ASIC Form 281 Sets 14-Day Advance Notice Rules for Australian Share Buy-Backs

Key Takeaways

• ASIC's Form 281 requires companies to give advance notice of certain share buy-backs under section 257F(2)(b) of the Corporations Act 2001.
• The notice must be lodged at least 14 days before the relevant date, and which buy-back types trigger it depends on specific conditions.
• Missing the deadline or choosing the wrong procedure can compromise the validity of a buy-back, so compliance teams should confirm the lodgement logic before any transaction.

Deep Dive

ASIC's Form 281 requires companies to give advance notice of certain share buy-backs under section 257F(2)(b) of the Corporations Act 2001. The notice must be lodged at least 14 days before the relevant date, and which buy-back types trigger it depends on specific conditions. Missing the deadline or choosing the wrong procedure can compromise the validity of a buy-back, so compliance teams should confirm the lodgement logic before any transaction.

Form 281 is the "notice of intention" to carry out a buy-back. It must be signed by a director or secretary and records the buy-back type and the proposed dates: the agreement date, the on-market buy-back period, and, where the 10/12 limit is exceeded, the date of the approving resolution. The 10/12 limit is 10% of the smallest number of votes attaching to voting shares at any time in the last 12 months. The covered types are employee share scheme, on-market, equal access scheme, and selective buy-backs. Minimum holding buy-backs do not require the form. There is no lodging fee, and a form is not considered lodged until ASIC receives and accepts it as compliant with s1274(8).

The key timing requirement is lodgement at least 14 days before the relevant date. If the agreement is conditional on a resolution, the relevant date is the date the resolution is passed. Otherwise it is the date the agreement is entered into. For circular resolutions complying with s249A, use an estimated last signing date. Form 281 is required outright for employee share scheme buy-backs over the 10/12 limit and for on-market buy-backs over the limit. For the other categories it is required where the company gives short notice (less than 14 days) of a meeting and lodges the notice of meeting with Form 280 late (Note 1), or lodges the s257E documents less than 14 days before the relevant date (Note 2). Form 281 works alongside Form 280, Form 484 (cancellation notice, s254Y), the resolution requirements (ss257C and 257D), and the disclosure and share cancellation steps (ss257G and 257H).

Recommended actions: build a buy-back checklist that maps each buy-back type and 10/12 position to the required resolutions, forms, and lodgement dates. Calculate the 10/12 limit using the 12-month low of voting shares, and keep evidence of it. Work backward from the relevant date to set an internal lodgement deadline with a buffer for ASIC acceptance. Assign signing authority to a director or secretary, and coordinate Forms 280, 281, and 484 with the share registry and company secretarial teams. Also review ASIC Policy Statement 110 and the related information sheet.

Risk implications: late or missing notices create a corporate law compliance breach and may cause the buy-back to be delayed, challenged, or conducted outside the statutory procedure. This risks regulatory scrutiny and reputational harm, and for listed entities it may create market disclosure issues. Misclassifying the buy-back type or miscalculating the 10/12 limit is the most likely failure point. Overall impact is low for a template update but significant for any entity planning a buy-back.

Source: Australian Securities and Investments Commission