This chapter discusses the formal mechanisms that facilitate major corporate reconstructions. These are: (i) arrangements or reconstructions under the Insolvency Act 1986 ss 110–111; (ii) arrangements, reconstructions, mergers or divisions under the Companies Act 2006 (CA 2006) Pts 26, 26A and 27; and (iii) takeovers under CA 2006 Pt 28.
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Chapter
16. Rescue and Insolvency Procedures
Chapter
10. Company law II: directors, finance, and capital
Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses the law governing company directors and shareholders. The common law duties on directors have been codified and expanded through the Companies Act (CA) 2006. Directors are responsible to the company itself, not to individual shareholders. Minority protection (of shareholders) is provided through the CA 2006 to restrict directors’ acts that may unfairly disadvantage them. Public companies must have a company secretary and they must satisfy statutory requirements in relation to their qualifications. Shareholders have no automatic right of management in the company although, through attendance and the rights to vote at shareholder meetings, they may have influence over the business conducted.
Chapter
21. Corporate reconstructions and takeovers
This chapter looks at the legal framework that regulated takeovers, as well as discussing corporate reconstruction via a scheme of reconstruction, a scheme of arrangement, and the restructuring plan. A reconstruction under s 110 of the Insolvency Act 1986 involves all or part of a company’s business or property being transferred or sold to one or more new companies, and the original company is then voluntarily wound up. A s 110 reconstruction binds all members and creditors who are affected by it, even those who did not vote for it. Meanwhile, a scheme of arrangement or a restructuring plan, under Pts 26 and 26A of the Companies Act 2006 (CA 2006) respectively, is a compromise or arrangement between a company and its creditors, or any class of them; or its members, or any class of them. Takeovers are regulated by the Panel on Takeovers and Mergers, which is responsible for drafting and updating the City Code on Takeovers and Mergers.
Chapter
4. Directors
This chapter focuses on company directors. Every private company must have at least one director, while every public company must have at least two. Directorsʼ duties are now found in the Companies Act 2006, which provides for seven general duties that directors owe to the company. A director’s term of office can terminate in several ways including resignation, retirement, or removal. The courts can also disqualify a person from acting as director.
Chapter
8. Remedies for Maladministration of the Company
This chapter discusses the functioning of directors and their duties under common law and the Companies Act 2006. Topics covered include: the scope and nature of directors’ general duties; the duty to act within powers; the duty to promote the success of the company; the duty to exercise independent judgement; the duty to exercise reasonable care, skill and diligence; the duty to avoid conflicts of interest; the duty not to accept benefits from third parties; the duty to declare an interest in a proposed or existing transaction or arrangement; remedies for breach of general duties; relief from liability; ratification of acts of directors; relief from liability granted by the court; contracting out of liability; statutory rules requiring special notice or members’ approval for certain transactions; and secondary liability (liability of third parties associated with directors’ wrongs).
Chapter
1. Overview
This chapter provides an overview of the work’s contents. It introduces the basic ideas of company law. A company is an artificial legal person capable of owning property, being a party to contracts and being a claimant or defendant in legal proceedings. A company is created by registration at Companies House under the Companies Act 2006. A company is both an association of members (shareholders) and a person separate from its members. Members are not liable for the company’s debts. Members are only liable to make an agreed capital contribution in return for their shares. Members appoint directors to manage the company’s business and represent the company. Every company must have articles of association which set out the company’s constitution.
Chapter
4. Articles of association
This chapter deals with articles of association, the principal element of a company’s constitution, under the Companies Act 2006. It describes the content of the articles, model articles of association which can be adopted by limited companies (either in whole or in part) on registration, and the function of articles as a contract between the company and its members and between the members themselves. It also considers provisions of articles that may be incorporated in other contracts and the right of members of a company to amend its articles. The chapter discusses a number of particularly significant court cases, including Allen v Gold Reefs of West Africa Ltd [1900] 1 Ch 656 and Quin and Axtens Ltd v Salmon [1909] AC 442.
Chapter
2. The UK’s corporate law and governance system
This chapter discusses the various sources of company law and corporate governance. The main sources of company law are legislation, case law, the constitution of the company, contract, European Union law, and human rights law. Legislation is the principal form of UK company law, with the Companies Act 2006 being the most important piece of company law legislation. However, companies are, to a degree, permitted to create their own internal rules through their constitution. Companies can also create their own law by drafting their own standard terms for use in contracts. Meanwhile, corporate governance best practice principles are found in a series of reports and codes, with the three principal codes being the UK Corporate Governance Code, the Wates Corporate Governance Principles, and the UK Stewardship Code 2020. Both of the codes operate on a comply-or-explain basis, under which certain persons must comply with the code or explain their reasons for non-compliance.
Chapter
14. Members
This chapter focuses on the members or shareholders of a company and the way in which they take decisions on the company’s affairs. It begins by considering the rules which determine who is a member of a company and the information on the members which a company must record. It then describes the mandatory rules of company law that allow members to participate in decision-making with regard to a company’s affairs, members’ class rights and the alteration of such rights. Relevant provisions of the Companies Act 2006 governing written resolutions of private companies, meetings and annual general meetings, voting, adjournment of meetings and authorisation of political donations by companies are discussed. The chapter analyses a number of particularly significant cases.
Chapter
17. Company officers, secretary and auditor
This chapter focuses on company officers (secretaries, auditors and managers), with emphasis on their responsibilities and liabilities under the Companies Act 2006 (CA 2006) and the appropriate sanctions for breach of its requirements. It first considers who, in general terms, is an ‘officer’ or ‘manager’ of a company for the purposes of criminal or fiduciary liability. Then it deals with the appointment and qualifications of secretaries and the appointment and reappointment of auditors. There is discussion of auditors’ remuneration, integrity and independence, the required contents of an auditor’s report and an auditor’s investigative powers. There is analysis of an auditor’s liability in contract and tort for negligence in carrying out the audit and negligent misstatement in an auditor’s report. The chapter cites relevant legislation, including CA 2006 and UK Corporate Governance Code, and considers two particularly significant cases: Caparo Industries plc v Dickman [1990] 2 AC 605 and Stone and Rolls Ltd v Moore Stephens [2009] UKHL 39, [2009] AC 1391.
Chapter
19. Acting for a company: agency and attribution
This chapter deals with the legal relationship of agency that exists between the company and the agent, explaining the process involved in an agent’s authentication and the execution of documents for the company they represent. It considers two ways in which a company may become contractually bound to another person (a ‘contractor’) under the provisions of the Companies Act 2006: through a written contract to which the company’s common seal is affixed, or when someone has made a contract on behalf of the company. It also discusses the company’s capacity to enter into contracts, including the ultra vires rule, and attribution by a court so as to impose criminal liability on a company. A number of court cases relevant to the discussion are cited.
Chapter
9. Company Auditors
This chapter discusses the available remedies when a company is poorly run, including the types of issues that are legitimate subjects of complaint. Topics covered include: pursuing claims for maladministration; why shareholder litigation is such a problem; the old common law rule in Foss v Harbottle; the statutory derivative action for bringing corporate claims and limitations based on reflective loss; personal claims by members; and unfairly prejudicial conduct of the company’s affairs.
Chapter
10. Loan Capital
The Concentrate Questions and Answers series offers the best preparation for tackling exam questions and coursework. Each book includes typical questions, suggested answers with commentary, illustrative diagrams, guidance on how to develop your answer, suggestions for further reading, and advice on exams and coursework. This chapter examines loan capital—borrowing by companies. It focuses on: the legal distinction between fixed and floating charges created by companies over their assets as security for loans, the registration of charges, applications for extension of the period for registration, the priority of charges on insolvency, and the avoidance of charges under the Insolvency Act 1986.
Chapter
8. Corporate Liability: Contracts, Torts, and Crimes
The Concentrate Questions and Answers series offers the best preparation for tackling exam questions and coursework. Each book includes typical questions, suggested answers with commentary, illustrative diagrams, guidance on how to develop your answer, suggestions for further reading, and advice on exams and coursework. This chapter examines company contracts including: pre-incorporation contracts, the company’s capacity, directors’ authority, and restrictions on the powers of directors to bind the company. The chapter also considers liability of the company for tortious and criminal acts, including vicarious liability; attribution; and the particular area of corporate manslaughter and the Corporate Manslaughter and Corporate Homicide Act 2007.
Chapter
12. Mixed Topic Questions
The Concentrate Questions and Answers series offers the best preparation for tackling exam questions and coursework. Each book includes typical questions, suggested answers with commentary, illustrative diagrams, guidance on how to develop your answer, suggestions for further reading, and advice on exams and coursework. This chapter looks at mixed topic questions and provides four example questions and suggested answers. The questions require the consideration of a variety of topics, including: directors’ duties, shareholder remedies, derivative claims, unfair prejudice, de facto and shadow directors, corporate personality, lifting/piercing the veil of incorporation, pre-incorporation contracts, wrongful trading, disqualification, and the articles of association.
Chapter
3. Registration
This chapter discusses the process of registration for the incorporation of companies under the Companies Act 2006. It considers the distinction between private and public companies, the meaning of limited liability and the significant characteristics of the company created by the registration procedure at Companies House, such as a company’s separate corporate personality (which is highly artificial), its members, shareholding, directors, secretary, name, constitution and its registered office and domicile. To deter misuse of companies, the registration process involves disclosing much information about a company which is then available for public inspection. This process of public disclosure continues throughout a company’s existence.
Chapter
7. Offering shares to the public
This chapter focuses on public offering of shares as a source of finance for companies, with emphasis on the legal requirements to provide the necessary information to prospective investors. It also considers the importance of a marketplace for selling shares at the best possible price, as well as the regulation of the financial services industry by the Financial Services and Markets Act 2000. In addition, it discusses two controls on share offers to the public under the Companies Act 2006 with respect to payment of underwriting commission and repayment of subscribers’ money if a share offer is not completely successful. The chapter examines the regulatory regimes for securities markets, some of the main reasons or advantages for going public, the prospectus requirement and any exemptions to it and how the law deals with misleading statements and omissions in prospectuses.
Chapter
8. Share transfer
This chapter discusses an essential feature of registered companies: that their shares are transferable. The discussion covers some of the procedures to be followed when transferring some or all of a company member’s shares to another person, for sales on and off the London Stock Exchange, transfers of all or a part of a member’s holding and transfers of certificated and uncertificated shares. After describing share certificates and uncertificated shares, the chapter considers the problem of who should bear the loss when a transfer of shares is forged or fraudulent. It also explores transmission of shares on death or bankruptcy.
Chapter
17. The Management of Corporations
This chapter considers corporate management and focuses on the regulation of those who govern the company, and the protection of the shareholders, who have no automatic right of management. The actual ‘running’ of the company is left to the directors, a relatively small number of persons who may take individual responsibility for aspects of the company’s business or may oversee the company as a whole. Directors have significant powers when acting for the company, and whilst a corporation possesses its own separate legal personality, independent of those who manage it, the actions of the company are performed, under authority provided by statute and the company’s constitution, by its directors. The chapter identifies the appointment of directors and their duties as codified from the common law into the Companies Act (CA) 2006, and the provisions for removing a director.
Chapter
12. The constitution of the company: dealing with outsiders
Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter explores the legal aspects of transactions made with those outside the company (called outsiders or third parties), with emphasis on how they are determined to be legitimate and binding on the company. It also discusses the ultra vires doctrine and the three particular issues that make it a very tricky problem for the courts; the inclusion of the benefit of the company criterion to the ultra vires issue; the reform of ultra vires; and the application of the general principles of agency in determining whether the company is bound by a particular transaction. The chapter concludes by analysing reforms in the Companies Act 2006 concerning the authority of directors to bind the company or authorise others to do so.
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