquire, or that may result in the offeror acquiring, shares included in the relevant class of shares from some but not all of the persons who accept the respective offers made to the last-mentioned persons.
(2AA) For the purposes of paragraph (2) (g), where a person has entered into an agreement for the purchase of a share or shares in a company, being an agreement that provides that the price payable for the share or any of the shares is a price (in this sub-section referred to as the "original price") specified in the agreement but may be varied in accordance with the terms of the agreement, the price agreed to be paid for the share or any of the shares shall be deemed to be the original price.
(2AB) Upon application by an offeror who proposes to dispatch offers to acquire shares included in a class of shares in a company, the Commission may, by instrument in writing, approve, for the purposes of paragraph (2) (g), a specified amount in relation to the offers.
(2AC) Where a copy of a Part A statement relating to an offer to acquire shares (whether the offer was made before, or is made at or after, the relevant commencement) was lodged with the Commission before the relevant commencement for registration under sub-section 18 (1), then, notwithstanding the amendments made, and the repeals effected, by sections 4, 5, 6, 8 and 11 of the relevant Act, but subject to sub-section (2AD) of this section - (a) the provisions of sections 8 and 13, of sub-section (2) of this section, and of sections 25, 25A, 25C and 42, of this Act, being those provisions as in force after the relevant commencement, do not apply; and (b) the provisions of sections 8 and 13, of sub-section (2) of this section, and of sections 25, 26 and 42, of this Act, being those provisions as in force immediately before the relevant commencement, apply, in relation to - (c) an offer to which the Part A statement relates; (d) a contract resulting from the acceptance of an offer to which the Part A statement relates; or (e) the take-over scheme under which the offers to which the Part A statement relates were or are made.
(2AD) Where - (a) a take-over offer (in this sub-section referred to as the "relevant offer") relating to shares included in a class of shares in a company has been made (whether before, at or after the relevant commencement) under a take-over scheme; (b) by virtue of sub-section (2AC), the provisions referred to in paragraph (2AC) (b), being those provisions as in force as mentioned in that paragraph, apply in relation to the relevant offer; (c) but for this sub-section, the take-over offers made under the take-over scheme would be taken to have been made in accordance with sub-paragraph (2) (a) (i); (d) the number (in this sub-section referred to as the "first relevant number") specified, in accordance with sub-paragraph (2) (f) (iii), in the relevant offer (or, if that number is expressed as a percentage, the number (in this sub-section also referred to as the "first relevant number") of shares represented by that percentage) is less than the total number (in this sub-section referred to as the "second relevant number") of shares (other than shares to which the offeror was entitled at the time when the first take-over offer was made under the take-over scheme) included in that class; and (e) in a case where the relevant offer was made before the relevant commencement - as at the relevant commencement, the period during which the relevant offer remains open has not ended, then - (f) the take-over offers made under the take-over scheme shall be deemed not to have been made in accordance with sub-paragraph (2) (a) (i) and to have been made in accordance with sub-paragraph (2) (a) (ii); (g) the relevant offer shall be deemed always to have related to, to relate to, and, if the relevant offer has been or is accepted, to have been or to be accepted in relation to, a proportion of the shares to which the relevant offer would, but for this sub-section and section 26, relate, being the proportion that the first relevant number bears to the second relevant number; and (h) in a case where paragraph (e) applies and the period during which the relevant offer remains open would, but for this paragraph, end before the end of the period of 7 days commencing at the relevant commencement - the period during which the relevant offer remains open shall, except for the purposes of sub-section 27 (8), be deemed to be extended until the end of that period of 7 days.
(2AE) The document prepared by the Companies and Securities Law Review Committee, entitled "Report to the Ministerial Council on Partial Takeover Bids" and dated August 1985 is hereby declared to be a relevant document for the purposes of section 5B of the Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980 but, notwithstanding that section, consideration shall not be given to that document in the interpretation of a provision of this Act other than a provision as in force after the relevant commencement.
(2AF) Neither section 25, as in force after the relevant commencement, nor section 25C shall be taken to affect by implication the interpretation of this Act as in force at any time before the relevant commencement.
(2AG) In sub-sections (2AC), (2AD), (2AE) and (2AF) and in this sub-section - "relevant Act" means the Companies and Securities Legislation Amendment Act 1986; "relevant commencement" means the commencement of Part II of the relevant Act.
(2A) In addition to the information referred to in Part A of the Schedule, a Part A statement referred to in this section shall - (a) in the case of - (i) a Part A statement included in a class of Part A statements in relation to which regulations have been made for the purposes of this paragraph; (ii) a Part A statement relating to an offer to acquire shares included in a class of offers in relation to which regulations have been made for the purposes of this paragraph; or (iii) a Part A statement relating to an offer to acquire shares where the consideration specified in the offer as the consideration for the acquisition of shares is or includes marketable securities included in a class of marketable securities, or is or includes marketable securities of a corporation included in a class of corporations, in relation to which regulations have been made for the purposes of this paragraph, set out the prescribed matters and contain the prescribed reports, being reports each of which either indicates by way of note any adjustments as respects the figures of any profit or loss or assets and liabilities dealt with by the report that appear necessary to the person making the report or makes those adjustments and indicates that adjustments have been made; or (b) in any other case - set out such matters (if any) as the Commission requires and contain such reports (if any) as the Commission requires, being reports each of which either indicates by way of note any adjustments as respects the figures of any profit or loss or assets and liabilities dealt with by the report that appear necessary to the person making the report or makes those adjustments and indicates that adjustments have been made.
(3) A Part A statement referred to in this section may contain, in addition to the information referred to in this section and Part A of the Schedule, such information as the offeror thinks fit, not being information that is false in a material particular or materially misleading in the form or context in which it appears.
COMPANIES (ACQUISITION OF SHARES) ACT 1980 - SECT 17
Take-over announcementsSECT
17. (1) Section 11 does not prohibit the acquisition of shares in a stock exchange listed company if - (a) the shares are acquired as a result of the acceptance of offers made in accordance with this section; and (b) the requirements of this section that are applicable to the person acquiring the shares are complied with. (2) Subject to this section, a person, or 2 or more persons together, may make offers to acquire shares included in a class of shares in a stock exchange listed company by causing a dealer to make on its or their behalf at a relevant official meeting an announcement to the effect that, during the period of one month beginning on the first trading day of the company's home stock exchange after the end of 14 days after the day of the announcement, the dealer offers, on behalf of that person or those persons, to acquire, at a cash price per share specified in the announcement, all shares that are included in that class and in respect of which offers constituted by the announcement are accepted in accordance with subsection (2A).
(2A) Offers that relate to shares included in a class of shares in a company and that are constituted by an announcement made by a dealer in accordance with this section may be accepted:
(a) in any case - at a relevant official meeting; or (b) if the offers cannot be accepted at a particular relevant official meeting:
(i) because neither the dealer nor a representative of the dealer is present at that official meeting; (ii) because dealings in shares included in that class are not permitted at that official meeting; or (iii) for any other reason; by a notice in writing that is signed by or on behalf of a holder of shares included in that class and is served on the company's home stock exchange on the day of that official meeting.
(3) Except with the consent of the Commission, a person is not entitled, or 2 or more persons together are not entitled, to make offers pursuant to sub-section (2) in relation to shares in a company if that person, or either or any of those persons - (a) is entitled to not less than 30% of the voting shares in the company; or (b) in the case of a company the voting shares in which are divided into 2 or more classes of shares - is entitled to not less than 30% of the shares in one of those classes.
(5) Where:
(a) a dealer has made an announcement, in accordance with this section or a provision of a law of a participating State or participating Territory that corresponds with this section, at a relevant official meeting held on a stock market maintained or provided in the Territory; and (b) a notice accepting an offer made by virtue of the announcement is served on a stock exchange in accordance with this section or that provision, as the case may be; the stock exchange shall, as soon as practicable, notify the dealer of the acceptance of the offer.
5A. The statement shall set out particulars of the offeror's intentions regarding - (a) the continuation of the business of the target company; (b) any major changes to be made to the business of the target company, including any redeployment of the fixed assets of the target company; and (c) the future employment of the present employees of the target company.
6. The succeeding provisions of this Part apply only where the consideration to be offered in exchange for shares in the target company consists, in whole or in part, of marketable securities issued, or to be issued, by a corporation.
7. Where the marketable securities are listed for quotation on the stock market of a securities exchange, the statement shall state the fact, specify the securities exchange concerned and specify - (a) the latest recorded sale price before the date on which the statement is lodged with the Commission for registration; (b) the highest and lowest recorded sale prices during the 3 months immediately preceding that date and the respective dates of the relevant sales; and (c) where the take-over offers have been the subject of a public announcement in newspapers or by any other means before the statement is served on the target company, the latest recorded sale price immediately before the public announcement.
8. Where the marketable securities are listed for quotation on or dealt in on more than one securities exchange, it is sufficient compliance with paragraphs 7 (a) and (c) if information with respect to the marketable securities is given in relation to the securities exchange at which there has been the greatest number of recorded dealings in the securities in the 3 months immediately preceding the date on which the statement is served on the target company.
9. Where the securities are not listed for quotation on the stock market of a securities exchange, the statement shall set out all the information that the offeror has as to the number of the securities that have been sold in the 3 months immediately preceding the date on which the statement is served on the target company and the amount of those securities and the prices at which they were sold and, if the offeror does not have any such information, a statement to that effect.
10. Where marketable securities are to be issued, the information required under clauses 7, 8 and 9 shall be given in respect of such marketable securities as have been issued and are of the same class as those to be issued.
PART B - STATEMENT TO BE FURNISHED BY TARGET COMPANY TO WHICH TAKE-OVER SCHEME RELATES 1. The statement shall set out - (a) except in the case of a target company that is in the course of being would up or is under official management, in relation to each director of the target company - (i) if the director desires to make and considers himself justified in making, a recommendation in relation to the offers - whether the director recommends the acceptance of offers made or to be made by the offeror or recommends against such acceptance and, in either case, his reasons for so recommending; (ii) if the director is not available to consider the offers - that the director is not so available and the reasons for his being not so available; or (iii) in any other case - that the director does not desire to make a recommendation or does not consider himself justified in making a recommendation and his reasons for not so desiring or for so considering; or (b) in the case of a target company that is in the course of being wound up or is under official management, in relation to each liquidator or each official manager, as the case requires - (i) if the liquidator or official manager, as the case may be, desires to make and considers himself justified in making, a recommendation in relation to the offers - whether the liquidator or official manager, as the case may be, recommends the acceptance of offers made or to be made by the offeror or recommends against such acceptance and, in either case, his reasons for so recommending; or (ii) in any other case - that the liquidator or official manager, as the case may be, does not desire to make a recommendation or does not consider himself justified in making a recommendation and his reasons for not so desiring or for so considering.
2. The statement shall set out - (a) the number, description and amount of marketable securities of the target company held by or on behalf of each director of the company or, in the case of a director by or on behalf of whom none are so held, that fact; (b) in respect of each director of the target company by whom, or on whose behalf, shares in the target company are held - (i) whether the director intends to accept any offer that has been or may be made in respect of those shares; or (ii) that the director has not decided whether he will accept such an offer; (c) the name of any director of the target company who voted against the relevant resolution authorizing the Part B statement and, if the director so requires, a statement by that director setting out his reasons for so voting; (d) whether the offeror is or includes a corporation or corporations, whether any marketable securities of that corporation or of any of those corporations are held by, or on behalf of, any director of the target company and, if so, the number, description and amount of those marketable securities; (da) where the offeror is or includes a corporation or corporations - particulars of all acquisitions or disposals of shares in that corporation or any of those corporations by the target company or any person associated with the target company, in the period of 4 months immediately preceding the date on which the Part A statement relating to the offers was served on the target company, including particulars of the price per share in relation to each acquisition or disposal; (db) particulars of all acquisitions or disposals of shares in the target company, by any person associated with the target company, in the period of 4 months immediately preceding the date on which the Part A statement relating to the offers was served on the target company, including particulars of the price per share in relation to each acquisition or disposal; (e) where - (i) a prescribed benefit (not being an excluded benefit) will or may be given to a person in connection with the retirement of a person from a prescribed office in relation to the target company; or (ii) a prescribed benefit will or may be given to a prescribed person in relation to the target company in connection with the transfer of the whole or any part of the undertaking or property of the target company, particulars with respect to the prescribed benefit, including - (iii) in the case of a prescribed benefit that is a payment - the amount of the payment; or (iv) in any other case - the money value of the prescribed benefit; (f) where there is any other agreement or arrangement made between any director of the target company and any other person in connection with or conditional upon the outcome of the offers - particulars of any such agreement or arrangement; (g) whether any director of the target company has an interest in any contract entered into by the offeror and, if so, particulars of the nature and extent of each such interest; (h) if the shares to which the offers relate are not listed for quotation on the stock market of a stock exchange, all the information that the target company has as to the number of any such shares that have been sold in the 6 months immediately preceding the date on which the Part A statement relating to the offers was served on the target company and the amount of those shares and the prices at which they were sold; (j) whether, within the knowledge of - (i) in the case of a Part B statement that is signed as mentioned in paragraph 22 (2) (a) - any of the directors of the target company; or (ii) in the case of a Part B statement that is signed as mentioned in paragraph 22 (2) (b) - the liquidator or official manager, as the case may be, the financial position of the target company has materially changed since the date of the last balance-sheet of the company, being a balance-sheet that has been laid before the company in general meeting or dispatched to shareholders in accordance with section 274 of the Companies Act 1981 or a corresponding provision of a previous law of the Territory and, if so, full particulars of any such change or changes; and (k) any other information material to the making of a decision by an offeree whether or not to accept an offer, being information that is within the knowledge of - (i) in the case of a Part B statement that is signed as mentioned in paragraph 22 (2) (a) - any of the directors of the target company; or (ii) in the case of a Part B statement that is signed as mentioned in paragraph 22 (2) (b) - the liquidator or official manager, as the case requires, and has not previously been disclosed to the holders of shares in the target company, unless - (iii) the information would not be permitted to be included, without the consent of the Commission, in a statement referred to in section 37 or 38 that is made or issued to the public; and (iv) the Commission has refused to consent to the inclusion of the information in the Part B statement.
3. For the purposes of paragraph 2 (e) and of this clause - (a) sub-sections 233 (6), (6A) and (7) of the Companies Act 1981 apply as if that paragraph and this clause were provisions of section 233 of that Act and a reference in those subsections to a company were a reference to the target company; and (b) a reference to an excluded benefit is a reference to a prescribed benefit - (i) in relation to the giving of which sub-section 233 (2A) of that Act would apply; or (ii) that is a payment in relation to which paragraph (f) of the definition of "exempt benefit" in sub-section 233 (7) of that Act would apply, if a reference in sub-section 233 (2A) of that Act, or in that definition, as the case may be, to a company were a reference to the target company.
PART C - STATEMENT TO BE FURNISHED BY ON-MARKET OFFEROR 1. The statement shall set out full particulars of the offers constituted by the take-over announcement, including the period for which the offers will, unless withdrawn, remain open.
2. The statement shall - (a) where the on-market offeror is or includes a corporation or corporations - (i) specify the names, occupations and addresses of all the directors of the corporation or of each corporation; (ii) contain a summary of the principal activities of the corporation or of each corporation; and (iii) if the corporation or either or any of the corporations is included in a group of corporations consisting of a holding company and a subsidiary or subsidiaries - contain a summary of the principal activities of the group of corporations; (b) set out full particulars of the shares in the target company to which the on-market offeror is entitled or, if there are no such shares, set out a statement to that effect; (c) set out full particulars of marketable securities of the target company (not being shares) to which the on-market offeror is entitled or, if there are no such securities to which the on-market offeror is entitled, set out a statement to that effect; (d) where the on-market offeror is or includes a natural person or natural persons, specify the name, address and occupation of that person or of each of those persons and set out a summary of the principal business activities of that person or of each of those persons and specify the corporations (if any) of which that person or any of those persons is a director or other officer, it being sufficient, where a person is a director of one or more subsidiaries of the same holding company, to specify that he holds one or more directorships in a group of companies that may be described by the name of the holding company with the addition of the word "Group"; (e) set out particulars of all acquisitions or disposals of shares in the target company by the on-market offeror, or any person associated with the on-market offeror, in the period of 4 months immediately preceding the date of the take-over announcement, including particulars of the price per share in relation to each acquisition or disposal; (ea) where the on-market offeror is or includes a corporation or corporations - set out particulars of all acquisitions or disposals of shares in that corporation or any of those corporations by any person included in, or associated with, the on-market offeror, in the period of 4 months immediately preceding the date of the take-over announcement, including particulars of the price per share in relation to each acquisition or disposal; and (f) where the on-market offeror intends, if he is required under sub-section 43 (4) to give notice to the holders of any non-voting shares in, renounceable options granted by, or convertible notes issued by, the target company, to propose terms for the acquisition of those shares, renounceable options or convertible notes - set out those proposed terms.
3. The statement shall set out - (a) if the on-market offeror is to provide from his own funds some or all of the cash payable as consideration for the acquisition of shares to which the take-over announcement relates or for the acquisition of any shares, renounceable options, or convertible notes referred to in paragraph 2 (f) - particulars sufficient to identify the cash amounts held by the onmarket offeror for or in respect of payment of the consideration; and (b) if the on-market offeror is not to provide from his own funds all of the cash payable as consideration for the acquisition of shares to which the take-over announcement relates or for the acquisition of any shares, renounceable options or convertible notes referred to in paragraph 2 (f), or is not to provide any of that cash from his own funds - particulars sufficient to identify the other person who is, or each of the other persons who are, to provide, whether directly or indirectly, some or all of the cash from his or their own funds and particulars of the arrangements by which that cash will be provided by that other person or those other persons.
4. The statement shall set out - (a) where it is proposed in connection with the take-over announcement that any payment or other benefit will - (i) be made or given to any director, secretary or executive officer of the target company as compensation for loss of, or as consideration for or in connection with his retirement from, office as a director, secretary or executive officer or any other office in connection with the management of the target company or of a corporation that is related to the target company; or (ii) be made or given to any director, secretary or executive officer of any corporation that is related to the target company as compensation for loss of, or as consideration for or in connection with his retirement from, office as a director, secretary or executive officer or any other office in connection with the management of the target company or of a corporation that is related to the target company, particulars of the proposed payment or benefit; (b) where there is any other agreement or arrangement made between the on-market offeror and any of the directors of the target company in connection with or conditional upon the outcome of the take-over announcement - particulars of any such agreement or arrangement; (c) whether, within the knowledge of the on-market offeror, the financial position of the target company has materially changed since the date of the last balance-sheet laid before the company in general meeting and, if so, full particulars of the change known to the onmarket offeror; (d) where there is any agreement or arrangement whereby any shares acquired by the onmarket offeror pursuant to the take-over announcement will or may be transferred to any other person - (i) the names of the persons who are parties to the agreement or arrangement, the number, description and amount of the shares that will or may be so transferred and, if the transferee is not a party to the agreement or arrangement, the name of the transferee; and (ii) the number, description and amount of any shares in the target company held by or on behalf of each of the persons who are parties to the agreement or arrangement and, if the transferee is not a party to the agreement or arrangement, by or on behalf of the transferee or, if no such shares are so held, a statement to that effect; (e) where there is any agreement or arrangement for the acquisition of shares in the target company by the on-market offeror or by a person associated with the on-market offeror, being an agreement or arrangement under which the person, or either or any of the persons, from whom the shares have been or are to be acquired or any person associated with that person or with either or any of those persons may, at any time after the takeover announcement is made, become entitled to any benefit, whether by way of receiving an increased price for those shares or by payment of cash or otherwise, that is related to, dependent upon, or calculated in any way by reference to, the consideration payable for shares acquired after the agreement or arrangement was entered into - full particulars of that agreement or arrangement; and (f) any other information material to the making of a decision by an offeree whether or not to accept an offer made by virtue of the take-over announcement, being information that is within the knowledge of the on-market offeror and has not previously been disclosed to the holders of shares in the target company, unless - (i) the information would not be permitted to be included, without the consent of the Commission, in a statement referred to in section 37 or 38 that is made or issued to the public; and (ii) the Commission has refused to consent to the inclusion of the information in the Part C statement.
5. The statement shall set out particulars of the on-market offeror's intentions regarding - (a) the continuation of the business of the target company; (b) any major changes to be made to the business of the target company, including any redeployment of the fixed assets of the target company; and (c) the future employment of the present employees of the target company.
PART D - STATEMENT TO BE FURNISHED BY TARGET COMPANY TO WHICH TAKE-OVER ANNOUNCEMENT RELATES 1. The statement shall set out - (a) except in the case of a target company that is in the course of being wound up or is under official management, in relation to each director of the target company - (i) if the director desires to make and considers himself justified in making, a recommendation in relation to the offers - whether the director recommends the acceptance of offers constituted by the take-over announcement or recommends against such acceptance and, in either case, his reasons for so recommending; (ii) if the director is not available to consider the offers - that the director is not so available and the reasons for his being not so available; or (iii) in any other case - that the director does not desire to make a recommendation or does not consider himself justified in making a recommendation and his reasons for not so desiring or for so considering; or (b) in the case of a target company that is in the course of being wound up or is under official management, in relation to each liquidator or each official manager, as the case requires - (i) if the liquidator or official manager, as the case may be, desires to make and considers himself justified in making, a recommendation in relation to the offers - whether the liquidator or official manager, as the case may be, recommends the acceptance of offers constituted by the take-over announcement or recommends against such acceptance and, in either case, his reasons for so recommending; or (ii) in any other case - that the liquidator or official manager, as the case may be, does not desire to make a recommendation or does not consider himself justified in making a recommendation and his reasons for not so desiring or for so considering.
2. The statement shall set out - (a) the number, description and amount of marketable securities of the target company held by or on behalf of each director of the company or, in the case of a director by or on behalf of whom none are so held, that fact; (b) in respect of each director of the target company by whom, or on whose behalf, shares in the target company are held - (i) whether the director intends to accept any offer that has been made in respect of those shares; or (ii) that the director has not decided whether he will accept such an offer; (c) the name of any director of the target company who voted against the relevant resolution authorizing the Part D statement and, if the director so requires, a statement by that director setting out his reasons for so voting; (d) where the on-market offeror is or includes a corporation or corporations, whether any marketable securities of that corporation or of any of those corporations are held by, or on behalf of, any director of the target company and, if so, the number, description and amount of those marketable securities; (da) where the on-market offeror is or includes a corporation or corporations - particulars of all acquisitions or disposals of shares in that corporation or any of those corporations by the target company or any person associated with the target company, in the period of 4 months immediately preceding the date of the take-over announcement, including particulars of the price per share in relation to each acquisition or disposal; (db) particulars of all acquisitions or disposals of shares in the target company, by any person associated with the target company, in the period of 4 months immediately preceding the date of the take-over announcement, including particulars of the price per share in relation to each acquisition or disposal; (e) where - (i) a prescribed benefit (not being an excluded benefit) will or may be given to a person in connection with the retirement of a person from a prescribed office in relation to the target company; or (ii) a prescribed benefit will or may be given to a prescribed person in relation to the target company in connection with the transfer of the whole or any part of the undertaking or property of the target company, particulars with respect to the prescribed benefit, including - (iii) in the case of a prescribed benefit that is a payment - the amount of the payment; or (iv) in any other case - the money value of the prescribed benefit; (f) where there is any other agreement or arrangement made between any director of the target company and any other person in connection with or conditional upon the outcome of the offers constituted by the take-over announcement - particulars of any such agreement or arrangement; (g) whether any director of the target company has an interest in any contract entered into by the on-market offeror and, if so, particulars of the nature and extent of each such interest; (h) whether, within the knowledge of - (i) in the case of a Part D statement that is signed as mentioned in paragraph 32 (2) (a) - any of the directors of the target company; or (ii) in the case of a Part D statement that is signed as mentioned in paragraph 32 (2) (b) - the liquidator or official manager, as the case may be, the financial position of the target company has materially changed since the date of the last balance-sheet of the company, being a balance-sheet that has been laid before the company in general meeting or dispatched to shareholders in accordance with section 274 of the Companies Act 1981 or a corresponding provision of a previous law of the Territory and, if so, full particulars of any such change or changes; and (j) any other information material to the making of a decision by an offeree whether or not to accept an offer made by virtue of the take-over announcement, being information that is within the knowledge of - (i) in the case of a Part D statement that is signed as mentioned in paragraph 32 (2) (a) - any of the directors of the target company; or (ii) in the case of a Part D statement that is signed as mentioned in paragraph 32 (2) (b) - the liquidator or official manager, as the case requires, and has not previously been disclosed to the holders of shares in the target company, unless - (iii) the information would not be permitted to be included, without the consent of the Commission, in a statement referred to in section 37 or 38 that is made or issued to the public; and (iv) the Commission has refused to consent to the inclusion of the information in the Part D statement.
3. For the purposes of paragraph 2 (e) and of this clause - (a) sub-sections 233 (6), (6A) and (7) of the Companies Act 1981
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