The Companies Act 2006

INTRODUCTION

The Companies Act 2006 (the "2006 Act") brought about the most significant changes to company law in over 20 years. Implementation of the 2006 Act took place in phases with certain provisions coming into force on 1 October 2007, on 6 April 2008 and on 1 October 2008, with final implementation on 10 October 2009.

This briefing summarises some of the major changes which came about at each phase of implementation.

PROVISIONS WHICH CAME INTO EFFECT ON 1 OCTOBER 2007

This section of the briefing note highlights the key provisions which came into effect on 1 October 2007.

Statutory Statement of Directors' Duties

A new statutory statement of directors' duties replaced the old common law and equitable principles. The statutory duties are owed to the company and only the company is able to enforce them (although see the section on "Derivative actions by shareholders" below.)

There are 7 general duties in the new statutory statement:

A duty to act in accordance with the powers set out in the company's constitution.
A duty to promote the success of the company for the benefit of its members. (This replaced the common law duty to act in good faith in the company's interests and proved the most controversial new duty. In deciding how to promote the success of the company, the directors are required to have regard to a wide number of factors including: the likely long term consequences of their decisions; the interests of the company's employees; the need to foster the company's business relationships with suppliers, customers and others; the impact of the company's operations on the community and the environment; the desirability of maintaining a reputation for high standards of business conduct; and the need to act fairly as between members of the company.)
A duty to exercise independent judgement.
A duty to exercise reasonable care, skill and diligence.
A duty to avoid conflicts of interest.
A duty not to accept benefits from third parties.
A duty to declare to the company's other directors any interest a director has in an existing or proposed transaction or arrangement with the company.

All of the duties came into force on 1 October 2007 apart from the duty to avoid conflicts of interest, the duty not to accept benefits from third parties and the duty to declare interests in existing/proposed transactions or arrangements with the company, which did not come into effect until 1 October 2008 (see below).

The duties are not mutually exclusive meaning that more than one of them may apply to any given situation.

Derivative Actions by Shareholders

A new statutory derivative claim procedure enabling shareholders to sue directors in the name of, and for the benefit of, the company replaced the old common law action. Under the new procedure, shareholders may sue in respect of an actual or proposed act or omission of a director involving negligence, default, breach of duty (including the new statutory directors' duties highlighted above) or breach of trust. Notably, directors can be sued for negligence even where they have not personally profited by it. This means that there are a wider range of circumstances than currently in which a derivative action may be brought against a director.

Once derivative proceedings are issued, the claimant member must apply to court for permission to continue the claim. The claim will be dismissed unless the application and evidence filed by the member establish a genuine case.

Resolutions and Meetings

The part of the 2006 Act that deals with the procedure for meetings and resolutions came into force on 1 October 2007. Generally, it relaxed the law for private companies. Changes included:

Private companies no longer being required to hold an AGM although they can choose to do so. Any provision in the company's articles of association requiring the company to hold an AGM must still be adhered to, unless altered.
Only 14 days' notice is needed to call a general meeting (subject to anything contrary in the articles of association and with the exception of a public company's AGM which still requires 21 days).
It was made easier for private companies to pass written resolutions (a simple majority is now required for written ordinary resolutions and a 75% majority for written special resolutions).
Proxies – a member is now able to appoint more than one proxy to attend a meeting on his behalf and proxies have the same right to attend, vote and speak at public company meetings as they have at private company meetings.
Quoted companies – are now required to publish results of polls taken at general meetings on their websites. In addition, shareholders of a quoted company (being 100 in number or with 5% or more of the voting rights entitled to vote on the matter in question) can require the directors to obtain an independent report on any poll taken at a general meeting. Again, the report must be published on the company's website.

Indirect Investor Rights

The 2006 Act introduced two new provisions to allow indirect investors to exercise certain rights:

Firstly, companies may have a provision in their articles allowing members to nominate another person or persons to enjoy or exercise their rights as a member (for example, a trustee shareholder could nominate a beneficiary under the trust). Such rights may include being sent notices of meetings and being entitled to vote.
Secondly, registered members of quoted companies can nominate indirect investors to enjoy "information rights" (principally the right to receive copies of company communications).

Director's Reports – Business Reviews

There are new provisions detailing the information that is to be included in the business review section of directors' reports. The stated purpose of the business review is to inform members and help them to assess how the directors have performed their new statutory duty to promote the company's success. There are more stringent disclosure requirements for quoted companies in relation to the business review which include the need for certain forward-looking statements.

Transactions With Directors

The 2006 Act brought about a number of changes in relation to transactions with directors which came into effect from 1 October 2007, these included:

Loans to Directors - the general prohibition on loans to directors was repealed and instead they are now permitted with prior shareholder approval for all companies. Members can also affirm a loan if it is made without prior approval.
Substantial property transactions (where the company sells/buys a substantial non-cash asset from a director/person connected with a director) - the rules have been relaxed so that a company may enter into a substantial property transaction conditional on shareholder approval being obtained and the company is not liable under the contract even if such approval is not subsequently obtained.
Long Term Service Contracts - shareholder approval is required for all service contracts of 2 years or longer made on or after 1 October 2007 (as opposed to the old requirement of 5 years or longer).

PROVISIONS WHICH CAME INTO EFFECT ON 6 APRIL 2008

This section of the briefing note focuses on the key provisions which came into effect on 6 April 2008:

Company Secretaries

With effect from 6 April 2008, private companies have not been required to have a company secretary. Providing the company's articles of association do not expressly require a secretary, and the company wants to take advantage of the new position, the existing secretary simply needs to resign and their appointment be terminated in the usual way.

Where a company's articles do expressly require a company secretary, the company will need to pass a shareholder resolution to amend the articles in order to benefit from the new position. Note that a provision requiring or authorising things to be done by or in relation to a secretary, or as to the manner in which, or terms on which, a secretary is to be appointed or removed, is not a provision expressly requiring the company to have a secretary.

Public companies are still required to have a company secretary.

Execution of Documents

Most of the provisions on execution did not come into force until 1 October 2009, however, one provision took effect from 6 April 2008 to circumvent execution issues which may otherwise have arisen given the abolition of the requirement for private companies to have a company secretary. That provision was the ability for a company to execute documents by the signature of one director, providing he/she signs in the presence of a witness.

Liability Limitation Agreements

New provisions in the 2006 Act allow auditors and companies to enter into "liability limitation agreements" to limit an auditor's liability to a company for negligence, default or breach of duty or trust in relation to the audit of the accounts. Such an agreement will not be effective if it limits the auditor's liability to less than such amount as is fair and reasonable in all the circumstances of the case having regard to various factors.

Liability limitation agreements must be approved by an ordinary resolution (or such higher threshold as is set out in the company's articles) which can be passed before or after the agreement is signed. Private companies can pass a resolution waiving the need for approval. A company may, by ordinary resolution, withdraw its authorisation for a liability limitation agreement, despite anything to the contrary in the agreement itself.

The Financial Reporting Council published a standard form of liability limitation agreement and a suggested process for the implementation of such an agreement (including obtaining shareholder approval), but market practise suggest companies have been slow to take these up.

Accounts and Reports

Part 15 of the 2006 Act brought about a number of changes in relation to the requirements on the form, content and publication of companies' annual reports and accounts. A few of the changes are highlighted below.

Publication of Accounts

As private companies are no longer required to hold an AGM, distribution of accounts and reports is no longer referable to the date of the general meeting. Instead, copies of the accounts and reports must be distributed to shareholders and others entitled to receive them, no later than the earlier of the date of actual delivery to the Registrar or the deadline for delivery (see below).

Public companies are still required to send the annual accounts and reports no later than 21 days before the general meeting at which they are to be laid.

Quoted companies have an additional new requirement to publish their annual reports and accounts on their website as soon as reasonably practicable. There are specific requirements regarding access to the accounts on the website and they must remain available there until the accounts and reports for the next financial year are published.

Laying of Accounts

Private companies are no longer required to lay their accounts and reports before the company in general meeting. Public companies must continue to do so and must now hold their AGM within 6 months of the end of the accounting reference period.

Filing of Accounts

The period of filing for accounts of a private company has been reduced from 10 months to 9 months and for a public company has been reduced from 7 months to 6 months. Both periods are calculated from the end of the relevant accounting reference period.

Small and Medium Companies

The thresholds defining small and medium companies (which impact on the content and filing requirements of their accounts and reports) have been increased.

Distributions

The substantive change in this area cured the uncertainties that arose following the case of Aveling Barford v Perion.

The 2006 Act confirms that, where a transferring company has positive distributable reserves, the amount of any distribution arising from the sale, transfer or other disposition by a company of a non-cash asset to a shareholder should be calculated by reference to the asset's book value.

This means that a company with distributable profits, which makes a relevant transfer of an asset at book value where the market value is higher than book value, does make a distribution, but the value of the distribution is zero and it is lawful.

If an asset is transferred for less than its book value, the amount of the distribution will be the difference between its book value and the actual consideration paid for it, and must be covered by the company's distributable reserves.

The 2006 Act further provides that a company which does not have distributable profits cannot lawfully make an intra group transfer at an undervalue (reflecting the current common law rule).

Other provisions which came into effect on 6 April 2008 included:

Part 16 (Audit)

In addition to the introduction of liability limitation agreements there were a number of other changes, including:

The introduction of a new criminal offence, punishable by fine, in relation to an inaccurate auditor's report; and
The introduction of a new right for shareholders of quoted companies (being those on the Main Market not AIM) to raise questions about the work of the auditors.

Part 19 (Debentures)

Changes included:

" a new procedure in relation to requests to inspect the register of debenture holders;

a company that refuses to register a transfer of a debenture will have to give the reasons for such refusal; and
an obligation to register an allotment of debentures within 2 months of the allotment date.

Part 20 (Private and Public Companies)

Changes included:

private companies no longer commit an offence if they offer shares to the public but may be required to re-register as a public company or be wound up;
public companies can satisfy the £50,000 minimum share capital requirement in an equivalent amount of Euros.

PROVISIONS WHICH CAME INTO EFFECT ON 1 OCTOBER 2008

This section of the briefing note focuses on the key provisions which came into effect on 1 October 2008:

Statutory Directors' Duties

The remaining statutory directors' duties came into effect. Namely:

The Duty to Avoid Conflicts of Interest

A director must avoid situations in which he has or can have a direct or indirect interest that conflicts with or may conflict with the company's interests. The board of a private company incorporated on or after 1 October 2008 may authorise a matter provided there is nothing in the company's constitution to invalidate such authorisation. The directors of existing companies can also authorise conflicts provided the members have resolved that authorisation may be given in accordance with the relevant provision of the 2006 Act, and there is nothing to invalidate the authorisation in the company's articles of association. The articles of association of a public company must specifically permit the directors to authorise the matter being proposed.

The Duty to Declare Any Interest in a Proposed Transaction or Arrangement with the Company

Every director must declare to the other directors the nature and extent of any interest, direct or indirect, in a proposed transaction or arrangement with the company. Such declarations must be made before the company enters into the transaction or arrangement.

The Duty Not to Accept Benefits from Third Parties

A director must not accept any benefit from a third party which is conferred because of him being a director or him doing or not doing anything as a director.

Financial Assistance

The prohibition on a private company giving financial assistance for the acquisition of its shares, together with the "whitewash" procedure, was repealed with effect from 1 October 2008.

There was a concern that, despite the abolition of the financial assistance prohibition on private companies, common law rules relating to maintenance of capital may have operated to prevent a private company from giving financial assistance for the purchase of its own shares. This concern was alleviated by a saving provision (in the Fifth Commencement Order, the statutory instrument that brought into force the repeal of the financial assistance prohibition for private companies) which makes it clear that common law does not have the effect of reinstating the financial assistance prohibition. However, the explanatory memorandum to the Fifth Commencement Order points out that care needs to be taken as there may still be instances where a transaction involving financial assistance is still unlawful. The examples given are: where a company with insufficient distributable reserves makes a gift of money to an existing shareholder to enable them to buy further shares in the company; and where a company with insufficient distributable reserves makes a loan to a shareholder to buy shares and there is no reasonable prospect of the loan being repaid (so that an immediate provision would be required for the loan).

Capital Reductions

From 1 October 2008, private companies have benefited from a simplified procedure for capital reductions.

Under the 1985 Act, the only means of undertaking a capital reduction was by a Court approved procedure. The company was also required to have specific authorisation in its articles and seek a special resolution to approve the reduction.

The 2006 Act has introduced a new solvency statement procedure for private companies as an alternative to the Court approval procedure. Under the new provisions, specific authorisation in the articles is no longer required, and it is not necessary to obtain the approval of the Court provided that the directors make a statement of solvency in the prescribed form. There was some uncertainty as to whether a capital reduction using the new procedure would give rise to a distributable reserve; given a provision in the 2006 Act provides that a reserve arising from a reduction of capital will not be distributable subject to any provision in any order made by the Secretary of State. The Companies (Reduction of Share Capital) Order 2008 provided some clarification. It says the prohibition does not apply (so the reserve will be distributable) if a private company reduces its share capital using the solvency statement procedure and does not apply for a court order confirming the reduction. The reserve will then be treated as a realised profit, distributable in accordance with Part 23 of the 2006 Act.

Other Provisions

A number of other changes came into effect on 1 October 2008, including:

the requirement to have at least one natural person as a director;
a minimum age requirement for all directors (16 years);
trading disclosure provisions regarding the display and disclosure of a company's details (name, registered office, etc.) at the company's premises and in various communications (these largely restate the old requirements). A separate note detailing the trading disclosure provisions is available on request;
a new company names adjudication procedure;
new regulations governing the disclosure of shareholdings in annual returns (the annual return of a traded public company now only needs to include the names and addresses of those shareholders who hold 5% or more of the issued shares, and annual return of a private company only needs to include the names of shareholders, not their addresses);
the remaining political donation and expenditure provisions (relating to independent election candidates); and
the application of the accounting and audit provisions under the 2006 Act to limited liability partnerships.

PROVISIONS WHICH CAME INTO EFFECT ON 1 OCTOBER 2009

This section of the briefing note focuses on the key provisions that came into effect on the final implementation date of 1 October 2009:

Companies' Constitutions

Memorandum of Association

The memorandum has a reduced role under the 2006 Act. For companies incorporated on or after 1 October 2009, the memorandum comprises a single document simply stating the subscribers' intention to form a company and subscribe for at least one share in it.

Companies incorporated on or after 1 October 2009 also have unrestricted objects (unless a restriction is specifically set out in their articles). For existing companies, the objects set out in their memoranda will have automatically become part of their articles of association, unless they have elected to delete these objects or have adopted new articles without objects.

Articles of Association

The new model articles came into effect and apply by default to companies incorporated on or after 1 October 2009 (we have produced a separate briefing on this, please see our website or speak to your usual contact).

Entrenchment

Under the 1985 Act, existing companies were able to entrench parts of their constitution by inclusion in the memorandum with a statement that they cannot be altered. This is not possible for companies incorporated on or after 1 October 2009. "New" companies can only entrench provisions in their articles, and then on a conditional basis only (i.e. the provisions will be able to be altered but only if specified conditions or procedures – being more onerous than the passing of a special resolution - are satisfied). Where a new company's articles contain, or are amended to include or removed, an entrenched provision, notice must be given to the Registrar of Companies of this.

With regard to existing companies, any entrenched provisions remain unalterable without a Court order.

Shares and Share Capital

Authorised Share Capital

From 1 October 2009, the requirement for both private and public companies to have an authorised share capital was abolished. For existing companies (i.e. those incorporated prior to 1 October 2009), any provision in their memoranda stating the amount of the authorised share capital is treated as a provision of the articles, setting the maximum amount of shares the company can allot. A company can amend or revoke this 'cap' by ordinary resolution.

Allotment of Shares

Another substantive change which came into effect on 1 October 2009, is that directors of private companies with only one class of share are free to allot shares unless prohibited from doing so by their articles. This new provision does not relate to public companies or private companies with more than one class of share.

Existing companies will have to pass an ordinary resolution if they wish to benefit from this new provision. Such a resolution has the effect of amending the company's articles (which would usually require a special resolution).

For existing companies, any section 80 authority in place on 1 October 2009 continues to be effective, but only up to the amount of the section 80 authority.

Pre-Emption Rights

Statutory pre-emption rights remain under the 2006 Act and, as before, can be disapplied by special resolution or by the articles. For existing companies, any existing disapplication continues to have effect past 1 October 2009.

Class Rights

Under the 1985 Act, any variation of class rights required a special resolution. Since 1 October 2009, companies have been able to specify less onerous procedures for varying class rights in their articles.

Purchase of Own Shares

The principal changes are:

Companies (public and private) no longer need specific authorisation in their articles to purchase their own shares (i.e. they are free to do so unless the articles contain a specific prohibition).
Private companies no longer need specific authorisation in their articles to purchase shares out of capital.
In relation to an own share purchase out of capital by a private company, the directors are now required to complete a statement of solvency rather than swear a statutory declaration.

Redeemable Shares

Key changes are:

Private companies no longer require prior authorisation in their articles before they can allot redeemable shares.
If the company agrees, the terms of the redemption can permit the company to pay the redemption monies on a date after the redemption date.

Reductions of Capital

Since 1 October 2009, companies have not required authorisation in their articles to reduce their share capital. However, articles may contain a specific prohibition relating to reductions of capital.

Formation, Dissolution and Restoration of Companies

Company Formation

A couple of key changes to note:

Public companies can now be formed with only one shareholder.
Under the 1985 Act, a special resolution was required to change a company's name. However, the 2006 Act permits companies to set out different procedures for changing the company name in their articles, many are electing to do this by board resolution.

Dissolution and Restoration

The main changes are:

The procedure for a voluntary application to strike a company off the register has been extended to public companies (under the 1985 Act only private companies could make an application).
There is a new administrative restoration procedure whereby companies may, in limited circumstances, be restored to the register without application to the Court.
The time limit for an application to the Court for restoration to the register has been extended from 2 years to 6 years from the date of dissolution of the company.

Registers and Registration

Register of Members

There are new obligations regarding requests to inspect the register under the 2006 Act. In particular, companies are now obliged to inform a person who makes a request whether the information on the register is up-to-date and, if not, the date to which it has been made up. The company and each director may be liable to a fine if they fail to comply.

Register of Directors

Directors are now required to file two addresses; a service address for the public record and their home address (the latter of which will only be disclosed to specified public authorities and credit reference agencies; further dispensation can be obtained for high-risk directors).

Since October 2009, companies have been required to maintain a confidential register of directors' residential addresses (although in situations where the service address and residential address are the same, the register only needs a note that this is the case).

CONCLUSION

Directors of both private and public companies should consider with their advisors what, if any, changes should be made to their companies' constitutive documents and procedures in order to ensure full compliance with the 2006 Act and to take advantage of the deregulatory provisions it has brought into effect.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.