The Pre-existing Company Provisions are a set of provisions prescribed in Table 3 of the Regulation under the Business Corporation Act that apply to all pre-existing companies.
The Pre-existing Company Provisions apply to all companies created before March 29, 2004. A company can remove the Pre-Existing Company Provisions by filing a Notice of Alteration. The company must confirm a statement on the Notice of Alteration that the company has resolved that none of the "Pre-existing Company Provisions" are to apply to the company.
P1 The majority of votes required for the company to pass a special resolution at a general meeting is 3/4 of the votes cast on the resolution.
P2 The majority of votes required for shareholders holding shares of a class or series of shares to pass a special separate resolution is 3/4 of the votes cast on the resolution.
P3 Section P2 does not apply in respect of any class or series of shares for which the memorandum or articles of the company, immediately before the coming into force of the Business Corporations Act, set out the majority of votes required for shareholders holding shares of that class or series of shares to pass a separate resolution.
P4 Section P5 does not apply if the memorandum or articles of the company, immediately before the coming into force of the Business Corporations Act, authorize the directors of the company to determine the price or consideration for shares without par value issued by the company.
P5 The issue price for a share without par value must be set by a special resolution.
P6 Sections P7 to P15 do not apply if
(a) the company was, immediately before the coming into force of the Business Corporations Act, a reporting company within the meaning of the Company Act, 1996, or
(b) the company is a public company.
P7 The directors must, before allotting shares,
(a) if the company has only one class of issued shares, offer to each shareholder the proportion of the shares to be allotted that the number of shares held by that shareholder bears to the total number of issued shares of the company, or
(b) if the company has more than one class of issued shares,
(i) offer to each shareholder who holds shares of the class of shares to be allotted the proportion of the shares to be allotted that the number of shares of that class of shares held by that shareholder bears to the total number of issued shares of that class of shares, and
(ii) subject to section P8, if any shares remain after the expiry of the offer referred to in subparagraph (i) of this paragraph, offer to each shareholder who holds shares of any class of shares other than the class of shares referred to in subparagraph (i), the proportion of the remaining shares to be allotted that the number of shares held by that shareholder that are not of the class of shares referred to in subparagraph (i) bears to the total number of issued shares of the company that are not of the class of shares referred to in subparagraph (i).
P8 An offer under section P7 (b) (ii) must be at a price per share that is not less than the price per share contained in the offer made under section P7 (b) (i), and the other terms of the offer under section P7 (b) (ii) must be substantially the same as the terms contained in the offer made under section P7 (b) (i).
P9 Section P7 does not apply to
(a) an allotment of shares to be issued for a consideration all or substantially all of which is other than money, or
(b) an allotment of shares under
(i) rights of conversion or exchange attached to securities of the company,
(ii) an amalgamation under Division 3 of Part 9 of the Business Corporations Act,
(iii) an arrangement under Division 5 of Part 9 of the Business Corporations Act,
(iv) a dividend payable in shares,
(v) an employee share ownership plan registered under Part 1 of the Employee Investment Act, or
(vi) an employee venture capital plan registered under Part 2 of the Employee Investment Act.
P10 An offer under section P7 must be made by notice that includes the time period within which the offer may be accepted, which time period must extend for at least 7 days after the offer is received.
P11 Subject to section P12, if an offer for shares under section P7 (a) or (b) (ii) has expired without having been accepted by, or has been declined in writing by, the shareholder to whom the offer was made, the directors may, for a period starting on the earlier of the expiry date for the offer and the date on which the offer is declined in writing and ending on the date that is 3 months after the expiry date for the offer, offer those shares to the persons and in the manner the directors may decide.
P12 The directors may make an offer under section P11 if
(a) there are no other shareholders who should first receive an offer for those shares, and
(b) the price per share in the offer made under section P11 is not less than the price per share contained in the offer made to the shareholder under section P7, and the other terms of the offer made under section P11 are substantially the same as the terms contained in the offer made to the shareholder under section P7.
P13 A shareholder may not waive generally the right to be offered shares referred to in section P7.
P14 Nothing in section P13 prevents a shareholder from waiving, in writing, the right to be offered a specified allotment of shares.
P15 A waiver referred to in section P14 is effective whether given before or after the allotment of the shares.
P16 Subject to sections P17 and P18, before the company purchases any of its shares, it must make an offer, to every shareholder who holds shares of the class or series of shares to be purchased, to purchase rateably from those shareholders the number of shares of that class or series of shares that the company wishes to purchase.
P17 Section P16 does not apply
(a) if the purchase is made through a securities exchange or a quotation and trade reporting system,
(b) if the shares are being purchased
(i) from an employee or former employee of the company or of an affiliate of the company, or
(ii) in the case of shares beneficially owned by an employee or former employee of the company or of an affiliate of the company, from the registered owner of the shares,
(iii) if, in respect of a specific share purchase, the company is, for that purchase, relieved of its obligation to comply with this section by a special separate resolution of the shareholders holding shares of the class or series of shares from which the shares are to be purchased,
(iv) if there are reasonable grounds for believing that the purchase price for the shares being purchased is not more than the fair market value of those shares,
(v) if the purchase is one made under section 227 (3) (g), Division 2 of Part 8 or Division 5 of Part 9 of the Business Corporations Act, or
(vi) to a purchase of fractional shares.
P18 A shareholder may, in writing, waive the right to receive an offer to purchase the shareholder's shares under section P16 and that waiver is effective whether given before or after the purchase by the company of any of its shares.
P19 Section P20 does not apply if the memorandum or articles of the company, immediately before the coming into force of the Business Corporations Act, provide that if the company redeems some but not all of the shares of a class or series of shares, that redemption need not be made rateably among every shareholder who holds shares of the class or series to be redeemed.
P20 If the company proposes to redeem some but not all of the shares of a particular class or series of shares, it must ensure that the redemption is made rateably among every shareholder who holds shares of the class or series of shares to be redeemed.
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