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A Presentation On The Salient Features Of The Companies Bill, 2009. September 26, 2009. Introduction.
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September 26, 2009
(a) seven or more persons, where the company to be formed is to be a public company, or
(b) two or more persons, where the company to be formed is to be a private company, or
(c) one person, where the company to be formed is to be a One Person Company.
(a) a company limited by shares, or
(b) a company limited by guarantee, or
( c) an unlimited company.
Clause 5. Memorandum of a company shall state –
Clause 6. The articles shall also contain such matters, as may be prescribed. Company free to provide Additional matters in he Articles.
-articles may contain provisions for entrenchment to the effect that specified provisions of the articles may be altered only if conditions or procedures as that are more restrictive than those applicable in the case of a special resolution, are met or complied with.
(i) memorandum and articles of the company duly signed by all the subscribers to the memorandum in such manner as may be prescribed;
(ii) declaration by an advocate, a Chartered Accountant, Cost Accountant or Company Secretary, engaged in the formation of the company, or by a person named in the articles as a director, manager or Secretary that all provisions have been complied with;
(iii) an affidavit from each of the subscribers to the memorandum and from persons named as first directors that no conviction of any offence in connection with the promotion, formation or management of any company, or that he has not been found guilty of any breach of duty to any company under this Act .
Affidavit to state that that all the documents filed with the Registrar for registration of the company contain information that is correct and complete and true to the best of his knowledge and belief;
(iv) the particulars of name, including surname or family name, residential address, nationality and such other particulars of every subscriber to the memorandum along with proof of identity, as may be prescribed, and in the case of a subscriber being a company, such particulars as may be prescribed;
(v) the particulars of the persons mentioned in the articles as first directors of the company, their names, including surnames or family names, the Director Identification Number, residential address, nationality and such other particulars including proof of identity as may be prescribed;
(vi) the particulars of the interests of the persons mentioned in the articles as first directors of the company in other firms or bodies corporate along with their consent to act as directors of the company in such form and manner as may be prescribed.
a) OPC may be registered as a Private Company with one member and may also have at least one director;
b) Adequate safeguards in case of death/disability of the sole person should be provided through appointment of another individual as Nominee Director. On the demise of the original director, the nominee director will manage the affairs of the Company till the date of transmission of shares to legal heirs of the demised member.
c) Letters ‘OPC’ to be suffixed with the name of One Person Companies to distinguish it from other Companies.
In case the duties are violated not only there is a levy of fine but also “class action/Derivative action” can be launched.
(i) to restrain the company from committing an act which is ultra vires the articles or memorandum of the company;
(ii)to restrain the company from committing breach of any provision of the company’s memorandum or articles;
(iii)to declare a resolution altering the memorandum or articles of the company as void if the resolution was passed by suppression of material facts or obtained by misstatement to the members or creditors;
(iv) to restrain the company and its directors from acting on such resolution;
(v) to restrain the company from doing an act which is contrary to the provisions of this Act or any other law for the time being in force;
(vi) to restrain the company from taking action contrary to any resolution passed by the members.
(a) all material facts relating to the company, such as the latest financial position of the company, the latest auditor’s report on the accounts of the company and the pendency of any investigation oro proceedings against the company;
(b) reduction of share capital of the company, if any, included in the compromise or arrangement;
(c) any scheme of corporate debt restructuring consented to by not less than seventy-five percent of the secured creditors in value, including –
(i) a creditor’s responsibility statement,
(ii) safeguards for the protection of other secured and unsecured creditors,
(iii) report by the auditor that the fund requirements of the company after the corporate debt restructuring as approved shall conform to the liquidity test based upon the estimates provided to them by the Board,
(iv) where the company proposes to adopt the corporate debt restructuring guidelines specified by the Reserve Bank of India, a statement to that effect, and
(v) a valuation report in respect of the shares and the property and all assets, tangible and intangible, movable and immovable, of the company by a registered valuer.
(i) conversion of preferential shares into equity shares: such preference shareholders shall be given an option to either obtain arrears of dividend in cash or accept equity shares equal to the value of the dividend payable ;
Apart from the above discussed salient features, the Companies Bill, 2009 contains other novel and path-breaking provisions which when passed, would apart from streamlining the current legislation and procedure, also enable the corporate sector in India to operate in a much liberalized regulatory environment that fosters entrepreneurship, investment and growth.