Corporations Act - Australia

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      216 Court order

      Member approval is not needed to give a financial benefit under an order of a court.

      Division 3 — Procedure for obtaining member approval

      217 Resolution may specify matters by class or kind

      A resolution under this Division may specify anything either in particular or by reference to class or kind.

      218 Company must lodge material that will be put to members with ASIC

      (1) At least 14 days before the notice convening the relevant meeting is given, the public company must lodge:

      (a) a proposed notice of meeting setting out the text of the proposed resolution; and

      (b) a proposed explanatory statement satisfying section 219; and

      (c) any other document that is proposed to accompany the notice convening the meeting and that relates to the proposed resolution; and

      (d) any other document that any of the following proposes to give to members of the public company before or at the meeting:

      (i) the company;

      (ii) a related party of the company to whom the proposed resolution would permit a financial benefit to be given;

      (iii) an associate of the company or of such a related party;

      and can reasonably be expected to be material to a member in deciding how to vote on the proposed resolution.

      (2) If, when the notice convening the meeting is given, ASIC:

      (a) has approved in writing a period of less than 14 days for the purposes of subsection (1); and

      (b) has not revoked the approval by written notice to the public company;

      subsection (1) applies as if the reference to 14 days were a reference to the approved period.

      (3) ASIC may give and revoke approvals for the purposes of subsection (2).

      219 Requirements for explanatory statement to members

      (1) The proposed explanatory statement lodged under section 218 must be in writing and set out:

      (a) the related parties to whom the proposed resolution would permit financial benefits to be given; and

      (b) the nature of the financial benefits; and

      (c) in relation to each director of the company:

      (i) if the director wanted to make a recommendation to members about the proposed resolution — the recommendation and his or her reasons for it; or

      (ii) if not — why not; or

      (iii) if the director was not available to consider the proposed resolution — why not; and

      (d) in relation to each such director:

      (i) whether the director had an interest in the outcome of the proposed resolution; and

      (ii) if so — what it was; and

      (e) all other information that:

      (i) is reasonably required by members in order to decide whether or not it is in the company’s interests to pass the proposed resolution; and

      (ii) is known to the company or to any of its directors.

      (2) An example of the kind of information referred to in paragraph (1)(e) is information about what, from an economic and commercial point of view, are the true potential costs and detriments of, or resulting from, giving financial benefits as permitted by the proposed resolution, including (without limitation):

      (a) opportunity costs; and

      (b) taxation consequences (such as liability to fringe benefits tax); and

      (c) benefits forgone by whoever would give the benefits.

      Note: Sections 180 and 181 require an officer of a corporation to act honestly and to exercise care and diligence. These duties extend to preparing an explanatory statement under this section. Section 1309 creates offences where false and misleading material relating to a corporation’s affairs is made available or furnished to members.

      220 ASIC may comment on proposed resolution

      (1) Within 14 days after a public company lodges documents under section 218, ASIC may give to the company written comments on those documents (other than comments about whether the proposed resolution is in the company’s best interests).

      (2) If the company is listed, ASIC may consult with the relevant market operator for the purposes of giving comments to the company.

      (3) Subsection (2) does not limit the persons with whom ASIC may consult.

      (4) ASIC must keep a copy of the written comments it gives to a company under subsection (1), and subsections 1274(2) and (5) apply to the copy as if it were a document lodged with ASIC.

      (5) The fact that ASIC has given particular comments, or has declined to give comments, under subsection (1) does not in any way affect the performance or exercise of any of ASIC’s functions and powers.

      221 Requirements for notice of meeting

      The notice convening the meeting:

      (a) must be the same, in all material respects, as the proposed notice lodged under section 218; and

      (b) must be accompanied by an explanatory statement that is the same, in all material respects, as the proposed explanatory statement lodged under that section; and

      (c) must be accompanied by a document that is, or documents that are, the same, in all material respects, as the document or documents (if any) lodged under paragraph 218(1)(c); and

      (d) if ASIC has given to the public company, under section 220, comments on the documents lodged under section 218—must be accompanied by a copy of those comments; and

      (e) must not be accompanied by any other documents.

      222 Other material put to members

      Each document (if any) that:

      (a) did not accompany the notice convening the meeting; and

      (b) was given to members of the public company before or at the meeting by:

      (i) the public company; or

      (ii) a related party of the public company to whom the proposed resolution would permit a financial benefit to be given; or

      (iii) an associate of the public company or of such a related party; and

      (c) can reasonably be expected to have been material to a member in deciding how to vote on the proposed resolution;

      must be the same, in all material respects, as a document lodged under paragraph 218(1)(d).

      223 Proposed resolution cannot be varied

      The resolution must be the same as the proposed resolution set out in the proposed notice lodged under section 218.

      224 Voting by or on behalf of related party interested in proposed resolution

      (1) At a general meeting, a vote on a proposed resolution under this Division must not be cast (in any capacity) by or on behalf of:

      (a) a related party of the public company to whom the resolution would permit a financial benefit to be given; or

      (b) an associate of such a related party.

      (2) Subsection (1) does not prevent the casting of a vote if:

      (a) it is cast by a person as a proxy appointed by writing that specifies how

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