Professional Documents
Culture Documents
NB
(nota
bene;
take
special
note)
-‐
A
co.
is
only
allowed
to
issue
shares
at
a
discount
of
a
class
already
issued.
The
co.
is
still
bound
by
the
rule
in
Ooregum’s
case
in
relation
to
the
first
issue
of
shares
of
any
class.
In
practice,
it
is
possible
to
avoid
the
strict
effect
of
this
rule
by
exchanging
shares
for
a
consideration
other
than
cash
e.g.
property
which
is
overvalued
as
Courts
will
not
usually
enquire
whether
the
non-‐cash
consideration
is
equal
to
the
nominal
value
-‐
Section
54(3)
and
(5)
CA’65
Re
Wragg.
-‐ Conditions
(i) It
must
be
a
public
co.
with
a
share
capital.
(ii)The
AA
of
the
co.
must
permit
such
a
purchase.
(iii)The
co.
must
be
solvent
at
the
date
of
the
purchase
and
must
not
become
insolvent
as
a
result
of
the
purchase.
(iv)The
purchase
must
be
made
through
the
stock
exchange
on
which
the
shares
are
quoted
and
must
be
in
accordance
with
the
relevant
rules
of
the
stock
exchange.
(v)The
purchase
must
be
made
in
good
faith
and
in
the
interests
of
the
co.
-‐ Advantages
(i) It
may
allow
for
majority
s/holders
to
retain
control
of
the
co.
(ii)It
is
likely
to
stabilize
share
prices
on
the
stock
market,
especially
during
times
of
economic
downturn.
(iii)It
may
prevent
excessive
speculation.
(iv)It
may
help
to
prevent
potential
take-‐overs
of
the
co.
(v)It
would
strengthen
investor
confidence
in
the
co.
Differences
between
Share
Buy
Back
and
Reduction
of
Capital
Member has the option of refusing to sell. Shares can be canceled against member’s will.
Paid back to the members. May not involve a payment to members.
General
Rule
-‐
Section
67(1)
CA’65 Exceptions
-‐
Section
67(2)
CA’65
-‐ A
co.
cannot
purchase
its
own
shares.
(i) Where
the
lending
of
money
is
part
of
the
-‐ Trevor
v
Whitworth ordinary
business
of
a
co.,
the
co.
may
lend
money
-‐ Purpose:
to
ensure
that
a
co.’s
share
capital
is
in
the
ordinary
course
of
its
business.
Thus,
banks,
properly
maintained. financial
institutions
and
other
money
lending
institutions
are
exempted
from
this
prohibition,
-‐ A
co.
cannot
give,
whether
directly
or
indirectly,
provided
that
they
act
in
the
ordinary
course
of
and
by
means
of
a
loan,
guarantee
or
the
provision
their
business.
of
security
or
otherwise,
any
financial
assistance
for
the
purpose
of,
or
in
connection
with
a
purchase,
or
(ii)The
provision
of
money
for
the
purchase
of
,
or
subscription,
made
or
to
be
made
by
any
person
of,
subscription
for,
fully
paid
shares
in
the
co.
or
its
or
for
any
shares
in
the
co.
or,
where
the
co
is
a
holding
co.,
if
the
purchase
or
subscription
is
by
subsidiary,
in
its
holding
co,
or
in
any
way
purchase
trustees
for
the
benefit
of
employees,
including
deal
in
or
lend
money
on
its
own
shares.
directors
holding
a
salaried
employment.
Thus
companies
which
have
an
employee
share
scheme
-‐ A
co.
cannot
purchase
its
own
shares
and,
it
cannot
set
up
for
the
benefit
of
their
employees
may
give
give
a
loan
to
any
person
to
enable
that
person
to
financial
assistance
to
the
trustees
of
that
scheme
purchase
its
shares,
or
give
a
guarantee
or
provide
to
enable
those
trustees
to
purchase
fully
paid
security
in
respect
of
a
loan
made
by
some
other
shares
in
the
co.
to
be
held
by
them
for
the
party
to
enable
a
person
to
purchase
its
shares.
benefit
of
employees.
-‐ Selangor
United
Rubber
Estate
Ltd
v
Craddock
-‐ Chung
Khiaw
Bank
v
Hotel
Rasa
Sayang
(M)
Sdn
Bhd (iii)The
giving
of
financial
assistance
to
employees
-‐ Kidurong
Land
Sdn
Bhd
v
Lim
Gaik
Hua
&
Others (excluding
directors)
to
enable
them
to
purchase
fully
paid
shares
in
the
co.
or
its
holding
co.
This
exception
allows
co.s
to
assist
employees
by
directly
providing
financial
assistance
to
them
to
What
is
Financial
Assistance? enable
them
to
purchase
the
co.’s
shares.
Constitutes: However,
this
exemption
does
not
apply
to
1.
A
loan
(direct
FA) directors.
As
such,
even
if
the
directors
are
2. A
guarantee,
indemnity,
security
for
a
loan
(indirect
FA). employees
because
they
have
service
contracts
3. The
purchase
of
such
rights
from
a
3rd
party
(indirect
FA). with
the
co.,
they
cannot
take
advantage
of
this
E.g.
exception.
(i) A
co.
lending
money
to
a
person
to
be
used
to
acquire
shares
in
the
co.
or
holding
co.
(ii)A
co
guaranteeing
a
loan
by
a
3rd
party
to
be
used
to
acquire
shares
in
the
co.
(Chung
Khiaw
Bank
Ltd
v
Hotel
Breach
-‐
Section
67(3)
CA’65
Rasa
Sayang
Sdn
Bhd)
1. Imprisonment
of
5
years;
OR
2.Fine
up
to
RM100,000.