#1COMPANY LAW - PARTI (INTRODUCTION, TYPES OF COMPANIES, INCORPORATION ETC.) Companies Act, No. 7 of 2007 (as amended) Shanila H. Gunawardena LL.B. (Hons.) (Colombo) Attorney-at-Law, CTA (CASL)#2LEGAL STATUS AND CAPACITY OF A COMPANY – SECTION 2 A company is a body corporate identified by the registered name. Subject to the AoA, a company has the capacity to carry on or undertake any business or activity, do any act or enter into any transaction within or outside Sri Lanka. Subject to the laws of Sri Lanka or of any other country, a company has all the rights, powers and privileges, necessary for the aforesaid purpose of carrying on or undertaking any business or activity, doing any act or entering into any transaction within or outside Sri Lanka.#3SEPARATE LEGAL ENTITY/PERSONALITY A company is separate and distinct from its: - shareholders; - - directors; and other employees. Perpetual succession. A company's assets, liabilities and contracts belong to the company. A company can sue its own employees and directors. "Salomon principle."#4SEPARATE LEGAL ENTITY/ PERSONALITY • Salomon's case established many legal principals as to companies and recognized inter alia the principal of separate legal personality. Application of the Salomon principle in modern times: (i) Lee vs. Lee's Air Farming Ltd. [1961] AC 12; (ii) Trade Exchange (Ceylon) Ltd. vs. Asian Hotels Corporation (1981) 1 SLR 67. Corporate "veil" & lifting the corporate "veil".#5TYPES OF INCORPORATED COMPANIES - • Limited companies - public companies - private companies - off-shore companies Unlimited companies SECTION 3(1) Companies limited by guarantee#6LIMITED COMPANIES • Most common method. Issue shares. Shareholders have the liability to contribute to the assets of the company as specified in the company's AoA as attaching to the shares they hold. Liability of the shareholders is limited to their investment. • Public limited companies, private limited companies, off-shore companies.#7PUBLIC LIMITED COMPANIES • Shares are listed on the stock exchange. A public limited company has the opportunity to raise its capital from the public and therefore has access to a larger capital base. • Must comply with the provisions of certain statutes and subsidiary legislation: - - Sri Lanka Accounting and Auditing Standards Act, No. 15 of 1995: in the preparation and presentation of accounts. Securities and Exchange Commission of Sri Lanka Act, No.36 of 1987 (as amended)/ Listing Rules/ Takeovers and Mergers Code etc.: eligibility for listing (Stated Capital, Positive Net Assets, Minimum Public Holding Requirement etc.); corporate disclosure requirements and mandatory offer requirements; prohibitions relating to insider dealings.#8MINIMUM PUBLIC HOLDING REQUIREMENT Option Float Adjusted Market Capitalization (Public Holding x Public Holding Percentage Number of Public Shareholders Market Capitalization) 1 Rs. 10.0 Bn. no minimum % required 500 2 Rs. 7.5 Bn. 5% 500 Main 3 Rs. 5.0 Bn. Board 7.5% 500 4 Rs. 2.5 Bn. 10% 500 5 less than Rs.2.5 Bn. 20% 500 Diri Savi 1 Rs. 1 Bn 7.5% 200 Board 2 less than Rs.1 Bn 10% 200#9PRIVATE LIMITED COMPANIES Prohibited from offering shares or other securities to the public. • Number of shareholders limited to between 1 to 50. • Those who obtain shares by virtue of their employment with the company are not taken into account in calculating the aforesaid number of shareholders. • AoA must contain provisions relating to the above.#10OFF-SHORE COMPANIES A company incorporated in or outside Sri Lanka registering itself in Sri Lanka as an off- shore company to carry on any business outside Sri Lanka. If a company incorporated outside Sri Lanka registers itself as an offshore company, it is deemed to have been incorporated in Sri Lanka. • An offshore company cannot conduct any business in Sri Lanka. • They may not be subject to taxation in their home jurisdiction. • Only limited amount of information about the company may be available to the public. Allegation that off-shore companies may be used for money laundering, tax evasion, fraud, and other forms of white collar crime.#11UNLIMITED COMPANIES Issue shares. Shareholders have an unlimited liability to contribute to the assets of the company under its AoA. Instances where unlimited liability may be required: in a situation where persons would be willing to stand behind their business, but wish to use the corporate form to protect their identities and facilitate flexibility in transfer of ownership; when the law specifically prescribes it as a requirement e.g.: Professional firms.#12COMPANIES LIMITED BY GUARANTEE Does not issue shares. Members undertake to contribute to the assets of the company in the event of its being put into liquidation, in an amount specified in the company's AoA. • Unsuitable for business purposes. Frequently used for establishing not-for- profit or charitable organisations. • AoA must set out the objects of the company and include a statement to the effect that the liability of its members is limited by the amount of guarantee undertaken by each member in the event of the company being put into liquidation. Minimum of 2 members necessary.#13OVERSEAS COMPANIES - PART XVIII Companies incorporated outside Sri Lanka could register as overseas companies in Sri Lanka to carry on business in Sri Lanka. Required to notify certain changes in the company to the RGOC within 30 days of the change (e.g. changes to the memorandum and articles; directors; authorised persons; address of the company; address of the company within Sri Lanka). • Branch office, project office, liaison office, representative office, regional office or any similar office. Requirements for investment / remitting funds to Sri Lanka. Remittances out of Sri Lanka.#14INCORPORATION OF COMPANIES • Section 4 - An application to be made to the RGOC in the prescribed form (i.e. Form 1) signed by the initial shareholders, together with the AoA signed by the initial shareholders, consent from directors (Form 18) and initial secretary (Form 19). - • Section 5 The RGOC will enter the particulars of the company in the Register, assign a unique number and issue a certificate of incorporation. Consequently, within 60 working days, the RGOC will give public notice.#15COMPANY NAMES Section 6 - Company name should end as follows: - a listed company - "Public Limited Company" or "PLC" every other limited company - "Limited" or "Ltd" private company - "(Private) Limited" or "(Pvt) Ltd" Section 7(1) - Prohibited names: - Identical with a name of another company Containing the words "Chamber of Commerce" unless it is a company limited by guarantee incorporated for the purpose of promoting art, science, religion, charity, sport or any other like useful object Misleading in the opinion of the Registrar Section 7(2) Consent of the Minister, having regard to the national interest, required, to use: - 'President' or 'Presidential" or similar words 'Municipal' or 'other Local Authority' or suggesting connection with any Society or body incorporated by an Act of Parliament 'Co-operative' or 'Society' 'National', 'State' or 'Sri Lanka ' or similar words#16CHANGE OF NAME Prior Name Approval from RGOC. Special resolution with the prior approval in writing of the RGOC required. Deemed to have resolved to change the name upon change of status of company. Upon resolving to change name, the company must give notice to the RGOC within 10 working days (i.e. Form 3). Upon receiving notice, the RGOC (a) enters the new name on the Register in place of the former name; and (b) issues a fresh certificate of incorporation, altered to indicate. Change of name does not affect any rights or obligations of the company. • Public notice within 20 working days of the name change. • The RGOC is empowered to give directions to change the name under Section 10.#17USE OF COMPANY NAME AND COMPANY NUMBER - SECTION 12 Company name and number should be clearly stated in- a) all business letters of the company b) all notices and other official publications of the company c) all bills of exchange, promissory notes, endorsements, cheques and orders for money or goods signed on behalf of the company d) all invoices, receipts and letters of credit of the company e) all other documents issued or signed by the company which creates or is evidence of a legal obligation of the company f) the company seal, if any Company name and number should be clearly displayed at its registered office#18REGISTERED OFFICE Every company must have a registered office in Sri Lanka to receive communications and notices. A company can have its registered office in any part of Sri Lanka. • The registered office is the place that is described in the Register as the company's registered office at the time. • If the registered office is at the office of any chartered accountant, attorney- at-law, or any other person, the description of the registered office shall state: a) that the registered office of the company is at such offices; and b) particulars of the location of those offices.#19CONSTITUTION OF THE COMPANY • AoA contain the provisions for the internal regulation of the management of the affairs of the company and the conduct of its business. Shareholders will have full control over the same. Not mandatory to have an objects clause. However, may provide for the same. If provided, it will be deemed to be a restriction on the company carrying on any business or activity that is not within the scope of the objects. May provide for rights and obligations of shareholders, management and administration of the company. ⚫ Shareholders have the power to amend AoA by special resolution.#20COMPANY CONTRACTS - SECTION 19 A contract may be entered into by a company: if required by law to be in writing, signed by the person entering into the contract and be notarially attested – in writing, signed under the name of the company by (i) 2 directors of the company; (ii) if there is only 1 director, by that director; (iii) if the AoA so provide, by any other person or class of persons; or (iv) 1 or more attorneys appointed by the company, AND be notarially executed; if required by law to be in writing and signed by the person entering into the contract - in writing, signed by a person acting under the company's express or implied authority; If not required by law to be in writing - in writing or orally, by a person acting under the company's express or implied authority.#21PRE-INCORPORATION CONTRACTS- SECTION 23 • What is a “pre-incorporation contract”? Ratification of a pre-incorporation contract. • Warranties implied in pre-incorporation contracts (section 24). • Failure to ratify pre-incorporation contracts (section 25).