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Energy Bill [HL]


Energy Bill [HL]
Schedule 6 — Structure etc. of transferee companies

176

 

“recovery scheme” means so much of a nuclear transfer scheme as

contains provision for or in connection with a transfer authorised

by section 44;

“relevant contractor”, in relation to a recovery scheme, means the

person who (within the meaning of that section) is the contractor in

5

relation to the contract by reference to the breach of which, or the

expiry or other termination of which, that scheme was made;

“transferee”—

(a)   

in relation to a nuclear transfer scheme, means a person to

whom property, rights or liabilities are transferred in

10

accordance with the scheme; and

(b)   

in relation to particular property, rights or liabilities

transferred or created in accordance with a nuclear transfer

scheme, means the person to whom that property or those

rights or liabilities are transferred or in whose favour, or in

15

relation to whom, they are created;

“transferor”—

(a)   

in relation to a nuclear transfer scheme, means a person

from whom property, rights or liabilities are transferred in

accordance with the scheme; and

20

(b)   

in relation to particular property, rights or liabilities

transferred or created in accordance with a nuclear transfer

scheme, means the person from whom that property or

those rights or liabilities are transferred or the person who

or whose property is subject to the interest or right created

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by the scheme or for whose benefit the liability is created.

      (2)  

References in this Schedule to a right or to an entitlement to a right include

references to an entitlement to exercise a right; and, accordingly, references

to a right’s arising include references to its becoming exercisable.

Schedule 6

30

Section 42

 

Structure etc. of transferee companies

Application and interpretation of Schedule

1     (1)  

This Schedule applies where—

(a)   

property, rights and liabilities are transferred to a company (“the

transferee company”) in accordance with provisions of a nuclear

35

transfer scheme authorised by section 42; and

(b)   

that company is publicly owned when the transfer takes effect.

      (2)  

In this Schedule—

“the Authorities” means the NDA and the UKAEA;

“the relevant scheme”, in relation to the transferee company, means—

40

(a)   

the nuclear transfer scheme containing the provisions

authorised by section 42 in accordance with which property,

rights and liabilities are vested in that company; and

(b)   

any modification agreement (within the meaning of

Schedule 5) relating to that scheme;

45

 

 

Energy Bill [HL]
Schedule 6 — Structure etc. of transferee companies

177

 

“transferee company” is to be construed in accordance with sub-

paragraph (1);

“transferor”, in relation to the transferee company, means the person

or body from whom property, rights or liabilities are transferred to

the transferee company in accordance with the relevant scheme.

5

      (3)  

In this paragraph “company” has the same meaning as in the Companies Act

1985 (c. 6).

Initial Government holding in the transferee company

2     (1)  

As a consequence of the vesting, in accordance with the relevant scheme, of

property, rights and liabilities in the transferee company, that company

10

must issue to—

(a)   

the Treasury, or

(b)   

a Minister of the Crown,

           

such securities of the company as the Secretary of State may from time to

time direct.

15

      (2)  

In a case where the transferee company is a wholly-owned subsidiary of one

of the Authorities, that company must, as a consequence of the vesting in

that company of property, rights and liabilities, issue to the Authority in

question such securities of the company as the Authority may from time to

time direct.

20

      (3)  

A direction under sub-paragraph (1) or (2) may be given to a company only

at a time when the company is publicly owned.

      (4)  

Securities issued in accordance with a direction under this paragraph—

(a)   

shall be of such nominal value as the Secretary of State may direct;

(b)   

shall be issued as fully paid; and

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(c)   

shall be treated for the purposes of the Companies Act 1985 as if they

had been paid up by virtue of the payment to the company of their

nominal value in cash.

      (5)  

The consent of the Treasury is required for—

(a)   

the exercise by the Secretary of State or either of the Authorities of a

30

power conferred by the preceding provisions of this paragraph; or

(b)   

the disposal by a Minister of the Crown, or by either of the

Authorities, of securities issued to him or to that Authority in

accordance with this paragraph.

      (6)  

The consent of the Secretary of State is required for the giving of a direction

35

by either of the Authorities under sub-paragraph (2).

Government investment in securities of transferee company

3     (1)  

The Treasury or a Minister of the Crown may use money provided by

Parliament for the acquisition of—

(a)   

securities of the transferee company; or

40

(b)   

rights to subscribe for such securities.

      (2)  

The consent of the Treasury is required for—

(a)   

an acquisition by a Minister of the Crown under sub-paragraph (1);

or

(b)   

a disposal by a Minister of the Crown of securities or rights acquired

45

by virtue of this paragraph.

 

 

Energy Bill [HL]
Schedule 6 — Structure etc. of transferee companies

178

 

Exercise of functions through nominees

4     (1)  

The Treasury, a Minister of the Crown or either of the Authorities may

appoint a person to act as a nominee of the Treasury, of that Minister or of

that Authority—

(a)   

in the case of the Treasury or such a Minister, for the purposes of

5

paragraph 2 or 3; and

(b)   

in the case of one of the Authorities, for the purposes of paragraph 2.

      (2)  

The consent of the Treasury is required for the appointment of a nominee by

a Minister of the Crown.

      (3)  

The issue of securities under paragraph 2 to a nominee of the Treasury or of

10

a Minister of the Crown must be in accordance with such directions (if any)

as are given from time to time—

(a)   

by the Treasury; or

(b)   

with the consent of the Treasury, by the Minister.

      (4)  

The acquisition of securities or rights under paragraph 3 by a nominee of the

15

Treasury or of a Minister of the Crown must be in accordance with such

directions (if any) as are given from time to time—

(a)   

by the Treasury; or

(b)   

with the consent of the Treasury, by a Minister of the Crown.

      (5)  

A person who by virtue of paragraph 2 or 3 and this paragraph holds

20

securities or rights as a nominee of the Treasury or of a Minister of the

Crown must hold them and deal with them—

(a)   

on such terms, and

(b)   

in such manner,

           

as the Treasury or, with the consent of the Treasury, the Secretary of State

25

may direct.

Payment of dividends etc. into Consolidated Fund

5          

Dividends or other sums received by the Treasury or a Minister of the

Crown in right of, or on the disposal of, securities or rights acquired by

virtue of this Schedule must be paid into the Consolidated Fund.

30

Distributable reserves of transferee companies

6     (1)  

This paragraph applies where statutory accounts of the transferee company

prepared as at a particular time would show the company as having net

assets in excess of the aggregate of—

(a)   

its called-up share capital; and

35

(b)   

the amount, apart from the property, rights and liabilities to which

the company has become entitled or subject in accordance with the

relevant scheme, of its undistributable reserves.

      (2)  

For the purposes of—

(a)   

section 263 of the Companies Act 1985 (c. 6) (profits available for

40

distribution), and

(b)   

the preparation of statutory accounts of the company,

           

that excess shall be treated, except so far as the Secretary of State may

otherwise direct, as representing an excess of the company’s accumulated

realised profits over its accumulated realised losses.

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Energy Bill [HL]
Schedule 6 — Structure etc. of transferee companies

179

 

      (3)  

For the purposes of section 264 of the Companies Act 1985 (c. 6) (restriction

on distribution of assets), so much of the excess as is the subject of a direction

under sub-paragraph (2), shall be treated as comprised in the company’s

undistributable reserves (subject to any modification of the direction by a

subsequent direction under sub-paragraph (4)).

5

      (4)  

The Secretary of State may give a direction for treatment as profits in relation

to an amount equal to the whole or a part of an amount falling to be treated

as mentioned in sub-paragraph (3).

      (5)  

A direction for treatment as profits is one that provides that, on the

realisation (whether before or after the company in question ceases to be

10

publicly owned) of such profits and losses as may be specified or described

in the direction, so much of the amount in relation to which the direction is

given as may be determined in accordance with it—

(a)   

is to cease to be treated as mentioned in sub-paragraph (3); and

(b)   

is to be treated as comprised in the company’s accumulated realised

15

profits.

      (6)  

The Secretary of State must not give a direction under any provision of this

paragraph at any time after the transferee company has ceased to be publicly

owned.

      (7)  

The consent of the Treasury is required for the giving of a direction under

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this paragraph.

      (8)  

In this paragraph—

“accounting reference period” has the meaning given by section 224 of

the Companies Act 1985;

“called-up share capital” has the meaning given by section 737 of that

25

Act;

“net assets” has the meaning given by section 264(2) of that Act;

“statutory accounts”, in relation to a company, means accounts of the

company prepared in respect of a period in accordance with the

requirements of that Act, or with those requirements applied with

30

such modifications as are necessary where that period is not an

accounting reference period;

“undistributable reserves” has the meaning given by section 264(3) of

that Act.

Dividends

35

7     (1)  

This paragraph applies where a distribution is proposed to be declared—

(a)   

during an accounting reference period of the transferee company

which includes a transfer date; or

(b)   

before any accounts are laid or filed in respect of such a period.

      (2)  

Sections 270 to 276 of the Companies Act 1985 (accounts relevant for

40

determining whether a distribution may be made by a company) shall have

effect as if—

(a)   

references in section 270 to the company’s accounts and to accounts

relevant under that section, and

(b)   

references in section 273 to initial accounts,

45

           

included references to such accounts as, on the assumptions stated in sub-

paragraph (3), would have been prepared under section 226 of that Act in

respect of the relevant year (“the relevant accounts”).

 

 

Energy Bill [HL]
Schedule 6 — Structure etc. of transferee companies

180

 

      (3)  

Those assumptions are—

(a)   

that the relevant year was a financial year of the transferee company;

(b)   

that the vesting of property, rights and liabilities in accordance with

the relevant transfer scheme was effected immediately after the

beginning of that year;

5

(c)   

that so much of the relevant scheme as contains provision by or

under which there is a determination of the value of an asset to which

the company becomes entitled in accordance with the scheme has

effect for determining the value of that asset for the purposes of the

accounts in question;

10

(d)   

that so much of the relevant scheme as contains provision by or

under which there is a determination of the amount of a liability to

which the company becomes subject in accordance with the scheme

has effect for determining the amount of that liability for the

purposes of the accounts in question;

15

(e)   

that securities of the transferee company issued or allotted before the

declaration of the distribution had been issued or allotted before the

end of the relevant year; and

(f)   

such other assumptions as may appear to the directors of the

transferee company to be necessary or expedient for the purposes of

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this paragraph.

      (4)  

The relevant accounts shall not be regarded as statutory accounts for the

purposes of paragraph 8 of Schedule 7.

      (5)  

In this paragraph—

“accounting reference period” has the meaning given by section 224 of

25

the Companies Act 1985 (c. 6);

“complete financial year” means a financial year ending with 31

March;

“distribution” has the same meaning as in Part 8 of the Companies Act

1985;

30

“the relevant year”, in relation to a transfer date, means the last

complete financial year ending before that date;

“a transfer date”, in relation to the transferee company, means the date

of the coming into force of the relevant scheme.

Saving for inherent powers of Ministers

35

8          

Nothing in this Schedule is to be construed as prejudicing the ability of a

Minister of the Crown or the Treasury, apart from the powers conferred on

him or them by or under this Act or any other enactment—

(a)   

to acquire or dispose of securities of a company other than the

transferee company; or

40

(b)   

to act through nominees for the purpose.

 

 

 
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