Section 328 B Corporations Act Pdf

Section 328 b corporations act pdf

Changes authorised by subpart 2 of Part 2 of the Legislation Act have been made in this official reprint. Registrar means the Registrar of Companies appointed in accordance with section 1. A reference in this Act to an address means,—. An example used in this Act is only illustrative of the provisions to which it relates.

It does not limit those provisions. If an example and a provision to which it relates are inconsistent, the provision prevails.

Section 328 b corporations act pdf

Where, pursuant to this Act, public notice must be given of any matter affecting a company, that notice must be given by publishing notice of the matter—. Where, pursuant to this Act, public notice must be given of any matter affecting an overseas company, that notice must be given by publishing notice of the matter—. However, subsections 1 and 2 do not apply to the public notice required to be given—.

Section 328 b corporations act pdf

The Registrar must ensure that a copy of the notice referred to in subsection 4 is available on an Internet site maintained by or on behalf of the Registrar, at all reasonable times, for a period of not less than 20 working days. The Secretary to the Treasury must ensure that a copy of the notice referred to in subsection 6 is available on an Internet site maintained by or on behalf of the Treasury, at all reasonable times, for a period of not less than 20 working days.

In determining, for the purposes of this section, the value of a contingent liability, account may be taken of—. For the purposes of this Act, a company is a subsidiary of another company if, but only if,—. In this section and sections 7 and 8 , the expression company includes a body corporate.

The transitional, savings, and related provisions set out in Schedule 1AA have effect according to their terms. Any person may, either alone or together with another person, apply for registration of a company under this Act.

An application for registration of a company under this Act must be sent or delivered to the Registrar, and must be—.

If no directors of the proposed company live in New Zealand, the application must, in relation to at least 1 director who lives in an enforcement country,—. As soon as the Registrar receives a properly completed application for registration of a company, the Registrar must—.

Section 328 b corporations act pdf

A certificate of incorporation of a company issued under section 13 is conclusive evidence that—. A company is a legal entity in its own right separate from its shareholders and continues in existence until it is removed from the New Zealand register. Subject to this Act, any other enactment, and the general law, a company has, both within and outside New Zealand,—. The constitution of a company may contain a provision relating to the capacity, rights, powers, or privileges of the company only if the provision restricts the capacity of the company or those rights, powers, and privileges.

No act of a company and no transfer of property to or by a company is invalid merely because the company did not have the capacity, the right, or the power to do the act or to transfer or take a transfer of the property. The fact that an act is not, or would not be, in the best interests of a company does not affect the capacity of the company to do the act.

A company or a guarantor of an obligation of a company may not assert against a person dealing with the company or with a person who has acquired property, rights, or interests from the company that—. Subsection 1 applies even though a person of the kind referred to in paragraphs b to e of that subsection acts fraudulently or forges a document that appears to have been signed on behalf of the company, unless the person dealing with the company or with a person who has acquired property, rights, or interests from the company has actual knowledge of the fraud or forgery.

A person is not affected by, or deemed to have notice or knowledge of the contents of, the constitution of, or any other document relating to, a company merely because—. The Registrar must not register a company under a name or register a change of the name of a company unless the name has been reserved. An application for reservation of the name of a company must be sent or delivered to the Registrar, and must be in the prescribed form.

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Subject to its constitution, an application to change the name of a company is not an amendment of the constitution of the company for the purposes of this Act.

As soon as the Registrar receives a properly completed application, the Registrar must—. If the Registrar believes on reasonable grounds that the name under which a company is registered should not have been reserved, the Registrar may serve written notice on the company to change its name by a date specified in the notice, being a date not less than 20 working days after the date on which the notice is served.

If the company does not change its name within the period specified in the notice, the Registrar may enter on the New Zealand register a new name for the company selected by the Registrar, being a name under which the company may be registered under this Part.

Section 328 b corporations act pdf

If the Registrar registers a new name under subsection 2 , the Registrar must issue a certificate of incorporation for the company recording the new name of the company, and section 23 4 applies in relation to the registration of the new name as if the name of the company had been changed under that section. For the purposes of subsections 1 and 2 and of section which relates to the manner in which a company may enter into contracts and other obligations , a company may use a generally recognised abbreviation of a word or words in its name if it is not misleading to do so.

If, within the period of 12 months immediately preceding the giving by a company of any public notice, the name of the company was changed, the company must ensure that the notice states—. If a company has a constitution, the company, the board, each director, and each shareholder of the company have the rights, powers, duties, and obligations set out in this Act except to the extent that they are negated or modified, in accordance with this Act, by the constitution of the company.

If a company does not have a constitution, the company, the board, each director, and each shareholder of the company have the rights, powers, duties, and obligations set out in this Act.

Subject to section 16 2 , the constitution of a company may contain—. The constitution of a company has no effect to the extent that it contravenes, or is inconsistent with, this Act. The shareholders of a company that does not have a constitution may, by special resolution, adopt a constitution for the company.

Within 10 working days of the adoption of a constitution by a company, or the alteration or revocation of the constitution of a company, as the case may be, the board must ensure that a notice in the prescribed form of the adoption of the constitution or of the alteration or revocation of the constitution is delivered to the Registrar for registration.

If the board of a company fails to comply with subsection 3 , every director of the company commits an offence and is liable, on conviction, to the penalty set out in section 2. A company may, from time to time, deliver to the Registrar a single document that incorporates the provisions of a document referred to in paragraph a or paragraph b or paragraph c or paragraph d or paragraph e of section 29 , together with all amendments to it.

Within 20 working days of receipt by a company of a notice under subsection 2 , the board must ensure that the document required by that subsection is received by the Registrar for registration. The board must ensure that a document delivered to the Registrar under this section is accompanied by a certificate signed by a person authorised by the board that the document complies with subsection 1 or subsection 2 , as the case may be.

As soon as the Registrar receives a document certified in accordance with subsection 4 , the Registrar must register the document.

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If the board of a company fails to comply with subsection 3 or subsection 4 , every director of the company commits an offence and is liable on conviction to the penalty set out in section 2.

The court may, on the application of a director or shareholder of a company, if it is satisfied that it is not practicable to alter the constitution of the company using the procedure set out in this Act or in the constitution itself, make an order altering the constitution of a company on such terms and conditions that it thinks fit.

The applicant for the order must ensure that a copy of an order made under subsection 1 , together with a copy of the constitution as altered, is delivered to the Registrar for registration within 10 working days. A person who fails to comply with subsection 2 commits an offence and is liable on conviction to the penalty set out in section 2. Subject to section 53 , the rights specified in subsection 1 may be negated, altered, or added to by the constitution of the company or in accordance with the terms on which the share is issued under section 41 b or section 42 or section 44 or section 2 , as the case may be.

Subject to the constitution of the company, different classes of shares may be issued in a company. Subject to any limitation or restriction on the transfer of shares in the constitution, a share in a company is transferable. A share is transferred by entry in the share register in accordance with section The personal representative of a deceased shareholder may transfer a share even though the personal representative is not a shareholder at the time of transfer.

A contract or deed under which a company is or may be required to issue shares, whether on the exercise of an option or on the conversion of financial products or otherwise, is an illegal contract for the purposes of subpart 5 of Part 2 of the Contract and Commercial Law Act unless—.

Subject to this Act and the constitution of the company, the board of a company may issue shares at any time, to any person, and in any number it thinks fit.

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The board of a company must deliver to the Registrar for registration, within 10 working days of the issue of shares under section 41 b or section 42 or section 2 , a notice in the prescribed form of the issue of the shares by the company.

If the board of a company fails to comply with subsection 1 , every director of the company commits an offence and is liable on conviction to the penalty set out in section 2. Subject to the terms of the approval, the shares may be issued at any time, to any person, and in any number the board thinks fit. Within 10 working days of approval being given under subsection 1 , the board must ensure that notice of that approval in the prescribed form is delivered to the Registrar for registration.

A failure to comply with this section does not affect the validity of an issue of shares. If the board of a company fails to comply with subsection 3 , every director of the company commits an offence and is liable on conviction to the penalty set out in section 2.

Shares issued or proposed to be issued by a company that rank or would rank as to voting or distribution rights, or both, equally with or prior to shares already issued by the company must be offered for acquisition to the holders of the shares already issued in a manner and on terms that would, if accepted, maintain the existing voting or distribution rights, or both, of those holders. An offer under subsection 1 must remain open for acceptance for a reasonable time. The constitution of a company may negate, limit, or modify the requirements of this section.

The consideration for which a share is issued may take any form and may be cash, promissory notes, contracts for future services, real or personal property, or other financial products of the company. A shareholder is not liable to pay or provide any consideration in respect of an issue of shares under section 41 a unless—. Before the board of a company issues shares under section 42 or section 44 , the board must—.

The directors who vote in favour of a resolution required by subsection 1 must sign a certificate—.

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Before shares that have already been issued are credited as fully or partly paid up other than for cash, the board must—. The directors who vote in favour of a resolution under subsection 3 must sign a certificate—. The board must deliver a copy of a certificate that complies with subsection 2 or subsection 4 to the Registrar for registration within 10 working days after it is given.

For the purposes of this section, shares that are or are to be credited as paid up, whether wholly or partly, as part of an arrangement that involves the transfer of property or the provision of services and an exchange of cash or cheques or other negotiable instruments, whether simultaneously or not, must be treated as paid up other than in cash to the value of the property or services.

A director who fails to comply with subsection 2 or subsection 4 commits an offence and is liable on conviction to the penalty set out in section 1. If the board of a company fails to comply with subsection 5 , every director of the company commits an offence and is liable, on conviction, to the penalty set out in section 2.

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Section 47 does not apply to—. Before the board of a company issues any financial products that are convertible into shares in the company or any options to acquire shares in the company, the board must—.

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The board must deliver a copy of a certificate that complies with subsection 2 to the Registrar for registration within 10 working days after it is given. For the purposes of this section, shares that are to be credited as paid up, whether wholly or partly, as part of an arrangement that involves the transfer of property or the provision of services and an exchange of cash or cheques or other negotiable instruments, whether simultaneously or not, must be treated as paid up other than in cash to the value of the property or services.

A director who fails to comply with subsection 2 commits an offence and is liable on conviction to the penalty set out in section 1. The board of a company that is satisfied on reasonable grounds that the company will, immediately after the distribution, satisfy the solvency test may, subject to section 53 and the constitution of the company, authorise a distribution by the company at a time, and of an amount, and to any shareholders it thinks fit.

The directors who vote in favour of a distribution must sign a certificate stating that, in their opinion, the company will, immediately after the distribution, satisfy the solvency test and the grounds for that opinion.

Section 328 b corporations act pdf

If, after a distribution is authorised and before it is made, the board ceases to be satisfied on reasonable grounds that the company will, immediately after the distribution is made, satisfy the solvency test, any distribution made by the company is deemed not to have been authorised. In applying the solvency test for the purposes of this section and section 56 ,—. Every director who fails to comply with subsection 2 commits an offence and is liable on conviction to the penalty set out in section 1.

A dividend is a distribution other than a distribution to which section 59 or section 76 applies. The constitution of a company may provide for differential dividends in respect of the shares in a class of shares, which may be determined on any differential basis, but only if the differential basis is based on objective criteria and not on the exercise of a discretion by, or an opinion of, the board of the company.

Company Z is an agricultural company whose class A shareholders are all current or former growers and suppliers to the company. Notwithstanding subsection 2 , a shareholder may waive his or her entitlement to receive a dividend by notice in writing to the company signed by or on behalf of the shareholder. In this section, differential dividend means a dividend—.

Section 328 b corporations act pdf

Subject to the constitution of the company, the board of a company may issue shares to any shareholders who have agreed to accept the issue of shares, wholly or partly, in lieu of a proposed dividend or proposed future dividends if—.

The board of a company may resolve that the company offer shareholders discounts in respect of some or all of the goods sold or services provided by the company. The board may approve a discount scheme under subsection 1 only if it has previously resolved that the proposed discounts are—. A discount scheme may not be approved or continued by the board unless it is satisfied on reasonable grounds that the company satisfies the solvency test. Subject to subsection 5 , a discount accepted by a shareholder under a discount scheme approved under this section is not a distribution for the purposes of this Act.

A distribution made to a shareholder at a time when the company did not, immediately after the distribution, satisfy the solvency test may be recovered by the company from the shareholder unless—.