Companies - Transfer Of Registration And Registration Of Statutory Corporations As Companies (Ss 355-363)

Link to law: http://www.elaws.gov.bw/desplaylrpage1.php?id=1326

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[Ch4201s355]355. Registration and continuation of foreign

company and statutory corporation

(1) A

foreign company incorporated under the laws of any country other than Botswana,

may where it is so authorised by the laws of that country apply to the

Registrar to be registered and continued in Botswana as if it had been

incorporated in Botswana under this Act.

(2)

An application under subsection (1) shall be supported by -

(a) a certified copy of the certificate of

incorporation or other similar document that evidences its incorporation;

(b) a copy of the resolution authorising the

continuation of the company in Botswana;

(c) a statement whether the company applies to

be registered as a company limited by shares or by guarantee and whether as a

public company or a private company;

(d) a certified copy of the documents defining

its constitution;

(e) a statement of the charges on the company’s

assets;

(f) evidence acceptable to the Registrar that

the company is not prevented from being registered as a company under this Act

by either section 356 or section 357;

(g) the documents and information that are

required to register a company under Part II; and

(h) any other documents and information the

Registrar may require.

(3)

The Registrar may direct that a document that has been delivered to the

Registrar or registered under Part XXIV need not accompany the application.

(4) A

statutory corporation may, where it is authorised by an Act of Parliament,

apply to the Registrar to be registered and continued as if it had been

incorporated under this Act.

(5)

An application under subsection (4) shall be supported by-

(a) a copy of the law under which the statutory

corporation was established;

(b) a copy of the law authorising the

continuation of the statutory corporation under this Act;

(c) a statement whether the statutory

corporation applies to be registered as a company limited by shares or by

guarantee and whether as a public company or a private company;

(d) a certified copy of the documents defining

its constitution;

(e) a statement of the charges on the statutory

corporation’s assets;

(f) the documents and information that are

required to register a company under Part II; and

(g) any other documents or information the

Registrar may require.

[Ch4201s356]356. Foreign companies shall be authorised to

register

A

foreign company shall not be registered as a company under this Act unless -

(a) the company is authorised to transfer its

incorporation under the law of the country in which it is incorporated;

(b) the company had complied with the

requirements of that law in relation to the transfer of its incorporation; and

(c) if that law does not require its

shareholders or members, or a specified proportion of them, to consent to the

transfer of its incorporation, the transfer has been consented to by not less

than 75 per cent of its shareholders or members entitled to vote and voting in

person or by proxy at a meeting of which not less than 21 days notice had been

given specifying the intention to transfer the company’s incorporation.

[Ch4201s357]357. Foreign companies that cannot be registered

(1) A

foreign company shall not be registered as and continue as a company under this

Act if -

(a) the company is in the process of winding up

or liquidation;

(b) a receiver or a manager has been appointed,

whether by a court or not, in relation to the property of the company; or

(c) there is any scheme or order in force in

relation to the company whereby the rights of creditors are suspended or

restricted.

(2) A

foreign company shall not be registered as a company under this Act unless the

foreign company would, immediately after becoming registered under this Act,

satisfy the solvency test.

[Ch4201s358]358. Registration

(1)

As soon as the Registrar receives a properly completed application for a

foreign company or a statutory corporation for registration as a company under

this Act, and in the case of a foreign company, is satisfied that the type of

company named in the application in accordance with paragraph (c) of

section 355(2) is an appropriate type of company for continuation of the

company in Botswana, and in the case of a statutory corporation, is satisfied

that the type of company named in the application in accordance with paragraph

(c) of section 355(5) is an appropriate company for registration and

continuation of the company, the Registrar shall -

(a) enter on the register of companies the

particulars of the company required under section 21; and

(b) issue a certificate of registration in the

prescribed form.

(2) A

certificate of registration of a company issued under this section is

conclusive evidence that -

(a) all the requirements of this Act as to

registration have been complied with; and

(b) on and from the date of registration stated

in the certificate, the company is registered under this Act.

[Ch4201s359]359. Effect of registration

(1)

The registration of a foreign company or a statutory corporation under this Act

does not -

(a) create a new legal entity;

(b) prejudice or affect the identity of the

body corporate constituted by the company or its continuity as a legal entity;

(c) affect the property, rights or obligations

of the company; or

(d) affect proceedings by or against the

company.

(2)

Proceedings that could have been commenced or continued by or against the

foreign company or the statutory corporation before registration under this Act

may be commenced or continued by or against the company after registration.

(3)

Upon registration of a foreign company or a statutory corporation under this

Act all the provisions of this Act shall apply to that company or statutory corporation

as if it were a company registered under this Act as a company limited by

shares or by guarantee and as a public company or private company, as the case

may be.

[Ch4201s360]360. Companies may transfer incorporation

(1)

Subject to this Part, a company may be removed from the register of companies

in connection with becoming incorporated under the law in force, or in any part

of, another country.

(2)

An application by a company for removal from the register of companies in connection

with becoming incorporated under the law in force in, or in any part of,

another country shall be in the prescribed form and shall be accompanied by -

(a) evidence acceptable to the Registrar that

subsection (3) and section 361 have been complied with;

(b) evidence acceptable to the Registrar that

the removal of the company from the register is not prevented by section 362;

(c) written notice from the Commissioner of

Taxes that the Commissioner has no objection to the company being removed from the

register;

(d) evidence acceptable to the Registrar that

the company is incorporated under the law; and

(e) any other documents or information the

Registrar may require.

(3) A

company shall not apply to be removed from the register of companies under

section 363 unless the making of the application has been approved by a special

resolution.

[Ch4201s361]361. Company to give public notice

A

company shall not apply to be removed from the register of companies under

section 331(1)(d) unless -

(a) the company gives public notice -

(i) stating that it intends, after the date

specified in the notice, which shall not be less than 20 working days after the

date of the notice, to apply under section 360 for the company to be removed

from the register in connection with the company becoming incorporated under

the law in force in, or in any part of, another country, and

(ii) specifying the country or part of the

country under the law of which it is proposed that the company will be incorporated;

and

(b) the application is made after that date.

[Ch4201s362]362. Companies that cannot transfer incorporation

(1) A

company shall not be removed from the register of companies under section 363

if -

(a) the company is in liquidation or an

application has been made to the court under section 370 to put the company

into liquidation;

(b) the company has entered into a compromise

with creditors or a class of creditors under Part XIV or a compromise has been proposed

under that Part in relation to that company; or

(c) a compromise has been approved by the court

under Part XV in relation to the company or an application has been made to the

court to approve a compromise under that Part.

(2) A

company shall not be removed from the register under section 363 unless the

company would, immediately before it is removed from the register, satisfy the

solvency test.

[Ch4201s363]363. Removal from register

(1)

As soon as the Registrar receives a properly completed application under

section 360(2) to remove a company from the register, the Registrar shall

remove the company from the register.

(2) A

company is removed from the register when a notice signed by the Registrar

stating that the company is removed from the register is registered under this

Act.

(3)

The removal of a company from the register of companies under this section does

not -

(a) prejudice or affect the identity of the

body corporate that was constituted under this Act or its continuity as a legal

person;

(b) affect the property, rights, or obligations

of that body corporate; or

(c) affect proceedings by or against that body

corporate.

(4) Proceedings that could have been commenced or continued by or

against a company before the company was removed from the register under this

section may be commenced or continued by or against the body corporate that

continues in existence after the removal of the company from the register.