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Pre-Incorporation Contracts & Incorporation Contracts - Coggle…
Pre-Incorporation Contracts
&
Incorporation Contracts
Promoters
Twycross v Grant
Person who undertakes to form a company
Tracey v Mandalay Pty Ltd
Idea of exertion for the purpose of getting up & starting a company
Duties
Fiduciary relationship
Duty to disclose to the company any profit which he may secure
Independent BOD
Existing or intended shareholders
Remedies for breaching
Rescission of contract
Recovery of secret profit
Damages for breach of fiduciary duty
Lifting of Corporate Veils
Those responsible may be held personally liable
Sec 36
1 remaining members & carried business for 6 months = liable to all debt
Sec 67
Offence relating to financial assistance to purchase shares
Sec 121
Requires co. to use its name in the docs or trans
Sec 303(3) & 304(2)
Officer of the co. contracted debt where he had no reasonable expectation that the company would be able to pay
Sec 304(1)
Liability on officer responsible for fraudulent trading by company
Sec 305
Officer of comp that misapplied company's money = liable to pay
Sec 365(2)(b)
Officer willfully pays @ permits to be paid dividend exceeds the comp profits = personally liable to pay the creditors
Sec 46 EPF Act
Employer failed to comply with the section (contribution) = liable
Sec 108A Emp. Soc. Sec. Act
Employer failed to provide SOCSO = personally liable for the company
Pre-Incorporation Contract
Contract made before a company is incorporated
No contractual capacity
Not a separate entity
Promoters responsible
Kelner v Baxter
In Malaysia
Section 35(1)
Section 35(2)
Cosmic Insurance Corporation Ltd v Khoo Chiang Poh
Incorporation of Company
Section 16(5)
all functions of incorporated body
Effects
Separate legal entity
Salomon v Salomon
Can sue or be sued
Foss v Harbottle
Ability to own property
Macaura v Nothern Assurance Co.
Limited liability on members
Perpetual sucession
Powers of company
Company acts through agents
Procedure of Incorporation
Sec 14(1)
Min 2 members
Form 13A
Availability of the name
Name reservation
Reserved for 3 months
Pre-Incorporation Documents
MoA
Basic purpose, people & brief factual account of the company
AoA
Internal rules & regulations
Form 6
Letter of declaration
Form 48A
Statutory declaration
Form 13A
Copy of original name acceptance letter
Form 48F
Declaration from company secretary
Registration fee
Depends on the amount of authorized capital
Subscribers to memorandum
Sec 14(1) = 2 or more names in MoA
Full name, addresses and occupation of the subscribers
Share capital company - subs must agree to take the numbers of shares
State the number of shares (>1) in handwriting
Signed MoA in presence of >1 independent witness
Subs must signed the AoA as procedures required in MoA
Subs a members
Deemed to have agreed to become members
in its register of members
Even if the subs are not entered in the registered of the mebers
Certificate of incorporation
F8 - PUBLIC COMPANY
F9 - PRIVATE COMPANY
Content -
company name
company number
date of incorporation
type of company (limited guarantee @ unlimited comp)
Comp status (Private @ Public)