Companies - External Companies (Ss 344-354)

Link to law: http://www.elaws.gov.bw/desplaylrpage1.php?id=1325

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[Ch4201s344]344. Application of this Part and meaning of

"carrying on business"

(1)

This part applies to an external company only if it has a place of business or

is carrying on business in Botswana.

(2)

For the purposes of this Part -

(a) a reference to an external company carrying

on business in Botswana includes a reference to the external company -

(i) establishing or using a share transfer

office or a share registration office in Botswana; or

(ii) administering, managing, or dealing with

property in Botswana as an agent, or personal representative, or trustee, and

whether through its employees or an agent or in any other manner;

(b) an external company does not carry on

business in Botswana merely because in Botswana it -

(i) is or becomes a party to a legal

proceeding or settles a legal proceeding or claim or dispute, or

(ii) holds meetings of its directors or

shareholders or carries on other activities concerning its internal affairs,

(iii) maintains a bank account,

(iv) effects a sale of property through an

independent contractor,

(v) solicits or procures an order for

delivery in Botswana or elsewhere that becomes a binding contract only if the

order is accepted outside Botswana,

(vi) creates evidence of a debt or creates a

charge on property,

(vii) secures or collects any of its debts or

enforces its rights in relation to securities relating to those debts,

(viii) conducts an isolated transaction that is

completed within a period of 31 days, not being one of a number of similar

transactions repeated from time to time, or

(ix) invests its funds or holds property.

[Ch4201s345]345. Registration of external companies

(1)

Every external company shall, within one month after it establishes a place of

business or commences to carry on business in Botswana, lodge with the

Registrar -

(a) a duly authenticated copy of the

certificate of its incorporation or registration in its place of incorporation

or origin or a document of similar effect;

(b) a duly authenticated copy of its

constitution, charter, statute or memorandum and articles or other instrument

constituting or defining its constitution;

(c) a list of its directors containing similar

particulars with respect to directors as are by this Act required to be

contained in the register of the directors, managers and secretaries of the

company;

(d) where the list includes directors resident

in Botswana who are members of the local board of directors of the company, a

memorandum duly executed by or on behalf of the external company stating the

powers of the local directors;

(e) the name and address of a person resident

in Botswana, not including an external company, who is appointed by the

external company to -

(i) have responsibility for the management of

the business of the external company in Botswana,

(ii) accept on its behalf service of process

and any notices required to be served on the company, and

(iii) be answerable for all such acts, matters

and things as are required to be done by the company under this Act referred to

in this Part as the "authorised agent";

(f) notice of the situation of its registered

office in Botswana and, unless the office is open and accessible to the public

during ordinary business hours on each working day, the days and hours during

which it is open and accessible to the public.

(2)

Where an external company has complied with subsection (1), the Registrar

shall, subject to section 12(2), register the company under this Part and shall

issue a certificate in the prescribed form.

[Ch4201s346]346. Registered office and authorised

(1)

An external company shall have a registered office in Botswana to which all

communications and notices may be addressed and which shall be open and

accessible to the public for not less than four hours on every working day.

(2)

An authorised agent shall, until he ceases to be such in accordance with

subsection (4) continue to be the authorised agent of the company.

(3)

An external company or its authorised agent may lodge with the Registrar a

written notice stating that the authorised agent has ceased to be the

authorised agent or will cease to be the authorised agent on a date specified

in the notice.

(4)

The authorised agent in respect of whom the notice has been lodged shall cease

to be an authorised agent -

(a) on the expiry of a period of 21 days after

the date of lodging of the notice or on the date of the appointment of another

authorised agent the memorandum of whose appointment has been lodged in

accordance with subsection (5), whichever is earlier; or

(b) if the notice states a date on which he is

to so cease and the date is later than the expiry of that period, on that date.

(5)

Where an authorised agent ceases to be an authorised agent and the company is

then without an authorised agent in Botswana, within 21 days after the

authorised agent ceased to be one, the company shall appoint an authorised

agent.

[Ch4201s347]347. Return of alteration

(1)

Where any change or alteration is made in -

(a) the constitution, charter, statutes,

memorandum or articles or other instrument lodged;

(b) the directors;

(c) the authorised agents or the address of an

authorised agent;

(d) the situation of the registered office in

Botswana or of the days or hours during which it is open and accessible to the

public;

(e) the address of the registered office and

its place of incorporation or origin;

(f) the name of the company; or

(g) the powers of any directors resident in

Botswana who are members of the local board of directors, the external company,

shall within one month, lodge with the Registrar particulars of the change or

alteration.

(2)

Where an order is made by a court under any law in force in the country in

which an external company is incorporated which corresponds with orders made

under Parts XIV, XV and XVI, the company shall, within one month, lodge with

the Registrar a copy of the order.

[Ch4201s348]348. Registrar’s certificate and validity of

transactions

(1)

On the registration of an external company under this Part or the lodging with

the Registrar of particulars of the change or alteration in a matter referred

to in section 347 (c) or (f) the Registrar shall issue a

certificate to that effect.

(2) A

failure by an external company to comply with this Part does not affect the

validity or the enforceability of any transaction entered into by the external

company.

[Ch4201s349]349. Financial statements

Every

external company, other than a private company, shall in every year make out a

balance sheet and profit and loss account and, if the external company is a

holding company, group accounts, in such form, and containing such particulars

and including such documents as under the provisions of this Act it would, had

it been a company within the meaning of this Act, have been required to make

out and lay before the company in general meeting, and lodge a copy of such

balance sheet, profit and loss account and group accounts, if any, with the

Registrar; and if such balance sheet and other documents are in a foreign

language there shall be annexed a certified translation thereof.

[Ch4201s350]350. Publication of name by company

(1)

An external company shall -

(a) conspicuously exhibit outside its

registered office and every place of business established by it in Botswana,

its name and the place where it is formed or incorporated;

(b) cause its name and the place where it is

formed or incorporated to be stated in legible characters in all-

(i) business letters, notices and other

official publications of the company,

(ii) bills of exchange, promissory notes,

endorsements, cheques and orders for money or goods purporting to be signed by

or on behalf of the company, and

(iii) delivery notes, invoices, receipts

letters of credit and prospectuses of the company;

(c) where the liability of its members is

limited, unless the last word of its name is the word "Limited" or

the abbreviation "Ltd." cause notice of the fact-

(i) to be stated in legible characters in

every prospectus issued by it and in all other forms of publication referred to

in paragraph (b); and

(ii) except in the case of a banking company,

to be exhibited outside its registered office and every place of business

established by it in Botswana.

(2)

Where the name of an external company is indicated on the outside of its

registered office or any place of business established by it in Botswana or on

any of the documents referred to in subsection (3) in characters or in any

other way than by the use of romanised letters, the name of the company shall

also be exhibited outside such office or place of business or stated on such

document in romanised letters not smaller than any of the characters so

exhibited or stated on the relevant office, place of business or document.

[Ch4201s351]351. Service of notices

Any

document required to be served on an external company shall be deemed to have

been served -

(a) if addressed to the external company and

left at or sent by post to its registered office in Botswana;

(b) if addressed to an authorised agent and

left at or sent by post to his registered address; or

(c) in the case of an external company which

has ceased to maintain a place of business in Botswana, if addressed to the

external company and left at or sent by registered post to its registered

office in the place of its incorporation.

[Ch4201s352]352. Cessation of business in Botswana

(1)

Where an external company ceases to have a place of business or to carry on

business in Botswana, it shall within seven days lodge with the Registrar a

notice to that effect, and as from the day on which the notice is lodged its

obligation to lodge any document other than a document that ought to have been

lodged shall cease, and the Registrar shall on the expiry of three months after

the lodging of the notice remove the name of the company from the register.

(2)

Where an external company goes into liquidation or is dissolved in its place of

incorporation or origin -

(a) every person who immediately before the

commencement of the liquidation proceedings was an authorised agent shall

within one month after the commencement of the liquidation or the dissolution

lodge or cause to be lodged with the Registrar a notice to that effect and,

where a liquidator is appointed, notice of the appointment; and

(b) the liquidator shall, until a liquidator

for Botswana is appointed by the court, have powers and functions of a

liquidator for Botswana.

(3) A

liquidator of an external company appointed for Botswana by the court or a

person exercising the powers and functions of such a liquidator shall -

(a) before any distribution of the external

company’s assets is made, by advertisement in a newspaper circulating generally

in each country where the overseas company had been carrying on business before

the liquidation and where no liquidator has been appointed for that place, invite

all creditors to make their claims against the foreign company within a

reasonable time before the distribution;

(b) not, subject to subsection (7), without

leave of the court, pay out any creditor to the exclusion of any other

creditor;

(c) unless the court otherwise directs, only

recover and realize the assets of the overseas company in Botswana and shall,

subject to paragraph (b) and to subsection (7), pay the net amount so

recovered and realized to the liquidator of that overseas company for the place

where it was formed or incorporated after paying any debts and satisfying any

liabilities incurred in Botswana by the external company.

(4)

Where an overseas company has been wound up so far as its assets in Botswana

are concerned and there is no liquidator for the place of its incorporation or

origin, the liquidator may apply to the court for directions as to the disposal

of the net amount recovered under subsection (3).

(5)

On receipt of a notice from an authorised agent that the company has been dissolved

the Registrar shall remove the name of the company from the register.

(6)

Where the Registrar has reasonable cause to believe that an external company

has ceased to carry on business or to have a place of business in Botswana,

Part XXIII shall, with such adaptations and modification as may be necessary,

apply to an external company as they apply to a company.

(7)

Part XIII shall, with such adaptations and modifications as may be necessary,

apply to an external company.

[Ch4201s353]353. Exemption in respect of transfer duty

(1)

Notwithstanding anything contained in any law an external company may satisfy

the court that -

(a) it carries on its principal business within

Botswana;

(b) the company is about to be or is being

wound up voluntarily in its country of incorporation for the purpose of

transferring the whole of its business and property wherever situate to a

company which will be or has been registered under this Act (hereinafter

referred to as "the new company") for the purpose of acquiring such

business and property;

(c) the sole consideration for such transfer is

the issue to the members of the external company of shares in the new company

in proportion to their shareholdings in the external company; and

(d) no shares in the new company will be

available for issue to any persons other than the members of the external

company.

(2)

Where the court has been satisfied in terms of subsection (1) it may, subject

to the certificate of the Registrar that-

(a) the external company is being wound up

voluntarily for the said purpose;

(b) a company has been registered under this

Act for the said purpose; and

(c) the members of the external company have

had issued to them the shares in the new company to which they are entitled,

order that no transfer duty shall be payable in respect of the transfer

of immovable property from the external company to the company so registered.

[Ch4201s354]354. Power of external company to hold land in

Botswana

Except

as may be expressly provided in any other written law, an external company to

which section 345 applies and which has lodged with the Registrar the documents

and particulars therein mentioned shall have the same power to own immovable

property in Botswana as if it were a company incorporated in Botswana.