Commonwealth Consolidated Acts Commonwealth Consolidated ActsImproving the consideration offered
(1) The bidder may vary the offers made under the bid to improve the consideration offered:
(a) by increasing a cash sum offered; or
(b) by increasing the number of securities offered; or
(c) by increasing the rate of interest payable under debentures offered; or
(d) by increasing the amount or value of debentures offered; or
(e) by increasing the number of unissued securities that may be acquired under options offered; or
(f) by offering a cash sum in addition to securities; or
(g) if the securities being acquired include shares to which rights to accrued dividends are attached--by giving the holders the right to:
(i) retain the whole or a part of the dividend; or
(ii) be paid an amount equal to the amount of the dividend;
in addition to the consideration already offered; or
(h) offering an additional alternative form of consideration.
Note: If the bidder increases the consideration during the last 7 days of the offer period, subsection 624(2) extends the offer period by a further 14 days.
Effect of increase in consideration on offers already accepted
(2) Improving the consideration has the effects set out in the following table on the rights of a person who has already accepted an offer when the variation is made.
Effect of improving consideration | [operative] | |
| Improvement | |
1 | improvement of the only form of consideration being offered | entitled to the improved consideration |
2 | 2 or more forms of consideration offered and all forms improved by the same factor or percentage | entitled to the improvement in the form of consideration accepted |
3 | 2 or more forms of consideration offered and improvement in the consideration is identical for all forms | entitled to the improvement in the form of consideration accepted |
4 | addition of a new form of consideration | entitled to make a fresh election as to the form of consideration to be taken |
5 | any other improvement | entitled to make a fresh election as to the form of consideration to be taken |
(2A) The person is entitled to receive the improved consideration immediately, subject to the following paragraphs:
(a) if the time for payment of the consideration in accordance with subsection 620(2) has not yet occurred, the person is not entitled to receive the improved consideration until that time;
(b) if the person has to make an election before being entitled to the improved consideration, the person is not entitled to receive the improved consideration until the later of:
(i) the time when the election is made; and
(ii) the time applicable under paragraph (a).
Fresh election as to the form of consideration
(3) If a person who has already accepted an offer has the right to make a fresh election as to the form of consideration to be taken, the bidder must send the person as soon as practicable after the variation a written notice informing them about their right to make the election.
Note 1: Section 651B says how the election is to be exercised.
Note 2: Sections 648B and 648C provide for the manner in which documents may be sent to holders.
(4) An offence based on subsection (3) is an offence of strict liability.
Note: For strict liability , see section 6.1 of the Criminal Code .