Corporations Act. Australia

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СКАЧАТЬ 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, 708, 708AA and 708A).

      (3A) For a company changing to a proprietary company, if any of the particulars in the register kept by the company under section 169 and mentioned in paragraph 178A(1)(b) are different from the particulars set out:

      (a) in the latest extract of particulars received by the company; or

      (b) if the company responded to the latest extract it received — in the company’s extract taken together with the company’s response to the extract;

      the application must set out those different particulars in addition to the other information required by this section.

      (3B) If the company has more than 20 members, the company is only required to set out the different particulars under subsection (3A) that relate to a person who is a top 20 member of a class of the company.

      Note: See also section 107.

      (3C) If subsection (3A) applies and any details mentioned in subsection 178C(1) are different from the details set out:

      (a) in the latest extract of particulars received by the company; or

      (b) if the company responded to the latest extract it received — in the company’s extract taken together with the company’s response to the extract;

      the application must set out those different details as well.

      (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.

      (6) An offence based on subsection (5) is an offence of strict liability.

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

      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 СКАЧАТЬ