Commonwealth Numbered Acts

COMPANIES (ACQUISITION OF SHARES) ACT 1980 No. 64 of 1980 - SECT 42

42. (1) For the purposes of this section-

   (a)  where take-over offers have been made in respect of shares included in
        a class of shares by an offeror who proposes to acquire all the shares
        included in that class, the shares in respect of which the offers were
        made constitute shares subject to acquisition;

   (b)  where a take-over announcement has been made in respect of shares
        included in a class of shares, the shares included in that class
        (other than shares to which the on-market offeror is entitled)
        constitute shares subject to acquisition;

   (c)  a reference to outstanding shares shall be construed as a reference
        to-

        (i)    shares subject to acquisition by virtue of paragraph (a) in
               respect of which a take-over offer was made but has not been
               accepted, not being shares acquired by the offeror otherwise
               than under the relevant take-over scheme; or

        (ii)   shares subject to acquisition by virtue of paragraph (b) in
               respect of which an offer made by virtue of a
               take-over announcement has not been accepted, not being shares
               acquired by the on-market offeror otherwise than by virtue of
               the take-over announcement; and

   (d)  a reference to a dissenting offeree shall be construed-

        (i)    in relation to shares in respect of which take-over offers have
               been made-as a reference to a person who is the holder of
               shares that are outstanding shares by virtue of sub-paragraph
               (c) (i); and

        (ii)   in relation to shares in respect of which a
               take-over announcement has been made-as a reference to a person
               who is the holder of shares that are outstanding shares by
               virtue of sub- paragraph (c) (ii).

(2) Where-

   (a)  take-over offers have been made in respect of shares included in a
        class of shares by an offeror who proposes to acquire all the shares
        included in that class and, after the relevant Part A statement was
        served on the target company and before the end of the period during
        which the offers remain open, the number of shares included in that
        class to which the offeror is entitled became or becomes not less than
        90% of the shares included in that class; and

   (b)  if the shares subject to acquisition constitute less than 90% of the
        shares included in that class-three-quarters of the offerees have
        disposed of to the offeror (whether under the relevant
        take-over scheme or otherwise) the shares subject to acquisition that
        were held by them, the offeror may, within one month after the last
        day upon which offers under the take-over scheme remained open, give
        notice, as prescribed, to a dissenting offeree to the effect that the
        offeror desires to acquire the outstanding shares held by the
        dissenting offeree.

(3) Where-

   (a)  a take-over announcement has been made in respect of shares included
        in a class of shares and, before the end of the period during which
        the offers constituted by that take-over announcement remain open, the
        number of shares included in that class to which the on-market offeror
        is entitled becomes not less than 90% of the shares included in that
        class; and

   (b)  if the shares subject to acquisition constitute less than 90% of the
        shares included in that class-three-quarters of the offerees have
        disposed of to the on-market offeror (whether by acceptance of offers
        made by virtue of the take-over announcement or otherwise) the shares
        subject to acquisition that were held by them, the on-market offeror
        may, within one month after the last day upon which offers constituted
        by the take-over announcement remained open, give notice, as
        prescribed, to a dissenting offeree to the effect that the
        on-market offeror desires to acquire the outstanding shares held by
        the dissenting offeree.

(4) For the purposes of paragraph (2) (b) or (3) (b), 2 or more persons
holding jointly shares in respect of which a take-over offer has been made or
an offer has been made by virtue of a take-over announcement shall be deemed
to be one offeree.

(5) An offeror or on-market offeror to whom sub-section (2) or (3) applies in
relation to a particular company shall, on the day on which he first gives a
notice under sub-section (2) or (3), as the case may be, in relation to that
company, lodge a copy of the notice with the Commission.

(6) Where a notice is given under sub-section (2) or (3), the offeror or
on-market offeror is entitled and bound, subject to this section, to acquire
the shares to which the notice relates on the terms that were applicable in
relation to the acquisition of shares under the take-over scheme or pursuant
to the take-over announcement immediately before the expiration of the period
for which offers under the take-over scheme or offers constituted by the
take-over announcement remained open.

(7) Sub-section (6) does not have effect in relation to a dissenting offeree
where, on an application made by the dissenting offeree-

   (a)  within one month after the date on which the notice was given under
        sub-section (2) or (3); or

   (b)  within 14 days after the giving to him of a statement under
        sub-section (10), whichever is the later, the Court orders that
        sub-section (6) is not to have effect in relation to him.

(8) Where alternative terms were offered under a take-over offer to which this
section applies, the dissenting offeree may, by notice in writing given to the
offeror-

   (a)  within one month after the date on which the notice was given under
        sub-section (2); or

   (b)  within 14 days after the giving to him of a statement under sub-
        section (10), whichever is the later, specify which of those terms he
        prefers, and the terms so specified shall apply to the acquisition of
        the outstanding shares held by him.

(9) If a dissenting offeree fails to give a notice within the period allowed
by sub-section (8), the offeror may, unless the Court otherwise orders,
determine which of the terms referred to in that sub-section is to apply to
the acquisition of the outstanding shares of the dissenting offeree.

(10) Where the offeror or on-market offeror has given notice under sub-
section (2) or (3), the dissenting offeree may, by notice in writing served on
the offeror or on-market offeror within one month after the date on which the
first-mentioned notice was given, ask for a statement in writing of the names
and addresses of all other dissenting offerees and the offeror or on-market
offeror shall forthwith give a statement in writing accordingly.

(11) Where the offeror or on-market offeror has given notice under sub-
section (2) or (3) and the Court has not, on an application made under sub-
section (7), ordered to the contrary, the offeror or on-market offeror shall,
within 14 days after-

   (a)  the expiration of one month after the notice was given;

   (b)  the expiration of 14 days after the last day on which a statement
        under sub-section (10) was given; or

   (c)  where an application has been made to the Court under sub-section
        (7)-the application has been disposed of, whichever last happens,
        serve a copy of the notice on the company that issued the shares,
        together with an instrument of transfer of the shares executed on
        behalf of the holder of the shares by a person appointed by the
        offeror or on- market offeror and also executed by the offeror or
        on-market offeror, and pay, allot or transfer to the target company
        the consideration for the transfer, and the target company shall
        thereupon register the offeror or on-market offeror as the holder of
        those shares.

(12) The target company shall hold the consideration so received in trust for
the former holder of the shares and shall forthwith notify him in writing that
the consideration has been received by the target company and is being held by
that company pending his instructions as to how it is to be dealt with.

(13) Where consideration held as provided by sub-section (12) consists of or
includes money, that money shall be paid into a bank account opened and
maintained for that purpose only.

(14) Where money or other property is held in trust by a company for a person
under this section and has been so held for not less than 2 years, the company
shall, before the expiration of 10 years after the date on which the money or
other property was received by the company, pay the money or transfer the
property and any accretions (or, if any property has been substituted for the
whole or any part of that money or property, the property so substituted) to
the Minister administering the Unclaimed Moneys Ordinance 1950.

(15) The Minister administering the Unclaimed Moneys Ordinance 1950 shall sell
or dispose of any property other than money so received and any property that
becomes substituted for the whole or any part of that property as he thinks
fit and shall deal with the proceeds of the sale or disposal and any money so
received and any income derived from that property in accordance with that
Ordinance.

(16) Where any property transferred under this section to the Minister
administering the Unclaimed Moneys Ordinance 1950, or any property that
becomes substituted for the whole or any part of that property, includes
marketable securities of a corporation, that Minister is not subject to any
obligation to pay any calls, to make any contribution to the debts and
liabilities of the corporation, to discharge any other liability, or to do any
other act or thing, in respect of the marketable securities, whether the
obligation arises before or after the date of the transfer, but this
sub-section does not affect any right of the corporation to forfeit a share.

(17) Where, under the law of a State or of another Territory that corresponds
with this section, marketable securities of a company are transferred to any
authority specified in that law, that authority is not subject to any
obligation as specified in sub-section (16) in respect of those
marketable securities, but this sub-section does not affect any right of the
company to forfeit a share.

(18) Neither the Commonwealth nor the Minister administering the Unclaimed
Moneys Ordinance 1950 is liable for any loss or damage suffered by a person
arising out of the exercise of, or the failure to exercise, any of the powers
that are conferred on that Minister under this section or that that Minister
has in relation to property transferred to him under this section or property
that becomes substituted for the whole or any part of that property.