Incorporation, Procedure and Constitution Flashcards
Incorporation
CA
Orange
s. 3 - Limited liability
s. 7 - How a company is formed + can be 1 person.
s. 9 - Docs/information to be given on registration
s. 10 - Statement of capital
s. 12 - Statement of proposed officers
s. 12A - Statement of initial significant control
s. 13 - Statement of compliance
s. 14 - Registrar will register…if satisfied with compliance
s. 15 - Issue of certificate of incorporation
s. 16 - Effect of registration = body corporate formed.
Company names
CA
Orange
s. 51 - Pre-incorporation contracts - agent personally liable
s. 53 - Prohibited names (if an offence or offensive)
s. 54 - Names conncetcted w/ govt. or public authority
s. 55 - Other sensitive words require SoS approval
s. 56 - SoS may require comments of govt. dept.
s. 58 - Public limited companies - end in ‘plc’ (or in full)
s. 59 - Private limited companies - end in ‘limited’ or ‘ltd’
s. 60 - Exempt from using ‘limited’ if charity etc.
s. 65 - May prohibit names which suggest company type
s. 66 - Cannot have same name as company on index
s. 67 - SoS can direct change of name if too similar
s. 77 - Change name by SR or other means in articles
s. 78 - If by SR - notify registrar
s. 79 - If other, notify registrar + statement re articles.
s. 80 - Registrar - new name + issue altered C of I
s. 81 - Change takes effect from date C of I ISSUED
s. 82 - Requirement to disclose company name
s. 83 - Civil consequences for failure under s.82
s. 84 - Criminal consequences for failure under s.82.
General procedural matters
CA
Orange (but anything to be done by directors in blue)
s.86 - company must have regisetered office at all times
s.87 - change of registered office - notice to registrar
+14 day period)
s.112 - person = member when entered on register of
members
s.113 - Must keep register of members (+ details…)
s.123 - If single member company - statement
ss.128A-128E - Private companies can opt to keep
information on central register instead.
s.162 - Must keep register of directors
s.167 - Must notify registrar or changes within 14 days of
person becoming/ceasing to be director or
change of particulars
s.161A - must read ss.162-167 with ss. 167A-167E (right to
make an election to keep on central register)
s.248 - Must record minutes of all directors’ meetings
s.270 - Private company not required to have secretary
s.271 - Public company must have secretary.
s.275 - Must keep register of secretaries
s.276 - Must notify registrar of changes (secretaries)
s.274A - must read ss.275 and 276 with ss. 279A-279E
(right to make election - central register)
s. 391 - Accounting reference date
s. 392 - Altering accounting reference date + restrictions
s. 414A - Directors must prepate strategic report
s. 414C - Contents of strategic report = s.172-related.
s.485 - Auditors of private company - appoint each year
unless directors resolve - not required.
s. 544 - Shares transferable in accordance with articles
s. 770 - Company not to register transfer unless proper
s. 790M - Company must keep PSC register
s. 790VA - Must notify Registrar of changes to PSC
Shareholder Resolutions and General Meetings
CA
Green
Orange for ultra administrative stuff not srtictly relevant to shareholders.
s. 30 - Must forward copy of every resolution of type in
s. 29 to Registrar within 15 days of when passed.
s. 29 - Applies mainly to special resolutions.
s. 281 - Resolutions to be passed as WRs or at meetings
s. 282 - Ordinary = simple majority (50% + 1 vote)
s. 283 - Special = at least 75%
s.301 - Resolution at GM valid if both notice given and
meeting conducted as per CA + Articles.
s.302 - Directors may call GMs
s.307 - Notice requirements + short notice
s.308 - Notice can be hard copy, electronic, website.
s.311 - Notice must contain time, date, place etc.
s.318 - Quorum = 2 ‘QPs’ or 1 if single member company
s.320 - Chairman’s declaration on show of hands
conclusive
s.323 - Corproate representative
s.324 - Right to appoint proxies
s.325 - Notice must state rights re proxies.
s.355 - Keep record of resolutions and meetings
s. 360 = CLEAR DAY RULE
s. 502 - Auditor’s rights re resolutions and meetings
Directors’ General Duties
CA
Blue
s. 170 - Scope and nature of general duties
s. 171 - Duty to act within powers
s. 172 - Duty to promote the success of the company
s. 173 - Duty to exercise independent judgment
s. 174 - Duty to exercise reasonable care, skill, diligence
s. 178 - Civil consequences of breach
s.239 - Ratification (if director also a member)
> If written resolution, director not eligible
> If meeting, director can attend and count towards
quorum, but only passed if disregard his votes
+ member connected with that director (for either).
Practical Advice re Directors’ General Duties
Exercise cuation and give reasons for taking decisions - record these in board minutes - board minutes should not merely be a box-ticking exercise - should be ACTUAL CONSIDERATION of stakeholder interests in s.172.
If they were in breach, any vote to ratify the breach is only effective if votes of director in breach (if also shareholder) are disregarded.
BEST THING TO DO - if decision is uncertain - always call a GM and get PRIOR APPROVAL OF SHAREHOLDERS; prevents claim of breach later.
Changes to shelf company: Order etc.
(1) Change Name (resolve to call GM)
- s.77 (1) - shareholders - by SR or other means specified in articles.
(2) Appoint new directors
- MA 17 (1) Must be done by the outgoing directors or ordinary resolution of shareholders.
(3) Appoint new secretary
- Directors’ general authority under MA 3
- Private companies don’t actually need - s.270 (1)
(4) Accept resignations of outgoing directors
- MA 18 (f) - accept at BM
(5) Appoint new chairman
- Outgoing director automatically ceases to be chairman on his resignation;
- MA 12 (1) - directors may appoint chair - Board Resolution.
(6) Transfer shares
- s.544 - tranferable in accordance with articles
- MA 26 - instrument of transfer etc.
- s.112 (2) - effective when new shareholder entered on register of members.
- s.790VA - update PSC register
- Transferors execute Stock Transfer Forms
- Board Resolution to:
> approve transfer, entry of new shareholder on
register of members, changes to PSC register
> instruct secretary to issue new share certificate,
notify Companies House of changes to PSC.
(7) Change registered office
- Give notice to Registrar - s.87 (1)
- Board Resolution to instruct secretary to fill in CH form.
(8) Change accounting reference date
- Give notice to Registrar - s.392 (1)
- Board Resolution to instruct secretary to fill in CH form.
(9) Appoint auditors
- s.485 (3) - Board Resolution
