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Share capital-Funds subscribed by members Loan capital-funds provided by commercial finance providers and investors holding debentures or debenture stocks. All funds whether provided by members creditors or retention of profits plus the assets in which funds has Ombella J.S: Contacts: been invested. By
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Traditionally, however, the capital of the company can still be in a different unit that shares that is stocks. A stock is one unit of the company capital comprising several number of shares put together. Example a company may wish that every 100 shares be bound to form one Unit of stock.
Stock is not divided into equal parts/denomination Subject to the articles Stocks may be bought or sold in any convenient multiples or sub division Stocks bears no distinguishing numbers as shares do
Companies can not issue stocks directly it can only convert its fully paid up shares into stock
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Nominal Capital
authorized
or
Registered
Is the sum mentioned in the capital clause of Memorandum and articles of Association of a company. It is a maximum amount which the company raises by issuing shares and on which the registration fee is paid.
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Issued Capital
This refers to the nominal value of shares which are offered to the public for subscription This is because the co. in most cases does not issue all capital at once In all circumstance it can not exceed he authorized capital
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Subscribed capital
This is the part of the issued capital which has been subscribed or taken by purchasers of the shares and allotted to them. This may be less than issued capital and can not exceed registered Capital.
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Called up capital
Is the part of the issued capital which have been called upon the shares. The tendency is that the company does not require the members to pay full for their shares. Thus the amount required to be paid is what is termed as the called up capital
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Paid up capital
Is the amount of called up shares capital which is actually paid to the company by the members. At the time when a member of a company have failed to pay steps like forfeiture or surrender of shares can be done by the company and the party respectively.
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The categorization can lead into four main classes of shares, these includes; Equity shares/ ordinary shares Preference shares Deferred or founders Shares Corporate shares
Ordinary shares claim the pool of surplus assets in the solvent winding up after the return of capital to all other shareholders. Ordinary shares usually carry one vote per share
Preference shares
It carries preferential rights in respects of dividend at a fixed amount or at a fixed rate. It also carries preferential rights in regard to payment of capital on winding up or otherwise
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15
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Corporate shares
Are the shares created by a company for issue to its employees. They are given to the managing staff and employees of the company
The company pays for them to the employees as fully paid up shares The companys trustee will look after these shares in the event of an employee leaving the company
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Alteration of the capital clause section 64/61 of the co Act& Decree respectively
Such powers may only be exercised by the company in general meeting and that must be authorized by the articles of association. A company can alter its capital clause in any of the following manners/ ways: a) Increase its share capital by new shares b) Consolidate and divide all or any of its share
CONTINUATION
into stock d) subdivide its shares, or any of them, into shares of smaller amount e) Cancel shares which have not been agreed to be taken Take note that alteration may be in terms of increasing or reducing or even restructuring the capital clause of the company
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Reduction of share Capital s 69/ 66 of the Co. Act & Decree respectively
A company can do either of the following: Extinguish or reduce the liability on any of its shares in respect of share capital not paid up; or Either with or without extinguishing or reducing liability on any of its shares;
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pay off any paid up share capital which is in excess of the requirements of the company,
alter its memorandum by reducing the amount of its share capital and of its shares accordingly
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Under the companies Act as opposed to the Decree there should be a lapse of about 35 days from the date of passing of a special resolution to the date of it coming into effect, The same alteration need be registered to the registrar of companies for it to be effective see section 69 (3).
4/29/2012 By Ombella J.S: Contacts: ombella@gmail.com or 0713227298 23
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This approach under the act has made a less intervention of the court in the process of reduction of the share capital of the company That requirement seem to have been substituted by the requirement of the declaration of solvency by the Director's accompanied by the Auditors Report
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Also the reduction need be gazzetted see section 69(4) of the Act Creditors whose interest seemed to be jeopardized have a right to object in court in 28 days after the resolution has been gazzeted, see section 71 of the Act
Formerly the resolution were to be filed in court for confirmation if the creditors will not object see section 67 of the Decree.
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Special resolution
Directors certificate of solvency Special resolution for reduction be gazzeted and announced in local news paper.
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A company may alternatively reduce its share capital in the following ways:
Forfeiture of shares, Surrender of shares, and Redemption of shares.
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Returning surplus capital; Releasing a liability to pay up capital, thus reducing the nominal value of the shares; Eliminating losses, which may be preventing the payment of dividends;
Cont..
Redemption of shares where there are insufficient distributable reserves; As part of a scheme of arrangement where there is a merger of two large companies of similar size; and Distribution shareholders. of
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dividends
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to
30
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Debentures
The most usual form of borrowing by a company is by issue of debentures The term debenture means; a document which either creates a debt or acknowledges it, or; an acknowledgment of debt and obligation or covenant to pay. This obligation is in most cases accompanied by charges.
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Debentures are therefore, a form of security which may be bought and sold in such a way as shares. In order to give lenders some security against non payment of their loans a charge is often made against the assets of the company.
Commonly prospectus
are
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issued
through
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As a general matter debts do not have the participation, voting, conversion and redemption rights that constitute the fundamental ingredients of equity securities. The debenture holders are regarded as and are the creditors of the company and not members
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Classes of debentures
According to negotiability
a) b) Bearer debentures Registered debenture
According To Security:
a) Secured debenture, b) Unsecured debenture
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According to Permanence:
a) Redeemable debentures; b)Irredeemable debentures see section 68/88 of the Act & decree respectively
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Coverage so far:
Meaning of capital of a company Share capital
Debt capital
Meaning and types
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Whenever a company has power to borrow, it has also powers to security for the debt by a charge on all or any of its properties. Charge means an interest or right which a lender or creditor obtains in the property of the company by way of security that the company will pay back the debt.
4/29/2012 By Ombella J.S: Contacts: ombella@gmail.com or 0713227298 39
Fixed charge
Is a charge which is against a specific, clearly and well defined property of the company. The property under charge is defined at the time of creation of charge.
The nature and identity of the property does not change during the existence of the charge. The company cannot transfer the property so charged before paying J.S:the creditor By Ombella Contacts: 4/29/2012 ombella@gmail.com or 0713227298 40 whose interest is protected under it
Floating charge
It is a charge on the classes of assets of the company both now and future That class of assets is one which, in the ordinary course of business of the company, is changing from time to time. It is contemplated by the charge that, until some steps are taken by or on behalf of those interested in the charge, the company may carry on business in ordinary way.
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When a charge holder takes some steps to enforce his charge, a floating charge becomes a fixed charge on the assets covered by that charge. At this time the company can not dispose off the cared assets without first paying off the charge holder
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REGISTRATION OF CHARGES
Every company must keep a register of charges affecting its assets The registrar must contain short description of the property charged, the amount of the charge the name of the person entitled to the charge See part iv of the companies Act for details, especially section 96/97 and 100/ 92 of Act & decree)
Duty to register
It is the duty of the company to register the charges. Read section 100 of the CA However the interested person may register it on his own cost and claim for compensation from the company Read section 102 on the content of the charge register at the registrars office
Effects of Registration:
It acts as a notice to the public at large that the charge holder has an interest in the charged property.
Once a certificate of charge is issued by the registrar, it is conclusive evidence that, the document creating the charge is properly registered.
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CONSEQUENSES OF NONREGISTRATION
A charge which is compulsory registerable but which is not registered is void See section 96 of CA
Omission to register the particulars of charge as required is punishable with fine. See section 101 (2) of the Companies Act
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Memorandum of satisfaction
Under section 104 of the companies act it is provided that, the registrar may, on evidence being given to his satisfaction that the debt for which any registered charge was given has been paid or satisfied , may order that a memorandum of satisfaction be entered on the register, and shall if required furnish the company with the copy there of
4/29/2012 By Ombella J.S: Contacts: ombella@gmail.com or 0713227298 49
MANAGEMENT OF A COMPANY
DIRECTORS
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Introduction
A company is not a natural person so it works through people called Directors. These are officers who constitute the board of directors. A company therefore can not work on its own although it is a person
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In Abadin Railway Co. v. Black Bros (1854) stated that; Directors are a body to whom is delegated a duty of managing general affairs of a Co. "A corporate body can only act through agents and it of course the duty of those agents so to act as best to promote the interest of corporation whose affairs they are conducting"
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In determining whether a person is a director or not it does not depend on the name but on the nature of the office has. That is the activities he performs and duties and liabilities that binds such a person in relation to the company. That he must have control, over direction, conduct, management and superintendent of the affairs of the Company.
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According to Lord Denin, directors are the directing mind of the company since the company
His lordship gave a clear position regarding the directors of the company as the directing mind of the company since it is as such not a natural person.
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A company may in many ways be likened to a human body. It has a brain and a nerve centre which controls what it does. It also has hands which hold the tools and act in accordance with directions from the centre.
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Some of the people in the company are mere servants and agents who are nothing more than the hands to do the work and cannot be said to represent the mind or will. Others are directors and managers who represent the directing mind and will of the company and control what it does.
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The state of mind of these managers is the state of mind of the company and is treated by the law as such.
See Bolton (Engineering) Co Ltd v TJ Graham & Co Ltd, HL, [1957] 1 QB 159. At page 172
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QUALIFICATION OF DIRECTORS
The provisions of the Act provides for the qualifications that a director should posses these qualifications include. Age; a director should be of age of majority i.e. not below 21 years and should not be of an age above 70 years.
What did the rule intend to bring in the aspect of company management?
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The rule intends to fill in the lacuna that was left with the Companies Ordinance. It also bring in the aspect of maturity in decision making as it directs on the minimum and maximum age limit.
Of important to note is that the Act does not prohibit having directors of lower age than 21 but not than 18.
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It also allows a life time director in as much as he was so appointed before the Act come into force.
Directors must also be of sound mind Directors must not be disqualified by any other laws
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Director must not be disqualified by any other order of the court as per section 196 Companies' Act Directors must have share qualifications, where the articles of Association of the company so direct. See, section 142 (1) of Companies Act.
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Types of Directors
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Shadow Directors
Is any person, other than a professional adviser, with whose instructions the Directors of the company normally comply (a person in accordance with whose directions or instructions the Directors of a company are accustomed to act). He is a person who is not a directors but on his influence to the directors, they rely much
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And implement his advice and they are accustomed as such so to act. This should be distinguished from a professional adviser who does his advice openly and when required. A shadow director hides behind the directors and does not claim to be a director In Re Hydrodam (Corby) Ltd, [1994] 2 BCLC 180
Cont..
Shadow directors are bound by the terms of the companies Act in the same way as it applies to the directors of the company Read: Bourne N. (1994) Business Law and Practice, Cavendish Publishing Ltd London, UK pp 113
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The court stated that in order for someone to be a shadow Director four things must be shown:
(a) there should be those who are the proper or de factor Directors of the company (b) that the person directed those Directors on how to act in relation to the company, (c) that those Directors acted in accordance with those By Ombella J.S: Contacts: directions and
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(d) that they were accustomed so to act.
As such this class of directors differ from a de facto director in the sense that they do not pose and claim to be as directors
After they have given the advice they do not go father to show as if they are directors
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Alternate Directors
The articles of association may provide for the appointment of alternate Directors.
They are persons, who are nominated by Directors to act in their absence.
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Cont.
They can only be appointed with the agreement of the majority of the Directors and he is entitled generally to perform all the functions of his appointer in his absence.
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De Facto Directors
Is a person who has not been validly appointed or who is disqualified but whom, in effect, occupies the position of, and acts as if he was a director. He is a person :
who assumes to act as a Director and who is held out as a Director by the company and he claims and purports to be a Director though he has never actually or validly been appointed as such
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One need to undertake the functions that are to be carried out by a director for him to be referred as a de facto director. In Re Richborough Furniture Ltd, Lloyd J. [1996] 1BCLC 507. stated his opinion, also in Secretary of State for Trade and Industry v. Tjolle [1998]1BCLC
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For someone to be made liable as a de facto Director, the court would have to have clear evidence that :
he had either been the sole person directing the affairs of the company or, if there were others who were true Directors, that he was acting on an equal footing with the others in directing the affairs of the company.
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If it is unclear whether the acts of the person in question are referable to an assumed Directorship, or to some other capacity such as a shareholder or, as here, a consultant, the person in question must be entitled to the benefit of doubt.
Executive Directors
Are directors concerned with the actual management of the company, They are involved in the day to day management of the Company. They are engaged by the company to work on full time basis. Generally, he must have a contract with the company that gives him the position as such
Cont
He have extensive management powers delegated to him by the articles and may, in practice, have specific titles within the company, for example, Managing Director Read:
Bourne N. (1994) Business Law and Practice, Cavendish Publishing Ltd London, UK pp 113 Dine Janet (5th Ed) (2005) Company Law, Palgrave Macimillan Hampshire UK page By Ombella J.S: Contacts: 165 4/29/2012 ombella@gmail.com or 0713227298 77
A managing director
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Is entrusted with substantial powers of management, which would not be otherwise exercisable by him. It thus include a director occupying the position of the managing director regardless of the name called.
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POSITION OF A DIRECTOR
Question: What is the relationship between the directors and the company? Directors as Agents or trustees of the Company;
a Company being an artificial person acts through directors who are elected representatives of shareholders. They are in eyes of law agents of a Company for which they act on its behalf.
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The law of relationship.
Agency
regulates
their
They are more than agents because they have some independent powers. They are not bound to consult the shareholders in most matters and the articles of Association gave them power to exercise such things without necessary consulting shareholder.
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Continuation:
It is even much true currently where the directors are not bound by any thing in the Memorandum of association of the company
Eastern Railway Co. v Itein it was stated that; (1872) LR & CH APP 149 are mere trustees or agents of the Co; that the trustees of Cos' money and properly and agent in the transaction they enter on to on behalf of Co.
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Fiduciary position
Directors position is that of fiduciary in nature. They stand to work for the benefit of the other who is a company. As such they should not consider their interest first but that of the company. In Re Forest Dean Coal mining Co., (1879) 10ChD 450
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DIRECTORS OF A COMPANY
DUTIES OF DIRECTORS
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Introduction
We should remind ourselves that being a company director is a wonderful thing for the person who is a company director. But it is a position of great responsibility which involves running the affairs of a company for the benefit of other people. It is a heavy responsibility we should not water down. Godsmith-UK 2006
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Directors duties have been spread out over numerous statutes and case decisions making it difficult for directors to know when they may have breached their duties to the company. The statutory l duties of directors replace those previously decided and set by case law.
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It is important that any director whether of a big or small company is familiar and complies with their duties.
Ignorance is no defense and; the consequences can be severe both for the company and personally. As a director you must always act in the best interests of the company.
Duties of Directors
Duty of care and Skills: section 185 Duty to act in good faith: section 182 Duty to disclose interest: section. 209 Duty in relation to employees: section 183 Duty to exercise Powers for proper purposes: section 184 Contractual Duty.
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As such the directors must promote the successes of the Company. As a Director one must act in good faith for the success of the company and benefit of the shareholders having regard to the likely consequences of any decision long term. This will include considering the interests of:
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-Customers and others, the impact on the community and environment, maintaining the reputation of the company for having high standards of business conduct, acting fairly between members of the company and; subject to the legal requirements, to consider and act in the interests of creditors. Read: Peoples Department Stores Inc vs Wise [2004] 244 DLR (4th) 564
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This is sometimes referred to as a non-conflict rule, it imposed a duty upon a director not to place himself in a position where his duty to the company and his personal interests conflicts.
Avoidance of personal Profits: Disclosure of interests
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This is the duty that arises itself from the roots of the fiduciary position of the directors to the company. In the case of Bristol &West Building Society v Mothew (1998) Ch. 1
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continuation
he may not act for his own benefit or the benefit of a third person without the informed consent of the principal.
Mills v Mills where Dixon J said: "Directors of a company are fiduciary agents, and a power conferred upon them cannot be exercised in order to obtain some private advantage or for any purpose foreign to the power
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Continuation
The courts must determine whether, but for the improper or collateral purpose, the directors' powers would not have been exercised
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Continuation
Read the case of Permanent Building Society v Wheeler [1994] 12 ACLC 674 See section 184 of the Companies Act
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Contractual Duty.
In addition to the above duties, a director should remember his/her contractual duties under employment contract. Also beware of your rights and responsibilities as both an employee and a director
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Coverage so far:
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COMPANY MANAGAEMENT
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Introduction
A company is an association of several persons. Decisions are made according to the view of the majority. These dicissions take place at the various meetings, which take place between members and between the directors
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Class Meetings
Are meeting which are held by holders of a particular class of shares, e.g. preference shareholders. Such meetings are normally called when it is proposed to vary the rights of that particular class of shares. At such meeting, these members discuss the pros and cons of the proposal and vote accordingly.
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(See provisions on variations of shareholders rights s. 73 of Companies Act. Class meetings are held to pass resolution which will bind only members of the class concerned, and only members of that class can attend and vote. Procedures for calling are the same as AGM unless otherwise stated in Articles of Association
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Meeting of creditors:
A company, either as a running concern or in the event of winding up, has to make certain arrangements with its creditors. Meetings of creditors are called for purposes of 261 & 262, a co. may enter into:
arrangements with creditors with the sanction of the Court for reconstruction or any arrangement with its creditors.
4/29/2012 By Ombella J.S: Contacts: ombella@gmail.com or 0713227298 113
Members Meetings
These are meetings where the members/shareholders of the company meet and discuss various matters. Members meetings are of the following types
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Continuation
The notice calling the meeting must state the time, date and place of the meeting must be mentioned in the notice. It must be accompanied by :
a copy of the annual accounts of the company, directors report on the position of the company for the year and auditors report on the accounts.
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Continuation
Companies having share capital should also state in the notice that a member is entitled to attend and vote at the meeting and is also entitled to appoint proxies in his absence.
The AGM must be held on a working day during business hours at the registered office of the company or at some other place within the city, town or village in which the registered office of the company is situated
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In case of default in holding an annual general meeting, the consequences are provided under section 133(4) & (7).
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continuation
A notice of not less than 21 days is required 64 the AGM as per s. 135 of Co. Act 2002.
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Extraordinary general meeting is any meeting which is not AGM. Such meeting are called by board of directors for some reasons
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continuation
An explanatory statement of the special business must also accompany the notice calling the meeting. The notice must/should also give the nature and extent of the interest of the directors or manager in the special business, as also the extent of the shareholding interest in the company of every such person.
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Convening meetings:
In convening the meeting the following must be taken in account. Notice of the meeting to be issued not less than 21 days.
Authority to call the meeting, that is the meeting should be convened by required authority that is directors. Thus, if a person without authority issued a notice of meeting this void.
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A member may appoint another person to attend and vote at the meeting on his behalf.
A member may appoint different proxies for the different shares he holds in the Co. Also he can appoint different proxies in the sense that if one fails then the other may do so.
Is this same to Company representative in meetings see section 141 of the Companies Act
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continuation
However, a poll is allowed if a prescribed no of members demand a poll as stated in the MEMAT section 139(1)(b). A Co. cannot refuse a demand for a poll made by:
At least 5 members having the right to vote Any members representing one tenth or more of the total voting rights
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Revocation of a proxy
A proxy can be revoked by a member at any time and is automatically revoked by death or insolvency of a member. A member may revoke his proxy by himself before the proxy have voted, once a proxy has exercised the right to vote, a member can not retract his vote
Quorum:
Means the minimum no of persons who must be present for the meeting to be valid. A meeting which invalid quorum is void same as the decision there too. The articles of Association of a Co. shall provide for a quorum without which a meeting shall not constitute a quorum. See section 136 of the companies Act
MINORITY PROTECTION
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Continuation
The court will not therefore intervene the resolution passed by the majority since by agreeing to be a member in such a company, the shareholders agreed to submit to the will of majority of the members. Therefore the decision of the majority is the decision of the company
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CONTINUATION
Majority rule has its root in the famous case of Foss v Harbottle In this case the court ruled out as follows:
The wrong done to the company was one which could be ratified by the majority of members. The company was the proper plaintiff for wrongs done to the company, and the company can act only through its majority By Ombella J.S: Contacts: shareholders. 4/29/2012 ombella@gmail.com or 0713227298 135
Continuation
The majority of members should be left to decide whether to commence proceedings against the directors. Therefore, the court will not interfere with the company as long as all its decisions are covered under the articles and memorandum of association of a company.
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Continuation
In an Indian case Rajahmundry Electric Supply Co v Nageshwara Rao the court had the following to say: The court will not in general, intervene at the instance of shareholders in matters of internal administration, and will not interfere with management of the company by its directors so long as they are acting within the powers conferred on them under the articles of association.
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Continuation
With the growing trend of private companies where the possibility of a lot of shares being concentrated into the hands of a single shareholder the rule that the majority shall determine the fate of the company may be misused to the detriments of the minority. Thus the law need to protect them against this possible abuse by the majority
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Winding up on the 'just and equitable' ground. CA 2002, under section 233 under Chapter ten of the Act - the statutory remedy for 'unfairly prejudicial conduct'. Rules of conducting a meeting
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-ENDThanks for being attentive Presented by Ombella J.S HoD Research and Outreach Services Directorate of Quality Assurance & LL.M Programme Coordinator Faculty of Law Mzumbe University
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