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Notes on Companies Act

Contents
Companies Act 2013 ............................................................................................................................... 2
Meaning of a company........................................................................................................................ 2
Definition of a company ..................................................................................................................... 2
Characteristics of a Company ............................................................................................................. 3
Separate legal entity ........................................................................................................................ 3
Perpetual succession ....................................................................................................................... 3
Common seal .................................................................................................................................. 3
Transferability of shares.................................................................................................................. 3
Separate property ............................................................................................................................ 3
Capacity to sue ................................................................................................................................ 3
Classification of Companies ............................................................................................................... 3
Classification on the basis of incorporation .................................................................................... 3
Classification on the basis of liability ............................................................................................. 4
Classification on the basis of number of members ......................................................................... 5
Classification on the basis of control .............................................................................................. 6
Classification on the basis of ownership ......................................................................................... 6
Incorporation of Company .................................................................................................................. 7
Certificate of incorporation : ............................................................................................................... 8
OPC One Person Company ............................................................................................................... 9
Incorporation of OPC.......................................................................................................................... 9
Small Company................................................................................................................................. 10
Introduction Small Company ........................................................................................................ 10
What is not a Small Company....................................................................................................... 11
Qualification of a Small Company: .............................................................................................. 12
Salient Features: ............................................................................................................................ 12
Special Provisions and Exemptions available to a Small Company ............................................. 12
Dormant Company:........................................................................................................................... 13
How a company applies: ............................................................................................................... 13
Special Provisions for Dormant company: ................................................................................... 13
MEMORANDUM-BASIC STRUCTURE ....................................................................................... 14
1. Name clause. ............................................................................................................................. 14
2 Situation clause. ......................................................................................................................... 15

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Notes on Companies Act

3 Object clause. ............................................................................................................................. 15


4 Liability clause. .......................................................................................................................... 16
5 Capital clause. ............................................................................................................................ 16
6. Association and subscription clause ......................................................................................... 16
Alteration on MOA ........................................................................................................................... 16
Change of Name ........................................................................................................................... 17
Change of Registered Office ............................................................................................................. 17
Change of object clause .................................................................................................................... 18
Articles of Association ...................................................................................................................... 18
Prospectus ......................................................................................................................................... 19

Companies Act 2013

Meaning of a company

A company is an artificial person created by law.

A company means a group of persons associated together for the attainment of a common
end, social or economic.

Definition of a company

According to Sec (1), “A company formed and registered under the act”. According to Sec
(3) of the act, “on incorporation a company becomes a body corporate or a corporation with a
perpetual succession and a common seal.” According to N.D.Kapoor,” IT is a voluntary
association of persons formed for some common purpose, with capital divisible into parts,
known as shares, and with a limited liability. It is a creation of the law and is sometimes
known as an artificial person with a perpetual succession and a common seal. IT exists only
in the eyes of the law, I.e., it is regarded by the law as person, just as a human being. But it
has no physical existence.”

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Notes on Companies Act

Characteristics of a Company
Separate legal entity

The company is having separate entity . So any of the share holder can enter into a contract
with the company in the same manner like any Individual . Though the share holder owns the
company the money and property of the company is of the company not of the share holders .
Limited liability

The liability of the members is either limited by shares or limited by guarantee .

Perpetual succession

Men may come and Men may go but company exist. The company never dies nor its life
depend on the life of its members.

Common seal

Every company has its seal all the transactions done by the company holds the common seal.
So the Seal is considered as the official signature of the company .

Transferability of shares

The capital of the company is divided in to several parts and that is called as Shares. These
shares are easily transferable who holds the share becomes the share holder.

Separate property

Though the assets of the company is contributed by its members the company can buy own
and dispose the assets in its own name

Capacity to sue

A company being a artificial person in eyes of law can sue and sued under its own name.

Classification of Companies

Classification on the basis of incorporation

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Notes on Companies Act

Statutory Registered

Basis of
Incorporation

Statutory companies: These are created by special act of the legislature – E.g.: The Reserve
bank of India – The Life Insurance corporation – The Unit Trust Of India

Registered Companies: These are the companies which are formed and registered under the
companies Act, 1956 or were registered under any of the earlier companies act.

Classification on the basis of liability

On Basis
of Liability

Limited Unlimited

Limited by Limited by
Shares Guarantee

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Notes on Companies Act

1. Companies with limited liability: A. Companies limited by shares E.g. Maharashtra


State Power Distribution Company Limited,

B. Companies limited by guarantee E.g.:Schools & Educational Establishments


Clubs & Associations Charities and Organisation intending to apply for charitable
status Churches & other Places of Worship Trade or Research Associations

2. Unlimited companies E.g.: Jonathan Rose co., – Wicks Group of companies –


Suyog system and Software pvt. Ltd.

Classification on the basis of number of members

Basis on Number
of Members

Public
Limited

Private
Limited
Private company – A private company means a company which has a minimum paid up
capital of Rs.1,00,000 or such higher paid up capital as may be prescribed , and by articles

(a) restricts the right to transfer its shares, if any. This restriction Is meant to preserve the
private character of the company

(b) limits the number of its members to 50 not including its employee-members

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Notes on Companies Act

(c) prohibits any invitation to the public to subscribe for any shares in or debentures of the
company

(d) prohibits any invitation or acceptance of deposits from persons other than its members,
directors and their relatives Public company – A public company means a company which
Has a minimum paid up capital of Rs.5 lakh or such high paid-up capital, as may be
prescribed

Classification on the basis of control

On basis of
Control

Holding Subsidary
Company Company
Holding company – A company is known as the holding company of another company if it
has control over that other company. Subsidiary company – A company is known as a
subsidiary of another company when control is exercised by the latter over the former called
a subsidiary company. Company controlling composition of Board of Directors Holding of
majority of shares Subsidiary of another subsidiary

Classification on the basis of ownership

Government company –A Government Company means any company in which not less than
51% of the paid-up share capital is held by The central government or Any state government
or governments or –Partly by the central government and partly by one or more state

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Notes on Companies Act

governments. E.g.: State Trading Corporation of India Limited Minerals and Metals Trading
Corporation of India limited

Non-government company –Foreign companies

MNCS/ TRANSNATIONAL COMPANY

A multinational corporation is a business enterprise that retains direct investments overseas


and that maintains value-added holdings in more than one country. A firm is not really
multinational if it just engages in overseas trade or as a contractor to foreign firms They are
also called transnational companies

Incorporation of Company

Incorporation Under section 12, any seven or more persons may form an incorporated
company for a lawful purpose by subscribing their names to the memorandum of association
and complying with other requirements in respect of registration. The application for
registration of a company should be presented to the registrar of the state in which the
business office of the company is to be situated. The application shall be accompanied by the
following documents.

1. The memorandum of association.

2. The articles of association, if any, duly signed by the subscribers of the memorandum.

3. A statement of the nominal capital and where it exceeds 25 lakhs, a certificate from the
controller of capital issues, permitting the issue of capital. This certificate is not required
under the companies Act 1956, but under the Capital Issues Control Act 1947.

4. A list of directors and their consent to act signed by each

5. An undertaking in writing signed by each such director to take and pay for their
qualification shares.

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Notes on Companies Act

6. A notice of address of the registered office of the company. This may be done within 30
days of registration if it cannot be filed at the time of registration.

7. A declaration that all the requirements of the act have been complied with. Such a
declaration may be signed by an advocate of the supreme court or high court, an attorney or
pleader entitled to appear before a high court, a chartered accountant practicing in India who
is engaged in the formation of the company, or by a person named in the articles as director,
manager or secretary of the company.

Items number 5 and 6 are not required to be filed in the case of a private company. If the
registrar is satisfied that all the requisite documents delivered to him are in order, he shall
register the memorandum and the articles, if any, provided he is satisfied on the following
point:

(a) The relevant provisions of the act have been complied with.

(b) The objects of the company are lawful.

(c) The requisite number of persons required under the act have subscribed and duly signed.

(d)The memorandum and the articles comply in all respects with the provisions of the act.

(e) The name selected by the company is acceptable.

(f) The statutory declaration has been properly made. If the registrar of companies is
satisfied that all the aforesaid requirements have been complied with, he will register the
company and place its name on the register of companies. It is clear that once the statutory
requirements have been complied with, the registrar has no option but to register it.

Certificate of incorporation :

On registration the registrar will issue a certificate of incorporation whereby he certifies that
the company is incorporated and in the case of a limited company, that the company is
limited. From the date of incorporation mentioned in the certificate, the company becomes a
legal person separate from its shareholders. The legal effect of incorporation is as under:

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Notes on Companies Act

1. A company becomes a body corporate distinct from its members. It becomes a legal
person and not a mere aggregate of the shareholders. Thus, where all the members of a
company were killed by a bomb the company was deemed to survive.

2. A company has a perpetual succession and a common seal it is an immortal being.

3. A company can sue and be sued in its own name.

4. A company has a right to hold and alienate its own property. The property of the company
belongs to the company itself and not to the individual members.

5. Company’s debts and obligations are the liabilities of the company only and cannot be
enforced against the individual shareholders.

OPC One Person Company

The Companies Act, 2013 introduces a new concept of “One person company”. This is the
first time such a concept is being introduced in India. Basically it is giving legal corporate
status of Proprietorship form of doing business.

DEFINITION: Section 2(62) defines a “One Person Company” means a company which has
only one person as a member.

Incorporation of OPC

Section 3(1)(c ) – OPC can be formed only as a private company. In the subscription clause
of the memorandum of association of an OPC, the member will state that he is subscribing to

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Notes on Companies Act

all the shares in the capital of the company. The Table F which is the model Articles of
Association of a company limited by shares incorporates provisions of an OPC especially
regarding membership, nominees, annual general meetings and board meetings. The relevant
clauses are clause 27, 48 and 76 respectively. Rule 3 of Companies (Incorporation) Rules
provides that: – only a natural person who is an Indian citizen and resident in India shall be
eligible to incorporate a OPC and to become a nominee for the sole member of the OPC (so
body corporates, foreigners cannot incorporate an OPC); - a person cannot incorporate more
than one OPC or become a nominee in more than one OPC; (But he can be a member of one
OPC and nominee of another OPC) - Where a member of an OPC becomes a member of
another OPC by virtue of his nomination in that second OPC, he shall opt out of either one
within a period of 180 days;

A minor cannot become a member or nominee of OPC or holds shares with beneficial
interest; An OPC cannot be incorporated or converted into a company under section 8 of the
Act, which is the erstwhile section 25 companies or not for profit companies; An OPC cannot
carry out NBFC activities including investment in securities of any body corporate; An OPC
cannot convert itself voluntarily into any kind of company for a period of two years from the
date of its incorporation unless within that period its paid up share capital increases to more
than Rs.50 lakhs OR average annual turnover during the relevant period exceeds Rs.2 crores;
Section 12(3) second proviso states that the words “One Person Company” shall be
mentioned in brackets below the name of such company wherever it is printed, affixed or
engraved.

Small Company

Introduction Small Company

The concept of “Small Company” has been introduced for the first time by the Companies
Act, 2013. The Act identifies some companies as small companies based on their capital and
turnover position for the purpose of providing certain relief/exemptions to these companies.
Most of the exemptions provided to a small company are same as that provided to a one
person company. Definition Section 2(85) defines a Small Company as – ‘‘small
company’’ means a company, other than a public company,— (i) paid-up share capital of
which does not exceed fifty lakh rupees or such higher amount as may be prescribed which
shall not be more than five crore rupees; or (ii) turnover of which as per its last profit and

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Notes on Companies Act

loss account does not exceed two crore rupees or such higher amount as may be prescribed
which shall not be more than twenty crore rupees:

What is not a Small Company:

a holding a company a company or


company or a registered body corporate
subsidiary under Section governed by
company; 8; or any special Act;

(A) a holding company or a subsidiary company;

(B) a company registered under Section 8; or

(C) a company or body corporate governed by any special Act;

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Notes on Companies Act

Qualification of a Small Company:

if either the capital is less than rupees fifty lakhs or turnover is less than rupees twenty
crores. It is sufficient if either one of the requirement is met without meeting the other
requirement. However, these limits may be raised but not exceeding rupees five crores in case
of capital and rupees twenty crores in case of turnover.

In other words, a holding or a subsidiary company can never enjoy the privileges of a small
company even though they may fulfill the capital or turnover requirement of a small
company. Similarly, a company may classify as a small company in a particular year but
may become ineligible in the next year and may become eligible again in the subsequent
year. A small company which has any associate company or joint venture will still be
required to prepare consolidated financial statements.

Salient Features:

Only a private company can be classified as a small company. Holding company, subsidiary
company, charitable company and company governed by any Special Act cannot be classified
as a small company. For a small company, either the paid up capital should not exceed
Rupees fifty lakhs or the turnover as per last statement of profit & loss should not exceed
rupees two crores. The status of a company as “Small Company” may change from year to
year. Thus, the benefits which are available during a particular year may stand withdrawn in
the next year and become available again in the subsequent year.

Special Provisions and Exemptions available to a Small Company

All the exemptions available to a small company are provided below. The annual return of a
Small Company can be signed by the company secretary alone, or where there is no company
secretary, by a single director of the company. A small company may hold only two board
meetings in a year, i.e. one Board Meeting in each half of the calendar year with a minimum
gap of ninety days between the two meetings. Provision regarding mandatory rotation of
auditor/maximum term of auditor being 5 years in case of an individual and 10 years in case
of a firm of auditors is not applicable to an OPC.

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Notes on Companies Act

Dormant Company:

The Companies Act, 2013 introduces a concept of a dormant company within its ambit. It is
the first time that such a concept is thought of, i.e. company which is not active. There is no
definition of what constitutes a dormant company under the definition clause. Company falls
under Dormant Company: handle future projects which does not have any current projects
to hold any assets to hold intellectual properties Does not have significant accounting
transactions for 2 years An Inactive Company “inactive company” means a company which
has not been carrying on any business or operation, or has not made any significant
accounting transaction during the last two financial years, or has not filed financial statements
and annual returns during the last two financial years. company doing regular business and
regular accounting transactions, but has failed to file its mandatory annual documents. The
company which falls under any or all of the above said points will be considered as Dormant
company as per companies Act 2013.

How a company applies:

A Company can apply for a “dormant company” to itself by making the necessary
application in this behalf. And the Registrar shall maintain a Register of Dormant companies
in its Records or Portal. In case a company has not filed its annual mandatory documents for
the last two years, then the Registrar can take it to the Dormant company status.

Special Provisions for Dormant company:

A dormant company is still required to hold minimum two Board meetings and file minimum
one annual financial document with the Registrar. A dormant company can apply to revert
back to Active status company. A dormant company cannot be a listed company. The
company shall continue to have minimum number of directors (i.e. 3 in case of a public

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Notes on Companies Act

company and 2 in case of a private company); Rotation of auditors shall not apply to a
dormant company. The dormant company can revert to an active status company by making
another application along with the requisite fees. A dormant company cannot remain as a
dormant company for more than 5 consecutive financial years. If it remains so, then the
Registrar shall commence the process of striking off the name of the company from the
Records, i.e. the company will be removed. So maximum tenure for a dormant company is 5
consecutive financial years.

MEMORANDUM-BASIC STRUCTURE

The Memorandum of Association is the most important document of the company. It is


known as the charter of the company and sets out the limits outside which the company will
never be able to function. In other words, the company must always remain within the terms
of the Memorandum.

The content of MOA is as follows:

REGISTERED
CAPITAL
OFFICE
CLAUSE
CLAUSE

OBJECT LIABLITY
CLAUSE CLAUSE

Name Clause
MOA SUBSCRIPTION
CLAUSE

1. Name clause. This clause states the name of the company. It should not be identical to the
name of an existing company registered with the Registrar of companies nor should it
resemble it. A company being a separate legal entity must have a name. A company may
select any name which does not resemble the name of any other company and it should not
contain the words like king, queen, emperor, government bodies and the names of world

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Notes on Companies Act

bodies like UNO, WHO, World Bank etc. The name should not be objectionable in the
opinion of the government. The word ‘limited’ must be used at the end of the name of a
Public and ‘Private Limited’ is used by a Private Company. These words are used to ensure
that all persons dealing with the company should know that the liability of its members is
limited. The name of the company must be painted outside every place where business of the
company is carried on.

If the company has a name which is undesirable or resembles the name of any other existing
company, this name can be changed by passing an ordinary resolution.

2 Situation clause. By definition, a company is an artificial and an invisible person. To


enable notices and letters to be sent to that invisible person, there must be a registered office.
The State in which a company has its registered office is to be stated in this clause. Exact
address within the State need not be, and in fact is not, given in the Memorandum. This
clause determines the jurisdiction of the Registrar of Companies.

3 Object clause. This clause may, in fact, be regarded as the most important clause in the
Memorandum. It should specify in unambiguous language the objects for this which the
company is formed. The objects defined lay down the maximum permitted range of activities
in which the company may engage an beyond which it cannot go. The Companies
(Amendment) Act 1965 requires that in cause of companies formed after this amendment, the
memorandum must state separately (a) main objects, and (b) other objects. Main objects will
include objects to be pursued by the company on incorporation and objects incidental or
ancillary to the attainment of the main objects. Other objects will include all other objects
which are not included in the main objects.

The object clause offers protection to the shareholders by ensuring that the funds raised for
the undertaking are not going to be risked in any other undertaking. The creditors also feel
protected by this clause. By confining the activities within a specified field, it serves the
public interest also.

The object clause can be changed to enable a company to carry on its activities more
economically, or by improved means to carry on some business which under existing
circumstances may conveniently by combined with the object clause.

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Notes on Companies Act

4 Liability clause. It contains a statement that the liability of the members is limited to the
face value of the shares taken up by them and if some amount has already been paid on the
shares, a member can be called upon to pay only the unpaid amount of the shares. If the
liability of members of the company is limited by guarantee under this clause, it must be
stated clearly as to what is the amount of guarantee which is agreed to be contributed by each
member towards the liability arising in the event of the company going into liquidation.

5 Capital clause. This clause is required to specify only the amount of share capital with
which a company is proposed to be registered and the division of that capital into shares of a
fixed amount. The classes of shares and their rights need not be disclosed here.

6. Association and subscription clause. This contains a declaration by the subscribers to the
Memorandum that they are desirous of forming themselves into a company and agree to take
the number of shares in the capital of the company written against their respective names.
Thereafter, each subscriber signs the Memorandum in the presence of a witness. There must
be at least seven subscribers in case of a public company and two subscribers in case of a
private company and each of them has to take up at least one share.

In addition to the above clauses which are required by the statute to be included in a
Memorandum, and other information, such as the rights of members, contracts with
managing agents, etc, may also be given there at the discretion of the promoters. It has to be
supplied upon request at a cost no exceeding Re. 1.

Alteration on MOA

Section 16 Of The Act Provides That A Company Shall Not Alter The Conditions Contained
In Its Memorandum Except In The Cases, In The Manner And To The Extent Provided In
The Act.

For The Alteration Of The Conditions In The Memorandum Of Association A Rigid


Procedure Is To Be Followed And Strict Compliance Of The Procedure Is Demanded By
Law.

The procedure for the alteration of the compulsory clauses of the memorandum are:

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Notes on Companies Act

Change of Name

By Special Resolution: A Company Can Change Its Name. It Must First Pass A Special
Resolution And Then Obtain Approval Of The Central Government In Writing. No Approval
Is Necessary For Merely including Or Deleting The Word ‘Private’ Consequent On The
Conversion Of The Public Company Into Private Company And Vice Versa.

By Ordinary Resolution: If A Company Is Registered By A Name and The Name Is Of An


Existing Company, It Can Change Its Name By Passing An Ordinary Resolution And With
The Previous Approval Of The Central Government Signified In Writing.

Direction for changing name the central government may also, within 12 months of
registration, direct the company to change its name within 3 months of such directions the
company must change its name by passing an ordinary resolution and with the previous
approval of the central government signified in writing default in complying with the
direction is punishable with fine upto rs.1000 for every day during which the default
continues. In considering applications for change of name, the government considers the
following points:

a) Whether the reasons are sufficient and adequate.

b)Whether the proposed name reflects object of the company and with the kind or kinds of
business actually carried on.

c)Whether the proposed name is not undesirable.

Change of Registered Office

If a company wants to change its registered office from one place to another within the same
city, town or village, the board of directors will pass a resolution and the registrar must be
informed of the change within 30 days. The registered office is to be changed outside the
local limits of any city, town or village in the same state, a special resolution to that effect
must be passed.
Section 17 deals with the change of place of registered office from one state to another state.a
company may alter the provisions of its memorandum so as to change the place of its
registered office from one state to another for certain purposes.

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Notes on Companies Act

The change of registered office may involve any of the following:

1.change within the city :

2.change within the state:

3.change of registered office from one state to ano ther:

Special resolution: for effecting this change a special resolution must be passed by the
company and a copy there of must be filed with the registrar within 30 days. Confirmation by
central government: the alteration of the provisions of memorandum relating to the change of
the registered office from one state to another state shall take effect only when it is confirmed
by the central government on petition. The company shall file with the registrar a certified
copy of the order of the central government confirming the alteration,within 3 months from
the date of order together with a printed copy of the memerandum as altered and the registrar
shall register the same and certify the registration under his hand within one month from date
of filing of such documents. Change outside India: a company cannot change its registered
office from India to another country and the central government has no power sanction such
alteration of the memorandum.

Change of object clause

A company has no limited right to alter the objects clause of the Memorandum, however
urgent or beneficial such alteration may be. The power of alteration of objects clause is
subject to two limits: 1.substantive limits a company may change its registered office from
one state to another or objects clause in so far as it is necessary for any of the following
purposes: A) to carry on its business more economically or more efficiently b) to attain its
main purpose by new or improved means c) to enlarge or change the local area of its
operations etc

Articles of Association

Usually, the Articles contain rules and regulations regarding: (i) share capital an variation of
rights, (ii) exercise of lieu by the company, (iii) calls on shares, (iv) transfer, transmission,
forfeiture and surrender of shares, (v) conversion of shares into stock and its reconversion
into shares, (vi) issue of share warrants and rights of their holders, (vii) alternation of capital,

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Notes on Companies Act

(viii) conduct of any proceedings at general meetings of shareholders, (ix) voting by


members. (x) powers, rights, remuneration, qualification and duties of directors, (xi)
proceedings of Board, (xii) appointment of manager, secretary, etc., (xiii) seal of the
company, (xiv) dividend, reserves and capitalization of profits (xv)accounts, and, (xvi)
winding up.

Prospectus

The Companies Act defines Prospectus as any ”Prospectus, notice, circular, advertisement or
other invitation offering to the public for subscription or purchase of any share, in, or
debentures of, a body corporate.” The object of a prospectus is to arouse the interest of the
investors in the proposed company and induce them to invest in its shares or debentures. If
the company can make arrangements for raising the capital privately so that pubic appeal is
unnecessary, the company is required to prepare a Statement in lieu of Prospectus.

The following provisions of the law regarding issue of the Prospectus are to be noted:

1. A copy of the Prospectus must accompany each from of application for shares offered to
the public.

2. A Prospectus must be dated and signed by the directors.

3. A copy of the Prospectus together with the consent of the expert whose statement is
included in it, a copy of every contract appointing or fixing remuneration of managerial
personnel and any other material contract not entered into in the ordinary course of business
must be filed with the Registrar on or before the date of the Prospectus. The Prospectus must
be issued to the public within 90 days of its date

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