New South Wales Consolidated Acts New South Wales Consolidated ActsNote : Some of the terms and expressions used in this Part are defined in Part 5 (Interpretative provisions) of this Schedule.
(1) If electricity network assets are transferred pursuant to an authorised transaction by means of an initial public offer of shares in a transaction company, this Schedule applies to impose ownership restrictions in relation to the company.
(2) The
"maximum ownership level" for the purposes of this Schedule is set at the percentage prescribed by the regulations.
(3) This Schedule ceases to apply in relation to a transaction company at the end of the period of 2 years (or such longer period as may be prescribed by the regulations as the period for which this Schedule is to apply to the company) beginning on the day on which the company is first listed on a stock exchange that is a prescribed financial market under the Corporations Act.
(4) A regulation may not be made under this clause in respect of a company after the commencement of the period during which an offer of shares in the company (for the purposes of the initial public offer concerned) can be accepted.
(5) If electricity network assets are transferred pursuant to an authorised transaction by means of an initial public offer of securities of or interests in a transaction entity that is not a transaction company, this Schedule applies to impose ownership restrictions in relation to the transaction entity and so applies--(a) as if a reference to a company included a reference to the entity and a reference to shares in a company included a reference to securities of or interests in the entity, and(b) with such modifications as may be prescribed by the regulations.
For the purposes of this
Schedule, a
"prohibited ownership situation" exists in relation to a floated transaction
company and in relation to a particular person if the person holds a
particular type of stake in the company of more than the maximum ownership
level set by clause 1.
Note : A person's
"stake" includes the interests of the person's associates--see Part 5 of this Schedule.
A person, or 2 or more persons under an arrangement, who acquire shares in a floated transaction company are each guilty of an offence if--
(a) the acquisition has any of the following results--(i) a prohibited ownership situation comes into existence in relation to the company and in relation to a person,(ii) if a prohibited ownership situation already exists in relation to the company and in relation to a person--there is an increase in any type of stake held by the person in the company, and
(b) the person or persons under the arrangement knew, or were reckless as to whether, the acquisition would have that result.
: Maximum penalty--400 penalty units.
(1) A floated transaction company must take all reasonable steps to ensure that a prohibited ownership situation does not exist in relation to the company.
(2) A floated transaction company is guilty of an offence if it engages in conduct that contravenes a requirement of subclause (1).: Maximum penalty--500 penalty units.Note : If a floated transaction company contravenes this subclause, clause 22 operates to make each person who is a director of the company or who is concerned in the management of the company liable for the offence if the person knowingly authorised or permitted the contravention.
(3) An offence under subclause (2) is a strict liability offence.
An act is not invalidated only because it constitutes an offence under this Part.
A floated transaction company must not, without the written approval of the Treasurer--
(a) change the location where any Member Register of the company is kept to a location that is outside of the territorial limits of the State, or
(b) keep any Member Register of the company at a location that is outside of the territorial limits of the State.
: Maximum penalty--500 penalty units.
Note : If a floated transaction company contravenes this clause, clause 22 operates to make each person who is a director of the company or who is concerned in the management of the company liable for the offence if the person knowingly authorised or permitted the contravention.
(1) The regulations may make provision for or with respect to requiring a person--(a) to keep and retain records, where the records are relevant to an ownership matter, and(b) to give information to the Treasurer or a floated transaction company that is relevant to--(i) an ownership matter, or(ii) ascertaining whether Part 1 of this Schedule has been or is being complied with.
(2) The regulations may provide that information given in accordance with a requirement of regulations made for the purposes of subclause (1) (b) must be verified by statutory declaration.
(3) A person is not excused from giving information in accordance with a requirement of regulations made for the purposes of subclause (1) (b) on the ground that the information may tend to incriminate the person or expose the person to a penalty.
(4) However, any information obtained from a natural person in compliance with a requirement of regulations made for the purposes of subclause (1) (b) is not admissible against the person in criminal proceedings other than proceedings for an offence under this clause.
(5) A person must keep records, and provide information, in compliance with any requirements of regulations made for the purposes of subclause (1) (b).: Maximum penalty--50 penalty units.
(6) In this clause--
"control" includes control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights.
"ownership matter" means any of the following matters--(a) whether a person holds a particular type of stake in a floated transaction company and, if so, the level of that stake,(b) whether the directors of a floated transaction company are accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of a person (either alone or together with associates),(c) whether a person (either alone or together with associates) is in a position to exercise control over a floated transaction company.
(1) If a prohibited ownership situation exists in relation to a floated transaction company, the company or the Treasurer (or both) may apply to the Supreme Court to make such orders as the Court considers appropriate for the purpose of ensuring that the situation ceases to exist.
(2) Without limiting subclause (1), the Court may make any of the following orders on any such application--(a) an order directing the disposal of shares,(b) an order restraining the exercise of any rights attached to shares,(c) an order prohibiting or deferring the payment of any sums due to a person in respect of shares held by the person,(d) an order that any exercise of rights attached to shares be disregarded.
(3) The Supreme Court may, before making an order under this clause, direct that notice of the application be given to such persons as it thinks fit or be published in such manner as it thinks fit, or both.
(4) A floated transaction company and its directors and secretary are specifically authorised and required to ensure that any rights attached to shares are not exercised in contravention of an order made under this clause (including ensuring that meetings of the company are conducted in accordance with requirements of any such order).
If a person has engaged, is engaging or is proposing to engage in any conduct in contravention of this Schedule, the Supreme Court may, on the application of a floated transaction company or the Treasurer (or both), grant an injunction--
(a) restraining the person from engaging in the conduct, or
(b) requiring the person to do something.
In this Schedule--
"acquisition" includes an agreement to acquire, but does not include--
(a) an acquisition by will or by devolution by operation of law, or
(b) an acquisition by way of enforcement of a loan security.
(a) the constitution of the company, or
(b) any rules or other documents constituting the company or governing its activities.
(a) a person (who may include the trustee) is empowered (either unconditionally or on the fulfilment of a condition) to exercise any power of appointment or other discretion, and
(b) the exercise of the power or discretion, or the failure to exercise the power or discretion, has the effect of determining, to any extent, either or both of the following--(i) the identities of those who may benefit under the trust,(ii) how beneficiaries are to benefit, as between themselves, under the trust.
(a) a director, secretary or employee of the company, or
(b) a receiver and manager of any part of the undertaking of the company appointed under a power contained in any instrument, or
(c) a liquidator of the company appointed in a voluntary winding up.
(a) the person's spouse or the person's de facto partner (being the other party to a de facto relationship, within the meaning of the Property (Relationships) Act 1984 , with the person), or
(b) a parent or remoter lineal ancestor of the person, or
(c) a child or remoter issue of the person, or
(d) a sibling of the person.
(1) For the purposes of this Schedule, a person is taken to have proposed to enter into an agreement or arrangement if the person takes part in, or proposes to take part in, negotiations with a view to entering into the agreement or arrangement.
(2) A reference in this Schedule to
"entering into an agreement or arrangement" includes a reference to altering or varying an agreement or arrangement.
(3) A reference in this Schedule to
"entering into an arrangement" is a reference to entering into any formal or informal scheme, arrangement or understanding, whether expressly or by implication and, without limiting the generality of the foregoing, includes a reference to--(a) entering into an agreement, or(b) creating a trust, whether express or implied, or(c) entering into a transaction,and a reference in this Schedule to an arrangement is to be construed accordingly.
(4) A reference in this Schedule to an
"arrangement" does not include a reference to a moneylending agreement.
(1) For the purposes of this Schedule, the following persons are, subject to subclause (3),
"associates" of a person--(a) a relative of the person,(b) a partner of the person,(c) a company of which the person is an officer,(d) if the person is a company--an officer of the company,(e) an employee or employer of the person,(f) an officer of a company of which the person is an officer,(g) an employee of an individual of whom the person is an employee,(h) the trustee of a discretionary trust where the person or another person who is an associate of the person by virtue of another paragraph of this subclause benefits, or is capable (whether by the exercise of a power of appointment or otherwise) of benefiting, under the trust, either directly or through any interposed companies, partnerships or trusts,(i) a company whose directors are accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of the person,(j) a company where the person is accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of the company,(k) a company in which the person has, apart from this paragraph, a particular type of stake of not less than 15 percent,(l) if the person is a company--a person who holds, apart from this paragraph, a particular type of stake in the company of not less than 15 percent,(m) a person who is, because of this subclause, an associate of any other person who is an associate of the person (including a person who is an associate of the person by any other application or applications of this paragraph).
(2) If a person (
"the first person" ) enters, or proposes to enter, into an arrangement with another person (
"the second person" ) that relates to any of the following matters--(a) the first person and the second person being in a position, by acting together, to control any of the voting power in a company,(b) the power of the first person and the second person, by acting together, to appoint or remove a director of a company,(c) the situation where one or more of the directors of a company are accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of the first person and the second person acting together,the second person is taken to be an associate of the first person for the purposes of the application of a provision of this Schedule in relation to the matter concerned.
(3) The regulations may provide that, for the purposes of this Schedule, a specified person (or class of persons) is not an associate of another specified person (or class of persons).
(1) A reference in this Schedule to a
"power to appoint a director" includes a reference to such a power whether exercisable with or without the consent or concurrence of any other person.
(2) For the purposes of this Schedule, a person is taken to have the power to appoint a director if--(a) the person has the power (whether exercisable with or without the consent or concurrence of any other person) to veto such an appointment, or(b) a person's appointment as a director of the company follows necessarily from that person being a director or other officer of the first mentioned person.
For the purposes of this Schedule, a person
is
"entitled to acquire" anything if the person is absolutely or contingently
entitled to acquire it, whether because of any constituent document of a
company, the exercise of any right or option or for any other reason.
(1) Subject to this clause, a person holds an
"interest in a share" if the person has any legal or equitable interest in the share.
(2) Without limiting subclause (1), a person is taken to hold an interest in a share if--(a) the person has entered into a contract to purchase the share, or(b) the person has a right (otherwise than because of having an interest under a trust) to have the share transferred to the person or to the person's order (whether the right is exercisable presently or in the future and whether or not on the fulfilment of a condition), or(c) the person has a right to acquire the share, or an interest in the share, under an option (whether the right is exercisable presently or in the future and whether or not on the fulfilment of a condition), or(d) the person is otherwise entitled to acquire the share or an interest in the share, or(e) the person is entitled (otherwise than because of having been appointed as a proxy or representative to vote at a meeting of members of the company or of a class of its members) to exercise or control the exercise of a right attached to the share.
(3) A person is taken to hold an interest in a share even if the person holds the interest in the share jointly with another person.
(4) For the purpose of determining whether a person holds an interest in a share, it is immaterial that the interest cannot be related to a particular share.
(5) An interest in a share is not to be disregarded only because of--(a) its remoteness, or(b) the manner in which it arose, or(c) the fact that the exercise of a right conferred by the interest is, or is capable of being made, subject to restraint or restriction.
(1) For the purposes of this Schedule, the following interests and stakes must be disregarded--(a) an interest in a share held by a person whose ordinary business includes the lending of money if the person holds the interest as a loan security,(b) an interest in a share held by a person, being an interest held by the person because the person holds an office (or an office belonging to a class of offices) prescribed by the regulations,(c) an interest of a prescribed kind in a share, being an interest held by such persons (or persons belonging to a class of persons) as are prescribed by the regulations,(d) an interest in a share held by a public sector agency,(e) a stake of a kind prescribed by the regulations in a company, being a stake held by a person (or person belonging to a class of persons) prescribed by the regulations.
(2) For the purposes of this Schedule, if--(a) a person holds an interest in a share as a loan security, and(b) the ordinary business of the person includes the lending of money, and(c) the loan security is enforced, and(d) as a result of the enforcement of the loan security, the person becomes the holder of the share, and(e) the person holds the share for a continuous period (the person's interest in the share must be disregarded at all times during so much of the holding period as occurs during whichever of the following periods is applicable--
"the holding period" ) beginning at the time when the security was enforced,(f) the period of 90 days beginning when the security was enforced,(g) if the Treasurer, by written notice given to the person, allows a longer period--the end of that longer period.
(3) For the purposes of this Schedule, if--(a) a person acquires an interest in a share in a floated transaction company, and(b) the interest was acquired in the person's capacity as an underwriter or a sub-underwriter in connection with the transfer or issue of shares in the company by or on behalf of a public sector agency or the company (whether under an initial public offer of the company or otherwise),the person's interest in the share must be disregarded at all times during whichever of the following periods is applicable--(c) the period of 90 days beginning when the person acquired the interest,(d) if the Treasurer, by written notice given to the person, allows a longer period--that longer period.
(1) A reference in this Schedule to the
"voting power" in a company is a reference to the total rights of shareholders to vote, or participate in any decision making, concerning any of the following--(a) the making of distributions of capital or profits of the company to its shareholders,(b) the constituent document of the company,(c) any variation of the share capital of the company.
(2) A reference in this Schedule to
"control of the voting power" in a company is a reference to control that is direct or indirect, including control that is exercisable as a result of or by means of arrangements or practices--(a) whether or not having legal or equitable force, and(b) whether or not based on legal or equitable rights.
(3) If the percentage of total rights to vote or participate in decision making differs as between different types of voting or decision making, the highest of those percentages applies for the purposes of this clause.
(4) If a company--(a) is limited both by shares and by guarantee, or(b) does not have a share capital,this clause has effect as if the members or policy holders of the company were shareholders in the company.
(1) A particular type of
"stake" that a person holds in a company at a particular time is the aggregate of--(a) the direct control interests in the company of that type that the person holds at that time, and(b) the direct control interests in the company of that type held at that time by associates of the person.
(2) In calculating the stake that a person holds in a company, a direct control interest held because of clause 19 (5) is not to be counted under subclause (1) (a) to the extent to which it is calculated by reference to a direct control interest in the company that is taken into account under subclause (1) (b).
(1) A person holds a
"direct control interest" in a company at a particular time equal to the percentage of the total paid-up share capital of the company in which the person holds an interest at that time.
(2) A person also holds a
"direct control interest" in a company at a particular time equal to the percentage of the voting power in the company that the person is in a position to control at that time.
(3) A person also holds a
"direct control interest" in a company at a particular time equal to the percentage that the person holds, or is entitled to acquire, at that time of the total rights to distributions of capital or profits of the company to its shareholders on winding up.
(4) A person also holds a
"direct control interest" in a company at a particular time equal to the percentage that the person holds, or is entitled to acquire, at that time of the total rights to distributions of capital or profits of the company to its shareholders, otherwise than on winding up.
(5) If--(a) a person holds a particular type of direct control interest (including a direct control interest that is taken to be held because of one or more previous applications of this subclause) in a company (
"the first level company" ), and(b) the first level company holds the same type of direct control interest in another company (the person is taken to hold that type of direct control interest in the second level company equal to the percentage worked out using the formula--
"the second level company" ),
"first level percentage" means the percentage of the direct control interest held by the person in the first level company.
"second level percentage" means the percentage of the direct control interest held by the first level company in the second level company.
(6) The regulations may make provision for or with respect to the application of this clause to interests in an entity other than a company.
(1) For the purposes of this Schedule--(a) a person is taken to hold a
"substantial interest" in a trust estate if the person, alone or together with an associate or associates, holds a beneficial interest in not less than 15 percent of the corpus or income of the trust estate, and(b) 2 or more persons are taken to hold an
"aggregate substantial interest" in a trust estate if the persons, together with an associate or associates, hold, in the aggregate, beneficial interests in not less than 40 percent of the corpus or income of the trust estate.
(2) For the purposes of subclause (1), if, under the terms of a trust, a trustee has a power or discretion as to the distribution of the income or corpus of the trust estate to beneficiaries, each beneficiary is taken to hold a beneficial interest in the maximum percentage of income or corpus of the trust estate that the trustee is empowered to distribute to that beneficiary.
The provisions of this Schedule are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act in relation to the provisions of the Corporations legislation generally.
(1) If a corporation contravenes, whether by act or omission, any provision of this Schedule, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision if the person knowingly authorised or permitted the contravention.
(2) A person may be proceeded against and convicted under a provision pursuant to subclause (1) whether or not the corporation has been proceeded against or has been convicted under the provision.
(3) Nothing in this clause affects any liability imposed on a corporation for an offence committed by the corporation under this Schedule.
(1) Proceedings for an offence under this Schedule may be dealt with summarily before the Local Court or before the Supreme Court in its summary jurisdiction.
(2) If proceedings for an offence to which this clause applies are brought in the Local Court, the maximum penalty that the Court may impose in respect of the offence is, despite any other provision of this Schedule, $50,000 or the maximum penalty provided by this Schedule, whichever is the lesser.
(3) If proceedings for an offence to which this clause applies are brought in the Supreme Court in its summary jurisdiction, the Supreme Court may impose a penalty not exceeding the maximum penalty provided by this Schedule in respect of the offence.
