Commonwealth: Companies and Securities Legislation (Miscellaneous Amendments) Act 1985 (Cth)

Companies and Securities Legislation (Miscellaneous Amendments) Act 1985 No. 192 of 1985 TABLE OF PROVISIONS PART I—PRELIMINARY Section 1. Short title 2. Commencement PART II—AMENDMENTS OF COMPANIES (ACQUISITION OF SHARES) ACT 1980 3. Principal Act 4. Definitions 5. Acquisition and disposal of, and entitlement to, shares, and associated persons 6. Other interpretative and evidentiary provisions 7. Insertion of new section— 8a. Approved manner of dispatch 8. Relevant interests in shares 9. Acquisition of shares permitted in certain circumstances 10. Acquisition of not more than 3% of voting shares permitted in each 6 months 11. Take-over offers 12. Take-over announcements 13. Registration of Part A statements and offers 14. Repeal of section 21 and substitution of new section— 21. Withdrawal of offers TABLE OF PROVISIONS—continued Section 15. Variation of take-over offers 16. Declaration where take-over offers are conditional 17. Repeal of section 29 18. Insertion of new section— 39a. Notification of offeror's entitlement 19. Provisions relating to dissenting shareholders 20. Orders where prohibited acquisitions take place 21. Orders where offers not dispatched pursuant to Part A statement 22. Orders to protect interests of certain persons 23. Miscellaneous provisions relating to orders 24. Repeal of section 52 and substitution of new section— 52. Announcements of proposed take-over bids 25. Offences 26. Repeal of sections 54, 63 and 64 27. Schedule 28. Further amendments relating to securities exchanges PART III—AMENDMENTS OF COMPANIES ACT 1981 29. Principal Act 30. Interpretation 31. Affairs of a corporation 32. Relevant interests in shares 33. Associated persons 34. Power of Commission to require production of books 35. Repeal of section 16a and substitution of new section— 16a. Investigation of certain matters 36. Registration of auditors 37. Registration of liquidators 38. Notification of certain matters 39. Powers of Board in relation to auditors and liquidators 40. Proceedings at hearings 41 Notice of Board's decision 42. Time when Board's decision comes into effect 43. Appeal from decision of Board 44. Registers 45. Formation of companies 46. Amendment of Division heading 47. Insertion of new sections— 66a. Commencement of certain provisions 66b. Interpretation 66c. Object of sections 67 and 68 48. Legal capacity 49. Restrictions on companies 50. Repeal of section 68b 51. Alterations of memorandum 52. Repeal of section 78 and substitution of new section— 78. Operation of memorandum and articles 53. Contents of prospectuses 54. Certain notices, &c., not to be published 55. Application and interpretation 56. Substantial shareholdings and substantial shareholders 57. Repeal of section 141 and substitution of new section— 141. Copy of notice to be served on securities exchanges 58. Powers of Court with respect to defaulting substantial shareholder 59. Approval of deeds 60. Repeal of section 186 and substitution of new section— 186. Remedy for refusal to register transfer or transmission 61. Interpretation 62. Insertion of new section— 205a. Charges in favour of certain persons void in certain cases TABLE OF PROVISIONS—continued Section 63. Insertion of new section— 215d. Retirement village schemes 64. Publication of name 65. Vacation of office 66. Insertion of new section— 229a. Liability of directors for debts, &c., incurred by corporation acting as trustee 67. Loans to directors 68. General duty to make disclosure 69. Benefits for loss of, or retirement from, office 70. Register of directors, principal executive officer and secretaries 71. Register of Disqualified Company Directors and Other Officers 72. Insertion of new section— 255a. Notices relating to non-beneficial and beneficial ownership of shares 73. Register and index of members 74. Trustee, &c., may be registered as owner of shares 75. Power of company to obtain information as to beneficial ownership of its shares 76. Powers of Court 77. Insertion of new Division— Division 6—Inspection of Records 265b. Inspection of records 265c. Disclosure of information 78. Interpretation 79. Insertion of new section— 266g. Annual Report 80. Profit and loss account, balance-sheet, group accounts, &c. 81. Directors' reports 82. Relief from requirements as to accounts and reports 83. Members of company entitled to balance-sheet, &c. 84. Accounts and reports to be laid before annual general meeting 85. Appointment of auditors 86. Powers and duties of auditors as to reports on accounts 87. Interpretation and application 88. Record of examination 89. Admissibility of record of examination in evidence in proceedings against person examined 90. Admissibility in other proceedings of statements at an examination 91. Weight of evidence 92. Credibility of person who made statements 93. Determination of objection to admissibility of statement 94. Power to compromise with creditors and members 95. Powers of receiver 96. Reports by receiver 97. Prosecution of delinquent officers and members 98. Receiver to enjoy qualified privilege in certain circumstances 99. Payments of certain debts out of property subject to floating charge in priority to claims under charge 100. Certain provisions applicable to official management 101. Avoidance of dispositions of property, attachments, &c. 102. Powers of liquidator 103. Reports by liquidator 104. Expenses of winding up where property insufficient 105. Priority payments 106. Debts due to employees 107. Debts of a class to rank equally 108. Advances in respect of wages, retrenchment payments and leave of absence 109. Priority of employees' claims over floating charges 110. Provisions relating to injury compensation 111. Priority where security given for payment of taxes 112. Prosecution of delinquent officers and members 113. Publication of name, &c., of recognised company or recognised foreign company 114. Unregistered foreign company not to establish place of business or carry on business in the Territory TABLE OF PROVISIONS—continued Section 115. Notice to be lodged where documents, &c., altered 116. Balance-sheets and other documents 117. Publication of name, &c., of foreign company 118. Service of documents on recognised company or recognised foreign company 119. Offences by officers of certain companies 120. Offences relating to incurring of debts or fraudulent conduct 121. Falsification of books 122. Court may disqualify person from acting as director, &c., in certain circumstances 123. Insertion of new section— 562a. Commission may order persons not to manage corporations 124. False or misleading statements 125. Repeal of section 564 and substitution of new section— 564. False information, &c. 126. Dividends payable from profits only 127. General penalty provisions 128. Repeal of section 571 and substitution of new section— 571. Continuing offences 129. Officers and other persons in default 130. Regulations 131. Operation of certain Ordinances 132. Schedule 4 133. Further amendments relating to securities exchanges PART IV—AMENDMENTS OF COMPANIES AND SECURITIES (INTERPRETATION AND MISCELLANEOUS PROVISIONS) ACT 1980 134. Principal Act 135. Regard to be had to purpose or object of relevant Act 136. Insertion of new section— 5b. Use of extrinsic material for interpretation of relevant Act 137. Definitions 138. Insertion of new section— 11a. References to persons, things and matters 139. References to writing, printing and documents 140. Insertion of new section— 13a. Production of records kept by means of computers, &c. 141. Insertion of new section— 14a. Service of documents on certain persons 142. Mention of officer in general terms 143. Insertion of new sections— 20a. Alterations of names and constitutions 20b. Compliance with forms 20c. Contents of statements of reasons for decisions 20d. Attainment of particular age 144. Conferral of power to make, grant or issue an instrument 145. Power to appoint 146. Insertion of new section— 23a. Delegations 147. References to amended, re-enacted or remade laws 148. Heading to Part III 149. Insertion of Division heading 150. Insertion of new section— 36a. Effect of alterations of penalties 151. Insertion of new Division— Division 2—Civil Proceedings 38b. Standard of proof PART V—AMENDMENT OF COMPANIES AND SECURITIES LEGISLATION (MISCELLANEOUS AMENDMENTS) ACT 1983 152. Principal Act 153. Schedule 1 TABLE OF PROVISIONS—continued Section PART VI—AMENDMENTS OF NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979 154. Principal Act 155. Interpretation 156. Membership of Commission 157. Acting appointments 158. Meetings of Commission 159. Divisions of Commission 160. Engagement of consultants 161. Proceedings at hearings 162. Delegation by Commission 163. Repeal of section 50 PART VII—AMENDMENTS OF SECURITIES INDUSTRY ACT 1980 164. Principal Act 165. Interpretation 166. Relevant interests in securities 167. Associated persons 168. Power of Commission to require production of books 169. Disclosure to Commission 170. Repeal of section 13 and substitution of new section— 13. Investigation of certain matters 171. Power of Court to make certain orders 172. Interpretation 173. Record of examination 174. Record to accompany report 175. Admissibility of record of examination in evidence in proceedings against person examined 176. Admissibility in other proceedings of statements at an examination 177. Weight of evidence 178. Credibility of person who made statements 179. Determination of objection to admissibility of statement 180. Provisions relating to reports 181. Power of Commission to make certain orders 182. Heading to Part III 183. Establishment, &c., of stock markets 184. Power of Ministerial Council to approve stock exchange 185. Insertion of new sections— 38a. Power of Ministerial Council to approve body corporate as approved securities organisation 38b. Publication of instruments executed under section 37, 38 or 38a 186. Securities exchanges to provide assistance to Commission 187. Power of Court to order observance or enforcement of business rules or listing rules of securities exchange 188. Insertion of new section— 42a. Certain laws not applicable to option contracts to which this Act applies 189. Further provisions relating to revocation and suspension of licences 190. Issue of contract notes 191. Insertion of new section— 65a. Recommendations 192. Short selling 193. Insertion of new section— 68a. Power of Commission to prohibit short selling in certain cases 194. Dealers' trust accounts 195. Certain matters to be reported to Commission 196. Fraudulently inducing persons to deal in securities 197. Restrictions on use of titles "stockbroker", "sharebroker" and "stock exchange" 198. Repeal of section 142 and substitution of new section— 142. Continuing offences 199. Offences by bodies corporate 200. Further amendments relating to securities exchanges TABLE OF PROVISIONS—continued SCHEDULE 1 FURTHER AMENDMENTS OF THE COMPANIES (ACQUISITION OF SHARES) ACT 1980 RELATING TO SECURITIES EXCHANGES SCHEDULE 2 FURTHER AMENDMENTS OF THE COMPANIES ACT 1981 RELATING TO SECURITIES EXCHANGES SCHEDULE 3 FURTHER AMENDMENTS OF THE SECURITIES INDUSTRY ACT 1980 RELATING TO SECURITIES EXCHANGES Companies and Securities Legislation (Miscellaneous Amendments) Act 1985 No. 192 of 1985 An Act to amend laws relating to companies and securities [Assented to 16 December 1985] BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows: PART I—PRELIMINARY Short title 1. This Act may be cited as the Companies and Securities Legislation (Miscellaneous Amendments) Act 1985. Commencement 2. (1) Subject to this section, the provisions of this Act shall come into operation on such day as is, or on such respective days as are, fixed by Proclamation. (2) Part I shall come into operation on the day on which this Act receives the Royal Assent. (3) Sections 7, 9, 11 to 17 (inclusive), 21 and 22 shall come into operation on a day to be fixed by Proclamation. (4) Section 24 and sub-section 25(1) shall come into operation on a day to be fixed by Proclamation, not being a day that is earlier than the day on which sub-section 25 (2) comes into operation. (5) Sub-section 25 (2) and sections 26, 127, 128, 198 and 199 shall come into operation on a day to be fixed by Proclamation. (6) Sections 27 and 69 shall come into operation on a day to be fixed by Proclamation. (7) Sub-section 30 (2) and sections 36 to 43 (inclusive), 65 and 123 shall come into operation on a day to be fixed by Proclamation. (8) Sections 45 and 131 shall be deemed to have come into operation on 1 July 1982. (9) Section 63 and sub-section 165 (2) shall come into operation on 1 July 1987. (10) Sections 72, 73 and 74 and sub-section 75 (1) shall come into operation on a day to be fixed by Proclamation. (11) Sub-section 80 (2) shall come into operation on the day on which sub-section 80 (1) comes into operation or, if section 9 of the Companies Amendment Act 1985 does not come into operation before that day, immediately after the commencement of that section. (12) Part V shall be deemed to have come into operation on 1 January 1984. PART II—AMENDMENTS OF COMPANIES (ACQUISITION OF SHARES) ACT 1980 Principal Act 3. The Companies (Acquisition of Shares) Act 19801 is in this Part referred to as the Principal Act. Definitions 4. Section 6 of the Principal Act is amended— (a) by omitting the definition of "home exchange" and substituting the following definition: " 'home stock exchange', in relation to a stock exchange listed company, means the stock exchange designated to the company as its Home Exchange by the Australian Associated Stock Exchanges;"; (b) by inserting ", except in the definition of 'stock market'," before "means" in the definition of "invitation"; (c) by omitting the definition of "listed public company" and substituting the following definition: " 'listed company' means a company that has been admitted to the official list of a securities exchange and has not been removed from that official list;"; (d) by inserting after the definition of "non-voting share" the following definition: " 'notifiable securities exchange', in relation to a listed company, means a securities exchange, being— (a) in the case of a stock exchange listed company—the home stock exchange of the company; or (b) in any case—a securities exchange (not being a stock exchange) to whose official list the company has been admitted and from whose official list the company has not been removed;"; (e) by inserting after the definition of "prescribed occurrence" the following definition: " 'quotation', in relation to securities, in relation to a stock market of a securities exchange, includes the displaying or providing, on a stock market of the securities exchange, of information concerning— (a) in a case where offers to sell, purchase or exchange the securities at particular prices, or for particular consideration, are made or accepted on that stock market—those prices or that consideration; (b) in a case where offers or invitations are made on that stock market, being offers or invitations that are intended, or may reasonably be expected, to result, whether directly or indirectly, in the making or acceptance of offers to sell, purchase or exchange the securities at particular prices, or for particular consideration—those prices or that consideration; or (c) in any case—the price at which, or the consideration for which, particular persons, or particular classes of persons, propose, or may reasonably be expected, to sell, purchase or exchange the securities;"; (f) by inserting after the definition of "renounceable option" the following definition: " 'securities exchange' means a body corporate (whether or not incorporated in the Territory) that is declared by the regulations to be a securities exchange for the purposes of this Act;"; (g) by omitting the definition of "stock market" and substituting the following definition: " 'stock exchange listed company' means a company that has been admitted to the official list of a stock exchange and that has not been removed from that official list;"; and (h) by omitting the definition of "trading day" and substituting the following definitions: " 'trading', in relation to securities, in relation to a stock market, includes— (a) making or accepting on that stock market offers to sell, purchase or exchange the securities; and (b) making on that stock market offers or invitations that are intended, or may reasonably be expected, to result, whether directly or indirectly, in the making or acceptance of offers to sell, purchase or exchange the securities; 'trading day', in relation to a securities exchange, means a day on which a stock market of the securities exchange is open for trading in securities.". Acquisition and disposal of, and entitlement to, shares, and associated persons 5. Section 7 of the Principal Act is amended— (a) by inserting in sub-section (3) " (in this sub-section and sub-section (4) referred to as the 'relevant company')" after "a company"; (b) by inserting in sub-section (3) ", being the relevant company or any other person," before "is entitled"; (c) by inserting in sub-paragraph (4) (a) (ii) "(including the relevant company)" after "corporation"; (d) by inserting in paragraph (4) (b) "(including the relevant company)" after "a person"; (e) by omitting sub-paragraphs (4) (b) (i), (ii) and (iii) and substituting the following paragraphs: "(i) by reason of which the first-mentioned person, or the person concerned, may exercise, may directly or indirectly control the exercise of, or may substantially influence the exercise of, any voting power attached to shares in the relevant company; (ii) with a view to controlling or influencing the composition of the board of directors, or the conduct of affairs, of the relevant company; (iii) under which the first-mentioned person may acquire from the person concerned, or the person concerned may acquire from the first-mentioned person, shares in the relevant company; or (iv) under which the first-mentioned person, or the person concerned, may be required to dispose of shares in the relevant company in accordance with the directions of the person concerned, or of the first-mentioned person, as the case may be;"; (f) by inserting in paragraphs (4) (c), (d), (e) and (f) "(including the relevant company)" after "a person"; (g) by omitting from paragraphs (4) (c), (d), (e) and (f) "company referred to in sub-section (3)" and substituting "relevant company"; (h) by inserting in paragraph (4) (g) "(including the relevant company)" after "another person"; and (j) by omitting paragraph (5) (b) and substituting the following paragraph: "(b) where the matter to which the reference relates is a take-over offer or take-over announcement relating to shares in a company (including, in a case where the other person is a company, the other person), or the extent of a power to exercise, or to control the exercise of, the voting power attached to voting shares in a corporation (including, in a case where the other person is a corporation, the other person)—a person (including the company or corporation, as the case may be) with whom the other person has, or proposes to enter into, an agreement, arrangement, understanding or undertaking, whether formal or informal and whether express or implied— (i) by reason of which the first-mentioned person, or the other person, may exercise, may directly or indirectly control the exercise of, or may substantially influence the exercise of, any voting power attached to a share in the company or corporation, as the case may be; (ii) with a view to controlling or influencing the composition of the board of directors, or the conduct of affairs, of the company or corporation, as the case may be; (iii) under which the first-mentioned person may acquire from the other person, or the other person may acquire from the first-mentioned person, shares in the company or corporation, as the case may be; or (iv) under which the first-mentioned person, or the other person, may be required to dispose of shares in the company or corporation, as the case may be, in accordance with the directions of the other person, or of the first-mentioned person, as the case may be;". Other interpretative and evidentiary provisions 6. Section 8 of the Principal Act is amended— (a) by omitting from sub-section (3) "A" and substituting "Unless the contrary intention appears, a"; and (b) by adding at the end the following sub-section: "(11) In determining, for the purposes of a provision of this Act, whether or not a person's contravention of such a provision was due— (a) to the person's inadvertence or mistake or to the person not being aware of a relevant fact or occurrence; or (b) to the person's inadvertence or mistake or to circumstances beyond the person's control, the person's ignorance of, or a mistake on the person's part concerning, a matter of law shall be disregarded.". 7. After section 8 of the Principal Act the following section is inserted: Approved manner of dispatch "8a. (1) For the purposes of this Act, a person (in this sub-section referred to as the 'relevant person') shall be taken to dispatch a document to another person (in this sub-section referred to as the 'other person') in an approved manner if, and only if, the relevant person dispatches the document to the other person— (a) in a case where, at the time when the relevant person dispatches the document to the other person, there is in force in relation to the document, or in relation to a class of documents that includes the document, a direction under sub-section (2) served on the person—in the manner specified in the direction; (b) in a case where, at the time when the relevant person dispatches the document to the other person, there is in force in relation to the document, or in relation to a class of documents that includes the document, an approval under sub-section (3) served on the person—in the manner specified in the approval or in the prescribed manner; or (c) in any other case—in the prescribed manner. "(2) The Commission may, by instrument in writing served on a person, direct the person to dispatch in a specified manner— (a) a specified document that the person proposes to dispatch under this Act; or (b) documents included in a specified class of documents that the person proposes to dispatch under this Act. "(3) The Commission may, on application by a person, approve, by instrument in writing served on the person, the dispatch by the person in a specified manner of— (a) a specified document that the person proposes to dispatch under this Act; or (b) documents included in a specified class of documents that the person proposes to dispatch under this Act. "(4) Notwithstanding sub-section (1), a person who, before the commencement of section 7 of the Companies and Securities Legislation (Miscellaneous Amendments) Act 1985, dispatched a document in a manner approved by the Commission shall be deemed, for the purposes of this Act as in force after that commencement, to have dispatched the document in an approved manner.". Relevant interests in shares 8. (1) Section 9 of the Principal Act is amended— (a) by omitting sub-sections (4) and (5) and substituting the following sub-sections: "(4) Without limiting the generality of sub-sections (1), (2) and (3), where a body corporate has, or is by virtue of this section to be deemed to have, power— (a) to exercise, or to control the exercise of, the right to vote attached to a voting share; or (b) to dispose of, or to exercise control over the disposal of, a share, and— (c) the body corporate is, or its directors are, accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of a person in relation to the exercise of the power; or (d) a person has a controlling interest in the body corporate, that person shall, for the purpose of this section, be deemed to have the same power in relation to that share as the body corporate has or is to be deemed to have. "(5) Where a body corporate has, or is by virtue of this section (other than this sub-section) to be deemed to have, power— (a) to exercise, or to control the exercise of, the right to vote attached to a voting share; or (b) to dispose of, or to exercise control over the disposal of, a share, a person (in this sub-section referred to as the 'relevant person') shall, for the purposes of this section, be deemed to have the same power in relation to that share as the body corporate has, or is to be deemed to have, if— (c) the relevant person has; (d) a person associated with the relevant person has; (e) persons associated with the relevant person together have; or (f) the relevant person and a person or persons associated with the relevant person together have, the power to exercise, or to control the exercise of, the voting power attached to not less than the prescribed percentage of the voting shares in the body corporate."; (b) by omitting from sub-section (7) "deemed by sub-section (6)" and substituting "to be deemed, by virtue of sub-section (6),"; and (c) by omitting from sub-paragraph (8) (c) (i) "is deemed, by sub-section (6)," and substituting "is to be deemed, by virtue of sub-section (6),". (2) Section 9 of the Principal Act is amended by inserting after sub-section (9) the following sub-section: "(9a) A corporation may, by virtue of this section, be taken or deemed, for the purposes of this Act, to have a relevant interest in a share in the corporation itself.". Acquisition of shares permitted in certain circumstances 9. Section 13 of the Principal Act is amended by omitting sub-paragraph (4) (b) (i). Acquisition of not more than 3% of voting shares permitted in each 6 months 10. Section 15 of the Principal Act is amended by inserting in sub-section (1) ", other than voting shares acquired by the person concerned pursuant to an allotment in relation to which sub-section 14 (1) applies, being an allotment made to the person concerned as a result of his acceptance of an offer made to him in accordance with paragraph 14 (2) (b)" after "entitled" (second occurring). Take-over offers 11. Section 16 of the Principal Act is amended— (a) by omitting from paragraph (2) (c) "an offer is dispatched in a manner approved by the Commission" and substituting "the offeror dispatches an offer in an approved manner"; (b) by omitting sub-paragraph (2) (f) (iv) and substituting the following sub-paragraph: "(iv) specifies, in relation to each class of shares in the target company— (a) the total number of shares included in the class; and (b) the number of shares included in the class to which the offeror was entitled immediately before the offer was dispatched (which may be expressed as a number of shares or as a percentage of the total number of shares included in the class);"; and (c) by omitting sub-paragraph (2) (f) (vii) and substituting the following sub-paragraph: "(vii) contains a provision setting out when the obligations of the offeror are to be satisfied, being a provision under which the consideration for the offer is, if the offer is accepted, to be paid or provided— (a) in the case of an offer that is not subject to a prescribed condition—on or before the thirtieth day after the offer is accepted; or (b) in the case of an offer that is subject to a prescribed condition—on or before the thirtieth day after the offer is accepted, or the offer, or the contract resulting from the acceptance of the offer, becomes unconditional, whichever happens later, or, if that day is later than the twenty-first day after the end of the period during which the offer would, if it had not been accepted, have remained open, on or before the last-mentioned day; and". Take-over announcements 12. Section 17 of the Principal Act is amended by omitting from paragraph (10) (b) "a manner approved by the Commission" and substituting "an approved manner". Registration of Part A statements and offers 13. Section 18 of the Principal Act is amended by inserting after sub-section (2) the following sub-sections: "(2a) Where a copy of a Part A statement and a copy of a proposed offer are lodged with the Commission for registration under sub-section (1), the Commission may refuse to register the copy of the proposed offer if the proposed offer is subject to a prescribed condition the fulfilment of which depends on— (a) an opinion, belief or other state of mind of the offeror or of a person associated with the offeror; or (b) whether or not a particular event happens, being an event that is within the sole control of the offeror or of a person associated with the offeror. "(2b) Where a copy of a Part A statement relating to an offer to acquire shares (whether the offer was made before, or is made after, the relevant commencement) was lodged with the Commission before the relevant commencement for registration under sub-section (1) of this section, then— (a) section 13, paragraph 16 (2) (f), sub-section (2a) of this section, and sections 21, 27 and 28, as in force after the relevant commencement, do not apply; and (b) notwithstanding the amendments made, and the repeals effected, by sections 9, 11, 13, 14, 15, 16 and 17 of the relevant Act, the provisions of section 13, paragraph 16 (2) (f), this section and sections 21, 27, 28 and 29 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. "(2c) In sub-section (2b) and this sub-section— 'relevant Act' means the Companies and Securities Legislation (Miscellaneous Amendments) Act 1985; 'relevant commencement' means the commencement of sections 9, 11, 13, 14, 15, 16 and 17 of the relevant Act.". 14. Section 21 of the Principal Act is repealed and the following section is substituted: Withdrawal of offers "21. A take-over offer is not capable of being withdrawn without the consent in writing of the Commission, which may be given subject to such conditions (if any) as are specified in the consent.". Variation of take-over offers 15. Section 27 of the Principal Act is amended— (a) by inserting after sub-section (8) the following sub-section: "(8a) Sub-section (8) has effect in relation to a take-over scheme subject to any condition specified in a consent under section 21 given in relation to an offer made under the take-over scheme."; (b) by omitting sub-section (10) and substituting the following sub-section: "(10) Variations of offers under a take-over scheme shall be made by— (a) serving on the target company a notice in writing— (i) signed in the same manner as a Part A statement is required by paragraph 16 (2) (d) to be signed; (ii) setting out the terms of the proposed variation and particulars of such modifications of the relevant Part A statement as are necessary having regard to the variation; and (iii) in a case where the effect of the proposed variation will be to postpone for a period exceeding one month the time when the offeror's obligations under the take-over scheme are to be satisfied—stating the effect of the provisions of sub-section (12) of this section; and (b) dispatching in an approved manner to each person to whom an offer was made under the take-over scheme (including a person who has accepted an offer so made) a copy of that notice."; (c) by omitting paragraph (11) (a) and substituting the following paragraph: "(a) serve on the target company a notice in writing signed in the same manner as a Part A statement is required by paragraph 16 (2) (d) to be signed and setting out any information that the offeror would have been required to include in the relevant Part A statement if the statement had been lodged with the Commission for registration 5 months after the date that the offer bears, being information that differs from the information included in that relevant Part A statement;"; (d) by omitting from paragraph (11) (b) "a manner approved by the Commission" and substituting "an approved manner"; and (e) by omitting from sub-section (12) "relating to the offer dispatched pursuant to sub-section (11)," and substituting "under sub-section (10) in relation to a variation of offers under the relevant take-over scheme, being a variation the effect of which is to postpone for a period exceeding one month the time when the offeror's obligations under the take-over scheme are to be satisfied,". Declaration where take-over offers are conditional 16. Section 28 of the Principal Act is amended by omitting sub-section (9) and substituting the following sub-section: "(9) Where— (a) offers made under a take-over scheme have at any time been subject to a prescribed condition; and (b) as at the time immediately after the end of the period during which the offers remained open— (i) the offeror has not declared the offers to be free from the condition; (ii) the offers have not become free from the condition by virtue of the operation of sub-section 30 (1); and (iii) the condition has not been fulfilled, all contracts resulting from the acceptance of offers made under the take-over scheme, and all such offers that have been accepted and from whose acceptance binding contracts have not yet resulted, are void.". Repeal of section 29 17. Section 29 of the Principal Act is repealed. 18. After section 39 of the Principal Act the following section is inserted: Notification of offeror's entitlement "39a. (1) In this section— 'company' does not include a listed company; 'prescribed percentage' means— (a) 25%; (b) 50%; (c) 75%; or (d) 90%; 'relevant period', in relation to a company, means— (a) a period commencing when a Part A statement is served on the company and ending at the expiration of 28 days after the day on which the statement is served or, if take-over offers are dispatched pursuant to the statement within those 28 days, at the expiration of the period during which the take-over offers remain open; and (b) if take-over offers are dispatched, in accordance with an order under section 46, pursuant to a Part A statement served on the company—the period during which the take-over offers remain open; 'relevant person', in relation to a relevant period in relation to a company, means the person who is, or each of the persons who constitute, the offeror in relation to the Part A statement concerned. "(2) Where— (a) at a particular time during a period that is a relevant period in relation to a company, the percentage of the voting shares in the company to which a relevant person is entitled is less than a prescribed percentage; and (b) immediately after that time, the percentage of the voting shares in the company to which the relevant person is entitled is equal to or greater than that prescribed percentage, the relevant person shall, as soon as practicable, and in any event within 2 business days, after that time, serve on the company a notice in writing setting out the percentage of the voting shares in the company to which the relevant person is entitled at the time when the notice is so served. "(3) Where a company receives a notice under sub-section (2), it shall make the notice available at its registered office for inspection without charge by any member of the company at any time during the remainder of the relevant period in relation to the company, being a time at which the registered office is open and accessible to the public". Provisions relating to dissenting shareholders 19. Section 42 of the Principal Act is amended by inserting in paragraph (1) (a) "(other than shares to which the offeror was entitled at the time when the first of the offers was made)" after "were made". Orders where prohibited acquisitions take place 20. Section 45 of the Principal Act is amended by inserting after paragraph (1) (f) the following paragraphs: "(fa) an order cancelling a contract, arrangement or offer for or in connection with the acquisition of the shares, or of such of the shares as are specified in the order; (fb) an order declaring a contract, arrangement or offer for or in connection with the acquisition of the shares, or of such of the shares as are specified in the order, to be voidable;". Orders where offers not dispatched pursuant to Part A statement 21. Section 46 of the Principal Act is amended— (a) by omitting "is served on a target company" from paragraph (1) (a) and substituting ", being offers relating to shares included in a class of shares in a target company, is served on the company"; (b) by omitting "in the company" from paragraph (1) (b) and substituting "included in that class"; and (c) by omitting paragraph (1) (f) and substituting the following paragraph: "(f) an order directing the offeror, within such time as is specified in the order, to dispatch in an approved manner to each holder (other than the offeror) of shares included in that class an offer to which the Part A statement relates.". Orders to protect interests of certain persons 22. Section 47 of the Principal Act is amended— (a) by omitting from sub-section (1) "rights" (first occurring) and substituting "interests"; and (b) by inserting after sub-section (1) the following sub-section: "(1a) Where an offeror contravenes a condition specified in a consent under section 21 given in relation to an offer made under a take-over scheme, the Court may, on the application of the Commission, the target company in relation to the take-over scheme, or any person affected by the contravention, make such orders as the Court thinks necessary or expedient to protect the interests of a person affected by the contravention, including, but without limiting the generality of the foregoing, one or more of the following orders: (a) an order directing the offeror to supply to the holders of shares in the target company such information as is specified in the order; (b) in a case where the contravention is constituted by a failure to do a particular act or thing—an order directing the offeror to do that act or thing within such period as is specified in the order, notwithstanding that the period specified in the condition for the doing of the act or thing has expired; (c) an order of a kind referred to in any of paragraphs (1) (c) to (j), inclusive.". Miscellaneous provisions relating to orders 23. Section 49 of the Principal Act is amended by omitting sub-section (4) and substituting the following sub-section: "(4) Without limiting the nature of the orders that may be made by the Court under section 45, 46, 47 or 60 directing the disposal of, or of an interest in, a share in a company, such an order may include one or more of the following provisions: (a) a provision that the disposal shall be made within such time and subject to such conditions (if any) as the Court thinks fit, including, if the Court thinks fit, a condition that the disposal shall not be made to a particular person or persons or to persons included in a particular class or classes of persons; (b) a provision that a person specified in the order is liable to pay to the company an amount equal to the amount of any profit made by the person as a result of, or in connection with, the disposal of the shares; (c) a provision that a person specified in the order shall, for all purposes connected with the disposal of the shares, be deemed to hold the shares as a trustee for the beneficial owner of the shares.". 24. Section 52 of the Principal Act is repealed and the following section is substituted: Announcements of proposed take-over bids "52. (1) A person shall not, whether alone or together with another person or other persons, make a public announcement to the effect that he proposes, or that he and another person, or he and other persons, together propose, to make take-over offers or to cause take-over offers to be made, or to cause a take-over announcement to be made, if— (a) he knows that the announcement is false or is recklessly indifferent to whether it is true or false; (b) in the case of an announcement that he proposes to make take-over offers, or to cause take-over offers to be made, or to cause a take-over announcement to be made—he has no reasonable grounds for believing that he will be able to perform his obligations arising under the take-over scheme or take-over announcement, or arising under this Act in connection with the take-over scheme or take-over announcement, if a substantial proportion of the take-over offers, or of the offers constituted by the take-over announcement, as the case may be, are accepted; or (c) in the case of an announcement that he and another person, or he and other persons, together propose to make take-over offers, or to cause take-over offers to be made, or to cause a take-over announcement to be made—he has no reasonable grounds for believing that he and the other person, or he and the other persons, as the case may be, will together be able to perform their obligations arising under the take-over scheme or take-over announcement, or arising under this Act in connection with the take-over scheme or take-over announcement, if a substantial proportion of the take-over offers, or of the offers constituted by the take-over announcement, as the case may be, are accepted. "(2) A person who contravenes sub-section (1) is guilty of an offence the penalty for which is a fine not exceeding $20,000 or imprisonment for a period not exceeding 5 years, or both. "(3) Where a person, whether alone or together with another person or other persons, makes a public announcement to the effect that he proposes, or that he and another person or other persons together propose, to make a take-over bid in relation to shares in a company, the person shall, within 2 months after making the announcement or such further period as the Commission permits in writing, either alone or together with another person or other persons, make a take-over bid in relation to shares in that company in accordance with the public announcement. "(4) A person who contravenes sub-section (3) is guilty of an offence the penalty for which is a fine not exceeding $10,000 or imprisonment for a period not exceeding 2 years, or both. "(5) A person who— (a) makes a public announcement in contravention of sub-section (1) and fails, in contravention of sub-section (3), to make a take-over bid in accordance with the announcement; and (b) is convicted of an offence under sub-section (2) or (4) in respect of one of those contraventions, is not liable to be convicted of an offence under sub-section (4) or (2), as the case may be, in respect of the other of those contraventions. "(6) In any proceedings, if there is produced a certificate in writing by the Commission stating that the Commission has not, pursuant to sub-section (3), permitted a further period for a person or persons specified in the certificate to make a take-over bid in relation to shares in a company so specified, it shall be presumed, unless the contrary is established, that no such further period was permitted. "(7) A person who makes a public announcement in contravention of sub-section (1) or fails, in contravention of sub-section (3), to make a take-over bid in accordance with a public announcement (whether or not he has been convicted of an offence in respect of the contravention) is liable to pay compensation to any other person who suffered loss as a result of entering into a transaction with respect to shares in reliance on the public announcement, and the amount of the compensation that the first-mentioned person is liable to pay is an amount equal to the difference between the price of the shares at which the transaction was entered into and the price of the shares at which the transaction would have been likely to be entered into if the first-mentioned person had not made the public announcement. "(8) A person— (a) is not guilty of an offence under sub-section (4); and (b) is not liable to pay compensation under sub-section (7), in respect of a failure to make a take-over bid in accordance with a public announcement made by the person if it is established that— (c) by virtue of circumstances that existed at the time of the making of the public announcement but of which the person had no knowledge and could not reasonably have been expected to have knowledge; or (d) by virtue of a change in circumstances after the making of the announcement, not being a change in circumstances caused, whether directly or indirectly, by the person, the person could not reasonably have been expected to make the take-over bid. "(9) Notwithstanding anything in section 5 of this Act, neither section 571, nor sub-section 574 (2), of the Companies Act 1981 applies in relation to a failure, in contravention of sub-section (3) of this section, to make a take-over bid in accordance with a public announcement. "(10) In this section— (a) a reference to making a take-over bid is a reference to— (i) making take-over offers; (ii) causing take-over offers to be made; or (iii) causing a take-over announcement to be made; and (b) a reference to making a take-over bid in accordance with a public announcement to the effect that a take-over bid is proposed to be made is a reference to making a take-over bid the terms and conditions of which are the same as, or not substantially less favourable to the shareholders in the target company than, the terms and conditions of the take-over bid referred to in the public announcement.". Offences 25. (1) Section 53 of the Principal Act is amended by omitting from sub-section (4) "and 49" and substituting ", 49 and 52". (2) Section 53 of the Principal Act is amended by omitting sub-section (5) and substituting the following sub-sections: "(5) Notwithstanding anything in section 5 of this Act— (a) section 570, and sub-section 571 (7), of the Companies Act 1981 do not apply in relation to this Act; and (b) sub-section 571 (5) of that Act has effect for the purposes of this Act as if 'the penalty applicable to the offence' were omitted from that sub-section and 'the penalty for the offence' were substituted. "(6) Notwithstanding anything in section 5 of this Act or in paragraph (5) (b) of this section, sub-sections 571 (1) to (6), inclusive, of the Companies Act 1981 do not apply in relation to an obligation to do an act or thing, being an obligation that arose under this Act before the commencement of section 26 of the Companies and Securities Legislation (Miscellaneous Amendments) Act 1985, and, notwithstanding the repeals effected by the last-mentioned section, section 54 of this Act as in force at any time before that commencement continues to have effect in relation to such an obligation.". Repeal of sections 54, 63 and 64 26. Sections 54, 63 and 64 of the Principal Act are repealed. Schedule 27. The Schedule to the Principal Act is amended— (a) by omitting paragraph 2 (e) of Part B and substituting the following paragraph: "(e) where— (i) a prescribed benefit (not being an excluded benefit) will or may be given to a person in connection with the retirement of a person from a prescribed office in relation to the target company; or (ii) a prescribed benefit will or may be given to a prescribed person in relation to the target company in connection with the transfer of the whole or any part of the undertaking or property of the target company, particulars with respect to the prescribed benefit, including— (iii) in the case of a prescribed benefit that is a payment—the amount of the payment; or (iv) in any other case—the money value of the prescribed benefit;"; (b) by adding at the end of Part B the following clause: "3. For the purposes of paragraph 2 (e) and of this clause— (a) sub-sections 233 (6), (6a) and (7) of the Companies Act 1981 apply as if that paragraph and this clause were provisions of section 233 of that Act and a reference in those sub-sections to a company were a reference to the target company; and (b) a reference to an excluded benefit is a reference to a prescribed benefit— (i) in relation to the giving of which sub-section 233 (2a) of that Act would apply; or (ii) that is a payment in relation to which paragraph (f) of the definition of 'exempt benefit' in sub-section 233 (7) of that Act would apply, if a reference in sub-section 233 (2a) of that Act, or in that definition, as the case may be, to a company were a reference to the target company."; (c) by omitting paragraph 2 (e) of Part D and substituting the following paragraph: "(e) where— (i) a prescribed benefit (not being an excluded benefit) will or may be given to a person in connection with the retirement of a person from a prescribed office in relation to the target company; or (ii) a prescribed benefit will or may be given to a prescribed person in relation to the target company in connection with the transfer of the whole or any part of the undertaking or property of the target company, particulars with respect to the prescribed benefit, including— (iii) in the case of a prescribed benefit that is a payment—the amount of the payment; or (iv) in any other case—the money value of the prescribed benefit;"; and (d) by adding at the end of Part D the following clause: "3. For the purposes of paragraph 2 (e) and of this clause— (a) sub-sections 233 (6), (6a) and (7) of the Companies Act 1981 apply as if that paragraph and this clause were provisions of section 233 of that Act and a reference in those sub-sections to a company were a reference to the target company; and (b) a reference to an excluded benefit is a reference to a prescribed benefit— (i) in relation to the giving of which sub-section 233 (2a) of that Act would apply; or (ii) that is a payment in relation to which paragraph (f) of the definition of 'exempt benefit' in sub-section 233 (7) of that Act would apply, if a reference in sub-section 233 (2a) of that Act, or in that definition, as the case may be, to a company were a reference to the target company.". Further amendments relating to securities exchanges 28. The Principal Act is amended as set out in Schedule 1. PART III—AMENDMENTS OF COMPANIES ACT 1981 Principal Act 29. The Companies Act 19812 is in this Part referred to as the Principal Act. Interpretation 30. (1) Section 5 of the Principal Act is amended— (a) by omitting from paragraph (a) of the definition of "director" in sub-section (1) "and" (last occurring); (b) by adding at the end of the definition of "director" in sub-section (1) the following word and paragraph: "and (c) in the case of a foreign company— (i) a member of the committee of management, council or other governing body of the foreign company; (ii) any person occupying or acting in the position of member of the committee of management, council or other governing body of the foreign company, by whatever name called and whether or not validly appointed to occupy or duly authorised to act in the position; and (iii) any person in accordance with whose instructions the members of the committee of management, council or other governing body of the foreign company are accustomed to act;"; (c) by omitting the definition of "home exchange" in sub-section (1); (d) by inserting after the definition of "official manager" in sub-section (1) the following definitions: " 'on', in relation to a stock market, includes at or by means of; 'participation interest' means any right to participate, or any interest— (a) in any profits, assets or realisation of any financial or business undertaking or scheme whether in the Territory or elsewhere; (b) in any common enterprise, whether in the Territory or elsewhere, in relation to which the holder of the right or interest is led to expect profits, rent or interest from the efforts of the promoter of the enterprise or a third party; or (c) in any investment contract, whether or not the right or interest is enforceable, whether the right or interest is actual, prospective or contingent, whether or not the right or interest is evidenced by a formal document and whether or not the right or interest relates to a physical asset, but does not include— (d) such a right that is a right to participate in a time-sharing scheme; (e) any share in, or debenture of, a corporation; (f) any interest in, or arising out of, a policy of life insurance; or (g) an interest in a partnership agreement, unless the agreement or proposed agreement— (i) relates to an undertaking, scheme, enterprise or investment contract promoted by or on behalf of a person whose ordinary business is or includes the promotion of similar undertakings, schemes, enterprises or investment contracts, whether or not that person is, or is to become, a party to the agreement or proposed agreement; or (ii) is or would be an agreement, or is or would be within a class of agreements, prescribed by the regulations for the purposes of this paragraph;"; (e) by omitting the definition of "prescribed interest" in sub-section (1) and substituting the following definition: "'prescribed interest' means— (a) a participation interest; or (b) a right, whether enforceable or not, whether actual, prospective or contingent and whether or not evidenced by a formal document, to participate in a time-sharing scheme, but does not include a right or interest, or a right or interest included in a class or kind of rights or interests, declared by the regulations to be an exempt right or interest, or a class or kind of exempt rights or interests, for the purposes of Division 6 of Part IV;"; (f) by inserting after the definition of "public company" in sub-section (1) the following definition: "'quotation', in relation to securities, in relation to a stock market of a securities exchange, includes the displaying or providing, on a stock market of the securities exchange, of information concerning— (a) in a case where offers to sell, purchase or exchange the securities at particular prices, or for particular consideration, are made or accepted on that stock market—those prices or that consideration; (b) in a case where offers or invitations are made on that stock market, being offers or invitations that are intended, or may reasonably be expected, to result, whether directly or indirectly, in the making or acceptance of offers to sell, purchase or exchange the securities at particular prices, or for particular consideration—those prices or that consideration; or (c) in any case—the price at which, or the consideration for which, particular persons, or particular classes of persons, propose, or may reasonably be expected, to sell, purchase or exchange the securities;"; (g) by inserting after the definition of "securities" in sub-section (1) the following definition: "'securities exchange' means, where the expression appears in a provision for the purposes of which a regulation is in force defining that expression, a securities exchange as defined by that regulation;"; (h) by omitting from sub-section (1) the definition of "stock market" and substituting the following definition: "'stock market' means a market, exchange or other place (whether or not in the Territory) at which, or a facility (whether or not in the Territory) by means of which— (a) offers to sell, purchase or exchange securities of corporations are regularly made or accepted; (b) offers or invitations are regularly made, being offers or invitations that are intended, or may reasonably be expected, to result, whether directly or indirectly, in the making or acceptance of offers to sell, purchase or exchange securities of corporations; or (c) information is regularly provided concerning the prices at which, or the consideration for which, particular persons, or particular classes of persons, propose, or may reasonably be expected, to sell, purchase or exchange securities of corporations;"; (j) by inserting ", whether in the Territory or elsewhere" after "enterprise" (first occurring) in the definition of "time-sharing scheme" in sub-section (1); (k) by inserting after sub-section (1) the following sub-section: "(1a) Unless the contrary intention appears, a reference in this Act to a person carrying on business, or carrying on a business, includes a reference to the person carrying on business, or carrying on a business, as the case may be— (a) in any case—otherwise than for profit; or (b) in the case of a body corporate—otherwise than for the profit of the members or corporators of the body corporate."; (m) by omitting from sub-section (8) "(f) (ii) of the definition of 'prescribed interest' " and substituting "(g) (ii) of the definition of 'participation interest' "; and (n) by omitting from paragraph (8) (a) "Territory" and substituting "Commonwealth, of a State or of a Territory". (2) Section 5 of the Principal Act is amended by omitting sub-section (9) and substituting the following sub-section: "(8d) For the purposes of this Act, a person shall be taken to be or become subject to a section 562a notice if, and only if, the person is or becomes, as the case may be, by virtue of a notice served on the person under sub-section 562a (3) or under a provision of a law of a participating State or participating Territory that corresponds with that sub-section, prohibited, without the leave of the Court, from being a director or promoter of, or from being in any way (whether directly or indirectly) concerned in or taking part in the management of, a corporation, and a reference in this Act to a section 562a notice is a reference to a notice so served.". Affairs of a corporation 31. Section 6 of the Principal Act is amended by omitting "or 15" and substituting ", 15 or 16a". Relevant interests in shares 32. (1) Section 8 of the Principal Act is amended— (a) by omitting sub-sections (4) and (5) and substituting the following sub-sections: "(4) Without limiting the generality of sub-sections (1), (2) and (3), where a body corporate has, or is by virtue of this section to be deemed to have, power— (a) to exercise, or to control the exercise of, the right to vote attached to a voting share; or (b) to dispose of, or to exercise control over the disposal of, a share, and— (c) the body corporate is, or its directors are, accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of a person in relation to the exercise of the power; or (d) a person has a controlling interest in the body corporate, that person shall, for the purposes of this section, be deemed to have the same power in relation to that share as the body corporate has or is to be deemed to have. "(5) Where a body corporate has, or is by virtue of this section (other than this sub-section) to be deemed to have, power— (a) to exercise, or to control the exercise of, the right to vote attached to a voting share; or (b) to dispose of, or to exercise control over the disposal of, a share, a person (in this sub-section referred to as the 'relevant person') shall, for the purposes of this section, be deemed to have the same power in relation to that share as the body corporate has, or is to be deemed to have, if— (c) the relevant person has; (d) a person associated with the relevant person has; (e) persons associated with the relevant person together have; or (f) the relevant person and a person or persons associated with the relevant person together have, the power to exercise, or to control the exercise of, the voting power attached to not less than the prescribed percentage of the voting shares in the body corporate."; (b) by omitting from sub-section (7) "deemed by sub-section (6)" and substituting "to be deemed, by virtue of sub-section (6),"; and (c) by omitting from sub-sub-paragraph (8) (a) (iii) (a) "is deemed, by sub-section (6)," and substituting "is to be deemed, by virtue of sub-section (6),". (2) Section 8 of the Principal Act is amended by inserting after sub-section (9) the following sub-section: "(9a) A body corporate may, by virtue of this section, be taken or deemed, for the purposes of the provisions referred to in paragraph (1) (a) or (b), as the case requires, to have a relevant interest in a share in the body corporate itself.". Associated persons 33. Section 9 of the Principal Act is amended— (a) by omitting from paragraph (1) (b) "corporation—a person" and substituting "corporation (including, in a case where the other person is a corporation, the other person)—a person (including the corporation)"; and (b) by omitting sub-paragraphs (1) (b) (i), (ii) and (iii) and substituting the following sub-paragraphs: "(i) by reason of which the first-mentioned person, or the other person, may exercise, may directly or indirectly control the exercise of, or may substantially influence the exercise of, any voting power attached to a share in the corporation; (ii) with a view to controlling or influencing the composition of the board of directors, or the conduct of affairs, of the corporation; (iii) under which the first-mentioned person may acquire from the other person, or the other person may acquire from the first-mentioned person, shares in the corporation; or (iv) under which the first-mentioned person, or the other person, may be required to dispose of shares in the corporation in accordance with the directions of the other person, or of the first-mentioned person, as the case may be;". Power of Commission to require production of books 34. Section 12 of the Principal Act is amended— (a) by omitting paragraph (1) (a) and substituting the following paragraph: " (a) for the purpose of— (i) the performance of a function, or the exercise of a power, by the Commission under a relevant Act (other than the exercise of a power of the Commission under sub-section 6 (