Corporations Act. Australia
An offence based on subsection (4) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(5) This section does not apply to shares (or units of shares) if:
(a) they are held by the entity as a personal representative; or
(b) they are held by 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.
(6) A contravention of this section does not affect the validity of any transaction.
259E When a company controls an entity
(1) For the purposes of this Part, a company controls an entity if the company has the capacity to determine the outcome of decisions about the entity’s financial and operating policies.
(2) In determining whether a company has this capacity:
(a) the practical influence the company can exert (rather than the rights it can enforce) is the issue to be addressed; and
(b) any practice or pattern of behaviour affecting the entity’s financial or operating policies is to be taken into account (even if it involves a breach of an agreement or a breach of trust).
(3) Merely because the company and an unrelated entity jointly have the capacity to determine the outcome of decisions about another entity’s financial and operating policies, the company does not control the other entity.
(4) A company is not taken to control an entity merely because of a capacity that it is under a legal obligation to exercise for the benefit of someone other than its shareholders.
Note: This situation could arise, for example, if the company holds shares as a trustee or is performing duties as a liquidator.
259F Consequences of failing to comply with section 259A or 259B
(1) If a company contravenes section 259A or subsection 259B(1):
(a) the contravention does not affect the validity of the acquisition or security 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 259A or subsection 259B(1) 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 259A or subsection 259B(1) and the involvement is dishonest.
Part 2J.3 — Financial assistance
260A Financial assistance by a company for acquiring shares in the company or a holding company
(1) A company may financially assist a person to acquire shares (or units of shares) in the company or a holding company of the company only if:
(a) giving the assistance does not materially prejudice:
(i) the interests of the company or its shareholders; or
(ii) the company’s ability to pay its creditors; or
(b) the assistance is approved by shareholders under section 260B (that section also requires advance notice to ASIC); or
(c) the assistance is exempted under section 26 °C.
Note: For the criminal liability of a person dishonestly involved in a contravention of this section, see subsection 260D(3). Section 79 defines involved.
(2) Without limiting subsection (1), financial assistance may:
(a) be given before or after the acquisition of shares (or units of shares); and
(b) take the form of paying a dividend.
(3) Subsection (1) extends to the acquisition of shares (or units of shares) by:
(a) issue; or
(b) transfer; or
(c) any other means.
260B Shareholder approval
Approval by company’s own shareholders
(1) Shareholder approval for financial assistance by a company must be given by:
(a) a special resolution passed at a general meeting of the company, with no votes being cast in favour of the resolution by the person acquiring the shares (or units of shares) or by their associates; or
(b) a resolution agreed to, at a general meeting, by all ordinary shareholders.
Approval by shareholders of listed holding corporation
(2) If the company will be a subsidiary of a listed domestic corporation immediately after the acquisition referred to in section 260A occurs, the financial assistance must also be approved by a special resolution passed at a general meeting of that corporation.
Approval by shareholders in ultimate Australian holding company
(3) If, immediately after the acquisition, the company will have a holding company that:
(a) is a domestic corporation but not listed; and
(b) is not itself a subsidiary of a domestic corporation;
the financial assistance must also be approved by a special resolution passed at a general meeting of the body corporate that will be the holding company.
Information to accompany the notice of meeting
(4) A company or other body that calls a meeting for the purpose of subsection (1), (2) or (3) must include with the notice of the meeting a statement setting out all the information known to the company or body that is material to the decision on how to vote on the resolution. However, the company or body does not have to disclose information if it would be unreasonable to require the company or body to do so because the company or body had previously disclosed the information to its members.
Documents to be lodged with the ASIC before notice of meeting is sent out
(5) Before the notice of a meeting for the purpose of subsection (1), (2) or (3) is sent to members of a company or other body, the company or body must lodge with ASIC a copy of:
(a) the notice of the meeting; and
(b) any document relating to the financial assistance that will accompany the notice of the meeting sent to the members.
(6) The company must lodge with ASIC, at least 14 days before giving the financial assistance, a notice in the prescribed form stating that the assistance has been approved under this section.
Lodgment of special resolutions
(7) A special resolution passed for the purpose of subsection (1), (2) or (3) must be lodged with ASIC by the company, listed domestic corporation or holding company within 14 days after it is passed.
26 °C Exempted financial assistance
General exemptions based on ordinary course of commercial dealing
(1) Financial assistance is exempted from section 260A if it is given in the ordinary course of commercial dealing and consists of:
(a) acquiring or creating a lien on partly‑paid