New Zealand Companies Act 1993 - Inspection of Company Records

New Zealand New Zealand Companies Act 1993 New Zealand Companies Act 1993 New Zealand Companies Act 1993

Inspection of company records

215 Public inspection of company records

  • (1) A company must keep the following records available for inspection in the manner prescribed in section 217 by a person who serves written notice of intention to inspect on the company:

    • (a) the certificate of incorporation or registration of the company:

    • (b) the constitution of the company, if it has one:

    • (c) the share register:

    • (d) the full names and residential addresses of the directors:

    • (e) the registered office and address for service of the company.

    (2) If a company fails to comply with subsection (1),—

    • (a) the company commits an offence and is liable on conviction to the penalty set out in section 373(2); and

    • (b) every director of the company commits an offence and is liable on conviction to the penalty set out in section 374(2).

216 Inspection of company records by shareholders

  • (1) In addition to the records available for public inspection, a company must keep the following records available for inspection in the manner prescribed in section 217 by a shareholder of the company, or by a person authorised in writing by a shareholder for the purpose, who serves written notice of intention to inspect on the company:

    • (a) minutes of all meetings and resolutions of shareholders:

    • (b) copies of written communications to all shareholders or to all holders of a class of shares during the preceding 10 years, including annual reports, financial statements, summary financial statements (if any), and group financial statements:

    • (c) certificates given by directors under this Act:

    • (d) the interests register of the company.

    (2) If a company fails to comply with subsection (1),—

    • (a) the company commits an offence and is liable on conviction to the penalty set out in section 373(2); and

    • (b) every director of a company commits an offence and is liable on conviction to the penalty set out in section 374(2).

    Section 216(1)(b): amended, on 15 April 2004, by section 14 of the Companies Amendment Act (No 2) 2004 (2004 No 24).

217 Manner of inspection

  • (1) Documents which may be inspected under section 215 or section 216 must be available for inspection at the place at which the company's records are kept between the hours of 9 am and 5 pm on each working day during the inspection period.

    (2) In this section, the term inspection period means the period commencing on the third working day after the day on which notice of intention to inspect is served on the company by the person or shareholder concerned and ending with the eighth working day after the day of service.

218 Copies of documents

  • (1) A person may require a copy of, or extract from, a document which is available for inspection by him or her under section 215 or section 216 to be sent to him or her—

    • (a) within 5 working days after he or she has made a request in writing for the copy or extract; and

    • (b) if he or she has paid a reasonable copying and administration fee prescribed by the company.

    (2) If a company fails to provide a copy of, or extract from, a document in accordance with a request under subsection (1),—

    • (a) the company commits an offence and is liable on conviction to the penalty set out in section 373(1); and

    • (b) every director of the company commits an offence and is liable on conviction to the penalty set out in section 374(1).

Part 13 Amalgamations

219 Amalgamations

  • Two or more companies may amalgamate, and continue as 1 company, which may be one of the amalgamating companies, or may be a new company.

220 Amalgamation proposal

  • (1) An amalgamation proposal must set out the terms of the amalgamation, and in particular—

    • (a) the name of the amalgamated company, if it is the same as the name of one of the amalgamating companies:

    • (b) the registered office of the amalgamated company:

    • (c) the full name or names and residential address or addresses of the director or directors of the amalgamated company:

    • (d) the address for service of the amalgamated company:

    • (e) the share structure of the amalgamated company, specifying—

      • (i) the number of shares of the company:

      • (ii) the rights, privileges, limitations, and conditions attached to each share of the company, if different from those set out in section 36:

    • (f) the manner in which the shares of each amalgamating company are to be converted into shares of the amalgamated company:

    • (g) if shares of an amalgamating company are not to be converted into shares of the amalgamated company, the consideration that the holders of those shares are to receive instead of shares of the amalgamated company:

    • (h) any payment to be made to a shareholder or director of an amalgamating company, other than a payment of the kind described in paragraph (g):

    • (i) details of any arrangement necessary to complete the amalgamation and to provide for the subsequent management and operation of the amalgamated company.

    (2) An amalgamation proposal may specify the date on which the amalgamation is intended to become effective.

    (3) If shares of one of the amalgamating companies are held by or on behalf of another of the amalgamating companies, the amalgamation proposal—

    • (a) must provide for the cancellation of those shares without payment or the provision of other consideration when the amalgamation becomes effective:

    • (b) must not provide for the conversion of those shares into shares of the amalgamated company.

221 Approval of amalgamation proposal

  • (1) The board of each amalgamating company must resolve that—

    • (a) in its opinion the amalgamation is in the best interest of the company; and

    • (b) it is satisfied on reasonable grounds that the amalgamated company will, immediately after the amalgamation becomes effective, satisfy the solvency test.

    (2) The directors who vote in favour of a resolution required by subsection (1) must sign a certificate stating that, in their opinion, the conditions set out in that subsection are satisfied, and the grounds for that opinion.

    (3) The board of each amalgamating company must send to each shareholder of the company, not less than 20 working days before the amalgamation is proposed to take effect,—

    • (a) a copy of the amalgamation proposal:

    • (b) copies of the certificates given by the directors of each board:

    • (c) a summary of the principal provisions of the constitution of the amalgamated company, if it has one:

    • (d) a statement that a copy of the constitution of the amalgamated company will be supplied to any shareholder who requests it:

    • (e) a statement setting out the rights of shareholders under section 110:

    • (f) a statement of any material interests of the directors in the proposal, whether in that capacity or otherwise:

    • (g) such further information and explanation as may be necessary to enable a reasonable shareholder to understand the nature and implications for the company and its shareholders of the proposed amalgamation.

    (4) The board of each amalgamating company must, not less than 20 working days before the amalgamation is proposed to take effect,—

    • (a) send a copy of the amalgamation proposal to every secured creditor of the company; and

    • (b) give public notice of the proposed amalgamation, including a statement that—

      • (i) copies of the amalgamation proposal are available for inspection by any shareholder or creditor of an amalgamating company or any person to whom an amalgamating company is under an obligation at the registered offices of the amalgamating companies and at such other places as may be specified during normal business hours; and

      • (ii) a shareholder or creditor of an amalgamating company or any person to whom an amalgamating company is under an obligation is entitled to be supplied free of charge with a copy of the amalgamation proposal upon request to an amalgamating company.

    (5) The amalgamation proposal must be approved—

    • (a) by the shareholders of each amalgamating company, in accordance with section 106; and

    • (b) if a provision in the amalgamation proposal would, if contained in an amendment to an amalgamating company's constitution or otherwise proposed in relation to that company, require the approval of an interest group, by a special resolution of that interest group.

    (6) A director who fails to comply with subsection (2) commits an offence and is liable on conviction to the penalty set out in section 373(1).

222 Short form amalgamation

  • (1) A company and 1 or more other companies that is or that are directly or indirectly wholly owned by it may amalgamate and continue as 1 company (being the company first referred to) without complying with section 220 and section 221 if—

    • (a) the amalgamation is approved by a resolution of the board of each amalgamating company; and

    • (b) each resolution provides that—

      • (i) the shares of each amalgamating company, other than the amalgamated company, will be cancelled without payment or other consideration; and

      • (ii) the constitution of the amalgamated company, if it has one, will be the same as the constitution of the company first referred to, if it has one; and

      • (iii) the board is satisfied on reasonable grounds that the amalgamated company will, immediately after the amalgamation becomes effective, satisfy the solvency test; and

      • (iv) the person or persons named in the resolution will be the director or directors of the amalgamated company.

    (2) Two or more companies, each of which is directly or indirectly wholly owned by the same person, may amalgamate and continue as 1 company without complying with section 220 or section 221 if—

    • (a) the amalgamation is approved by a resolution of the board of each amalgamating company; and

    • (b) each resolution provides that—

      • (i) the shares of all but 1 of the amalgamating companies will be cancelled without payment or other consideration; and

      • (ii) the constitution of the amalgamated company, if it has one, will be the same as the constitution of the amalgamating company whose shares are not cancelled, if it has one; and

      • (iii) the board is satisfied on reasonable grounds that the amalgamated company will, immediately after the amalgamation becomes effective, satisfy the solvency test; and

      • (iv) the person or persons named in the resolution will be the director or directors of the amalgamated company.

    (3) The board of each amalgamating company must, not less than 20 working days before the amalgamation is proposed to take effect, give written notice of the proposed amalgamation to every secured creditor of the company.

    (4) The resolutions approving an amalgamation under this section, taken together, shall be deemed to constitute an amalgamation proposal that has been approved.

    (5) The directors who vote in favour of a resolution required by subsection (1) or subsection (2), as the case may be, must sign a certificate stating that, in their opinion, the condition set out in subsection (1)(b)(iii) or subsection (2)(b)(iii) is satisfied, and the grounds for that opinion.

    (6) A director who fails to comply with subsection (5) commits an offence and is liable on conviction to the penalty set out in section 373(1).

    Section 222(1)(b)(iii): amended, on 30 June 1997, by section 16(1) of the Companies Act 1993 Amendment Act 1997 (1997 No 27).

    Section 222(1)(b)(iv): inserted, on 30 June 1997, by section 16(1) of the Companies Act 1993 Amendment Act 1997 (1997 No 27).

    Section 222(2): amended, on 3 June 1998, by section 8 of the Companies Amendment Act 1998 (1998 No 31).

    Section 222(2)(b)(iii): amended, on 30 June 1997, by section 16(2) of the Companies Act 1993 Amendment Act 1997 (1997 No 27).

    Section 222(2)(b)(iv): inserted, on 30 June 1997, by section 16(2) of the Companies Act 1993 Amendment Act 1997 (1997 No 27).

    Section 222(5): amended, on 30 June 1997, by section 16(3) of the Companies Act 1993 Amendment Act 1997 (1997 No 27).

223 Registration of amalgamation proposal

  • For the purpose of effecting an amalgamation the following documents must be delivered to the Registrar for registration:

    • (a) the approved amalgamation proposal; and

    • (b) any certificates required under section 221(2) or section 222(5); and

    • (c) a certificate signed by the board of each amalgamating company stating that the amalgamation has been approved in accordance with this Act and the constitution of the company, if it has one; and

    • (d) if the amalgamated company is a new company or the amalgamation proposal provides for a change of the name of the amalgamated company, a copy of the notice reserving the name of the company; and

    • (da) if an amalgamating company is a licensed insurer, a copy of the written approval of the Reserve Bank of New Zealand given under section 44 of the Insurance (Prudential Supervision) Act 2010; and

    • (e) a certificate signed by the board, or proposed board, of the amalgamated company stating that, where the proportion of the claims of creditors of the amalgamated company in relation to the value of the assets of the company is greater than the proportion of the claims of creditors of an amalgamating company in relation to the value of the assets of that amalgamating company, no creditor will be prejudiced by that fact; and

    • (f) a document in the prescribed form signed by each of the persons named in the amalgamation proposal as a director of the amalgamated company containing his or her consent to be a director and a certificate that he or she is not disqualified from being appointed or holding office as a director of a company.

    Section 223(da): inserted, on 1 February 2011, by section 241(2) of the Insurance (Prudential Supervision) Act 2010 (2010 No 111).

224 Certificate of amalgamation

  • (1) Forthwith after receipt of the documents required under section 223, the Registrar must,—

    • (a) if the amalgamated company is the same as one of the amalgamating companies, issue a certificate of amalgamation; or

    • (b) if the amalgamated company is a new company,—

      • (i) enter particulars of the company on the New Zealand register; and

      • (ii) issue a certificate of amalgamation together with a certificate of incorporation.

    (2) If an amalgamation proposal specifies a date on which the amalgamation is intended to become effective, and that date is the same as, or later than, the date on which the Registrar receives the documents, the certificate of amalgamation, and any certificate of incorporation must be expressed to have effect on the date specified in the amalgamation proposal.

    Section 224(1)(a): amended, on 1 July 1994, by section 26(1) of the Companies Act 1993 Amendment Act 1994 (1994 No 6).

    Section 224(1)(b)(ii): replaced, on 1 July 1994, by section 26(2) of the Companies Act 1993 Amendment Act 1994 (1994 No 6).

225 Effect of certificate of amalgamation

  • On the date shown in a certificate of amalgamation,—

    • (a) the amalgamation is effective; and

    • (b) if it is the same as a name of one of the amalgamating companies, the amalgamated company has the name specified in the amalgamation proposal; and

    • (c) the Registrar must remove the amalgamating companies, other than the amalgamated company, from the New Zealand register; and

    • (d) the amalgamated company succeeds to all the property, rights, powers, and privileges of each of the amalgamating companies; and

    • (e) the amalgamated company succeeds to all the liabilities and obligations of each of the amalgamating companies; and

    • (f) proceedings pending by, or against, an amalgamating company may be continued by, or against, the amalgamated company; and

    • (g) a conviction, ruling, order, or judgment in favour of, or against, an amalgamating company may be enforced by, or against, the amalgamated company; and

    • (h) any provisions of the amalgamation proposal that provide for the conversion of shares or rights of shareholders in the amalgamating companies have effect according to their tenor.

225A Registers

  • (1) Where an amalgamation becomes effective, no Registrar of Deeds or District Land Registrar or other person charged with the keeping of any books or registers shall be obliged, solely by reason of the amalgamation becoming effective, to change the name of an amalgamating company to that of an amalgamated company in those books or registers or in any documents.

    (2) The presentation to any Registrar or other person of any instrument (whether or not comprising an instrument of transfer) by the amalgamated company—

    • (a) executed or purporting to be executed by the amalgamated company; and

    • (b) relating to any property held immediately before the amalgamation by an amalgamating company; and

    • (c) stating that that property has become the property of the amalgamated company by virtue of this Part—

    shall, in the absence of evidence to the contrary, be sufficient evidence that the property has become the property of the amalgamated company.

    (3) Without limiting subsection (1) or subsection (2), where any security issued by any person or any rights or interests in property of any person become, by virtue of this Part, the property of an amalgamated company, that person, on presentation of a certificate signed on behalf of the board of the amalgamated company, stating that that security or any such rights or interests have, by virtue of this Part, become the property of the amalgamated company, shall, notwithstanding any other enactment or rule of law or the provisions of any instrument, register the amalgamated company as the holder of that security or as the person entitled to such rights or interests, as the case may be.

    (4) In subsection (3),security has the same meaning as in section 2(1) of the Securities Act 1978.

    (5) Except as provided in this section, nothing in this Part derogates from the provisions of the Land Transfer Act 1952.

    Section 225A: inserted, on 1  July 1994, by section 27 of the Companies Act 1993 Amendment Act 1994 (1994 No 6).

226 Powers of court in other cases

  • (1) If the court is satisfied that giving effect to an amalgamation proposal would unfairly prejudice a shareholder or creditor of an amalgamating company or a person to whom an amalgamating company is under an obligation, it may, on the application, made at any time before the date on which the amalgamation becomes effective, of that person, make any order it thinks fit in relation to the proposal, and may, without limiting the generality of this subsection, make an order—

    • (a) directing that effect must not be given to the proposal:

    • (b) modifying the proposal in such manner as may be specified in the order:

    • (c) directing the company or its board to reconsider the proposal or any part of it.

    (2) An order may be made under subsection (1) on such conditions as the court thinks fit.

Part 14 Compromises with creditors

227 Interpretation

  • In this Part, unless the context otherwise requires,—

    company includes an overseas company registered under Part 18

    compromise means a compromise between a company and its creditors, including a compromise—

    • (a) cancelling all or part of a debt of the company; or

    • (b) varying the rights of its creditors or the terms of a debt; or

    • (c) relating to an alteration of a company's constitution that affects the likelihood of the company being able to pay a debt

    creditor includes—

    • (a) a person who, in a liquidation, would be entitled to claim in accordance with section 303 that a debt is owing to that person by the company; and

    • (b) a secured creditor

    proponent means a person referred to in section 228 who proposed a compromise in accordance with this Part.

    Section 227 company: inserted, on 1 November 2007, by section 5 of the Companies Amendment Act 2006 (2006 No 56).

    Section 227 creditor: replaced, on 1 July 1994, by section 28 of the Companies Act 1993 Amendment Act 1994 (1994 No 6).

228 Compromise proposal

  • (1) Any of the following persons may propose a compromise under this Part if that person has reason to believe that a company is or will be unable to pay its debts within the meaning of section 287—

    • (a) the board of directors of the company:

    • (b) a receiver appointed in relation to the whole or substantially the whole of the assets and undertaking of the company:

    • (c) a liquidator of the company:

    • (d) with the leave of the court, any creditor or shareholder of the company.

    (2) Where the court grants leave to a creditor or shareholder under subsection (1)(d), the court may make an order directing the company to supply to the creditor or shareholder, within such time as may be specified, a list of the names and addresses of the company's creditors showing the amounts owed to each of them or such other information as may be specified to enable the creditor or shareholder to propose a compromise.

229 Notice of proposed compromise

  • (1) The proponent must compile, in relation to each class of creditors of the company, a list of creditors known to the proponent who would be affected by the proposed compromise, setting out—

    • (a) the amount owing or estimated to be owing to each of them; and

    • (b) the number of votes which each of them is entitled to cast on a resolution approving the compromise.

    (2) The proponent must give to each known creditor, the company, any receiver or liquidator, and deliver to the Registrar for registration,—

    • (a) notice in accordance with Schedule 5 of the intention to hold a meeting of creditors, or any 2 or more classes of creditors, for the purpose of voting on the resolution; and

    • (b) a statement—

      • (i) containing the name and address of the proponent and the capacity in which the proponent is acting; and

      • (ii) containing the address and telephone number to which inquiries may be directed during normal business hours; and

      • (iii) setting out the terms of the proposed compromise and the reasons for it; and

      • (iv) setting out the reasonably foreseeable consequences for creditors of the company of the compromise being approved; and

      • (v) setting out the extent of any interest of a director in the proposed compromise; and

      • (vi) explaining that the proposed compromise and any amendment to it proposed at a meeting of creditors or any classes of creditors will be binding on all creditors, or on all creditors of that class, if approved in accordance with section 230; and

      • (vii) containing details of any procedure proposed as part of the proposed compromise for varying the compromise following its approval; and

    • (c) a copy of the list or lists of creditors referred to in subsection (1).

230 Effect of compromise

  • (1) A compromise, including any amendment proposed at the meeting, is approved by creditors, or a class of creditors, if, at a meeting of creditors or that class of creditors conducted in accordance with Schedule 5, the compromise, including any amendment, is adopted in accordance with clause 5 of that schedule.

    (2) A compromise, including any amendment, approved by creditors or a class of creditors of a company in accordance with this Part is binding on the company and on—

    • (a) all creditors; or

    • (b) if there is more than 1 class of creditors, on all creditors of that class—

    to whom notice of the proposal was given under section 229.

    (3) If a resolution proposing a compromise, including any amendment, is put to the vote of more than 1 class of creditors, it is to be presumed, unless the contrary is expressly stated in the resolution, that the approval of the compromise, including any amendment, by each class is conditional on the approval of the compromise, including any amendment, by every other class voting on the resolution.

    (4) The proponent must give written notice of the result of the voting to each known creditor, the company, any receiver or liquidator, and the Registrar.

231 Variation of compromise

  • (1) A compromise approved under section 230 may be varied either—

    • (a) in accordance with any procedure for variation incorporated in the compromise as approved; or

    • (b) by the approval of a variation of the compromise in accordance with this Part which, for that purpose, shall apply with such modifications as may be necessary as if any proposed variation were a proposed compromise.

    (2) The provisions of this Part shall apply to any compromise that is varied in accordance with this section.

232 Powers of court

  • (1) On the application of the proponent or the company, the court may—

    • (a) give directions in relation to a procedural requirement imposed by this Part, or waive or vary any such requirement, if satisfied that it would be just to do so; or

    • (b) order that, during a period specified in the order, beginning not earlier than the date on which notice was given of the proposed compromise and ending not later than 10 working days after the date on which notice was given of the result of the voting on it,—

      • (i) proceedings in relation to a debt owing by the company be stayed; or

      • (ii) a creditor refrain from taking any other measure to enforce payment of a debt owing by the company.

    (2) Nothing in subsection (1)(b) affects the right of a secured creditor during that period to take possession of, realise, or otherwise deal with, property of the company over which that creditor has a charge.

    (3) If the court is satisfied, on the application of a creditor of a company who was entitled to vote on a compromise that—

    • (a) insufficient notice of the meeting or of the matter required to be notified under section 229 was given to that creditor; or

    • (b) there was some other material irregularity in obtaining approval of the compromise; or

    • (c) in the case of a creditor who voted against the compromise, the compromise is unfairly prejudicial to that creditor, or to the class of creditors to which that creditor belongs,—

    the court may order that the creditor is not bound by the compromise or make such other order as it thinks fit.

    (4) An application under subsection (3) must be made not later than 10 working days after the date on which notice of the result of the voting was given to the creditor.

233 Effect of compromise in liquidation of company

  • (1) Where a compromise is approved under section 230, the court may, on the application of—

    • (a) the company; or

    • (b) a receiver appointed in relation to property of the company; or

    • (c) with the leave of the court, any creditor or shareholder of the company,—

    make such order as the court thinks fit with respect to the extent, if any, to which the compromise will, if the company is put into liquidation, continue in effect and be binding on the liquidator of the company.

    (2) Where a compromise is approved under section 230 and the company is subsequently put into liquidation, the court may, on the application of—

    • (a) the liquidator; or

    • (b) a receiver appointed in relation to property of the company; or

    • (c) with the leave of the court, any creditor or shareholder of the company,—

    make such order as the court thinks fit with respect to the extent, if any, to which the compromise will continue in effect and be binding on the liquidator of the company.

234 Costs of compromise

  • Unless the court orders otherwise, the costs incurred in organising and conducting a meeting of creditors for the purpose of voting on a proposed compromise—

    • (a) must be met by the company; or

    • (b) if incurred by a receiver or a liquidator, are a cost of the receivership or liquidation; or

    • (c) if incurred by any other person, are a debt due to that person by the company and, if the company is put into liquidation, are payable in the order of priority specified in Schedule 7.

New Zealand Companies Act 1993 New Zealand Companies Act 1993 New Zealand Companies Act 1993
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