2012 NIGERIAN LAW SCHOOL BAR FINALS QUESTIONS AND ANSWERS IN CORPORATE LAW PRACTICE
THE NIGERIAN LAW SCHOOL
BAR PART 11 FINAL EXAMINATION
CORPORATE LAW PRACTICE
MONDAY, AUGUST 2012 TIME: 3 HOURS
READ THE INSTRUCTIONS CAREFILLY:
1. This paper is divided into 2 Sections and 2 Answer Booklets are provided.
2. Questions 1 and 4 are compulsory. One other question from each Section should be attempted.
3. Questions from each section should be answered on a separate Answer Booklet.
4. Write your EXAMINATION NUMBER ON EACH ANSWER BOOKLET
SECTION 1
QUESTION 1 (COMPULSORY)
One of the direct consequences of the passage of the Petroleum Industry Bill (PIB) by the National Assembly will be the unbundling of the Nigerian National Petroleum Corporation (NNPC) by the Bureau of Public Enterprises. In readiness for the enormous business opportunities which the PIB portends for the oil and gas sector of the Nigerian Economy, key local and international industry players are already jostling to position themselves to hit the ground running. At the recent oil and Gas Summit in Rio de Janeiro, Brazil, the Federal Government showcased the abundant opportunities in the Nigerian Petroleum industry and invited the international business community to come and invest in the sector. Acting on this, Rio Petro-Gas (Brazil) Inc has contacted you on the possibility of doing business in Nigeria without incorporating a Nigerian Company since the Federal Government of Nigeria invited them. Meanwhile, before returning to Nigeria, the president, Dr Goodluck Jonathan GCFR gave his consent for the Minister of Petroleum Resources to sign and Engineering and Technical Consultancy contract with the Directors of Global Oil and Gas Support (Brazil) Inc, a company invited to Nigeria by the Federal Government of Nigeria to provide engineering and technical support services to Nigerian Companies in the oil and gas sector, so as to leverage on the local content of the Local Content Act and the PIB. Answer the following questions:
a) Write a legal opinion to the Director (Legal Services), Bureau of Public Enterprises on the available options for the proposed unbundling of the NNPC into limited liability companies under the Companies and Allied Matters Act.
b) Advise Rio Petro- Gas (Brazil) Inc and Global Oil and Gas Support (Brazil ) on their chances of doing business in Nigeria without Incorporating a Nigerian Company.
c) Assuming Rio Petro-Gas (Brazil) Inc. desires to incorporate a Nigerian company, Highlight:
i. Five (5) Relevant Legislations it must comply with
ii. Five (5) Regulatory Bodies involved in the registration and relevant approvals
d) Write an Application for exemption from registration on behalf of Global Oil and Gas Support (Brazil) Inc as required by Section 56(2) CAMA
e) Briefly explain any three permits you will advise the promoters of Rio Petro-Gas (Brazil) Inc to obtain after registering a company in Nigeria before commencement of business.
QUESTION 2
Assurance Bank Plc and Conti Bank Plc have decided to purse corporate restructuring. This was necessitated by the Central Bank of Nigerias directive to special examiners who found some holes in the balance sheet of the two commercial Banks. Efforts made by the shareholders of Assurance Bank Plc to solely pursue recapitalization have not yielded much fruits. The Board of Directors of the two banks met separately and decided to pursue business combination that will help them harness their comparative advantages. A transaction implementation agreement has been executed and the highlights are as follows:
a) Nomination of an expatriate, Mr West London to the Board of the combined/merged entities to serve as the Managing Director, subject to Central Bank of Nigerias approval
b) Increase in share capital of the merged entity from N60 billion to N100 billion
c) Appointment of Mr. Oba Ekiran as the company secretary/legal adviser of the merged companies.
Answer the following:
a) Draft the Commencement and execution clauses only of the Memorandum of Understanding to be executed by the merging companies.
b) Itemize the procedure required for the category of business combination to be entered into by the companies.
c) What are the steps to be taken to protect the interest of the dissenting members of the company?
d) Assuming the name of the merged companies is Assurance Bank Plc, draft a resolution increasing the share capital from N60 billion to N100 billion; also complete the first page of the attached form CAC 2.4.
e) Assuming the Articles of Association of the company makes share qualification a prerequisite for being a director, what statutory provision will the alien director, Mr West London comply with in order to take the share qualification?
QUESTION 2
Card Money Nigeria Unlimited was incorporated in October 2010, to carry on the business of manufacture and sale of electronic money card. It has prided itself as the only company in the financial devices sector with unlimited status. Its network has been N300 million with liability base of N50m. Following the introduction of cashless policy by the Central Bank of Nigeria, the shareholders of the company at an Extra-Ordinary General Meeting held on July 30, 2012, Resolved to embark on a number of measures to reposition the company as a major player in the emerging electronic money business in Nigeria. The proposed measures are as following:
I. Change its name and status to Unified Online Payment Systems Limited, so as to comply with the specific directive that all companies in the financial intermediary service must have limited status.
II. Expand its object clause to include establishment of online money exchange platform for banking operations
III. Merge with Orion Technologies Limited, with a current balance sheet asset of N200 million.
Answer the following questions:
a) Outline the procedure for the conversion of the companys status from unlimited to private company limited by shares
b) What obligations are incumbent on the Corporate Affairs Commission for the change of name of the company?
c) What is the category of merger between the two Companies under the Investment and Securities Act?
d) Outline the procedure for the change of the companys name.
SECTION 11
PLEASE USE ANOTHER ANSWER BOOKLET FOR THIS SECTION
QUESTION 4 IS COMPULSORY. One other question from this section should be attempted
QUESTION 4 (COMPULSORY)
Abravet Nigeria Ltd was incorporated in July 1999 with authorized share capital of N200m divided into N200m ordinary shares of N1.00 each, which were fully paid up. It has been a major player in the agricultural sector of the Nigerian economy, having been the sole distributor of the Federal Government subsidized fertilizer for Nigerian Farmers. Unfortunately, following a cabinet reshuffle in 2010, the new Minister of Agriculture terminated its contract with the Federal Government. Since then, the company has been suffering a myriad of operational challenges resulting in financial losses, to the extent that about 50% of its paid up share capital are no longer represented by available assets. Its main financier, Argo Bank Plc, is being owed N50m by the company. The company has not been able to hold a meeting due to boardroom squabbles. However, some concerned shareholders, representing 60% of the company share capital are determined to revamp the company. They have obtained some expert opinion on some measures to undertake, such as:
i. Rebrand the company by changing its corporate name
ii. Reduce the bloated share capital of company to accord with the reality of its asset base.
iii. Propose a restructuring option with its major creditor that would involve payment with equity capital
iv. Remove the Managing Director and replace him with a vibrant Chief Executive
You have been consulted to carry out the suggested measures to achieve the desired objective of reviving the company. Answer the following questions:-
a) Outline the procedural steps you will take to effect the change of name of the company
b) Outline the necessary documents you need to prepare for the change of name of the company
c) Draft the necessary resolution to change from the name Abravet Nigeria Ltd to Easy Deal Investment Limited
d) Draft the Notice of requisition of Extra-Ordinary General meeting proposed by Chief Mrs. Kemi Oke and Haruna Idris, for the removal of the Managing Director, Alhaji Bala Shehu as a director, and replacing him with Dr. Okey Ocheja, as causal vacancy.
e) Advise the shareholders on the procedure to adopt to be able to hold a meeting without depending on the Board of Directors
f) Assuming the company is to reduce its share capital by cancelling 50% of the paid up share capital which has been lost and unrepresented by available assets, draft the resolution to be passed for the proposed scheme of reduction of the companys share capital
g) Complete the attached form CAC 2.4 (Notice of Change of Authorized Share Capital)
h) Advise the shareholders on the most suitable restructuring option to propose to its creditors, Agro Bank Plc that would enable it discharge the loan obligation with its equity capital.
i) What other restructuring options are available under Nigerian Corporate Law Practice, that you would recommend to the company in its circumstances.
QUESTION 5
A recent spate of mishaps in the aviation sector has prompted the Nigerian Aviation Minister to direct all Airline operators in the country to re-register as Public Companies and also shore up their capital base to N50billion before March 31, 2013 or forfeit their operational license. Consequently, Naij Airlines (Nig) Limited with a net worth of N2.5Billion has concluded preliminary talks with Boeing Aviation Services (US) Inc, an aircraft manufacturing company, with a net worth of about $1Billion to sell 52% off its total shares to the American Company. Answer the following questions:
a) Briefly describe the nature of the relationship between the two companies in the light of section 120 of the Investment and Securities Act 2007
b) Highlight the appropriate regulatory bodies as well as the relevant laws that must be complied with to achieve their desire
c) Describe the procedure for the conversion of Naija Airlines (Nig) Ltd to a public company.
QUESTION 6
Data West Limited is a company incorporated under the laws of the Federation of Nigeria on January 2, 2000, with its registered address at No 2, Main Land Street, Warri, Delta State. The share capital of the company is N1 million divided into one million ordinary shares of N1.00 each. Mark Bent and David Hinkel are the directors and shareholders of the company. The shares were held in equal proportion by the two. The company intends to expand its business operations and has applied for a N50 million credit facility from Adeb Bank Plc. Answer the following questions:
a) As an external solicitor to the bank, you have been briefed to conduct a search on the company to determine its suitability for the facility. Write the search report to the bank.
b) Outline the procedural steps the company would take to in crease its share capital to N50,000,000.00
c) Draft the resolution for the increase in share capital for filing at the CAC
d) Mention the various ways of becoming a member of a company
e) Enumerate the various options for restructuring under the Nigerian Corporate Law Practice.
CORPORATE LAW PRACTICE
AUGUST 2012
MARKING SCHEME
QUESTION 1 (a):
UCHE OBASI & CO
GOODWILL CHAMBERS
10 KOKO CLOSE VICTORIA GARDEN CITY, LAGOS
PHONE NO: 07032499399
Our Ref: _________________ Your Ref: _________________
6th August, 2012
the director (legal Services)
Bureau of Public enterprises
Abuja.
Sir,
OPTIONS AVAILABLE FOR THE PROPOSED UNBUNDLING OF THE NNPC INTO LIMITED LIABILITY COMPANIES UNDER THE COMPANIES AND ALLIED MATTERS ACT
There are two types of limited companies namely Private Limited Liability Company and Public Limited Liability Company.
Private Company limited by shares is suitable for small and medium size Business Organization which need to acquire incorporate status. It is also suitable for business among family members and friends who want to engage in business activities and also where the available capital to start off business is relatively small.
Public Company Limited by shares on the other hand is usually a large membership Company that undertakes profit maximizing business transactions for its members. There is no restriction of transfer of its shares unlike a Private Company Limited by shares.
It can offer its shares and debentures to the public thereby making it easier to access funds from the Capital Market when it is listed in the Stock-Exchange and there is no limitation to the number of its membership status.
In my humble opinion I will advise on adopting to incorporate a Public Limited Company where it will not be too difficult to raise money since as many members of the general public as possible can be a part of it, thereby making source of fund easy and a less burdensome on the Government.
Thanks.
Yours faithfully,
For: UCHE OBASI & CO
UCHE OBASI ESQ
QUESTION 1 (b):
The two Brazilian Companies stand a chance of doing business in Nigeria without incorporating a Nigerian Company if and only if they fall within the categories of Companies as provided under section 56(1) of CAMA. In other words, a foreign company may apply to the President of the FRN for exemption from the provisions of section 54 of this Act of if that foreign company belongs to one of the following categories, that is
(a) Foreign companies (other than those specified in paragraph (d) of this subsection) invited to Nigeria by or with the approval of the Federal Government to execute any specified individual project;
(b) Foreign companies which are in Nigeria for the execution of specific individual loan projects on behalf of a donor country or international organization;
(c) Foreign government-owned companies engaged solely in export promotion activities; and
(d) Engineering consultants and technical experts engaged on any individual specialist project under contract with any of the governments in the federation or any of their agencies or with any other body or person, where such contract has been approved by the Federal Government.
QUESTION 1 (c) (i):
• Companies And Allied Matters Act (CAMA) 2004
• Investment And Securities Act, (ISA) 2007
• Nigeria Investment Promotion Commissions (NNPC) Act, 2004
• Immigrations Act, 2004
• Customs and Exercise Management Act
• National Officer for Technology Acquisition Promotion (NOTAP) Act.
QUESTION 1 (c) (ii):
Any five (5) of the following bodies will suffice:
i. Corporate Affairs Commission (CAC) administers CAMA. It oversees the formation, management and winding up of companies in Nigeria. Investigates company. May also dissolve a company.
ii. Securities and Exchange Commission (SEC): established by the ISA 2007 to regulate the condition for the registration and issuance of company securities. Regulates the capital market in Nigeria.
iii. Industrial Inspectorate Office (Ministry of Trade and Investment). Regulates the grant of pioneer status to companies which lawfully incur capital expenditure.
iv. Nigerian Investment Promotion Commission (NIPC): promotes investment in Nigeria, especially by foreigners through its activities. It housess the one- stop- investmentcentre (OSIC), an investment window where most of the critical investment regulatory bodies can be found.
v. National Office for Technology Acquisition and Promotion (NOTAP): promotes acquisition of indigenous technological capacity in Nigeria.
vi. Federal High Court (FHC): by virtue of section 251 CFRN, it exercises exclusive adjudicatory on investment/commercial disputes bothering on most areas of corporate law practice in Nigeria, operation of CAMA.
vii. Nigeria Deposit Insurance Corporation (NDIC): regulates mandatory insurance deposit and some aspects of restructuring by banks and other financial institutions.
viii. National Insurance Commission (NIC): regulates insurance business in Nigeria.
ix. Central Bank of Nigeria (CBN) apex regulatory body for banks and other financial institutions in Nigeria.
x. Investment and Securities Tribunal exercises exclusive jurisdiction on some investment and capital market disputes/matters in Nigeria.
QUESTION 1 (d)
GLOBAL OIL AND GAS SUPPORT (BRAZIL) INC
RC: 03456
7 RAMIRES ROAD, RIO DE JANEIRO, BRAZIL
PHONE NO: +422(1)053530507 www.gog.com
Our Ref: ___________________ Your Ref:______________________
4th August, 2012
The Secretary
Federal Government of Nigeria
Abuja.
Sir,
APPLICATION FOR EXEMPTION FROM REGISTRATION OF THE ABOVE COMPANY WITH THE RELEVANT AGENCIES PURSUANT TO SECTION 56 (2) CAMA
The above subject matter refers.
The reason for this application is that Our Company is in Nigeria on the invitation of the Federal Government of Nigeria to provide engineering and Technology support service to Nigeria to companies in the oil and gas sector. Our Company does not intent to remain in Nigeria after the Completion of the project for which we have been invited.
We humbly request that our application be given favorable consideration. Thank you in anticipation of a position response.
Yours faithfully,
______________
DR. DANIEL ALVES
(Company Secretary)
QUESTION 1 (e)
1. Business Permit: This is the operational license granted to foreign investors to enable them carry on business activities in Nigeria and the consent of the Minister of Interiors must be sought and obtained before it can be issued. Section 8 (1) (b) Immigration Act.
2. Expatriate Quota: This is the official approval granted to a Company to enable it employ individual expatriate to specifically designated jobs and the quota must state its duration. Section 8 (1) (a) Immigration Act.
The consent of the Chief Federal Immigration Officer must be sought and obtained f=before a Foreigner can be issued on Expatriate Quota.
There are two types of Expatriate Quotas namely permanent until renewed and temporary which is granted fro 5 years and Renewed for a further period 2 years.
3. Residence Permit: Any person who is not a citizen of Nigeria who desires to enter Nigeria for the purpose of residence beyond 3 months must obtain a Residence Permit.
QUESTION 2 (a)
THIS MEMORANDUM OF UNDERSTANDING MADE THIS 4TH AUGUST, 2012 BETWEEN ASSURANCE BANK PLC (FIRST PARTNER) OF THE FIRST PART AND CONTI BANK PLC (SECOND PARTNER) OF THE SECOND PART
Execution Clauses
THE COMMON SEAL OF ASSURANCE BANK PLC was affixed to this Memorandum of Understanding and the Memorandum was delivered in the presence of:
____________ _____________
DIRECTOR SECRETARY
THE COMMON SEAL OF CONTI BANK PLC was affixed to this Memorandum of Understanding and the Memorandum was delivered in the presence of:
____________ _____________
DIRECTOR SECRETARY
QUESTION 2 (b)
Step 1
Pre-Merger Notification to SEC
(i) Approval of the merger proposal by the Board of Directors of the 2 Merging Companies
(ii) Issuance a pre-merged notice to members and SEC
(iii) Application to Court for sanction of the Merger Scheme
(iv) Ordering of separate general meeting of each of the Merging Companies to be held
Step 2
A Formal Approval
(i) Approval of the scheme by a special resolution of the Merging Companies
(ii) Referring the Approve Scheme to SEC for Approval
Step 3
Post-Approval Notification of Compliance to SEC
(i) Causing of an office copy of the Court order to be the delivery to SEC for registration within 7 days after the making of the order
(ii) Publishing a notice of the order in the Official Gazette of the Federal Government and in at least one National Newspaper
(iii) Notification to SEC of the Completion of the Merger
QUESTION 2 (c)
The dissenting members are given the opportunity under the relevant Laws to apply to Court for the Merger Scheme to be cancelled and where they dont succeed in the application, the Federal High Court may make two consequential orders — either for the dissenting members to accept the Merger Scheme or to sell off their shares to the Company and go away.
QUESTION 2 (d)
ASSURANT BANK PLC
RC: 202022
14 MARINA ROAD, LAGOS
Our Ref: ____________________ Your Ref:______________________
ORDINARY RESOLUTION OF THE ABOVE COMPANY FRO INCREASE IN SHARE CAPITAL PURSUANT TO SECTION 102 OF CAMA, 2004
At the 7th Annual General Meeting of the Company which took place at the Conference hall of its registered office at the hour of 12 oclock in the afternoon, the following resolutions were proposed and passed.
That the share Capital of the Company be and is hereby increased from N60 billion (N60,000,000,000.00) divided into 60,000,000,000 ordinary shares of N1.00 each to N100 billion (N100,000,000,000.00) divided into 100,000,000,0000 ordinary shares of N1.00 each by an addition of forty billion naira (N40,000,000,000.00) divided into 40,000,000,000 ordinary shares of N1.00 each to rank pari pasu with the existing share capital.
Dated this 4th August, 2012
__________________ ____________________
DIRECTOR SECRETARY
QUESTION 2 (e)
To take this share qualification an a Director, Mr. West London must comply with the provision of section 251 of CAMA.
QUESTION 3 (a)
1. Board of Directors Meeting and Resolution to propose the Conversion and Re-registration
2. Special resolution of by the General Meeting
3. Application to the CAC for Conversion in the prescribed form to be signed by at least a Director and the Secretary
4. Conversion proper
5. Filling of the necessary documents at the CAC
6. Obtaining of a new certificate of incorporation to reflect the new status of the Company
QUESTION 3 (b)
The obligation of the Corporate Affairs Commission is to ensure that they conduct due diligence to make sure that they do not reserve name that is already in existence for another Company yet to be registered
QUESTION 3 (c)
Small Merger
QUESTION 3 (d)
Procedure for change of name:
1) BOD passes a resolution authorizing change of name
2) Search for availability and reservation of the new name using Form CAC: 1 section (32(1));
3) Pass a special resolution at General meeting effecting the change of name;
4) Deliver the following documents to CAC within 15 days of passing the special resolution (see Regulation 24):
(i) Duly signed copy of the special resolution
(ii) Application Letter to the CAC requesting its consent to the change of name
(iii) Original Certificate of Incorporation.
(iv) Form of approval of name
(v) Application signed by a director and the secretary stating reason for change of name
(vi) Updated annual returns
(vii) Filing fees
(viii) Updated 553 where applicable
(ix) Memorandum and Articles of Association as altered to reflect the new name.
5) CAC, if satisfied, will register the change of name and issue a new certificate of Incorporation to the coy (s. 31 (5) CAMA
6) STEPS TO BE TAKEN AFTER CHANGE OF NAME (Post-change of name Procedure) (i) Alteration of company seal, certificates, Billboards, letter heads etc, to reflect the change (ii) Memorandum and Articles issued after alteration to embody the alteration. (iii) Advertisement of change of name in a daily newspaper circulating nationwide. (iv) Advertisement of change of name in the Official Gazette of the Federation (now the duty of CAC see s.31 (7) CAMA)
Note that change of name does not affect any rights or obligations of the coy nor any pending or contemplated suits by or against the coy (s. 31 (6) CAMA
QUESTION 4 (a)
Procedure for change of name:
6) BOD passes a resolution authorizing change of name
7) Search for availability and reservation of the new name using Form CAC: 1 section (32(1));
8) Pass a special resolution at General meeting effecting the change of name;
9) Deliver the following documents to CAC within 15 days of passing the special resolution (see Regulation 24):
(x) Duly signed copy of the special resolution
(xi) Application Letter to the CAC requesting its consent to the change of name
(xii) Original Certificate of Incorporation.
(xiii) Form of approval of name
(xiv) Application signed by a director and the secretary stating reason for change of name
(xv) Updated annual returns
(xvi) Filing fees
(xvii) Updated 553 where applicable
(xviii) Memorandum and Articles of Association as altered to reflect the new name.
10) CAC, if satisfied, will register the change of name and issue a new certificate of Incorporation to the coy (s. 31 (5) CAMA
6) STEPS TO BE TAKEN AFTER CHANGE OF NAME (Post-change of name Procedure) (i) Alteration of company seal, certificates, Billboards, letter heads etc, to reflect the change (ii) Memorandum and Articles issued after alteration to embody the alteration. (iii) Advertisement of change of name in a daily newspaper circulating nationwide. (iv) Advertisement of change of name in the Official Gazette of the Federation (now the duty of CAC see s.31 (7) CAMA)
Note that change of name does not affect any rights or obligations of the coy nor any pending or contemplated suits by or against the coy (s. 31 (6) CAMA
QUESTION 4 (b)
Documents required fror change of name include:
(i) Duly signed copy of the special resolution
(ii) Application Letter to the CAC requesting its consent to the change of name
(iii) Original Certificate of Incorporation.
(iv) Form of approval of name
(v) Application signed by a director and the secretary stating reason for change of name
(vi) Updated annual returns
(vii) Filing fees
(viii) Updated 553 where applicable
(ix) Memorandum and Articles of Association as altered to reflect the new name.
QUESTION 4 (c)
RC: 50407 PHONE: +2340834202122
40 SURULERE STREET, LAFIA Email_______________
Our ref:____________________ your ref:________________
SPECIAL RESOLUTION OF THE ABOVE NAMED COMPANY FOR A CHNGE OF NAME PURSUANT TO SECTION 31(1) OF CAMA 2004
At the 16th Annual general meeting of the company which was held at the transcorp Hilton, Abuja FCT, on the 30th day of march, 2012 the following resolution were proposed and passed:
That the name of the above named company be changed from Abravat Nigeria limited to Easy Deal Investment Limited
Dated this 4th day of august, 2012
_______________ _____________
DIRECTOR SECREATARY
QUESTION 4 (d)
Draft of Notice of Requisition of an EGM
QUESTION 4 (e)
The procedure for requisitioning an extraordinary general meeting is as follows:
1. The requisitionists who must possess not less than one-tenth of the paid up share capital or one-tenth of the voting rights in case of a company without a share capital
2. The requisitionists must deposit a signed Notice of Requisition at the registered office of the company, stating the object of the meeting or the resolution which they intend to propose.
3. If the directors fail within 21 days of the deposit of the requisition to convene a general meeting, then the requisitionists or at least half of the total voting right of all them (of the requisitionists), convene the meeting.
4. Any expenses incurred by the requisitionists in convening the meeting are payable by the company and recoverable from the directors.
5. If no quorum is present at the requisitioned meeting within one hour from the time appointed for the meeting, it is dissolved and the meeting shall never be held again.
See section 215 and section 239 CAMA
QUESTION 4 (f)
ABRAVAT NIGERIA LTD
RC; 50407 PHONES: +2340834202122
40 SURULERE STREET, LAFIA Email________________
Our ref:__________________ Yur ref__________________
4th August, 2012
SPECIAL RESOLUTION OF THE ABOVE NAMED COMPANY FOR REDUCTION OF ITS SHARE CAPITAL PURAUNT TO SECTION 106 OF CAMA, 2004
At the Extra-Ordinary General Meeting of the company which was held at the registered office on the 30th day of March, 2012 at 9 Oclock in the forenoon, the following resolutions were proposed and duly passed:
1. A special resolution to reduced the share capital of the company from Two hundred million naira (N200,000,000.00) divided into 200,000,000 ordinary shares of N1.00 each to one hundred million naira (N100,000,000.00) divided into 50,000,000 ordinary shares of N2.00 each
2. A resolution to reconstruct and to restructure the shares for the purpose of representing all available assets.
Dated this 4th August, 2012.
__________________ __________________
DIRECTOR SECRETARY
QUESTION 4 (g)
Completing/Filling the attached Form CAC 2.4
QUESTION 4 (h)
The most suitable restructuring option is Arrangement and Compromise
QUESTION 4 (i)
• Arrangement on sale
• Merger and Acquisition
• Take over
• Purchase on assumption
• Management buyout
• Shareholders buyout
• Cherry Picking
• Spin off
• Increase in share capital
• Reduction of share capital
• Cancellation, consolidation, or subdivision of share capital
QUESTION 5 (a)
The relationship between the two companies under the investment and securities act is take-over, it is a restructuring process which result in the acquisition/purchase of a substantial interest (share) by an individual or a company called the acquirer in another company known as the target company, sufficient enough to give the acquire substantial control over the management and/or control of the target company. Section 131 ISA, 2007. By virtue of section 131 (1) (a)-(b) ISA, 2007 the quantity/value of the shares that is considered sufficient to confer control is usually between 30% and 50%, or any lower or higher value as may be prescribed by the Sec from time to time.
QUESTION 5 (b)
Regulatory bodies include:
(1) SEC
(2) CAC
(3) FHC
APPLICABLE LAWS include:
(4) Investment and Securities Act, 2007
(5) Banks and other Financial Institution Act (BOFIA) 2004
(6) Central Bank Act, 2004
(7) Foreign Exchange (Monitoring and Miscellaneous Provision) Act, 2004
(8) CAMA
(9) CASE LAW
QUESTION 5 (c)
Procedure for re-registration as public company:
1) Board resolution to authorize the re-registration as a public company
2) Convene a general meeting and pass a special resolution to effect the conversion
3) Send the following documents to CAC within 15 days of the passing the resolution:
(i) Application in the prescribed Form to CAC, signed by Director and Secretary
(ii) Copy of Memo & Articles, as altered to reflect the conversion
(iii) Copy of the special resolution passed to effect conversion
(iv) Statutory Declaration by Director & Secretary stating that the the special resolution has been passed and that the paid up capital as at the date is not less than 25% of the authorized share capital
(v) Copy of the balance sheet of the company as at the date of the resolution or the preceding six months, whichever is later
(vi) Statutory Declaration/statement on oath by Director & Secretary stating that the aggregate asset of the company is not less than paid up capital as at the date and that the special resolution required for the re-registration has been passed
(vii) Copy of prospectus or statement in lieu of the prospectus delivered within the preceding twelve (12) to SEC
(viii) Original Certificate of Incorporation
(ix) Prescribed fees
(x) Updated annual returns
(xi) Evidence of payment of FRC annual dues
4) CAC shall consider the application, and if satisfied will approve and re-register the company as a public company and issue a new certificate of incorporation
CHANGES IN THE MEMO after re-registration as a public company: a) Change in the name clause to change it to PLC b) Change in the status clause, to change it to public company c) Change in the share capital clause, to change it to N5 million
d) Removal of the clause providing for written resolution
CHANGES IN THE ARTICLE: b) Removal of restriction on transfer of shares c) regulation on appointment of directors with respect to age requirement d) requirement and special qualification for appointment of secretary of public company
QUESTION 6 (a)
SEARCH REPORT ON DATA WEST LIMITED
1. Date of search: 4th August, 2012
2. Place of Search: Company registered office, CAC, SEC and Land registry
3. Name of Owner: Data West Limited
4. Year of Incorporation: 2nd January, 2000
5. Registered Office: No 2 Main Land Street, Warri
6. Share capital: N1,000,000.00 divided into 1,000,00 ordinary shares of N1.00 each
7. Directors: Mark Bent controlling 500,000 shares and David Hinkel Controlling 500,00 shares
8. Comment: the company is very vibrant and has the capacity to manage and sustain the facility if granted.
QUESTION 6 (b)
Procedure for Increase of share capital is as follows:
(1) Board resolution to authorize the increase
(2) Pass Special Resolution to effect the increase
(3) Sent the following documents to CAC within 15 days of the passing of resolution to increase the share capital:
a. Statement of the Increase, duly stamped
b. Notice of Increase
c. Prescribed fees
d. Updated annual returns
e. Evidence of payment of FRC annual dues
f. Updated section 553, where necessary
g. Copy of the special resolution passed to effect increase
h. Memo & Articles, as amended to reflect the increase
(4) Ensure that not less than 25 per cent of the increased authorized shares capital is issued within 6 months
(5) Statutory declaration by Directors, verifying the increase, which must be delivered to the CAC
(6) Obtain Certificate of Increase from the CAC
(7) Annex a copy of the Certificate of Increase and the Resolution to the Memo & Articles
NOTE: increase in share capital does not take effect unless:
(1) At least 25 percent of the increased share capital is issued within six months of increase
(2) The directors depose to a Statutory declaration by Directors, verifying the increase, which must be delivered to the CAC
QUESTION 6 (c)
DATA WEST LIMITED
RC:72446
NO 2 MAIN LAND STREET, WARRI, DELTA STATE
PHONE NO:+2348022445566 Email_______________
Our Ref:_____________ Your Ref:____________
4th August, 2012
SPECIAL RESOLUTION OF THE ABOVE NAMED COMPANY TO INCREASE ITS SHARE CAPITAL PURSUANT TO SECTION 102 OF CAMA, 2004
At the Extra Ordinary General Meeting of the company held at the Makin Hotels, Warri, Delta State on the 4th day of august, 2011 at the hour of 12 O`clock in the afternoon, the following resolutions were proposed and passed:
1. An ordinary resolution to increase the share capital of the company from one million naira (N1,000,000.00) divided into 1,000,000 ordinary shares of N1.00 each to fifty million naira (N50,000,000,00) divided into 50,000,000 ordinary shares of N1.00 each by an addition of forty-nine million Naira (N49, 000,000.00) divided into 49,000,000 ordinary shares of N1.00 each the new shares to rank pari pasu with the existing share capital.
Dated this 8th August, 2012
___________________ ____________________
DIRECTOR SECRETARY
QUESTION 6 (d)
• By Subscription
• By Allotment
• By Transfer
• By Transmission
QUESTION 6 (e)
• Arrangement on sale
• Arrangement and Compromise
• Take Over
• Purchase on Assumption
• Management Buyout
• Shareholders Buyout
• Cherry Picking
• Spin-off
