Corporations Act 2001
To compulsorily acquire securities under section 664A , the 90% holder must prepare a notice in the prescribed form that:
(a) sets out the cash sum for which the 90% holder proposes to acquire the securities; and
(b) specifies a period of at least 1 month during which the holders may return the objection forms; and
(c) informs the holders about the compulsory acquisition procedure under this Part, including:
(i) their right to obtain the names and addresses of the other holders of securities in that class from the company register; and
(ii) their right to object to the acquisition by returning the objection form that accompanies the notice within the period specified in the notice; and
(d) gives details of the consideration given for any securities in that class that the 90% holder or an associate has purchased within the last 12 months; and
(e) discloses any other information that is:
(i) known to the 90% holder or any related bodies corporate; and
(ii) material to deciding whether to object to the acquisition; and
(iii) not disclosed in an expert ' s report under section 667A .
[ CCH Note: S 664C(1) will be amended by No 69 of 2020, s 3, Sch 1 and [ 1041], by omitting " in the prescribed form " after " prepare a notice " and inserting para (f) (effective 22 June 2022 or a day or days to be fixed by Proclamation). Para (f) will read:
; and (f) meets any requirements of the data standards.]
The 90% holder must then:
(a) lodge the notice with ASIC; and
(b) give each other person (other than a related body corporate) who is a holder of securities in the class on the day on which the notice is lodged with ASIC:
(i) the notice; and
(ii) a copy of the expert ' s report, or of all experts ' reports, under section 667A ; and
(iii) an objection form; and
(c) give the company copies of those documents; and
(d) give copies of those documents to the relevant market operator if the company is listed.
Note: Everyone who holds the securities on the day on which the notice is lodged with ASIC is entitled to notice. Under subsection 664E(1) , anyone who acquires the securities during the objection period may object to the acquisition.
[ CCH Note: S 664C(2) will be amended by No 69 of 2020, s 3, Sch 1 and [ 1043], by substituting " the Registrar " for " ASIC " in para (a), (b) and in the note, (effective 22 June 2022 or a day or days to be fixed by Proclamation).]
The 90% holder must dispatch the notices under paragraph (2)(b) on the day the 90% holder lodges the notice with ASIC or on the next business day.
[ CCH Note: S 664C(3) will be amended by No 69 of 2020, s 3, Sch 1, by substituting " the Registrar " for " ASIC " , (effective 22 June 2022 or a day or days to be fixed by Proclamation).]
The 90% holder 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.664C(5)
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 subsection does not limit the manner in which the document may be sent to the holder.
Note: Section 109X makes general provision for service of documents.Notice not to be withdrawn 664C(6)
The 90% holder may not:
(a) withdraw a notice under this section; or
(b) if the 90% holder has given a notice under this section in relation to those securities and the objection period for that notice has not ended - give another notice under this section in relation to securities.
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