Legal Drafting - BLP

Question 1

Company execution options for contracts

Answer 1

1. Company seal, or
2. On behalf of company by person acting on its authority (express or implied)

Question 2

Company execution options for deeds

Answer 2

1. Affix company seal in presence of director + director / CS
2. Signed by director + secretary OR two directors
3. Signed by single director in presence of witness

Question 3

Recitals clause

Answer 3

• Sets out brief background or history to agreement
• Letters used not numbers
• Comes after the ‘This agreement is made on X and parties details’

“WHEREAS” or “BACKGROUND”

Question 4

Drafting approach for operative provisions

Answer 4

• Who is obliged to perform obligation
• What the obligation is
• How it should be performed
• When it should be performed by
• Consequences if not complied with

Question 5

Choice of law clause example

Answer 5

“This Agreement shall be governed by and construed in accordance with English law.”

Question 6

Force majeure clause example

Answer 6

Covers events e.g. “acts of God, adverse weather such as floods or snow, war, riot, government action and industrial action by third parties.”

Question 7

Testimonium sample wording

Answer 7

(i) For agreements under hand: ‘[EXECUTED] / [SIGNED] by the parties’

(ii) For deeds: ‘[EXECUTED] / [SIGNED] and delivered by the parties as a deed’

Question 8

Example CA 2006 provisions that cannot be excluded and that override Articles

Answer 8

• Right to demand a poll vote at GM (cannot be removed nor varied)
• Cannot exclude WR procedure
• Director cannot entrench their position to prevent them being removed by OR (but can include Bushell v Faith clause)

Question 9

Common amendments to Articles

Answer 9

• Removing MA13 - chairperson’s casting vote in a deadlock
• MA11 - increasing quorum for BMs to above 2
• Removing MA14 - prohibition on interested directors voting
• Amending MA21 - that all shares be fully paid up
• Increasing requirements for holding GM at short notice from 90% to 95% MAX

Question 10

Board minutes outline

Answer 10

• [NAME OF COMPANY] (company number)
• “Minutes of a meeting of the board of directors of [NAME OF COMPANY] (Company) held at [ADDRESS] on [DATE] at [TIME]
• Present (name + position)
• In attendance (name + position) - i.e. not voting
• Apologies received from

Main body:
1. Chair ([name] appointed and chaired the meeting throughout)
2. Notice and quorum (due notice + quorum present = meeting declared open)
3. Interests in proposed transactions and/or arrangements with company (name + nature/extent of interest) OR confirmation of no interest
[4. Interests in existing transactions and/or arrangements with the company (name + nature/extent of interest) OR confirmation of no interest
(5) Could also set out background in BACKGROUND clause
5. Minutes of the meeting held on [DATE] -“RESOLVED that the minutes of the board meeting held on [DATE], a draft of which was produced to the meeting, be approved without amendment, and that the chair be authorised to sign them”
6. Resolutions (“IT WAS RESOLVED THAT…”)
7. Filing (the chair instructed X to…)
8. Close (no further business = chair declared meeting closed)

Finish:
* Chairperson [signed]
* Date [dated]

Question 11

GM minutes outline

Answer 11

Very similar to BMs but main difference is adding voting after detailing the resolution:
* The Chair declared that this resolution was passed on a show of hands as a special resolution.
Votes breakdown: ____ votes for, and _____ votes against.
The votes were counted on the basis that one raised hand is equal to one vote.

Question 12

Details to add on notice of WR

Answer 12

• Circulation date (date first sent to members)
• When will the WR be sent to the shareholders?
• What are the shareholders’ names?
• Whether it is a special or ordinary resolution?
• What is the wording of the resolution?
• Can the signed WR be returned to the company by:
  a) Hand?
• If so, to what address should the WR be delivered?
  b) Post?
• If so, to what address should the signed WR be delivered?
  c) Email?
• If so, what email address should the WR be sent and to whom the email be addressed to?

When should the signed WR be returned to the company by?
- Will lapse 28 days from circulation date UNLESS stated otherwise in Articles

Question 13

BR example to appoint additional director

Answer 13

That [NAME], having consented to act, be appointed as an additional director of the Company [with immediate effect OR with effect from the end of the meeting OR with effect from [DATE]] [to hold office until the next annual general meeting].

Question 14

How to refer to docs in minutes

Answer 14

“There was produced to the meeting…”

E.g. There was produced to the meeting a notice convening a general meeting of the Company, proposing the following resolution (the ‘Notice’)

Question 15

General approach re minutes

Answer 15

• Use headings to summarise action
• Capitalise as follows: IT WAS RESOLVED that…
• Include any documents produced: There was/were produced to the meeting…

Question 16

PMM for appointing directors / CS of shell company and transferring shares

Answer 16

IT WAS RESOLVED that CS file with CH:
* AP01 (ind.) / AP03 (CS)
* TM01 (ind.) / TM02 (CS)
* PSC01 (being a PSC) / PSC07 (ceasing to be)

IT WAS FURTHER RESOLVED THAT CS file ocpy of minutes and update following registers:
* Register of directors / secretaries
* Register of PSCs

Question 17

Ending of BMs

Answer 17

CLOSE
“There being no further business, the Chairperson declared the meeting closed”

Signature of Chairperson
Date

Question 18

How to deal with transfer of shares in BMs

Answer 18

There were produced to the meeting duly executed transfers of the subscriber shares as follows (detail transferor / transferee / no. of shares for each transfer).

Payment in cash and CS instructed to:
* Cancel current share certificates
* Enter new SH in register of members immediately
* Issue share certficates to new members in due course

Question 19

What must be included in GM notice

Answer 19

• Date, time and location of meeting
• Full text of any SR proposed
• Sufficient detail of any ORs
• Proxy notice

Question 20

Who should sign consent to short notice procedure

Answer 20

All the shareholders consenting

Question 21

Who should sign the minutes

Answer 21

Chair

Question 22

How to deal with various different docs produced in BM

Answer 22

3. PRODUCTION OF DOCUMENTS

The Chair tabled the following documents:

1.1 a draft loan agreement between…

Question 23

What should be done where part-way through BM, something like e.g. a WR needs passing

Answer 23

ADJOURNMENT
4.1 The meeting was adjourned so that the Written Resolution could be passed by the shareholders.
4.2 The meeting was reconvened when the Chair reported that the Written Resolution had been signed by both shareholders and had therefore been passed.

Question 24

If a SR is required after BM for e.g. changing name, how is this dealt with in BM

Answer 24

GENERAL MEETING

There was produced to the meeting a notice convening a general meeting of the Company, proposing the following resolution (the ‘Notice’)”

Special resolution:
That the name of the Company be changed to [ ]

IT WAS RESOLVED that the Notice be and is hereby approved and that a copy of the Notice be delivered to the shareholders and the Company’s directors forthwith

Question 25

What if directors change e.g. due to shelf company

Answer 25

Under present / in attendance, state when this is until or in effect from (e.g. until the end of item 3.4)

Question 26

What two things come under NOTICE AND QUORUM

Answer 26

1. The Chaiperson reported that notice of the meeting had been duly served and that a quorum was present. 2. Each director present confirmed that they had no direct or indirect interest in any way in the business to be considered at the meeting (as set out below) which they were required by section 177 of the Companies Act 2006 and the Company’s articles of association to disclose.

Question 27

What sort of thing could go in BACKGROUND clause (BM)

Answer 27

The Chairperson reported the date on which the Company had been incorporated and that the Company had been incorporated with registered number 03789424. The certificate of incorporation and a copy of the memorandum and articles of association were produced to the meeting. There was produced to the meeting a copy of the prescribed form (Form IN01) stating the details of the first directors and registered office of the Company. The Chairperson reported that the subscribers to the memorandum of association were Karen Sanderson and Ben Grayson in respect of one ordinary share of £1 each in the share capital of the Company.

Question 28

How to deal with appointing / resigning directors in BMs

Answer 28

3.1 IT WAS RESOLVED that Helena Morrison and Amelie Saunders, having consented to act, be and are hereby appointed to act as directors of the Company with immediate effect. 3.2 Karen Sanderson agreed to stand down as Chairperson and IT WAS RESOLVED that Helena Morrison be appointed Chairperson with immediate effect. 3.3 IT WAS RESOLVED that Amelie Saunders, having consented to act, be and is hereby appointed to act as the new Company Secretary of the Company with effect from the resignation of Ben Grayson from that role. 3.4 There were produced to the meeting letters of resignation as directors signed by Karen Sanderson and Ben Grayson, and as Company Secretary signed by Ben Grayson, to take effect immediately and IT WAS RESOLVED to accept the same

Question 29

How should the filings part following transfer of shares clause in BM be worded

Answer 29

Payment in cash in full satisfaction of the nominal amount of each of these shares was received. IT WAS RESOLVED that the transfers be and are hereby approved and that the Company Secretary be and is hereby instructed to: