Corporations Act 2001
To compulsorily acquire securities under subsection 661A(1) or (3) , the bidder must:
(a) prepare a notice in the prescribed form that:
(i) informs the holders of the securities that the bidder is entitled to acquire their securities under that subsection; and
(ii) informs the holders about the compulsory acquisition procedure under this Part, including:
(A) their right under section 661D to obtain the names and addresses of everyone else the bidder has given the notice to; and
(B) their right under section 661E to apply to the Court for an order that the securities not be compulsorily acquired; and
(b) lodge the notice with ASIC; and
(c) give the notice to each other person who is:
(i) a holder of securities in the bid class; or
(ii) if the bidder elects under paragraph 661A(4)(c) to acquire securities that come to be in the bid class after the notice is given - a holder of the convertible securities referred to in that paragraph; and
(d) give a copy to each relevant market operator on the same day as it is lodged with ASIC if the target is listed.
If alternative forms of consideration were offered under the takeover bid, the notice must specify which of those forms of consideration will apply to the acquisition of the holder's securities if the holder does not elect one of the forms under paragraph 661C(2)(a) .
Note: Everyone who holds bid class securities on the day on which the notice is lodged with ASIC is entitled notice. Under section 661E , anyone who holds the securities after that day may apply to the Court to stop the acquisition.
[ CCH Note: S 661B(1) will be amended by No 69 of 2020, s 3, Sch 1 - [ 1023], by omitting " in the prescribed form " after " prepare a notice " in para (a), inserting para (a)(iii), substituting " the Registrar " for " ASIC " in para (b) and (d) and " the Registrar " for " ASIC " in the note, (effective 22 June 2022 or a day or days to be fixed by Proclamation). Para (a)(iii) will read:
(iii) meets any requirements of the data standards; and]
The bidder must dispatch the notices under paragraph (1)(c):
(a) during the offer period, or within 1 month after:
(i) the end of offer period if the acquisition is under subsection 661A(1) ; or
(ii) the court approval if the acquisition is under subsection 661A(3) ; and
(b) on the day the bidder lodges the notice with ASIC or on the next business day.
The notices cannot be withdrawn.
[ CCH Note: S 661B(2) will be amended by No 69 of 2020, s 3, Sch 1, by substituting " the Registrar " for " ASIC " in para (b) (effective 22 June 2022 or a day or days to be fixed by Proclamation).]
An offence based on subsection (1) or (2) is an offence of strict liability.
Note: For strict liability , see section 6.1 of the Criminal Code .
The bidder may give the notice to a holder:
(a) personally; or
(b) by sending it by post to the address for the holder in the register of members, debenture holders or option holders.
A notice sent by post is taken to be given 3 days after it is posted.661B(4)
The notice may be sent:
(a) if the notice is to be sent to the holder outside Australia - by pre-paid airmail post or by courier; or
(b) if the notice is to be sent to the holder in Australia - by pre-paid ordinary post or by courier.
This section does not limit the manner in which the notice may be sent to the holder.
Note: Section 109X makes general provision for service of documents.