|
| |
|
| may be reduced by a sum not exceeding (or by sums not in total exceeding) the |
| |
amount by which the permissible capital payment exceeds the nominal |
| |
| |
(4) | Where the proceeds of a fresh issue are applied by the company in making a |
| |
redemption or purchase of its own shares in addition to a payment out of |
| 5 |
capital under this Chapter, the references in subsections (2) and (3) to the |
| |
permissible capital payment are to be read as referring to the aggregate of that |
| |
payment and those proceeds. |
| |
748 | Effect of company’s failure to redeem or purchase |
| |
(1) | This section applies where a company— |
| 10 |
(a) | issues shares on terms that they are or are liable to be redeemed, or |
| |
(b) | agrees to purchase any of its shares. |
| |
(2) | The company is not liable in damages in respect of any failure on its part to |
| |
redeem or purchase any of the shares. |
| |
| This is without prejudice to any right of the holder of the shares other than his |
| 15 |
right to sue the company for damages in respect of its failure. |
| |
(3) | The court shall not grant an order for specific performance of the terms of |
| |
redemption or purchase if the company shows that it is unable to meet the costs |
| |
of redeeming or purchasing the shares in question out of distributable profits. |
| |
(4) | If the company is wound up and at the commencement of the winding up any |
| 20 |
of the shares have not been redeemed or purchased, the terms of redemption |
| |
or purchase may be enforced against the company. |
| |
| When shares are redeemed or purchased under this subsection, they are |
| |
| |
(5) | Subsection (4) does not apply if— |
| 25 |
(a) | the terms provided for the redemption or purchase to take place at a |
| |
date later than that of the commencement of the winding up, or |
| |
| |
(i) | beginning with the date on which the redemption or purchase |
| |
was to have taken place, and |
| 30 |
(ii) | ending with the commencement of the winding up, |
| |
| the company could not at any time have lawfully made a distribution |
| |
equal in value to the price at which the shares were to have been |
| |
| |
(6) | There shall be paid in priority to any amount that the company is liable under |
| 35 |
subsection (4) to pay in respect of any shares— |
| |
(a) | all other debts and liabilities of the company (other than any due to |
| |
members in their character as such), and |
| |
(b) | if other shares carry rights (whether as to capital or as to income) that |
| |
are preferred to the rights as to capital attaching to the first-mentioned |
| 40 |
shares, any amount due in satisfaction of those preferred rights. |
| |
| Subject to that, any such amount shall be paid in priority to any amounts due |
| |
to members in satisfaction of their rights (whether as to capital or income) as |
| |
| |
|
| |
|
| |
|
749 | Meaning of “distributable profits” |
| |
In this Part (except in Chapter 2 (financial assistance): see section 696) |
| |
“distributable profits”, in relation to the making of any payment by a company, |
| |
means profits out of which the company could lawfully make a distribution |
| |
(within the meaning given by section 833) equal in value to the payment. |
| 5 |
750 | General power to make further provision by regulations |
| |
(1) | The Secretary of State may by regulations modify the provisions of this Part. |
| |
| |
(a) | amend or repeal any of the provisions of this Part, or |
| |
(b) | make such other provision as appears to the Secretary of State |
| 10 |
appropriate in place of any of the provisions of this Part. |
| |
(3) | Regulations under this section may make consequential amendments or |
| |
repeals in other provisions of this Act, or in other enactments. |
| |
(4) | Regulations under this section are subject to affirmative resolution procedure. |
| |
| 15 |
| |
| |
751 | Meaning of “debenture” |
| |
In the Companies Acts “debenture” includes debenture stock, bonds and any |
| |
other securities of a company, whether or not constituting a charge on the |
| 20 |
| |
| |
(1) | A condition contained in debentures, or in a deed for securing debentures, is |
| |
not invalid by reason only that the debentures are made— |
| |
| 25 |
| |
(i) | on the happening of a contingency (however remote), or |
| |
(ii) | on the expiration of a period (however long), |
| |
| any rule of equity to the contrary notwithstanding. |
| |
(2) | Subsection (1) applies to debentures whenever issued and to deeds whenever |
| 30 |
| |
753 | Enforcement of contract to subscribe for debentures |
| |
A contract with a company to take up and pay for debentures of the company |
| |
may by enforced by an order for specific performance. |
| |
|
| |
|
| |
|
754 | Registration of allotment of debentures |
| |
(1) | A company must register an allotment of debentures as soon as practicable and |
| |
in any event within two months after the date of the allotment. |
| |
(2) | If a company fails to comply with this section, an offence is committed by— |
| |
| 5 |
(b) | every officer of the company who is in default. |
| |
(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 |
| |
| 10 |
(4) | For the duties of the company as to the issue of the debentures, or certificates |
| |
of debenture stock, see Part 22 (certification and transfer of securities) |
| |
755 | Debentures to bearer (Scotland) |
| |
Notwithstanding anything in the statute of the Scots Parliament of 1696, |
| |
chapter 25, debentures to bearer issued in Scotland are valid and binding |
| 15 |
according to their terms. |
| |
Register of debenture holders |
| |
756 | Register of debenture holders |
| |
(1) | Any register of debenture holders of a company that is kept by the company |
| |
must be kept available for inspection— |
| 20 |
(a) | at the company’s registered office, or |
| |
(b) | at another place in the part of the United Kingdom in which the |
| |
| |
(2) | A company must give notice to the registrar of the place where any such |
| |
register is kept available for inspection and of any change in that place. |
| 25 |
(3) | No such notice is required if the register has, at all times since it came into |
| |
existence, been kept available for inspection at the company’s registered office. |
| |
(4) | If a company makes default for 14 days in complying with subsection (2), an |
| |
| |
| 30 |
(b) | every officer of the company who is in default. |
| |
(5) | 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 in the case |
| |
of continued contravention to a daily default fine not exceeding one-tenth of |
| |
level 3 on the standard scale. |
| 35 |
(6) | References in this section to a register of debenture holders include a |
| |
| |
(a) | of a register of debenture holders that is kept outside the United |
| |
| |
(b) | of any part of such a register. |
| 40 |
|
| |
|
| |
|
757 | Register of debenture holders: right to inspect and require copy |
| |
(1) | Every register of debenture holders of a company must, except when duly |
| |
closed, be open to the inspection— |
| |
(a) | of the registered holder of any such debentures, or any holder of shares |
| |
in the company, without charge, and |
| 5 |
(b) | of any other person on payment of such fee as may be prescribed. |
| |
(2) | Any person may require a copy of the register, or any part of it, on payment of |
| |
such fee as may be prescribed. |
| |
(3) | A person seeking to exercise either of the rights conferred by this section must |
| |
make a request to the company to that effect. |
| 10 |
(4) | The request must contain the following information— |
| |
(a) | in the case of an individual, his name and address; |
| |
(b) | in the case of an organisation, the name and address of an individual |
| |
responsible for making the request on behalf of the organisation; |
| |
(c) | the purpose for which the information is to be used; and |
| 15 |
(d) | whether the information will be disclosed to any other person, and if |
| |
| |
(i) | where that person is an individual, his name and address, |
| |
(ii) | where that person is an organisation, the name and address of |
| |
an individual responsible for receiving the information on its |
| 20 |
| |
(iii) | the purpose for which the information is to be used by that |
| |
| |
(5) | For the purposes of this section a register is “duly closed” if it is closed in |
| |
accordance with provision contained— |
| 25 |
(a) | in the articles or in the debentures, |
| |
(b) | in the case of debenture stock in the stock certificates, or |
| |
(c) | in the trust deed or other document securing the debentures or |
| |
| |
| The total period for which a register is closed in any year must not exceed 30 |
| 30 |
| |
(6) | References in this section to a register of debenture holders include a |
| |
| |
(a) | of a register of debenture holders that is kept outside the United |
| |
| 35 |
(b) | of any part of such a register. |
| |
758 | Register of debenture holders: response to request for inspection or copy |
| |
(1) | Where a company receives a request under section 757 (register of debenture |
| |
holders: right to inspect and require copy), it must within five working days |
| |
| 40 |
(a) | comply with the request, or |
| |
| |
(2) | If it applies to the court it must notify the person making the request. |
| |
(3) | If on an application under this section the court is satisfied that the inspection |
| |
or copy is not sought for a proper purpose— |
| 45 |
|
| |
|
| |
|
(a) | it shall direct the company not to comply with the request, and |
| |
(b) | it may further order that the company’s costs (in Scotland, expenses) on |
| |
the application be paid in whole or in part by the person who made the |
| |
request, even if he is not a party to the application. |
| |
(4) | If the court makes such a direction and it appears to the court that the company |
| 5 |
is or may be subject to other requests made for a similar purpose (whether |
| |
made by the same person or different persons), it may direct that the company |
| |
is not to comply with any such request. |
| |
| The order must contain such provision as appears to the court appropriate to |
| |
identify the requests to which it applies. |
| 10 |
(5) | If on an application under this section the court does not direct the company |
| |
not to comply with the request, the company must comply with the request |
| |
immediately upon the court giving its decision or, as the case may be, the |
| |
proceedings being discontinued. |
| |
759 | Register of debenture holders: refusal of inspection or default in providing |
| 15 |
| |
(1) | If an inspection required under section 757 (register of debenture holders: right |
| |
to inspect and require copy) is refused or default is made in providing a copy |
| |
required under that section, otherwise than in accordance with an order of the |
| |
court, an offence is committed by— |
| 20 |
| |
(b) | every officer of the company who is in default. |
| |
(2) | 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 |
| 25 |
| |
(3) | In the case of any such refusal or default the court may by order compel an |
| |
immediate inspection or, as the case may be, direct that the copy required be |
| |
sent to the person requesting it. |
| |
760 | Register of debenture holders: offences in connection with request for or |
| 30 |
disclosure of information |
| |
(1) | It is an offence for a person knowingly or recklessly to make in a request under |
| |
section 757 (register of debenture holders: right to inspect and require copy) a |
| |
statement that is misleading, false or deceptive in a material particular. |
| |
(2) | It is an offence for a person in possession of information obtained by exercise |
| 35 |
of either of the rights conferred by that section— |
| |
(a) | to do anything that results in the information being disclosed to |
| |
| |
(b) | to fail to do anything with the result that the information is disclosed to |
| |
| 40 |
| knowing or having reason to suspect that person may use the information for |
| |
a purpose that is not a proper purpose. |
| |
(3) | A person guilty of an offence under this section is liable— |
| |
(a) | on conviction on indictment, to imprisonment for a term not exceeding |
| |
two years or a fine (or both); |
| 45 |
|
| |
|
| |
|
(b) | on summary conviction— |
| |
(i) | in England and Wales, to imprisonment for a term not |
| |
exceeding twelve months or to a fine not exceeding the |
| |
statutory maximum (or both); |
| |
(ii) | in Scotland or Northern Ireland, to imprisonment for a term not |
| 5 |
exceeding six months, or to a fine not exceeding the statutory |
| |
| |
761 | Time limit for claims arising from entry in register |
| |
(1) | Liability incurred by a company— |
| |
(a) | from the making or deletion of an entry in the register of debenture |
| 10 |
| |
(b) | from a failure to make or delete any such entry, |
| |
| is not enforceable more than ten years after the date on which the entry was |
| |
made or deleted or, as the case may be, the failure first occurred. |
| |
(2) | This is without prejudice to any lesser period of limitation (and, in Scotland, to |
| 15 |
any rule that the obligation giving rise to the liability prescribes before the |
| |
| |
| |
762 | Right of debenture holder to copy of deed |
| |
(1) | Any holder of debentures of a company is entitled, on request and on payment |
| 20 |
of such fee as may be prescribed, to be provided with a copy of any trust deed |
| |
for securing the debentures. |
| |
(2) | If default is made in complying with this section, an offence is committed by |
| |
every officer of the company who is in default. |
| |
(3) | A person guilty of an offence under this section is liable on summary |
| 25 |
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) | In the case of any such default the court may direct that the copy required be |
| |
sent to the person requiring it. |
| 30 |
763 | Liability of trustees of debentures |
| |
(1) | Any provision contained in— |
| |
(a) | a trust deed for securing an issue of debentures, or |
| |
(b) | any contract with the holders of debentures secured by a trust deed, |
| |
| is void in so far as it would have the effect of exempting a trustee of the deed |
| 35 |
from, or indemnifying him against, liability for breach of trust where he fails to |
| |
show the degree of care and diligence required of him as trustee, having regard |
| |
to the provisions of the trust deed conferring on him any powers, authorities |
| |
| |
(2) | Subsection (1) does not invalidate— |
| 40 |
(a) | a release otherwise validly given in respect of anything done or omitted |
| |
to be done by a trustee before the giving of the release; |
| |
|
| |
|
| |
|
(b) | any provision enabling such a release to be given— |
| |
(i) | on being agreed to by a majority of not less than 75% in value of |
| |
the debenture holders present and voting in person or, where |
| |
proxies are permitted, by proxy at a meeting summoned for the |
| |
| 5 |
(ii) | either with respect to specific acts or omissions or on the trustee |
| |
| |
(3) | This section is subject to section 764 (saving for certain older provisions). |
| |
764 | Liability of trustees of debentures: saving for certain older provisions |
| |
(1) | Section 763 (liability of trustees of debentures) does not operate— |
| 10 |
(a) | to invalidate any provision in force on the relevant date so long as any |
| |
| |
(i) | then entitled to the benefit of the provision, or |
| |
(ii) | afterwards given the benefit of the provision under subsection |
| |
| 15 |
| remains a trustee of the deed in question, or |
| |
(b) | to deprive any person of any exemption or right to be indemnified in |
| |
respect of anything done or omitted to be done by him while any such |
| |
| |
(2) | The relevant date for this purpose is— |
| 20 |
(a) | 1st July 1948 in a case where section 192 of the Companies Act 1985 |
| |
(c. 6) applied immediately before the commencement of this section; |
| |
(b) | 1st July 1961 in a case where Article 201 of the Companies (Northern |
| |
Ireland) Order 1986 then applied. |
| |
(3) | While any trustee of a trust deed remains entitled to the benefit of a provision |
| 25 |
saved by subsection (1) above the benefit of that provision may be given |
| |
| |
(a) | to all trustees of the deed, present and future, or |
| |
(b) | to any named trustees or proposed trustees of it, |
| |
| by a resolution passed by a majority of not less than 75% in value of the |
| 30 |
debenture holders present in person or, where proxies are permitted, by proxy |
| |
at a meeting summoned for the purpose. |
| |
(4) | A meeting for that purpose must be summoned in accordance with the |
| |
provisions of the deed or, if the deed makes no provision for summoning |
| |
meetings, in a manner approved by the court. |
| 35 |
765 | Power to re-issue redeemed debentures |
| |
(1) | Where a company has redeemed debentures previously issued, then unless— |
| |
(a) | provision to the contrary (express or implied) is contained in the |
| |
company’s articles or in any contract made by the company, or |
| |
(b) | the company has, by passing a resolution to that effect or by some other |
| 40 |
act, manifested its intention that the debentures shall be cancelled, |
| |
| the company may re-issue the debentures, either by re-issuing the same |
| |
debentures or by issuing new debentures in their place. |
| |
| This subsection is deemed always to have had effect. |
| |
|
| |
|