Chapter 4 - SQE - LTD Company Part 2 Flashcards
What is a shadow director?
A person who is not properly appointed as a director but exercises a major influence on directors
What is a de facto director?
Either a director who has not been properly appointed as a director by the CA, but performs as a director, or a person who continues in the role of director after their term of office has expired
What do the de facto director and a shadow director have in common?
Many provisions of the CA and the Insolvency Act 1986 apply to shadow and de facto directors
How many directors does a limited company must have?
It must have at least 1 director
What is the age which you can become a director?
At least 16 years of age
What are the other conditions that allows ppl to become directors?
Cannot be disqualified from being a director
Cannot be bankrupt
Must be physically and mentally capable
When are the first directors appointed?
On Incorporation
Where are the first director’s names named?
On the Part 2 of the form IN01
Can the company articles specify the maximum number permitted of directors?
Yes
What does MA stand for?
Model Articles
Can sole directors act on their own?
Yes
What is a directorship?
Is an office (non-executive position) but it can also be an executive position in addition to an office.
What is a non-executive director?
A person who holds the office of director. They have rights
duties
restrictions and
obligations under the CA but they do not work for the company in a paid position
Does a non-executive director have a contract?
No, they don’t but they they are entitled to fees for their duties.
Who is an executive director?
A person who holds the office of director, also works for the company in paid position, they usually have an employment services contract and are entitled to a salary. They will have a particular role and job title linked to their duties or specialism
What is important to consider appointing directors?
It is important to distinguish between appointment to the office (MA17) and the separate requirement to appoint in an executive capacity (MA19)
How is appointed a non-executive director?
Is dealt with under the MA17 and may be done by OR (ordinary resolution) of the shareholders or a BR (board resolution) of the directors.
Describe the BR boar resolution process
A Board resolution BR is more straightforward
What happens is not all directors are shareholders? How are they going to reach a decision to appoint a non-executive director?
It is better to obtain a OR (ordinary resolution) to gain the sanction of the shareholders in a general meeting (GM)
How is an executive director appointed?
May be done by BR (board resolution) under the MA19
What needs to be done after the appointed has been done?
Update the register of directors and the register of directors residential addresses and file Form AP01(individual directors) or AP02 (corporate directors) as appropiate with Companies house within 14 days
What are the director’s duties?
They owe fiduciary duties to their company
What means fiduciary duties?
It means that directors cannot make a secret profit out of their position and must act in the best interest of the company.
How about shareholders, do they have to act in the best interest of the company?
No, shareholders may act in their own interest
What does section 170-180 of the CA states for directors?
That directors have statutory general duties
What does section 171 of CA stand for?
Directors must adhere to the provisions of the company articles and exercise their powers in the best interest of the company.
What does section 172 of CA stand for?
Directors must act in a way they consider, in good faith, would be most likely to promote the success of the company, for the benefit of teh members as a whole
What are the 6 factors that the directors must regard?
The likely long term consequences
Employees interest
The need to foster good business relationships
Impact on the community and the environment
The desirability of maintaining a reputation for a high standard of business conduct
The need to act fairly between members
Directors only need to have regard to the factors and the need to promote the success of the company will take precedence
What does section 173 of the CA stand for?
A director must not do anything to fetter (compromise or undermine) their right to exercise independent judgment. They may take legal and financial advice without being in breach of this section.
What means to exercise independent judgment?
Agree to vote in a particular way, unless it is done in good faith and in the best interest of the company.
What does section 174 of the CS stand for?
There is a minimum objective standard which may be raised, based on the actual knowledge, skill and experience that the director has.
What does it mean objective standard?
The standard knowledge, skill and experience that may reasonably be expected by expected of a director.
What does section 175 of the CA stand for?
This involves taking advantage of the property, information or opportunities, that belong to the company. The directors of a private company may authorise a breach of this duty by BR (board resolution) although the interested directors vote will not count.
Who is the claimant in breach of contract?
The Company
If the directors fail to act in a breach who is supposed to take action?
Shareholders may consider taking derivative action
What do remedies include?
An account for profits (Payment to the company)
Damages
Injuction
Talk through the personal liability of directors
A director will be personally liable to third parties dealing with the company where the director has given a personal gurantee or is guilty of wrongful trading, fradulent trading or misfeasance.
When do lenders insist upon personal gurantees from director-shareholders?
When a company is newly formed
What does it mean when lenders insist upon personal guarantees from director-shareholders?
It makes the director-shareholders personally liable for their liabilities of the company and takes away the real benefit of limited liability.
What means wrongful trading?
A director of an insolvent company may be liable to contribute to the assets of a company, where the company continued to trade and they knew and concluded that there was no reasonable prospect of the company avoiding insovency proceedings
What is the type of test conducted under the section 174 CA ?
A combined subjective/objective tes
Explain the defence under section 174 CA
If the director took every step to minimise potential loss to creditors as ought to have been taken
Explain fraudulent trading
A director of an insolvent company may be liable to contribute to the assets of a company when the company carried on business with intent to defraud creditors or for any fraudulent purposes
What means misfeasance?
It is a breach of directors duties discovered on winding-up and personal liability can be imposed in these circumstances
What are the power of directors subject to?
The directors wide power of management (MA3) are subject to any instruction given to the board by special resolution
Which one is harder to prove? Fraudulent trading or wrongful trading? And why?
Fraudulent trading due to the need to show intention to defraud
Where are set out the power of directors?
In the company’s articles.
How are directors power exercised?
Either by making decisions at board meetings or by unanimous agreeement
What does MA5 contain?
Contains wide powers of delegation to a managing director
Who can appoint for an alternate director?
The companies articles can make provisions for the appointment of an alternate director
What happens if there are a number of provisions?
If there are a number of provisions, the CA requires the sanction of the members
What happens if directors’ particulars change, where do they need to report that?
To Companies House using form CH01 (individual directors) or CH02 for corporate directors
Do companies need to maintain a register of directors and their residential addresses? When is this an exemption?
Yes. It is an exception when they applied for an exemption.
What does CA stand for?
Companies Act 2006
Do the directors need to be named in the business letters?
No
Where does the company registered name need to appear?
The company registered name must be displayed at its registered office and appear in certain communications (registered number and registered office in business letters)
For how long do they need to keep the copies of directors service contracts or memorandum?
Up to 1 year after expiry/determination
Do members have a right to inspect director service contracts?
Yes
Does the CA contain restrictions on directors?
Yes