Companies and Securities Legislation (Miscellaneous Amendments) Act 1985 (Cth)
PART I—PRELIMINARY
Section
1. Short title
2. Commencement
PART II—AMENDMENTS OF COMPANIES (ACQUISITION OF SHARES) ACT 1980
3. Principal Act
4. Definitions
5. Acquisition and disposal of, and entitlement to, shares, and associated persons
6. Other interpretative and evidentiary provisions
7. Insertion of new section—
8a. Approved manner of dispatch
8. Relevant interests in shares
9. Acquisition of shares permitted in certain circumstances
10. Acquisition of not more than 3% of voting shares permitted in each 6 months
11. Take-over offers
12. Take-over announcements
13. Registration of Part A statements and offers
14. Repeal of section 21 and substitution of new section—
21. Withdrawal of offers
TABLE
OF PROVISIONS—
Section
15. Variation of take-over offers
16. Declaration where take-over offers are conditional
17. Repeal of section 29
18. Insertion of new section—
39a. Notification of offeror’s entitlement
19. Provisions relating to dissenting shareholders
20. Orders where prohibited acquisitions take place
21. Orders where offers not dispatched pursuant to Part A statement
22. Orders to protect interests of certain persons
23. Miscellaneous provisions relating to orders
24. Repeal of section 52 and substitution of new section—
52. Announcements of proposed take-over bids
25. Offences
26. Repeal of sections 54, 63 and 64
27. Schedule
28. Further amendments relating to securities exchanges
PART III—AMENDMENTS OF COMPANIES ACT 1981
29. Principal Act
30. Interpretation
31. Affairs of a corporation
32. Relevant interests in shares
33. Associated persons
34. Power of Commission to require production of books
35. Repeal of section 16aand substitution of new section—
16a. Investigation of certain matters
36. Registration of auditors
37. Registration of liquidators
38. Notification of certain matters
39. Powers of Board in relation to auditors and liquidators
40. Proceedings at hearings
41 Notice of Board’s decision
42. Time when Board’s decision comes into effect
43. Appeal from decision of Board
44. Registers
45. Formation of companies
46. Amendment of Division heading
47. Insertion of new sections—
66a. Commencement of certain provisions
66b. Interpretation
66c. Object of sections 67 and 68
48. Legal capacity
49. Restrictions on companies
50. Repeal of section 68b
51. Alterations of memorandum
52. Repeal of section 78 and substitution of new section—
78. Operation of memorandum and articles
53. Contents of prospectuses
54. Certain notices, &c., not to be published
55. Application and interpretation
56. Substantial shareholdings and substantial shareholders
57. Repeal of section 141 and substitution of new section—
141. Copy of notice to be served on securities exchanges
58. Powers of Court with respect to defaulting substantial shareholder
59. Approval of deeds
60. Repeal of section 186 and substitution of new section—
186. Remedy for refusal to register transfer or transmission
61. Interpretation
62. Insertion of new section—
205a. Charges in favour of certain persons void in certain cases
TABLE
OF PROVISIONS—
Section
63. Insertion of new section—
215d. Retirement village schemes
64. Publication of name
65. Vacation of office
66. Insertion of new section—
229a. Liability of directors for debts, &c., incurred by corporation acting as trustee
67. Loans to directors
68. General duty to make disclosure
69. Benefits for loss of, or retirement from, office
70. Register of directors, principal executive officer and secretaries
71. Register of Disqualified Company Directors and Other Officers
72. Insertion of new section—
255a. Notices relating to non-beneficial and beneficial ownership of shares
73. Register and index of members
74. Trustee, &c., may be registered as owner of shares
75. Power of company to obtain information as to beneficial ownership of its shares
76. Powers of Court
77. Insertion of new Division—
265b. Inspection of records
265c. Disclosure of information
78. Interpretation
79. Insertion of new section—
266g. Annual Report
80. Profit and loss account, balance-sheet, group accounts, &c.
81. Directors’ reports
82. Relief from requirements as to accounts and reports
83. Members of company entitled to balance-sheet, &c.
84. Accounts and reports to be laid before annual general meeting
85. Appointment of auditors
86. Powers and duties of auditors as to reports on accounts
87. Interpretation and application
88. Record of examination
89. Admissibility of record of examination in evidence in proceedings against person examined
90. Admissibility in other proceedings of statements at an examination
91. Weight of evidence
92. Credibility of person who made statements
93. Determination of objection to admissibility of statement
94. Power to compromise with creditors and members
95. Powers of receiver
96. Reports by receiver
97. Prosecution of delinquent officers and members
98. Receiver to enjoy qualified privilege in certain circumstances
99. Payments of certain debts out of property subject to floating charge in priority to claims under charge
100. Certain provisions applicable to official management
101. Avoidance of dispositions of property, attachments, &c.
102. Powers of liquidator
103. Reports by liquidator
104. Expenses of winding up where property insufficient
105. Priority payments
106. Debts due to employees
107. Debts of a class to rank equally
108. Advances in respect of wages, retrenchment payments and leave of absence
109. Priority of employees’ claims over floating charges
110. Provisions relating to injury compensation
111. Priority where security given for payment of taxes
112. Prosecution of delinquent officers and members
113. Publication of name, &c., of recognised company or recognised foreign company
114. Unregistered foreign company not to establish place of business or carry on business in the Territory
TABLE
OF PROVISIONS—
Section
115. Notice to be lodged where documents, &c., altered
116. Balance-sheets and other documents
117. Publication of name, &c., of foreign company
118. Service of documents on recognised company or recognised foreign company
119. Offences by officers of certain companies
120. Offences relating to incurring of debts or fraudulent conduct
121. Falsification of books
122. Court may disqualify person from acting as director, &c., in certain circumstances
123. Insertion of new section—
562a. Commission may order persons not to manage corporations
124. False or misleading statements
125. Repeal of section 564 and substitution of new section—
564. False information, &c.
126. Dividends payable from profits only
127. General penalty provisions
128. Repeal of section 571 and substitution of new section—
571. Continuing offences
129. Officers and other persons in default
130. Regulations
131. Operation of certain Ordinances
132. Schedule 4
133. Further amendments relating to securities exchanges
PART IV—AMENDMENTS OF COMPANIES AND SECURITIES (INTERPRETATION AND MISCELLANEOUS PROVISIONS) ACT 1980
134. Principal Act
135. Regard to be had to purpose or object of relevant Act
136. Insertion of new section—
5b. Use of extrinsic material for interpretation of relevant Act
137. Definitions
138. Insertion of new section—
11a. References to persons, things and matters
139. References to writing, printing and documents
140. Insertion of new section—
13a. Production of records kept by means of computers, &c.
141. Insertion of new section—
14a. Service of documents on certain persons
142. Mention of officer in general terms
143. Insertion of new sections—
20a. Alterations of names and constitutions
20b. Compliance with forms
20c. Contents of statements of reasons for decisions
20d. Attainment of particular age
144. Conferral of power to make, grant or issue an instrument
145. Power to appoint
146. Insertion of new section—
23a. Delegations
147. References to amended, re-enacted or remade laws
148. Heading to Part III
149. Insertion of Division heading
150. Insertion of new section—
36a. Effect of alterations of penalties
151. Insertion of new Division—
38b. Standard of proof
PART V—AMENDMENT OF COMPANIES AND SECURITIES LEGISLATION (MISCELLANEOUS AMENDMENTS) ACT 1983
152. Principal Act
153. Schedule 1
TABLE
OF PROVISIONS—
Section
PART VI—AMENDMENTS OF NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
154. Principal Act
155. Interpretation
156. Membership of Commission
157. Acting appointments
158. Meetings of Commission
159. Divisions of Commission
160. Engagement of consultants
161. Proceedings at hearings
162. Delegation by Commission
163. Repeal of section 50
PART VII—AMENDMENTS OF SECURITIES INDUSTRY ACT 1980
164. Principal Act
165. Interpretation
166. Relevant interests in securities
167. Associated persons
168. Power of Commission to require production of books
169. Disclosure to Commission
170. Repeal of section 13 and substitution of new section—
13. Investigation of certain matters
171. Power of Court to make certain orders
172. Interpretation
173. Record of examination
174. Record to accompany report
175. Admissibility of record of examination in evidence in proceedings against person examined
176. Admissibility in other proceedings of statements at an examination
177. Weight of evidence
178. Credibility of person who made statements
179. Determination of objection to admissibility of statement
180. Provisions relating to reports
181. Power of Commission to make certain orders
182. Heading to Part III
183. Establishment, &c., of stock markets
184. Power of Ministerial Council to approve stock exchange
185. Insertion of new sections—
38a. Power of Ministerial Council to approve body corporate as approved securities organisation
38b. Publication of instruments executed under section 37, 38 or 38a
186. Securities exchanges to provide assistance to Commission
187. Power of Court to order observance or enforcement of business rules or listing rules of securities exchange
188. Insertion of new section—
42a. Certain laws not applicable to option contracts to which this Act applies
189. Further provisions relating to revocation and suspension of licences
190. Issue of contract notes
191. Insertion of new section—
65a. Recommendations
192. Short selling
193. Insertion of new section—
68a. Power of Commission to prohibit short selling in certain cases
194. Dealers’ trust accounts
195. Certain matters to be reported to Commission
196. Fraudulently inducing persons to deal in securities
197. Restrictions on use of titles “stockbroker”, “sharebroker” and “stock exchange”
198. Repeal of section 142 and substitution of new section—
142. Continuing offences
199. Offences by bodies corporate
200. Further amendments relating to securities exchanges
TABLE
OF PROVISIONS—
SCHEDULE 1
FURTHER AMENDMENTS OF THE COMPANIES (ACQUISITION OF SHARES) ACT 1980 RELATING TO SECURITIES EXCHANGES
SCHEDULE 2
FURTHER AMENDMENTS OF THE COMPANIES ACT 1981 RELATING TO SECURITIES EXCHANGES
SCHEDULE 3
FURTHER AMENDMENTS OF THE SECURITIES INDUSTRY ACT 1980 RELATING TO SECURITIES EXCHANGES
[
BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:
(a) by omitting the definition of “home exchange” and substituting the following definition:
“ ‘home stock exchange’, in relation to a stock exchange listed company, means the stock exchange designated to the company as its Home Exchange by the Australian Associated Stock Exchanges;”;
(b) by inserting “, except in the definition of ‘stock market’,” before “means” in the definition of “invitation”;
(c) by omitting the definition of “listed public company” and substituting the following definition:
“ ‘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;”;
(d) by inserting after the definition of “non-voting share” the following definition:
“ ‘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 (not being a stock exchange) to whose official list the company has been admitted and from whose official list the company has not been removed;”;
(e) by inserting after the definition of “prescribed occurrence” the following definition:
“ ‘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;”;
(f) by inserting after the definition of “renounceable option” the following definition:
“ ‘securities exchange’ means 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;”;
(g) by omitting the definition of “stock market” and substituting the following definition:
“ ‘stock exchange listed company’ means a company that has been admitted to the official list of a stock exchange and that has not been removed from that official list;”; and
(h) by omitting the definition of “trading day” and substituting the following definitions:
“ ‘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.”.
(a) by inserting in sub-section (3) “ (in this sub-section and sub-section (4) referred to as the ‘relevant company’)” after “a company”;
(b) by inserting in sub-section (3) “, being the relevant company or any other person,” before “is entitled”;
(c) by inserting in sub-paragraph (4) (a) (ii) “(including the relevant company)” after “corporation”;
(d) by inserting in paragraph (4) (b) “(including the relevant company)” after “a person”;
(e) by omitting sub-paragraphs (4) (b) (i), (ii) and (iii) and substituting the following paragraphs:
“(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;”;
(f) by inserting in paragraphs (4) (c), (d), (e) and (f) “(including the relevant company)” after “a person”;
(g) by omitting from paragraphs (4) (c), (d), (e) and (f) “company referred to in sub-section (3)” and substituting “relevant company”;
(h) by inserting in paragraph (4) (g) “(including the relevant company)” after “another person”; and
(j) by omitting paragraph (5) (b) and substituting the following paragraph:
“(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; or
(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;”.
(a) by omitting from sub-section (3) “A” and substituting “Unless the contrary intention appears, a”; and
(b) by adding at the end the following sub-section:
“(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.”.
“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
(a) by omitting sub-sections (4) and (5) and substituting the following sub-sections:
“(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.”;
(b) by omitting from sub-section (7) “deemed by sub-section (6)” and substituting “to be deemed, by virtue of sub-section (6),”; and
(c) by omitting from sub-paragraph (8) (c) (i) “is deemed, by sub-section (6),” and substituting “is to be deemed, by virtue of sub-section (6),”.
“(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.”.
(a) by omitting from paragraph (2) (c) “an offer is dispatched in a manner approved by the Commission” and substituting “the offeror dispatches an offer in an approved manner”;
(b) by omitting sub-paragraph (2) (f) (iv) and substituting the following sub-paragraph:
“(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);”; and
(c) by omitting sub-paragraph (2) (f) (vii) and substituting the following sub-paragraph:
“(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 last-mentioned day; and”.
“(2a) Where a copy of a Part A statement and a copy of a proposed offer are lodged with the Commission for registration under sub-section (1), the Commission may refuse to register the copy of the proposed offer if the proposed offer is subject to a prescribed condition the fulfilment of which depends on—
(a) an opinion, belief or other state of mind of the offeror or of a person associated with the offeror; or
(b) whether or not a particular event happens, being an event that is within the sole control of the offeror or of a person associated with the offeror.
“(2b) Where a copy of a Part A statement relating to an offer to acquire shares (whether the offer was made before, or is made after, the relevant commencement) was lodged with the Commission before the relevant commencement for registration under sub-section (1) of this section, then—
(a) section 13, paragraph 16 (2) (f), sub-section (2a) of this section, and sections 21, 27 and 28, as in force after the relevant commencement, do not apply; and
(b) notwithstanding the amendments made, and the repeals effected, by sections 9, 11, 13, 14, 15, 16 and 17 of the relevant Act, the provisions of section 13, paragraph 16 (2) (f), this section and sections 21, 27, 28
and 29 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.
“(2c) In sub-section (2b) and this sub-section—
‘relevant Act’ means the
Companies and Securities Legislation (Miscellaneous Amendments )Act 1985 ;‘relevant commencement’ means the commencement of sections 9, 11, 13, 14, 15, 16 and 17 of the relevant Act.”.
“21. A take-over offer is not capable of being withdrawn without the consent in writing of the Commission, which may be given subject to such conditions (if any) as are specified in the consent.”.
(a) by inserting after sub-section (8) the following sub-section:
“(8a) Sub-section (8) has effect in relation to a take-over scheme subject to any condition specified in a consent under section 21 given in relation to an offer made under the take-over scheme.”;
(b) by omitting sub-section (10) and substituting the following sub-section:
“(10) Variations of offers under a take-over scheme shall be made by—
(a) serving on the target company a notice in writing—
(i) signed in the same manner as a Part A statement is required by paragraph 16 (2) (d) to be signed;
(ii) setting out the terms of the proposed variation and particulars of such modifications of the relevant Part A statement as are necessary having regard to the variation; and
(iii) in a case where the effect of the proposed variation will be to postpone for a period exceeding one month the time when the offeror’s obligations under the take-over scheme are to be satisfied—stating the effect of the provisions of sub-section (12) of this section; and
(b) dispatching in an approved manner to each person to whom an offer was made under the take-over scheme (including a person who has accepted an offer so made) a copy of that notice.”;
(c) by omitting paragraph (11) (a) and substituting the following paragraph:
“(a) serve on the target company a notice in writing signed in the same manner as a Part A statement is required by paragraph 16 (2) (d) to be signed and setting out any information that the offeror would have been required to include in the relevant Part A statement if the statement had been lodged with the Commission for registration 5 months after the date that the offer bears, being information that differs from the information included in that relevant Part A statement;”;
(d) by omitting from paragraph (11) (b) “a manner approved by the Commission” and substituting “an approved manner”; and
(e) by omitting from sub-section (12) “relating to the offer dispatched pursuant to sub-section (11),” and substituting “under sub-section (10) in relation to a variation of offers under the relevant take-over scheme, being a variation the effect of which is to postpone for a period exceeding one month the time when the offeror’s obligations under the take-over scheme are to be satisfied,”.
“(9) Where—
(a) offers made under a take-over scheme have at any time been subject to a prescribed condition; and
(b) as at the time immediately after the end of the period during which the offers remained open—
(i) the offeror has not declared the offers to be free from the condition;
(ii) the offers have not become free from the condition by virtue of the operation of sub-section 30 (1); and
(iii) the condition has not been fulfilled,
all contracts resulting from the acceptance of offers made under the take-over scheme, and all such offers that have been accepted and from whose acceptance binding contracts have not yet resulted, are void.”.
“39a. (1) In this section—
‘company’ does not include a listed company;
‘prescribed percentage’ means—
(a) 25%;
(b) 50%;
(c) 75%; or
(d) 90%;
‘relevant period’, in relation to a company, means—
(a) a period commencing when a Part A statement is served on the company and ending at the expiration of 28 days after the day on which the statement is served or, if take-over offers are dispatched pursuant to the statement within those 28 days, at the expiration of the period during which the take-over offers remain open; and
(b) if take-over offers are dispatched, in accordance with an order under section 46, pursuant to a Part A statement served on the company—the period during which the take-over offers remain open;
‘relevant person’, in relation to a relevant period in relation to a company, means the person who is, or each of the persons who constitute, the offeror in relation to the Part A statement concerned.
“(2) Where—
(a) at a particular time during a period that is a relevant period in relation to a company, the percentage of the voting shares in the company to which a relevant person is entitled is less than a prescribed percentage; and
(b) immediately after that time, the percentage of the voting shares in the company to which the relevant person is entitled is equal to or greater than that prescribed percentage,
the relevant person shall, as soon as practicable, and in any event within 2 business days, after that time, serve on the company a notice in writing setting out the percentage of the voting shares in the company to which the relevant person is entitled at the time when the notice is so served.
“(3) Where a company receives a notice under sub-section (2), it shall make the notice available at its registered office for inspection without charge by any member of the company at any time during the remainder of the relevant period in relation to the company, being a time at which the registered office is open and accessible to the public”.
“(fa) an order cancelling a contract, arrangement or offer for or in connection with the acquisition of the shares, or of such of the shares as are specified in the order;
(fb) an order declaring a contract, arrangement or offer for or in connection with the acquisition of the shares, or of such of the shares as are specified in the order, to be voidable;”.
(a) by omitting “is served on a target company” from paragraph (1) (a) and substituting “, being offers relating to shares included in a class of shares in a target company, is served on the company”;
(b) by omitting “in the company” from paragraph (1) (b) and substituting “included in that class”; and
(c) by omitting paragraph (1) (f) and substituting the following paragraph:
“(f) an order directing the offeror, within such time as is specified in the order, to dispatch in an approved manner to each holder (other than the offeror) of shares included in that class an offer to which the Part A statement relates.”.
(a) by omitting from sub-section (1) “rights” (first occurring) and substituting “interests”; and
(b) by inserting after sub-section (1) the following sub-section:
“(1a) Where an offeror contravenes a condition specified in a consent under section 21 given in relation to an offer made under a take-over scheme, the Court may, on the application of the Commission, the target company in relation to the take-over scheme, or any person affected by the contravention, make such orders as the Court thinks necessary or expedient to protect the interests of a person
affected by the contravention, including, but without limiting the generality of the foregoing, one or more of the following orders:
(a) an order directing the offeror to supply to the holders of shares in the target company such information as is specified in the order;
(b) in a case where the contravention is constituted by a failure to do a particular act or thing—an order directing the offeror to do that act or thing within such period as is specified in the order, notwithstanding that the period specified in the condition for the doing of the act or thing has expired;
(c) an order of a kind referred to in any of paragraphs (1) (c) to (j), inclusive.”.
“(4) Without limiting the nature of the orders that may be made by the Court under section 45, 46, 47 or 60 directing the disposal of, or of an interest in, a share in a company, such an order may include one or more of the following provisions:
(a) a provision that the disposal shall be made within such time and subject to such conditions (if any) as the Court thinks fit, including, if the Court thinks fit, a condition that the disposal shall not be made to a particular person or persons or to persons included in a particular class or classes of persons;
(b) a provision that a person specified in the order is liable to pay to the company an amount equal to the amount of any profit made by the person as a result of, or in connection with, the disposal of the shares;
(c) a provision that a person specified in the order shall, for all purposes connected with the disposal of the shares, be deemed to hold the shares as a trustee for the beneficial owner of the shares.”.
“52. (1) A person shall not, whether alone or together with another person or other persons, make a public announcement to the effect that he proposes, or that he and another person, or he and other persons, together propose, to make take-over offers or to cause take-over offers to be made, or to cause a take-over announcement to be made, if—
(a) he knows that the announcement is false or is recklessly indifferent to whether it is true or false;
(b) in the case of an announcement that he proposes to make take-over offers, or to cause take-over offers to be made, or to cause a take-over
announcement to be made—he has no reasonable grounds for believing that he will be able to perform his obligations arising under the take-over scheme or take-over announcement, or arising under this Act in connection with the take-over scheme or take-over announcement, if a substantial proportion of the take-over offers, or of the offers constituted by the take-over announcement, as the case may be, are accepted; or
(c) in the case of an announcement that he and another person, or he and other persons, together propose to make take-over offers, or to cause take-over offers to be made, or to cause a take-over announcement to be made—he has no reasonable grounds for believing that he and the other person, or he and the other persons, as the case may be, will together be able to perform their obligations arising under the take-over scheme or take-over announcement, or arising under this Act in connection with the take-over scheme or take-over announcement, if a substantial proportion of the take-over offers, or of the offers constituted by the take-over announcement, as the case may be, are accepted.
“(2) A person who contravenes sub-section (1) is guilty of an offence the penalty for which is a fine not exceeding $20,000 or imprisonment for a period not exceeding 5 years, or both.
“(3) Where a person, whether alone or together with another person or other persons, makes a public announcement to the effect that he proposes, or that he and another person or other persons together propose, to make a take-over bid in relation to shares in a company, the person shall, within 2 months after making the announcement or such further period as the Commission permits in writing, either alone or together with another person or other persons, make a take-over bid in relation to shares in that company in accordance with the public announcement.
“(4) A person who contravenes sub-section (3) is guilty of an offence the penalty for which is a fine not exceeding $10,000 or imprisonment for a period not exceeding 2 years, or both.
“(5) A person who—
(a) makes a public announcement in contravention of sub-section (1) and fails, in contravention of sub-section (3), to make a take-over bid in accordance with the announcement; and
(b) is convicted of an offence under sub-section (2) or (4) in respect of one of those contraventions,
is not liable to be convicted of an offence under sub-section (4) or (2), as the case may be, in respect of the other of those contraventions.
“(6) In any proceedings, if there is produced a certificate in writing by the Commission stating that the Commission has not, pursuant to sub-section (3), permitted a further period for a person or persons specified in the certificate to
make a take-over bid in relation to shares in a company so specified, it shall be presumed, unless the contrary is established, that no such further period was permitted.
“(7) A person who makes a public announcement in contravention of sub-section (1) or fails, in contravention of sub-section (3), to make a take-over bid in accordance with a public announcement (whether or not he has been convicted of an offence in respect of the contravention) is liable to pay compensation to any other person who suffered loss as a result of entering into a transaction with respect to shares in reliance on the public announcement, and the amount of the compensation that the first-mentioned person is liable to pay is an amount equal to the difference between the price of the shares at which the transaction was entered into and the price of the shares at which the transaction would have been likely to be entered into if the first-mentioned person had not made the public announcement.
“(8) A person—
(a) is not guilty of an offence under sub-section (4); and
(b) is not liable to pay compensation under sub-section (7),
in respect of a failure to make a take-over bid in accordance with a public announcement made by the person if it is established that—
(c) by virtue of circumstances that existed at the time of the making of the public announcement but of which the person had no knowledge and could not reasonably have been expected to have knowledge; or
(d) by virtue of a change in circumstances after the making of the announcement, not being a change in circumstances caused, whether directly or indirectly, by the person,
the person could not reasonably have been expected to make the take-over bid.
“(9)
Notwithstanding anything in section 5 of this Act, neither section 571, nor
sub-section 574 (2), of the
“(10) In this section—
(a) a reference to making a take-over bid is a reference to—
(i) making take-over offers;
(ii) causing take-over offers to be made; or
(iii) causing a take-over announcement to be made; and
(b) a reference to making a take-over bid in accordance with a public announcement to the effect that a take-over bid is proposed to be made is a reference to making a take-over bid the terms and conditions of which are the same as, or not substantially less favourable to the shareholders in the target company than, the terms and conditions of the take-over bid referred to in the public announcement.”.
“(5) Notwithstanding anything in section 5 of this Act—
(a) section 570, and sub-section 571 (7), of the
Companies Act 1981 do not apply in relation to this Act; and(b) sub-section 571 (5) of that Act has effect for the purposes of this Act as if ‘the penalty applicable to the offence’ were omitted from that sub-section and ‘the penalty for the offence’ were substituted.
“(6)
Notwithstanding anything in section 5 of this Act or in paragraph (5) (b) of
this section, sub-sections 571 (1) to (6), inclusive, of the
(a) by omitting paragraph 2 (e) of Part B and substituting the following paragraph:
“(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;”;
(b) by adding at the end of Part B the following clause:
“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 sub-sections 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.”;
(c) by omitting paragraph 2 (e) of Part D and substituting the following paragraph:
“(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;”; and
(d) by adding at the end of Part D the following clause:
“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 sub-sections 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.”.
(a) by omitting from paragraph (a) of the definition of “director” in sub-section (1) “and” (last occurring);
(b) by adding at the end of the definition of “director” in sub-section (1) the following word and paragraph:
“and (c) in the case of a foreign company—
(i) a member of the committee of management, council or other governing body of the foreign company;
(ii) any person occupying or acting in the position of member of the committee of management, council or other governing body of the foreign company, by whatever name called and whether or not validly appointed to occupy or duly authorised to act in the position; and
(iii) any person in accordance with whose instructions the members of the committee of management, council or other governing body of the foreign company are accustomed to act;”;
(c) by omitting the definition of “home exchange” in sub-section (1);
(d) by inserting after the definition of “official manager” in sub-section (1) the following definitions:
“ ‘on’, in relation to a stock market, includes at or by means of;
‘participation interest’ means any right to participate, or any interest—
(a) in any profits, assets or realisation of any financial or business undertaking or scheme whether in the Territory or elsewhere;
(b) in any common enterprise, whether in the Territory or elsewhere, in relation to which the holder of the right or interest is led to expect profits, rent or interest from the efforts of the promoter of the enterprise or a third party; or
(c) in any investment contract,
whether or not the right or interest is enforceable, whether the right or interest is actual, prospective or contingent, whether or not the right or interest is evidenced by a formal document and whether or not the right or interest relates to a physical asset, but does not include—
(d) such a right that is a right to participate in a time-sharing scheme;
(e) any share in, or debenture of, a corporation;
(f) any interest in, or arising out of, a policy of life insurance; or
(g) an interest in a partnership agreement, unless the agreement or proposed agreement—
(i) relates to an undertaking, scheme, enterprise or investment contract promoted by or on behalf of a person whose ordinary business is or includes the promotion of similar undertakings, schemes, enterprises or investment contracts, whether or not that person is, or is to become, a party to the agreement or proposed agreement; or
(ii) is or would be an agreement, or is or would be within a class of agreements, prescribed by the regulations for the purposes of this paragraph;”;
(e) by omitting the definition of “prescribed interest” in sub-section (1) and substituting the following definition:
“‘prescribed interest’ means—
(a) a participation interest; or
(b) a right, whether enforceable or not, whether actual, prospective or contingent and whether or not evidenced by a formal document, to participate in a time-sharing scheme,
but does not include a right or interest, or a right or interest included in a class or kind of rights or interests, declared by the
regulations to be an exempt right or interest, or a class or kind of exempt rights or interests, for the purposes of Division 6 of Part IV;”;
(f) by inserting after the definition of “public company” in sub-section (1) the following definition:
“‘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;”;
(g) by inserting after the definition of “securities” in sub-section (1) the following definition:
“‘securities exchange’ means, where the expression appears in a provision for the purposes of which a regulation is in force defining that expression, a securities exchange as defined by that regulation;”;
(h) by omitting from sub-section (1) the definition of “stock market” and substituting the following definition:
“‘stock market’ means a market, exchange or other place (whether or not in the Territory) at which, or a facility (whether or not in the Territory) by means of which—
(a) offers to sell, purchase or exchange securities of corporations are regularly made or accepted;
(b) offers or invitations are regularly made, 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 securities of corporations; or
(c) information is regularly provided concerning the prices 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 securities of corporations;”;
(j) by inserting “, whether in the Territory or elsewhere” after “enterprise” (first occurring) in the definition of “time-sharing scheme” in sub-section (1);
(k) by inserting after sub-section (1) the following sub-section:
“(1a) Unless the contrary intention appears, a reference in this Act to a person carrying on business, or carrying on a business, includes a reference to the person carrying on business, or carrying on a business, as the case may be—
(a) in any case—otherwise than for profit; or
(b) in the case of a body corporate—otherwise than for the profit of the members or corporators of the body corporate.”;
(m) by omitting from sub-section (8) “(f) (ii) of the definition of ‘prescribed interest’ ” and substituting “(g) (ii) of the definition of ‘participation interest’ ”; and
(n) by omitting from paragraph (8) (a) “Territory” and substituting “Commonwealth, of a State or of a Territory”.
“(8d) For the purposes of this Act, a person shall be taken to be or become subject to a section 562anotice if, and only if, the person is or becomes, as the case may be, by virtue of a notice served on the person under sub-section 562a(3) or under a provision of a law of a participating State or participating Territory that corresponds with that sub-section, prohibited, without the leave of the Court, from being a director or promoter of, or from being in any way (whether directly or indirectly) concerned in or taking part in the management of, a corporation, and a reference in this Act to a section 562a notice is a reference to a notice so served.”.
(a) by omitting sub-sections (4) and (5) and substituting the following sub-sections:
“(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 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.
“(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.”;
(b) by omitting from sub-section (7) “deemed by sub-section (6)” and substituting “to be deemed, by virtue of sub-section (6),”; and
(c) by omitting from sub-sub-paragraph (8) (a) (iii) (a) “is deemed, by sub-section (6),” and substituting “is to be deemed, by virtue of sub-section (6),”.
“(9a) A body corporate may, by virtue of this section, be taken or deemed, for the purposes of the provisions referred to in paragraph (1) (a) or (b), as the case requires, to have a relevant interest in a share in the body corporate itself.”.
(a) by omitting from paragraph (1) (b) “corporation—a person” and substituting “corporation (including, in a case where the other person
is a corporation, the other person)—a person (including the corporation)”; and
(b) by omitting sub-paragraphs (1) (b) (i), (ii) and (iii) and substituting the following sub-paragraphs:
“(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 corporation;
(ii) with a view to controlling or influencing the composition of the board of directors, or the conduct of affairs, of the corporation;
(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 corporation; or
(iv) under which the first-mentioned person, or the other person, may be required to dispose of shares in the corporation in accordance with the directions of the other person, or of the first-mentioned person, as the case may be;”.
(a) by omitting paragraph (1) (a) and substituting the following paragraph:
“ (a) for the purpose of—
(i) the performance of a function, or the exercise of a power, by the Commission under a relevant Act (other than the exercise of a power of the Commission under sub-section 6 (3) of the
National Companies and Securities Commission Act 1979 ); or(ii) ensuring compliance with the provisions of a relevant Act; or”;
(b) by omitting from sub-paragraph (1) (b) (i) “such a relevant Act or corresponding law” and substituting “a relevant Act”; and
(c) by inserting after sub-section (1) the following sub-section:
“(1a) A reference in sub-section (1) to a relevant Act includes a reference to the provisions of a law of a participating State or participating Territory that correspond with a relevant Act.”.
“ 16a. Where the Commission has reason to suspect that—
(a) an offence under a provision of a relevant Act; or
(b) an offence relating to a company, being an offence that involves fraud or dishonesty or concerns the management of affairs of the company,
may have been committed, the Commission may make such investigation as the Commission thinks expedient for the due administration of a relevant Act.”.
(a) by omitting from sub-section (4) “or a section 562 order” and substituting “, a section 562 order or a section 562a notice”;
(b) by inserting in sub-section (4) “in writing” after “particulars” (first occurring);
(c) by omitting from sub-section (4) “or particulars in writing” and substituting “, or”; and
(d) by omitting from sub-section (4) “or section 562 order” and substituting “, section 562 order or section 562a notice”.
(a) by omitting sub-paragraphs (1) (a) (i) and (ii), (2) (a) (i) and (ii) and (3) (a) (i) and (ii);
(b) by inserting after sub-section (6) the following sub-sections:
“(6a) The Board shall, if it is satisfied on an application by the Commission for a prescribed person to be dealt with under this section—
(a) that the person is subject to a section 227 prohibition, a section 227a order, a section 562 order or a section 562a notice; or
(b) that the person is incapable, by reason of mental infirmity, of managing his affairs,
by order, cancel each prescribed registration of the person.
“(6b) In sub-section (6a) and in this sub-section—
‘prescribed person’ means a person who is registered as an auditor, as a liquidator or as a liquidator of a specified corporation;
‘prescribed registration’, in relation to a prescribed person, means a registration of the person as an auditor, as a liquidator or as the liquidator of a specified corporation.”;
(c) by omitting from sub-section (7) “, in addition to or instead of cancelling or suspending the registration of the person as an auditor, liquidator or liquidator of that corporation, as the case may be,”;
(d) by inserting after sub-section (7) the following sub-section:
“(7a) Where, on an application by the Commission for a person who is registered as an auditor, as a liquidator or as a liquidator of a specified corporation to be dealt with under this section, the Board is empowered to deal with the person as mentioned in sub-section (7), the Board may so deal with the person—
(a) in a case where the Board is required to make an order under sub-section (6a) on the application—in addition to making such an order; or
(b) in any other case—in addition to or instead of cancelling or suspending the registration of the person as an auditor, as a liquidator or as a liquidator of that corporation, as the case may be.”; and
(e) by adding at the end the following sub-sections:
“(11) This section (other than this sub-section) as in force after the commencement of section 39 of the
Companies and Securities Legislation (Miscellaneous Amendments )Act 1985 applies in relation to a prescribed application made after that commencement and, notwithstanding the amendments made by that section, this section as in force immediately before that commencement continues to apply in relation to a prescribed application made before that commencement.“(12) In sub-section (11), ‘prescribed application’ means an application by the Commission for a person who is registered as an auditor, as a liquidator or as a liquidator of a specified corporation to be dealt with under this section.”.
“(a) the Commission may be represented by—
(i) an employee, or a member or acting member, of the Commission; or
(ii) a person authorised by the Commission for the purpose;”.
liquidator of a specified corporation” and substituting “, or decides that it is required to make an order under sub-section 30d (6a) in relation to a person”.
(a) by omitting from sub-section (1) “a decision of the Board to cancel or suspend” and substituting “an order made by the Board cancelling or suspending”;
(b) by inserting in sub-section (1) “pursuant to which the order is made” before “, being”;
(c) by omitting from sub-section (2) “a decision” (first occurring) and substituting “an order”;
(d) by inserting in sub-section (2) “pursuant to which the order is made” after “decision” (second occurring);
(e) by omitting from sub-section (2) “a decision, the decision” and substituting “an order, the order”; and
(f) by omitting from sub-paragraphs (2) (b) (ii) and (c) (ii) “decision” and substituting “order”.
(a) by inserting in sub-section (1) “any order made by the Board pursuant to the decision and may” after “and” (first occurring); and
(b) by inserting in sub-section (2) “any order made by the Board pursuant to the decision and may” after “and” (second occurring).
(a) by omitting from sub-paragraph (2) (a) (iia) “or”; and
(b) by inserting after sub-paragraph (2) (a) (iia) the following sub-paragraph:
“(iib) a report made or lodged, whether before or after the commencement of section 44 of the
Companies and Securities Legislation (Miscellaneous Amendments )Act 1985 , under section 324c, 351 or 418; or”.
“66a. The following provisions shall be deemed to have come into operation on 1 January 1984:
(a) the heading to this Division, as amended by section 46 of the
Companies and Securities Legislation (Miscellaneous Amendments )Act 1985 ;(b) sections 66b and 66c of this Act;
(c) sections 67 and 68 of this Act, as amended by sections 48 and 49, respectively, of that Act.
“66b. In this section and in sections 66c, 67 and 68—
(a) a reference to a company is a reference to a company whether incorporated before, on or after 1 January 1984;
(b) a reference to the doing of an act by a company includes a reference to the making of an agreement by the company and a reference to a transfer of property to or by the company;
(c) a reference to a restriction on, or a prohibition of, the exercise by a company of any of its powers, being a restriction or prohibition contained in the rules of the company, is, in the case of a company incorporated before 1 January 1984, a reference to such a restriction or prohibition whether or not the restriction or prohibition was so contained immediately before that day;
(d) a reference to legal capacity includes a reference to powers; and
(e) a reference to the rules of a company is a reference to the memorandum and articles of the company.
“66c. The object of sections 67 and 68 is—
(a) to abolish the doctrine of
ultra vires in its application to companies; and(b) without affecting the validity of the dealings of a company with outsiders, to ensure that provisions of the rules of a company relating to objects or powers of the company are given effect to by the company’s officers and members,
and those sections shall be construed, and have effect, accordingly.”.
(a) by omitting from sub-section (1) all the words from and including “Subject to” to and including “has power—” and substituting “A company has, both within and outside the Territory, the legal capacity
of a natural person and, without limiting the generality of the foregoing, has, both within and outside the Territory, power—”; and
(b) by omitting sub-sections (2), (3) and (4) and substituting the following sub-sections:
“(2) Sub-section (1) has effect in relation to a company—
(a) subject to this Act (other than sub-section 68 (1));
(b) in a case where the rules of the company contain an express or implied restriction on, or an express or implied prohibition of, the exercise by the company of any of its powers— notwithstanding any such restriction or prohibition;
(c) in a case where the memorandum of the company contains a provision stating the objects of the company—notwithstanding that fact; and
(d) notwithstanding sub-section 68 (1).
“(3) The fact that the doing of an act by a company would not be, or is not, in the best interests of the company does not affect the legal capacity of the company to do the act.”.
(a) by omitting sub-sections (1) to (5) (inclusive) and substituting the following sub-sections:
“(1a) The rules of a company may contain an express restriction on, or an express prohibition of, the exercise by the company of a power of the company.
“(1) Where—
(a) a company exercises a power contrary to an express restriction on, or an express prohibition of, the exercise of that power, being a restriction or prohibition contained in the rules of the company; or
(b) the memorandum of a company contains a provision stating the objects of the company and the company does an act otherwise than in pursuance of those objects,
the company contravenes this sub-section.
“(2) Where an officer of a company is in any way, by act or omission, directly or indirectly, knowingly concerned in or party to a contravention by the company of sub-section (1), the officer contravenes this sub-section.
“(3) A company that contravenes sub-section (1), or an officer of a company who contravenes sub-section (2), is not guilty of an offence by virtue of this section or section 570.
“(4) Where, by exercising a power as mentioned in paragraph (1) (a), or by doing an act as mentioned in paragraph (1) (b), a company contravenes sub-section (1), the exercise of the power, or the act, as the case may be, is not invalid by reason only of the contravention.
“(5) An act of an officer of a company is not invalid by reason only that, by doing the act, the officer contravenes sub-section (2).”;
(b) by omitting paragraphs (6) (a) and (b) and substituting the following paragraphs:
“(a) by exercising a power as mentioned in paragraph (1) (a), or by doing an act as mentioned in paragraph (1) (b), a company contravened, or would contravene, sub-section (1); or
(b) by doing a particular act, an officer of a company contravened, or would contravene, sub-section (2),”;
(c) by adding at the end of paragraph (6) (f) “to restrain the company from entering into an agreement”;
(d) by inserting in paragraph (6) (g) “(other than an application for an injunction)” after “proceedings”; and
(e) by adding at the end the following sub-section:
“(7) Where, if sub-section (6) had not been enacted, the Court would have power under section 574 to grant, on the application of a person, an injunction restraining a company, or an officer of a company, from engaging in particular conduct constituting a contravention of sub-section (1) or (2), as the case may be, the Court may, on the application of that person, order the first-mentioned company, or the officer, as the case may be, to pay damages to that person or any other person.”.
“(14) In this section—
(a) a reference to a memorandum includes a reference to a memorandum registered under a corresponding previous law of the Territory; and
(b) a reference to a provision of the memorandum of a company that could lawfully have been contained in the articles of the company is, in the case of a memorandum of a company registered under a corresponding previous law of the Territory, a reference to a provision of the memorandum of the company that could lawfully have been contained in the articles of the company if the memorandum and articles of the company had been registered under this Act.”.
“78. (1) Subject to this Act, the memorandum and articles of a company have the effect of a contract under seal—
(a) between the company and each member;
(b) between the company and each officer; and
(c) between a member and each other member,
under which each of the above-mentioned persons agrees to observe and perform the provisions of the memorandum and articles as in force for the time being so far as those provisions are applicable to that person.
“(2) Subject to section 476, any money payable by a member of a company to the company under the memorandum or articles is a debt from him to the company and is of the nature of a specialty debt.
“(3) A member of a company, unless either before or after the alteration is made he agrees in writing to be bound by it, is not bound by an alteration of the memorandum or articles made after the date on which he became a member so far as the alteration—
(a) requires him to take or subscribe for more shares than the number held by him at the date of the alteration;
(b) in any way increases his liability as at the date of the alteration to contribute to the share capital of, or otherwise to pay money to, the company; or
(c) increases, or imposes, restrictions on the right to transfer the shares held by him at the date of the alteration.
“(4) Sub-section (3) does not apply in relation to an alteration of the memorandum or articles of a public company having a share capital (other than a no liability company) if the alteration—
(a) is made by virtue of a special resolution of the kind referred to in sub-section 70 (1); and
(b) is necessary to impose the restrictions, limitations and prohibitions referred to in sub-section 34 (1).
“(5) In this section, ‘officer’, in relation to a company, means a director, the principal executive officer or a secretary of the company.”.
(a) by inserting in sub-sub-paragraph (1) (d) (i) (b) “brokerage or” before “commission”; and
(b) by omitting paragraph (1) (l) and substituting the following paragraph:
“(ka) shall state whether or not application has been, or is proposed to be, made for permission for the shares or debentures to which the prospectus relates to be listed for quotation on a stock market of a securities exchange and, if application for such permission has been, or is proposed to be, made, shall specify each securities exchange to which application for such permission has been, or is proposed to be, made;”.
“(v) in relation to each person who is a broker or underwriter to the issue—the name and address of the person and the name of each securities exchange of which the person is a member;”.
“(6) In determining, for the purposes of a provision of this Division, whether or not a person’s contravention of such a provision was due to the person’s inadvertence or mistake or to the person not being aware of a relevant fact or occurrence, a person’s ignorance of, or a mistake on the person’s part concerning, a matter of law shall be disregarded.”.
(a) by inserting in sub-section (2) “(in this sub-section referred to as the ‘relevant person’), being the company or any other person,” after “a person”;
(b) by omitting from sub-section (2) “that person” (wherever occurring) and substituting “the relevant person”;
(c) by omitting from paragraph (2) (b) “of a person being” and substituting “where the relevant person is”;
(d) by omitting from paragraph (3) (b) “company—a person” and substituting “company (including, in a case where the first-mentioned person is a company, the first-mentioned person)—a person (in this paragraph referred to as the ‘relevant associate’), being the company or any other person,”; and
(e) by omitting sub-paragraphs (3) (b) (i), (ii) and (iii) and substituting the following sub-paragraphs:
“(i) by reason of which the relevant associate, or the first-mentioned 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;
(ii) with a view to controlling or influencing the composition of the board of directors, or the conduct of affairs, of the company;
(iii) under which the relevant associate may acquire from the first-mentioned person, or the first-mentioned person may acquire from the relevant associate, shares in the company; or
(iv) under which the relevant associate, or the first-mentioned person, may be required to dispose of shares in the company in accordance with the directions of the first-mentioned person, or of the relevant associate, as the case may be;”.
(c) by omitting sub-section (5) and substituting the following sub-section:
“(5) In this section, ‘trading floor’, in relation to a securities exchange, means a place or facility maintained or provided by the securities exchange for—
(a) the making or acceptance, by members of the securities exchange, or by such members and other persons, of offers to sell, purchase or exchange securities;
(b) the making, by members of the securities exchange, or by such members and other persons, of 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 securities; or
(c) the provision of information concerning the prices 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 securities.”.
“(2) For the purposes of sub-section (1), a person (in this sub-section referred to as the ‘relevant person’), being—
(a) a body corporate that has, with its agreement, consent or acquiescence, been admitted to the official list of a securities exchange and has not been removed from that official list; or
(b) a person associated with a body corporate that has, with its agreement, consent or acquiescence, been admitted to the official list of a securities exchange and has not been removed from that official list,
shall be deemed to be under an obligation to comply with, observe and give effect to the listing rules of that securities exchange to the extent to which those rules purport to apply in relation to the relevant person.”.
“42a. For the purposes of any law, an option contract to which this Act applies is not a contract by way of gaming or wagering if it was entered into on a stock market of a securities exchange or on an exempt stock market.”.
“(6) Without limiting the matters to which the Commission may have regard in determining whether it has reason to believe that a person who is the holder of a dealers licence, an investment advisers licence or a representatives licence has not performed the duties of a holder of such a licence efficiently, honestly and fairly, the Commission may, in so determining, have regard to a contravention by the person of sub-section 65a (1).”.
“65a. (1) An adviser who—
(a) makes a recommendation with respect to securities or a class of securities to a person who may reasonably be expected to rely on the recommendation; and
(b) does not have a reasonable basis for making the recommendation to the person,
contravenes this sub-section.
“(2) For the purposes of sub-section (1), an adviser does not have a reasonable basis for making a recommendation to a person unless—
(a) the adviser has, for the purpose of ascertaining that the recommendation is appropriate having regard to the information possessed by the adviser concerning the investment objectives, financial situation and particular needs of the person, given such consideration to, and conducted such investigation of, the subject matter of the recommendation as is reasonable in all the circumstances; and
(b) the recommendation is based on that consideration and investigation.
“(3) An adviser who contravenes sub-section (1) is not guilty of an offence by virtue of that sub-section or section 141.
“(4) Where—
(a) an adviser contravenes sub-section (1) by making a recommendation to a person;
(b) the person, in reliance on the recommendation, does a particular act, or refrains from doing a particular act;
(c) it is reasonable, having regard to the recommendation and all other relevant circumstances, for the person to do that act, or to refrain from doing that act, as the case may be, in reliance on the recommendation; and
(d) the person suffers loss or damage as a result of doing that act, or refraining from doing that act, as the case may be,
the adviser is liable to pay damages to the person in respect of that loss or damage.
“(5) An adviser who—
(a) makes a recommendation with respect to securities or a class of securities to a person (in this sub-section referred to as the ‘client’) who may reasonably be expected to rely on the recommendation; and
(b) in so making the recommendation, does not contravene sub-section (1),
is not, in the absence of malice on the adviser’s part, liable to an action for defamation at the suit of a person in respect of a statement made to the client by the adviser, whether orally or in writing, in the course of, or in connection with, the making of the recommendation to the client.
“(6) Sub-section (5) does not limit or affect any right, privilege or immunity that an adviser has, apart from that sub-section, as defendant in an action for defamation.
“(7) In this section—
(a) a reference to an adviser is a reference to a person who is a dealer, investment adviser, dealer’s representative or investment representative; and
(b) a reference to the making of a recommendation is a reference to the making of a recommendation whether expressly or by implication.”.
(a) by omitting from sub-paragraph (3) (c) (iii) “or” (last occurring);
(b) by adding at the end of sub-section (3) the following word and paragraph:
“; or (e) a sale of securities where—
(i) the securities are included in a class of securities, being a class in relation to which there is in force a declaration, made by the committee of a securities exchange as provided by the business rules of the securities exchange, to the effect that the class is a class of securities to which this paragraph applies;
(ii) the sale is effected as provided by the business rules of the securities exchange; and
(iii) at the time of the sale, neither the person who sold the securities, nor any person on behalf of whom the first-mentioned person sold the securities, was associated, in relation to the sale, with the body corporate that issued or made available the securities.”; and
(c) by omitting from sub-section (4) “or (d)” and substituting “, (d) or (e)”.
“68a. (1) Where the Commission forms the opinion that it is necessary to prohibit securities, or securities included in a particular class of securities, from being sold on a stock market of a securities exchange in a manner that, but for paragraph 68 (3) (e), would contravene sub-section 68 (1), in order to protect persons who might sustain financial loss if they were to buy or sell those securities in that manner or in order to protect the public interest, the Commission may give notice in writing to the securities exchange stating that it has formed that opinion and setting out the reasons for the formation of that opinion.
“(2) If, after the receipt of such a notice—
(a) the securities exchange does not take action to prevent the selling on a stock market of the securities exchange of securities, or of securities included in a class specified in the notice, as the case requires, in the manner referred to in sub-section (1); and
(b) the Commission is still of the opinion that it is necessary to prohibit the selling on that stock market of those securities in that manner,
the Commission may, by a further notice in writing given to the securities exchange, prohibit the selling on that stock market of those securities in that manner during such period, not exceeding 21 days, as is specified in the further notice.
“(3) As soon as practicable after giving a notice to a securities exchange under sub-section (2), the Commission shall furnish to the Ministerial Council a written report setting out the reasons for the giving of the notice and send a copy of the report to the securities exchange.
“(4) On receipt of a report furnished under sub-section (3), the Ministerial Council may, if it thinks fit, direct the Commission to revoke the notice given under sub-section (2), and, if such a direction is given, the Commission shall forthwith revoke the notice.
“(5) A securities exchange shall not permit the selling of securities on a stock market of the securities exchange in a manner that contravenes a notice given under sub-section (2).
Penalty: $1,000 for each day on which the securities exchange contravenes this sub-section.”.
(a) by omitting from sub-section (4) “sub-section (2)” and substituting “sub-sections (2) and (8)”; and
(b) by adding at the end the following sub-section:
“(8) Where a dealer is prohibited, by virtue of a condition or restriction to which a licence granted to him under this Act is subject, from holding moneys in trust for the dealer’s clients, this section does not apply in relation to the dealer unless and until the dealer holds moneys in trust for a client.”.
(a) by omitting from paragraph (b) “or”;
(b) by inserting after paragraph (c) the following word and paragraph:
“; or (d) by recording or storing in, or by means of, any mechanical, electronic or other device information that he knows to be false or misleading in a material particular,”; and
(c) by adding at the end the following sub-section:
“(2) It is a defence to a prosecution for an offence under sub-section (1) constituted by recording or storing information as mentioned in paragraph (1) (d) if it is established that, at the time when the defendant so recorded or stored the information, he had no reasonable grounds for expecting that the information would be available to any other person.”.
(a) by omitting “A person” and substituting “(1) A person”; and
(b) by adding at the end the following sub-section:
“(2) A body corporate that is not—
(a) a stock exchange; or
(b) a stock exchange within the meaning of the corresponding law of a participating State or of a participating Territory,
shall not take or use, or by inference adopt, the name or title of stock exchange or take or use or have attached to or exhibited at any place a name, title or description implying or tending to create the belief that the body corporate is—
(c) a stock exchange; or
(d) a stock exchange within the meaning of the corresponding law of a participating State or of a participating Territory”.
“142. (1) Where—
(a) by or under a provision, an act is required to be done within a particular period or before a particular time;
(b) failure to do the act within that period or before that time constitutes an offence; and
(c) the act is not done within that period or before that time,
then—
(d) the obligation to do the act continues, notwithstanding that that period has expired or that time has passed, and whether or not a person is convicted of a primary substantive offence in relation to failure to do the act, until the act is done; and
(e) sub-sections (3) and (4) apply.
“(2) Where—
(a) by or under a provision, an act is required to be done but neither a period within which, nor a time before which, the act is to be done is specified;
(b) failure to do the act constitutes an offence; and
(c) a person is convicted of a primary substantive offence in relation to failure to do the act,
then—
(d) the obligation to do the act continues, notwithstanding the conviction, until the act is done; and
(e) sub-sections (3) and (4) apply.
“(3) Where—
(a) at a particular time, a person is first convicted of a substantive offence, or is convicted of a second or subsequent substantive offence, in relation to failure to do the act; and
(b) the failure to do the act continues after that time,
the person is, in relation to failure to do the act, guilty of a further offence in respect of so much of the period throughout which the failure to do the act
continues as elapses after that time and before the relevant day in relation to the further offence.
“(4) Where—
(a) a body corporate is guilty of a primary substantive offence in relation to failure to do the act; and
(b) throughout a particular period (in this sub-section referred to as the ‘relevant period’)—
(i) the failure to do the act continues;
(ii) a person (in this sub-section referred to as the ‘derivative offender’) is in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the failure to do the act; and
(iii) the derivative offender is an officer of the body corporate,
then—
(c) in a case where either or both of the following events occurs or occur:
(i) the body corporate is convicted, before or during the relevant period, of the primary substantive offence;
(ii) the derivative offender is convicted, before or during the relevant period, of a primary derivative offence in relation to failure to do the act,
the derivative offender is, in relation to failure to do the act, guilty of an offence (in this paragraph referred to as the ‘relevant offence’) in respect of so much (if any) of the relevant period as elapses—
(iii) after the conviction referred to in sub-paragraph (i) or (ii), or after the earlier of the convictions referred to in sub-paragraphs (i) and (ii), as the case may be; and
(iv) before the relevant day in relation to the relevant offence; and
(d) in a case where, at a particular time during the relevant period, the derivative offender is first convicted of a secondary derivative offence, or is convicted of a second or subsequent secondary derivative offence, in relation to failure to do the act—the derivative offender is, in relation to failure to do the act, guilty of a further offence in respect of so much of the relevant period as elapses after that time and before the relevant day in relation to the further offence.
“(5) Notwithstanding sub-section 141 (6), where a person is guilty, by virtue of sub-section (3) or (4) of this section, of an offence in respect of the whole or a part of a particular period, the penalty applicable to the offence is a fine of the amount obtained by multiplying $50 by the number of days in that period, or in that part of that period, as the case may be.
“(6) In this section—
‘act’ includes thing;
‘primary derivative offence’, in relation to failure to do an act, means an offence (other than an offence of which a person is guilty by virtue of
this section) of which a person is guilty by virtue of being an officer of a body corporate who is in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the commission by the body corporate of a primary substantive offence in relation to failure to do the act;
‘primary substantive offence’, in relation to failure to do an act, means an offence (other than an offence of which a person is guilty by virtue of this section) constituted by failure to do the act, or by failure to do the act within a particular period or before a particular time;
‘provision’ means a section, or a sub-section of a section, of this Act;
‘relevant day’, in relation to an offence of which a person is guilty by virtue of this section, means—
(a) in a case where the information relating to the offence specifies a day in relation to the offence for the purposes of this section, being a day not later than the day on which the information is laid—the day the information so specifies; or
(b) in any other case—the day on which the information relating to the offence is laid;
‘required’ includes directed;
‘secondary derivative offence’, in relation to failure to do an act, means an offence or further offence of which a person is, in relation to failure to do the act, guilty by virtue of paragraph (4) (c) or (d);
‘substantive offence’, in relation to failure to do an act, means—
(a) a primary substantive offence in relation to failure to do the act; or
(b) a further offence of which a person is, in relation to failure to do the act, guilty by virtue of sub-section (3).
“(7)
Sub-sections (1) to (6), inclusive, of this section do not apply in relation to
an obligation to do an act or thing, being an obligation that arose before the
commencement of section 198 of the
“(1) Where a body corporate is guilty of an offence against this Act (other than an offence of which the body corporate is guilty by virtue of sub-section 142 (3) or (4) of this Act as in force after the commencement of section 198 of
the
(a) any officer of the body corporate (including a person who has subsequently ceased to be an officer of the body corporate) who was in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the commission of the offence is guilty of an offence; and
(b) notwithstanding sub-section 141 (6), the penalty applicable to an offence of which such an officer is guilty by virtue of paragraph (a) of this sub-section is the penalty applicable to the offence of which the body corporate is guilty.
FURTHER AMENDMENTS OF THE COMPANIES (ACQUISITION OF SHARES) ACT 1980 RELATING TO SECURITIES EXCHANGES
Provisions | Amendments |
|
|
Section 6 (definition of “marketable parcel”) | (a) Omit “public” (wherever occurring).
|
Section 6 (definition of “recorded”) | (a) Omit “public”.
|
| Omit “public” (twice occurring). |
|
|
Sub-paragraph 14 (3) (a) (i) |
(b) Insert “stock” after “home”. |
Sub-paragraph 14 (3) (a) (ii) Sub-paragraph 16 (2) (e) (ii) |
(a) Omit “public”.
|
|
|
Provisions | Amendments |
|
(b) Insert “stock” after “home”. |
Sub-paragraph 17 (10) (a) (ii)............. | Insert “stock” after “home”. |
Sub-section 17 (18).............................. | Insert “stock” after “home”. |
Paragraph 22 (4) (a)............................. | (a) Omit “public”.
|
Paragraph 24 (1) (b)............................. | (a) Omit “public”.
|
Paragraph 26 (3) (a)............................. | Omit “public”. |
Paragraph 27 (11) (c)...........................
| (a) Omit “public”.
Insert “stock” after “home”. |
| Omit “public”. |
| Omit “public”. |
Paragraph 39 (2) (a)............................. |
|
Paragraph 39 (2) (b)............................. |
|
| (a) Omit “public”.
|
Paragraph 39 (4) (a)............................. | Omit “public”. |
|
|
Paragraph 39 (5) (a)............................. | Omit “public”. |
|
|
Provisions | Amendments |
| |
|
|
Paragraph 46 (2) (b)............................. | (a) Omit “public”. |
| |
Sub-sections 56 (1), (2) and (3)......... |
|
|
|
Schedule, Part A, clauses 7, 8 and 9 |
|
FURTHER AMENDMENTS OF THE COMPANIES ACT 1981 RELATING TO SECURITIES EXCHANGES
1. The following provisions of the
Sub-section 5 (1) (definition of “listed corporation”); paragraphs 100 (4) (a) and (b); sub-sections 105 (1), (7) and (8); sub-section 131 (5b); paragraph 134 (2) (a); paragraph 191 (3) (d); sub-sections 194 (1) and (2); paragraph 195 (1) (c); sub-section 198 (2); paragraph 552 (4) (a); paragraph 552 (6) (h).
2. The following provisions of the
Sub-section 189 (1) (definition of “broker” and paragraph (b) of the definition of “prescribed corporation”); paragraph 191 (3) (d); sub-sections 194 (1) and (2); paragraph 195 (1) (c); sub-section 198 (2); Schedule 4 (Forms 3 and 7).
FURTHER AMENDMENTS OF THE SECURITIES INDUSTRY ACT 1980 RELATING TO SECURITIES EXCHANGES
The following provisions of the
Sub-section 4 (1) (definitions of “committee”, “marketable parcel”, “member”, “member firm” and “sole trader”); sub-section 4 (6); sub-paragraphs 8 (1) (a) (i), (ii), (v) and (vi); sub-section 8 (2); sub-section 12 (3); paragraphs 14 (1) (a), (b) and (c); sub-section 37 (2); sub-sections 39 (1) and (6); section 40; sub-sections 41 (1) and (2); sub-section 42 (1); sub-section 51 (8); sub-paragraph 64 (2) (h) (i); paragraph 64 (5) (a); paragraph 65 (7) (a); sub-sections 65 (8) and (9); sub-section 66 (5); paragraph 68 (3) (a); sub-paragraph 68 (3) (d) (iii); sub-section 68 (5); sub-section 71 (4); sub-section 79 (1); sub-section 80 (1); sub-section 80 (2) (other than paragraph 80 (2) (b)); paragraph 81 (1) (b); section 82; paragraph 87 (4) (a); sections 100, 101, 103 to 115 (inclusive) and 117 to 122 (inclusive); sub-section 128 (9); sub-section 131 (1); sub-section 136 (3).
1. No. 64, 1980, as amended. For previous amendments, see Nos. 2, 94 and 153, 1981; No. 26, 1982; and No. 108, 1983.
2. No. 89, 1981, as amended. For previous amendments, see No. 153, 1981; Nos. 26 and 80, 1982; No. 108, 1983; and No. 13, 1984.
3. No. 68, 1980, as amended. For previous amendments, see Nos. 4, 98 and 153, 1981; No. 108, 1983; and No. 13, 1984.
4. No. 108, 1983.
5. No. 173, 1979, as amended. For previous amendments, see Nos. 1 and 153, 1981; No. 108, 1983; and No. 63, 1984.
6. No. 66, 1980, as amended. For previous amendments, see Nos. 3, 96 and 153, 1981; No. 26, 1982; No. 108, 1983; and No. 13, 1984.
7. On the day on which section 200 of this Act comes into operation, the headings to sections 82, 109, 118 and 121 of the
Securities Industry Act 1980 are altered by omitting “stock exchange” and substituting “securities exchange”.
[
House of Representatives on 11 October 1985
Senate on 26 November 1985
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