Section 661B(1) and (2) Corporations Act 2001
Compulsory Acquisition Notice

Section 661B(1) and (2) of the Corporations Act 2001 (Cth) is Compulsory Acquisition Notice and reads as follows:

Compulsory Acquisition Notice

Compulsory acquisition notice

(1)  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.

Time for dispatching notices to holders

(2)  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The notices cannot be withdrawn.

The penalties                                                                         

The maximum penalty for the offence of Compulsory Acquisition Notice is:

20 penalty units (a Commonwealth penalty unit is currently $210).

However, it should be kept in mind that maximum penalties are reserved for the most serious cases.

Your legal team will be able to advise you of the essential elements the prosecution would need to prove in order to establish the offence, whether those elements are capable of being established in your particular situation, the most effective and efficient way forward and the likely outcome.

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