Companies Act, 2063 (2006)

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Transcription Act, 2063 (2006)Date of Authentication:2063.7.7 (3 November 2006)1. Some Nepal Act (Amendment) Act, 20642064.5.9 (26 August 2007)Act Number 18 of the Year 2063 (2006)An Act made to amend and consolidate the law relating to companiesPreamble: Whereas, it is expedient to amend and consolidate the law relating tocompanies in order to bring about dynamism in the economic development of thecountry by promoting investment in the industry, trade and business sectors througheconomic liberalization and make the incorporation, operation and administration ofcompanies much easier, simpler and more transparent;Now, therefore, be it enacted by the House of Representatives in the First Yearof the issuance of the Proclamation of the House of Representatives, 2063 (2006).Chapter 1Preliminary1.Short title and commencement: (1) This act may be called as the “CompaniesAct, 2063(2006)”.(2) This Act shall be deemed to have come into force on 20 Ashwin2063 (6 October 2006).2.Definitions: In this Act, unless the subject or the context otherwise requires,(a)“Company” means a company incorporated under this Act.(b)“Private company” means a private company incorporated under thisAct.(c)“Public company” means a company other than a private company.(d)“Holding company” means a company-having control over a“Subsidiary company” means a company controlled by a holdingcompany.(f)“Foreign company” means a company incorporated outside Nepal.(g)“Listed company” means public company which has its securities listedin the stock exchange.(h)“Company not distributing profits” means company incorporated underChapter 19 on conditions that it shall not be entitled to distribute or payto its members any dividends or any other moneys out of the profitsearned or savings made for the attainment of any objectives.(i)“Promoter” means a person who, having consented to the matterscontained in the memorandum of association and the articles ofassociation to be furnished in the Office for the incorporation of acompany, signs the same in the capacity of promoter.(j)“Officer” includes director, chief executive, manager, companysecretary, liquidator and any employee undertaking departmentalresponsibility of the company.(k)“Memorandum of association” means the memorandum of associationof a company.(l)“Articles of association” means the articles of association of a company.(m)“Prospectus” means a prospectus to be published by a company pursuantto Section 23.(n)“Share” means the divided portion of the share capital of a company.(o)“Preference share” means a share issued as a preference share pursuantto this Act.(p)“Ordinary share” means a share other than a preference share.(q)“Bonus share” means a share issued as an additional share toshareholders, by capitalizing the saving earned from the profits or fund of a company, and this term includes the increase of thepaid up value of a share by capitalizing the saving or reserve fund.(r)“Shareholder” means a person having ownership in the share of acompany.(s)“Debenture” means any bond issued by accompany whether putting itsassets as collateral or not.(t)“Debenture trustee” means a body corporate undertaking theresponsibility for the protection of interests of debenture-holders at thetime of issuance of debentures by a company.(u)“Register” means a register of shareholders or debenture-holdersmaintained under Section 46.(v)“Seal of company” means the seal of a company to be used by it.(w)“Securities Board” means the securities board established under theprevailing law to regulate and manage securities.(x)“Securities” means any shares, bonds, debentures or stocks issued by acompany, and this term includes the receipt relating to deposits ofsecurities and the rights and entitlement relating to securities.(y)“Director” means any director of a company and this term includes anyalternate director.(z)“Board of directors” means the board of directors of a company.(z1)“Managing director” means a managing director of a company.(z2)“Premium share” means a share so issued by a company as to sell it fora value in excess of its face value.(z3)“Net worth” means the assets of a company remaining after deductingthe paid up capital, reserve, fund or free reserve of whatever designationto which shareholders have right or all other liabilities other thangoodwill, if any, of the company as well as loss provisions , if any, fromthe total assets of the company for the time“Consensus agreement” means an agreement made unanimously by allthe shareholders of a private company existing for the time being inrespect of the operation of the company.(z5)“Office” means the Company Registrar’s Office set up by theGovernment of Nepal for the administration of companies.(z6)“Register” means the Registrar of the Office.(z7)“Independent director” means any independent director appointed underSub-section (3) of Section 86.(z8)“Court” means the commercial bench of a court specified by theGovernment Nepal by a notification in the Nepal Gazette, with theconsent of the Supreme Court.(z9) “Close relative” means a partition shareholder in joint family or husband,wife, father, mother, mother-in -law, father-in- law, elder brother,younger brother, elder sister, younger sister, sister-in–law ,(elder oryounger brother’s wife), brother-in–law , sister–in–law, brother-in- law,(husband of elder sister), uncle, aunt, maternal uncle, maternal aunt, son,daughter, daughter-in-law ,grand–son, grand-daughter, grand-daughterin– law or son-in–law .(z10) “Prescribed” or “as prescribed” means prescribed or as prescribed by theGovernment of Nepal by a notificationin the Nepal Gazette.Chapter 2Incorporation of Company3.Incorporation of Company: (1) Any person desirous of undertaking anyenterprise with profit motive may, either singly or jointly with others,incorporate a company for the attainment of one or more objectives set forth inthe memorandum of association.(2) There shall be a minimum of seven promoters for the incorporationof a public, however, that seven promoters shall not be required for theincorporation of another public company by any public company.(3) Notwithstanding anything contained elsewhere in this Section, acompany not distributing profits may, subject to the provisions contained inChapter-19, be incorporated for the attainment of one or more objectives.4.Application to be made for incorporation of company: (1) Any persondesirous of incorporating a company pursuant to Section 3 shall make anapplication to the Office, in such format and accompanied by such fees asprescribed, and along with the following documents, as well:(a)The memorandum of association of the proposed company,(b)The articles of association of the proposed company,(c)In the case of a public company, a copy of the agreement,if any, entered into between the promoters prior to theincorporation of the company,(d)In the case of a private company, a copy of the consensusagreement, if any, entered into ,(e)Where prior approval or license has to be obtained fromanybody under the prevailing law prior to the registrationof a company carrying on any particular type of businessor transaction pursuant to the prevailing law, suchapproval or license,(f)Where the promoter is a Nepalese citizen, a certified copyof the citizenship certificate and where a corporate body isa promoter, a certificate of registration of incorporation,decision of the Board of directors, regulating theincorporation of the company and major documentsregarding incorporation.(g)Where the promoter is a foreign person or company orbody, permission obtained under the prevailing law investment or carry on business or transaction inNepal,(h)Where the promoters is a foreign person, a documentproving the country of his/her citizenship,(i)Where the promoter is a foreign company or body, acertified copy of the incorporation of such company orbody and major documents relating to such incorporation.(2) Notwithstanding anything contained in Sub-section(1), if thepromoter agrees to accept the articles of association in the format prescribed forthe incorporation of a company with a single promoter of single shareholder, itshall not be required to submit the articles of association of the proposedcompany.5.Registration of company: (1) Where an application is made for theincorporation of a company pursuant to Section 4, the Office shall, aftermaking necessary inquiries, register such company within 15 days after thedate of making of the application and grant the company registration certificateto the applicant, in the format as prescribed.(2) After a company has been registered pursuant to Sub-section (1), thecompany shall be deemed incorporated.(3) The office shall maintain company register in the format asprescribed, for purpose of Sub-section (1).(4) After the incorporation of a company under this Section, subject tothis Act, the matters contained in the memorandum of association and thearticles of association shall be binding on the company and its shareholders asif these where the provisions contained in separate agreements between thecompany and every shareholder and amongst its shareholders.(5) Without registering a company under this Act, no person shall usethe name company and carry on any kind of transaction by the name of anyfirm or to refuse to register company: (1) The Office may refuse to register acompany in any of the following circumstances:(a)If the name of the proposed company in identical with thename by which a company in existence has beenpreviously registered or so resembles the name of thatcompany as it might cause misleading,(b)If the name or objective of the proposed company iscontrary to the prevailing law or appears to be improper orundesirable in view of public interest, morality, decency,etiquette etc. or reflects criminal motive ,(c)If the name of the proposed company is identical with thename of a company of which registration has beencancelled pursuant to this Act or that of a company whichhas been insolvent under the prevailing law or soresembles such name as it might cause misleading and aperiod of five years shall not expired after suchcancellation of registration or insolvency,(d)If the requirements for the incorporation of a companyunder this Act are not fulfilled.(2) If the office refuses to register company in any of the circumstancesas referred to in Sub-section (1) it shall give a notice there of, accompanied bythe reasons therefore, to the applicant no later than 15 days after the date ofapplication made for the incorporation of company pursuant to Section 4.(3) If the office refuses to register any company pursuant to Sub-section(1) or fails to give a notice pursuant to Sub-section (2), a person who is notsatisfied may file a complaint in the court within fifteen days.7.Company to be a body corporate: (1) Any company incorporated under thisAct shall be an autonomous and corporate body with perpetual Subject to this Act, company like an individual, acquire, hold, sell,dispose of or otherwise deal with, any movable or immovable property.(3) A company may sue and be also sued by its own name.(4) A company may, like an individual, enter into a contract andexercise the rights and perform the obligations as referred to in the contract.8.Limited liability: The liability of a shareholder of a company incorporatedunder this Act in respect of its transactions shall be limited on to the maximumvalue of shares which he has subscribed or undertaken to subscribe.9.Number of shareholders: (1) The number of shareholders of a private companyshall not exceed fifty.(2) Subject to the proviso to Sub-section (2) of section 3, the number ofshareholders of a public company shall be seven in minimum and a maximumof any number.(3) Notwithstanding anything contained in Sub-section (1), anyemployee who has purchased a share of a company under scheme of sellingshares to employees or any employee who has already purchased a share undersuch scheme but is not in service of the company for the time being shall not becounted as a shareholder.10.Terms to be abided by company: An company incorporated under this Actshall abide by the following terms, in addition to those set forth in this Art,memorandum of association or articles of association:(a)The company shall carry on all of its activities and transactions by itsname.(b)A private company shall add the words “private limited’’ to its name asthe last words and a public company shall add the word “limited” to itsname as the last word.Provided, however, that this provision shall not apply to acompany not distributing profit.(c)A private company shall not sell its shares and debentures private company shall not pledge, or otherwise transfer title to, itssecurities to any person other than its shareholder without fulfilling theprocedures contained in the memorandum of consensus agreement,(e)A company shall not open a partnership or private firm.(f)Except as otherwise provided in this Act, a company not distributingprofits shall not distribute dividends among its members or pay, directlyor indirectly, any amount to a member or his/her close relative.11.Paid up capital of public company: (1) The paid up capital of a publiccompany shall be a minimum of ten million rupees, except as otherwiseprovided in the prevailing law or in a notification by the Government of Nepalin the Nepal Gazette that the paid up capital of any particular company shall bein excess of the said required minimum.(2) Notwithstanding anything contained in subsection (1), a publiccompany which does not have the paid up capital as mentioned in that Subsection at the time of commencement of this Act shall maintain the capitalreferred to in Sub-section (1) no later than 22 Ashwin 2065 (8 December 2008).12.To be incorporated as public company to carry on some specifictransactions: Notwithstanding anything contained elsewhere in this Act, acompany carrying on the business of banking, financial transactions, insurancebusiness related transactions, stock exchange business, pension fund or mutualfund or a company carrying on such other business or transactions as may beprescribed shall be incorporated as a public company.13.Conversion of private company into public company: (1) In the followingcircumstances, a private company shall be converted into a public companyunder this section:(a)If the general meeting of the private company, by adoptinga special resolution, decides to convert that company intoa public company,, however, that no private company shallbe capable of being converted into a public companyunless and until it fulfills the requirements to be fulfilledunder this Act for being a public company(b)If twenty five percent or more of the shares of a privatecompany are subscribed by one or more than one ercentage as referred to in this Clause, the share passedby any banking or financial company as a trustee shall notbe calculated.(c)If a private company subscribes twenty five percent ormore of the shares of a public company.(2) In the circumstances as refer to in Clause (a) of Sub-section (1), theconcerned private company, shall for being converted into a public company,make an application as prescribed, accompanied by a copy of the resolutionmentioned in that Clause and by the fees as prescribed , to the office withinthirty days after the date of such resolution.(3) On receipt of an application pursuant to Sub-station (2), the officeshall, if the concerned private company has fulfilled the necessary requirementsfor carrying on transactions as a public company, mention in the companyregister the contents of conversion of such company into a public company andgive a company conversion certificates as prescribed within sixty days.(4) If any private company has to be converted into a public companyowing into the circumstances referred to in Clause (b) or (c) of Sub-section (1),the concerned private company shall make an application, as prescribed, settingout all details, accompanied by the fees as prescribed, to the Office for beingconverted into a public company within seven days after the date of occurrenceof such On receipt of an application pursuant to Sub-section(4), the Officeshall, if such company has fulfilled the requirements to be fulfilled by a publiccompany under this Act to carry on transactions, mention in the companyregister the contents of conversion of company into a public company and givea company conversion certificate as prescribed.(6) If private company is converted into a public company pursuant tothis Section, any subsidiary company of that company, as well, shall, ipso factobe deemed to have been converted into a public company in the same date.(7) In the event of conversion into a public company pursuant to Subsection (6), it shall be the obligation of the concerned company to make anapplication, accompanied by the required documents, to the Office to getrecorded in the company register the contents of conversion of such subsidiarycompany into a public company and obtain the certificate.(8) In the event of conversion of any private company into a publiccompany pursuant to this Section, the provisions applicable to the publiccompany under this Act shall be deemed to be, ipso facto, applicable to thatcompany after the date of such conversion.(9) In the event of conversion of any private company into a publiccompany pursuant to this Section, all the assets and liabilities of the privatecompany so converted shall devolve on the successor company.14.Conversion of public company into a private company: (1) In the followingcircumstance, a public company shall be converted into a private companyunder this Section:(a)If the number of shareholders of the public companybecomes less than seven,(b)If the public company fails to maintain its paid-up capitalunder Section 11 or the paid-up capital as referred to insection 11 is not maintained because of reduction incapital pursuant to section, however, that this provision shall notapply to the company as referred to in Sub-section (2) ofSection 11.(2) In the event of occurrence of a circumstance as referred to in Subsection (1), the concerned public company shall make necessary amendmentsto its memorandum of association and articles of association and convert it intoa private company within six months.(3) The concerned public company shall make an application,accompanied by copies of the memorandum of association and articles ofassociation amended pursuant to sub- section (2) and the prescribed fees, to theOffice for being converted into a private company, within thirty days after themaking of such amendment.(4) On receipt of an application pursuant to Sub-section(3),the Officeshall mention in the company register the contents of conversion of suchcompany into a private company and give a company conversion certificate, asprescribed, within sixty days.(5) In the event of conversion of any public company into a privatecompany pursuant to Sub-section (4), all the assets and liabilities of the publiccompany to be so converted shall devolve on the successor company.15.Service of summons, notice etc: (1) Notwithstanding anything contained inthe prevailing

anybody under the prevailing law prior to the registration of a company carrying on any particular type of business or transaction pursuant to the prevailing law, such approval or license, (f) Where the promoter is a Nepalese citizen, a certified copy of the citizenship certificate and where a corporate body is .

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