Companies and Securities Law Assignment

Companies and Securities Law Assignment Venture Pty Ltd, which uses the Replaceable Rules for its Constitution, is a small proprietary company originally. As it is growing fast, the shareholders are all on the Board and they all have a number of complicated transactions with the company. Many of them are suppliers to the Company and most of them have loans or finance of some sort with the Company.

The business is growing so fast that the original type and structure of the company may hinder the further development of the company’s business. So the existing shareholders want to expand and to do this they want to “float” the business as a Public listed company. Introduction: This report will discuss the process for Venture of changing the company type from a proprietary company to a public company and also make an investigation into the steps for it to becoming a publically listing company.

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What’s more, the discussion also focus on any constitutional matters that need to be dealt with when listing, any corporate governance practices that need to be adopted when becoming listed company, any main listing requirements provided in the ASX Listing Rules and Corporations Act with which need to be comply, and any disclosure obligations for Venture when involving in IPO and after becoming a publicly listing company. ASX:The ASX operates a market for equity and debt securities issued by listed companies.

To protect the integrity of that market, ASX has standards for the behavior of listed companies through its Listing Rules. The Issuers business unit makes day-to-day decisions about the application of the ASX Listing Rules. Guidance notes are also published to assist listed companies and their advisers to understand how certain listing rules and procedures operate. 1 The process of changing the Company and getting listed The g shareholders of Venture Pty Ltd seek to change Venture to a public listed company for reasons, the principal one usually being to enable it to undertake public capital-raising to expand its business.

The steps and processes for Venture Pty Ltd to change from a “proprietary” to “public” company involve the followings steps which are Board Meeting, EGM Documents, Timing, Extraordinary General Meeting, Change of Type and ASIC. And after becoming a public company, the shareholders of Venture want to have the company get listed on ASX to become a publicly listed company in Australia. A, The process of changing the company 1. Board Meeting Board meetings are held so members of a board of directors can make decisions regarding the direction of a company.

Often board meetings must be held publicly, though frequently only the board members attend. Board members vote on decisions regarding the company and there normally must be a quorum in order for the meeting to be considered legal. A quorum, unless otherwise defined by the board represents at least half of the board members. During board meetings, the secretary records all discussion and actions taken by the board, called the minutes. The secretary will then type up the minutes, which usually must be filed and kept in case there is any government investigation of the board at a later date.

Minutes also may need to be presented to the public should there be a request for such from the public. The Board also needs to decide whether a new Constitution is necessary. Often a new “public company” specific Constitution is appropriate although the existing Replaceable Rules used as Constitution of the Venture will usually suffice (subject to any Corporations Act provisions for public companies then over-riding any conflicting articles of the Constitution). 2. EGM Documents Including the EGM Notice, Explanatory Memorandum, Proxy Form and Letter to Shareholders are finalized, printed and dispatched.

If a new Constitution is proposed shareholders would usually be advised in the EM or Letter that it is available in need (by hard copy or by email) or posted on the Company’s website, rather than mail it to all shareholders. 3. Timing A minimum 21 days’ clear advance notification1 is necessary for the EGM subject to the Company’s Constitution, including Notice posting/delivery days. So normally say a minimum 4 weeks to be on the safe side. 4. Extraordinary General Meeting Extraordinary General Meetings are important company procedures.

It is crucial that they are conducted with utmost precision so you comply with the law. An extraordinary general meeting (EGM) of a company is a general meeting of all members of a company (this usually means shareholders), an EGM gives shareholders a chance to vote on important decisions. An EGM may be called at any time. A resolution in favour of a change to “public” company type requires the passing of a “special resolution”, that is, the consent of 75% of shareholders present in person and/or by proxy2 (subject to any contrary wording in the existing Constitution not in conflict with the Corporations Act). , Change of Type With the change to a public listed company a number of matters must be dealt with or have effect, etc. In particular: • By no later than the effective date (which will be known in advance because of the gazettal period), the Venture must have a minimum three Directors3 and a Company Secretary4. Note: for a public company at least 2 of the Directors and the Company Secretary must be Australian residents. •

Directors appointed need to be more conscious of the Corporations Act sections covering ‘related party interests’, particularly in relation to voting restrictions5 and difficulties that could arise with ‘related party benefits’6, for the reasons that the previous board of directors of the Venture Pty Ltd, that is, the old form of the company all have a number of complicated transactions with the company. • The Company must clearly display a notice showing “Registered Office of the Company”7. And all stationery, check book, written references to the Company, use of Company name and etc. must indicate its new type. Within 1 month of the effective date an Auditor must be appointed, although his written consent must first be obtained. Such appointment must be ratified at the next AGM8. • Annual Accounts must be audited and lodged with ASIC by 31 October each year (as well, if the Company becomes a Disclosing Entity, it must lodge audit-reviewed half-yearly accounts) and must be sent to shareholders (usually as part of an Annual Report) by 31 October. • An AGM must be held by 30 November9. 6, ASIC The Australian Securities & Investments Commission (ASIC) is an independent Australian government body that acts as Australia’s corporate regulator.

ASIC’s role is to enforce and regulate company and financial services laws to protect Australian consumers, investors and creditors. To change company’s type, the Venture must lodge application Forms 205 & 206 with ASIC after the EGM10. The application must be accompanied by the following11: • A copy of 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 any other special resolution passed in connection with the change of type; • A consolidated copy of the company’s new constitution (if any) as at the date of lodgment;

Then follows the “gazettal period”, that is, one month after publication4 (which may not be until up to a couple of weeks after lodging the Forms) of the Company’s intention to change type in the Commonwealth Government Gazette. After the one month date, if there have been no objections (e. g. by creditors), ASIC issues a new “Certificate of Registration on Conversion to a Public Company”. This is the date the change takes effect. B, The process of getting listed Before introducing the process necessary to getting listed, it’s better to get a deep knowledge about the listing. . Listing Listing means admission of securities to dealings on a recognised stock exchange. The securities may be of any public limited company, Central or State Government, quasi governmental and other financial institutions/corporations, municipalities, etc. Listing is the process of taking a privately-owned organisation and making the transition to a publicly-owned entity whose shares can be traded on the Australian stock exchange. For example, a company is said to be “listed”, “quoted” or “have a listing” if its shares can be traded on ASX for public trading.

The objectives of listing are mainly to : • provide liquidity to securities; • mobilize savings for economic development; • protect interest of investors by ensuring full disclosures. To be more accurate, it is the securities that are listed, not the company. The phrase “listed company” is widely used to mean a company that has listed ordinary shares. It is possible (although not common) for a company to have listed debt securities but not listed shares. Listing in more than one market is possible through secondary listings, or through the more complex approach of dual listing.

The ability to have its shares traded on a stock exchange is central to an organisation’s decision to list. The fundamental role of a stock exchange is to bring together in one market place providers of capital and organisations that require capital. ASX undertakes this role in Australia and as such, acts as a hub at the centre of the Australian economy. Providers of capital earn a return on their investments through dividends and capital growth, thereby increasing the overall wealth of the nation, while the organisations in which they invest provide jobs and drive the economic development of Australia. . The benefits of listing A company’s reasons for deciding to publicly list on the stock exchange often include the ability to get access to the capital markets for financial expansion and acquisitions. They usually have invested many years of plowing back profits and guaranteeing borrowings and rather than sell out, they wish to remain with the company and be part of its future growth. There are many advantages that accrue to companies that attain a public listing of their shares. Some of the key considerations and benefits are:  § Creating a market for the company’s shares; Enhancing the status and financial standing of the company;  § Increasing public awareness and public interest in the company and its products;  § Providing the company with an opportunity to implement share option schemes for their employees;  § Accessing to additional fund raising in the future by means of new issues of shares or other securities;  § Facilitating acquisition opportunities by use of the company’s shares; and  § Offering existing shareholders a ready means of realising their investments. . Process of getting listed12 STEP 1: Appoint and consult with advisers Underwriters, stockbrokers, Corporate Advisers, Accountants, Lawyers, Experts. STEP 2: Making notice to ASX Preliminary stages—guidance on general IPO process. That is, ASX welcomes the opportunity to find out more about the company’s business and to help it with general guidance on the listing process and to advise it on ASX’s role in that process. Advanced stages—guidance on ASX Listing Rules.

That is, at these stages, ASX provide the company with insight into the listing process, regulatory issues, structural issues and organisation constitutional issues that the company need to be aware of before listing and answer queries regarding the ASX Listing Rules and general business issues including: • Constitution documents • Whether ASX would be likely to treat any securities as restricted and apply escrow provisions • Related Party transactions • Employee incentive schemes • Management agreements • Listing timetables, and • Meeting initial and ongoing Listing Rule obligations generally.

STEP 3: Preparation of Prospectus and Due Diligence The due diligence process is integral to the preparation of the prospectus and allows all parties concerned to satisfy themselves of their legal responsibilities, the structure of the transaction, and the content of the prospectus. A Due Diligence Committee is usually established to conduct this process. The process involves an all encompassing examination of your company and detailed verification of the information disclosed in the prospectus carried out by key participants in the IPO process, such as Management, Company directors, appointed advisers and underwriters.

Importantly, the due diligence process also provides a statutory defence against potential liability under the Corporations Act in certain circumstances. STEP 4: Lodge prospectus The prospectus is lodged with ASIC once approved by the company’s board. After lodgment with ASIC, a company cannot accept subscriptions under a prospectus for a period of 7 days. This period can be extended by ASIC to 14 days during which time ASIC can require amendments to be made to the document. STEP 5: Apply to list

Having prepared and lodged your prospectus with ASIC, you are now able to submit your listing application to ASX. The application form is contained in Appendix 1A of the ASX Listing Rules and must be received by ASX with the relevant admission fees within seven days of lodging your prospectus with ASIC. ASX will review your application and Prospectus to ensure that it satisfies ASX’s Listing Rules. Listing application must be lodged within 7 days of lodging your prospectus with ASIC. STEP 6: IPO period Average of 6 to 8 weeks

Once the prospectus has been lodged with ASIC, the company announces the opening of the offer. Moreover it is common for companies to conduct roadshows to present their investment credentials to institutional investors. These can assist in achieving substantial share purchase commitments in advance. STEP 7: Admission to ASX official list Subject to conditions including completion of capital-raising. STEP 8: Commence trading Official quotation of the Company’s securities Once ASX has considered a company’s listing application, the company will be advised in writing of the outcome.

This will be in the form of a decision containing the conditions that need to be satisfied before the company is admitted to the official list (such as closing the offer, raising the minimum subscription amount, allotting and issuing securities and having sufficient shareholder spread), and the conditions that must be fulfilled before quotation can commence (such as despatch of holding statements, return of any refund money and provision of a shareholder distribution schedule and a statement setting out the names of the top 20 holders).

Quotation will normally commence on the third business day following despatch of holding statements to shareholders. Your shares will be quoted on ASX’s integrated trading system. 2 Constitutional matters which need to be addressed According to Corporations Act, after changing to a public company, Venture is required to have its own Constitution13, rather than using the Replaceable Rules as its Constitution when it gets ready for listing on the ASX.

Also in order to comply with ASX Listing Rules, the company is requested to alter its original Constitution by completing a specified checklist and submitting it accompanying with its amended Constitution to ASX. The purpose of the checklist is to assist when revising their constitution or adopting a new one to ensure that it complies with the listing rules. It is also to assist ASX in reviewing documents related to the changes in a timely manner. Reference to ASX Listing rules: Appendix 1A, and download the “Checklist for Constitutions of listed entities” at ASX. com. au) 3 The corporate governance practices need to be adopted For all listed companies in Australia, there is an Australian Stock Exchange Limited (ASX) Listing Rule requiring the inclusion, in the Company’s annual report14, of a statement of the main Corporate Governance practices that have been applied during the reporting period.

In March 2003 the ASX issued its Corporate Governance Council’s best practice recommendations. Later on the second Edition Corporate Governance Guidelines—the Corporate Governance Principles and Recommendations, was released in August 2007. On 30 June 2010, the ASX Corporate Governance Council released amendments to the 2nd edition of the Corporate Governance Principles and Recommendations in relation to diversity, remuneration, trading policies and briefings, which will apply to listed entities from 1 January 2011.

Assume that the Venture apply for getting listed after 1 Jan 2011, the Amendments to 2nd edition will apply to it. The Board of Directors of Venture has to make a decision about the recommendations and principles which it endorses and will adopt therein as the basis for the Board Charter on Corporate Governance. Also the Venture is required to set out the relevant disclosure in a separate corporate governance statement in its annual report. The statement should outline the main Corporate Governance policies that have been applied throughout its financial year.

Here, we could roughly introduce the corporation governance practices available to Venture for setting out its own Corporate Governance policies according to the “The Corporate Governance Principles and Recommendations” 15. • Principle 1 – Lay solid foundations for management and oversight—Companies should establish and disclose the respective roles and responsibilities of board and management. • Principle 2 – Structure the board to add value—Companies should have a board of an effective composition, size and commitment to adequately discharge its responsibilities and duties. Principle 3 – Promote ethical and responsible decision-making—Companies should actively promote ethical and responsible decision-making. • Principle 4 – Safeguard integrity in financial reporting—Companies should have a structure to independently verify and safeguard the integrity of their financial reporting. • Principle 5 – Make timely and balanced disclosure—Companies should promote timely and balanced disclosure of all material matters concerning the company. Principle 6 – Respect the rights of shareholders—Companies should respect the rights of shareholders and facilitate the effective exercise of those rights. • Principle 7- Recognise and manage risk—Companies should establish a sound system of risk oversight and management and internal control. • Principle 8- Remunerate fairly and responsibly—Companies should ensure that the level and composition of remuneration is sufficient and reasonable and that its relationship to performance is clear.

What’s more the Corporations Act requires particular information to be included in the directors’ report; the company has the discretion to include a cross-reference to the relevant information in the corporate governance section of the annual report rather than duplicating the information. For more general information, there are requirements to make this information publicly available, ideally on the company website. 4 What are the main listing requirements that need to be followed? Venture must also meet specific requirements set out in the ASX listing rules in order to be eligible to list.

These requirements include a set of minimum admission criteria, including structure, size and number of shareholders. The following table summarizes some of the key criteria Venture will need to meet to be eligible for listing16: |Criterion 1 |The entity’s structure and operations must be appropriate for a listed entity. | |Criterion 2 |The entity must have a constitution and | |Criterion 3 |The entity’s constitution must be consistent with the listing rules. |Criterion 4 |A prospectus or Product Disclosure Statement must be issued and lodged with ASIC. | |Criterion 5 |The entity must apply for and be granted permission for quotation of all the securities in its main class | | |of securities. | |Criterion 6 |An entity must satisfy either (a) or (b). | | |(a) There must be at least 500 holders each having a parcel of the main class of securities with a value | | |of at least $2,000. | | |(b) Both of the following are satisfied. | |There must be at least 400 holders each having a parcel of the main class of securities with a value of at| | |least $2,000; | | |Persons who are not related parties of the entity must hold that number of securities in the main class, | | |excluding restricted securities, which is not less than 25% of the total number of securities in that | | |class. |Criterion 7 |The entity must satisfy either the profit test in rule 1. 2 or the assets test in rule 1. 3. | |Profits test17 | | |To be eligible for admission by meeting the profits test, each of the following must be satisfied (in | | |addition to various other threshold requirements): | | |the entity must be a going concern; | | |the entity’s main business activity must have been the same for the last three years; | | |three years of audited accounts must be provided to the ASX; and | | |the entity’s aggregated profit from the last 3 full financial years must have been at least $1 million and| | |at least $400,000 net profit over last 12 months. | | |Assets test18 | | |In the case of entities that are not investment entities, the assets test outlined chapter 1 provides that| | |the entity involved must at the time of admission: | | |have a market capitalisation of $ 10 Million; or | | |have net tangible assets of $ 2 Million after the costs of fundraising. | |And | | |less than half of the entities assets must be in cash (or in forms readily converted to cash); or | | |half or more of the entities total tangible assets (after fund raising) are in cash, and the entity has | | |commitments to spend half of its cash consistent with its statement of business objectives that it must | | |provide to the ASX; | | |And | | |the entity’s prospectus, product disclosure statement or information memorandum must include a statement | | |that it has enough working capital to carry out its stated objectives; or | | |the entity must have at least $1. 5 Million in working capital. | | |In addition | | |providing the ASX with 3 years of audited accounts and reports that are available. | |If the accounts have not been audited, the ASX must be notified; and | | |A proforma balance sheet, together with a review by a Registered Company Auditor. | |Criterion 8 |The entity must appoint a person to be responsible for communication with ASX in relation to listing rule | | |matters. | |Criterion 9 |The entity must provide a statement disclosing the extent to which the entity will follow, as at the date | | |of its admission to the official list, the recommendations set by the ASX Corporate Governance Council.

If| | |the entity does not intend to follow all the recommendations on its admission to the official list, the | | |entity must identify the recommendations that will not be followed and give reasons for not following | | |them. | | |An entity which will be included in the S&P All Ordinaries Index on admission to the official list must | | |have an audit committee. If the entity will be in the S&P, or ASX 300 Index on admission to the official | | |list, it must also comply with the best practice recommendations set by the ASX Corporate Governance | | |Council in relation to composition, operation and responsibility of the audit committee. | |Criterion 10 |The entity must have a trading policy that complies with ASX listing rule 12. 9. |Criterion 11 |The entity seeking admission to the official list and quotation of securities must pay the fees set and | | |published by ASX. It must do so when and in the manner that ASX specifies. | 5 The disclosure obligations during the fundraising period and after while the company is operating Continuous Disclosure—ASX Listing Rule19 imposes a general obligation on listed companies to disclose material information as well as requiring the release of specific information. The general disclosure obligation requires companies to immediately release to the market any information which a reasonable person would expect to have a material effect on the price or value of its shares.

There are some specific exceptions (“carve out” provisions) with regard to providing confidential information. ASX may also require a company to provide information for release to the market in order to correct or prevent a false market. As a guide, a false market is a market trading on incorrect or incomplete information, regardless of the source of the information. ASX has developed an innovative method for companies to make announcements to the market via a secure and dedicated extranet called ASX Online, Venture can electronically lodge your announcements in either free text or template format. In order to ensure the company complies with its obligation of timely disclosure of such information, Venture must adhere to the following practices: Venture must disclose price sensitive information to the ASX firstly as soon as it becomes aware of the information; and all information disclosed to ASX is promptly placed on the company’s website following receipt of confirmation from ASX. • Venture must ensure that the information is not false, misleading or deceptive so as to avoid creating what would constitute a false market; and • Venture must ensure that the information is disclosed clearly (expressed objectively), accurately and is complete20. Puffery, imprecise or confusing language such as “double digit”21growth must be avoided. Periodic Disclosure—in addition to continuous disclosure obligations, ASX listed companies are required to submit certain reports at regular intervals: Half Yearly Reports; Preliminary Final Reports; Annual Reports; and Quarterly activities and cash flow reports (certain companies only).

Periodic disclosure is made to ASX’s company announcements office. And also ASX requires an annual report to be sent to holders of ordinary securities and preference securities. The annual report must contain the additional information22, for example: • A statement disclosing the extent to which the entity has followed the recommendations set by the ASX Corporate Governance Council during the reporting period. • The names of substantial holders in the entity, and the number of equity securities to which each substantial holder and the substantial holder’s associates have a relevant interest, as disclosed in substantial holding notices given to the entity. The number of holders of each class of equity securities. • The voting rights attaching to each class of equity securities. • A distribution schedule of the number of holders in each class of equity securities • The name of the entity’s secretary. • The address and telephone number of the entity’s registered office in Australia; and of its principal administrative office, if the two are different. • A review of operations and activities for the reporting period. • Whether there is a current on-market buy-back. CONCLUSION Becoming a public company listed on ASX means much more than just complying with the stringent requirements of issuing a prospectus.

The general law and specific statutory and regulatory provisions impose continuing duties and requirements on public listed companies and their subsidiaries which differ from those imposed on private companies. To be a public listed company is an excellent approach for Venture to expanding its scale of business and increasing its capital in order to achieve the shareholders’ great ambitions. However, being publically listed is not a walkaway, or breeze for Venture. In the way of transferring, Venture has to make a spectrum of changes in its organizational structure, constitutional matters, business structure etc. to meet the standards of relevant rules and regulations, which will cost them a huge of manpower, materials resources and funds.

And also after the transferring, Venture has to follow more stringent operating criteria and disclosure rules according to ASX Listing Rules and Corporations Act. Anyway getting publicly listed will make Venture obtain more benefits than detriments and losses and will improve its corporate image and profile, which lets Venture have more opportunity to get access to more economic benefits and regulates it to be a responsible corporate citizen for the whole public.

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