COMPANIES AND SECURITIES LEGISLATION AMENDMENT ACT 1986 No. 68 of 1986 - SECT 6 Take-over offers

COMPANIES AND SECURITIES LEGISLATION AMENDMENT ACT 1986 No. 68 of 1986 - SECT 6

6. Section 16 of the Principal Act is amended-

   (a)  by omitting from sub-paragraph (2) (a) (i) all the words from and
including "holds," and substituting "holds";

   (b)  by omitting from sub-paragraph (2) (e) (ii) "and";

   (c)  by omitting sub-paragraph (2) (f) (iii);

   (d)  by adding at the end of sub-section (2) the following paragraphs:

"(g) in a case where-

        (i)    the consideration that under each of the offers is to be paid
               or provided for the acquisition of the shares to which the
               offer relates consists solely of a cash sum or includes
               alternative considerations one of which consists solely of a
               cash sum; and

        (ii)   during the period of 4 months ending on the day on which the
               first of the offers is dispatched, the offeror, or a person
               associated with the offeror, purchased or agreed to purchase
               shares in the target company included in the relevant class of
               shares,
the amount per share of that cash sum is not less than-

        (iii)  unless sub-paragraph (iv) applies-the highest price per share
               paid or agreed to be paid, pursuant to such a purchase or
               agreement to purchase, for any of the shares first referred to
               in sub-paragraph (ii); or

        (iv)   if the target company, at any time during that period-

   (a)  made, agreed to make, or announced a proposal to make, or to agree to
        make, an allotment of any of its shares;

   (b)  granted, agreed to grant, or announced a proposal to grant, or to
        agree to grant, an option to subscribe for any of its shares;

   (c)  issued, agreed to issue, or announced a proposal to issue, or to agree
        to issue, convertible notes; or

   (d)  declared, or announced a proposal to declare, a dividend,
and an approval by the Commission of an amount in relation to the offers is in
force under sub-section (2AB)-the last-mentioned amount;

   (h)  none of the offers is subject to a condition (however expressed, and
        whatever the purported effect of fulfilment or failure of the
        condition) the fulfilment or failure of which depends on, or depends
        on matters including, one or both of the following matters:

        (i)    whether the number of shares in respect of which the offeror
               receives an acceptance or acceptances of one or more of the
               offers exceeds a particular number of shares;

        (ii)   whether the number of offers accepted exceeds a particular
               number,
however the particular number was, or is to be, determined, whether or not the
particular number is specified in the condition and, if the particular number
is so specified, however the particular number is expressed; and

   (j)  without limiting the generality of paragraph (h), none of the offers
        is subject to a condition (however expressed) that permits the offeror
        to acquire, or that may result in the offeror acquiring, shares
        included in the relevant class of shares from some but not all of the
        persons who accept the respective offers made to the last-mentioned
        persons."; and

   (e)  by inserting after sub-section (2) the following sub-sections:

"(2AA) For the purposes of paragraph (2) (g), where a person has entered into
an agreement for the purchase of a share or shares in a company, being an
agreement that provides that the price payable for the share or any of the
shares is a price (in this sub-section referred to as the 'original price')
specified in the agreement but may be varied in accordance with the terms of
the agreement, the price agreed to be paid for the share or any of the shares
shall be deemed to be the original price.

"(2AB) Upon application by an offeror who proposes to dispatch offers to
acquire shares included in a class of shares in a company, the Commission may,
by instrument in writing, approve, for the purposes of paragraph (2) (g), a
specified amount in relation to the offers.

"(2AC) Where a copy of a Part A statement relating to an offer to acquire
shares (whether the offer was made before, or is made at or after, the
relevant commencement) was lodged with the Commission before the relevant
commencement for registration under sub-section 18 (1), then, notwithstanding
the amendments made, and the repeals effected, by sections 4, 5, 6, 8 and 11
of the relevant Act, but subject to sub-section (2AD) of this section-

   (a)  the provisions of sections 8 and 13, of sub-section (2) of this
        section, and of sections 25, 25A, 25C and 42, of this Act, being those
        provisions as in force after the relevant commencement, do not apply;
        and

   (b)  the provisions of sections 8 and 13, of sub-section (2) of this
        section, and of sections 25, 26 and 42, of this Act, being those
        provisions as in force immediately before the relevant commencement,
        apply,
in relation to-

   (c)  an offer to which the Part A statement relates;

   (d)  a contract resulting from the acceptance of an offer to which the Part
        A statement relates; or

   (e)  the take-over scheme under which the offers to which the Part A
        statement relates were or are made.

"(2AD) Where-

   (a)  a take-over offer (in this sub-section referred to as the 'relevant
        offer') relating to shares included in a class of shares in a company
        has been made (whether before, at or after the relevant commencement)
        under a take-over scheme;

   (b)  by virtue of sub-section (2AC), the provisions referred to in
        paragraph (2AC) (b), being those provisions as in force as mentioned
        in that paragraph, apply in relation to the relevant offer;

   (c)  but for this sub-section, the take-over offers made under the
        take-over scheme would be taken to have been made in accordance with
        sub-paragraph (2) (a) (i);

   (d)  the number (in this sub-section referred to as the 'first relevant
        number') specified, in accordance with sub-paragraph (2) (f) (iii), in
        the relevant offer (or, if that number is expressed as a percentage,
        the number (in this sub-section also referred to as the 'first
        relevant number') of shares represented by that percentage) is less
        than the total number (in this sub-section referred to as the 'second
        relevant number') of shares (other than shares to which the offeror
        was entitled at the time when the first take-over offer was made under
        the take-over scheme) included in that class; and

   (e)  in a case where the relevant offer was made before the relevant
        commencement-as at the relevant commencement, the period during which
        the relevant offer remains open has not ended,
then-

   (f)  the take-over offers made under the take-over scheme shall be deemed
        not to have been made in accordance with sub-paragraph (2) (a) (i) and
        to have been made in accordance with sub-paragraph (2) (a) (ii);

   (g)  the relevant offer shall be deemed always to have related to, to
        relate to, and, if the relevant offer has been or is accepted, to have
        been or to be accepted in relation to, a proportion of the shares to
        which the relevant offer would, but for this sub-section and section
        26, relate, being the proportion that the first relevant number bears
        to the second relevant number; and

   (h)  in a case where paragraph (e) applies and the period during which the
        relevant offer remains open would, but for this paragraph, end before
        the end of the period of 7 days commencing at the relevant
        commencement-the period during which the relevant offer remains open
        shall, except for the purposes of sub-section 27 (8), be deemed to be
        extended until the end of that period of 7 days.

"(2AE) The document prepared by the Companies and Securities Law Review
Committee, entitled "Report to the Ministerial Council on Partial Takeover
Bids" and dated August 1985 is hereby declared to be a relevant document for
the purposes of section 5B of the
Companies and Securities (Interpretation and  Miscellaneous Provisions) Act
1980 but, notwithstanding that section, consideration shall not be given to
that document in the interpretation of a provision of this Act other than a
provision as in force after the relevant commencement.

"(2AF) Neither section 25, as in force after the relevant commencement, nor
section 25C shall be taken to affect by implication the interpretation of this
Act as in force at any time before the relevant commencement.

"(2AG) In sub-sections (2AC), (2AD), (2AE) and (2AF) and in this sub-section-
'relevant Act' means the Companies and Securities Legislation Amendment  Act
1986 ;
'relevant commencement' means the commencement of Part II of the relevant
Act.".