Professional Documents
Culture Documents
Company Law
Company Law
Definition of a Company
• General Definition
Justice Marshal says “ a corporation is an artificial being,
invisible, intangible, existing only in the contemplation of
law”.
Hancy observes that “ a company is an incorporate association,
which is an artificial person created by law, having separate
entity, with a perpetual succession and a common seal”.
Lord Justice Lindley says that “ By a company is meant an
association of many persons who contribute money or money’s
worth to a common stock and employ in some trade or
business, and who share the profit and loss ( as the case may
be) arising there from”.
To be continued…
• Statutory definition
Section 2(1) (c) of the Companies Act ,1994
provides “ company means company formed
and registered under this Act or any existing
company”.
Characterization of a Company
• An organization of some persons/corporate body/incorporate
association
• Artificial legal person created by law
• Perpetual succession
• Separate legal entity
• Limited liability
• Separate Property
• Transferability of shares
• Common seal
• Number of shareholders
• Statutory obligation
• Extinguishes only by the operation of law
Types of companies
• On the basis of the numbers of the members
a. Private
b. Public
Private company
A private company is a company which is by its Articles ( a)
restricts the right to transfer its shares, if any ( b) limits the
number of its members to fifty, excluding members who are
and were in the employment of the company; and (c) prohibits
any invitation to the public to subscribe for any share in,
debenture of, the company.
Characteristics of a private company
• Number
• Adding the word, limited
• Restriction of transfer of share
• Commencement of business
• Raising capital
• Limited liability
To be continued…
• Public companies
All companies other than private companies are called public
companies.
Characteristics
a. Number of members g. statutory liability
b. Transferability of shares
c. Liability ( limited by shares or limited by guarantee)
d. Number of directors ( at least three)
e. Certificate of commencement
f. Statutory meeting and statutory report
To be continued…
• Promotion
• Preparation of documents
• Registration or incorporation
• Capital subscription
• Collection of certificate of incorporation
To be continued…
1. Promotion
• ‘ Conceiving the idea of forming the company
• “ The discovery of business opportunities and the subsequent
organization of funds, property and management ability into a
business concern for the purpose of making profits there
from”.
Promoters do the following two things:
• Taking necessary decision ( name of the company, financial
plan whether public or private)
• Collecting name clearance certificate ( The promoters are
required to have from the Registrar Office.
To be continued…
2. Preparation of documents
(a) Memorandum of association
(b) Articles of association
• The Memorandum of Association is a document which
contains the fundamental rules regarding the constitution and
activities of a company. It is the basic document which lays
down how the company is to be constituted and what work it
shall undertake. Its purpose is to enables the members of the
company , its creditors, and the public to know what its
powers are and what is the range of its activities.
To be continued…
The Contents of Memorandum of Association are in the
following: ( company limited by shares)
1. Name of the company
2. Place of registrar office
2. Nature of the company
3. Objects of the company ( main objects, objects incidental
and ancillary to the main)
4. Capital structure of the company ( the amount of share
capital and the division thereof into shares of a fixed amount)
5. Liabilities of the company ( liability limited by shares, or by
guarantee or unlimited)
To be continued…
• Definition of Articles of Association :
It is a document which contains rules, regulations and bye-laws
regarding the internal management of the company. Articles
must not violate any provision of the memorandum or any
provision of the Companies Act. The rules laid down in the
Articles must always be read subject to the rules contained in
the memorandum.
Relationship :
• The Articles are subordinate to memorandum
• The memorandum must be read in conjunction with the
Articles.
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• The terms of memorandum can not be modified.
Contents of Articles
1. Share capital, rights of shareholders, payments of commissions,
share certificate
2. Lien on shares 8. general meetings and
3. voting
4. Calls on share / rights of
members
5. Transfer of shares 9. appointment and remuneration
6. Conversion of shares into stock of directors, managers and…
7. Share warrants 10. dividends and reserves
8. Alteration of capital 11. accounts, audits and borrowing
powers; 12. capitalisation of profits 13.winding
up
3.Registration or incorporation
Required Documents
• Company Name. A name clearance must be obtained.
• Memorandum of Association and Articles of
Association. RJSC requires that the object clause in the MoA
to be within 400 words and 7 clauses.
• Shareholders Particulars (National ID if the shareholder is a
Bangladeshi)
• Directors Particulars (including Tax Identification Number)
• Registered Address
• Singed Form IX and Subscriber Page.
• For foreigners: Copy of passport of shareholder and director.
Registration Procedures
• The fees which have been determined to pay during submission of return,
papers and documents by the company under Companies Act, 1994 are
hereby given below :
• 1. Clearance to be obtained after submitting application alongwith fees
amounting to Tk. 5/- (five) for clearance of the proposed company, society,
trade organization (T.O.).
• 2. After printing of Memorandum and Articles of Association of the
company [3 (three) copies] the same will have to be submitted alongwith
necessary fees with special adhesive stamp.
• 3. Two copies of Memorandum of Association and constitution alongwith
Tk. 250/- (two hundred fifty) will have to be submitted for the society.
• 4. 3 (three) copies of Memorandum of Association and Articles of
Association, clearance of the name and license obtained from the Ministry
of Commerce will have to be submitted alongwith Tk. 1,500/- (one
thousand five hundred) fees for Trade Organization (T.O.).
To be continued
•
Registration
• Upon the application accompanied by the required documents,
if the registrar is satisfied with the compliance requirements,
he shall registrar the documents within 30 days from the date
of receipt and in case of refusal the grounds to be
communicated within 10 days after that period. [s.23(1)]
• On the registration of the Memorandum, the Registrar shall
certify that the company is incorporated.
The effect of registration
4. Capital Subscription
A private company raises capital personally. But in the case of
public company for raising capital issuance of prospectus and
necessary activities are to be performed.
• Meaning of ‘Prospectus’
Generally it is a document by which the subscribers are invited
to purchase shares or debentures of the company.
Section 142
“ Documents containing offer of shares or debentures for sale”.
To be continued…
Types of shares
Preference share: those shares which are given, by the articles of the
company, two privileges :
a. priority in the payment of dividends over other share
b. priority as regards return of the capital in the event of liquidation
To be continued…
• Deferred shares
Deferred shares are also called the promoters shares since this
type of shares are issued to the promoters or founders of the
company for the service rendered by them in promoting and
forming the company. When the claims of all ordinary share
holders are satisfied, the deferred shareholders are satisfied as
well.
• Redeemable preference share ( sec.154)
To be continued…
• Allotment of shares
By issuing prospectus, the company invites public to purchase
share. Persons who are interested to take shares apply to the
company and when the company accepts the said offer for the
purchase of share is known as an allotment of shares.
An allotment is generally neither more or less than the
acceptance by the company of the offer to take share.
• Unconditional Acceptance
An acceptance must be unconditional and correspond with the
terms of the offer.
To be continued…
• General principles of the allotment of shares:
a. Allotment by the proper authority.
Authority is determined by the articles of association. The
following persons may be the competent authority:
i) Board of directors
ii) Any competent person under the articles of association (if
properly delegated)
iii) the secretaries or treasurers of the company if they are so
authorised by the articles of association
b. The allotment must be unconditional
To be continued…
Effects:
i) Prima facie evidence
ii) Stoppel as to the title of the interest
• it declares the allottee or certificate holder as the share
holder;
• It makes the company bound to recognize the shareholder’s
rights and interests
To be continued…
Share warrant
A share warrant refers to a document issued by a company ,
stating that the bearer is entitled to the shares therein specified.
It is substitute for the share certificate.
To be continued…
• Statutory report
Sect. 83 (2)
The board of directors shall prepare a report , in this Act
referred to as ‘statutory report’ and shall at least 21 days before
the day on which statutory meeting is to be held, forward the
report to every member of the company.
Particulars of the statutory meeting:
a. the total number of shares allotted, giving detail whether fully
or partly paid up and the consideration for which they have
been received.
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• Meetings of directs
a. Meetings of board of directors
b. Meetings of committees of directors
• Special Meetings
a. meetings of creditors
b. meetings of debenture holders
c. meetings of creditors and contributories on the winding up of
the companies.
Company’s management
• Directors
According to The Companies Act,1994 a ‘Director’ includes
any person occupying the position by whatever name called.
According to section 90(1) , every public company must have
at least three directors and every private company shall have at
least two directors.
• Legal Position of Directors
1. Directors as Agents
2. Directors as Trustees
3.Directors as Employees
To be continued…
• Directors as Agents
It is well established principle that directors are the agents of
the company. Where the directors contract in the name of the
company and on behalf of the company, it is the company
which is liable on it, not the directors personally.
Ferguson vs. Wilson- 1866– “ The company has no person; it
can act only through directors, merely the ordinary case of
principal and agent.
To be continued…
• Directors as Trustees
Directors are always considered to be trustees of the property
or assets of the company, which comes to their hand and which
is actually under their control. They are to make good of
moneys which they have misapplied as if they were the
trustees. Again in the case of exercising their powers , they are
bound to act like a trustee for the benefit of the company.
To be continued…
• Directors as Employees
A director is not an employee or servant of the company. However, a
director may work as an employee in a different capacity under a
different contract. For example, a managing director is an employee
of the company.
Appointment of Directors
1. Appointment of first directors
The first directors are normally named by the company in its article.
If no name is given in the article, the subscribers to the
memorandum shall be directors of the company. The first directors
act as directors until the first annual general meeting.
To be continued…
2. Appointment by shareholders
The shareholders to the company can appoint directors in the annual
general meeting. The procedure of appointment of directors by that
shareholders is normally determined by the article. At least one third of the
directors shall be appointed and removed in a way so that rational
appointment can be maintained.
3. Appointment by the Board of Directors
If permitted by Article, the board of directors can appoint directors under
the following conditions-
a,. Board may appoint additional directors, if required subject to the
maximum number
b. Board may appoint directors to fill the casual vacancies.
c. A director may appoint an alternate directors if approved by special
resolution.
To be continued…
• Removal by shareholders
A director may be removed from his office before the
expiration of his period of office by an ordinary resolution of
the shareholders in general meeting.
• Removal by Government
Government may on recommendation of the High Court
remove a director who is-
a. guilty of breach of trust
b. not competent to run company’s business
c. injurious for the company
d. has obtained the post by fraud
To be continued…
• The court can remove a director before the expiration of his
term on the application of minority shareholders to protect
them from oppression.
• Powers of directors
The Board of Directors of a company is entitled to exercise all
powers as the company is authorised to do. They have all the
powers of a company subject to the following limitations-
1. Their acts cannot contradict the Memorandum and Articles
of Association.
2. Their acts must be subject to Companies Act
3. In some cases they are under the authority of general
meeting.
Statutory powers of Directors
• Meaning of winding up
Generally the winding up or liquidation of a company means
the cessation of company’s legal existence and taking its
management in the hands of the directors. When a company is
wound up its business stops, the assets are collected and
distributed among the creditors and shareholders in the manner
prescribed in the Companies Act 1994 and in the Articles of
Association of the company.
Modes of winding up
• Section 234
a. Compulsory winding up under the order of the court
b. Voluntary winding up
c. Winding up subject to the supervision of the court
It starts with-
a. Petition by a company ( there must be a special resolution to
this effect) ; or
b. Creditors’ petition; or
c. Contributory’ s petition ( contributory means every person
liable to contribute to the assets of company in the event of its
being wound up.); or
d. Registrar’s petition
Methods of compulsory winding up
Two types
a. Members’ voluntary winding up; and
b. Creditors’ voluntary winding up