Corporations Act 2001

CHAPTER 5 - EXTERNAL ADMINISTRATION  

PART 5.1 - ARRANGEMENTS AND RECONSTRUCTIONS  

Note: This Part applies to CCIVs with modifications: see Division 2 of Part 8B.6 .

SECTION 414   ACQUISITION OF SHARES OF SHAREHOLDERS DISSENTING FROM SCHEME OR CONTRACT APPROVED BY MAJORITY  

414(1)    
In this section:

dissenting shareholder
, in relation to a scheme or contract, means a shareholder who has not assented to the scheme or contract or who has failed to transfer his, her or its shares in accordance with the scheme or contract.

excluded shares
, in relation to a scheme or contract involving a transfer to a person of shares in a class of shares in a company, means shares in that class that, when the offer relating to the scheme or contract is made, are held by:

(a) in any case - the person or a nominee of the person; or

(b) if the person is a body corporate - a subsidiary of the body.

414(2)    

Where a scheme or contract (not being a scheme or contract arising out of the making of offers under a takeover bid) involving a transfer of shares in a class of shares in a company (in this section called the transferor company ) to a person (in this section called the transferee ) has, within 4 months after the making of the offer relating to the scheme or contract by the transferee, been approved by members holding shares in that class carrying at least 90% of the votes attached to shares in that class (other than excluded shares), the transferee may, within 2 months after the offer has been so approved, give notice, in accordance with the requirements mentioned in subsection (10B) (if applicable), to a dissenting shareholder that the transferee wishes to acquire the shares held by that shareholder.

414(3)    
Where such a notice is given, then, unless the Court orders otherwise on an application by a dissenting shareholder made within one month after the day on which the notice was given or within 14 days after a statement is supplied under subsection (7) to a dissenting shareholder, whichever is the later, the transferee is entitled and bound, subject to this section, to acquire those shares on the terms on which, under the scheme or contract, the shares of the approving shareholders are to be transferred to the transferee.

414(4)    
Where alternative terms were offered to the approving shareholders, the dissenting shareholder is entitled to elect not later than the end of one month after the date on which the notice is given under subsection (2) or 14 days after a statement is supplied under subsection (7) , whichever is the later, which of those terms he, she or it prefers and, if he, she or it fails to make the election within the time allowed by this subsection, the transferee may, unless the Court otherwise orders, determine which of those terms is to apply to the acquisition of the shares of the dissenting shareholder.

414(5)    
Despite subsections (3) and (4) , if the number of votes attached to the excluded shares is more than 10% of the votes attached to the excluded shares and the shares (other than excluded shares) to be transferred under the scheme or contract, those subsections do not apply unless:

(a)    the transferee offers the same terms to all holders of the shares (other than excluded shares) to be transferred under the scheme or contract; and

(b)    the holders who approve the scheme or contract hold shares to which are attached at least 90% of the votes attached to the shares (other than excluded shares) to be transferred under the scheme or contract and are also at least 75% in number of the holders of those shares.

414(6)    
For the purposes of paragraph (5)(b) , 2 or more persons registered as holding shares jointly are to be counted as one person.

414(7)    
When a notice is given under subsection (2) , the dissenting shareholder may, by written notice given to the transferee within one month after the day on which the notice was given under subsection (2) , ask for a statement in writing of the names and addresses of all other dissenting shareholders as shown in the register of members.

414(8)    
Where a notice is given under subsection (7) , the transferee must comply with it.

414(9)    
Where, under a scheme or contract referred to in subsection (2) , the transferee becomes beneficially entitled to shares in the transferor company which, together with any other shares in the transferor company to which the transferee or, where the transferee is a body corporate, a body corporate related to the transferee is beneficially entitled, have attached to them at least 90% of the votes attached to the shares included in the class of shares concerned, then:

(a)    

the transferee must, within one month after the date on which he, she or it becomes beneficially entitled to those shares (unless in relation to the scheme or contract he, she or it has already complied with this requirement), give notice of the fact, in accordance with the requirements mentioned in subsection (10B) (if applicable), to the holders of the remaining shares included in that class who, when the notice was given, had not assented to the scheme or contract or been given notice by the transferee under subsection (2) ; and

(b)    such a holder may, within 3 months after the giving of the notice to him, her or it by notice to the transferee, require the transferee to acquire his, her or its share and, where alternative terms were offered to the approving shareholders, elect which of those terms he, she or it will accept.

414(10)    
Where a shareholder gives notice under paragraph (9)(b) with respect to his, her or its shares, the transferee is entitled and bound to acquire those shares:

(a)    on the terms on which under the scheme or contract the shares of the approving shareholders were transferred to him, her or it and, where alternative terms were offered to those shareholders, on the terms for which the shareholder has elected, or where he, she or it has not so elected, for whichever of the terms the transferee determines; or

(b)    on such other terms as are agreed or as the Court, on the application of the transferee or of the shareholder, thinks fit to order.

414(10A)    

Without limiting the manner in which a notice mentioned in subsection (2) or paragraph (9)(a) may be given to a shareholder, the notice may be given to the shareholder personally.

414(10B)    

If a notice mentioned in subsection (2) or paragraph (9)(a) is given to a shareholder:

(a)    by sending the notice in a physical form in accordance with paragraph 110D(1)(a) ; or

(b)    by sending information in a physical form in accordance with paragraph 110D(1)(b) ;

the notice or information must be sent by prepaid post to the shareholder ' s address shown in the books of the transferor company.

414(11)    
Subsections (12) and (13) apply where a notice has been given under subsection (1) unless the Court, on an application made by the dissenting shareholder, orders to the contrary.

414(12)    
The transferee must, within 14 days after:

(a)    the end of one month after the day on which the notice was given; or

(b)    the end of 14 days after a statement under subsection (7) is supplied; or

(c)    if an application has been made to the Court by a dissenting shareholder - the application is disposed of;

whichever last happens:

(d)    send a copy of the notice to the transferor company together with an instrument of transfer that relates to the shares that the transferee is entitled to acquire under this section and is executed, on the shareholder ' s behalf, by a person appointed by the transferee and, on the transferee ' s own behalf, by the transferee; and

(e)    pay, allot or transfer to the transferor company the consideration for the shares.

414(13)    
When the transferee has complied with subsection (12) , the transferor company must register the transferee as the holder of the shares.

414(14)    
All sums received by the transferor company under this section must be paid into a separate bank account and those sums, and any other consideration so received, must be held by that company in trust for the several persons entitled to the shares in respect of which they were respectively received.

414(15)    
Where a sum or other property received by a company under this section has been held in trust by the company for a person for at least 2 years (whether or not that period began before the commencement of this Act), the company must, before the end of 10 years after the day on which the sum was paid, or the consideration was allotted or transferred, to the company, pay the sum or transfer the consideration, and any accretions to it and any property that may become substituted for it or for part of it, to ASIC to be dealt with under Part 9.7 .