Corporations Act - Australia

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on the shares; or

      (b) entering into an agreement with a person under which the person may make payments to the company on shares by instalments.

      Special exemptions for financial institutions

      (2) Financial assistance is exempted from section 260A if:

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

      (b) the financial assistance is given in the ordinary course of that business and on ordinary commercial terms.

      Special exemptions for subsidiaries of debenture issuers

      (3) Financial assistance is exempted from section 260A if:

      (a) the company is a subsidiary of a borrower in relation to debentures; and

      (b) the financial assistance is a guarantee or other security given by the company for the repayment by the borrower of money that it is or will be liable to repay; and

      (c) the borrower is a borrower in relation to the debentures because it is or will be liable to repay the money; and

      (d) the guarantee or security is given by the company in the ordinary course of commercial dealing.

      Special exemption for approved employee share schemes

      (4) Financial assistance is exempted from section 260A if it is given 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.

      Other exemptions

      (5) The following types of financial assistance are exempted from section 260A:

      (a) a reduction of share capital in accordance with Division 1 of Part 2J.1;

      (b) a share buy‑back in accordance with Division 2 of Part 2J.1;

      (c) assistance given under a court order;

      (d) a discharge on ordinary commercial terms of a liability that the company incurred as a result of a transaction entered into on ordinary commercial terms.

      260D Consequences of failing to comply with section 260A

      (1) If a company provides financial assistance in contravention of section 260A:

      (a) the contravention does not affect the validity of the financial assistance or of any contract or transaction connected with it; and

      (b) the company is not guilty of an offence.

      (2) Any person who is involved in a company’s contravention of section 260A contravenes this subsection.

      Note: 1: Subsection (2) is a civil penalty provision (see section 1317E).

      Note: 2: Section 79 defines involved.

      (3) A person commits an offence if they are involved in a company’s contravention of section 260A and the involvement is dishonest.

      Part 2J.4 — Interaction with general directors’ duties

      260E General duties still apply

      A director is not relieved from any of their duties under this Act (including sections 180, 181, 182, 183 and 184), or their fiduciary duties, in connection with a transaction merely because the transaction is authorised by a provision of this Chapter or is approved by a resolution of members under a provision of this Chapter.

      Volume 2: sections 283AA–601DJ

      Chapter 2L — Debentures

      Part 2L.1 — Requirement for trust deed and trustee

      283AA Requirement for trust deed and trustee

      (1) Before a body:

      (a) makes an offer of debentures in this jurisdiction that needs disclosure to investors under Chapter 6D, or does not need disclosure to investors under Chapter 6D because of subsection 708(14) (disclosure document exclusion for debenture roll overs) or section 708A (sale offers that do not need disclosure); or

      (b) makes an offer of debentures in this jurisdiction or elsewhere as consideration for the acquisition of securities under an off‑market takeover bid; or

      (c) issues debentures in this jurisdiction or elsewhere under a compromise or arrangement under Part 5.1 approved at a meeting held as a result of an order under subsection 411(1) or (1A);

      regardless of where any resulting issue, sale or transfer occurs, the body must enter into a trust deed that complies with section 283AB and appoint a trustee that complies with section 283AC.

      Note: For rules about when an offer of debentures will need disclosure to investors under Chapter 6D, see sections 706, 707, 708, 708AA and 708A.

      (1A) An offence based on subsection (1) is an offence of strict liability.

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

      (2) The body may revoke the trust deed after it has repaid all amounts payable under the debentures in accordance with the debentures’ terms and the trust deed.

      (3) The body must comply with this Chapter.

      Note: Sections 168 and 601CZB require a register of debenture holders to be set up and kept.

      283AB Trust deed

      (1) The trust deed must provide that the following are held in trust by the trustee for the benefit of the debenture holders:

      (a) the right to enforce the borrower’s duty to repay;

      (b) any charge or security for repayment;

      (c) the right to enforce any other duties that the borrower and any guarantor have under:

      (i) the terms of the debentures; or

      (ii) the provisions of the trust deed or this Chapter.

      Note: For information about the duties that the borrower and any guarantor body have under this Chapter, see sections 283BB to 283CE.

      (2) An offence based on subsection (1) is an offence of strict liability.

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

      283AC Who can be a trustee

      Who can be trustee

      (1) The trustee must be:

      (a) the Public Trustee of any State or Territory; or

      (aa) a licensed trustee company (within the meaning of Chapter 5D); or

      (b) a body corporate authorised by a law of any State or Territory to take in its own name a grant of probate of the will, or letters of administration of the estate, of a deceased person; or

      (c) a body corporate registered under section 21 of the Life Insurance Act 1995; or

      (d) an Australian ADI; or

      (e) a body corporate, all of whose shares are held beneficially by a body corporate or bodies corporate of the kind referred to in paragraph (b), (c) or (d) if that body or those bodies:

      (i) are liable for all of the liabilities incurred, or to be incurred, by the trustee as trustee; or

      (ii)

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