Key points
- Directors of new private companies may issue shares without shareholder approval. For an existing company to have this power, an ordinary resolution is needed.
- Communicating with shareholders electronically and via a website is now available but may require authorisation by the articles and the consent of shareholders.
- Directors' conflicts of interest may be authorised by the directors if empowered to do so by resolutionor articles. This could avoid a breach of duty.
- The new Act has reduced red tape in a number of areas: shorter notice for meetings, no compulsory annual general meetings and easier written resolutions by way of example. Your articles may be out of step and block the use of new flexible provisions or contain provisions which will be invalid. In our view, directors should be recommending to shareholders that a company's articles be amended to simplify administration and remove misleading provisions from the articles.
General points
The new model articles
Companies limited by shares or guarantee which are incorporated in
England and Wales on or after 1 October 2009 will be registered
under the Companies Act 2006. New sets of model articles for
private companies to replace Table A will be introduced, one for
private companies limited by shares and the other for private
companies limited by guarantee. These will be the 'default'
articles for companies incorporated on or after 1 October 2009,
although a company may instead adopt its own articles which may
exclude or modify the model articles. We expect that, as is usually
the case now, new companies will choose to incorporate some parts
of the model articles, but will also set out their own provisions
separately.
Existing companies can choose to adopt the model articles if they
wish, but do need not do so. In future if you amend your articles
this should be done by reference to the provisions of the 2006 Act
and it would be prudent practice for the amended articles to be
based on the model articles rather than Table A.
Articles of association
There is no legal requirement for you to amend your articles as a
result of the October 2009 changes and you could choose to continue
with your existing constitution. However, as you will see below,
there are a number of changes which may affect your current
articles and you may wish to make life easier by updating them to
take advantage of the more flexible regime being introduced for
private companies under the 2006 Act.
Memorandum of association
The 2006 Act simplifies a company's constitution. From 1
October 2009 the memorandum of association of new companies will
look very different and in particular will have no objects clause.
It will simply be a 'snapshot' document and of no
continuing relevance after incorporation. For existing companies,
most of the provisions of the current memorandum will automatically
be treated as part of the articles of association and so can be
amended or deleted by special resolution. Existing companies do not
have to amend their articles to reflect this change, but may do so
if they wish. New companies may have unrestricted objects, whereas
an existing company will need to amend its articles to take
advantage of this.
Authorised share capital
New companies will no longer have an authorised share capital,
although a company may impose a limit on the number of shares it
may issue in its articles.The authorised share capital of an
existing company operates as a restriction in the articles on the
number of shares which can be allotted by directors and an existing
company should consider whether to remove this restriction by
passing an ordinary resolution. We suggest that it would also be
advisable to remove any other provisions in the articles referring
to authorised share capital. Alternatively, an existing company
could adopt new articles by special resolution with effect from any
date after 1 October 2009 which do not refer to authorised share
capital.
Existing authority to allot
After 1 October 2009, it will no longer be possible to pass an
elective resolution under s80A of the 1985 Act granting indefinite
or extended authority to allot shares. Once expired, all
authorities to allot will have to be made under the new Act and
will be limited to five years in duration. Existing authorities for
directors to allot shares under s80 and s80A Companies Act 1985
will continue to have effect after 1 October 2009 until they expire
and they will be treated as if passed under the 2006 Act.
Consequently, existing companies could, before 1 October 2009, pass
an s80A elective resolution in respect of an indefinite authority,
or one for more than five years, to allot a specific number of
shares in order to avoid the new provisions of the 2006 Act which
require five-yearly renewals. Provisions in an existing
company's articles which contain s80 authorities will need to
be renewed in order to update them to reflect the wording of the
new Act.
Issue and terms of redemption of redeemable shares
Private companies will no longer need specific
authorisation in the articles to issue redeemable shares. An
existing company wishing to continue to restrict or prohibit the
issue of redeemable shares must include appropriate restrictions or
prohibitions in its articles. Currently, the terms and manner of
redemption must be stated in the articles, but from 1 October 2009
the directors of the company will be able to determine the terms,
conditions and manner of redemption, if they are authorised to do
so by the articles or by an ordinary resolution. If the directors
are not given such authority, all of these terms must be set out in
the articles. Shares must generally still be paid for on redemption
although the terms of redemption may now allow the redemption
monies to be paid after the redemption date if the terms of
redemption, whether fixed by the articles or by the directors,
allow and the relevant shareholders agree. An existing company
which has issued redeemable shares could renegotiate with its
shareholders the terms of redemption contained in its current
articles and amend its articles in order to take advantage of the
flexibility allowed by this new development. In the current
economic climate this may be useful for some companies since it
will improve a company's cashflow.
Reduction of share capital
Since 1 October 2008 private companies have been able to reduce
their share capital by passing a special resolution and no longer
need to obtain court approval. The resolution is accompanied by a
solvency statement made by each director. This new procedure is
subject to any restriction or prohibition in the company's
articles. You may wish to consider whether you require any such
restrictions or whether to delete an existing authority requiring
court approval, which is now redundant. There is no longer any need
for specific authorisation in the articles to effect a reduction of
capital. If your articles contain such authorisation you need do
nothing further. However, if you are updating your articles for any
other reason then you may choose to omit these provisions in order
to avoid any duplication with the 2006 Act.
Proxies
There are a number of important changes being made in relation to
the rights of proxies which may affect your articles after October
this year. If any provision of your articles provides that a proxy
has fewer votes than the member would have had, this will be
invalid. If your articles incorporate Table A pre-October 2007, it
would be advisable to amend them since regulation 54 does not allow
proxies to vote on a show of hands and will, therefore, be void
after October this year. Also any provisions of your articles
requiring an appointment of a proxy to be received by the company
more than 48 'business' hours before the meeting will be
void although your articles can set a time limit closer to the
meeting. You must also ensure that your articles do not specify a
period longer than 48 'business' hours before a meeting for
receiving notice of termination of a proxy's appointment since
this will also be void.
Registration of share transfers
If your articles state that the company does not have to give
reasons for refusing to register a transfer of shares or allows
share transfers to be at the discretion of directors, they should
be amended to reflect the new rules which make it a criminal
offence not to give reasons for refusing to register a transfer.
Nomination of third party rights Since October 2007 companies can
include in their articles provisions enabling members to nominate
another person to exercise their rights as a member, for example,
the right to receive notice of general meetings and to be sent
proposed written resolutions. If you have not done so you may wish
to amend your articles to allow your members this flexibility.
Directors' indemnities
In April 2005, the ability of companies to indemnify their
directors against the legal and financial costs of claims brought
by third parties was extended. Companies were also permitted for
the first time to pay directors' defence costs as they are
incurred (provided these are repaid if the defence is
unsuccessful), rather than at the conclusion of legal proceedings.
The 2006 Act has extended the scope of directors' indemnities
still further to include liability incurred by a director in
connection with his acting as a trustee of an occupational pension
scheme. Many companies have outdated indemnity provisions in their
articles which will not cover all these matters.
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.
