|
| |
|
22 | Entrenched provisions of the articles |
| |
(1) | A company’s articles may provide that specified provisions of the articles— |
| |
(a) | may not be altered or repealed, or |
| |
(b) | may be altered or repealed only if conditions are met, or procedures are |
| |
complied with, that are more restrictive than those applicable in the |
| 5 |
case of a special resolution. |
| |
| This is referred to as “provision for entrenchment”. |
| |
(2) | Provision for entrenchment may only be made— |
| |
(a) | in the company’s articles on formation, or |
| |
(b) | by an amendment of the company’s articles agreed to by all the |
| 10 |
| |
23 | Notice to registrar in case of entrenched provisions |
| |
| |
(a) | a company’s articles on formation contain provision for entrenchment, |
| |
| 15 |
(b) | a company’s articles are altered so as to include such provision, |
| |
| the company must give notice to the registrar. |
| |
(2) | Where a company whose articles contain provision for entrenchment amends |
| |
its articles and is required to send to the registrar any document making or |
| |
evidencing the amendment, it must deliver with that document a statement of |
| 20 |
| |
(3) | The statement of compliance required is a statement certifying that the |
| |
amendment has been made in accordance with the company’s articles. |
| |
(4) | The registrar may rely on the statement of compliance as sufficient evidence of |
| |
the matters stated in it. |
| 25 |
24 | Notice to registrar of removal of entrenched provisions |
| |
(1) | Where a company whose articles contain provision for entrenchment alters its |
| |
articles so that they no longer contain any such provision, it must give notice |
| |
of that fact to the registrar. |
| |
(2) | The notice must be accompanied by a statement of compliance. |
| 30 |
(3) | The statement of compliance required is a statement certifying that the |
| |
alteration has been made in accordance with the company’s articles. |
| |
(4) | The registrar may rely on the statement of compliance as sufficient evidence of |
| |
the matters stated in it. |
| |
25 | Effect of alteration of articles on company’s members |
| 35 |
(1) | A member of a company is not bound by an alteration to its articles after the |
| |
date on which he became a member, if and so far as the alteration— |
| |
(a) | requires him to take or subscribe for more shares than the number held |
| |
by him at the date on which the alteration is made, or |
| |
(b) | in any way increases his liability as at that date to contribute to the |
| 40 |
company’s share capital or otherwise to pay money to the company. |
| |
|
| |
|
| |
|
(2) | Subsection (1) does not apply in a case where the member agrees in writing, |
| |
either before or after the alteration is made, to be bound by the alteration. |
| |
26 | Registrar to be sent copy of amended articles |
| |
(1) | Where a company amends its articles it must send to the registrar a copy of the |
| |
articles as amended not later than 15 days after the amendment takes effect. |
| 5 |
(2) | This section does not require a company to set out in its articles any provisions |
| |
| |
(a) | are applied by the articles, or |
| |
(b) | apply by virtue of section 20 (default application of model articles). |
| |
(3) | If a company fails to comply with this section an offence is committed by— |
| 10 |
| |
(b) | every officer of the company who is in default. |
| |
(4) | A person guilty of an offence under this section is liable on summary |
| |
conviction to a fine not exceeding level 3 on the standard scale and, for |
| |
continued contravention, a daily default fine not exceeding one-tenth of level |
| 15 |
| |
27 | Registrar’s notice to comply in case of failure with respect to amended articles |
| |
(1) | If it appears to the registrar that a company has failed to comply with any |
| |
| |
(a) | to send to the registrar a document making or evidencing an alteration |
| 20 |
in the company’s articles, or |
| |
(b) | to send to the registrar a copy of the company’s articles as amended, |
| |
| the registrar may give notice to the company requiring it to comply. |
| |
| |
(a) | state the date on which it is issued, and |
| 25 |
(b) | require the company to comply within 28 days from that date. |
| |
(3) | If the company complies with the notice within the specified time, no criminal |
| |
proceedings may be brought in respect of the failure to comply with the |
| |
enactment mentioned in subsection (1). |
| |
(4) | If the company does not comply with the notice within the specified time, it is |
| 30 |
liable to a civil penalty of £200. |
| |
| This is in addition to any liability to criminal proceedings in respect of the |
| |
failure mentioned in subsection (1). |
| |
(5) | The penalty may be recovered by the registrar and is to be paid into the |
| |
| 35 |
| |
28 | Existing companies: provisions of memorandum treated as provisions of |
| |
| |
(1) | Provisions that immediately before the commencement of this Part were |
| |
contained in a company’s memorandum but are not provisions of the kind |
| 40 |
mentioned in section 8 (provisions of new-style memorandum) are to be |
| |
|
| |
|
| |
|
treated after the commencement of this Part as provisions of the company’s |
| |
| |
(2) | This applies not only to substantive provisions but also to provision for |
| |
entrenchment (as defined in section 22). |
| |
(3) | The provisions of this Part about provision for entrenchment apply to such |
| 5 |
provision as they apply to provision made on the company’s formation, except |
| |
that the duty under section 23(2) to give notice to the registrar does not apply. |
| |
| |
Resolutions and agreements affecting a company’s constitution |
| |
29 | Resolutions and agreements affecting a company’s constitution |
| 10 |
(1) | This Chapter applies to— |
| |
(a) | any special resolution; |
| |
(b) | any resolution or agreement agreed to by all the members of a company |
| |
that, if not so agreed to, would not have been effective for its purpose |
| |
unless passed as a special resolution; |
| 15 |
(c) | any resolution or agreement agreed to by all the members of a class of |
| |
shareholders that, if not so agreed to, would not have been effective for |
| |
its purpose unless passed by some particular majority or otherwise in |
| |
| |
(d) | any resolution or agreement that effectively binds all members of a |
| 20 |
class of shareholders though not agreed to by all those members; |
| |
(e) | a resolution to give, vary, revoke or renew authority for the purposes |
| |
of section 542 (authority of company for allotment of shares by |
| |
| |
(f) | a resolution to redenominate share capital or a class of share capital |
| 25 |
| |
(g) | a resolution of the directors of a company under section 147(2) of the |
| |
Companies Act 1985 (c. 6) (resolution in connection with re-registration |
| |
in consequence of company acquiring its own shares); |
| |
(h) | a resolution conferring, varying, revoking or renewing authority under |
| 30 |
section 166 of that Act (market purchase of company’s own shares); |
| |
(i) | a resolution for voluntary winding up passed under section 84(1)(a) of |
| |
the Insolvency Act 1986 (c. 45) or Article 70(1)(a) of the Insolvency |
| |
(Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)); |
| |
(j) | a resolution of the director of an old public company under section 2(1) |
| 35 |
of the Companies Consolidation (Consequential Provisions) Act 1985 |
| |
(c. 9) that the company should be re-registered as a public company; |
| |
(k) | a resolution passed by virtue of regulations made under section 207 of |
| |
the Companies Act 1989 (c. 40) (transfer of securities). |
| |
(2) | References in subsection (1) to a member of a company, or of a class of |
| 40 |
members of a company, do not include the company itself where it is such a |
| |
member by virtue only of its holding shares as treasury shares. |
| |
|
| |
|
| |
|
30 | Copies of resolutions or agreements to be forwarded to and recorded by |
| |
| |
(1) | A copy of every resolution or agreement to which this Chapter applies, or (in |
| |
the case of a resolution or agreement that is not in writing) a written |
| |
memorandum setting out its terms, must be— |
| 5 |
(a) | forwarded to the registrar within 15 days after it is passed or made, and |
| |
| |
(2) | If a company fails to comply with this section, an offence is committed by— |
| |
| |
(b) | every officer of it who is in default. |
| 10 |
(3) | A person guilty of an offence under this section is liable on summary |
| |
conviction to a fine not exceeding level 3 on the standard scale and, for |
| |
continued contravention, a daily default fine not exceeding one-tenth of level |
| |
| |
(4) | For the purposes of this section, a liquidator of the company is treated as an |
| 15 |
| |
31 | Resolutions and agreements to be embodied in or attached to issued copies of |
| |
| |
(1) | Any resolution or agreement relating to a company that— |
| |
(a) | has been recorded by the registrar— |
| 20 |
| |
(ii) | before the commencement of this Part, under section 380 of the |
| |
Companies Act 1985 (c. 6) or Article 388 of the Companies |
| |
(Northern Ireland) Order 1986 (S.I. 1986/1032 (N.I. 6)) (which |
| |
made provision corresponding to this Chapter), and |
| 25 |
(b) | that is for the time being in force, |
| |
| must be embodied in or annexed to every copy of the company’s articles issued |
| |
| |
(2) | If a company fails to comply with this section, an offence is committed by every |
| |
officer of the company who is in default. |
| 30 |
(3) | A person guilty of an offence under this section is liable on summary |
| |
conviction to a fine not exceeding level 3 on the standard scale for each |
| |
occasion on which copies are issued or, as the case may be, requested. |
| |
(4) | For the purposes of this section, a liquidator of the company is treated as an |
| |
| 35 |
| |
Miscellaneous and supplementary provisions |
| |
Statement of company’s objects |
| |
32 | Statement of company’s objects |
| |
(1) | Unless a company’s articles specifically restrict the objects of the company, its |
| 40 |
objects are unrestricted. |
| |
|
| |
|
| |
|
(2) | Where a company alters its articles so as to add, remove or alter a statement of |
| |
| |
(a) | it must give notice to the registrar, |
| |
(b) | on receipt of the notice, the registrar shall register it, and |
| |
(c) | the alteration is not effective until entry of that notice on the register. |
| 5 |
(3) | Any such alteration does not affect any rights or obligations of the company or |
| |
render defective any legal proceedings by or against it. |
| |
(4) | In the case of a company that is a charity, the provisions of this section have |
| |
| |
(a) | in England and Wales, section 64 of the Charities Act 1993 (c. 10); |
| 10 |
(b) | in Northern Ireland, Article 9 of the Charities (Northern Ireland) Order |
| |
1987 (S.I. 1987/2048 (N.I. 19)). |
| |
(5) | In the case of a company that is entered in the Scottish Charity Register, the |
| |
provisions of this section have effect subject to the provisions of the Charities |
| |
and Trustee Investment (Scotland) Act 2005 (asp 10). |
| 15 |
Other provisions with respect to a company’s constitution |
| |
33 | Constitutional documents to be provided to members |
| |
(1) | A company must, on request by any member, send to him a copy of the |
| |
| |
(a) | an up-to-date copy of the company’s articles incorporating any |
| 20 |
alterations made to them; |
| |
(b) | copies of any resolution or agreement relating to the company that has |
| |
been recorded by the registrar— |
| |
| |
(ii) | before the commencement of this Part, under section 380 of the |
| 25 |
Companies Act 1985 (c. 6) or Article 388 of the Companies |
| |
(Northern Ireland) Order 1986 (S.I. 1986/1032 (N.I. 6)) (which |
| |
made provision corresponding to this Chapter), |
| |
| and that is for the time being in force; |
| |
(c) | a copy of the company’s current certificate of incorporation, and of any |
| 30 |
past certificates of incorporation; |
| |
(d) | in the case of a company with a share capital, a current statement of |
| |
| |
(e) | in the case of a company limited by guarantee, the statement of |
| |
| 35 |
(2) | The statement of capital required by subsection (1)(d)(ii) is a statement of— |
| |
(a) | the total number of shares of the company, |
| |
(b) | the aggregate nominal value of those shares, |
| |
(c) | for each class of shares— |
| |
(i) | prescribed particulars of the rights attached to the shares, |
| 40 |
(ii) | the total number of shares of that class, and |
| |
(iii) | the aggregate nominal value of shares of that class, and |
| |
(d) | the amount paid up and the amount (if any) unpaid on each share |
| |
(whether on account of the nominal value of the share or by way of |
| |
| 45 |
|
| |
|
| |
|
(3) | If a company makes default in complying with this section, an offence is |
| |
committed by every officer of the company who is in default. |
| |
(4) | A person guilty of an offence under this section is liable on summary |
| |
conviction to a fine not exceeding level 3 on the standard scale. |
| |
34 | Effect of company’s constitution |
| 5 |
(1) | The provisions of a company’s constitution, when registered, bind the |
| |
company and its members to the same extent as if there were covenants, signed |
| |
and sealed on the part of each member, to observe those provisions. |
| |
(2) | Money payable by a member to the company under its constitution is a debt |
| |
due from him to the company. |
| 10 |
| In England and Wales and Northern Ireland it is of the nature of an ordinary |
| |
| |
35 | Notice to registrar where company’s constitution altered by enactment |
| |
(1) | This section applies where a company’s constitution is altered by an |
| |
enactment, other than an enactment amending the general law. |
| 15 |
(2) | The company must give notice of the alteration to the registrar, specifying the |
| |
enactment, not later than 15 days after the enactment comes into force. |
| |
| In the case of a special enactment the notice must be accompanied by a copy of |
| |
| |
(3) | If the enactment amends— |
| 20 |
(a) | the company’s articles, or |
| |
(b) | a resolution or agreement to which Chapter 3 applies (resolutions and |
| |
agreements affecting a company’s constitution), |
| |
| the notice must be accompanied by a copy of the company’s articles, or the |
| |
resolution or agreement in question, as amended. |
| 25 |
(4) | A “special enactment” means an enactment that is not a public general |
| |
| |
(a) | an Act for confirming a provisional order, |
| |
(b) | any provision of a public general Act in relation to the passing of which |
| |
any of the standing orders of the House of Lords or the House of |
| 30 |
Commons relating to Private Business applied, or |
| |
(c) | any enactment to the extent that it is incorporated or applied for the |
| |
purposes of a special enactment. |
| |
(5) | If a company fails to comply with this section an offence is committed by— |
| |
| 35 |
(b) | every officer of the company who is in default. |
| |
(6) | A person guilty of an offence under this section is liable on summary |
| |
conviction to a fine not exceeding level 3 on the standard scale and, for |
| |
continued contravention, a daily default fine not exceeding one-tenth of level |
| |
| 40 |
|
| |
|