Corporations Act 2001

CHAPTER 2H - SHARES  

PART 2H.1 - ISSUING AND CONVERTING SHARES  

SECTION 254A   POWER TO ISSUE BONUS, PARTLY-PAID, PREFERENCE AND REDEEMABLE PREFERENCE SHARES  

254A(1)    
A company ' s power under section 124 to issue shares includes the power to issue:

(a)    bonus shares (shares for whose issue no consideration is payable to the issuing company); and

(b)    preference shares (including redeemable preference shares); and

(c)    partly-paid shares (whether or not on the same terms for the amount of calls to be paid or the time for paying calls).

Note 1: Subsections 246C(5) and (6) provide that in certain circumstances the issue of preference shares is taken to be a variation of class rights.

Note 2: Partly-paid shares are dealt with in sections 254M - 254N .

Note 3: On the issue of a bonus share there need not be any increase in the company ' s share capital.

254A(2)    
A company can issue preference shares only if the rights attached to the preference shares with respect to the following matters are set out in the company ' s constitution (if any) or have been otherwise approved by special resolution of the company:

(a)    repayment of capital;

(b)    participation in surplus assets and profits;

(c)    cumulative and non-cumulative dividends;

(d)    voting;

(e)    priority of payment of capital and dividends in relation to other shares or classes of preference shares.

254A(3)    
Redeemable preference shares are preference shares that are issued on the terms that they are liable to be redeemed. They may be redeemable:

(a)    at a fixed time or on the happening of a particular event; or

(b)    at the company ' s option; or

(c)    at the shareholder ' s option.

Note: Redeemable preference shares are dealt with in sections 254J - 254L .

SECTION 254B   TERMS OF ISSUE  

254B(1)    
A company may determine:

(a)    the terms on which its shares are issued; and

(b)    the rights and restrictions attaching to the shares.

Note 1: Details of any division of shares into classes or conversion of classes of shares must be given to ASIC by a notice in the prescribed form (see subsection 246F(1) ).

Note 2: For public companies, any document or resolution that attaches rights to shares or varies or cancels rights attaching to shares must be lodged with ASIC (see subsection 246F(3) ).

Note 3: Sections 246B - 246G provide safeguards in cases where class rights are cancelled or varied.

Note 4: The company cannot issue par value shares (see section 254C ) or bearer shares (see section 254F ).

Note 5: A CCIV may issue a share only if the share is referable to a sub-fund of the CCIV (see section 1230 ).

No liability companies - special terms of issue

254B(2)    
A share in a no liability company is issued on the following terms:

(a)    if a no liability company is wound up and a surplus remains, it must be distributed among the parties entitled to it in proportion to the number of shares held by them, irrespective of the amounts paid up on the shares; and

(b)    a member who is in arrears in payment of a call on a share, but whose share has not been forfeited, is not entitled to participate in the distribution on the basis of holding that share until the amount owing in respect of the call has been fully paid and satisfied.

Companies incorporated as no liability companies - special terms of issue

254B(3)    
If a company:

(a)    either:

(i) is a no liability company; or

(ii) was initially registered as a no liability company and has changed its status under section 162 to another type of company; and

(b)    ceases to carry on business within 12 months after its registration and is wound up;

shares issued for cash rank (to the extent of the capital contributed by subscribing shareholders) in the winding up in priority to shares issued to vendors or promoters, or both, for consideration other than cash.

254B(4)    
The holders of shares issued to vendors or promoters are not entitled to preference on the winding up of a company that:

(a)    is a no liability company; or

(b)    was initially registered as a no liability company and has changed its status under section 162 to another type of company.

This is so despite anything in the company ' s constitution or the terms on which the shares are on issue.

SECTION 254C  

254C   NO PAR VALUE SHARES  
Shares of a company have no par value.

Note: The Part 10.1 transitional provisions contain provisions that deal with the introduction of no par value shares. See also subsection 169(4).

SECTION 254D   PRE-EMPTION FOR EXISTING SHAREHOLDERS ON ISSUE OF SHARES IN PROPRIETARY COMPANY (REPLACEABLE RULE - SEE SECTION 135)  

254D(1)   [ Pre-emption]  

Before issuing shares of a particular class, the directors of a proprietary company must offer them to the existing holders of shares of that class. As far as practicable, the number of shares offered to each shareholder must be in proportion to the number of shares of that class that they already hold.

254D(2)   [ Statement of offer]  

To make the offer, the directors must give the shareholders a statement setting out the terms of the offer, including:

(a) the number of shares offered; and

(b) the period for which it will remain open.

254D(3)   [ Shares not taken up]  

The directors may issue any shares not taken up under the offer under subsection (1) as they see fit.

254D(4)   [ Authorisation]  

The company may by resolution passed at a general meeting authorise the directors to make a particular issue of shares without complying with subsection (1).

SECTION 254E   COURT VALIDATION OF ISSUE  

254E(1)    
On application by a company, a shareholder, a creditor or any other person whose interests have been or may be affected, the Court may make an order validating, or confirming the terms of, a purported issue of shares if:

(a)    the issue is or may be invalid for any reason; or

(b)    the terms of the issue are inconsistent with or not authorised by:

(i) this Act; or

(ii) another law of a State or Territory; or

(iii) the company ' s constitution (if any).

254E(2)    
On lodgment of a copy of the order with ASIC, the order has effect from the time of the purported issue.

SECTION 254F  

254F   BEARER SHARES AND STOCK MUST NOT BE ISSUED  

A company does not have the power to:

(a) issue bearer shares; or

(b) issue stock or convert shares into stock.

Note: The Part 10.1 transitionals contain provisions for the conversion of existing stock into shares.

SECTION 254G   CONVERSION OF SHARES  

254G(1)    
A company may:

(a)    convert an ordinary share into a preference share; and

(b)    convert a preference share into an ordinary share.

Note 1: The variation of class rights provisions (sections 246B - 246G ) will apply to the conversion.

Note 2: Section 1230C applies to a CCIV instead of this section.

254G(2)    
A company can convert ordinary shares into preference shares only if the holders ' rights with respect to the following matters are set out in the company ' s constitution (if any) or have been otherwise approved by special resolution of the company:

(a)    repayment of capital;

(b)    participation in surplus assets and profits;

(c)    cumulative and non-cumulative dividends;

(d)    voting;

(e)    

priority of payment of capital and dividends in relation to other shares or classes of preference shares.

254G(3)    
A share that is not a redeemable preference share when issued cannot afterwards be converted into a redeemable preference share.

SECTION 254H   RESOLUTION TO CONVERT SHARES INTO LARGER OR SMALLER NUMBER  

254H(1)    
A company may convert all or any of its shares into a larger or smaller number of shares by resolution passed at a general meeting.

Note 1: The variation of class rights provisions (sections 246B - 246G ) may apply to the conversion.

Note 2: Section 1230C applies to a CCIV instead of this section.

254H(2)    
The conversion takes effect on:

(a)    the day the resolution is passed; or

(b)    a later date specified in the resolution.

254H(3)    
Any amount unpaid on shares being converted is to be divided equally among the replacement shares.

254H(4)    
The company must lodge a copy of the resolution with ASIC within 1 month after it is passed.

254H(5)    

An offence based on subsection (4) is an offence of strict liability.

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