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Corporations Bill 2001

Part 2B.7 Changing company type

   

162   Changing company type

             (1)  A company may change to a company of a different type as set out in the following table by:

                     (a)  passing a special resolution resolving to change its type; and

                     (b)  complying with sections 163 and 164.

 

Allowed conversions

[operative table]

 

This type of company may change…

…to this type of company

1

proprietary company limited by shares

unlimited proprietary company

unlimited public company

public company limited by shares

2

unlimited proprietary company

proprietary company limited by shares (but only if, within the last 3 years, it was not a limited company that became an unlimited company)

public company limited by shares (but only if, within the last 3 years, it was not a limited company that became an unlimited company)

unlimited public company

3

public company limited by shares

unlimited public company

unlimited proprietary company

proprietary company limited by shares

no liability company (see subsection (2))

4

company limited by guarantee

public company limited by shares

unlimited public company

proprietary company limited by shares

unlimited proprietary company

5

unlimited public company

public company limited by shares (but only if, within the last 3 years, it was not a limited company that became an unlimited company)

proprietary company limited by shares (but only if, within the last 3 years, it was not a limited company that became an unlimited company)

unlimited proprietary company

6

public no liability company

public company limited by shares (but only if all the issued shares are fully paid up)

proprietary company limited by shares (but only if all the issued shares are fully paid up)

Note 1:       A public company seeking to change to a proprietary company must comply with the requirements for proprietary companies set out in section 113.

Note 2:       Other types of companies that were previously allowed can change type under the Part 10.1 transitionals.

             (2)  A public company limited by shares may only convert to a no liability company if:

                     (a)  the company’s constitution states that its sole objects are mining purposes; and

                     (b)  under the constitution the company has no contractual right to recover calls made on its shares from a shareholder who fails to pay them; and

                     (c)  all the company’s issued shares are fully paid up.

Note:          Section 9 defines mining purposes and minerals .

             (3)  The company must lodge a copy of the special resolution with ASIC within 14 days after it is passed.

             (4)  A special resolution to change an unlimited company that has share capital to a company limited by shares may also provide that a specified portion of its uncalled share capital may only be called up if the company becomes an externally-administered body corporate.

163   Applying for change of type

Lodging application

             (1)  To change its type, a company must lodge an application with ASIC.

Contents of the application

             (2)  The application must be accompanied by the following:

                     (a)  a copy of:

                              (i)  the special resolution that resolves to change the type of the company, specifies the new type and the company’s new name (if a change of name is necessary); and

                             (ii)  any other special resolution passed in connection with the change of type;

                     (b)  for a company limited by guarantee changing to a company limited by shares:

                              (i)  a statement signed by the directors of the company that in their opinion the company’s creditors are not likely to be materially prejudiced by the change of type and that sets out their reasons for that opinion; and

                             (ii)  any special resolution dealing with an issue of shares according to section 167;

                     (c)  for a company limited by shares or a company limited by guarantee changing to an unlimited company:

                              (i)  an assent to the change of type in the prescribed form signed by all the members of the company; and

                             (ii)  a statement signed by a director or a company secretary of the company that all the members of the company have signed the assent;

                     (d)  for a proprietary company changing to a public company:

                              (i)  a consolidated copy of the company’s constitution (if any) as at the date of lodgment; and

                             (ii)  a copy of each document (including an agreement or consent) or resolution that is necessary to ascertain the rights attached to issued or unissued shares of the company.

Note 1:       The company must lodge a copy of any special resolution modifying its constitution passed after the application is lodged (see subsection 136(5)).

Note 2:       The company must lodge information relating to any change of rights attached to its shares, or any division or conversion of its shares into new classes, occurring after the application is lodged (see section 246F).

Company limited by guarantee to company limited by shares

             (3)  If shares will be issued to persons under paragraph 166(2)(c) on the change of type from a company limited by guarantee to a company limited by shares, the application must state:

                     (a)  that the company has prepared a list that sets out the following details about each person to whom the shares will be issued:

                              (i)  name and address;

                             (ii)  the number and class of shares the person will take up;

                            (iii)  the amount (if any) the person will pay for the shares;

                            (iv)  the amount (if any) that will be unpaid on the shares; and

                     (b)  the number and class of shares those persons will take up; and

                     (c)  the amount (if any) those persons will pay for the shares; and

                    (ca)  the amount (if any) that will be unpaid on the shares; and

                     (d)  if the shares will be issued for non-cash consideration—the prescribed particulars about the issue of the shares, unless the shares will be issued under a written contract and a copy of the contract is lodged with the application; and

                     (e)  that each of those persons who is not a member of the company when the application is made consents in writing to the inclusion in the list of the details about them that are referred to in paragraph (a).

The shares may be issued to existing members only, to new members only or to existing and new members.

Note:          An offer of shares associated with a proposed change of type may need disclosure to investors under Part 6D.2 (see sections 706, 707 and 708).

             (4)  The application must be in the prescribed form.

             (5)  The company must have the consents referred to in paragraph (3)(e) (if any) when the application is lodged. The company must keep the consents.

164   ASIC changes type of company

             (1)  ASIC must give notice under subsection (3) that it intends to alter the details of the company’s registration if:

                     (a)  ASIC is satisfied that:

                              (i)  the application complies with section 163; and

                             (ii)  for an application by a company limited by guarantee to change to a company limited by shares—the company’s creditors are not likely to be materially prejudiced by the change; and

                     (b)  for an application by a company limited by guarantee to change to a company limited by shares that is accompanied by a copy of a special resolution dealing with an issue of shares according to section 167—ASIC is not of the opinion that the obligations that would attach to the shares are unreasonable compared with the obligations that attach to membership of the company limited by guarantee.

             (2)  To make a decision under subparagraph (1)(a)(ii), ASIC may direct the company in writing to:

                     (a)  notify some or all of its creditors of the proposed change in the way ASIC specifies; and

                     (b)  invite those creditors to make submissions to ASIC.

             (3)  The notice that ASIC intends to alter the details of the company’s registration must be:

                     (a)  included on ASIC database; and

                     (b)  published in the Gazette .

The notice must also state that ASIC will alter the details of the company’s registration 1 month after the notice has been published in the Gazette unless an order by a court or the Administrative Appeals Tribunal prevents it from doing so.

             (4)  Subject to an order made by a court or the Administrative Appeals Tribunal within that month, after that month has passed ASIC must alter the details of the company’s registration to reflect the company’s new type.

             (5)  A change of type under this section takes effect when ASIC alters the details of the company’s registration. Despite subsection 246D(3) and section 246E, a special resolution passed in connection with the change of type also takes effect when ASIC alters the details of the company’s registration.

             (6)  ASIC must give the company a new certificate of registration after it alters the details of the company’s registration. The company’s name is the name specified in the certificate of registration issued under this section.

Note:          For the evidentiary value of a certificate of registration, see subsection 1274(7A).

             (7)  If ASIC alters the details of a company’s registration under subsection (4), a court is not to make an order reversing the alteration of the details of the company’s registration.

Note:          The Administrative Appeals Tribunal cannot review the change of the company’s type once ASIC has issued a new certificate of registration to the company (see subsection 1274(7A) and paragraph 1317C(b)).

165   ASIC may direct a proprietary company to change to a public company in certain circumstances

             (1)  ASIC may direct a proprietary company in writing to change to a public company within 2 months if it is satisfied that the company has contravened section 113 (requirements for proprietary companies).

             (2)  The company must comply with the direction within 2 months after being given it by doing everything necessary to change to a public company under section 164.

             (3)  If a proprietary company does not comply with subsection (2), ASIC may change the company from a proprietary to a public company by altering the details of the company’s registration to reflect the company’s new type.

             (4)  A change of type under this section takes effect when ASIC alters the details of the company’s registration.

             (5)  ASIC must give the company a new certificate of registration after it alters the details of the company’s registration under subsection (3). The company’s name is the name specified in the certificate of registration issued under this section.

Note:          For the evidentiary value of a certificate of registration, see subsection 1274(7A).

166   Effect of change of type

             (1)  A change of type does not:

                     (a)  create a new legal entity; or

                     (b)  affect the company’s existing property, rights or obligations (except as against the members of the company in their capacity as members); or

                     (c)  render defective any legal proceedings by or against the company or its members.

             (2)  On the change of type of a company from a company limited by guarantee to a company limited by shares:

                     (a)  the liability of each member and past member as a guarantor on the winding up of the company is extinguished; and

                     (b)  the members cease to be members of the company; and

                     (c)  if shares are to be issued to a person as specified in the list referred to in subsection 163(3):

                              (i)  the shares are taken to be issued to that person; and

                             (ii)  the person is taken to have consented to be a member of the company; and

                            (iii)  the person becomes a member of the company.

Note:          The company must maintain a register of members that complies with subsection 169(3).

167   Issue of shares by company or holding company—company limited by guarantee changing to company limited by shares

             (1)  If:

                     (a)  a company limited by guarantee changes type under this Part to a company limited by shares; and

                     (b)  that company, or another company that beneficially owns all the shares in that company, issues shares to a person who was a member of that company immediately before the change of type took effect;

the person becomes a member of the company issuing the shares if:

                     (c)  the issue of the shares is in accordance with the special resolution that accompanied the application to change type under subparagraph 163(2)(a)(ii); and

                     (d)  the shares are fully paid up; and

                     (e)  the business, assets and liabilities of the issuing company (together with its subsidiaries) when the shares are issued are substantially the same as the business, assets and liabilities of the company changing type (together with its subsidiaries) immediately before the change of type took effect.

             (2)  If shares are issued according to this section, a court is not to make an order reversing the issue of the shares.

167AA   Application of Part to company limited both by shares and by guarantee

             (1)  A company limited both by shares and by guarantee may change to one of the following types of companies under this Part:

                     (a)  a proprietary company limited by shares;

                     (b)  a public company limited by shares;

                     (c)  a company limited by guarantee.

             (2)  This Part applies to the change with any modifications that are necessary.



 

Chapter 2C Registers

   

   

167A   Who is covered by this Chapter

             (1)  This Chapter covers:

                     (a)  all companies; and

                     (b)  all registered schemes.

             (2)  A registered scheme’s responsible entity:

                     (a)  must perform the obligations imposed under this Chapter in respect of the scheme; and

                     (b)  may exercise the powers given by this Chapter in respect of the scheme.

168   Registers to be maintained

             (1)  A company or registered scheme must set up and maintain:

                     (a)  a register of members (see section 169); and

                     (b)  if the company or scheme grants options over unissued shares or interests—a register of option holders and copies of options documents (see section 170); and

                     (c)  if the company issues debentures—a register of debenture holders (see section 171).

Note 1:       See also section 271 (register of charges).

Note 2:       The registers may be kept on computer (see section 1306).

             (2)  For the purposes of this Chapter, choses in action (including an undertaking) that fall into one of the exceptions in paragraphs (a), (b), (e) and (f) of the definition of debenture in section 9 must also be entered into the register of debenture holders.

169   Register of members

General requirements

             (1)  The register of members must contain the following information about each member:

                     (a)  the member’s name and address;

                     (b)  the date on which the entry of the member’s name in the register is made.

Index to register

             (2)  If the company or scheme has more than 50 members, the company or scheme must include in the register an up-to-date index of members’ names. The index must be convenient to use and allow a member’s entry in the register to be readily found. A separate index need not be included if the register itself is kept in a form that operates effectively as an index.

Companies with share capital

             (3)  If the company has a share capital, the register must also show:

                     (a)  the date on which every allotment of shares takes place; and

                     (b)  the number of shares in each allotment; and

                     (c)  the shares held by each member; and

                     (d)  the class of shares; and

                     (e)  the share numbers (if any), or share certificate numbers (if any), of the shares; and

                      (f)  the amount unpaid on the shares (if any).

Note 1:       Transfers of shares are entered in the register under section 1092. Section 1091C deals with the registration of trustees etc. on the death, incapacity or bankruptcy of the shareholder.

Note 2:       For the treatment of joint holders see subsection (8).

             (4)  The register does not have to show the amount unpaid on the shares (see paragraph (1)(f)) if:

                     (a)  all of the company’s shares were issued before 1 July 1998 ; and

                     (b)  the register continues to show the par values of the shares as they were immediately before 1 July 1998.

             (5)  The register does not have to show the amount unpaid on the shares (see paragraph (1)(f)) if:

                     (a)  all of the company’s shares were issued before 1 July 1998 ; and

                     (b)  the company is not a listed company.

Non-beneficial ownership—companies other than listed companies

          (5A)  The register of a company that:

                     (a)  has a share capital; and

                     (b)  is neither a listed company (within the meaning of section 603) nor a company covered by an order under section 707;

must indicate any shares that a member does not hold beneficially.

Note:          See also section 1096A (in particular, subsection 1096A(9) which contains relevant presumptions about beneficial ownership).

             (6)  In deciding for the purposes of subsection (5) whether a member holds shares beneficially or non-beneficially, the company is to have regard only to information in notices given to the company under section 1096A, 672B or 672C.

Registered schemes

          (6A)  The register of a registered scheme must also show:

                     (a)  the date on which every issue of interests takes place; and

                     (b)  the number of interests in each issue; and

                     (c)  the interests held by each member; and

                     (d)  the class of interests; and

                     (e)  the amount paid, or agreed to be considered as paid, on the interests.

Former members

             (7)  A register of members must also show:

                     (a)  the name and details of each person who stopped being a member of the company or scheme within the last 7 years; and

                     (b)  the date on which the person stopped being a member.

The company or scheme may keep these entries separately from the rest of the register.

Joint holders

             (8)  For the purposes of this section:

                     (a)  2 or more persons who jointly hold shares in the company or interests in the scheme are taken to be a single member of the company or scheme in relation to those shares or interests; and

                     (b)  2 or more persons who have given a guarantee jointly are taken to be a single member of the company.

They may also be members of the company or scheme because of shares or interests that they hold, or a guarantee that they have given, in their own right or jointly with others.

170   Register of option holders and copies of options documents

             (1)  The register of option holders must contain the following information about each holder of options over unissued shares in the company or unissued interests in the scheme:

                     (a)  the option holder’s name and address;

                     (b)  the date on which the entry of the option holder’s name in the register is made;

                     (c)  the date of grant of the options;

                     (d)  the number and description of the shares or interests over which the options were granted;

                     (e)  either:

                              (i)  the period during which the options may be exercised; or

                             (ii)  the time at which the options may be exercised;

                      (f)  any event that must happen before the options can be exercised;

                     (g)  any consideration for the grant of the options;

                     (h)  any consideration for the exercise of the options or the method by which that consideration is to be determined.

Because it is a register of the holders of options that are still exercisable, the register must be updated whenever options are exercised or expire.

             (2)  Information about the grant of an option must be entered in the register within 14 days after the grant of the option.

Copies of options documents

             (3)  The company or scheme must keep with the register a copy of every document that grants an option over unissued shares or interests unless the option has been granted official quotation by a securities exchange.

             (4)  The company or scheme must change the register to reflect the transfer of an option only if the person transferring the option gives the company or scheme written notice of the transfer.

             (5)  A failure to comply with this section in relation to an option does not affect the option itself.

171   Register of debenture holders

             (1)  The register of debenture holders must contain the following information about each holder of a debenture:

                     (a)  the debenture holder’s name and address;

                     (b)  the amount of the debentures held.

Note:          See subsection 168(2) for the coverage of debenture .

             (2)  A company’s failure to comply with this section in relation to a debenture does not affect the debenture itself.

172   Location of registers

             (1)  A register kept under this Chapter that relates to a company must be kept at:

                     (a)  the company’s registered office; or

                     (b)  the company’s principal place of business in this jurisdiction; or

                     (c)  a place in this jurisdiction (whether of the company or of someone else) where the work involved in maintaining the register is done; or

                     (d)  another place in this jurisdiction approved by ASIC.

          (1A)  A register kept under this Chapter that relates to a registered scheme must be kept at:

                     (a)  the responsible entity’s registered office; or

                     (b)  an office at the responsible entity’s principal place of business in this jurisdiction; or

                     (c)  an office in this jurisdiction (whether of the responsible entity or of someone else) where the work involved in maintaining the register is done; or

                     (d)  another office in this jurisdiction approved by ASIC.

Notice to ASIC

             (2)  The company or scheme must lodge with ASIC a notice of the address at which the register is kept within 7 days after the register is:

                     (a)  established at an office that:

                              (i)  is not the registered office of the company or responsible entity; and

                             (ii)  is not at the principal place of business of the company or responsible entity in this jurisdiction; or

                     (b)  moved from one place to another.

Notice is not required for moving the register between the registered office and the principal place of business in this jurisdiction.

173   Right to inspect and get copies

Right to inspect

             (1)  A company or registered scheme must allow anyone to inspect a register kept under this Chapter. If the register is not kept on a computer, the person inspects the register itself. If the register is kept on a computer, the person inspects a hard copy of the information on the register unless the person and the company or the responsible entity agree that the person can access the information by computer.

Note:    Other provisions that are relevant to the inspection of registers are:

·        section 1300 (place and times for inspection)

·        section 1301 (the location of documents that are kept on computers)

·        section 1306 (form and evidentiary value).

Inspection fees

             (2)  A member of a company or a registered scheme, a registered option holder or a registered debenture holder may inspect a register kept under this Chapter without charge. Other people may inspect the register only on payment of any fee (up to the prescribed amount) required by the company or scheme.

Right to get copies

             (3)  The company or scheme must give a person a copy of the register (or a part of the register) within 7 days if the person:

                     (a)  asks for the copy; and

                     (b)  pays any fee (up to the prescribed amount) required by the company or scheme.

ASIC may allow a longer period to comply with the request. If the register is kept on a computer and the person asks for the data on floppy disk, the company or scheme must give the data to the person on floppy disk. The data must be readable but the floppy disk need not be formatted for the person’s preferred operating system.

             (4)  A person has the same rights to inspect, and obtain copies of, thedocuments kept under subsection 170(3) as the person has in respect of the register of option holders itself.

             (5)  The company is not required under subsection (1) or (3) to allow a person to see, or to give a person a copy that contains, share certificate numbers.

ASIC power in relation to register of debenture holders

             (6)  ASIC may exempt a company from complying with subsections (1) and (3) in relation to information in a register of debenture holders about debentures that are not convertible into shares or options over unissued shares.

             (7)  The exemption:

                     (a)  must be in writing; and

                     (b)  may be general or limited; and

                     (c)  may be subject to conditions specified in the exemption.

             (8)  ASIC must publish a copy of the exemption in the Gazette .

             (9)  A person must not contravene a condition of the exemption.

           (10)  On application by ASIC, the Court may order a person who contravenes a condition of the exemption to comply with the condition.

174   Agent’s obligations

                   A person who agrees to maintain a register on behalf of a company or registered scheme for the purposes of this Chapter must:

                     (a)  make the register available for inspection under this Chapter; and

                     (b)  provide the copies required by this Chapter.

175   Correction of registers

             (1)  A company or registered scheme or a person aggrieved may apply to the Court to have a register kept by the company or scheme under this Part corrected.

             (2)  If the Court orders the company or scheme to correct the register, it may also order the company or scheme to compensate a party to the application for loss or damage suffered.

             (3)  If:

                     (a)  the Court orders a company or scheme to correct its register of members; and

                     (b)  the company or scheme has lodged a list of its members with ASIC;

the company or scheme must lodge notice of the correction with ASIC.

176   Evidentiary value of registers

                   In the absence of evidence to the contrary, a register kept under this Chapter is proof of the matters shown in the register under this Chapter.

177   Use of information on registers

             (1)  A person must not:

                     (a)  use information about a person obtained from a register kept under this Chapter to contact or send material to the person; or

                     (b)  disclose information of that kind knowing that the information is likely to be used to contact or send material to the person;

unless that use or disclosure of the information is:

                     (c)  relevant to the holding of the interests recorded in the register or the exercise of the rights attaching to them; or

                     (d)  approved by the company or scheme.

Note:          An example of using information to send material to a person is putting a person’s name and address on a mailing list for advertising material.

             (2)  A person who contravenes subsection (1) is liable to compensate anyone else who suffers loss or damage because of the contravention.

             (3)  A person who makes a profit from a contravention of subsection (1) owes a debt to the company or the scheme. The amount of the debt is the amount of the profit.

             (4)  If a person owes a debt under subsection (3) to the scheme:

                     (a)  the debt may be recovered by the responsible entity as a debt due to it; and

                     (b)  any amount paid or recovered in respect of the debt forms part of the scheme property.

178   Overseas branch registers

             (1)  A company may keep a branch register of members at a place outside Australia.

             (2)  If a company keeps an overseas branch register under subsection (1):

                     (a)  the company must keep the branch register in the same manner as this Act requires the company to keep the register kept under section 169 (the principal register ); and

                     (b)  the company must enter in the principal register the details contained in the branch register; and

                     (c)  the company must distinguish shares that are registered in the branch register from the shares registered in the principal register.



 

Chapter 2D Officers and employees