EXPLANATORY STATEMENT
STATUTORY RULES NO. 244 /84
ATTORNEY-GENERAL
ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL
COMPANIES (ACQUISITION OF SHARES)
REGULATIONS (AMENDMENT)
Section 62 of the Companies (Acquisition of Shares) Act 1980 (the Act) provides in sub-section (1) that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act. Sub-section (2) of that section provides that the power of the Governor-General to make regulations shall be exercised only in accordance with advice that is consistent with resolutions of the Ministerial Council for Companies and Securities (the Ministerial Council).
The Ministerial Council has resolved that the accompanying regulations should be made under the Act.
The purpose of the accompanying regulations is to make provision for the service of prescribed notices under sections
42 and 43 of the Act either personally or by post and for a new manner in which those notices are to be signed.
Details of the accompanying regulations are as follows:
Regulation 1 - Service of Notices
Section 42 of the Act contains provisions relating to acquisition of the shares of minority shareholders who do not accept take-over offers in respect of their shares. Sub-sections 42(2) and (3) allow a person who proposes to acquire all the shares in a company (and who has made offers under a take-over scheme or an on-market take-over announcement accordingly) to acquire compulsorily the shares of the remaining shareholders in certain circumstances, provided he gives the required acquisition notice to those shareholders within one month of the close of his bid. The prescribed notices for the purposes of sub-section 42(2) and (3) of the Act are Forms 3 and 4 in the Schedule to the Companies (Acquisition of Shares) Regulations - the Regulations (see regs. 10 and 11 of the Regulations).
Section 43 of the Act contains provisions to protect the rights of remaining shareholders and holders of options and convertible notes who have not accepted the bid for their holdings. Sub-section 43(1) provides that a person who, after making a take-over offer under a take-over scheme or an
on-market announcement, is entitled to more than 90% of the voting shares in a company, is required to notify the remaining shareholders. Those shareholders, by virtue of sub-sections 43(2) and (3), then have 3 months in which to require the persons to acquire their shares on the same terms as under the offer or on-market announcement. The prescribed notices for the purposes of sub-section 43(1) of the Act are Forms 5 and 6 in the Schedule to the Regulations (see regs. 12 and 13 of the Regulations). Where a bidder attains 90% of all the voting shares, he must, pursuant to sub-section 43(4), also give notice to the holders of non-voting shares, convertible notes and renounceable options. The prescribed notice for the purposes of sub-section 43(4) is Form 7 in the Schedule to the Regulations (see reg. 14 of the Regulations). There is no provision in sections 42 and 43 of the Act for the service of the above notices by post.
New regulation 15 in the Regulations specifies the manner in which the above notices may be served. The manner of service is either delivery of the notice to the relevant person personally or sending the notice by prepaid post addressed to the person at his usual or last known place of residence or business.
Regulation 2 - Schedule
Forms 3, 4, 5, 6 and 7 in the Schedule to the Regulations, referred to above, are required to be signed in the same manner as a Part A statement is required to be signed by
principal executive officer of the corporation or each of those corporations. Where the offeror is or includes a natural person or natural persons, the present signature requirements will continue to apply.