Seminar on Overview of Regulations for Companies and Corporate Governance Regulations in Saudi Arabia

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1 Seminar on Overview of Regulations for Companies and Corporate Governance Regulations in Saudi Arabia Karim Nassar Zahi Younes Omar Iqbal Baker & McKenzie Limited is a member firm of Baker & McKenzie International, a Swiss Verein with member law firms around the world. In accordance with the common terminology used in professional service organizations, reference to a "partner" means a person who is a partner, or equivalent, in such a law firm. Similarly, reference to an "office" means an office of any such law firm.

2 Introduction Forms of Entities in Saudi Arabia (Doing Business in Saudi, Foreign Investment Regime and General Overview of LLC and Joint Stock Company) Shareholders Directors Auditors Code of Corporate Governance Increase / Decrease of Capital Dissolution / Liquidation 2

3 Forms of Entities in Saudi Arabia Permanent Branch Limited Liability Company Joint Stock Company 3

4 Foreign Investment Restrictions - Negative List of Activities (activities prohibited to foreign investors) - Activities restricted to Saudis as per specific regulations (e.g. operation of pharmacies) - Activities requiring a minimum local ownership requirements (e.g. trading wholesale and retail activities) - Activities requiring a minimum capitalization requirement

5 Formation Process SAGIA: Foreign Investment License (for Foreign Investors) Specialized Agencies (such as SAMA / CMA / CITC / MOH) may also be a pre-requisite depending on the activities MOCI: Companies Department: Approval of Articles of Association/Bylaws for companies; Ministerial Resolution for branches Notary Public: notarization of Articles of Association (for companies only); Publication of Articles of Association / Bylaws (for companies only) Registration with Commercial Registry at MoCI Registration with Chamber of Commerce and Industry 5

6 Formation Process Common Requirements Physical office Resident manager Audited financial statements submitted annually Tax registration; annual returns Labor Office GOSI 6

7 Permanent Branch Formation process simpler than LLC but may be lengthier because of requirement that manager have residence permit prior to formation Must be capitalized but no reserve requirement; capital must be used to support branch Single manager No limitation of liability Is subject to liquidation procedures applicable to a normal company No possibility for Saudi equity participation 7

8 Limited Liability Company Most common form of permanent entity and currently probably the quickest to form Minimum 2 and maximum 50 shareholders (all may be foreign) No minimum capitalization by Law (In practice, Minimum capital SAR50,000 must be fully paid as part of formation process Share transfers require articles amendment right of first refusal 8

9 Limited Liability Company Statutory reserve Flexibility in management structure single manager or board of managers Amending Articles requires 75% (Companies Law / Practice) Limited liability: may be lost if losses reach 50% of capital and company is not dissolved Liquidation process can be lengthy 9

10 Joint Stock Company Until recently, reserved for Saudi/GCC ownership as a general rule Formation process very cumbersome (Feasibility Study) Minimum capital SAR2,000,000 for closed company but usually much higher in practice Minimum 5 founding shareholders Staging of capital possible Shares negotiable; can be pledged No right of first refusal 10

11 Joint Stock Company No loss of limitation of liability in case of losses exceeding 75% of capital Rigid management structure (Board of Directors) Best suited for high profile, high capital projects where there may be intention to offer shares to the public 11

12 Shareholder - Rights Obtain a share in the profits declared for distribution Equity in the Company s assets upon liquidation Access to Company s books and documents Institute action in liability against the Directors Attend and participate in the deliberations in the General Assembly Voting Rights Fundamental Right of Shareholder 12

13 Shareholder - Meetings Calling of Meeting and number of Shares required to attend General Meeting Ordinary General Meetings Subject Matter Quorum Voting Extraordinary General Meetings Subject Matter Quorum Voting Minutes of Meetings 13

14 Directors Formation of Board Number of Directors Composition of Board Appointment of Board Chairman and Managing Director Meetings and Resolutions of the Board Procedure for calling Board Meeting Agenda Quorum Requirements Voting Minutes 14

15 Directors Rights and Obligations of Directors Directors Liabilities Remuneration of Directors Penalties on Company Officials 15

16 Auditors Appointment Rights of Auditors Reporting Obligations 16

17 Code of Corporate Governance Scope Shareholders General Rights Main Functions of the Board of Directors Disclosure and Transparency Committees of the Board 17

18 Code of Corporate Governance Audit Committee Composition Duties and Responsibilities Nomination and Remuneration Committee Composition Duties and Responsibilities 18

19 Related Party Transactions Definition Under Companies Law Under Code of Corporate Governance Approval Process and Voting Shareholders and Related Party Transactions 19

20 Increase of Capital Issue of new shares payable in cash. Issue of new shares against contributions in kind. Issue of new shares (as fully paid up) against debts of a specific amount due Issue of new shares in the amount of the surplus reserve / retained earnings. 20

21 Steps to Capital Increase Limited Liability Companies Amendment of the Article of Association - Notarization Obtain an amended Foreign Investment License Joint Stock Companies Amendments to the bylaws of the Company (the Bylaws ) effecting the increase in capital Board Resolution recommending the proposed changes in the capital Obtain an amended Foreign Investment License A summons for the Extraordinary General Meeting 21

22 Steps to Capital Increase The Extraordinary General Meeting must convene and adopt the resolution to amend the Bylaws. The Extraordinary General Meeting resolution to amend the bylaws must be published in the official gazette and in a daily newspaper circulated in the city where the company's head office is located. Payment of Capital Increase. MoCI / Commercial Registry: amendment of its commercial registration to reflect the changes in the capital. 22

23 Decrease of Capital Cancelling a number of shares equivalent to the amount of the proposed reduction. Purchasing a number of shares equivalent to the amount of the proposed reduction. Reducing the par value per share. Refunding a part of the par value per share to the stockholder, or releasing him from liability for all or part of the unpaid amount on such value. 23

24 Dissolution Expiration of the term fixed for the company. Realization of the object for which it was established, or the impossibility of (realizing) such object. Transfer of all interests or shares to one partner (or stockholder). Loss of the company's assets. Agreement of the partners to dissolve the company before the expiry of its term. Merger of the company into another. 24

25 Liquidation of Companies The company shall retain its legal entity to the extent required for winding up its affairs and until liquidation is completed. The powers of the managers or the board of directors shall continue to manage the company until a liquidator has been appointed. The partners or the general meeting shall appoint liquidators and shall determine their powers and remunerations. 25

26 Liquidation of Companies The Board of Grievances shall appoint the liquidators and determine their powers and remunerations. The company shall be bound by all the acts performed by the liquidators within the scope of their powers. The management of the company shall retain their prerogatives, as prescribed in the Companies Law or in the company's memorandum of association or bylaws. 26

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