That’s partly right, but it’s not a simple question or answer.RG can now buy only up to 3%, unless he makes another takeover bid from a starting point of below 90%.Only if he starts from under 90% is he able to use s661A to buyout the minority via making a second takeover offer, and then only if he met the CA hurdles (over 90% and over 75% of the shares he did not own at the start – thus he must reach over 97% to use CA). Then he could use CA to mop up the others at the same price.The bid price would have to be not less than the highest price he had paid in the previous 4 months.All this would be pointless unless RG had a good idea of what price would be needed to get the top 8 or 9% to accept. However, any ”understanding” that he reached with the biggest shareholders as to a mutually acceptable price would have to be crafted carefully so it didn’t breach the “relevant interest” provisions of the Corporations Act.
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The alternative way is for RG to use the creep rule to buy up to 3% and get over 90%. Once over 90% he cannot use the usual takeover method.He could only use the other CA power in s664A. That has an even higher hurdle for RG because the shareholders are allowed to object to the court, probably involving ASIC appointing an independent expert to assess fair value, and- unless the court overrides the objectors as being unreasonable- it could be blocked by 1.0% (or less) of the shares. S664B says that this CA power can only be used if the offer is for a “cash sum only …. must pay the same amount foreach security..”. The rules for the CA notice, rights to objection and the court role are covered in s664C to F.
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The above applies irrespective of whether PGH is listed or unlisted.
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In summary. I’m confident that if RG wants 100% he must use (and must qualify to be able to use) a CA power. Either way he can’t do a deal with the big investors at one price and then squeeze out the others at a lower price.
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Not advice.
