Companies (Acquisition of Shares) Regulations - Legislation

Statutory Rules

1981 No. 125

REGULATIONS UNDER THE COMPANIES (ACQUISITION OF SHARES) ACT 1980*

WHEREAS it is provided by sub-section (2) of section 62 of the Companies (Acquisition of Shares) Act 1980 that the power of the Governor-General to make regulations under that Act shall be exercised only in accordance with advice that is consistent with resolutions of the Ministerial Council for Companies and Securities established under the Agreement made on 22 December 1978 between the Commonwealth and the States:

AND WHEREAS it is provided by section 16a of the Acts Interpretation Act 1901 that a reference in an Act to the Governor-General is, unless the contrary intention appears, to be deemed to include the person for the time being administering the Government of the Commonwealth of Australia and is, unless the contrary intention appears, to be read as referring to that person acting with the advice of the Federal Executive Council:

AND WHEREAS the making of the following Regulations is in accordance with advice that is consistent with those resolutions:

NOW THEREFORE I, the Administrator of the Government of the Commonwealth, of Australia, acting with the advice of the Federal Executive Council and in pursuance of section 4 of the Acts Interpretation Act 1901, hereby make the following Regulations under the Companies (Acquisition of Shares) Act 1980.

Dated this third day of June 1981.

STANLEY BURBURY

Administrator

By His Excellency’s Command,

Minister of State for Business and Consumer Affairs

* Notified in the Commonwealth of Australia Gazette on 12 June 1981.

S.R. No. 16/80 Cat. No. —Recommended retail price 40c 88/21.5.1981

COMPANIES (ACQUISITION OF SHARES) REGULATIONS

Citation

1. These Regulations may be cited as the Companies (Acquisition of Shares) Regulations.

Interpretation

2. In these Regulations, “the Act” means the Companies (Acquisition of Shares) Act 1980.

Forms

3. (1) Strict compliance with the forms in the Schedule is not necessary and substantial compliance, or such compliance as the particular circumstances allow, is sufficient.

(2) A form in the Schedule shall be completed in accordance with such directions as are specified in the form.

(3) In these Regulations, a reference to a form by number shall be taken to be a reference to the form in the Schedule that bears that number.

Declared stock exchanges for the purposes of the Act

4. For the purposes of the definition of “stock exchange” in section 6 of the Act, each of the following stock exchanges is declared to be a stock exchange for the purposes of the Act:

The Stock Exchange of Adelaide Limited

The Brisbane Stock Exchange Limited

The Hobart Stock Exchange

The Stock Exchange of Melbourne Limited

The Stock Exchange of Perth Limited

The Sydney Stock Exchange Limited.

Prescribed office under paragraph 9 (8) (b) of the Act

5. (1) For the purposes of paragraph 9 (8) (b) of the Act, each of the following offices is prescribed:

(a) the office of Treasurer of the Commonwealth;

(b) the office of the trustee under, or continued under, Parts IV, X and XI of the Bankruptcy Act 1966 of the Commonwealth;

(c) the office of Controller of Enemy Property under the National Security (Enemy Property) Regulations of the Commonwealth;

(d) the office of Treasurer of the State of Western Australia;

(e) the office of Commissioner for Corporate Affairs for the State of Western Australia;

(f) the office of Public Trustee under the Public Trustee Act 1941 of the State of Western Australia;

(g) the office of Master and the office of Registrar of the Supreme Court, within the meaning of the Supreme Court Act 1935 of the State of Western Australia;

(h) the office of Treasurer of the State of Victoria;

(i) the office of Commissioner for Corporate Affairs for the State of Victoria;

(j) the office of Public Trustee under the Public Trustee Act 1958 of the State of Victoria;

(k) the office of Master of the Supreme Court of Victoria within the meaning of the Supreme Court Act 1958 of the State of Victoria;

(l) the office of Treasurer of the State of New South Wales;

(m) the office of Public Trustee under the Public Trustee Act, 1913, of the State of New South Wales;

(n) the office of Master under Division 1 of Part VIII of the Supreme Court Act, 1970, of the State of New South Wales;

(o) the office of Supervisor of Loan Fund Companies under the Loan Fund Companies Act, 1976, of the State of New South Wales;

(p) the office of Protective Commissioner under the Mental Health Act, 1958, of the State of New South Wales;

(q) the office of Treasurer of the State of Queensland;

(r) the office of Commissioner for Corporate Affairs for the State of Queensland;

(s) the office of Public Trustee under the Public Trustee Act 1978 of the State of Queensland;

(t) the office of Registrar under the Supreme Court Acts 1861-1980 of the State of Queensland;

(u) the office of Treasurer of the State of South Australia;

(v) the office of Curator of Prisoners Property under the Criminal Law Consolidation Act 1935-1980 of the State of South Australia;

(w) the office of Public Trustee under the Administration and Probate Act 1919-1980 of the State of South Australia;

(x) the office of Master or accountant under the Supreme Court Act 1935-1980 of the State of South Australia;

(y) the office of administrator under Chapter XLIX of the Criminal Code of the State of Tasmania;

(z) the office of Treasurer of the State of Tasmania;

(za) the office of Commissioner for Corporate Affairs for the State of Tasmania;

(zb) the office of Public Trustee under the Public Trust Office Act 1930 of the State of Tasmania;

(zc) the office of Registrar of the Supreme Court under the Supreme Court Act 1959 of the State of Tasmania;

(zd) the office of Curator of Estates of Deceased Persons under the Administration and Probate Ordinance 1929 of the Australian Capital Territory;

(ze) the office of Registrar of the Supreme Court under the Australian Capital Territory Supreme Court Act 1933 of the Commonwealth;

(zf) the office of Registrar of Companies for the Australian Capital Territory.

(2) In sub-regulation (1), a reference to a State Act shall be construed as a reference to that State Act as amended and in force for the time being.

Prescribed amount for statement provided by target company

6. For the purposes of section 36 of the Act, the prescribed amount is an amount calculated at the rate of 10 cents for each name and address in the written statement the supply of which has been requested under that section.

Provisions of a prescribed kind for the purposes of paragraphs 39(10) (d) and 39 (11) (d) of the Act

7. For the purposes of paragraphs 39 (10) (d) and 39 (11) (d) of the Act, a provision of a contract relating to shares is a provision of a prescribed kind if it provides that—

(a) the person or either or any of the persons from whom the shares have been or are to be acquired or any person associated with that person or with either or any of those persons may, at any time after an offer is dispatched, become entitled to any benefit; and

(b) that benefit, whether conferred by way of receiving an increased price for those shares or by payment of cash or otherwise, is related to, dependent upon, or calculated in any way by reference to, the consideration payable for shares acquired after that contract was entered into.

Notice for the purposes of subparagraph 16 (2) (e) (i) of the Act

8. For the purposes of sub-paragraph 16 (2) (e) (i) of the Act, a notice may be in accordance with Form 1.

Notice for the purposes of paragraph 17 (13) (b) of the Act

9. For the purposes of paragraph 17 (13) (b) of the Act, a notice may be in accordance with Form 2.

Prescribed notice for the purposes of sub-section 42 (2) of the Act

10. For the purposes of sub-section 42 (2) of the Act, a notice to a dissenting offeree shall be in accordance with Form 3.

Prescribed notice for the purposes of sub-section 42 (3) of the Act

11. For the purposes of sub-section 42 (3) of the Act, a notice to a dissenting offeree shall be in accordance with Form 4.

Prescribed notice for the purposes of sub-section 43 (1) of the Act

12. For the purposes of sub-section 43 (1) of the Act, a notice to a remaining shareholder in relation to a take-over scheme shall be in accordance with Form 5.

Prescribed notice for the purposes of subsection 43 (1) of the Act

13. For the purposes of sub-section 43 (1) of the Act, a notice to a remaining shareholder in relation to a take-over announcement shall be in accordance with Form 6.

Prescribed notice for the purposes of sub-section 43 (4) of the Act

14. For the purposes of sub-section 43 (4) of the Act, a notice to a holder of non-voting shares or a renounceable option or convertible note shall be in accordance with Form 7.

SCHEDULE

FORM 1 Regulation 8

Companies (Acquisition of Shares) Act 1980

Notice of date of service of Part A statement

To the Commission

Take notice that...................................................................................................................... (name of offeror) served a Part A statement on........................................................................ ....................................................................................................(name of target company) on the..........................................................day of..........................................................19 .

Dated this..............................................day of..........................................................19 .

...................................................................

(Signature of offeror) (1)

Direction

(1) In the case of a body corporate to be signed by a director or the secretary.

FORM 2 Regulation 9

Companies (Acquisition of Shares) Act 1980

NOTICE SETTING OUT TERMS OF ANNOUNCEMENT

To the Commission

Take notice that on the....................................................day of................................................... 19 , ......................................................................................................................................... (name of on-market offeror) made an announcement at an official meeting of the ................................................................................................................(name of stock exchange) in the following terms:

(here set out terms of announcement)

Dated this day of 19 .

.........................................................................

(Signature of on-market offeror) (1)

Direction

(1) In the case of a body corporate to be signed by a director or the secretary.

SCHEDULE—continued

FORM 3 Regulation 10

Companies (Acquisition of Shares) Act 1980

NOTICE TO DISSENTING OFFEREE UNDER TAKE-OVER SCHEME

Shareholdings in ..................................................................................................................................(2).

1. Under a take-over scheme take-over offers were made by...................................................................

...............................................................................................................................................................(3)

(in this notice called “the offeror”) in respect of..................................................................................(4) shares in the first abovementioned company and the last day on which the offers remained open was……………....................................................................................................................................(5).

2.(a) The offeror has become entitled to (6)................................shares being not less than 90% of the shares included in the class of shares in respect of which the take-over offer was made.

(b) (10) (6)................................of the offerees (being not less than three-quarters) have disposed of the shares to the offeror.

3. You are, or are entitled to be, registered as the holder of outstanding shares in respect of which an offer was made, but have not accepted the take-over offer.

4. Pursuant to sub-section 42 (2) of the Companies (Acquisition of Shares) Act 1980, the offeror hereby gives you notice that the offeror desires to acquire those outstanding shares.

5. You are entitled, by notice in writing given to the offeror within one month after the giving to you of this notice, to ask the offeror for a statement in writing of the names and addresses of all other dissenting offerees.

6. (9) You are entitled, within one month after the giving to you of this notice, or within 14 days after the giving to you of a statement requested under sub-section 42 (10) of the Companies (Acquisition of Shares) Act 1980 (as referred to in paragraph 5 of this notice) whichever is the later, by notice in writing given to the offeror, to specify which of the following alternative terms you wish to apply to the acquisition of the outstanding shares:(7)

...................................................................................................................................................;

..................................................................................................................................................;

....................................................................................................................................................

If you fail to give notice specifying which of the alternative terms you wish to apply to the acquisition of the outstanding shares, the offeror may, unless the Supreme Court of the Australian Capital Territory otherwise orders, determine which of those alternatives is to apply.

SCHEDULE—continued

7. The offeror is entitled and bound to acquire the outstanding shares under sub-section 42 (6) of the Companies (Acquisition of Shares) Act 1980, subject to the other provisions of section 42, on the terms that were applicable under the take-over scheme immediately before the offer closed.

8. Unless on application made by you within one month after the giving to you of this notice or within 14 days after the giving to you of statement under sub-section 42 (10) of the Companies (Acquisition of Shares) Act 1980 (as referred to in paragraph 5 of this notice), whichever is the later, the Supreme Court of the Australian Capital Territory otherwise orders, the offeror must comply with paragraph 7 of this notice.

Dated............................................................

Signed............................................................................(8)

directions

(1) Name and address of dissenting offeree.

(2) Name of target company.

(3) Name of offeror or offerors.

(4) Insert a description of the shares or class of shares to which the offer related.

(5) Date.

(6) Insert appropriate number.

(7) Insert details of alternative terms.

(8) To be signed in the same manner as a Part A statement is required to be signed by paragraph 16 (2) (d) of the Companies (Acquisition of Shares) Act 1980.

(9) Insert paragraph 6 only where alternative terms are included in the offer.

(10) Paragraph 2 (b) is to be inserted in addition to paragraph 2 (a) only where the provisions of paragraph 42 (2) (b) of the Companies (Acquisition of Shares) Act 1980 apply and the requirements of both paragraphs 42 (2) (a) and 42 (2) (b) of the Act have been satisfied.

FORM 4 Regulation 11

Companies (Acquisition of Shares) Act 1980

NOTICE TO DISSENTING OFFEREE UNDER TAKE-OVER ANNOUNCEMENT

To..............................................................................................................................................................................................................................................................................................................................(1) ...............................................................................................................................................................(2)

1. Under a take-over announcement offers were made on behalf of......................................................... ..........................................................................................................................................................(3) (in this notice called “the offeror”) to acquire......................................................................(4) shares in the abovenamed company and the last day on which the offers remained open was.............................................................................................(5).

2. (a) The offeror has become entitled to (6)................................shares being not less than 90% of the shares included in the class of shares in respect of which the take-over announcement was made.

(b) (8) (6)................................of the offerees (being not less than three-quarters) have disposed of the shares to the offeror.

3. You are, or are entitled to be, registered as the holder of outstanding shares in respect of which an offer was made, but have not accepted the offer under the take-over announcement.

4. Pursuant to sub-section 42 (3) of the Companies (Acquisition of Shares) Act 1980, the offeror hereby gives you notice that the offeror desires to acquire those outstanding shares.

SCHEDULE—continued

6. The offeror is entitled and bound to acquire the outstanding shares under sub-section 42 (6) of the Companies (Acquisition of Shares) Act 1980, subject to the other provisions of section 42, on the terms that were applicable under the take-over announcement immediately before the offer closed.

7. Unless on application made by you within one month after the giving to you of this notice or within 14 days after the giving to you of a statement under sub-section 42 (10) of the Companies (Acquisition of Shares) Act 1980 (as referred to in paragraph 5 of this notice), whichever is the later, the Supreme Court of the Australian Capital Territory otherwise orders, the offeror must comply with paragraph 6 of this notice.

Dated............................................................

Signed................................................................................(7)

directions

(1) Name and address of dissenting offeree.

(2) Name of target company.

(3) Name of offeror or offerors.

(4) Insert a description of the shares or class of shares to which the offer related.

(5) Date.

(6) Insert appropriate number.

(7) To be signed in the same manner as a Part A statement is required to be signed by paragraph 16 (2) (d) of the Companies (Acquisition of Shares) Act 1980.

(8) Paragraph 2 (b) is to be inserted in addition to paragraph 2 (a) only where the provisions of paragraph 42 (3) (b) of the Companies (Acquisition of Shares) Act 1980 apply and the requirements of both paragraphs 42 (3) (a) and 42 (3) (b) of the Act have been satisfied.

FORM 5 Regulation 12

Companies (Acquisition of Shares) Act 1980

NOTICE TO REMAINING SHAREHOLDERS UNDER TAKE-OVER SCHEME

Shareholdings in..................................................................................................................................(2).

1. Under a take-over scheme take-over offers were made by........................................................ ..........................................................................................................................................................(3) (in this notice called “the offeror”) in respect of.....................................................................(4) shares in the abovenamed company and the last day on which the offers remained open was...................................................................................................................................................(5).

2. You are, or are entitled to be, registered as the holder of remaining shares in respect of which an offer was made, but have not accepted the take-over offer.

3. The offeror hereby gives you notice pursuant to sub-section 43 (1) of the Companies (Acquisition of Shares) Act 1980, that during the relevant period the offeror has become entitled to not less than 90% of the shares included in the class in respect of which the Part A statement was served.

SCHEDULE—continued

4. You, as the holder of remaining shares included in that class, are entitled pursuant to sub-section 43 (2) of the Companies (Acquisition of Shares) Act 1980, within 3 months after the giving of this notice, to require the offeror to acquire shares included in that class of which you are the holder and, subject to section 43 of the Companies (Acquisition of Shares) Act 1980, the offeror will then be entitled and bound to acquire those shares.

5. Unless otherwise agreed, or as the Supreme Court of the Australian Capital Territory on your application or on the application of the offeror otherwise orders, the terms on which the shares will be acquired by the offeror will be the same as the terms on which the shares were acquired under the take-over scheme, (6) (and, where an alternative is elected by you pursuant to sub-section 43 (2) of the Companies (Acquisition of Shares) Act 1980 from the terms offered, will be the terms which you have elected).

Dated............................................................

Signed...................................................................................(7)

directions

(1) Name and address of remaining shareholder.

(2) Name of target company.

(3) Name of offeror or offerors.

(4) Insert a description of the shares or class of shares to which the offer related.

(5) Date.

(6) Insert the words in brackets only where alternative terms were included in the offer.

(7) To be signed in the same manner as a Part A statement is required to be signed by paragraph 16 (2) (d) of the Companies (Acquisition of Shares) Act 1980.

FORM 6 Regulation 13

Companies (Acquisition of Shares) Act 1980

NOTICE TO REMAINING SHAREHOLDERS UNDER TAKE-OVER ANNOUNCEMENT

To............................................................................................................................................................. ...............................................................................................................................................................(1). Shareholdings in....................................................................................................................................(2).

1. Under take-over announcement offers were made on behalf of........................................... ..........................................................................................................................................................(3) (in this notice “the offeror”) to acquire....................................................................................

2. You are, or are entitled to be, registered as the holder of remaining shares in respect of which an offer was made, but have not accepted the offer under the take-over announcement.

SCHEDULE—continued

4. You, as the holder of remaining shares included in that class, are entitled, pursuant to sub-section 43 (2) of the Companies (Acquisition of Shares) Act 1980, within 3 months after the giving of this notice, to require the offeror to acquire shares included in that class of which you are the holder and, subject to section 43 of the Companies (Acquisition of Shares) Act 1980, the offeror will then be entitled and bound to acquire those shares.

Dated.............................................................

Signed...............................................................................(6)

directions

(1) Name and address of remaining shareholder.

(2) Name of target company.

(3) Name of offeror or offerors.

(4) Insert a description of class of shares to which the offer related.

(5) Date.

(6) To be signed in the same manner as a Part A statement is required to be signed by paragraph 16 (2) (d) of the Companies (Acquisition of Shares) Act 1980.

FORM 7 Regulation 14

Companies (Acquisition of Shares) Act 1980

NOTICE BY OFFEROR TO THE HOLDER OF NON-VOTING SHARES, OR OF A RENOUNCEABLE OPTION OR CONVERTIBLE NOTE, TO WHICH THE OFFEROR IS NOT ENTITLED

Shareholdings in...................................................................................................................................(2)

1. (3) Under a take-over scheme take-over offers were made by............................................................

........................................................................................................................................................(4) Under a take-over announcement offers were made on behalf of.................................................... ........................................................................................................................................................(4) (in this notice called “the offeror”) in respect of the acquisition of.......................................(5) shares in the abovenamed company.

2. The offeror hereby gives you notice, pursuant to sub-section 43 (4) of the Companies (Acquisition of Shares) Act 1980, that during the relevant period the offeror has become entitled to not less than 90% of the voting shares in the company.

SCHEDULE—continued

3. You, as the holder of—

(3) shares in the company that are not voting shares in respect of which you are, or are entitled to be, registered as the holder

a renounceable option granted to you

a convertible note issued to you

being............................................................„...............................................................................(6), are entitled, pursuant to sub-section 43 (6) of the Companies (Acquisition of Shares) Act 1980, within 3 months after the giving of this notice, to require the offeror to acquire the (3) shares/option/note of which you are the holder and, subject to section 43 of the Companies (Acquisition of Shares) Act 1980, the offeror will then be entitled and bound to acquire the (3) shares/option/note.

4. If you serve a notice on the offeror pursuant to paragraph 43 (6) (b) of the Companies (Acquisition of Shares) Act 1980 the acquisition will be effected on such terms as are agreed or as are ordered on your application or on an application of the offeror by the Supreme Court of the Australian Capital Territory.

5. The details of the consideration for which, and the other term son which, the offeror is now prepared to acquire the (3) shares/option/note are.............................................................................. .........................................................................................................................................................(7).

Dated............................................................

Signed..................................................................................(8)

Directions

(1) Name and address of holder.

(2) Name of target company.

(3) Delete whichever does not apply.

(4) Name of offeror or offerors.

(5) Insert description of shares or class of shares to which the offers related.

(6) Insert description of interest to which the notice relates.

(7) Insert this paragraph, including details of consideration and other terms, if an offer is to be made by the notice.

(8) To be signed in the same manner as a Part A statement is required to be signed by paragraph 16 (2) (d) of the Companies (Acquisition of Shares) Act 1980.

Note: This notice is required by sub-section 43 (5) of the Companies (Acquisition of Shares) Act 1980 to be accompanied by a report by an expert in accordance with that sub-section where terms for the acquisition are proposed by the offeror.

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