Company Law Flashcards
When does a person become a shareholder?
When their name is entered in the company’s register of members as a holder of shares - s.112 CA 2006
Who can be a director?
Directors can be natural persons or other companies.
But at least one director must be a natural person - s.155 CA 2006.
What decisions must be taken by the shareholders?
- Making changes to the company’s constitution (articles)
- The approval of certain transactions between the directors and the company
- The declaration of final dividends
What is the memorandum of association?
No longer a constitutional document - s.17 CA 2006.
Provides a snapshot of the company on incorporation.
All companies must have one - s.8 CA 2006.
What are the articles of association?
The main constitutional document.
Main purpose is to regulate the relationship between the shareholders, directors and company.
All companies must have them - s.18 CA 2006.
What are the main methods for forming a new company?
- Online incorporation.
- Internal company search unit within a law firm, or third party incorporation agent used by law firms.
- File paper copies at Companies House.
What must be given to the Registrar for a company to be registered?
- A copy of the memorandum.
- An application stating: company name, location of registered office, liability of members, public or private, copy of articles, statement of capital and shareholdings, proposed officers and any PSCs.
- A statement of compliance (s.13)
- The fee
What is set out by the certificate of incorporation?
- Name of the company
- Registered number
- Date of incorporation
What should a company’s statutory books include?
- A register of directors and secretaries
- A PSC register (Part 21A CA)
- Copies of all directors’ service contracts (s.228)
- Register of members (s.114)
- Record of shareholder and board meeting minutes and resolutions (s.248 & s.355)
- Copies of charge instruments
What changes will have to be made to a ready-made company?
- Name of company
- Articles of association
- Shareholders (using stock transfer form)
- Directors (by board resolution)
- Registered office
- Accounting reference date
- Auditor
- PSC register
What is a private limited company?
Any company that is not a public company - s.4(1) CA.
Ends with the word Limited or Ltd - s.59.
What is a public limited company?
A company whose certificate of incorporation states that it is a public company - s.4(2) CA.
Ends with the words ‘public limited company’ or ‘plc’ - s.58.
What are the principal differences between a private and public company?
- Name (ltd/plc)
- Share capital: no requirement for a private company to have any minimum share capital. Public companies must have at least £50,000 (£12,500 paid up).
- Number of directors: private company needs only 1 director, while public company must have two
- Company secretary: private company is not obliged to have a secretary.
- Annual general meetings: private company is not obliged to have an annual general meeting.
- Regulation: public company subject to greater regulation.
Which provisions are to be treated as part of the articles of association under s.28 CA 2006?
- Statement of authorised share capital: no longer necessary to have a cap on number of shares it may issue. This can be removed from the articles by an ordinary resolution.
- Statement of the company’s objects: may be removed by special resolution.
- Company’s name: not necessary to amend the articles if the name is changed.
- Statement that liability is limited: should always be included in the articles
What is the legal effect of the articles of association?
The articles of association are binding on both the company and its members - s.33(1) CA.
But members cannot enforce any rights contained in the articles that are not relevant to their capacity as members. I.e the protection afforded to shareholders is limited.
Conflicting authority as to whether members can enforce the articles against each other directly. A shareholders’ agreement is advised.
What restrictions are there when altering the articles?
Case law - any alteration must be bona fide in the interests of the company as a whole.
Statute - protection of minority shareholders (s.25(1)).
Entrenchment - specific articles may be entrenched.
What are the different types of directors?
Executive directors - both a director and an employee e.g managing director, finance director etc.
Non-executive directors - not an employee. Their role is to provide independent guidance and advice.
Shadow directors - a person ‘in accordance with whose directions or instructions the directors of the company are accustomed to act’ (s.251). Not a someone acting in a professional capacity e.g a bank manager.
Alternate directors - can act in the place of an actual director in meetings.
How is a director appointed?
By ordinary resolution or by a decision of the directors - Art 17.
What powers do directors have?
Directors are responsible for the management of day-to-day business activity, subject to any restrictions in the articles - Art 3.
But when a director acts outside their powers in relation to a third party, the transaction is still binding on the company if the third party acted in good faith - s.40 CA.
The director may still be liable to the company for a breach of powers.
The board as a whole can delegate their powers to an individual (Art 5), but individual directors cannot delegate their duties.
How is authority granted to a director to act on the company’s behalf?
S.43 CA - authority can be express or implied
Actual express authority - authority is given formally, usually using a board resolution.
Actual implied authority - authority is implied where it is normal for the agent to undertake these duties e.g finance director dealing with company accounts.
A managing director is accepted as having the authority to act alone and bind the company on routine commercial transactions.
What are the statutory duties of a director?
- Duty to act within powers (s.171)
- Duty to promote the success of the company for the benefit of the members as a whole (s.172)
- Duty to exercise independent judgement (s.173)
- Duty to exercise reasonable care, skill and diligence (s.174)
- Duty to avoid a situation where he has an interest which conflicts with the interests of the company (s.175)
- Duty not to accept benefits from third parties (s.176)
- Duty to declare any direct or indirect interest in any proposed transaction (s.177)
Must be interpreted and applied in line with common law - s.170(4)
What are a director’s common law duties?
Prior to CA 2006, the overriding duty was to act bona fide in the interests of the company. Also had a duty: - To act for the purpose intended - Not to misapply company property - To account for any secret profit
How can the actions of a director be ratified?
Acts within the powers of the board can be ratified by the board.
Shareholders can ratify by ordinary resolution conduct which amounts to:
- negligence
- default
- breach of duty
- breach of trust
s. 239(2) CA.
Which actions of a director cannot be ratified?
Acts which cannot be ratified by ordinary resolution:
- act involving lack of good faith
- an illegal act
- an act done in breach of a specific procedure laid out in the articles
- an act involving a fraud on the minority
s. 239(7) CA preserves the common law.
