Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) The following table specifies the steps required for, and the sections that apply to, the different types of buy - back.
Procedures | minimum holding | employee share | on - market | selective buy - back | ||||
|
| within 10/12 limit | over 10/12 limit | within 10/12 limit | over 10/12 limit | within 10/12 limit | over 10/12 limit |
|
ordinary resolution | -- | -- | yes | -- | yes | -- | yes | -- |
special/unanimous resolution [ 257D] | -- | -- | -- | -- | -- | -- | -- | yes |
-- | -- | -- | -- | -- | yes | yes | yes | |
14 days notice [257F] | -- | yes | yes | yes | yes | yes | yes | yes |
disclose relevant information when offer made [257G] | -- | -- | -- | -- | -- | yes | yes | yes |
cancel shares [257H] | yes | yes | yes | yes | yes | yes | yes | yes |
notify cancellation to ASIC [254Y] | yes | yes | yes | yes | yes | yes | yes | yes |
Note: Subsections (2) and (3) of this section explain what an equal access scheme is. The 10/12 limit is the 10% in 12 months limit laid down in subsections (4) and (5). Subsections (6) and (7) of this section explain what an on - market buy - back is. See section 9 for definitions of minimum holding buy - back , employee share buy - back and selective buy - back .
(2) An equal access scheme is a scheme that satisfies all the following conditions:
(a) the offers under the scheme relate only to ordinary shares;
(b) the offers are to be made to every person who holds ordinary shares to buy back the same percentage of their ordinary shares;
(c) all of those persons have a reasonable opportunity to accept the offers made to them;
(d) buy - back agreements are not entered into until a specified time for acceptances of offers has closed;
(e) the terms of all the offers are the same.
(3) In applying subsection (2), ignore:
(a) differences in consideration attributable to the fact that the offers relate to shares having different accrued dividend entitlements;
(b) differences in consideration attributable to the fact that the offers relate to shares on which different amounts remain unpaid;
(c) differences in the offers introduced solely to ensure that each shareholder is left with a whole number of shares.
10/12 limit
(4) The 10/12 limit for a company proposing to make a buy - back is 10% of the smallest number, at any time during the last 12 months, of votes attaching to voting shares of the company.
Exceeding the 10/12 limit
(5) A proposed buy - back would exceed the 10/12 limit if the number of votes attaching to:
(a) all the voting shares in the company that have been bought back during the last 12 months; and
(b) the voting shares that will be bought back if the proposed buy - back is made;
would exceed the 10/12 limit.
On - market buy - backs
(6) A buy - back is an on - market buy - back if it results from an offer made by a listed corporation on a declared financial market in the ordinary course of trading on that market.
(7) A buy - back by a company (whether listed or not) is also an on - market buy - back if it results from an offer made in the ordinary course of trading in a financial market outside Australia which ASIC declares in writing to be an approved overseas financial market for the purposes of this subsection. A buy - back by a listed company is an on - market buy - back under this subsection only if an offer to buy - back those shares is also made on a declared financial market at the same time.
(8) A declaration under subsection (7) may be subject to conditions. Notice of the making of the declaration must be published in the Gazette .