Corporations Act - Australia

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Any reduction in share capital involved in:

      (a) the redemption of redeemable preference shares out of the proceeds of a new issue of shares made for the purpose of the redemption (see section 254K); or

      (b) a company’s buying‑back of its own shares under sections 257A to 257J if the shares are paid for out of share capital.

      is authorised by this section.

      (2) A company may cancel shares returned to it under section 651C, 724(2), 737 or 738 and any reduction in the company’s share capital that is involved is authorised by this subsection.

      (3) Any reduction in a company’s share capital because of an order under section 1325A is authorised by this subsection.

      258F Reductions because of lost capital

      (1) A company may reduce its share capital by cancelling any paid‑up share capital that is lost or is not represented by available assets.

      (2) This power does not apply if:

      (a) the company also cancels shares; or

      (b) the cancellation of paid‑up share capital is inconsistent with the requirements of any accounting standard.

      Part 2J.2 — Self‑acquisition and control of shares

      259A Directly acquiring own shares

      A company must not acquire shares (or units of shares) in itself except:

      (a) in buying back shares under section 257A; or

      (b) in acquiring an interest (other than a legal interest) in fully‑paid shares in the company if no consideration is given for the acquisition by the company or an entity it controls; or

      (c) under a court order; or

      (d) in circumstances covered by subsection 259B(2) or (3).

      Note: For the criminal liability of a person dishonestly involved in a contravention of this section, see subsection 259F(3). Section 79 defines involved.

      259B Taking security over own shares or shares in holding company

      (1) A company must not take security over shares (or units of shares) in itself or in a company that controls it, except as permitted by subsection (2) or (3).

      Note: For the criminal liability of a person dishonestly involved in a contravention of this subsection, see subsection 259F(3). Section 79 defines involved.

      (2) A company may take security over shares in itself under an employee share scheme that has been approved by:

      (a) a resolution passed at a general meeting of the company; and

      (b) if the company is a subsidiary of a listed domestic corporation — a resolution passed at a general meeting of the listed domestic corporation; and

      (c) if paragraph (b) does not apply but the company has a holding company that is a domestic corporation and that is not itself a subsidiary of a domestic corporation — a resolution passed at a general meeting of that holding company.

      Special exemptions for financial institutions

      (3) A company’s taking security over shares (or units of shares) in itself or in a company that controls it is exempted from subsection (1) if:

      (a) the company’s ordinary business includes providing finance; and

      (b) the security is taken in the ordinary course of that business and on ordinary commercial terms.

      (4) If a company acquires shares (or units of shares) in itself because it exercises rights under a security permitted by subsection (2) or (3), then, within the following 12 months, the company must cease to hold those shares (or units of shares). ASIC may extend this period of 12 months if the company applies for the extension before the end of the period.

      (5) Any voting rights attached to the shares (or units of shares) cannot be exercised while the company continues to hold them.

      (6) If, at the end of the 12 months (or extended period), the company still holds any of the shares (or units of shares), the company commits an offence for each day while that situation continues.

      (7) An offence based on subsection (6) is an offence of strict liability.

      Note: For strict liability, see section 6.1 of the Criminal Code.

      259C Issuing or transferring shares to controlled entity

      (1) The issue or transfer of shares (or units of shares) of a company to an entity it controls is void unless:

      (a) the issue or transfer is to the entity as a personal representative; or

      (b) the issue or transfer is to the entity as trustee and neither the company nor any entity it controls has a beneficial interest in the trust, other than a beneficial interest that satisfies these conditions:

      (i) the interest arises from a security given for the purposes of a transaction entered into in the ordinary course of business in connection with providing finance; and

      (ii) that transaction was not entered into with an associate of the company or an entity it controls; or

      (c) the issue to the entity is made as a result of an offer to all the members of the company who hold shares of the class being issued and is made on a basis that does not discriminate unfairly, either directly or indirectly, in favour of the entity; or

      (d) the transfer to the entity is by a wholly‑owned subsidiary of a body corporate and the entity is also a wholly‑owned subsidiary of that body corporate.

      (2) ASIC may exempt a company from the operation of this section. The exemption:

      (a) must be in writing; and

      (b) may be granted subject to conditions.

      (3) If paragraph (1)(c) or (d) applies to an issue or transfer of shares (or units of shares), section 259D applies.

      259D Company controlling entity that holds shares in it

      (1) If any of the following occur:

      (a) a company obtains control of an entity that holds shares (or units of shares) in the company;

      (b) a company’s control over an entity that holds shares (or units of shares) in the company increases;

      (c) a company issues shares (or units of shares) to an entity it controls in the situation covered by paragraph 259C(1)(c);

      (d) shares (or units of shares) in the company are transferred to an entity it controls in the situation covered by paragraph 259C(1)(d);

      then, within 12 months after it occurs either:

      (e) the entity must cease to hold the shares (or units); or

      (f) the company must cease to control the entity.

      ASIC may extend this period of 12 months if the company applies for the extension before the end of the period.

      (2) If this section applies to shares (or units of shares), it also applies to bonus shares issued in respect of those shares (or units of shares). Within the same period that applies to the shares themselves under subsection (1), either:

      (a) the entity must cease to hold the bonus shares; or

      (b) the company must cease to control the entity.

      (3) Any voting rights attached to the shares (or units of shares) cannot be exercised while the company continues to control the entity.

      (4) If, at the end of the 12 months (or extended period), the company still controls the entity and the entity still holds the shares (or units of shares), the company commits an offence for each day while that situation

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