[pic] Corporations Act 2001 Act No. 50 of 2001 as amended This compilation was prepared on 16 July 2008 taking into account amendments up to Act No. 73 of 2008 Volume 1 includes: Table of Contents Chapters 1-2K (ss. 1 - 282) The text of any of those amendments not in force on that date is appended in the Notes section The operation of amendments that have been incorporated may be affected by application provisions that are set out in the Notes section Volume 2 includes: Table of Contents Chapters 2L-5B (ss. 283AA - 601DJ) Volume 3 includes: Table of Contents Chapters 5C-6D (ss. 601EA - 742) Volume 4 includes: Table of Contents Chapters 7 and 8 (ss. 760A - 1200U) Volume 5 includes: Table of Contents Chapters 9 and 10 (ss. 1274 - 1483) Schedules 3 and 4 Note 1 Table of Acts Act Notes Table of Amendments Note 2 Table A Prepared by the Office of Legislative Drafting and Publishing, Attorney-General's Department, Canberra Contents Chapter 1-Introductory 1 Part 1.1-Preliminary 1 1 Short title [see Note 1] 1 2 Commencement [see Note 1] 1 3 Constitutional basis for this Act 1 4 Referring States 2 5 General territorial application of Act 4 5A Application to the Crown 7 5B ASIC has general administration of this Act 7 5C Application of the Acts Interpretation Act 1901 7 Part 1.1A-Interaction between Corporations legislation and State and Territory laws 9 5D Coverage of Part 9 5E Concurrent operation intended 9 5F Corporations legislation does not apply to matters declared by State or Territory law to be an excluded matter 10 5G Avoiding direct inconsistency arising between the Corporations legislation and State and Territory laws 12 5H Registration of body as company on basis of State or Territory law 19 5I Regulations may modify operation of the Corporations legislation to deal with interaction between that legislation and State and Territory laws 20 Part 1.2-Interpretation 23 Division 1-General 23 6 Effect of this Part 23 7 Location of other interpretation provisions 23 9 Dictionary 24 9A Meaning of rights issue 86 Division 2-Associates 88 10 Effect of Division 88 11 Associates of bodies corporate 88 12 References in Chapters 6 to 6C, and other references relating to voting power and takeovers etc. 88 13 References in Chapter 7 90 15 General 90 16 Exclusions 91 17 Associates of composite person that carries on a financial services business 92 Division 3-Carrying on business 93 18 Carrying on business: otherwise than for profit 93 19 Businesses of a particular kind 93 20 Carrying on a business: alone or together with others 93 21 Carrying on business in Australia or a State or Territory 93 Division 5A-Types of company 95 45A Proprietary companies 95 Division 6-Subsidiaries and related bodies corporate 97 46 What is a subsidiary 97 47 Control of a body corporate's board 97 48 Matters to be disregarded 98 49 References in this Division to a subsidiary 98 50 Related bodies corporate 99 50AAA Associated entities 99 50AA Control 100 Division 7-Interpretation of other expressions 101 52 Doing acts 101 52A Signing 101 53 Affairs of a body corporate 101 53AA Business affairs of a body corporate 103 53AB Business affairs of a natural person 103 53AC Business affairs of a partnership 104 53AD Business affairs of a trust 104 57 Classes of shares or interests in managed investment schemes 105 57A Meaning of corporation 105 58AA Meaning of court and Court 105 58B Discharge of obligations under this Act 106 59 Debentures as consideration for acquisition of shares 106 60 Declaration of relevant relationships 106 64 Entering into a transaction in relation to shares or securities 108 64A Entities 108 64B Entities connected with a corporation 108 65 Eligible money market dealer 110 66A Exempt bodies 110 70 Extension of period for doing an act 110 73A When a court is taken to find a person guilty of an offence 110 75 Inclusion in official list 110 79 Involvement in contraventions 111 80 Jervis Bay Territory taken to be part of the Australian Capital Territory 111 82 Offers and invitations to the public 111 83 Officers, and other persons, in default 112 86 Possession 112 88A Public document of a body corporate 112 88B Qualified accountants 113 89 Qualified privilege 113 90 Receivers and managers 114 92 Securities 114 95A Solvency and insolvency 115 Division 8-Miscellaneous interpretation rules 117 100 Address of registered office etc. 117 100A Operation of certain laws relating to instruments on which stamp duty has not been paid 117 101 Amount of stock representing a number of shares 118 102 Applications to be in writing 118 102B In Australia or elsewhere, in this jurisdiction or elsewhere etc. 118 102C In Australia 118 103 Effect of certain contraventions of this Act 118 104 Effect of provisions empowering a person to require or prohibit conduct 119 105 Calculation of time 119 106 Performance of functions by Commission delegate 119 107 Notice in relation to top 20 members of a class 119 108 Parts of dollar to be disregarded in determining majority in value of creditors etc. 120 109 References to persons, things and matters 120 109X Service of documents 120 Part 1.2A-Disclosing entities 122 Division 1-Object of Part 122 111AA Object of Part 122 Division 2-Definitions 123 111AB Terms defined in Division 123 111AC Disclosing entity 123 111AD ED securities 123 111AE Securities of body or undertaking that is included in a licensed market's official list 124 111AF Securities (except debentures and managed investment products) held by 100 or more persons 125 111AFA Managed investment products held by 100 or more persons 125 111AG Securities issued as consideration for an acquisition under an off-market takeover bid or Part 5.1 compromise or arrangement 126 111AH When a person holds securities for the purposes of sections 111AF, 111AFA and 111AG 126 111AI Debentures 127 111AJ Regulations may declare securities not to be ED securities 127 111AK ED securities of a disclosing entity 127 111AL Listed or unlisted disclosing entity 127 111AM Quoted ED securities 127 Division 3-Significance of being a disclosing entity 128 111AN Division contains outline of significance of being a disclosing entity 128 111AO Accounting requirements 128 111AP Continuous disclosure requirements 128 111AQ Prospectus relief 128 111AQA Product Disclosure Statement relief 128 Division 4-Exemptions and modifications 129 111AR Meaning of disclosing entity provisions 129 111AS Exemptions by regulations 129 111AT Exemptions by ASIC 129 111AU Enforcing conditions of exemptions 129 111AV Modifications by regulations 130 111AW Exemptions and modifications have effect 130 111AX Effect of Division 130 Part 1.4-Technical provisions about aids for readers 131 111J Small business guide 131 Part 1.5-Small business guide 132 1 What registration means 132 2 The company structure for small business 137 3 Setting up a new company 137 4 Continuing obligations after the company is set up 140 5 Company directors and company secretaries 143 6 Shares and shareholders 146 7 Signing company documents 147 8 Funding the company's operations 148 9 Returns to shareholders 148 10 Annual financial reports and audit 149 11 Disagreements within the company 151 12 Companies in financial trouble 152 Chapter 2A-Registering a company 154 Part 2A.1-What companies can be registered 154 112 Types of companies 154 113 Proprietary companies 155 114 Minimum of 1 member 156 115 Restrictions on size of partnerships and associations 156 116 Trade unions cannot be registered 157 Part 2A.2-How a company is registered 158 117 Applying for registration 158 118 ASIC gives company ACN, registers company and issues certificate 160 119 Company comes into existence on registration 161 119A Jurisdiction of incorporation and jurisdiction of registration 161 120 Members, directors and company secretary of a company 162 121 Registered office 162 122 Expenses incurred in promoting and setting up company 162 123 Company may have common seal 163 Chapter 2B-Basic features of a company 164 Part 2B.1-Company powers and how they are exercised 164 124 Legal capacity and powers of a company 164 125 Constitution may limit powers and set out objects 165 126 Agent exercising a company's power to make contracts 165 127 Execution of documents (including deeds) by the company itself 165 Part 2B.2-Assumptions people dealing with companies are entitled to make 167 128 Entitlement to make assumptions 167 129 Assumptions that can be made under section 128 167 130 Information available to the public from ASIC does not constitute constructive notice 169 Part 2B.3-Contracts before registration 170 131 Contracts before registration 170 132 Person may be released from liability but is not entitled to indemnity 171 133 This Part replaces other rights and liabilities 171 Part 2B.4-Replaceable rules and constitution 172 134 Internal management of companies 172 135 Replaceable rules 172 136 Constitution of a company 173 137 Date of effect of adoption, modification or repeal of constitution 174 138 ASIC may direct company to lodge consolidated constitution 175 139 Company must send copy of constitution to member 175 140 Effect of constitution and replaceable rules 175 141 Table of replaceable rules 176 Part 2B.5-Registered office and places of business 178 142 Registered office 178 143 ASIC may change address of registered office to a director's address 178 144 Company's name must be displayed at registered office etc. 179 145 Opening hours of registered office of public company 179 146 Change of address of principal place of business 180 146A Contact address 180 Part 2B.6-Names 181 Division 1-Selecting and using a name 181 147 When a name is available 181 148 A company's name 182 149 Acceptable abbreviations 183 150 Exception to requirement for using "Limited" in name 184 151 Exception to requirement for using "Limited" in name-pre- existing licences 184 152 Reserving a name 185 153 Using a name and ACN on documents 186 154 Exception to requirement to have ACN on receipts 186 155 Regulations may exempt from requirement to set out information on documents 187 156 Carrying on business using "Limited", "No Liability" or "Proprietary" in name 187 Division 2-Changing a company's name 188 157 Company changing its name 188 157A Change of name of company under external administration 188 158 ASIC's power to direct company to change its name 190 159 ASIC's power to include "Limited" in company's name 190 160 ASIC must issue new certificate if company's name changes 191 161 Effect of name change 191 161A Company under external administration-former name to be used on documents 191 Part 2B.7-Changing company type 194 162 Changing company type 194 163 Applying for change of type 196 164 ASIC changes type of company 198 165 ASIC may direct a proprietary company to change to a public company in certain circumstances 200 166 Effect of change of type 200 167 Issue of shares by company or holding company-company limited by guarantee changing to company limited by shares 201 167AA Application of Part to company limited both by shares and by guarantee 202 Chapter 2C-Registers 203 Part 2C.1-Registers generally 203 167A Who is covered by this Chapter 203 168 Registers to be maintained 203 169 Register of members 204 170 Register of option holders and copies of options documents 206 171 Register of debenture holders 207 172 Location of registers 207 173 Right to inspect and get copies 208 174 Agent's obligations 210 175 Correction of registers 211 176 Evidentiary value of registers 211 177 Use of information on registers 211 178 Overseas branch registers 212 Part 2C.2-Notice by proprietary companies of changes to member register 213 178A Notice of change to member register 213 178B Top 20 only 214 178C Notice of change to share structure 214 178D Time within which ASIC must be notified 214 Chapter 2D-Officers and employees 216 Part 2D.1-Duties and powers 216 179 Background to duties of directors, other officers and employees 216 Division 1-General duties 217 180 Care and diligence-civil obligation only 217 181 Good faith-civil obligations 218 182 Use of position-civil obligations 218 183 Use of information-civil obligations 219 184 Good faith, use of position and use of information- criminal offences 219 185 Interaction of sections 180 to 184 with other laws etc. 220 186 Territorial application of sections 180 to 184 220 187 Directors of wholly-owned subsidiaries 221 188 Responsibility of secretaries and directors for certain contraventions 221 189 Reliance on information or advice provided by others 222 190 Responsibility for actions of delegate 223 190A Limited application of Division to registrable Australian bodies 223 190B Division does not apply to Aboriginal and Torres Strait Islander corporations 224 Division 2-Disclosure of, and voting on matters involving, material personal interests 225 191 Material personal interest-director's duty to disclose 225 192 Director may give other directors standing notice about an interest 227 193 Interaction of sections 191 and 192 with other laws etc. 228 194 Voting and completion of transactions-directors of proprietary companies (replaceable rule-see section 135) 229 195 Restrictions on voting-directors of public companies only 229 196 ASIC power to make declarations and class orders 231 Division 3-Duty to discharge certain trust liabilities 232 197 Directors liable for debts and other obligations incurred by corporation as trustee 232 Division 4-Powers 233 198A Powers of directors (replaceable rule-see section 135) 233 198B Negotiable instruments (replaceable rule-see section 135) 233 198C Managing director (replaceable rule-see section 135) 233 198D Delegation 233 198E Single director/shareholder proprietary companies 234 198F Right of access to company books 234 Part 2D.2-Restrictions on indemnities, insurance and termination payments 236 Division 1-Indemnities and insurance for officers and auditors 236 199A Indemnification and exemption of officer or auditor 236 199B Insurance premiums for certain liabilities of director, secretary, other officer or auditor 237 199C Certain indemnities, exemptions, payments and agreements not authorised and certain documents void 238 Division 2-Termination payments 239 200A When benefit given in connection with retirement from office 239 200B Retirement benefits generally need membership approval 240 200C Benefits on transfer of undertaking or property need membership approval 241 200D Contravention to receive benefit without member approval 242 200E Approval by members 242 200F Exempt benefits and benefits given in certain circumstances 243 200G Genuine payments of pension and lump sum 245 200H Benefits required by law 247 200J Benefits to be held in trust for company 247 Part 2D.3-Appointment, remuneration and cessation of appointment of directors 248 Division 1-Appointment of directors 248 201A Minimum number of directors 248 201B Who can be a director 248 201D Consent to act as director 248 201E Special rules for the appointment of public company directors 249 201F Special rules for the appointment of directors for single director/single shareholder proprietary companies 249 201G Company may appoint a director (replaceable rule-see section 135) 250 201H Directors may appoint other directors (replaceable rule- see section 135) 250 201J Appointment of managing directors (replaceable rule-see section 135) 251 201K Alternate directors (replaceable rule-see section 135) 251 201L Signpost-ASIC to be notified of appointment 251 201M Effectiveness of acts by directors 252 Division 2-Remuneration of directors 253 202A Remuneration of directors (replaceable rule-see section 135) 253 202B Members may obtain information about directors' remuneration 253 202C Special rule for single director/single shareholder proprietary companies 254 Division 3-Resignation, retirement or removal of directors 255 203A Director may resign by giving written notice to company (replaceable rule-see section 135) 255 203B Signpost to consequences of disqualification from managing corporations 255 203C Removal by members-proprietary companies (replaceable rule- see section 135) 255 203D Removal by members-public companies 255 203E Director cannot be removed by other directors-public companies 257 203F Termination of appointment of managing director (replaceable rule-see section 135) 257 Part 2D.4-Appointment of secretaries 258 204A Minimum number of secretaries 258 204B Who can be a secretary 258 204C Consent to act as secretary 258 204D How a secretary is appointed 259 204E Effectiveness of acts by secretaries 259 204F Terms and conditions of office for secretaries (replaceable rule-see section 135) 259 204G Signpost to consequences of disqualification from managing corporations 259 Part 2D.5-Public information about directors and secretaries 260 205A Director, secretary or alternate director may notify ASIC of resignation or retirement 260 205B Notice of name and address of directors and secretaries to ASIC 260 205C Director and secretary must give information to company 262 205D Address for officers 262 205E ASIC's power to ask for information about person's position as director or secretary 263 205F Director must give information to company 263 205G Listed company-director to notify market operator of shareholdings etc. 264 Part 2D.6-Disqualification from managing corporations 266 206A Disqualified person not to manage corporations 266 206B Automatic disqualification 267 206BA Extension of period of automatic disqualification 268 206C Court power of disqualification-contravention of civil penalty provision 269 206D Court power of disqualification-insolvency and non-payment of debts 269 206E Court power of disqualification-repeated contraventions of Act 271 206EA Disqualification under the Trade Practices Act 1974 272 206F ASIC's power of disqualification 272 206G Court power to grant leave 273 206GA Involvement of ACCC-leave orders under section 206G 274 206H Territorial application of this Part 275 206HA Limited application of Part to registrable Australian bodies 275 206HB Part does not apply to Aboriginal and Torres Strait Islander corporations 275 Chapter 2E-Related party transactions 277 207 Purpose 277 Part 2E.1-Member approval needed for related party benefit 278 Division 1-Need for member approval 278 208 Need for member approval for financial benefit 278 209 Consequences of breach 278 Division 2-Exceptions to the requirement for member approval 280 210 Arm's length terms 280 211 Remuneration and reimbursement for officer or employee 280 212 Indemnities, exemptions, insurance premiums and payment for legal costs for officers 281 213 Small amounts given to related entity 282 214 Benefit to or by closely-held subsidiary 283 215 Benefits to members that do not discriminate unfairly 283 216 Court order 284 Division 3-Procedure for obtaining member approval 285 217 Resolution may specify matters by class or kind 285 218 Company must lodge material that will be put to members with ASIC 285 219 Requirements for explanatory statement to members 286 220 ASIC may comment on proposed resolution 287 221 Requirements for notice of meeting 287 222 Other material put to members 287 223 Proposed resolution cannot be varied 288 224 Voting by or on behalf of related party interested in proposed resolution 288 225 Voting on the resolution 289 226 Notice of resolution to be lodged 290 227 Declaration by court of substantial compliance 290 Part 2E.2-Related parties and financial benefits 291 228 Related parties 291 229 Giving a financial benefit 292 Part 2E.3-Interaction with other rules 294 230 General duties still apply 294 Chapter 2F-Members' rights and remedies 295 231 Membership of a company 295 Part 2F.1-Oppressive conduct of affairs 296 232 Grounds for Court order 296 233 Orders the Court can make 296 234 Who can apply for order 297 235 Requirement for person to lodge order 298 Part 2F.1A-Proceedings on behalf of a company by members and others 299 236 Bringing, or intervening in, proceedings on behalf of a company 299 237 Applying for and granting leave 299 238 Substitution of another person for the person granted leave 301 239 Effect of ratification by members 301 240 Leave to discontinue, compromise or settle proceedings brought, or intervened in, with leave 302 241 General powers of the Court 302 242 Power of the Court to make costs orders 303 Part 2F.2-Class rights 304 246B Varying and cancelling class rights 304 246C Certain actions taken to vary rights etc. 305 246D Variation, cancellation or modification without unanimous support of class 306 246E Variation, cancellation or modification with unanimous support of class 307 246F Company must lodge documents and resolutions with ASIC 307 246G Member's copies of documents and resolutions 308 Part 2F.3-Inspection of books 310 247A Order for inspection of books of company or registered managed investment scheme 310 247B Ancillary orders 311 247C Disclosure of information acquired in inspection 311 247D Company or directors may allow member to inspect books (replaceable rule see section 135) 311 Chapter 2G-Meetings 312 Part 2G.1-Directors' meetings 312 Division 1-Resolutions and declarations without meetings 312 248A Circulating resolutions of companies with more than 1 director (replaceable rule see section 135) 312 248B Resolutions and declarations of 1 director proprietary companies 312 Division 2-Directors' meetings 314 248C Calling directors' meetings (replaceable rule see section 135) 314 248D Use of technology 314 248E Chairing directors' meetings (replaceable rule see section 135) 314 248F Quorum at directors' meetings (replaceable rule see section 135) 314 248G Passing of directors' resolutions (replaceable rule see section 135) 315 Part 2G.2-Meetings of members of companies 316 Division 1-Resolutions without meetings 316 249A Circulating resolutions of proprietary companies with more than 1 member 316 249B Resolutions of 1 member companies 317 Division 2-Who may call meetings of members 318 249C Calling of meetings of members by a director (replaceable rule-see section 135) 318 249CA Calling of meetings of members of a listed company by a director 318 249D Calling of general meeting by directors when requested by members 318 249E Failure of directors to call general meeting 319 249F Calling of general meetings by members 320 249G Calling of meetings of members by the Court 320 Division 3-How to call meetings of members 321 249H Amount of notice of meetings 321 249HA Amount of notice of meetings of listed company 321 249J Notice of meetings of members to members and directors 322 249K Auditor entitled to notice and other communications 323 249L Contents of notice of meetings of members 323 249LA Notice of meeting not required to contain certain information 324 249M Notice of adjourned meetings (replaceable rule-see section 135) 325 Division 4-Members' rights to put resolutions etc. at general meetings 326 249N Members' resolutions 326 249O Company giving notice of members' resolutions 326 249P Members' statements to be distributed 327 Division 5-Holding meetings of members 329 249Q Purpose 329 249R Time and place for meetings of members 329 249S Technology 329 249T Quorum (replaceable rule-see section 135) 329 249U Chairing meetings of members (replaceable rule-see section 135) 330 249V Auditor's right to be heard at general meetings 330 249W Adjourned meetings 331 Division 6-Proxies and body corporate representatives 332 249X Who can appoint a proxy (replaceable rule for proprietary companies and mandatory rule for public companies-see section 135) 332 249Y Rights of proxies 332 249Z Company sending appointment forms or lists of proxies must send to all members 333 250A Appointing a proxy 333 250B Proxy documents 335 250BA Proxy documents-listed companies 336 250C Validity of proxy vote 336 250D Body corporate representative 337 Division 7-Voting at meetings of members 338 250E How many votes a member has (replaceable rule-see section 135) 338 250F Jointly held shares (replaceable rule-see section 135) 338 250G Objections to right to vote (replaceable rule-see section 135) 338 250H Votes need not all be cast in the same way 339 250J How voting is carried out (replaceable rule-see section 135) 339 250K Matters on which a poll may be demanded 339 250L When a poll is effectively demanded 339 250M When and how polls must be taken (replaceable rule-see section 135) 340 Division 8-AGMs of public companies 341 250N Public company must hold AGM 341 250P Extension of time for holding AGM 341 250PAA Exemptions by ASIC-class orders relating to externally-administered companies 342 250PAB Exemptions by ASIC-individual externally- administered companies 342 250PA Written questions to auditor submitted by members of listed company before AGM 343 250R Business of AGM 344 250RA Auditor required to attend listed company's AGM 345 250S Questions and comments by members on company management at AGM 346 250SA Listed company-remuneration report 346 250T Questions by members of auditors at AGM 346 Part 2G.3-Minutes and members' access to minutes 348 251A Minutes 348 251AA Disclosure of proxy votes-listed companies 349 251B Members' access to minutes 349 Part 2G.4-Meetings of members of registered managed investment schemes 351 Division 1-Who may call meetings of members 351 252A Calling of meetings of members by responsible entity 351 252B Calling of meetings of members by responsible entity when requested by members 351 252C Failure of responsible entity to call meeting of the scheme's members 352 252D Calling of meetings of members by members 353 252E Calling of meetings of members by the Court 353 Division 2-How to call meetings of members 354 252F Amount of notice of meetings 354 252G Notice of meetings of members to members, directors and auditors 354 252H Auditors entitled to other communications 355 252J Contents of notice of meetings of members 355 252K Notice of adjourned meetings 356 Division 3-Members' rights to put resolutions etc. at meetings of members 357 252L Members' resolutions 357 252M Responsible entity giving notice of members' resolutions 358 252N Members' statements to be distributed 358 Division 4-Holding meetings of members 361 252P Time and place for meetings of members 361 252Q Technology 361 252R Quorum 361 252S Chairing meetings of members 362 252T Auditors' right to be heard at meetings of members 362 252U Adjourned meetings 362 Division 5-Proxies and body corporate representatives 364 252V Who can appoint a proxy 364 252W Rights of proxies 364 252X Responsible entity sending appointment forms or lists of proxies must send to all members 365 252Y Appointing a proxy 365 252Z Proxy documents 366 253A Validity of proxy vote 368 253B Body corporate representative 368 Division 6-Voting at meetings of members 370 253C How many votes a member has 370 253D Jointly held interests 370 253E Responsible entity and associates cannot vote if interested in resolution 370 253F How to work out the value of an interest 370 253G Objections to a right to vote 371 253H Votes need not all be cast in the same way 371 253J How voting is carried out 371 253K Matters on which a poll may be demanded 372 253L When a poll is effectively demanded 372 Division 7-Minutes and members' access to minutes 373 253M Minutes 373 253N Members' access to minutes 373 Chapter 2H-Shares 375 Part 2H.1-Issuing and converting shares 375 254A Power to issue bonus, partly-paid, preference and redeemable preference shares 375 254B Terms of issue 376 254C No par value shares 377 254D Pre-emption for existing shareholders on issue of shares in proprietary company (replaceable rule-see section 135) 377 254E Court validation of issue 378 254F Bearer shares and stock must not be issued 378 254G Conversion of shares 378 254H Resolution to convert shares into larger or smaller number 379 Part 2H.2-Redemption of redeemable preference shares 380 254J Redemption must be in accordance with terms of issue 380 254K Other requirements about redemption 380 254L Consequences of contravening section 254J or 254K 380 Part 2H.3-Partly-paid shares 382 254M Liability on partly-paid shares 382 254N Calls may be limited to when company is externally- administered 382 254P No liability companies-calls on shares 382 254Q No liability companies-forfeiture and sale of shares for failure to meet call 383 254R No liability companies-redemption of forfeited shares 386 Part 2H.4-Capitalisation of profits 387 254S Capitalisation of profits 387 Part 2H.5-Dividends 388 254T Dividends to be paid out of profits 388 254U Other provisions about paying dividends (replaceable rule- see section 135) 388 254V When does the company incur a debt? 388 254W Dividend rights 388 Part 2H.6-Notice requirements 390 254X Notice to ASIC of share issue 390 254Y Notice to ASIC of share cancellation 391 Chapter 2J-Transactions affecting share capital 392 Part 2J.1-Share capital reductions and share buy-backs 392 256A Purpose 392 Division 1-Reductions in share capital not otherwise authorised by law 393 256B Company may make reduction not otherwise authorised 393 256C Shareholder approval 394 256D Consequences of failing to comply with section 256B 395 256E Signposts to other relevant provisions 395 Division 2-Share buy-backs 397 257A The company's power to buy back its own shares 397 257B Buy-back procedure-general 397 257C Buy-back procedure-shareholder approval if the 10/12 limit exceeded 399 257D Buy-back procedure-special shareholder approval for selective buy-back 400 257E Buy-back procedure-lodgment of offer documents with ASIC 401 257F Notice of intended buy-back 401 257G Buy-back procedure-disclosure of relevant information when offer made 402 257H Acceptance of offer and transfer of shares to the company 402 257J Signposts to other relevant provisions 402 Division 3-Other share capital reductions 405 258A Unlimited companies 405 258B Right to occupy or use real property 405 258C Brokerage or commission 405 258D Cancellation of forfeited shares 405 258E Other share cancellations 406 258F Reductions because of lost capital 406 Part 2J.2-Self-acquisition and control of shares 407 259A Directly acquiring own shares 407 259B Taking security over own shares or shares in holding company 407 259C Issuing or transferring shares to controlled entity 408 259D Company controlling entity that holds shares in it 409 259E When a company controls an entity 410 259F Consequences of failing to comply with section 259A or 259B 411 Part 2J.3-Financial assistance 412 260A Financial assistance by a company for acquiring shares in the company or a holding company 412 260B Shareholder approval 412 260C Exempted financial assistance 414 260D Consequences of failing to comply with section 260A 415 Part 2J.4-Interaction with general directors' duties 417 260E General duties still apply 417 Chapter 2K-Charges 418 Part 2K.1-Preliminary 418 261 Interpretation and application 418 Part 2K.2-Registration 420 262 Charges required to be registered 420 263 Lodgment of notice of charge and copy of instrument 423 264 Acquisition of property subject to charge 426 265 Registration of documents relating to charges 427 265A Standard time for the purposes of section 265 430 266 Certain charges void against liquidator or administrator 431 267 Charges in favour of certain persons void in certain cases 434 268 Assignment and variation of charges 436 269 Satisfaction of, and release of property from, charges 437 270 Lodgment of notices, offences etc. 437 271 Company to keep documents relating to charges and register of charges 438 272 Certificates 439 273A Application of State and Territory laws to charges required to be registered under this Part 440 273B Application of State and Territory laws to transfers, assignments or giving of charges registered under this Part 441 273C Application of specified State and Territory laws to crop liens, wool liens and stock mortgages registered under this Part 442 273D Sections 273A to 273C do not apply to charges given by company jointly with person who is not a company 444 274 Power of Court to rectify Register 444 277 Power to exempt from compliance with certain requirements of Division 444 Part 2K.3-Order of priority 446 278 Definitions 446 279 Priorities of charges 447 280 General priority rules in relation to registered charges 448 281 General priority rule in relation to unregistered charges 449 282 Special priority rules 449 An Act to make provision in relation to corporations and financial products and services, and for other purposes Chapter 1-Introductory Part 1.1-Preliminary 1 Short title [see Note 1] This Act may be cited as the Corporations Act 2001. 2 Commencement [see Note 1] This Act commences on a day to be fixed by Proclamation. 3 Constitutional basis for this Act (1) The operation of this Act in the referring States is based on: (a) the legislative powers that the Commonwealth Parliament has under section 51 of the Constitution (other than paragraph 51(xxxvii)); and (b) the legislative powers that the Commonwealth Parliament has in respect of matters to which this Act relates because those matters are referred to it by the Parliaments of the referring States under paragraph 51(xxxvii) of the Constitution. Note: The State referrals fully supplement the Commonwealth Parliament's other powers by referring the matters to the Commonwealth Parliament to the extent to which they are not otherwise included in the legislative powers of the Commonwealth Parliament. (2) The operation of this Act in the Northern Territory and the Capital Territory is based on: (a) the legislative powers that the Commonwealth Parliament has under section 122 of the Constitution to make laws for the government of those Territories; and (b) the legislative powers that the Commonwealth Parliament has under section 51 of the Constitution. Despite subsection 22(3) of the Acts Interpretation Act 1901, this Act as applying in those territories is a law of the Commonwealth. (3) The operation of this Act outside Australia is based on: (a) the legislative power the Commonwealth Parliament has under paragraph 51(xxix) of the Constitution; and (b) the other legislative powers that the Commonwealth Parliament has under section 51 of the Constitution; and (c) the legislative powers that the Commonwealth Parliament has under section 122 of the Constitution to make laws for the government of those Territories. (4) The operation of this Act in a State that is not a referring State is based on: (a) the legislative powers that the Commonwealth Parliament has under section 51 (other than paragraph 51(xxxvii)) and section 122 of the Constitution; and (b) the legislative powers that the Commonwealth Parliament has in respect of matters to which this Act relates because those matters are referred to it by the Parliaments of the referring States under paragraph 51(xxxvii) of the Constitution. 4 Referring States Reference of matters by State Parliament to Commonwealth Parliament (1) A State is a referring State if the Parliament of the State has referred the matters covered by subsections (4) and (5) to the Parliament of the Commonwealth for the purposes of paragraph 51(xxxvii) of the Constitution: (a) if and to the extent that the matters are not otherwise included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference under paragraph 51(xxxvii) of the Constitution); and (b) if and to the extent to which the matters are included in the legislative powers of the Parliament of the State. This subsection has effect subject to subsections (6) and (7). (2) A State is a referring State even if the State reference Act includes a provision to the effect that nothing in the State reference Act is intended to enable the making of laws pursuant to the amendment reference with the sole or main underlying purpose or object of regulating industrial relations matters even if, but for that provision in the State reference Act, the law would be a law with respect to a matter referred to the Parliament of the Commonwealth by the amendment reference. (3) A State is a referring State even if a law of the State provides that the reference to the Commonwealth Parliament of either or both of the matters covered by subsections (4) and (5) is to terminate in particular circumstances. Reference covering initial Corporations Act and ASIC Act (4) This subsection covers the matters to which the referred provisions relate to the extent of making laws with respect to those matters by including the referred provisions in the initial Corporations Act and the initial ASIC Act. Reference covering amendments of this Act and ASIC Act (5) This subsection covers the matters of the formation of corporations, corporate regulation and the regulation of financial products and services to the extent of the making of laws with respect to those matters by making express amendments of this Act or the ASIC Act. Effect of termination of reference (6) A State ceases to be a referring State if the State's initial reference terminates. (7) A State ceases to be a referring State if: (a) the State's amendment reference terminates; and (b) subsection (8) does not apply to the termination. (8) A State does not cease to be a referring State because of the termination of its amendment reference if: (a) the termination is effected by the Governor of that State fixing a day by proclamation as the day on which the reference terminates; and (b) the day fixed is no earlier than the first day after the end of the period of 6 months beginning on the day on which the proclamation is published; and (c) that State's amendment reference, and the amendment reference of every other State, terminates on the same day. Definitions (9) In this section: amendment reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection (5). express amendment of this Act or the ASIC Act means the direct amendment of the text of this Act or the ASIC Act (whether by the insertion, omission, repeal, substitution or relocation of words or matter) by Commonwealth Acts, but does not include the enactment by a Commonwealth Act of a provision that has, or will have, substantive effect otherwise than as part of the text of this Act or the ASIC Act. initial ASIC Act means the ASIC Act as originally enacted. initial Corporations Act means this Act as originally enacted. initial reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection (4). referred provisions means: (a) the initial Corporations Act; and (b) the initial ASIC Act; to the extent to which they deal with matters that are included in the legislative powers of the Parliaments of the States. State reference Act for a State is the law under which the initial reference and the amendment reference are given. 5 General territorial application of Act Geographical coverage of "this jurisdiction" (1) Section 9 defines this jurisdiction as the area that includes: (a) each referring State (including its coastal sea); and (b) the Capital Territory (including the coastal sea of the Jervis Bay Territory); and (c) the Northern Territory (including its coastal sea); and (d) also, for the purposes of the application of a provision of Chapter 7 or an associated provision (see subsection (10))-any external Territory in which the provision applies because of subsection (9) (but only to the extent provided for in that subsection). (2) Throughout this Act, this jurisdiction therefore consists of: (a) either: (i) the whole of Australia (if all the States are referring States); or (ii) Australia (other than any State that is not a referring State) if one or more States are not referring States; and (b) also, when used in or in relation to a provision of Chapter 7 or an associated provision (see subsection (10))-any external Territory in which the provision applies because of subsection (9) (but only to the extent provided for in that subsection). Operation in this jurisdiction (3) Each provision of this Act applies in this jurisdiction. Operation outside this jurisdiction (4) Subject to subsection (8), each provision of this Act also applies, according to its tenor, in relation to acts and omissions outside this jurisdiction. Residence, place of formation etc. (7) Each provision of this Act applies according to its tenor to: (a) natural persons whether: (i) resident in this jurisdiction or not; and (ii) resident in Australia or not; and (iii) Australian citizens or not; and (b) all bodies corporate and unincorporated bodies whether: (i) formed or carrying on business in this jurisdiction or not; and (ii) formed or carrying on business in Australia or not. Note: Paragraph (b)-many of the provisions in this Act apply only in relation to companies (that is, to companies that are registered under this Act). Operation in non-referring States (8) This Act does not apply to an act or omission in a State that is not a referring State to the extent to which that application would be beyond the legislative powers of the Parliament (including powers it has under paragraphs 51(xxxvii) and (xxxix) of the Constitution). Expanded application of provisions of Chapter 7 and associated provisions (9) The regulations may provide that, in specified circumstances, a specified external Territory is included in this jurisdiction for the purposes of a specified provision of Chapter 7 (the applicable provision). If the regulations do so: (a) the applicable provision applies in that external Territory in those circumstances; and (b) the associated provisions (see subsection (10)) in relation to the applicable provision apply in that external Territory in relation to the applicable provision as so applying. Meaning of associated provisions (10) For the purposes of this section, the associated provisions in relation to a provision of Chapter 7 are: (a) the provisions of Chapters 1, 9 (including the provisions of Division 2 of Part 9.4 that create offences and of Part 9.4B that allow for pecuniary penalty orders) and 10 as they apply or have effect in relation to, or for the purposes of, the provision; and (b) any regulations or other instruments (including any that create offences or allow for pecuniary penalty orders) made under this Act for the purposes of any of the provisions covered by paragraph (a); and (c) if regulations made for the purposes of subsection (9) have been made in relation to the provision-any other provisions of this Act, or any regulations or other instruments made under this Act (including any that create offences or allow for pecuniary penalty orders), specified in those regulations. 5A Application to the Crown (1) To avoid doubt, a reference in this section to the Crown in a particular right includes a reference to an instrumentality or agency (whether a body corporate or not) of the Crown in that right. (2) Chapter 5 (except Part 5.8) binds the Crown in right of the Commonwealth, of each of the States, of the Capital Territory, of the Northern Territory and of Norfolk Island. (3) Chapters 6, 6A, 6B, 6C and 6D: (a) bind the Crown in right of the Commonwealth; and (b) do not bind the Crown in right of any State, of the Capital Territory, of the Northern Territory or of Norfolk Island. (4) A provision of Chapter 6CA or 7 only binds the Crown in a particular capacity in circumstances (if any) specified in the regulations. (5) Nothing in this Act makes the Crown in any right liable to a pecuniary penalty or to be prosecuted for an offence. 5B ASIC has general administration of this Act Subject to the ASIC Act, ASIC has the general administration of this Act. 5C Application of the Acts Interpretation Act 1901 (1) Until the date of commencement of section 4 of the Legislative Instruments (Transitional and Consequential Amendments) Act 2003 (the Legislative Instruments commencement day), the Acts Interpretation Act 1901 as in force on 1 November 2000 applies to this Act. (2) On and after the Legislative Instruments commencement day, the Acts Interpretation Act 1901 as in force on that day applies to this Act. (3) Amendments of the Acts Interpretation Act 1901 made after the Legislative Instruments commencement day do not apply to this Act. Part 1.1A-Interaction between Corporations legislation and State and Territory laws 5D Coverage of Part (1) This Part applies only to laws of a State or Territory that is in this jurisdiction. (2) This Part applies only to the following Corporations legislation: (a) this Act (including the regulations made under this Act); and (b) Part 3 of the ASIC Act; and (c) regulations made under the ASIC Act for the purposes of Part 3 of that Act. (3) This Part does not apply to Part 3 of the ASIC Act, or regulations made under that Act for the purposes of Part 3 of that Act, to the extent to which they operate in relation to a contravention of Division 2 of Part 2 of that Act. 5E Concurrent operation intended (1) The Corporations legislation is not intended to exclude or limit the concurrent operation of any law of a State or Territory. (2) Without limiting subsection (1), the Corporations legislation is not intended to exclude or limit the concurrent operation of a law of a State or Territory that: (a) imposes additional obligations or liabilities (whether criminal or civil) on: (i) a director or other officer of a company or other corporation; or (ii) a company or other body; or (b) confers additional powers on: (i) a director or other officer of a company or other corporation; or (ii) a company or other body; or (c) provides for the formation of a body corporate; or (d) imposes additional limits on the interests a person may hold or acquire in a company or other body; or (e) prevents a person from: (i) being a director of; or (ii) being involved in the management or control of; a company or other body; or (f) requires a company: (i) to have a constitution; or (ii) to have particular rules in its constitution. Note: Paragraph (a)-this includes imposing additional reporting obligations on a company or other body. (3) Without limiting subsection (2), a reference in that subsection to a law of a State or Territory imposing obligations or liabilities, or conferring powers, includes a reference to a law of a State or Territory imposing obligations or liabilities, or conferring powers, by reference to the State or Territory in which a company is taken to be registered. (4) This section does not apply to the law of the State or Territory if there is a direct inconsistency between the Corporations legislation and that law. Note: Section 5G prevents direct inconsistencies arising in some cases by limiting the operation of the Corporations legislation. (5) If: (a) an act or omission of a person is both an offence against the Corporations legislation and an offence under the law of a State or Territory; and (b) the person is convicted of either of those offences; the person is not liable to be convicted of the other of those offences. 5F Corporations legislation does not apply to matters declared by State or Territory law to be an excluded matter (1) Subsection (2) applies if a provision of a law of a State or Territory declares a matter to be an excluded matter for the purposes of this section in relation to: (a) the whole of the Corporations legislation; or (b) a specified provision of the Corporations legislation; or (c) the Corporations legislation other than a specified provision; or (d) the Corporations legislation otherwise than to a specified extent. (2) By force of this subsection: (a) none of the provisions of the Corporations legislation (other than this section) applies in the State or Territory in relation to the matter if the declaration is one to which paragraph (1)(a) applies; and (b) the specified provision of the Corporations legislation does not apply in the State or Territory in relation to the matter if the declaration is one to which paragraph (1)(b) applies; and (c) the provisions of the Corporations legislation (other than this section and the specified provisions) do not apply in the State or Territory in relation to the matter if the declaration is one to which paragraph (1)(c) applies; and (d) the provisions of the Corporations legislation (other than this section and otherwise than to the specified extent) do not apply in the State or Territory in relation to the matter if the declaration is one to which paragraph (1)(d) applies. (3) Subsection (2) does not apply to the declaration to the extent to which the regulations provide that that subsection does not apply to that declaration. (4) By force of this subsection, if: (a) the Corporations Law, ASC Law or ASIC Law of a State or Territory; or (b) a provision of that Law; did not apply to a matter immediately before this Act commenced because a provision of a law of the State or Territory provided that that Law, or that provision, did not apply to the matter, the Corporations legislation, or the provision of the Corporations legislation that corresponds to that provision of that Law, does not apply in the State or Territory to the matter until that law of the State or Territory is omitted or repealed. (5) Subsection (4) does not apply to the application of the provisions of the Corporations legislation to the matter to the extent to which the regulations provide that that subsection does not apply to the matter. (6) In this section: matter includes act, omission, body, person or thing. 5G Avoiding direct inconsistency arising between the Corporations legislation and State and Territory laws Section overrides other provisions of the Corporations legislation (1) This section has effect despite anything else in the Corporations legislation. Section does not deal with provisions capable of concurrent operation (2) This section does not apply to a provision of a law of a State or Territory that is capable of concurrent operation with the Corporations legislation. Note: This kind of provision is dealt with by section 5E. When this section applies to a provision of a State or Territory law (3) This section applies to the interaction between: (a) a provision of a law of a State or Territory (the State provision); and (b) a provision of the Corporations legislation (the Commonwealth provision); only if the State provision meets the conditions set out in the following table: |Conditions to be met before section|[operative] | |applies | | |Item |Kind of |Conditions to be met | | |provision | | |1 |a |(a) the State provision | | |pre-commencement|operated, immediately before | | |(commenced) |this Act commenced, despite the| | |provision |provision of: | | | |(i) the Corporations Law of the| | | |State or Territory (as in force| | | |at that time); or | | | |(ii) the ASC or ASIC Law of the| | | |State or Territory (as in force| | | |at that time); | | | |that corresponds to the | | | |Commonwealth provision; and | | | |(b) the State provision is not | | | |declared to be one that this | | | |section does not apply to | | | |(either generally or | | | |specifically in relation to the| | | |Commonwealth provision) by: | | | |(i) regulations made under this| | | |Act; or | | | |(ii) a law of the State or | | | |Territory. | |2 |a |(a) the State provision would | | |pre-commencement|have operated, immediately | | |(enacted) |before this Act commenced, | | |provision |despite the provision of: | | | |(i) the Corporations Law of the| | | |State or Territory (as in force| | | |at that time); or | | | |(ii) the ASC or ASIC Law of the| | | |State or Territory (as in force| | | |at that time); | | | |that corresponds to the | | | |Commonwealth provision if the | | | |State provision had commenced | | | |before the commencement of this| | | |Act; and | | | |(b) the State provision is not | | | |declared to be one that this | | | |section does not apply to | | | |(either generally or | | | |specifically in relation to the| | | |Commonwealth provision) by: | | | |(i) regulations made under this| | | |Act; or | | | |(ii) a law of the State or | | | |Territory. | |3 |a |the State provision is declared| | |post-commencemen|by a law of the State or | | |t provision |Territory to be a Corporations | | | |legislation displacement | | | |provision for the purposes of | | | |this section (either generally | | | |or specifically in relation to | | | |the Commonwealth provision) | |4 |a provision that|(a) the State provision as | | |is materially |amended would have operated, | | |amended on or |immediately before this Act | | |after this Act |commenced, despite the | | |commenced if the|provision of: | | |amendment was |(i) the Corporations Law of the| | |enacted before |State or Territory (as in force| | |this Act |at that time); or | | |commenced |(ii) the ASC or ASIC Law of the| | | |State or Territory (as in force| | | |at that time); | | | |that corresponds to the | | | |Commonwealth provision if the | | | |amendment had commenced before | | | |the commencement of this Act; | | | |and | | | |(b) the State provision is not | | | |declared to be one that this | | | |section does not apply to | | | |(either generally or | | | |specifically in relation to the| | | |Commonwealth provision) by: | | | |(i) regulations made under this| | | |Act; or | | | |(ii) a law of the State or | | | |Territory. | |5 |a provision that|the State provision as amended | | |is materially |is declared by a law of the | | |amended on or |State or Territory to be a | | |after this Act |Corporations legislation | | |commenced if the|displacement provision for the | | |amendment is |purposes of this section | | |enacted on or |(either generally or | | |after this Act |specifically in relation to the| | |commenced |Commonwealth provision) | Note 1: Item 1-subsection (12) tells you when a provision is a pre- commencement (commenced) provision. Note 2: Item 1 paragraph (a)-For example, a State or Territory provision enacted after the commencement of the Corporations Law might not have operated despite the Corporations Law if it was not expressly provided that the provision was to operate despite a specified provision, or despite any provision, of the Corporations Law (see, for example, section 5 of the Corporations (New South Wales) Act 1990). Note 3: Item 2-subsection (13) tells you when a provision is a pre- commencement (enacted) provision. Note 4: Item 3-subsection (14) tells you when a provision is a post-commencement provision. Note 5: Subsections (15) to (17) tell you when a provision is materially amended after commencement. State and Territory laws specifically authorising or requiring act or thing to be done (4) A provision of the Corporations legislation does not: (a) prohibit the doing of an act; or (b) impose a liability (whether civil or criminal) for doing an act; if a provision of a law of a State or Territory specifically authorises or requires the doing of that act. Instructions given to directors under State and Territory laws (5) If a provision of a law of a State or Territory specifically: (a) authorises a person to give instructions to the directors or other officers of a company or body; or (b) requires the directors of a company or body to: (i) comply with instructions given by a person; or (ii) have regard to matters communicated to the company or body by a person; or (c) provides that a company or body is subject to the control or direction of a person; a provision of the Corporations legislation does not: (d) prevent the person from giving an instruction to the directors or exercising control or direction over the company or body; or (e) without limiting subsection (4): (i) prohibit a director from complying with the instruction or direction; or (ii) impose a liability (whether civil or criminal) on a director for complying with the instruction or direction. The person is not taken to be a director of a company or body for the purposes of the Corporations legislation merely because the directors of the company or body are accustomed to act in accordance with the person's instructions. Use of names authorised by State and Territory laws (6) The provisions of Part 2B.6 and Part 5B.3 of this Act do not: (a) prohibit a company or other body from using a name if the use of the name is expressly provided for, or authorised by, a provision of a law of a State or Territory; or (b) require a company or other body to use a word as part of its name if the company or body is expressly authorised not to use that word by a provision of a law of a State or Territory. Meetings held in accordance with requirements of State and Territory laws (7) The provisions of Chapter 2G of this Act do not apply to the calling or conduct of a meeting of a company to the extent to which the meeting is called or conducted in accordance with a provision of a law of a State or Territory. Any resolutions passed at the meeting are as valid as if the meeting had been called and conducted in accordance with this Act. External administration under State and Territory laws (8) The provisions of Chapter 5 of this Act do not apply to a scheme of arrangement, receivership, winding up or other external administration of a company to the extent to which the scheme, receivership, winding up or administration is carried out in accordance with a provision of a law of a State or Territory. State and Territory laws dealing with company constitutions (9) If a provision of a law of a State or Territory provides that a provision is included, or taken to be included, in a company's constitution, the provision is included in the company's constitution even though the procedures and other requirements of this Act are not complied with in relation to the provision. (10) If a provision of a law of a State or Territory provides that additional requirements must be met for an alteration of a company's constitution to take effect, the alteration does not take effect unless those requirements are met. Other cases (11) A provision of the Corporations legislation does not operate in a State or Territory to the extent necessary to ensure that no inconsistency arises between: (a) the provision of the Corporations legislation; and (b) a provision of a law of the State or Territory that would, but for this subsection, be inconsistent with the provision of the Corporations legislation. Note 1: A provision of the State or Territory law is not covered by this subsection if one of the earlier subsections in this section applies to the provision: if one of those subsections applies there would be no potential inconsistency to be dealt with by this subsection. Note 2: The operation of the provision of the State or Territory law will be supported by section 5E to the extent to which it can operate concurrently with the provision of the Corporations legislation. Pre-commencement (commenced) provision (12) A provision of a law of a State or Territory is a pre- commencement (commenced) provision if it: (a) is enacted, and comes into force, before the commencement of this Act; and (b) is not a provision that has been materially amended after commencement (see subsections (15) to (17)). Pre-commencement (enacted) provision (13) A provision of a law of a State or Territory is a pre- commencement (enacted) provision if it: (a) is enacted before, but comes into force on or after, the commencement of this Act; and (b) is not a provision that has been materially amended after commencement (see subsections (15) to (17)). Post-commencement provision (14) A provision of a law of a State or Territory is a post- commencement provision if it: (a) is enacted, and comes into force, on or after the commencement of this Act; and (b) is not a provision that has been materially amended after commencement (see subsections (15) to (17)). Provision materially amended after commencement (15) A provision of a law of a State or Territory is materially amended after commencement if: (a) an amendment of the provision commences on or after the commencement of this Act; and (b) neither subsection (16) nor subsection (17) applies to the amendment. (16) A provision of a law of a State or Territory is not materially amended after commencement under subsection (15) if the amendment merely: (a) changes: (i) a reference to the Corporations Law or the ASC or ASIC Law, or the Corporations Law or the ASC or ASIC Law of a State or Territory, to a reference to the Corporations Act or the ASIC Act; or (ii) a reference to a provision of the Corporations Law or the ASC or ASIC Law, or the Corporations Law or ASC or ASIC Law of a State or Territory, to a reference to a provision of the Corporations Act or the ASIC Act; or (iii) a penalty for a contravention of a provision of a law of a State or Territory; or (iv) a reference to a particular person or body to a reference to another person or body; or (b) adds a condition that must be met before a right is conferred, an obligation imposed or a power conferred; or (c) adds criteria to be taken into account before a power is exercised; or (d) amends the provision in way declared by the regulations to not constitute a material amendment for the purposes of this subsection. (17) A provision of a law of a State or Territory is not materially amended after commencement under subsection (15) if: (a) the provision as amended would be inconsistent with a provision of the Corporations legislation but for this section; and (b) the amendment would not materially reduce the range of persons, acts and circumstances to which the provision of the Corporations legislation applies if this section applied to the provision of the State or Territory law as amended. 5H Registration of body as company on basis of State or Territory law (1) A body is taken to be registered under this Act as a company of a particular type under section 118 if a law of a State or Territory in this jurisdiction: (a) provides that the body is a deemed registration company for the purposes of this section; and (b) specifies: (i) the day on which the body is to be taken to be registered (the registration day) or the manner in which that day is to be fixed; and (ii) the type of company the body is to be registered as under this Act; (iii) the company's proposed name (unless the ACN is to be used in its name); and subsections (2) and (3) are satisfied. (2) A notice setting out the following details must be lodged before the registration day: (a) the name and address of each person who is to be a member on registration; (b) the present given and family name, all former given and family names and the date and place of birth of each person who is to be a director on registration; (c) the present given and family name, all former given and family names and the date and place of birth of each person who consents in writing to become a company secretary; (d) the address of each person who is to be a director or company secretary on registration; (e) the address of the company's proposed registered office; (f) for a public company-the proposed opening hours of its registered office (if they are not the standard opening hours); (g) the address of the company's proposed principal place of business (if it is not the address of the proposed registered office); (h) for a company limited by shares or an unlimited company-the following: (i) the number and class of shares each member agrees in writing to take up; (ii) the amount (if any) each member agrees in writing to pay for each share; (iii) if that amount is not to be paid in full on registration-the amount (if any) each member agrees in writing to be unpaid on each share; (i) for a public company that is limited by shares or is an unlimited company, if shares will be issued for non-cash consideration-the prescribed particulars about the issue of the shares, unless the shares will be issued under a written contract and a copy of the contract is lodged with the application; (j) for a company limited by guarantee-the proposed amount of the guarantee that each member agrees to in writing. (3) If the company: (a) is to be a public company; and (b) is to have a constitution on registration; a copy of the constitution must be lodged before the registration day. (4) On the registration day, the body is taken: (a) to be registered as a company under this Act; and (b) to be registered in the State or Territory referred to in subsection (1). (5) The regulations may modify the operation of this Act to facilitate the registration of the company. (6) Without limiting subsection (5), the regulations may make provision in relation to: (a) the share capital of the company on registration; and (b) the issue of a certificate of registration on the basis of the company's registration. 5I Regulations may modify operation of the Corporations legislation to deal with interaction between that legislation and State and Territory laws (1) The regulations may modify the operation of the Corporations legislation so that: (a) provisions of the Corporations legislation do not apply to a matter that is dealt with by a law of a State or Territory specified in the regulations; or (b) no inconsistency arises between the operation of a provision of the Corporations legislation and the operation of a provision of a State or Territory law specified in the regulations. (2) Without limiting subsection (1), regulations made for the purposes of that subsection may provide that the provision of the Corporations legislation: (a) does not apply to: (i) a person specified in the regulations; or (ii) a body specified in the regulations; or (iii) circumstances specified in the regulations; or (iv) a person or body specified in the regulations in the circumstances specified in the regulations; or (b) does not prohibit an act to the extent to which the prohibition would otherwise give rise to an inconsistency with the State or Territory law; or (c) does not require a person to do an act to the extent to which the requirement would otherwise give rise to an inconsistency with the State or Territory law; or (d) does not authorise a person to do an act to the extent to which the conferral of that authority on the person would otherwise give rise to an inconsistency with the State or Territory law; or (e) does not impose an obligation on a person to the extent to which complying with that obligation would require the person to not comply with an obligation imposed on the person under the State or Territory law; or (f) authorises a person to do something for the purposes of the Corporations legislation that the person: (i) is authorised to do under the State or Territory law; and (ii) would not otherwise be authorised to do under the Corporations legislation; or (g) will be taken to be satisfied if the State or Territory law is satisfied. (3) In this section: matter includes act, omission, body, person or thing. Part 1.2-Interpretation Division 1-General 6 Effect of this Part (1) The provisions of this Part have effect for the purposes of this Act, except so far as the contrary intention appears in this Act. (2) This Part applies for the purposes of: (a) Part 5.7; and (b) Chapter 5 as applying by virtue of Part 5.7; and (c) Part 9.2; as if a reference in this Part to a person or to a body corporate included a reference to a Part 5.7 body. (4) Where, because of Part 11.2, provisions of this Act, as in force at a particular time, continue to apply: (a) in relation to someone or something; or (b) for particular purposes; then, for the purposes of those provisions as so applying: (c) this Part as in force at that time continues to have effect; and (d) this Part as in force at a later time does not have effect. 7 Location of other interpretation provisions (1) Most of the interpretation provisions for this Act are in this Part. (2) However, interpretation provisions relevant only to Chapter 7 are to be found at the beginning of that Chapter. (3) Also, interpretation provisions relevant to a particular Part, Division or Subdivision may be found at the beginning of that Part, Division or Subdivision. (4) Occasionally, an individual section contains its own interpretation provisions, not necessarily at the beginning. 9 Dictionary Unless the contrary intention appears: AASB means the Australian Accounting Standards Board. ABN (short for "Australian Business Number") has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999. Aboriginal and Torres Strait Islander corporation means a corporation registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006. accounting standard means: (a) an instrument in force under section 334; or (b) a provision of such an instrument as it so has effect. ACN (short for "Australian Company Number") is the number given by ASIC to a company on registration (see sections 118 and 601BD). acquire, in relation to financial products, when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7. act includes thing. administration, in relation to a company, has the meaning given by section 435C. administrator: (a) in relation to a body corporate but not in relation to a deed of company arrangement: (i) means an administrator of the body or entity appointed under Part 5.3A; and (iii) if 2 or more persons are appointed under that Part as administrators of the body or entity-has a meaning affected by paragraph 451A(2)(b); or (b) in relation to a deed of company arrangement: (i) means an administrator of the deed appointed under Part 5.3A; and (ii) if 2 or more persons are appointed under that Part as administrators of the deed-has a meaning affected by paragraph 451B(2)(b). admit to quotation: financial products are admitted to quotation on a market if the market operator has given unconditional permission for quotation of the financial products on the market. affairs, in relation to a body corporate, has, in the provisions referred to in section 53, a meaning affected by that section. affidavit includes affirmation. agency means an agency, authority, body or person. AGM means an annual general meeting of a company that section 250N requires to be held. agreement, in Chapter 6 or 7, means a relevant agreement. amount includes a nil amount and zero. ancillary offence, in relation to another offence, means an offence against: (a) section 5, 6, 7 or 7A of the Crimes Act 1914; or (b) subsection 86(1) of that Act by virtue of paragraph 86(1)(a) of that Act; being an offence that is related to that other offence. APRA means the Australian Prudential Regulation Authority. arbitrage transaction means a purchase or sale of financial products effected in the ordinary course of trading on a financial market together with an offsetting sale or purchase of those financial products effected at the same time, or at as nearly the same time as practicable, in the ordinary course of trading on another financial market for the purpose of obtaining a profit from the difference between the prices of those financial products in the 2 financial markets. ARBN (short for "Australian Registered Body Number") is the number given by ASIC to a registrable body on registration under Part 5B.2. arrangement, in Part 5.1, includes a reorganisation of the share capital of a body corporate by the consolidation of shares of different classes, by the division of shares into shares of different classes, or by both of those methods. ARSN (short for "Australian Registered Scheme Number") is the number given by ASIC to a registered scheme on registration (see section 601EB). ASIC means the Australian Securities and Investments Commission. ASIC Act means the Australian Securities and Investments Commission Act 2001 and includes the regulations made under that Act. ASIC database means so much of the national companies database kept by ASIC as consists of: (a) some or all of a register kept by ASIC under this Act; or (b) information set out in a document lodged under this Act; but does not include ASIC's document imaging system. assets, in relation to a financial services licensee, means all the licensee's assets (whether or not used in connection with the licensee's Australian financial services licence). associate has the meaning given by sections 10 to 17. associated entity has the meaning given by section 50AAA. AUASB means the Auditing and Assurance Standards Board. audit means an audit conducted for the purposes of this Act and includes a review of a financial report for a half-year conducted for the purposes of this Act. audit activity: see the definition of engage in audit activity. audit company means a company that consents to be appointed, or is appointed, as auditor of a company or registered scheme. audit-critical employee, in relation to a company, or the responsible entity for a registered scheme, that is the audited body for an audit, means a person who: (a) is an employee of the company or of the responsible entity for the registered scheme; and (b) is able, because of the position in which the person is employed, to exercise significant influence over: (i) a material aspect of the contents of the financial report being audited; or (ii) the conduct or efficacy of the audit. audited body, in relation to an audit of a company or registered scheme, means the company or registered scheme in relation to which the audit is, or is to be, conducted. audit firm means a firm that consents to be appointed, or is appointed, as auditor of a company or registered scheme. auditing standard means: (a) a standard in force under section 336; or (b) a provision of such a standard as it so has effect. auditor independence requirements of this Act means the requirements of Divisions 3, 4 and 5 of Part 2M.4. Australia, when used in a geographical sense, does not include an external Territory. Note: Paragraph 17(a) of the Acts Interpretation Act 1901 would otherwise provide that Australia included the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands. Australian ADI means: (a) an ADI (authorised deposit-taking institution) within the meaning of the Banking Act 1959; and (b) a person who carries on State banking within the meaning of paragraph 51(xiii) of the Constitution. Australian bank means an Australian ADI that is permitted under section 66 of the Banking Act 1959 to assume or use: (a) the word bank, banker or banking; or (b) any other word (whether or not in English) that is of like import to a word referred to in paragraph (a). Australian court means a federal court or a court of a State or Territory. Australian CS facility licence, when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7. Australian financial services licence, when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7. Australian law means a law of the Commonwealth or of a State or Territory. Australian market licence, when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7. Australian register of a foreign company means a branch register of members kept under section 601CM. authorised audit company means a company registered under Part 9.2A. authorised trustee corporation means a body corporate that is declared by the regulations to be an authorised trustee corporation for the purposes of the provision in which the expression appears. bank or banker includes, but is not limited to, a body corporate that is an ADI (authorised deposit-taking institution) for the purposes of the Banking Act 1959. banking corporation means a body corporate that carries on, as its sole or principal business, the business of banking (other than State banking not extending beyond the limits of the State concerned). begin, in relation to a winding up, has the meaning given by Division 1A of Part 5.6. benefit: (a) means any benefit, whether by way of payment of cash or otherwise; and (b) when used in Division 2 of Part 2D.2 (sections 200A to 200J)- means: (i) a payment or other valuable consideration; or (ii) an interest in property of any kind; or (iii) any other benefit. bid class of securities for a takeover bid is the class of securities to which the securities being bid for belong. bidder for a takeover bid means the person who makes or proposes to make, or each of the people who make or propose to make, the offers under the bid (whether personally or by an agent or nominee). Note: A person who announces a bid on behalf of another person is not making the bid, the other person is making the bid. bidder's statement means a bidder's statement under sections 636 and 637 as supplemented. bid period: (a) for an off-market bid-starts when the bidder's statement is given to the target and ends: (i) 1 month later if no offers are made under the bid; or (ii) at the end of the offer period; and (b) for a market bid-starts when the bid is announced to the relevant financial market and ends at the end of the offer period. Board, when used in Part 9.2, means the Companies Auditors and Liquidators Disciplinary Board. board or managerial office (when used in Division 2 of Part 2D.2 (sections 200A to 200J) in relation to a body corporate) means: (a) an office of director of the body corporate; and (b) any other office in connection with the management of the body corporate's affairs that is held by: (i) a person who also holds an office of director of the body corporate or a related body corporate; or (ii) a person who has held an office of director of the body corporate or a related body corporate at any time within the 12 months immediately before the loss of, or retirement from, that office. body means a body corporate or an unincorporated body and includes, for example, a society or association. body corporate: (a) includes a body corporate that is being wound up or has been dissolved; and (b) in this Chapter (except section 66A) and section 206E includes an unincorporated registrable body. body regulated by APRA has the meaning given by subsection 3(2) of the Australian Prudential Regulation Authority Act 1998. books includes: (a) a register; and (b) any other record of information; and (c) financial reports or financial records, however compiled, recorded or stored; and (d) a document; but does not include an index or recording made under Subdivision D of Division 5 of Part 6.5. borrower, in relation to a debenture, means the body that is or will be liable to repay money under the debenture. business affairs, in relation to an entity, has a meaning affected by sections 53AA, 53AB, 53AC and 53AD. business day means a day that is not a Saturday, a Sunday or a public holiday or bank holiday in the place concerned. buy-back by a company means the acquisition by the company of shares in itself. buy-back agreement by a company means an agreement by the company to buy back its own shares (whether the agreement is conditional or not). Capital Territory means the Australian Capital Territory and the Jervis Bay Territory. carry on has a meaning affected by Division 3. cash management trust interest means an interest that: (a) is an interest in a registered scheme; and (b) relates to an undertaking of the kind commonly known as a cash management trust. cause includes procure. certified means: (a) in relation to a copy of, or extract from, a document-certified by a statement in writing to be a true copy of, or extract from, the document; or (b) in relation to a translation of a document-certified by a statement in writing to be a correct translation of the document into English. charge means a charge created in any way and includes a mortgage and an agreement to give or execute a charge or mortgage, whether on demand or otherwise. chargeable matter has the same meaning as in the Corporations (Fees) Act 2001. chargee means the holder of a charge and includes a person in whose favour a charge is to be given or executed, whether on demand or otherwise, under an agreement. civil matter means a matter other than a criminal matter. civil penalty disqualification has the meaning given by subsection 91(4A). civil penalty order means any of the following: (a) a declaration of contravention under section 1317E; (b) a pecuniary penalty order under section 1317G; (c) a compensation order under section 1317H or 1317HA; (d) an order under section 206C disqualifying a person from managing corporations. civil penalty provision has the meaning given in subsection 1317E(1). class has: (b) in relation to shares or interests in a managed investment scheme-a meaning affected by section 57; and (c) when used in relation to securities for the purposes of Chapter 6, 6A or 6C-a meaning affected by subsection 605(2). clearing and settlement facility, when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7. close associate of a director means: (a) a relative or de facto spouse of the director; or (b) a relative of a spouse, or of a de facto spouse, of the director. coastal sea: (a) in relation to Australia-means: (i) the territorial sea of Australia; and (ii) the sea on the landward side of the territorial sea of Australia and not within the limits of a State or internal Territory; and includes the airspace over, and the sea-bed and subsoil beneath, any such sea; and (b) in relation to a State or Territory-means so much of the coastal sea of Australia as is within the area described in Schedule 1 to the Offshore Petroleum Act 2006 under the heading that refers to that State or Territory. commence, in relation to a winding up, has the meaning given by Division 1A of Part 5.6. commencement, in relation to an accounting standard, means: (a) in the case of an accounting standard as originally in effect- the time when the accounting standard took effect; or (b) in the case of an accounting standard as varied by a particular provision of an instrument made under section 334-the time when that provision took effect. Commission delegate has the same meaning as in the ASIC Act. committee of creditors, in relation to a company under administration, means a committee of creditors of the company appointed at a meeting convened under section 436E. Commonwealth authority means an authority or other body (whether incorporated or not) that is established or continued in existence by or under an Act. Companies and Unclaimed Moneys Special Account means the Account established under section 133 of the Australian Securities and Investments Commission Act 2001. company means a company registered under this Act and: (a) in Chapter 2K (other than sections 273A to 273E), includes a registrable body that is registered under Division 1 or 2 of Part 5B.2 of this Act; and (b) in sections 273A to 273E, includes a registered body that carries on business outside its place of origin; and (c) in Parts 5.7B and 5.8 (except sections 595 and 596), includes a Part 5.7 body; and (d) in Part 5B.1, includes an unincorporated registrable body. company limited by guarantee means a company formed on the principle of having the liability of its members limited to the respective amounts that the members undertake to contribute to the property of the company if it is wound up. company limited by shares means a company formed on the principle of having the liability of its members limited to the amount (if any) unpaid on the shares respectively held by them. compliance period for an infringement notice has the meaning given by section 1317DAA. condition, in relation to a licence, means a condition or restriction to which the licence is subject, or will be subject, as the case requires. connected entity, in relation to a corporation, means: (a) a body corporate that is, or has been, related to the corporation; or (b) an entity that is, or has been, connected (as defined by section 64B) with the corporation. consolidated entity means a company, registered managed investment scheme or disclosing entity together with all the entities it is required by the accounting standards to include in consolidated financial statements. constitution means (depending on the context): (a) a company's constitution, which (where relevant) includes rules and consequential amendments that are part of the company's constitution because of the Life Insurance Act 1995; or (b) a managed investment scheme's constitution; or (c) in relation to any other kind of body: (i) the body's charter or memorandum; or (ii) any instrument or law (other than this Act) constituting, or defining the constitution of, the body or governing the activities of the body or its members. Note: The Life Insurance Act 1995 has rules about how benefit fund rules become part of a company's constitution. They override this Act. See Subdivision 2 of Division 4 of Part 2A of that Act. continuous disclosure notice means: (a) a document used to notify a market operator of information relating to a body under provisions of the market's listing rules referred to in subsection 674(1); or (b) a document under section 675 lodged in relation to the body. continuously quoted securities are securities that: (a) are in a class of securities that were quoted ED securities at all times in the 3 months before the date of the prospectus or Product Disclosure Statement; and (b) are securities of an entity in relation to which the following subparagraphs are satisfied during the shorter of the period during which the class of securities were quoted, and the period of 12 months before the date of the prospectus or Product Disclosure Statement: (i) no exemption under section 111AS or 111AT, or modification under section 111AV, covered the entity, or any person as director or auditor of the entity; (ii) no exemption under paragraph 741(1)(a), or declaration under paragraph 741(1)(b), relating to a provision that is a disclosing entity provision for the purposes of Division 4 of Part 1.2A covered the entity, or any person as director or auditor of the entity; (iii) no order under section 340 or 341 covered the entity, or any person as director or auditor of the entity; and, for these purposes, securities are not in different classes merely because of a temporary difference in the dividend, or distribution rights, attaching to the securities or because different amounts have been paid up on the securities. contribution plan means a plan in respect of which the following conditions are met: (a) regular deductions are made from the wages or salary of an employee or director (the contributor) to acquire financial products that are offered for issue or sale to the contributor under an eligible employee share scheme; (b) the deductions are authorised by the contributor in a form which is included in, or accompanies, the disclosure document or the Product Disclosure Statement for the scheme; (c) before acquiring the financial products under the scheme, the deductions are held on trust in an account with an Australian ADI that is kept solely for that purpose; (d) the contributor may elect to discontinue the deductions at any time; (e) if the contributor so elects, the amount of the deductions standing, at that time, to the credit of the account for the contributor, and any interest on that amount, is repaid to the contributor; (f) the scheme does not involve the offer to the contributor of a loan or similar financial assistance for the purpose of, or in connection with, the acquisition of the financial products that are offered under the scheme. contributory means: (a) in relation to a company (other than a no liability company): (i) a person liable as a member or past member to contribute to the property of the company if it is wound up; and (ii) for a company with share capital-a holder of fully paid shares in the company; and (iii) before the final determination of the persons who are contributories because of subparagraphs (i) and (ii)-a person alleged to be such a contributory; and (b) in relation to a Part 5.7 body: (i) a person who is a contributory by virtue of section 586; and (ii) before the final determination of the persons who are contributories by virtue of that section-a person alleged to be such a contributory; and (c) in relation to a no liability company-subject to section 385, a member of the company. control has the meaning given by section 50AA. control day, in relation to a controller of property of a corporation, means: (a) unless paragraph (b) applies: (i) in the case of a receiver, or receiver and manager, of that property-the day when the receiver, or receiver and manager, was appointed; or (ii) in the case of any other person who is in possession, or has control, of that property for the purpose of enforcing a charge-the day when the person entered into possession, or took control, of property of the corporation for the purpose of enforcing that charge; or (b) if the controller became a controller of property of the corporation: (i) to act with an existing controller of such property; or (ii) in place of a controller of such property who has died or ceased to be a controller of such property; the day that is, because of any other application or applications of this definition, the control day in relation to the controller referred to in subparagraph (i) or (ii). controller, in relation to property of a corporation, means: (a) a receiver, or receiver and manager, of that property; or (b) anyone else who (whether or not as agent for the corporation) is in possession, or has control, of that property for the purpose of enforcing a charge; and has a meaning affected by paragraph 434F(b) (which deals with 2 or more persons appointed as controllers). convertible note has the same meaning as in Division 3A of Part III of the Income Tax Assessment Act 1936. convertible securities: securities are convertible into another class of securities if the holder may have the other class of securities issued to them by the exercise of rights attached to those securities. An option may be a convertible security even if it is non-renounceable. corporation has the meaning given by section 57A. corporation/scheme civil penalty provision has the meaning given by section 1317DA. Corporations legislation means: (a) this Act; and (b) the ASIC Act; and (c) rules of court made by the Federal Court, the Supreme Court of the Capital Territory, or the Family Court, because of a provision of this Act; and (d) rules of court applied by the Supreme Court, or a State Family Court, of a State, or by the Supreme Court of the Northern Territory when exercising jurisdiction conferred by Division 1 of Part 9.6A (including jurisdiction conferred by virtue of any previous application or applications of this paragraph). court has the meaning given by section 58AA. Court has the meaning given by section 58AA. court of summary jurisdiction means any justice or justices of the peace or other magistrate sitting as a court for the making of summary orders or the summary punishment of offences: (a) under a law of the Commonwealth or of a State or Territory; or (b) by virtue of his or her commission or their commissions. creditors' voluntary winding up means a winding up under Part 5.5, other than a members' voluntary winding up. current market bid price for securities covered by a market bid is the price specified in the announcement of the bid as increased or decreased during the offer period. daily newspaper means a newspaper that is ordinarily published on each day that is a business day in the place where the newspaper is published, whether or not the newspaper is ordinarily published on other days. date of a takeover bid is: (a) for an off-market bid-the date on which offers are first made under the bid; or (b) for a market bid-the date on which the bid is announced to the relevant financial market. deal: (a) in relation to a futures contract-has the meaning given by Division 4; and (b) in relation to securities-subject to subsection 93(4), means (whether as principal or agent) acquire, dispose of, subscribe for or underwrite the securities, or make or offer to make, or induce or attempt to induce a person to make or to offer to make, an agreement: (i) for or with respect to acquiring, disposing of, subscribing for or underwriting the securities; or (ii) the purpose or purported purpose of which is to secure a profit or gain to a person who acquires, disposes of, subscribes for or underwrites the securities or to any of the parties to the agreement in relation to the securities. dealing, in relation to financial products, when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7. debenture of a body means a chose in action that includes an undertaking by the body to repay as a debt money deposited with or lent to the body. The chose in action may (but need not) include a charge over property of the body to secure repayment of the money. However, a debenture does not include: (a) an undertaking to repay money deposited with or lent to the body by a person if: (i) the person deposits or lends the money in the ordinary course of a business carried on by the person; and (ii) the body receives the money in the ordinary course of carrying on a business that neither comprises nor forms part of a business of borrowing money and providing finance; or (b) an undertaking by an Australian ADI to repay money deposited with it, or lent to it, in the ordinary course of its banking business; or Note: This paragraph has an extended meaning in relation to Chapter 8 (see subsection 1200A(2)). (c) an undertaking to pay money under: (i) a cheque; or (ii) an order for the payment of money; or (iii) a bill of exchange; or (d) an undertaking to pay money under a promissory note that has a face value of at least $50,000; or (e) an undertaking by a body corporate to pay money to a related body corporate; or (f) an undertaking to repay money that is prescribed by the regulations. For the purposes of this definition, if a chose in action that includes an undertaking by a body to pay money as a debt is offered as consideration for the acquisition of securities under an off- market takeover bid, or is issued under a compromise or arrangement under Part 5.1, the undertaking is taken to be an undertaking to repay as a debt money deposited with or lent to the body. decision period, in relation to a chargee in relation to a charge on property of a company under administration, means the period beginning on the day when: (a) if notice of the appointment of the administrator must be given to the chargee under subsection 450A(3)-such notice is so given; or (b) otherwise-the administration begins; and ending at the end of the thirteenth business day after that day. declaration of indemnities, in relation to an administrator of a company under administration, means a written declaration: (a) stating whether the administrator has, to any extent, been indemnified (otherwise than under section 443D), in relation to that administration, for: (i) any debts for which the administrator is, or may become, liable under Subdivision A of Division 9 of Part 5.3A; or (ii) any debts for which the administrator is, or may become, liable under a remittance provision as defined in section 443BA; or (iii) his or her remuneration as determined under section 449E; and (b) if so, stating: (i) the identity of each indemnifier; and (ii) the extent and nature of each indemnity. declaration of relevant relationships has the meaning given by section 60. deed includes a document having the effect of a deed. deed of company arrangement means a deed of company arrangement executed under Part 5.3A or such a deed as varied and in force from time to time. de facto spouse, in relation to a person, means an individual of the opposite sex to that person who is living with that person as his or her spouse on a genuine domestic basis although not legally married to that person. defeating condition for a takeover bid means a condition that: (a) will, in circumstances referred to in the condition, result in the rescission of, or entitle the bidder to rescind, a takeover contract; or (b) prevents a binding takeover contract from resulting from an acceptance of the offer unless or until the condition is fulfilled. defect, in relation to a statutory demand, includes: (a) an irregularity; and (b) a misstatement of an amount or total; and (c) a misdescription of a debt or other matter; and (d) a misdescription of a person or entity. deregistered means: (a) in relation to a company-deregistered under Chapter 5A; and (b) in relation to any other body corporate-deregistered in a way that results in the body corporate ceasing to exist. derivative, when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7. director of a company or other body means: (a) a person who: (i) is appointed to the position of a director; or (ii) is appointed to the position of an alternate director and is acting in that capacity; regardless of the name that is given to their position; and (b) unless the contrary intention appears, a person who is not validly appointed as a director if: (i) they act in the position of a director; or (ii) the directors of the company or body are accustomed to act in accordance with the person's instructions or wishes. Subparagraph (b)(ii) does not apply merely because the directors act on advice given by the person in the proper performance of functions attaching to the person's professional capacity, or the person's business relationship with the directors or the company or body. Note: Paragraph (b)-Contrary intention-Examples of provisions for which a person referred to in paragraph (b) would not be included in the term "director" are: 1. section 249C (power to call meetings of a company's members) 2. subsection 251A(3) (signing minutes of meetings) 3. section 205B (notice to ASIC of change of address). disclosing entity has the meaning given by section 111AC. disclosure document for an offer of securities means: (a) a prospectus for the offer; or (b) a profile statement for the offer; or (c) an offer information statement for the offer. dispose has a meaning affected by the following paragraphs: (a) when used in relation to financial products in a provision outside Chapter 7, otherwise than in a situation to which paragraph (b) applies, dispose has the same meaning as it has in Chapter 7; (b) for the purposes of Chapter 6, a person who has a relevant interest in securities disposes of the securities if, and only if, they cease to have a relevant interest in the securities. domestic corporation means a corporation that is incorporated or formed in Australia or an external Territory. ED securities has the meaning given by section 111AD. eligible applicant, in relation to a corporation, means: (a) ASIC; or (b) a liquidator or provisional liquidator of the corporation; or (c) an administrator of the corporation; or (d) an administrator of a deed of company arrangement executed by the corporation; or (e) a person authorised in writing by ASIC to make: (i) applications under the Division of Part 5.9 in which the expression occurs; or (ii) such an application in relation to the corporation. eligible employee creditor, in relation to a company, means a creditor whose debt or claim would, in a winding up of the company, be payable in priority to other unsecured debts and claims in accordance with paragraph 556(1)(e), (g) or (h) or section 560 or 561. eligible employee share scheme means an employee share scheme for a body corporate in respect of which the following conditions are met: (a) the scheme is offered only to employees or directors mentioned in paragraph (a) of the definition of employee share scheme; (b) the financial products that are offered under the scheme are offered: (i) under a disclosure document or Product Disclosure Statement; or (ii) without disclosure under Part 6D.2 in accordance with subsection 708(12); (c) the financial products which may be acquired under the scheme are the following: (i) fully paid ordinary shares; (ii) options, offered for no more than nominal consideration, for the issue or transfer of fully paid ordinary shares; (iii) units in fully paid ordinary shares. eligible money market dealer means a body corporate in respect of which a declaration is in force under section 65. emoluments means the amount or value of any money, consideration or benefit given, directly or indirectly, to a director of a body corporate in connection with the management of affairs of the body or of any holding company or subsidiary of the body, whether as a director or otherwise, but does not include amounts in payment or reimbursement of out-of-pocket expenses incurred for the benefit of the body. employee share scheme for a company means a scheme under which shares (or units in shares or options to acquire unissued shares) in the company or a holding company may be acquired: (a) by, or for the benefit of: (i) employees of the company, or of a related body corporate; or (ii) directors of the company, or of a related body corporate, who hold a salaried employment or office in the company or in a related body corporate; or (b) by a corporation all of whose members are: (i) employees of the company, or of a related body corporate; or (ii) directors of the company, or of a related body corporate, who hold a salaried employment or office in the company or in a related body corporate. employee share scheme buy-back means a buy-back under a scheme that: (a) has as its purpose the acquisition of shares in a company by, or on behalf of: (i) employees of the company, or of a related body corporate; or (ii) directors of the company, or a related body corporate, who hold a salaried employment or office in the company or in a related body corporate; and (b) has been approved by the company in general meeting. enforce, in relation to a charge on property of a company under administration, includes: (a) appoint a receiver of property of the company under a power contained in an instrument relating to the charge; or (b) obtain an order for the appointment of a receiver of such property for the purpose of enforcing the charge; or (c) enter into possession, or assume control, of such property for that purpose; or (d) appoint a person so to enter into possession or assume control (whether as agent for the chargee or for the company); or (e) exercise, as chargee or as a receiver or person so appointed, a right, power or remedy existing because of the charge, whether arising under an instrument relating to the charge, under a written or unwritten law, or otherwise. enforcement process, in relation to property, means: (a) execution against that property; or (b) any other enforcement process in relation to that property that involves a court or a sheriff. engage in audit activity: an individual auditor, audit firm or audit company engages in audit activity in relation to an audited body for an audit if the individual auditor, audit firm or audit company: (a) consents to be appointed as auditor of the audited body for a financial year; or (b) acts as the auditor of the audited body for a financial year; or (c) prepares a report in relation to the audited body that is required by this Act to be prepared by: (i) a registered company auditor; or (ii) an auditor of the audited body in relation to a financial year or half-year. engage in conduct means: (a) do an act; or (b) omit to perform an act. enter into: a person who: (a) enters into, or becomes a party to, a relevant agreement in relation to voting shares or other securities; or