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I FORMATION OF A COMPANY
INTRODUCTION
1.1 HISTORICAL BACKGROUND
1.1-1 Development of Company Law
1.1-2 Background of Companies Act, 2013
1.1-3 Implementation of Companies Act, 2013 in stages
1.1-4 Provisions which are not yet notified
1.1-5 Transitory provisions regarding preparing Board report, financial statement
1.1-6 Clarifications issued by MCA in respect of provisions made effective from September 2013
1.2 CHANGES IN THE 2013 ACT AS COMPARED TO 1956 ACT
1.3 CONSTITUTIONAL BACKGROUND OF COMPANIES ACT
1.4 ADMINISTRATION OF COMPANIES ACT
COMPANY FORM OF BUSINESS ORGANISATION
2.1 VARIOUS TYPES OF BUSINESS ORGANISATIONS
2.1-1 Associations of Persons
2.1-2 Concept of 'Corporate' personality
2.1-3 Body Corporate
2.1-4 Formation of 'Body Corporate'
2.1-5 Juristic person
2.1-6 Laws to facilitate formation of 'corporate bodies'
2.2 ADVANTAGES OF A 'BODY CORPORATE'
2.2-1 Advantages of 'company form' over other forms of 'body corporates'
2.2-2 Company as a form of 'corporate body'
2.2-3 Company is a 'firm'
2.2-4 Profit motive not essential in company form of organisation
2.3 CONCEPT OF "PERPETUAL SUCCESSION"
2.4 COMMON SEAL IN RELATION TO A COMPANY
2.4-1 Documents requiring common seal
2.4-2 Secretarial Standard relating to Common Seal
2.4-3 Authority to put common seal
2.5 COMPANY IS A 'PERSON' BUT NOT A 'CITIZEN'
2.5-1 Company is not a 'citizen'
2.5-2 Writ against a company only if 'public duty' involved
2.6 LIMITED LIABILITY
2.6-1 Situations when member has unlimited liability
2.7 SALIENT FEATURES OF COMPANY FORM OF ORGANISATION
2.7-1 Disadvantages of the Company Form of organisation
2.8 VARIOUS TYPE OF COMPANIES THAT CAN BE FORMED
2.8-1 Company limited by shares
2.8-2 Public Limited Company
2.8-3 Listed public company
2.8-4 Private limited company
2.8-5 Unlimited company
2.8-6 Guarantee Company
2.8-9 Foreign company
COMPANY IS A LEGAL ENTITY
3.1 COMPANY IS A SEPARATE 'PERSON'
3.1-1 Implications of company being a separate legal entity
3.1-2 The case of Salomon and Salomon
3.1-3 Property of company is not property of its shareholders
3.2 LEGAL IMPLICATIONS OF SEPARATE LEGAL ENTITY
3.2-1 Director and company are separate legal persons
3.3 DEALINGS OF COMPANY WITH OUTSIDERS
3.3-1 Signing of contracts/cheques by company
3.3-2 Authorising persons to act on behalf of company
3.3-3 Power of Attorney by company
3.3-4 A director cannot file suit on behalf of company without authority of Board
3.3-5 A company secretary cannot file suit on behalf of company without authority
3.3-6 An Act beyond powers of an officer but within powers of Board can be ratified by Board
3.4 NOTICE TO COMPANY
3.5 COMPANY CAN ENTER INTO PARTNERSHIP WITH OTHERS
3.6 COMPANY CAN BE MEMBER OF ANOTHER COMPANY
INCORPORATION OF A COMPANY
4.1 INITIAL STAGE IN FORMATION OF A COMPANY
4.1-1 Promoter
4.1-2 'Promoter' as per SEBI ICDR Regulations
4.1-3 Promoters are in fiduciary relationship with company
4.1-4 Reimbursement of pre-incorporation Expenses to promoters
4.1-5 Treatment of expenditure in formation of company under Income tax Act
4.1-6 Write off of preliminary expenses
4.1-7 Pre-incorporation contracts
4.1-8 Procedure for incorporation of a Company
4.2 NAME OF COMPANY
4.2-1 Procedure for reservation of name of a company to be formed
4.2-2 Criteria for reserving of name of a company
4.2-3 Name should not be identical with other name
4.2-4 Undesirable Names
4.2-5 Compulsory change of name of activity changed
4.2-6 Name containing name of other persons
4.2-7 Declaration whether the proposed name is being used in any other business constitution
4.2-8 Specified words indicating some Government type organisation can be used in name only with approval of Central Government
4.2-9 Name of section 8 company or Nidhi company
4.2-10 Old name cannot be used for three years
4.2-11 Obtaining consent of other companies in group for using group name in name of a company
4.2-12 Penalty for applying for name giving wrong information
4.2-13 Publication of name of company
4.2-14 Passing off action permissible if name of a new company is deceptively similar
4.3 SIGNING OF MEMORANDUM AND ARTICLES
4.4 DOCUMENTS TO BE FILED WITH ROC
4.4-1 Payment of fees
4.4-2 Payment of filing fees for registration of a company
4.4-3 Power of Attorney for correcting memorandum and Articles
4.4-4 Sample Power of Attorney
4.4-5 Declaration of Compliance
4.5 CERTIFICATE OF INCORPORATION
4.5-1 Effect of incorporation
4.5-2 Certificate of incorporation is not conclusive evidence
4.5-3 Company can be struck off if its only object is illegal
4.5-4 Effect of giving false information or suppression of information at the time of incorporation
4.5-5 Corporate Identity Number
4.6 RE-REGISTRATION OF A COMPANY
4.7 PROCEDURE AFTER INCORPORATION OF A COMPANY
MEMORANDUM OF ASSOCIATION
5.1 CONSTITUTION OF COMPANY
5.1-1 Requirements of the Memorandum of Association
5.1-2 Forms of Memorandum
5.1-3 Subscription clause
5.1-4 Name clause
5.2 REGISTERED OFFICE CLAUSE
5.3 RELEVANCE OF REGISTERED OFFICE
5.3-1 Maintaining registers and records
5.3-2 Jurisdiction of Courts, ROC etc
5.3-3 Suit should normally be filed where registered office is situated
5.3-4 Jurisdiction where cause of action
5.4 OBJECTS CLAUSES IN MEMORANDUM
5.4-1 Incidental Powers
5.4-2 Memorandum should not contain 'negative' clauses in object clause
5.4-3 'Implied' powers of a company and powers which are not 'implied'
5.4-4 Distinction between powers and objects
5.4-5 Object clause in companies registered under 1956 Act
5.5 CAPITAL CLAUSE IN MEMORANDUM OF ASSOCIATION
5.5-1 Minimum paid up capital
5.5-2 Publication of authorised as well as subscribed and paid up capital
5.6 SUBSCRIBER TO MEMORANDUM OF ASSOCIATION OF A COMPANY
5.7 PERSONS ENTITLED TO OBTAIN COPIES OF MEMORANDUM AND ARTICLES OF THE COMPANY AND CERTAIN RESOLUTIONS
5.8 MODEL DRAFT MEMORANDUM OF ASSOCIATION
5.9 ACTS BEYOND MEMORANDUM ULTRA VIRES
5.9-1 Doctrine of constructive notice
5.9-2 Effect of ultra vires acts of company
5.9-3 Applicability of doctrine of 'ultra vires' Indian Companies Act
5.9-4 Dilution of doctrine of 'ultra vires'
5.9-5 Doctrine of 'Indoor Management'
5.9-6 Doctrine of ostensible authority
5.9-7 Act beyond memorandum can be ratified
ALTERATION OF MEMORANDUM OF ASSOCIATION
6.1 BACKGROUND
6.1-2 Procedure for Amending Memorandum
6.2 PROCEDURE FOR CHANGE OF NAME
6.2-1 Display of old name for two years on letter heads, bill heads, at the office etc
6.2-2 SEBI Guidelines in respect of change of name of listed company
6.2-3 Effect of change of name of company on rights and liabilities
6.3 DIRECTING A COMPANY TO RECTIFY ITS NAME
6.3-1 Issue direction if name approved through inadvertence
6.3-2 Principles of natural justice should be followed
6.3-3 Penalty for non-compliance
6.4 CHANGE OF REGISTERED OFFICE OF COMPANY
6.4-1 Change of registered office within same State
6.4-2 Transfer of registered office of a company from one State/Union territory to another State/Union territory
6.4-3 Procedure for change of registered office to another State/Union territory
6.4-4 Procedure for submitting petition
6.4-5 Central Government can condone delay in filing copy of order
6.4-6 Principles followed while approving change of registered office
6.5 CHANGE OF OBJECT CLAUSE
6.5-1 Remedy available to a person aggrieved by amendment to object clause
6.6 CHANGING CAPITAL CLAUSE IN THE MEMORANDUM OF ASSOCIATION OF A COMPANY
6.6-1 Procedure for increase in authorised capital of a company
6.7 COMPULSORY AMENDMENT TO MEMORANDUM BY ORDER
ARTICLES OF ASSOCIATION AND ITS ALTERATION
7.1 RULES FOR INTERNAL MANAGEMENT OF COMPANY
7.1-1 Companies must have Articles
7.1-2 Omnibus Clause in Articles
7.1-3 Model Articles
7.2 BINDING NATURE OF ARTICLES
7.2-1 Binding nature of private agreement among members of a company
7.2-2 Private agreement can be considered in family managed companies
7.2-3 Company not bound to outsiders by its Articles
7.3 RESTRICTIVE CLAUSES IN ARTICLES OF A COMPANY
7.3-1 Entrenchment on rights under special resolution
7.3-2 Entrenchment provisions in Articles only where special resolution is required
7.3-3 Notice to ROC of entrenchment clause
7.3-4 Veto rights in Articles of Association
7.3-5 Other rights cannot be curtailed
7.4 PROVISIONS AS APPLICABLE TO ARTICLES OF PRIVATE LIMITED COMPANY
7.5 SUGGESTED DRAFT OF ARTICLES
7.6 ALTERATION OF ARTICLES OF ASSOCIATION
7.6-1 Restrictions on alteration of Articles of a company
7.6-2 Powers to amend Articles can be curtailed by amending Articles
7.6-3 Secretarial Practice for Amending Articles of a company
7.6-4 Compulsory alteration of Articles
II CAPITAL OF A COMPANY
CAPITAL OF THE COMPANY
8.1 'OWN FUNDS' AND 'LOAN FUNDS'
8.1-1 Different kinds of shares
8.1-2 Meaning of 'Securities'
8.1-3 Equity Shares
8.1-4 Authorised capital of a company
8.1-5 Issued, called up and subscribed capital
8.1-6 Consolidation, division and cancellation of shares
8.1-7 Paid up Capital
8.1-8 Reserve Share Capital when unlimited company converts into limited company
8.2 PREFERENCE SHARES
8.2-1 Voting rights of preference shareholders
8.2-2 Irredeemable preference shares cannot be issued
8.2-3 How to redeem preference shares
8.2-4 Income tax in respect of additional amount paid on redemption of preference shares
8.2-5 Kinds of preference shares a company is allowed to issue
8.2-6 Cumulative Convertible Preference Shares
8.2-7 Advantages and disadvantages of preference shares
ISSUE OF SECURITIES
9.1 VARIOUS MODES OF RAISING CAPITAL
9.1-1 Purposes for which shares can be issued by a company
9.1-2 Restrictions on buying own shares or financial aid to others
9.1-3 Income Tax provisions regarding expenses in issue of securities
9.2 ISSUE OF SHARES AT PREMIUM
9.2-1 Securities premium account
9.2-2 Issue of shares at discount prohibited
9.2-3 Issue of shares otherwise than for cash
9.2-4 Issue of shares in lieu of debt is allotment for cash
9.3 ISSUE OF EQUITY SHARES WITH DIFFERENTIAL RIGHTS
9.3-1 Explanatory statement with proposed resolution
9.3-2 Other conditions for issue of shares with differential rights
9.3-3 Report of Board of Directors
9.4 PRIVATE PLACEMENT OF SECURITIES
9.4-1 Procedure for issue of securities on private placement basis
9.4-2 Some provisions not applicable to private issue of shares
9.4-3 Debenture with option to convert into shares
9.5 CONVERSION OF DEBENTURES OR LOANS INTO SHARES AS PER LOAN AGREEMENT
9.6 COMPULSORY CONVERSION OF DEBENTURES AND LOANS GIVEN BY CENTRAL GOVERNMENT INTO EQUITY SHARES OF THE COMPANY
9.7 WARRANTS
PROCEDURE FOR ISSUE OF SECURITIES
10.1 PRELIMINARY STEPS IN ISSUING SECURITIES
10.1-1 Application money payable on shares being issued
10.1-2 Face value of shares
10.2 ALLOTMENT OF SHARES
10.2-1 Shares come into existence after allotment
10.2-2 Withdrawal of consent or issue of public notice
10.2-3 Withdrawal of offer for purchase of shares
10.2-4 Return of Allotment of securities
10.3 IMPROPER AND IRREGULAR ALLOTMENT
10.3-1 Irregular allotment i.e. voidable Allotment
10.3-2 Consequences of irregular allotment
10.3-3 Consequences of failure to get the shares listed in Stock Exchanges named in the prospectus
10.4 CALLS ON SHARES AND FORFEITURE
10.4-1 Calls in advance
10.4-2 Forfeiture of shares
10.4-3 Reissue of forfeited shares
10.4-4 Surrender of partly paid shares
10.4-5 A company cannot forfeit fully paid up shares
10.4-6 Reduction in capital instead of forfeiture of partly paid shares
FURTHER ISSUE OF SECURITIES
11.1 RIGHTS ISSUE
11.1-1 When rights issue is not required
11.1-2 Issue of shares by private company
11.1-3 Letter of Offer in case of rights issue
11.1-4 Prospectus not required in rights offer even with right of renunciation
11.1-5 Meaning of 'renunciation of rights Offer'
11.1-6 Application for additional shares in rights issue
11.1-7 'Fractional Rights' in case of rights issue of shares
11.1-8 Issue of rights shares to be kept in abeyance if transfer of shares not registered
11.2 'PREFERENTIAL ALLOTMENT' IN CASE OF FRESH ISSUE OF SECURITIES
11.2-1 Preferential allotment in case of public unlisted company or private company
11.3 BONUS SHARES
11.3-1 Conditions for issue of bonus shares by capitalizing profits or reserves
11.3-2 Capitalisation of profits
11.3-3 Board to act on the basis of ordinary resolution in general meeting
11.3-4 Fractional certificate or payment of cash
11.3-5 Effect of issue of bonus shares
11.3-6 When right to bonus crystallises
11.3-7 Expenses in issue of bonus shares are revenue expenses
11.3-8 Bonus shares cannot be issued out of revaluation reserves
11.3-9 Bonus shares, dividend are accretions to pledged stock
11.3-10 Making partly paid shares fully paid up by bonus issue
11.3-11 Issue of Bonus and rights shares to be kept in abeyance if transfer of shares not registered
11.3-12 Income Tax Aspects of bonus shares
11.3-13 Bonus debenture
11.4 SWEAT EQUITY SHARES
11.5 EMPLOYEE STOCK OPTION/STOCK PURCHASE
11.5-1 Income Tax aspects of ESOS/ESOP
11.5-2 Issue of shares under Employees Stock Options Scheme to persons resident outside India
11.5-3 ADR/GDR based ESOP to employees in knowledge based sector
11.5-4 ESOP by foreign company
11.6 GLOBAL DEPOSITORY RECEIPTS (GDR)
PUBLIC ISSUE OF SECURITIES
12.1 BACKGROUND
12.1-1 Offer for sale of securities by existing shareholder/s
12.1-2 Compulsory issue of shares in demat form in certain cases
12.1-3 'Minimum Subscription' in case of issue of shares
12.2 STOCK EXCHANGE REQUIREMENTS FOR LISTING OF A SECURITY
12.2-1 Application for listing of securities
12.2-2 Allotment void if listing permission not granted
12.2-3 In principle approval before issue
12.2-4 New shares to be pari passu with old shares in public issue
12.3 RESTRICTIONS ON UTILISATION OF FUNDS COLLETED WHILE ISSUING SHARES TO PUBLIC
12.3-1 Provisions regarding refund and interest mandatory
12.3-2 Punishment for default
12.4 COMMISSION THAT CAN BE PAID WHILE ISSUING SECURITIES
12.4-1 Underwriting Commission
12.5 PUNISHMENT FOR PERSONATION FOR ACQUISITION, ETC. OF SECURITIES
PROSPECTUS
13.1 INVITATION TO SUBSCRIBE FOR SECURITIES OF COMPANY
13.1-1 Definition of prospectus
13.1-2 Procedure relating to Prospectus
13.1-3 When issue of prospectus is not required