constitution (1) A company's proportional takeover approval provisions, unless
sooner omitted from the constitution of the company, cease to apply at the end
of:
- (a)
- unless paragraph (b) or (c) applies3 years;
- (b)
- if the constitution provides that the provisions apply for a specified
period of less than 3 years and the provisions have not been renewedthe
specified period; or
- (c)
- if the provisions have been renewed on at least one occasion and the
resolution, or the most recent resolution, renewing the provisions states that
the provisions are renewed for a specified period of less than 3
yearsthe specified period.
(2) The period referred to in subsection (1) starts:
- (a)
- if the
provisions were contained in the company's constitution when it was
incorporated or formed and have not been renewedat that time; or
- (b)
- if the provisions were inserted in the company's constitution and have not
been renewedwhen the provisions were inserted; or
- (c)
- if the provisions have been renewed on at least one occasionwhen the
provisions were renewed, or last renewed.
(3) When the provisions cease to apply, the company's constitution is, by
force of this subsection, altered by omitting the provisions.
(4) A company may renew its proportional takeover approval provisions. The
provisions are to be renewed in the same manner as that in which the company
could alter its constitution to insert proportional takeover approval
provisions.
(5) With every notice that:
- (a)
- specifies the intention to propose:
- (i)
- a resolution to alter a company's constitution by inserting proportional
takeover approval provisions; or
- (ii)
- a resolution to renew a company's proportional takeover approval
provisions; and
- (b)
- is sent to a person who is entitled to vote on the proposed resolution;
the company must send a statement that:
- (c)
- explains the effect of the proposed provisions, or of the provisions
proposed to be renewed; and
- (d)
- explains the reasons for proposing the resolution and sets out the factual
matters and principles underlying those reasons; and
- (e)
- states whether, as at the day on which the statement is prepared, any of
the directors of the company is aware of a proposal by a person to acquire, or
to increase the extent of, a substantial interest in the company and, if so,
explains the extent (if any) to which the proposal has influenced the decision
to propose the resolution; and
- (f)
- for a proposed resolution to renew proportional takeover approval
provisionsreviews both the advantages, and disadvantages, of the
provisions proposed to be renewed for:
- (i)
- the directors; and
- (ii)
- the company's members;
during the period during which the provisions have been in effect; and
- (g)
- discusses both the potential advantages, and the potential disadvantages,
of the proposed provisions, or of the provisions proposed to be renewed, for:
- (i)
- the directors; and
- (ii)
- the company's members.
(6) If, on a particular day, a company purports to:
- (a)
- alter its
constitution by inserting proportional takeover approval provisions; or
- (b)
- renew its proportional takeover approval provisions;
then:
- (c)
- holders who together hold not less than 10% (by number) of the issued
securities in a class of securities in the company to which the provisions
apply may, within 21 days after that day, apply to the Court to have the
purported alteration or renewal set aside to the extent to which it relates to
that class; and
- (d)
- unless and until an application made under paragraph (c) is finally
determined by the making of an order setting aside the purported alteration or
renewal to that extent, the company is taken for all purposes (other than the
purposes of an application of that kind):
- (i)
- to have validly altered its constitution by inserting the provisions
referred to in paragraph (a) applying to that class; or
- (ii)
- to have validly renewed the provisions referred to in paragraph (b)
applying to that class.
(7) An application under paragraph (6)(c) may be made, on behalf of the
holders entitled to make the application, by a holder or holders appointed by
them in writing.
(8) On an application under paragraph (6)(c), the Court may make an order
setting aside the purported alteration or renewal to the extent to which it
applies to that class if it is satisfied that it is appropriate in all the
circumstances to do so. Otherwise the Court must dismiss the application.
(9) Within 14 days after the day on which the Court makes an order of the kind
referred to in subsection (8) in relation to a company, the company must
lodge a copy of the order with ASIC.