Foreign Takeovers Amendment Act 1976 (Cth)

FOREIGN TAKEOVERS AMENDMENT ACT

1976

No. 93 of 1976

An Act to amend the Foreign Takeovers Act 1975.

 

BE IT ENACTED by the Queen, and the Senate and House of Representatives of the Commonwealth of Australia, as follows:—

Short title and citation.

1. (1) This Act may be cited as the Foreign Takeovers Amendment Act 1976.

(2) The Foreign Takeovers Act 1975 is in this Act referred to as the Principal Act.

(3) The Principal Act, as amended by this Act, may be cited as the Foreign Takeovers Act 1975-1976.

Commencement.

2. (1) Sections 1 and 2, sub-section 3(2) and sections 5, 9, 11 and 12 shall come into operation on the day on which this Act receives the Royal Assent.

(2) The remaining provisions of this Act shall be deemed to have come into operation on 1 January 1976.

Transitional provisions.

3. (1) Section 3 of the Principal Act is amended by omitting sub-section (2) and substituting the following sub-section:—

“(2) Notwithstanding the repeal of the Companies (Foreign Takeovers) Act 1972-1974, that Act, other than section 17, shall be deemed to continue in force in relation to—

(a) an offer (including an offer constituting, or made in pursuance of an invitation constituting, a take-over offer) to sell or purchase shares that was accepted before the date of commencement of this Act; and

(b) an issue of shares that occurred before that date.”.

(2) Section 3 of the Principal Act is amended by omitting paragraph (a) of sub-section (4).

Interpretation.

4. Section 5 of the Principal Act is amended by inserting in paragraph (b) of the definition of “share” in sub-section (1), after the word and figures “section 11”, the word and figures “or 26”.

Control of voting power.

5. Section 8 of the Principal Act is amended by inserting after the word “arrangements” the words “or practices”.

Application of Act.

6. Section 15 of the Principal Act is amended by omitting paragraph (c) and substituting the following paragraph:—

“(c) an acquisition of shares or assets occurring on or after that date, where notice in writing was issued by the Commonwealth Government before that date to the effect that the Common­wealth Government did not object to the acquisition or, in the case of an acquisition occurring by way of the exercise of an option, that it did not object to the acquisition of the option or to the acquisition of those shares of assets in pursuance of the option.”.

7. Section 26 of the Principal Act is repealed and the following sec­tion substituted: —

Compulsory notification of transactions.

“26. (1) In this section, ‘person to whom this section applies’ means—

(a) a natural person not ordinarily resident in Australia;

(b) a corporation in which a natural person not ordinarily resident in Australia or a foreign corporation holds a substantial interest; or

(c) a corporation in which 2 or more persons, each of whom is either a natural person not ordinarily resident in Australia or a foreign corporation, hold an aggregate substantial interest.

“(2) Where a person to whom this section applies—

(a) enters into an agreement by virtue of which he acquires a substantial shareholding in an Australian corporation and did not, before entering into the agreement, furnish to the Treasurer a notice stating his intention to enter into that agreement; or

(b) having furnished a notice to the Treasurer stating his intention to enter into an agreement by virtue of which he is to acquire a substantial shareholding in an Australian corporation, enters into that agreement before—

(i) the expiration of 40 days after the date on which the notice was received by the Treasurer; or

(ii) the date on which notice in writing is issued by or on be­half of the Treasurer stating that the Commonwealth Government does not object to his entering into that agreement,

whichever first occurs,

the person is guilty of an offence and is punishable on conviction by a fine not exceeding $50,000.

“(3) Where—

(a) a person enters into an agreement of a kind mentioned in sub-section (2); and

(b) the provisions of the agreement that relate to the acquisition of the interests in the shares concerned do not become binding until the fulfilment of a condition or conditions set out in the agreement,

the person shall not be taken, for the purposes of that sub-section, to have entered into the agreement until the time when those provisions be­come binding.

“(4) Without affecting the operation of section 25, this section does not apply in relation to a shareholder of a corporation subscribing for shares in the corporation if—

(a) the shares were subscribed for in pursuance of a resolution by the corporation or the directors of the corporation agreeing to make available a number of shares specified in, or ascertained in accordance with, the resolution for allotment to persons who were registered as the holders of shares in the corporation on a date specified in the resolution; and

(b) the number of shares for which the shareholder so subscribed bears to the total number of shares made available for allotment in pursuance of the resolution as nearly as practicable the same proportion as the number of issued shares in the corporation held by him immediately before the date specified in the resolu­tion bears to the total number of issued shares in the corporation immediately before that date.

“(5) For the purposes of sub-section (4), it is immaterial that the shares in the corporation comprise 2 or more classes of shares to which different rights are attached.

“(6) In this section, a reference to an agreement by virtue of which a person acquires a substantial shareholding in a corporation is a reference to an agreement by virtue of which the person acquires any interests in any shares in the corporation where—

(a) he already holds a substantial interest in the corporation; or

(b) upon the acquisition by him of those interests, or of those interests and of any interests in other shares in the corporation, being interests that he has offered to acquire, he would hold a substantial interest in the corporation.

“(7) For the purposes of sub-section (6), a reference to a person offering to acquire interests in shares includes a reference to a person making or publishing a statement, however expressed, that expressly or impliedly invites a holder of interests in shares to offer to dispose of interests in shares.”.

8. Section 28 of the Principal Act is repealed and the following section substituted:—

Notification of options.

“28. A notice furnished in accordance with section 25 stating that a person proposes to acquire an option to acquire a share or asset has effect as if it included a statement that the person proposes to exercise that option.”.

Repeal of s. 29.

9. Section 29 of the Principal Act is repealed.

10. Section 38 of the Principal Act is repealed and the following section substituted:—

Validity of acts done in contravention of Act.

“38. An act is not invalidated by the fact that it constitutes an offence against this Act.

Making of regulations.

11. The power to make regulations for the purposes of section 26 of the Principal Act as amended by this Act extends to the making of regulations expressed to take effect on and from 1 January 1976.

Transitional provisions.

12. (1) A notice in accordance with the Principal Act furnished to the Treasurer before the commencement of this section has effect, and shall be deemed to have had effect, as if it had been furnished in accordance with the Principal Act as amended by this Act.

(2) Notwithstanding the repeal of section 29 of the Principal Act by this Act, that section shall be deemed to continue in force in relation to a certificate that had effect by virtue of paragraph 3(4)(a) of the Principal Act.

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