Incorporation of SPV

Transcription

1 South Punjab Forest Company (SPFC), Government of the Punjab Incorporation of SPV TRANSACTION ADVISORY SERVICES FOR AFFORESTATION PROJECTS IN SOUTH PUNJAB UNDER PPP MODE Disclaimer This document is prepared by Grand Thornton Consulting (Pvt.) Limited to facilitate the bidders. The document bears no liability on South Punjab Forest Company (SPFC) nor does it reflect the policy of the organization.

2 1 Incorporation of SPV 1. Incorporation of an SPV After bidding, the Government Agency shall require the private contractor to incorporate a Special Purpose Vehicle (SPV) company. The incorporation of SPV shall be at the cost of the private contractor. Incorporation Procedure We understand that the Contractor will be undertaking the Project in a BOT model and therefore we would advise that a company be incorporated for the purpose as the special purpose vehicle ( SPV ) which can be sold to another private party following the operation and maintenance period or additional parties may participate in the Project by injecting equity into the SPV. Therefore, pursuant to the Companies Act 2017 ( CA17 ), the following process will apply for the incorporation of an SPV to undertake the Project: A subsidiary can be formed as a private company or a public company. The CA17, inter alia, regulates the incorporation, management and operation of limited liability companies in Pakistan and the agency, which implements the law and regulates such companies is the Securities and Exchange Commission of Pakistan (SECP) Private Company A private company can be formed by a minimum of two members (except for a single member company) and may commence its business immediately after its incorporation. A private company, through its Articles of Association; (a) (b) (c) restricts its members to transfer shares; limits the number of its members to fifty; and prohibits any invitation to the public to subscribe for its shares or debentures. For the purposes of incorporating an SPV in Pakistan we understand that the DCG has already decided to incorporate a private limited company, which is less cumbersome than incorporating a public company, and the reporting requirements to the SECP are less stringent than those for public companies. Therefore, we have restricted the scope of this Report to incorporation of private limited companies Grant Thornton Consulting (Pvt.) Limited 1

3 2 Incorporation of SPV 1.2. Documents Required For Incorporation The requirements that need to be complied with and the information that is required for the purposes of incorporating a private limited company in Pakistan are as follows: (a) Registration and reservation of company name/availability of Name The first step towards commencement of incorporation of a company is to make an application for confirmation of availability of the proposed name of the company to the SECP under section 10 of the CA17. In the event that the proposed name is found to be available, SECP issues a certificate of Confirmation of Availability of Name, within a period of two (2) days from the date of the application. It is pertinent to note that such availability remains valid for a period of sixty (60) days from the date of issuance of the certificate by SECP. (b) Submission of Documents to SECP Upon issuance of the Confirmation of Availability of Name certificate, the following constitutive documents and prescribed forms shall be required to be submitted to SECP for the purposes of the incorporation of the company: (i) Memorandum of Association: The MoA contains the fundamental provisions of a company's constitution and provides for the following (section 17 of the CA17): (A) In case of a private limited company, the parenthesis and the words (Private) Limited must appear in the company s name; (B) Every company must have a registered office where communications and notices can be addressed and served. A company is required to notify the CRO the address of such office at the time of incorporation; (C) The objects clause enumerates the purposes for which the company is established. A company may have a multiple objects clause or an exclusive object clause. These objects limit the extent to which a company can acquire rights and incur obligations; (D) The MoA clarifies that the liability of the members of the company is limited to the extent of the amount payable on the shares of the company; and

4 3 Incorporation of SPV (E) In case of a company with a share capital, the Memorandum must also state the amount of share capital with which the company proposes to be registered and the division of the share capital into shares of a fixed amount. (ii) Articles of a Company: The AoA contains provisions concerning the internal management of the Company. The Articles deal with basic issues, such as issue and transfer of shares, alteration in capital, general meetings, voting rights, appointment of directors, management by the board of directors, dividends, company seal, accounts, audit, winding up and other matters ancillary to the company. The AoA should be unambiguous, explicit and list and enumerate the voting and other rights attached to the different classes of shares. (Section 36 of the CA17) The following particulars in respect of each of the subscribers to the MoA and AoA of the company are required pursuant to Section 31 and 37 of the CA17 to be stated thereon: (A) (B) (C) (D) full name and father's name; nationality; occupation; and full residential address. The affixation of signatures of subscribers in the presence of a witness is required. The particulars of the witness are also required to be stated thereon. A company can also be a subscriber but has to sign as subscriber through an authorized representative who must be a natural person. If a company is the subscriber then address of registered office needs to be specified and the authorized representative signing the documents shall also add his particulars. (c) File the Relevant Documents Once the MoA and AoA are prepared a covering letter, addressed to the CRO is sent requesting for an incorporation certificate. This letter should set out the list of documents being filed and evidence of fee paid. The accompanying documents are:

5 4 Incorporation of SPV (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) Four (4) staple bound copies of the MoA and AoA (including one stamped copy); Form 1 (Declaration of compliance with the requirements for registration), this form is required to be completed by an advocate entitled to appear before the High Court/ Supreme Court of Pakistan or Chartered Accountant/ Cost & Management Accountant practicing in Pakistan engaged in the formation of this company or a person named in the articles as Director/ Officer of the proposed company; Form 21 (Notice of Situation of Registered Office) may be filed within 30 days (section 21); Form 29 (Details of the particulars of directors and other officers of the company) Form 29 must be in duplicate, may be filed within 15 days (section 197); Deposit receipt for payment of filing of Forms 1, 21 and 29 as well as registration fee for the Constitution of the company; Availability of name certificate; Notarized authority letter/power of attorney given to the person involved in the incorporation procedure; and Notarized copies of the identification documents (Passports) of the directors listed in Form 29. (d) Issue of certificate of incorporation After filing of documents, the CRO satisfies himself that the company is being formed for lawful purposes and that none of its objects stated in the MoA are inappropriate/deceptive or insufficiently expressive and that all the requirements of the CA17 have been complied with. He proceeds to register the MoA and AoA and issue a certificate of incorporation of the Company (on the lapse of one to three weeks) containing the registration number allotted to the company, along with an acknowledgment of filing of the prescribed documents will be issued. Private companies are allowed to commence business from the date of incorporation.

6 5 Incorporation of SPV 1.3. Post Incorporation Procedure The CA17 requires companies incorporated in Pakistan to file various statutory returns relating to meetings of members, issuance and allotment of shares, appointment of and change in directors, chief executive and auditors, annual audited accounts, annual list of members etc. with the Registrar within the prescribed time limits. (a) Other Filings (i) (ii) (iii) (iv) (v) (vi) Annual return on prescribed Form 'A' is required to be filed with the registrar concerned once in each year on the date of Annual General Meeting or, where no such meeting is held, on the last day of the calendar year (Section 130 of the CA17). In case of increase in paid-up capital, the company is required to offer new shares on prescribed circular under Section 83 of the CA17 to all the shareholders strictly in proportion to the shares held by them and on the allotment of shares, return of allotment on Form '3' is to be filed with registrar concerned within 45 days of the date of allotment of shares. Partly-paid shares are not allowed to be issued (Sections 70 & 83 of the CA17). The company is required to issue share certificates to its shareholders within 30 days of the date of allotment of shares (Section 71 of the CA17). Any appointment/change in the Directors, Chief Executive, Auditors, Chief Accountant, Legal Advisor is required to be notified to the registrar concerned on Form '29' within 15 days of the said appointment/change (Section 197 of the CA17). First auditors of a company have to be appointed by directors within ninety days of the date of incorporation of the company and subsequent auditors are appointed in each Annual General Meeting (Section 246 of the CA17). If a company has paid up capital of PKR 3,000,000 (Pak Rupees Three Million Only) or more, then their accounts have to be audited by a Chartered Accountant (Section 247 of CA17). Every mortgage or charge created by the company on its property or undertaking and every modification or satisfaction thereof is required to be registered with the concerned registrar within thirty (30) days after the

7 6 Incorporation of SPV date of its creation modification or satisfaction (Sections 100, 105 & 109 of the CA17). (vii) The directors of the company (whose paid up capital is more than PKR 500,000 (Pak Rupees Five Hundred Thousand Only)) shall appoint legal advisors within a year of the incorporation of the company (Rule 3 of the Companies (Appointment of Legal Advisors) Act, 1974) Requirements Of Company Law Regarding Board And CEO of Companies (a) Directors The management of companies is vested in the Board of Directors and they may exercise such powers as are specified in the AoA and the CA17. The first board meeting will consider the following items inter alia, appointment of auditors, bankers, legal advisors; adoption of common seal; opening of bank accounts, and matters relating to share certificates. The first directors are appointed by the subscribers to the MoA who remain in office until the first Annual General Meeting. (Section 157 of the CA17) First election of directors is required to be held at the first Annual General Meeting and subsequently after every three years in a general meeting of the company. The directors elected in a general meeting hold office for a period of three years. The directors may fill up casual vacancy occurring on account of death, resignation or removal for the remainder period (Section 161 of the CA17). A private limited company should have at least two directors (minimum). All directors must be natural persons. The directors must also be members of the company (subject to few exceptions). (b) Chief Executive All companies are required to appoint a Chief Executive Officer. The subscribers of the Memorandum of the company will submit the name and particulars of the proposed CEO along with the incorporation documents and shall be deemed to hold office from the date of incorporation. The first CEO appointed shall (unless he resigns earlier or otherwise ceases to hold office) hold office up to the first AGM of the company or if a shorter period is fixed by the directors at the time of his appointment, for such period. (section 186 of the CA17).

8 7 Incorporation of SPV Any subsequent CEO is appointed within fourteen (14) days from date of election of directors or the office of the CEO falling vacant. The term of the CEO from the date of appointment is three (3) years and he is eligible for reappointment. Any person can be appointed as CEO including an elected director and the terms and conditions of appointment of a CEO shall be determined by the directors or the company in general meeting in accordance with the company s AoA. The CEO shall if he already is not a director of the company to be deemed as a director and be entitled to all rights and privileges and subject to the liabilities of that office. The company is obliged to file Form 29 which includes details of the particulars of directors and other officers of the company with the CRO Meetings Statutory meeting is required to be held by a company, within a period of not less than three months nor more than six months from the date the company is entitled to commence business. The directors shall at least twenty-one (21) days before the date on which the meeting is held, forward a report (statutory report) to every member (Section 131 of the CA17). First AGM of the members (shareholders) is required to be held not later than sixteen (16) months from the date of incorporation and subsequently once every calendar year within a period of 120 days following the close of its financial year. The notice of an AGM shall be sent to the shareholders at least twenty-one (21) days before the date fixed for the meeting (section 132 of CA17). Any general meeting other than the AGM shall be called an extraordinary general meeting (EoGM). The directors, at any time, may call an EoGM to consider any matter, which requires the approval of the company in a general meeting and shall, on the requisition of members representing not less than one-tenth of the voting power on the date of the deposit of the requisition, forthwith proceed to call an EoGM. (section 133 of the CA17). Directors of every company are required to lay before the AGM audited accounts in case of first accounts for the period since the incorporation of the company and in any other case since the preceding account, made up to a date not earlier than the date of the meeting by more than six months (Section 223 of the CA17).

9 8 Incorporation of SPV 1.6. Capital Structure (Minimum Capital Requirement) Board of Investment is the investment promotion agency of Pakistan. The Board of Investment assists companies planning to invest in Pakistan or to expand their Pakistani operations. As per the prevalent Investment Policy (2013) of the BoI, there is no minimum requirement for the amount of foreign equity invested in any sector. Foreign investors are given the right to exchange Pak Rupees into any other freely convertible foreign currency, subject to Foreign Exchange Regulations of the SBP. Please note additionally that foreign investors can hold equity of one hundred percent (100%) for industrial projects and in the service, social, IT and telecommunications industries Time Frame For Setting Up A Private Company Please note that the process of incorporation of a private limited company generally takes a period of ten (10) to fourteen (14) days from the day the requisite documentation for the incorporation of the company is submitted to the CRO. If the CRO requests for any additional documents the time frame may extend by another week to ten (10) days Fees Payable/Costs For Formation Of Company The fee for such an application for availability of proposed name is PKR 200 (Pak Rupees Two Hundred Only) for online submission and PKR 500 (Pak Rupees Five Hundred Only) for physical submission. The MoA and AoA have to be affixed with adhesive stamps and the value of the stamps depends on the authorized share capital at the time of incorporation. Pursuant to section 469 of the CA17, a registration fee is payable to the SECP in accordance with the Seventh Schedule to the CA17. Such fee is calculated on the basis of the authorized share capital amount of the proposed company. Thus, the cost of incorporating a Pakistani company depends on its authorized capital as the registration fee is pegged to this amount. In addition, a filing fee is payable for each form required to be filed with the SECP. Furthermore, to make filings with the SECP, the directors and promoters of the proposed company are required to obtain digital signature certificates by payment of a fee if they choose to file forms through E-service of SECP which performs automated collection,

10 9 Incorporation of SPV acceptance and forwarding of submissions by companies of forms and documents to the SECP Security Clearance Security clearance in the form of an NOC issued by the Ministry of Interior used to be a prerequisite for registration of company having foreign shareholding investor/directors and for appointing foreigners as Directors, since July However, in March 2013 it has been clarified that this NOC is not a prerequisite but a condition subsequent to registration by SECP. SECP will now issue certificate of registration to foreign investors that will be subject to clearance from Ministry of Interior. Any appointment to the Board of Directors will be made subject to clearance from Ministry of Interior. If the Ministry of Interior does not give clearance then SECP will cancel registration of the Company and the appointment as Directors as the case may be. All foreigner shareholders/directors are to file an undertaking on stamp paper to the CRO that in case of security clearance not being given the SECP can cancel the registration of the Company and appointments as Directors. The SECP also sometimes requests for complete Bio Data of the subscribers/directors Formalities for Opening A Bank Account In case of companies, the constitutional documents and particulars of directors as reported to the SECP are sought by the banks. There are no restrictions on the use of a bank account by a holder of a local currency. Typically banks would require the following: (a) (b) (c) (d) (e) (f) (g) (h) (i) Account opening forms Signature cards Mandate for limited company Check Book Application Board Resolution List of Directors with Signatures on Company Letterhead Attested Memorandum and Article of Association Attested Certificate of Incorporation Attested Passport Photocopy of all the Directors