Companies (Amendment) Act, 1983

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Re-registration of private company as public limited company.

9.—(1) Subject to section 11 , a private company may be re-registered as a public limited company if—

(a) a special resolution, complying with subsection (2) that it should be so re-registered is passed; and

(b) an application for the purpose, in the prescribed form and signed by a director or secretary of the company, is delivered to the registrar together with the documents mentioned in subsection (3); and

(c) the conditions specified in subsection (5)(a) and (b) (where applicable) and section 10 (1) (a) to (d) are satisfied in relation to the company.

(2) The special resolution must—

(a) alter the company's memorandum so that it states that the company is to be a public limited company;

(b) make such other alterations in the memorandum as are necessary to bring it in substance and in form into conformity with the requirements of this Act with respect to the memorandum of a public limited company; and

(c) make such alterations in the company's articles as are requisite in the circumstances.

(3) The documents referred to in subsection (1) are—

(a) a printed copy of the memorandum and articles as altered in pursuance of the resolution;

(b) a copy of a written statement by the auditors of the company that in their opinion the relevant balance sheet shows that at the balance sheet date the amount of the company's net assets was not less than the aggregate of its called-up share capital and undistributable reserves;

(c) a copy of the relevant balance sheet, together with a copy of an unqualified report by the company's auditors in relation to that balance sheet;

(d) a copy of any report prepared under subsection (5)(b); and

(e) a statutory declaration in the prescribed form by a director or secretary of the company—

(i) that the special resolution mentioned in subsection (1) (a) has been passed and that the conditions specified in subsection (1)(c) have been satisfied; and

(ii) that, between the balance sheet date and the application of the company for re-registration, there has been no change in the financial position of the company that has resulted in the amount of the company's net assets becoming less than the aggregate of its called-up share capital and undistributable reserves.

(4) The registrar may accept a statutory declaration under subsection (3) (e) as sufficient evidence that the special resolution has been passed and the said conditions have been satisfied.

(5) Where shares are allotted by the company between the balance sheet date and the passing of the special resolution as fully or partly paid up as to their nominal value or any premium on them otherwise than in cash, the company shall not make an application for re-registration under this section unless before the making of the application—

(a) the consideration for that allotment has been valued in accordance with the provisions of section 30 applied by this subsection and section 31 ; and

(b) a report with respect to its value has been made to the company in accordance with those provisions during the six months immediately preceding the allotment of the shares;

and subsections (2) to (8) and (12) to (14) of section 30 shall apply for the purposes of this subsection as they apply for the purposes of that section and as if the references to subsection (1) of section 30 were references to this subsection.

(6) If the registrar is satisfied on an application made under subsection (1) that a company may be re-registered under this section as a public limited company, he shall—

(a) retain the application and other documents delivered to him under that subsection; and

(b) issue the company with a certificate of incorporation stating that the company is a public limited company.

(7) The registrar shall not issue a certificate of incorporation under subsection (6) if it appears to him that the court has made an order confirming a reduction of the company's capital which has the effect of bringing the nominal value of the company's allotted share capital below the authorised minimum.

(8) Upon the issue to a company of a certificate of incorporation under subsection (6)—

(a) the company shall by virtue of the issue of that certificate become a public limited company; and

(b) any alterations in the memorandum and articles set out in the resolution shall take effect accordingly.

(9) A certificate of incorporation issued to a company under subsection (6) shall be conclusive evidence—

(a) that the requirements of this Act in respect of re-registration and of matters precedent and incidental thereto have been complied with; and

(b) that the company is a public limited company.

(10) The re-registration of a private company as a public limited company pursuant to this Act shall not affect any rights or obligations of the company or render defective any legal proceedings by or against the company, and any legal proceedings which might have been continued or commenced against it in its former status may be continued or commenced against it in its new status.

(11) A qualification shall be treated for the purposes of the definition of an unqualified report in subsection (13) as being not material in relation to any balance sheet if, but only if, the person making the report states in writing that the thing giving rise to the qualification is not material for the purposes of determining, by reference to that balance sheet, whether at the balance sheet date the amount of the company's net assets was not less than the aggregate of its called-up share capital and undistributable reserves.

(12) For the purposes of the making, in relation to the balance sheet of a company, of a report falling within the definition in subsection (13) of an unqualified report, section 149 of and the Sixth Schedule to the Principal Act shall be deemed to have effect in relation to that balance sheet with such modifications as are necessary by reason of the fact that that balance sheet is prepared otherwise than in respect of a financial year.

(13) In this section—

“undistributable reserves” has the same meaning as in section 46 (2);

“relevant balance sheet” means, in relation to a company, a balance sheet prepared as at a date not more than seven months before the company's application for re-registration under this section; and

“unqualified report” means, in relation to the balance sheet of a company, a report stating without material qualification—

(a) that, in the opinion of the person making the report, the balance sheet complies with the requirements of sections 149 and 156 of the Principal Act; and

(b) without prejudice to paragraph (a) that, except where the company is entitled to avail itself, and has availed itself, of the benefit of any of the provisions of Part III of the Sixth Schedule to the Principal Act, in the opinion of that person, the balance sheet gives a true and fair view of the state of the company's affairs as at the balance sheet date.